The path to a Brexit which gives us back control is to give a robust negotiator a solid majority

The path to a Brexit which gives us back control is to give a robust negotiator a solid majority

Article 184 of the Withdrawal Agreement has been the subject of some debate on BrexitCentral between myself and Ben Habib MEP, whose latest thoughts on the subject (following a meeting with myself) appeared a few days ago here.

For readers not familiar with it, Article 184 of the Withdrawal Agreement is an important provision and I will set it out in full:

ARTICLE 184: Negotiations on the future relationship
The Union and the United Kingdom shall use their best endeavours, in good faith and in full respect of their respective legal orders, to take the necessary steps to negotiate expeditiously the agreements governing their future relationship referred to in the political declaration of [date] and to conduct the relevant procedures for the ratification or conclusion of those agreements, with a view to ensuring that those agreements apply, to the extent possible, as from the end of the transition period.

This Article itself is unchanged between the Theresa May and Boris Johnson versions of the Withdrawal Agreement, but the Political Declaration it refers to has been changed in a number of significant respects. (For a summary of these changes, see here).

The question raised by Ben Habib’s article in effect is “will the combined effect of Art.184 and the Political Declaration as it now stands legally trap the UK into a position where some of the important promises in the Conservative manifesto cannot be delivered?”

Because the Political Declaration is linked to the obligation to “use best endeavours in good faith”, its contents cannot be dismissed as just political hot air which can be ignored. But nor do those contents have the same status as binding treaty text. The Political Declaration effectively sets out a series of aspirations as to what should go into the future relationship agreements between the UK and the EU. These aspirations could be implemented in a variety of different ways, and/or may require the negotiation of connected matters which are not set out in the Political Declaration. All such supplementary matters and details need to be negotiated between the parties before the headings in the Political Declaration can be converted into an actual agreement.

The nature of the legal obligation in Art.184 – in effect an “agreement to use best endeavours to agree” – makes the obligation extremely difficult for any judicial or arbitral body to enforce. The fundamental reason is that if the parties fail to reach agreement, it is normally impossible for a tribunal to decide which party is at fault. Each party is entitled robustly to defend its own interests in the negotiations, and if the upshot is that the parties cannot reach an agreement then this is not something which a court can correct.

This is the main reason why the Attorney-General correctly advised that Theresa May’s Withdrawal Agreement was a trap from which the UK would not be able to extricate itself without the say-so of the EU – because Art.184 “cannot provide a legal means of compelling the EU to conclude such an agreement… All [the EU] would have to do to show good faith would be to consider the UK’s proposals, even if they ultimately rejected them. This could go on repeatedly without such conduct giving rise to bad faith or failure to use best endeavours, which would require clear and convincing evidence of improper motive and wilful intransigence.”

The problem with Theresa May’s version of the Withdrawal Agreement was that the EU could effectively enforce its interpretation of the Political Declaration on the UK by non-legal means. This is because the UK would be trapped like a bluebottle indefinitely inside the disastrous backstop Protocol customs union with no say and no vote, unless and until the UK were to agree to a future relationship agreement on the terms dictated by the EU.

The key point to understand is that the changes secured by Boris Johnson have completely altered this negotiating dynamic. The removal of the former backstop Protocol means that the UK can afford to be robust in negotiations and refuse to agree terms which the EU seeks to impose.

Ben Habib is right that the EU will try to play for time and try to push the UK into a transition period extension. He is also right to be cautious about the extent of the European Court of Justice’s jurisdiction under the Withdrawal Agreement. This is the unwanted toxic residue of Theresa May’s disastrous negotiations. But there is a danger in being over-fearful, if over-fearfulness results in the rejection of what is now the only politically available pathway for the UK out of the EU to a Brexit where we regain control of our laws, money, borders and international trade policy.

The Withdrawal Agreement does not confer on the European Court of Justice any power to order the UK to extend the transition period beyond 2020. That is a sovereign matter for the UK alone to agree to.

Nor can any tribunal – even if it is the European Court of Justice, and even if, as we prudently assume, it were to be biased against us – overcome the fundamental nature of an obligation to use best endeavours to agree: that it leaves the UK fully entitled to protect its own interests in the negotiations with the EU, and in doing so to refuse to accept the slant which no doubt the EU negotiators will try to put on some of the paragraphs of the Political Declaration.

The key thing now is to do all we can to ensure that the future negotiations with the EU are conducted by a government which both has the determination to conduct those negotiations robustly, and also has a solid majority in the House of Commons which prevents its negotiating position being undermined by a fifth column within Parliament. Where we stand today, I believe the only realistic political path to that scenario is if the Conservatives win this election with a solid overall majority.