Theresa May's Brexit deal: declarations on the Withdrawal Agreement

Work on finding an alternative arrangement to the backstop can begin as soon as the Withdrawal Agreement has been passed.

The empahsis on speed, which is referenced in other parts of the document, is highlighted by the Attorney General as something that could help the UK to ensure the EU is negotiating in good faith.

The backstop, if it came into force, would see the whole of the UK remain in a customs union with the EU, with Northern Ireland conforming to more EU rules than the rest of the UK. The UK and EU27 have agreed to establish a separate workstream to explore new arrangements for avoiding a hard border in Ireland – with the aim of replacing the most contentious elements of the backstop, or removing the need for it altogether.

This reflects the statement made by Brexit Secretary Stephen Barclay at the beginning of March, but its inclusion in the Joint Statement is interpreted by the Attorney General as "materially new legal obligations".

An alternative arrangement to the backstop could come into force even without a full trade agreement in place. That means that even if the two sides have failed to agree the full detail of a future relationship, it could still avoid the backstop coming into force.

While this is not new, the clarification may offer some assurances about the ability to avoid the backstop in the first place.

If the backstop comes into force, but the EU does not, "in good faith", use its "best endeavours" to negotiate an agreement to replace the backstop, then the UK can make use of the dispute settlement mechanism outlined in the Withdrawal Agreement. What amounts to a breach of good faith is open for interpretation, but the bar is high. Refusing to negotiate at all, or ignoring UK proposals without responding to them, would be a breach of good faith. Merely rejecting the UK's proposals would not be.

This is not a new concession from the EU, but a statement of what was already contained in the Withdrawal Agreement.

If an arbitration panel found in the UK's favour and ruled that the EU was breaching its duty of good faith, then it would also tell the EU how to comply. If, after that ruling, the UK throught that the EU was still breaching good faith and so was in violation of the arbitration panel's ruling, then the UK could request another ruling to that effect from the arbitration panel. If, after that second ruling, the UK still believed that the EU was breaching good faith and so was failing to comply with the second ruling, then the UK would have the right to "suspend" part of the agreement. That means that the UK could, theoretically, suspend the backstop and stop applying its terms. 

This suspension would only apply unless and until the EU changed its position. In addition, any suspension would have to be "proportionate". If the EU thought that the UK's suspension was not proportionate to what the EU had done wrong, then it could request a further ruling to that effect from the arbitration panel. If the arbitration panel agreed with the EU, then the UK would be bound to apply the backstop.

It is unclear what role the European Court of Justice (ECJ) might have in deciding these questions. If the UK and the EU have a dispute before the end of the transition period, for instance, about whether the UK should enter the backstop in the first place, then under Article 131 of the agreement that will be dealt with by the ECJ.

If the dispute happens after the end of the transition period, then the involvement of the ECJ would depend on the substance of the dispute. If the dispute turns on questions of EU law – for instance, whether the UK's proposals for alternative arrangements would be compatible with the law of the Single Market – then the EU would argue that those questions had to be determined by the ECJ.

"the Union and the United Kingdom have confirmed that immediately following the UK's withdrawal, they will take the necessary steps to begin formal negotiations. The Union and the UK have agreed that negotiations on the various strands of the future relationship will then proceed in parallel"

"the Union and the UK will expeditiously:

• identify those areas which are likely to require the greatest consideration... in order that the necessary technical preparations can be made on both sides; and
• draw up a full schedule for the negotiations, taking into account various internal processes including the European Parliament elections and appoint of a new Commission"

The two sides have confirmed they will look to immediately move on to the future relationship negotiations, where the different strands will proceed in parrallel.

The two sides recognise that European Parliament elections in May 2019 and the subsequent appointment of a new Commission will limit the amount of formal negotiation before the autumn. They also commit to beginning technical preparations quickly for the most complex areas of negotiation.

The EU confirms that the UK–EU agreement would not need to be ratified in full by the end of the transition. If it is still being ratified by each member state, the bits of the agreement for which the EU has law-making powers could come into force on a provisional basis.

This is not a new development, but is helpful for the UK Government to have it confirmed in the Joint Statement.

"A specific negotiating track will be established at the outset and as part of the negotiations to lead the analysis and development of these alternative arrangements… [it] will consider the use of all existing and emerging facilitiative arrangements and technologies."

"the negotiating track on alternative arrangements will be able to take account of progress made in the wider negotiations on the future relationship, in particular on goods and customs"

The two sides will have a dedicated workstream in the future relationship negotiations that will look at ways at removing the backstop or the need for it.

This workstream will look at how new technology could solve the border issue. It will also relate to the workstreams on customs and regulations, in case the two sides reach an agreement in the wider relationship that obviates the need for unique arrangement on the island of Ireland.

"if, contrary to the intentions of the parties, it is not possible for them to conclude an agreement which supersedes the Protocol in whole or in part due to a breach of Article 5 of the Withdrawal Agreement (the 'good faith' provisions)… the UK would not consider  [the backstop's] application to be temporary"

"If under these circumstances it proves  not to be possible to negotiate a subsequent agreement [...] the United  Kingdom records its understanding that nothing in the Withdrawal Agreement would prevent it from instigating measures that could ultimately lead to the disapplication of obligations under the Protocol, ... under the proviso that the UK will uphold its obligations under the 1998 Agreement in all its dimensions and under all circumstances and to avoid a hard border on the island of Ireland."

The UK Government says that if the two sides fail to reach an agreement because the EU is acting in bad faith, then as far as the UK was concerned, the backstop would no longer be temporary. In those circumstances, the UK would begin proceedings under the dispute settlement provisions of the agreement as set out above. The UK reiterates that this could ultimately lead to the "disapplication" of the backstop, but the agreement itself refers only to a "suspension" which must be "temporary".

The UK confirms that even if it disapplied parts of the agreement, it would still look to avoid a hard border on the island of Ireland.