Brexit Weekly: 5 Things

When law meets politics

On Wednesday, the government published the Attorney General’s legal advice to Cabinet ministers on the Protocol to the Withdrawal Agreement on Ireland and Northern Ireland (NI) and made this available to Parliament through a Written Ministerial Statement from Attorney General Geoffrey Cox. The legal advice was provided to Cabinet on 14th November on the legal effect of the Withdrawal Agreement.

The Protocol, which will come into force on the conclusion of the transition period – currently scheduled to end on 31st December 2020 – but will apply while negotiations are continuing, is meant to avoid a hard border and protect the Good Friday Agreement. As a result of this, NI will remain in the EU’s Single Market for Goods and the EU’s Customs regime, which means that goods originating from NI will continue to enter the EU freely, without any fiscal and regulatory checks.

According to the Attorney General’s six-page document, in international law the proposed backstop plan would ‘endure indefinitely until a superseding agreement took its place’, even if trade talks eventually break down. The publication of the legal advice did not take long to fuel concerns among the hard Brexit Conservatives and the NI’s Democratic Unionist Party (DUP), which the government relies on for a majority, with Nigel Dodds describing the advice as ‘devastating’ on Twitter.

In the troubled waters of Parliament

Geoffrey Cox’s legal advice was published following the adoption – by 311 votes to 293 – of Parliament’s motion on Tuesday finding Ministers in contempt for their failure to disclose the final advice on the Brexit deal.

The contempt motion came after the Attorney General published a summary of the advice and took questions from MPs on Monday, arguing that it would not be ‘in the national interest’ to publish the advice in full. Back in November, MPs already voted in favour of a motion calling on the government to publish Mr Cox’s legal advice. At the time, the motion took the form of a ‘humble address’ which is considered binding in terms of Parliamentary procedure. This prompted Labour MP Keir Starmer to accuse ministers of ‘wilfully refusing to comply’ with a binding order, putting them in contempt of Parliament.

While the crunch debate on Theresa May’s Brexit deal is still currently underway in the House of Commons ahead of next Tuesday’s vote, the passing of this historic motion, which was backed by six opposition parties, including the DUP, further undermines Theresa May’s parliamentary authority and raises questions over whether she will be able to secure a majority.

Motion for action

On Tuesday, Tory MP Dominic Grieve inflicted yet another crushing defeat on the government after MPs backed a motion to change the parliamentary process in the event Theresa May’s Brexit deal is voted down next Tuesday.

If that were to happen, the government would be forced, under the terms of the EU Withdrawal Act, to return to the House of Commons within 21 days and ‘make a statement setting out how Her Majesty’s government proposes to proceed’. But Dominic Grieve’s motion now means that MPs will be able to table amendments to any new Brexit plan, giving Parliament a much greater say over what happens next in case of rejection of the deal.

This should allow MPs – in particular backbench MPs – to express support for alternative solutions, including the idea of a Norway-style deal, and to prevent the government from rushing towards a no-deal Brexit.

Unilateral retreat

In an opinion delivered on Tuesday, European Court of Justice’s Advocate General Campos Sánchez-Bordona expressed the view that Article 50 of the Treaty on European Union can be revoked unilaterally by the UK, providing valid reasons for anti-Brexit campaigners to remain hopeful that Brexit could still be reversed.

According to the Opinion, that possibility of unilateral revocation continues to exist until such time as the Withdrawal Agreement is formally concluded, provided that the revocation has been decided upon in accordance with the departing Member State’s constitutional requirements, is formally notified to the European Council and does not involve an abusive practice.

While the Advocate General’s Opinions are, by nature, not binding on the European Court of Justice, it is expected that the Luxembourg judges will uphold Mr Campos Sanchez-Bordona’s view in a final ruling to be given at a later date.

Pending the judgement of the European Court of Justice, some within the UK government believe that this Opinion might strengthen Theresa May’s position, with hard Brexiteers now being under even greater pressure not to sabotage the Prime Minister’s deal on 11th December so as to avoid – at all costs – the prospect of the whole Brexit process being ultimately cancelled.

‘They called them mellow yellow’?

In France, the ‘yellow vests’ movement, or the gilets jaunes, named after the fluorescent safety jackets car drivers are required to keep in their vehicles, has been on everyone’s lips for the past three weeks.

The movement emerged following government’s plans to raise taxes on petrol and diesel from January, partly to curb rising carbon emissions, and has since then morphed into a wider revolt against basic living costs, high taxes, stagnating wages and high levels of unemployment in rural areas. A total of 136 000 demonstrators were recorded across the country last Saturday, with violent protests, destruction of property, roadblocks and riots being reported in the French capital.

This led President Emmanuel Macron to draw a parallel with Brexit, suggesting that – just like the French protests – Brexit was a response to the economic divides of the UK. Mr Macron added the following: ‘These British citizens simply said ‘the world you are offering us is no longer for us, we can’t figure it out. We work hard but don’t see any prospects, we can’t build projects for our children, we live less well: it’s for the City but not for us any more.’

Meanwhile, the movement does not seem to lose momentum as yellow vest representatives called for new demonstrations on Saturday, despite the government’s commitment to suspend the planned fuel tax increases for six months.