20 December 2018

Theresa May has hinted that MPs could vote against the Irish backstop coming into force in 2020. But that could render the UK in breach of international law, argues Raphael Hogarth.

In her first attempt at securing Parliament’s consent to her Brexit deal, the Prime Minister promised to beef up Parliament’s role in the remainder of the Brexit process, in the hope that this would buy its support for the deal.

She said that she wanted to enable the House of Commons to “place its own obligations on the Government...to ensure that the backstop cannot be in place indefinitely”. It was not exactly clear what this meant, but the implication was that MPs could reject the backstop in 2020, one way or another. The Prime Minister’s plan appeared as an amendment to the meaningful vote motion, tabled by Sir Hugo Swire, and Mrs May reiterated her commitment to the policy on Monday, following the European Council summit.

The PM’s plan for parliamentary oversight of the backstop is ambiguous

There are two ways of interpreting Number 10’s plan. The first is that Parliament could be given a choice between extending the transition period (which Theresa May calls the “implementation period”) and bringing the backstop into force.

But this would not give the House the power to ensure the backstop cannot be in place indefinitely, as the Prime Minister has promised. An extension to the transition period must be agreed by the EU27. If the EU said no, Parliament’s vote would be meaningless, and the UK would default to the backstop.

Even if the EU said yes, the transition period could only be extended until December 2022. After that, the backstop is the only option “unless and until” it is superseded by the future relationship.  

The second interpretation of the Number 10 plan is that Parliament could vote for no transition and no backstop. Parliament would be given the opportunity to opt out of the deal, even once it is signed, ratified and in force. That presents even bigger problems.

The Government should not be setting the UK up to violate its international obligations

Voting for no deal after the UK had already signed and ratified the PM’s deal would be voting for the UK to breach its legal obligations. Technically Parliament could do that, because Parliament is sovereign.

But the Government should not explicitly put the option of abrogation into legislation. To do so would undermine the UK’s long-held commitment to the rule of international law and undermine the UK’s credibility as a negotiating partner. As the UK sets about negotiating new agreements with partners – including the EU – those partners need to believe that the Government’s commitments are worth the paper they are written on.

Setting up the UK for abrogation would also increase the likelihood of a political, diplomatic and administrative crisis in 2020. If MPs are given the opportunity to abrogate, they might take it – pushing the UK off another no deal cliff edge.

Finally, putting the option to abrogate into legislation could call into question the safe conclusion and ratification of the Withdrawal Agreement. It might make the EU might wonder whether the backstop is an ‘all-weather’ insurance policy after all.

It may be tempting for the Government to buy off opponents of the deal in Parliament by hinting that, if they do not like the Withdrawal Agreement, they can vote to abrogate it later. But breaking international law is a good way to lose friends and alienate partners, and it is a recipe for another crisis.

Comments

On the subject of international law: It can be argued that the EU27 side is in breach of international law by not negotiating in good faith and in an amicable manner as required by the UN Charter, a Treaty that takes precedence over all others. All EU27 countries are signatories, the EU is corporately committed to respect it via the Lisbon Treaties.

UN Resolution 2625 is accepted as a valid lens for interpreting the UN Charter in international law. It holds “No State may use or encourage the use of economic, political or other types or measures to coerce another State in order to obtain from it the subordination of the exercise of its sovereign rights or to secure from it advantages of any kind.”

Insistence on the NI backstop would be also against the 1995 Barcelona Declaration, which upholds national territoriality as well as sovereignty. There are also questions over the EU respecting its commitments under the WTO Agreement with respect to trade barriers and trade stability, which would be at risk if the UK declined a submissive withdrawal deal.

For more information, see the article on the New Alliance website: "Annex – Towards A Workable Transition Agreement That Respects Sovereignty"

The Swire Amendment to the legally binding Brexit Agreement reminds me strongly of the hopeless Dutch attempt to alter the 1946 Linggadjati Agreement (see English wikipedia: https://en.wikipedia.org/wiki/Linggadjati_Agreement ) we Dutch entered into as freely as May did with her Brexit deal.
A founder member of the United Nations brought to its knees within years of the start of the UN. A Dutch Suez-like fiasco.

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