26 February 2019

Open Europe has published a new briefing, ‘Legal changes to the Brexit deal? Four examples when the EU revisited deals they had already signed off.’ The briefing includes a foreword by Nick Herbert, the Conservative MP for Arundel & South Down and formerly the Chairman of Conservatives IN.

After the Withdrawal Agreement was voted down in Parliament on January 15 by 230 votes, the UK Government has focused on seeking changes to the Protocol on Northern Ireland and Ireland, known as the ‘backstop.’ It remains the case that, unless and until the UK ratifies the Withdrawal Agreement, or revokes Article 50, the legal default remains that the UK will leave the EU without a deal. The European Council President has said that the EU’s “most important task is to prevent a No Deal Brexit”. How can that be done?

Parliament has sent some mixed signals recently about what it would require to ratify an agreement with the EU, but it has never shown a majority for revoking Article 50 directly or via a referendum. However, the decisive majority in favour of the Brady amendment showed that with further clarifications on the operation of the backstop, a potential majority exists for a version of the negotiated Withdrawal Agreement.

This paper outlines four historical precedents when the EU agreed additional legally-binding protocols or instruments, in order to help secure ratification of treaties or agreements which had already been signed off by its leaders. None offer an exact parallel for the UK’s current situation, but they show how the EU has been able to act flexibly in the past.

One such scenario involved Ireland itself, which required changes to the Lisbon Treaty to allow it to complete domestic ratification. Although the protocol which the EU then agreed did not directly contradict that treaty, it did in fact rule out certain options which the treaty had created as the default (namely a reduction in the number of EU commissioners). It changed the legal position.

Another important example comes in the case of Denmark’s ratification of the Maastricht Treaty. At that time, some Danish parliamentarians and critics sought commitments in international law not just because of their concern about what the EU might do in future, but as a protection from their own government’s ability to pursue further integration measures without popular consent. That has parallels to the current impasse where some within parliament, such as the DUP, want to see assurances on how the UK government will operate the backstop in the future, particularly in relation to East-West checks. Some of these assurances have already been promised as a matter of policy or domestic law by Her Majesty’s Government. However, the DUP seek commitments in international law – which the EU can provide by offering legal recognition to UK commitments.

There are also two more recent examples of EU flexibility which are explored in this paper. These are the Joint Interpretative Instrument to the EU-Canada trade deal (agreed to reassure the concerns expressed by the Wallonian Parliament), and the Dutch addendum to the EU-Ukraine Association Agreement.

Some have argued that while the EU is prepared to make concessions for existing member states in order to conclude an internal or external treaty, it will not – or should not – make such a concession for a departing member state. But this is a political argument rather than a substantive one, and risks making a virtue of inflexibility. It also remains the case that the UK is currently an EU member state, albeit one that has decided to leave. Finding a solution that is acceptable to both parties is key to building a sustainable long-term relationship between the bloc and its former member. The stakes are high, and the case for a compromise is strong.