One could be forgiven for thinking that the draft agreement on the withdrawal of the UK from the European Union is the product of an uneasy coupling of Article 7 (suspension) and Article 50 (withdrawal) of the Treaty of Lisbon, with the former providing the dominant conceptual framework. In what other way can one explain how the UK is able to remain in the EU between 30 March 2019, which is the date at which the withdrawal agreement is due to take effect (Article 185: p.298) until 31 December 2020 (Article 126: p. 196), fully subject to Union law (Article 127: p. 196) but no longer able to “submit proposals, initiatives or requests to the institutions” (Article 128(3): p. 201) or otherwise to engage in any of those decisive acts which shape the European polity?
The unprecedented situation in which the withdrawal agreement will place the UK could be further protracted if the Protocol on Ireland/Northern Ireland stalls or breaks down (Protocol Article 3: p.308), or if withdrawal is delayed for some other good reason (Article 132: p.207). It would seem that the UK’s decision-making powers are to be entirely reduced to those necessary to ensure the successful and timely implementation of the withdrawal agreement itself. Under Article 164, the UK and the EU will co-chair a joint committee which will oversee the “implementation, application and interpretation” of the withdrawal agreement. The committee will meet at least once a year, and produce an annual report on progress, but can meet more often at the initiative of either party (p. 274-276). The joint committee will be assisted in its work by the establishment of special committees. These committees will keep a close eye on particularly sensitive aspects of the withdrawal process, such as citizens’ rights and the position of Ireland/Northern Ireland (Article 165: p. 277).
Hitherto, it was only in cases where a member state was deemed to have acted, or threatened to act, in breach of the EU’s core values that the member state in question was liable to be punished for the breach by having its decision-making rights curtailed, while remaining subject to the obligations imposed by the Treaties. Unless the mere decision to leave the EU is to be construed as contrary to its core values, it must be assumed from the text of the withdrawal agreement that the prospects of a member state being forced to occupy a reduced form of EU membership extend beyond the strict remits of Article 7 of the Lisbon Treaty.
Further evidence of the fact that the Article 7 suspension framework appears to have seeped into the withdrawal agreement is the attention which it gives to the implementation of measures designed to minimise the impact a member state’s revised status has on the rights and obligations of its citizens. In the context of the UK withdrawal agreement, such measures include the obligation to “disseminate information concerning the rights and obligations of persons... by means of awareness-raising campaigns conducted...through national and local media and other means of communication. (Article 37: p.67). Overall, the outcome of the negotiations for UK citizens and EU citizens resident in the UK is no worse than predicted. I read the combined operation of Articles 10 (p. 19-22), 12 (p. 23), 15 (p.27/8), 22 (p. 42), 24 (p. 44-46) and 25 (p.46) as preserving rights of movement and residence as defined under existing EU laws pertaining to EU citizens and their family members (including employed/self-employed workers’ rights relating to equality and non-discrimination) provided that these rights are triggered before the end of the transition period. Articles 18 and 19 (p. 30-40) make provision for registration processes, which, onerous ‘though they may be, do not, I think, undermine the substantive free movement rights. Countering these largely positive transitional arrangements is the suspicion that Article 20 (p. 40/41) may provide fewer safeguards than presently exist against removal on grounds of conduct. More generally the transitional arrangements clearly privilege the economically active/independent individual(e.g. Article 23: p. 42/3).
In a situation as unique as is Brexit, and with little but the bare text of Article 50 as guide, it is, perhaps, not surprising that the EU negotiating teams have looked to other elements of its institutional framework for the means through which to facilitate the UK’s “orderly withdrawal” (p.5) from the EU. However, is it reasonable that they should look toward a provision which is intended to bring recalcitrant members into line – the use of which was contemplated most recently against Hungary and Poland – effectively using the Article 50 process to force a de facto suspension on the UK?
There are at least three features of the Brexit situation which justify what I think is the imaginative use by the EU negotiators of the EU’s legal framework for supervising and managing its member states. The first is that, as has repeatedly been made clear, it is the EU negotiators’ desire for the UK to remain within the EU. The second is that it is highly likely-given the way that Brexit has so divided the UK citizenry – that, in the not too distant future, the UK will wish either to bring an end to its exit plan or to enter negotiations with a view to re-joining the EU. The third, and most immediately significant, is that the UK government, through its management of Brexit, has brought the European Union into disrepute. Its less than competent management of the process and the all too frequent displays of ill-discipline among many of its ministers who occupy prominent positions have, arguably, been extremely injurious to the EU.
However genuine the desire of the EU to keep the UK within its fold, it is quite inconceivable that it could accept a decision by the UK to simply revoke Article 50 and proceed as if the past two years of bitter conflict had not happened. It is right and proper for the UK to be encouraged to take time out to rebuild its relations with its citizens, and with other EU member states. The EU which the UK will come back to is one which, despite the serious challenge to its stability which Brexit has posed, has not yielded to the temptation to alter its foundational principles. Instead, as the text of the withdrawal agreement reveals, the EU negotiating team did what, in an earlier blog I expressed the hope it would do (17.7.2018): it has found within its legal mechanisms a way to bring the UK government under restraint.
This commentary is based on a reading of pages 1-330 of European Commission, 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, 14 November 2018.