1. Writing in the Sunday Times yesterday, the Prime Minister announced, ‘My Withdrawal Agreement Bill will be a bold new offer to MPs’.
2. Self-evidently, it is highly desirable for there to be further, well-focused debate in Parliament so as to make intelligent use of the extension (until the end of October) to the period under Article 50 TEU before the UK automatically – with or without a deal – leaves the EU.
3. It may be helpful to recall the parameters for that debate.
4. The Withdrawal Agreement Bill (the ‘WAB’) is a draft domestic law statute intended to implement the UK’s withdrawal from the EU. It is not, as such, a legal instrument ratifying the draft withdrawal agreement (‘WA’) on behalf of the UK.
5. For the UK to leave the EU with a deal, ‘the deal’ (whether that deal is the WA or something else) will have to be ratified before the exit date by both parties to the agreement under international law, namely the UK and the EU27.
6. If the WAB is fully aligned with the WA – or put another way, if its substantive provisions are exactly the same as those in the WA – there is no technical legal difficulty about Parliament first passing the WAB and then passing a separate legal instrument to ratify the WA.
7. The two texts would say and mean the same thing. No changes to the WA would be needed.
8. Westminster could therefore complete the UK side of the ratification process. The EU could then ratify the WA. The UK would leave the EU with a deal: the WA that was initialed in December 2018.
9. If the WAB contains provisions that would merely require alterations to be made to the Political Declaration that accompanies the WA, agreeing such alterations with the UK’s EU partners in Brussels is probably also relatively straightforward.
10. The EU27 have already indicated publicly on more than one occasion that they are open to making changes to the Political Declaration, if that is what the UK wants, in order to facilitate a smooth and orderly UK withdrawal.
11. It is in principle possible to envisage a version of the WAB – and consequent changes to the Political Declaration – that would make it unnecessary for the ‘Irish backstop’ ever to be triggered. If so, its continued presence in the WA would, in practice, not matter.
12. To put that point in technical EU lawyers’ shorthand, if the UK intended to sign up to a permanent customs union with the EU and permanent membership of the single market, that would render the Irish backstop provision otiose.
13. If, however, the WAB is passed by Parliament in a form that diverges from what has been agreed with the EU in the WA itself – for example, by removing or altering the ‘Irish backstop’ – the two texts would no longer be in alignment.
14. In those circumstances, Parliament passing the WAB would NOT mean that the UK then left the EU with a deal. It would require the UK to request the EU27 to reopen the WA and to renegotiate its contents.
15. The EU27 have made it very clear that they are not disposed to reopen the negotiations on the WA itself.
16. Passing the WAB in a form that does not align with the WA will not, of itself, avoid a no-deal Brexit.
17. Neither the history nor the geography of Ireland are going to change between now and October.
18. Ends – please feel free to RT.
