Brexit – the draft EU/UK Withdrawal Agreement and the uncertainties that lie ahead; by Christopher Muttukumaru

The negotiations on a draft Withdrawal Agreement.

The EU and the UK have reached agreement on many issues which arise from the withdrawal of the UK from the EU. The draft Withdrawal Agreement ("draft WA") was published on 19 March and adopted by the EU27 (TF 50 (2018)35).

What is still left to negotiate?  Most notably, negotiations have proved very difficult in respect of the border between the Republic of Ireland and Northern Ireland. 
Equally significantly, the future enforcement roles of the Court of Justice of the EU ("CJEU") and of the EU institutions could also be a stumbling block. Provision is made in the draft WA for a transition period which is intended to run from 29 March 2019 until 31 December 2020. While enforcement issues are largely settled for the duration of the transition period, negotiation continues in relation to the role of the CJEU and of the EU institutions after the transition period in respect of rights and obligations under the draft WA (other than part two). 

Once the draft WA is finalised, the rights and obligations which thus arise will have to be given effect in UK national law and in the national laws of the EU27. Article 4a of the draft WA imposes an express obligation on all parties to "ensure fulfilment of the obligations arising from this Agreement". 

How will the UK give effect to its obligations in the draft WA?

In the UK Parliament, the European Union (Withdrawal) Bill ("EUWB") has been introduced in order to give effect to UK withdrawal on exit day. The European Communities Act 1972, which gave effect to EC law in the UK, will be repealed. The EU acquis will be -mostly- retained in UK national law.  But there is little specific clarity about what parts of EU Law will be amended or not retained in national law as part of withdrawal and subsequently. 
Exit day means "29 March 2019 at 11.00pm". The EUWB does not itself anticipate that there will be a transition period. So, what will the UK do in order to implement its obligations under the draft WA?
Clause 9 of the EUWB will confer secondary powers on UK Ministers to make regulations for the purposes of implementing the Withdrawal Agreement.  But those powers are “subject to the prior enactment of a statute by Parliament approving the final terms of withdrawal of the United Kingdom from the European Union” (emphasis added).
In fact, there will be a twostep process in the UK Parliament. The future bill which is referred to in clause 9 is the Withdrawal Agreement and Implementation Bill ("WAIB"). But WAIB is unlikely to be introduced in the UK Parliament until after the UK Parliament votes on the final draft of the WA with the EU, probably in the autumn of 2018.
It is not certain what the UK Parliament will decide to do when it is faced with the draft WA. For example, at present in the UK, there is deep political disagreement on the question whether the UK should (contrary to one of the Government’s so called “red lines”) negotiate membership of a customs union with the EU. If, therefore, no customs union is foreshadowed in the draft WA, will it be approved by Parliament?

While negotiations continue, no national implementing legislative provision can yet be made in respect of the draft WA. Otherwise, there would be a risk to legal certainty in implementation. The inevitable consequence is that the current draft of the EUWB is not compatible with some of the obligations in the draft WA.
By way of illustration, Article 122 (1), already agreed by the UK, says that “Union law shall be applicable to and in the United Kingdom during the transition period”. That includes, by virtue of Article 122(3) and 126, the continued jurisdiction of the CJEU in a transition period until 31 December 2020. Yet on exit day (29 March 2019), the EUWB will repeal the European Communities Act 1972. The EUWB will also sweep away the principle of supremacy of EU law; the binding force of new principles laid down by, or decisions made by, the CJEU after exit day; and there can no longer be references from national courts to the CJEU to seek a preliminary ruling.

Unfortunately, the policy underlying the proposed WAIB has not been published.  If, as must be assumed, the UK Parliament had just legislated for an exit day on 29 March, it would be politically very difficult to use the WAIB to suspend exit day or to extend the validity of the European Communities Act 1972. So what next? 
If the draft WA is not agreed and approved until the autumn of 2018, time will quickly run out for passing the WAIB. Indeed, it is not clear whether the EU27 can themselves be ready for exit day if there are national legislative procedures which will need to be followed to give effect to the draft WA.
The cliff edge is getting nearer.

Christopher Muttukumaru

CB, DL, barrister and a member of FIDE’s Academic Council. Muttukumaru has been a member of Monckton Chambers in Gray's Inn in London from 2014 to 2018. Christopher was previously General Counsel to the UK Department for Transport where he was the Chief Legal Adviser to eight successive Secretaries of State for Transport between 2001 and 2013. As General Counsel he was also a member of the DfT Executive Board. Earlier in his career, he was principal legal adviser on EC Law issues in the Attorney-General’s office. He has been involved in advising Ministers on Public Law issues, as well as European and International Law issues, over many years. For example, in the Attorney’s Office, he was involved in the Factortame litigation; in DfT he handled the UK Government’s application for state aid approval for the funding of Network Rail; and, as Deputy Legal Adviser at the Ministry of Defence he was a senior member of the UK diplomatic delegation which negotiated the establishment of the International Criminal Court at the United Nations. Christopher was educated at Oxford University and is a Bencher at Gray's Inn (the Governing Council of the Inn). He was vice chair of the Advisory Board of the Law Faculty of City University (part of the University of London) for many years. Christopher has written extensively, and spoken in the UK and EU, about matters such as international legal cooperation and Brexit legal issues. Member of Fide´s Academic Council (based on London).