Is this the beginning or the end for Brexit?
March 12, 2019

What a few weeks it has been since our last post.  There has been a lot of activity and noise and we wanted to hold off commenting until there were significant developments.

As previously announced, the UK-EU Withdrawal Agreement and related Political Declaration are to be voted on again by the UK House of Commons at 7 pm tonight.  Late last night, the UK Prime Minister travelled to Brussels and agreed further clarifications with the EU on the UK-EU Withdrawal Agreement.  Three new documents have been agreed and are now subject to tonight’s House of Commons vote:

  • a 4-page legally binding joint instrument which “reduces the risk the UK could be deliberately held in the Northern Ireland backstop indefinitely and commits the UK and the EU to work to replace the backstop with alternative arrangements by December 2020”  (click here).
  • a 2-page supplement to the Political Declaration setting out “commitments by the UK and the EU to expedite the negotiation and bringing into force of their future relationship” (click here).
  • a 1-page unilateral declaration by the UK setting out “the sovereign action the UK would take to provide assurance that the backstop would only be applied temporarily” (click here).

What became clear very quickly is that the prospects of these concessions being enough to sway a large number of MPs would turn on the advice of the UK Attorney General, Geoffrey Cox MP QC, which was published today (click here).

While the Attorney General sets out some useful clarifications that have been achieved, his summary paragraph (at paragraph 19) is getting all of the political and media attention:

However, the legal risk remains unchanged that if through no such demonstrable failure of either party, but simply because of intractable differences, that situation does arise, the United Kingdom would have, at least while the fundamental circumstances remained the same, no internationally lawful means of exiting the Protocol’s arrangements, save by agreement.”(emphasis added)

Given this, it is almost inconceivable that this agreement will be approved tonight by the House of Commons.  If the agreement is voted down again, there is to be a further motion tomorrow on whether ‘no-deal’ should be taken off the table and a further motion on Thursday to potentially extend the Article 50 deadline (currently set as 29 March).  We do expect some more surprises over the next 48-60 hours and we will be watching developments closely.

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