Professor Simon Usherwood on why, until there is a full legal text on a Withdrawal Agreement, there is not going to be a deal.
First published in October 2019.
Briefly, to agree an Article 50 deal, you need:
- A qualified majority of EU27 states;
- A simple majority of MEPs at the European Parliament;
- The approval of the UK, currently meaning:
- A Meaningful Vote;
- The passage of the Withdrawal Agreement Bill;
- The completion of the Constitutional Reform and Governance (CRAG) Act 2010 requirements.
When all those things have happened, then you have the necessary legal conditions for a Withdrawal Agreement to come into effect.
As you will note, that is a lot of work, so maybe we can get by on a more indicative basis? Not really.
Without a full legal text, the EU States and the European Parliament are very unlikely to give general clearance. The EU States will want to run full legal checks. The European Parliament only votes formally once, so it won’t use that to pass vaguenesses.
Likewise, the House of Commons (in its current formation) will want to see a full text to check that the governement isn’t selling anyone short.
It is theoretically possible to run a Meaningful Vote without a full text, but without a Withdrawal Agreement Bill and the Constitutional Reform and Governance Act 2010 requirements that has no legal meaning.
All this matters because the Withdrawal Agreement needs to be effective in both UK and EU legal terms, otherwise it doesn’t work.
This is also why if the UK makes the ratification subject to a referendum, the EU will say the UK must stay in until that is done.
So, while we’re seeing plenty of negotiation, until there is a full legal text on a Withdrawal Agreement, there is not going to be an agreement on a Withdrawal Agreement.🔷
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