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Select Committee on Exiting the EU – report 05 December 2018

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The Committee on Exiting the European Union publishes its report (09 December 2018) on the Government’s EU Withdrawal Agreement and Political Declaration. The Report says that the Prime Minister’s deal fails to offer sufficient clarity or certainty for the future of the UK.

https://www.parliament.uk/business/committees/committees-a-z/commons-select/exiting-the-european-union-committee/news-parliament-2017/progress-negotiations-withdrawal-agreement-report-published-17-19/

Conclusions and Recommendations

The adoption by the Government and the EU of the Withdrawal Agreement and Political Declaration on the future relationship is a significant moment.

Since the Government triggered Article 50, the negotiations have been conducted against a hard deadline and in circumstances of great political sensitivity, reflecting their critical importance to the UK and its place in the world. Parliament will now vote on whether to give its consent to the deal the Government has brought back from Brussels.

In this report, we assess what the deal would mean, and we set out what might happen next, depending on the result of the vote in the House of Commons. However, it is clear that after 20 months of intense negotiations, only the terms of the UK’s exit are fully known; the nature of the future relationship with the European Union is not, and therefore does not provide long-term certainty.

Full details are available at:

The progress of the UK’s negotiations on EU withdrawal – The Withdrawal Agreement and Political Declaration (PDF 751 kb)

(copy pdf)

CJEU – UK can revoke Article 50

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The European Court of Justice has today (10 December) announced its decision in Case C-621/18 Wightman and Others as to whether the UK can unilaterally decide to revoke the invocation of Article 50.

The United Kingdom is free to revoke unilaterally the notification of its intention to withdraw from the EU. Such a revocation, decided in accordance with its own national constitutional requirements, would have the effect that the United Kingdom remains in the EU under terms that are unchanged as regards its status as a Member State

All the details available at

https://curia.europa.eu/jcms/upload/docs/application/pdf/2018-12/cp180191en.pdf

CJEU_decision (copy pdf)

In today’s judgment, the Full Court has ruled that, when a Member State has notified the European Council of its intention to withdraw from the European Union, as the UK has done, that Member State is free to revoke unilaterally that notification.

That possibility exists for as long as a withdrawal agreement concluded between the EU and that Member State has not entered into force or, if no such agreement has been concluded, for as long as the two-year period from the date of the notification of the intention to withdraw from the EU, and any possible extension, has not expired.

The revocation must be decided following a democratic process in accordance with national constitutional requirements. This unequivocal and unconditional decision must be communicated in writing to the European Council.

Such a revocation confirms the EU membership of the Member State concerned under terms that are unchanged as regards its status as a Member State and brings the withdrawal procedure to an end.

Full Judgement

CJEU Full Judgement (copy pdf)

Will the UK Parliament consider this Judgement in respect of another option for the way forward ?

Other References

Also see a House of Commons Research Briefing

Brexit: Article 50 TEU at the CJEU

Exiting the EU: Publication of Legal Advice

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The Government has published and made available to Parliament, the Attorney General’s legal advice to Cabinet on the Protocol on Ireland/Northern Ireland following the Motion passed on 04 December 2018 in the House of Commons.

https://www.gov.uk/government/publications/exiting-the-eu-publication-of-legal-advice

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/761852/05_December-_EU_Exit_Attorney_General_s_legal_advice_to_Cabinet_on_the_Withdrawal_Agreement_and_the_Protocol_on_Ireland-Northern_Ireland.pdf

This is the full, final advice that the Attorney General provided to Cabinet on 14 November on the legal effect of the Withdrawal Agreement. The release of this advice does not set a precedent for any future release of Law Officers’ advice.

An extract from the advice indicates that it could be difficult to leave the backstop arrangement:

In conclusion, the current drafting of the Protocol, including Article 19, does not provide for a mechanism that is likely to enable the UK to lawfully to exit the UK wide customs union without a subsequent agreement. This remains the case even if parties are still negotiating many years later, and even if the parties believe, that talks have clearly broken down and there is no prospect of a future relationship agreement. The resolution of such a stalemate would have to be political.

Legal Advice (copy of document)

Day 1 – Debate to approve the Withdrawal Agreement

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Debate in the House of Commons started (on the 4 December 2018) to approve, or otherwise, the Withdrawal Agreement and Political Declaration agreed between the UK and EU.

The first significant item to be decided was an amendment proposed by Dominic Grieve, to the Business of the House Motion on the Withdrawal Agreement.

The amendment allows motions under section 13 of the European Union (Withdrawal) Act 2018, to be amended.

This means that, for example, if the Government was to table a new motion, were it to lose a vote on the deal agreed with the EU, MPs would be able to add further amendments to it.

MPs voted to approve this amendment by 321 to 299 votes.

In this vote, disloyalty within the Conservative party was evident with 25 Conservative MPs, mainly in favour of Remain, voting against the Government.

Division 274, 4 December 2018, details

282 Conservative, 9 DUP, 4 Labour and 4 Independent MP voted with the Government

Prime Minister Theresa May then opened the debate on the Withdrawal Agreement, starting five days of debates with 8 hours per day allowed for discussion followed by the “Meaningful Vote” on the final day.

Debate will continue on 5, 6, 10 and 11 December 2018

Motion to find the Government in Contempt of Parliament

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Debate in the House of Commons started (on the 4 December 2018) to approve, or otherwise, the Withdrawal Agreement and Political Declaration agreed between the UK and EU. Prior to starting the debate, a motion to find the Government in Contempt of Parliament was debated. This was considered as a result of the failure to provide “any and all legal advice provided to the Government”.

An earlier motion had been agreed “without dissent or objection” on 13 November 2018 …

That an humble Address be presented to Her Majesty, that she will be graciously pleased to give directions that the following papers be laid before Parliament: any legal advice in full, including that provided by the Attorney General, on the proposed withdrawal agreement on the terms of the UK’s departure from the European Union including the Northern Ireland backstop and framework for a future relationship between the UK and the European Union.

The motion to consider contempt on 4 December 2018 stated …

That this House finds Ministers in contempt for their failure to comply with the requirements of the motion for return passed on 13 November 2018, to publish the final and full legal advice provided by the Attorney General to the Cabinet concerning the EU Withdrawal Agreement and the framework for the future relationship, and orders its immediate publication.

Prior to the vote on the contempt motion, MP’s rejected the Government’s proposed amendment …

amendment … to leave out from “House” to the end and insert:

“refers to the Committee of Privileges the question of whether the Government’s response fulfils the motion passed on 13 November 2018 and requests the Committee to consider the constitutional and historic context and the proper use, ambit and scope of the motion for return procedure.”

This amendment was defeated by 311 to 307 votes. (In this vote, 2 Conservative MPS – Peter Bone and Philip Hollobone, and the 9 members of the DUP voted against the Government)

MPs voted in favour of the motion finding Ministers in contempt (of Parliament) for failing to publish the full legal advice given to the Cabinet, concerning the EU Withdrawal Agreement, by 311 to 293 votes and the Government were ordered to provide the full legal advice on the Brexit deal. (In this vote, 2 Conservative MPS – Peter Bone and Philip Hollobone, and the 9 members of the DUP voted against the Government)

Following the vote, Andrea Leadsom, the Leader of the House, announced that the legal advice would be made available to MP’s on 05 December. She also stated:

…recognising the serious constitutional issues that this raises, I have referred the matter to the Committee of Privileges so that it can consider the implications of the Humble Address.

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