ANDREW FARRAN. Brexit: Law versus Process as next drama erupts

Theresa May suffered three defeats in just a few hours in the British Parliament this Tuesday which doesn’t auger well for her EU Withdrawal Agreement next Tuesday. The various coalitions that have been the drivers to date may not hold well together thereafter. 

Parliament has asserted its prerogatives, politically, but has yet to determine how those might be expressed legislatively. The fact is, as matters stand, that under the existing law the UK leaves the EU on 29th March next. If there is no agreement otherwise there will be no transition period either – just a gap.

The divisions on Tuesday were separated by just some twenty or so votes (311/293 in one case), over which there was no discernible pattern. None of the outcomes were binding. So anything may yet go.

The first vote was on releasing the Attorney-General’s full legal opinion on the Withdrawal Agreement, as opposed to a summary, which had been resisted by the government as contrary to Parliamentary convention – the argument being that privacy between the government and its legal advisers was sacrosanct. The House of Commons decided in an historically unprecedented moment that to defy its request for the release of the full opinion on such a transcending issue as Brexit amounted to a contempt of Parliament with consequences. The full opinion will be published this week. The Leader of the House, Andrea Leadsom, was emphatic that future governments would come to regret that vote.

The sensitivity about the opinion is that it is believed to state that the UK could be bound indefinitely to the customs union for as long as the Irish ‘back stop’ endured, and being so bound would under the arrangement have little if any influence on EU rule making and standards setting in future. Hence the charge: vessal state.

Interestingly the Advocate-General to the European Court of Justice has just advised that a member state can unilaterally cancel an Article 50 notice to withdraw without seeking the consent of the other 27. The Advocate-General’s advice is usually persuasive in such matters. UK Parliamentarians have hailed this as precluding the feared possibility of leaving without an agreement or crashing out over a cliff. That would seem a false hope as in the absence of an alternative agreement the gap would widen.

The other votes amounted in effect to saying that if the government’s Withdrawal Agreement was rejected next week the next steps should be decided by the Parliament, not the government. Those steps could include, as aforementioned, the recission of the triggering of Article 50 of the EU Treaty which activated the withdrawal process; a direction to engage the EU on a Norway+plus+plus negotiation thereby staying in the single market – with labour protections and restrictions on free movement (favoured also by a number of Labour Party MPs); or taking the whole question of Brexit back to the people in a second referendum (with clearer proposals). The critical issue with a Norway type agreement is not that the UK would be linked to the single market, with or without conditions, but whether the EU states would allow it to restrict freedom of cross- border movement to the extent that hard Brexiteers demand – which would seem highly problematical. Norway together with Liechtenstein and Iceland, comprises the European Economic Area which in turn is part of the European Free Trade Area with Switzerland. Each and all have specific agreements with the EU tailored to meet mutual requirements.

In the midst of these dramatic developments, which may become even more dramatic next week, is that previously prominent groups like the hard Brexiteers and the Irish DUP appear notwithstanding to be losing ground – the former fears losing Brexit in any form altogether, and the latter, its demand for an open land border (which could be achieved essentially if the UK were to remain in the single market). Both groups may now be inclined to support Mrs May’s Withdrawal Agreement after all. But it may be that the overwhelming opinion in the Commons is moving towards a Norway+plus+plus if they can get their pluses right – and this only if Mrs May’s agreement is defeated first.

Given that none of the alternatives to the Withdrawal Agreement could be negotiated or legislated for by 29th March, if that agreement is rejected the UK and the EU will be closer than ever to limbo – which is where process will have to prevail over law, requiring diplomacy and forbearing on the part of all concerned.

Andrew Farran is a former diplomat, law academic and trade policy adviser

 

 

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