The Withdrawal Agreement: An Exchange of Letters

Jane Lambert

By a letter dated 14 Jan 2019, the Prime Minister asked the Presidents of the European Council and the Commission for certain assurances on the intended operation of the Draft Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community of 14 Nov 2018.  Those Presidents, Donald Tusk and Jean-Clause Juncker, have replied to the Prime Ministers by a letter of even date.

In her letter, Prime Minister opined that

"The strong future partnership between the United Kingdom and the European Union described in our joint Political Declaration of 25 November 2018 is in the interests of all our citizens, and an important signal to the world of our intent to continue to work together for our shared prosperity and security, and also to promote and defend our common interests and values."

She acknowledged that will not and cannot be the same relationship as the UK enjoyed as a member state but it is the best that can be achieved in the circumstances.  She warned that the Withdrawal Agreement was at risk "because of concerns in the UK Parliament about how we are delivering on our commitments in relation to Northern Ireland's border with Ireland."

To alleviate those concerns the Prime Minister invited Messers Tusk and Juncker to:

• agree that exploratory talks focused on delivering a future relationship in which a backstop will not be needed can begin as soon as the Withdrawal Agreement is signed, which could, in turn, be immediately after the UK Parliament has voted in favour of the deal; 
• recognize that these talks should cover all strands of the relationship in parallel, giving particular urgency to discussion of ideas, including the use of all available facilitative arrangements and technologies, for replacing the backstop with permanent arrangements that ensure its underlying objectives continue to be met. These ideas need not replicate the provisions of the Protocol in any respect, and the UK is ready to work ambitiously and creatively with the EU on this. I would welcome your mutual commitment in this regard; 
• confirm the legal connection between the Withdrawal Agreement and the Political Declaration, and making that link clear in the way we present the documents; and 
• agree that if we are in a situation where we have negotiated a new agreement, but the backstop risks coming into force because ratification is not complete, we in the UK will do what is necessary to apply the new agreement provisionally pending ratification, rather than default to the backstop, and we expect the Commission to make the appropriate recommendations in relation to the EU too. Such provisional application is, of course, normal in trade agreements.

In their reply, the two Presidents made clear that they were "not in a position to agree to anything that changes or is inconsistent with the Withdrawal Agreement". However, in order to facilitate the next steps of the process, they were happy to confirm, on behalf of the two EU Institutions they represent, their understanding of the following points within their respective fields of responsibility.

For the Council, Mr Tusk affirmed the remaining member states' intention to expedite negotiations for an agreement that will obviate the need for a backstop and agreed that the Withdrawal Agreement and political declaration on the EU's future relationship with the EU are part of the same package. On behalf of the Commission, Mr Juncker offered to prepare for the future relationship negotiations which can begin just as soon as the UK leaves the EU.

The initial response to those letters from the Brexiteer MPs in the Conservative and Democratic Unionist Parties has been less than cordial but [erhaps that is only to be expected.   Anyone wishing to discuss this article or Brexit generally should call me on 020 7404 5252 or send me a message through my contact form.