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Legal Opinion on Joint Instrument and Unilateral Declaration

The Attorney General wrote to the Prime Minister setting out his legal opinion on the Joint Instrument and Unilateral Declaration concerning the Withdrawal Agreement. (12 March 2019)

https://www.gov.uk/government/publications/legal-opinion-on-joint-instrument-and-unilateral-declaration-concerning-the-withdrawal-agreement

Legal Opinion 120319 (copy pdf)

Dear Prime Minister,

Legal Opinion on Joint Instrument and Unilateral Declaration concerning the Withdrawal Agreement

1. I have considered the documents entitled “Instrument Relating To The Agreement On The Withdrawal Of The United Kingdom Of Great Britain And Northern Ireland From The European Union And The European Atomic Energy Community“(the “Joint Instrument“) and the “Declaration By Her Majesty’s Government Of The United Kingdom Of Great Britain And Northern Ireland Concerning The Northern Ireland Protocol” (the “Unilateral Declaration“), which were concluded with the EU late last night.

2. As the preamble states, the Joint Instrument is an instrument relating to the Withdrawal Agreement which was made in connection with its conclusion and is accepted by both parties. Therefore, pursuant to the principle set out in Article 31 of the Vienna Convention on the Law of Treaties, which is widely accepted as reflecting customary international law, the Joint Instrument has binding legal effect as a document that is to be taken as an authentic interpretation of the Withdrawal Agreement.

3. The Unilateral Declaration sets out the United Kingdom’s position on the Withdrawal Agreement and the Joint Instrument. A unilateral declaration by one party to a bilateral agreement constitutes an authentic interpretation of the treaty if it is accepted by the other party. While it is not an agreed document, it too has legal status as an interpretative document, and will be lodged with the depositary of the Withdrawal Agreement and form part of the context of the treaty in accordance with the principle set out in Article 31 of the Vienna Convention.

Ministers response to the CJEU’s ruling on the Wightman Article 50 case

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Steve Barclay gave a statement to Parliament explaining the Government’s response to the CJEU’s judgement (10 december 2018) on the Wightman Article 50 case.

Ministers response to the CJEU’s ruling on the Wightman Article 50 case

https://www.gov.uk/government/speeches/secretary-of-state-statement-to-parliament-in-response-to-the-cjeus-ruling-on-the-wightman-article-50-case

With permission, Mr Speaker, I will now make a statement on the judgment issued by the European Court of Justice this morning on the Wightman case.

Mr Speaker, today, the European Court of Justice has delivered its judgment on the question of the revocability of an Article 50 notice. The Court has found that the UK has the right, in accordance with its constitutional requirements, to unilaterally revoke the notification of its intention to withdraw from the EU.

We note the judgement from the European Court. It is their role to provide rulings on the interpretation of EU law.

This judgement clarifies the law. The judgement does not in any way change our policy. That the Government knows this course is possible, just as many undesirable actions are possible, does not change the fact that such an approach is hypothetical and the Government has no intention of doing it.

The Government’s firm and long-held policy is that we will not revoke the Article 50 notice. This position has not changed. To do this, or indeed to hold a second referendum, would be to undermine the result of the 2016 referendum and the professed will of this House to give effect to that result.

This House voted to hold the referendum and promised to deliver it.

544 members of this House voted to give the British public their say, with just 53 opposed.

Almost three quarters of the electorate then took part in the 2016 referendum, resulting in 17.4 million votes to leave the European Union.

This is the highest number of votes cast for anything in UK electoral history, making this referendum the biggest democratic exercise in our history.

This House then voted again to empower the Prime Minister to notify under Article 50 and voted yet again to repeal the European Communities Act.

The Government remains focused on its task and its mandate, and delivering a deal which honours the 2016 referendum result.

We will be leaving the EU on the 29th of March next year.

I commend this statement to the House.

Exiting the EU: Publication of Legal Advice

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)

Motion to find the Government in Contempt of Parliament

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.

European Union (Withdrawal) Bill Committee Stage

My previous report European Union (Withdrawal) Bill Committee Stage 1-3 covered the first three debates in the House of Commons during the Committee Stage of the European Union (Withdrawal) Bill. The next 5 debates were largely overshadowed with the “media excitement” generated by the possibility of the UK being allowed by the EU to discuss a future possible trading relationship between the UK and countries in the EU.

The debates were held

  • 4th sitting – 4th Dec 2017
  • 5th sitting – 6th Dec 2017
  • 6th sitting – 12th Dec 2017
  • 7th sitting – 13th Dec 2017
  • 8th sitting – 20th Dec 2017 (final)

The European Union (Withdrawal) Bill was considered and amended in a Committee of the whole House which was completed on Wednesday 20 December 2017.

Details for all the debates can be found on Parliament’s web-site at:

https://services.parliament.uk/bills/2017-19/europeanunionwithdrawal/stages.html

More than 500 amendments were considered for debate and a number of votes were taken during the proceedings.

New Clauses and Amendments considered in Committee of the whole House (excel spreadsheet).

An amendment by the Government to add the actual date and time of withdrawal from the EU to the Bill was accepted after a vote. This is defined as 29 March 2019 at 11.00 p.m.

The Government were only defeated following a vote to accept a proposed amendment by Dominic Grieve. Clause 9 allows the Government to use statutory instruments to implement the withdrawal agreement. This amendment requires Parliament to approve the final terms of the withdrawal agreement before the Government can implement the withdrawal agreement.

A Minister of the Crown may by regulations make such provision as the Minister considers appropriate for the purposes of implementing the withdrawal agreement if the Minister considers that such provision should be in force on or before exit day, subject to the prior enactment of a statute by Parliament approving the final terms of withdrawal of the United Kingdom from the European Union.

Details of all the Committee Stages is summarised in an interesting article at the Institute for Government

EU Withdrawal Bill: amendments and debates

All the changes made to the original Bill are shown in the following document:

Version of the bill showing changes made in committee (pdf)

What happens next?

MP’s will next consider the Bill at Third Reading and Report Stage, known collectively as remaining stages. This will take place on Tuesday 16 and Wednesday 17 January 2018.

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