web analytics

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.

Various documents issued by the EU – 11 March 2019

Various documents issued by the EU

Letter from the President of the European Commission to the President of the European Council, 11 March 2019

Commission Communication on the endorsement by the Commission of the results of the discussions with the United Kingdom on Interpretative Declarations related to the Agreement on the withdrawal of the UK from the EU and Euratom

Copies (pdf)

commission_communication_110319

letter_juncker_to_tusk_110319

Documents issued following agreement reached on 11 March 2019

A Government statement confirming that political agreement has been reached on the withdrawal agreement, and the framework for the future relationship between the UK and the EU, published on 11 March 2019, laying these documents before Parliament.

Political Declaration laid before Parliament following political agreement.

The Government has laid before Parliament, under Section 13(1)(a) of the EU (Withdrawal Act) 2018:

(i) a statement that political agreement has been reached;

(ii) a copy of the negotiated withdrawal agreement;

(iii) a copy of the framework for the future relationship;

(iv) a joint statement supplementing the Political Declaration setting out the framework for the future relationship;

(v) a unilateral declaration; and

(vi) an instrument relating to the withdrawal agreement.

As set out in the Prime Minister’s statement of 26 November 2018, the withdrawal agreement laid before Parliament following political agreement being reached in November 2018 represented “a version of the text which has been agreed, but has not yet been formally signed. Before this formal signature takes place, the agreement must complete the European Union’s jurist-linguist translation process. During that time, minor technical corrections will be made to the text, though these changes will not affect the substance of the agreement”.

In line with that, the text has since been subject to minor technical corrections, for example to correct stylistic or grammatical errors. In addition, it has been put onto the EU’s standard template for international treaties as part of its publication in the EU’s Official Journal which has led to further formatting changes.

Documents

11 March Statement that political agreement has been reached

11 March Political Declaration setting out the framework for the future relationship between the European Union and the United Kingdom

11 March Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community

11 March Joint statement supplementing the Political Declaration setting out the framework for the future relationship between the European Union and the United Kingdom of Great Britain and Northern Ireland

Declaration by Her Majesty’s Government of the United Kingdom of Great Britain and Northern Ireland concerning the Northern Ireland Protocol

11 March 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

Copies (pdf)

11_March_PD

11_March_WA

2019-03-11_Instrument

2019-03-11_JointStatement

2019-03-11_STATEMENT_OF_AGREEMENT

2019-03-11_Unilateral_Declaration

Juncker Statement in Strasbourg 11 March 2019

Remarks by President Jean-Claude Juncker at a joint press conference with UK Prime Minister Theresa May on 11 March 2019.

Noted the interesting comment:

Let us be crystal clear about the choice: it is this deal or Brexit might not happen at all.

Here’s the statement in full:

Madame Prime Minister,

Ladies and Gentlemen,

I remember standing in front of the press almost three years ago on 24 June 2016, the day after the British people in a referendum decided to leave our Union. It was a sad day for our Union and a sad day for me personally. But we must respect the decision of the British people – no matter how deeply we regret it.

As I said back then: the European Union has rules to allow a Member State to leave. Ever since 29 March 2017 when the United Kingdom notified its intention to leave, the European Union has negotiated in this spirit. Our aim is to ensure that this withdrawal takes place in an orderly way.

We want the rights of citizens on both sides of the channel to be protected. And we want to preserve peace on the island of Ireland. These are things any responsible politician should care about. The European Union and the United Kingdom have a joint responsibility.

We have a deal on the table which does exactly this. The Withdrawal Agreement that the European Union and the Government of the United Kingdom agreed on has in fact been on the table for 105 days now. The European Union is ready and our ratification process is ongoing. I have no doubt that it can be concluded on time.

PM’s press statement in Strasbourg: 11 March 2019

Prime Minister’s press statement in Strasbourg: 11 March 2019

Last November, after two years of hard-fought negotiations, I agreed a Brexit deal with the EU that I passionately believe delivers on the decision taken by the British people to leave the European Union.

Over the last four months, I have made the case for that deal in Westminster and across the UK. I stand by what that deal achieves for my country.

It means we regain control of our laws, by ending the jurisdiction of the European Court of Justice in the UK.

Regain control of our borders, by ending free movement.

Regain control of our money, by ending vast annual payments to the EU.

The end of the Common Agricultural Policy and the Common Fisheries Policy for British farmers and fishermen.

An independent trade policy.

And the deal sets us on course for a good future relationship with our friends and allies in the EU.

A close economic partnership that is good for business.

Ongoing security co-operation to keep our peoples safe.

The deal honours the referendum result and is good for both the UK and the EU.

But there was a clear concern in Parliament over one issue in particular: the Northern Ireland backstop. Having an insurance policy to guarantee that there will never be a hard border in Northern Ireland is absolutely right – it honours the UK’s solemn commitments in the Belfast/Good Friday Agreement. But if we ever have to use that insurance policy, it cannot become a permanent arrangement and it is not the template for our future relationship.

The deal that MPs voted on in January was not strong enough in making that clear – and legally binding changes were needed to set that right. Today we have agreed them.

First, a joint instrument with comparable legal weight to the Withdrawal Agreement will guarantee that the EU cannot act with the intent of applying the backstop indefinitely. If they do, it can be challenged through arbitration and if they are found to be in breach the UK can suspend the backstop. The joint instrument also gives a legal commitment that whatever replaces the backstop does not need to replicate it. And it entrenches in legally-binding form the commitments made in the exchange of letters with Presidents Tusk and Juncker in January.

Second, the UK and the EU have made a joint statement in relation to the Political Declaration. It sets out a number of commitments to enhance and expedite the process of negotiating and bringing into force the future relationship. And it makes a legal commitment that the UK and the EU will begin work immediately to replace the backstop with alternative arrangements by the end of December 2020. There will be a specific negotiating track on alternative arrangements from the very start of the next phase of negotiations. It will consider facilitations and technologies – both those currently ready and emerging. The UK’s position will be informed by the three domestic groups announced last week – for technical experts, MPs, and business and trade unions.

Third, alongside the joint instrument on the Withdrawal Agreement, the United Kingdom Government will make a Unilateral Declaration that if the backstop comes into use and discussions on our future relationship break down so that there is no prospect of subsequent agreement, it is the position of the United Kingdom that there would be nothing to prevent the UK instigating measures that would ultimately dis-apply the backstop. Unilateral Declarations are commonly used by states alongside the ratification of treaties.

The Attorney General will set out in legal analysis the meaning of the joint instrument and unilateral declaration to Parliament.

Tomorrow the House of Commons will debate the improved deal that these legal changes have created.

I will speak in more detail about them when I open that debate.

MPs were clear that legal changes were needed to the backstop. Today we have secured legal changes. Now is the time to come together, to back this improved Brexit deal, and to deliver on the instruction of the British people.

css.php