Orr Litchfield

Solicitors and Business Lawyers

Brexit Withdrawal Agreement 2.0 - No Upgrade!

On 11th March 2019, the UK Government laid before Parliament, under Section 13(1)(a) of the EU (Withdrawal Act) 2018: (i) a statement that political agreement has been reached; (ii) a copy of the negotiated withdrawal agreement; (iii) a copy of the framework for the future relationship; (iv) a joint statement supplementing the Political Declaration setting out the framework for the future relationship; (v) a unilateral declaration; and (vi) an instrument relating to the withdrawal agreement. Each of these documents can be found here - https://www.gov.uk/government/publications/11-march-withdrawal-agreement-and-political-declaration-laid-before-parliament-following-political-agreement

The Attorney General of the UK (Rt Hon Geoffrey Cox QC MP) issued his 3 page Legal Opinion on the Joint Instrument and Unilateral Declaration concerning the Withdrawal Agreement today. Unfortunately, it confirms that there has been no real change to the previous draft of the Withdrawal Agreement and the risks, which many consider it contains for the UK. The “killer blows” are contained in paragraphs 17 and 19 of the Legal Opinion. They read as follows (my emphasis):

1. Paragraph 17: “I now consider that the legally binding provisions of the Joint Instrument and the content of the Unilateral Declaration reduce the risk that the United Kingdom could be indefinitely and involuntarily detained within the Protocol’s provisions at least in so far as that situation had been brought about by the bad faith or want of best endeavours of the EU.”

2. Paragraph 19: “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”.

The full text of the Attorney General’s Legal Opinion can be found here -  https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/785188/190312_-_Legal_Opinion_on_Joint_Instrument_and_Unilateral_Declaration_co..___2_.pdf

Whether you are a “Remainer” or “Brexiteer” or a UK citizen or a citizen of another part of the EU,   with the second so-called “Meaningful Vote” due to be held this evening, it is unfortunate that the EU and UK negotiators could not move beyond political grandstanding and find a way to conclude a deal, which enables both parties to move forward for the overall benefit of their citizens and businesses. Peace, stability and certainty are the keys. Endless negotiating, inequality in agreements and uncertainty are unhelpful. One has to question whether the current structure of the Withdrawal Agreement (with the consequent potentially lengthy trade agreement negotiations and Irish backstop issue) is likely to result in a greater risk to stability and create more uncertainty than a “no deal” Brexit with the resulting pressure on all sides to conclude workable trade and other agreements.

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Whatever stage of the contractual or dispute process you have reached, we can help you to understand the different legal and related commercial issues relating to Brexit, to choose the option that is right for you and to help you develop or minimise risks for your business.

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If you would like more information about the effects of Brexit or would like to discuss its effect on a potential or existing contract or dispute, please contact us by telephone on +44 (0)20 3126 4520 or +45 38 88 16 00 or by email at enquiries@orrlitchfield.com


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