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John Cotter

March 6th, 2020

Did Article 50’s design partially incentivise bad faith dealing?

4 comments | 13 shares

Estimated reading time: 10 minutes

John Cotter

March 6th, 2020

Did Article 50’s design partially incentivise bad faith dealing?

4 comments | 13 shares

Estimated reading time: 10 minutes

The original two-year deadline in the Article 50 process, and the fact that it limited the scope of any agreement, were designed to give the EU a negotiating advantage. But did they ultimately enable Boris Johnson to give assurances about Northern Ireland and the future trading relationship in bad faith, so as to get a ‘deal done’? John Cotter (Keele University) looks at the case.

In Case C-621/18 Wightman (para. 56), the EU’s Court of Justice confirmed that one of the two objectives of Article 50 TEU is “establishing a procedure to enable … a withdrawal [from the EU] to take place in an orderly fashion.” At least two elements in the Article 50 process further this objective. First, Article 50(3) specified the default two-year period within which to conclude and ratify a withdrawal agreement. Secondly, Article 50(2) limited the material scope of any withdrawal agreement, so that it would be concerned only with the arrangements for the withdrawal of the Member State, and not the details of the future relationship between the EU and that State. A withdrawal agreement was merely to “tak[e] account of the framework for [the withdrawing State’s] future relationship with the Union” (my emphases). That these aspects of the process were also there to hand the EU leverage over the departing state would also seem obvious. Both the pressures of a ticking clock and the necessity of first pinning down the withdrawal arrangements, before moving on to the detail of a future relationship, handed a negotiating advantage to the politically and economically more powerful entity in the event of attrition.

othello iago
Bad faith… Iago and Othello, Colombo Theater, Sri Lanka, 2010. Photo: Shehal Joseph via a CC BY 2.0 licence

It may be, however, that these aspects of the process proved counterproductive in the case of Brexit. The first aspect, the looming deadline, served to suspend the threat of a disorderly withdrawal – and the attendant economic consequences and risks to the Irish peace process – over the heads of the negotiating parties as time progressed. The time pressure to conclude an agreement hastily was further increased by the genuine fear held by Leave politicians and voters on the UK side, which played a significant role in catapulting Boris Johnson into Number 10: that Brexit might in the end be frustrated. This fear, ironically, became much more realistic after the Wightman judgment, which confirmed not only the reversible nature of the Article 50 process, but the unilateral nature of any such reverse. Johnson was, therefore, a man in a hurry – per the successful election slogan – to ‘Get Brexit Done’. It appeared that he would not countenance further extension requests unless his hand was forced. The temptation on both sides to reach agreement – however imperfect – was, therefore, almost irresistible.

I suggest (hesitantly) that this compulsion to reach agreement may have had a number of problematic results, though you will have to indulge me in some points of pure speculation. It is conceivable that Johnson’s government, placed under external and internal political pressure, concluded the Withdrawal Agreement (including the Northern Ireland Protocol), and signed off on the Political Declaration on the future relationship, merely as a means to complete the irreversible part of the Brexit process, the withdrawal. With the withdrawal stage completed, the process would move to the international plane, where Johnson and his government may have posited that enforcement mechanisms would be weaker and the UK would enjoy more negotiating leverage. Agree in haste, ignore the obligations at leisure, in other words. Furthermore, a view may have been taken that any aspects of the Political Declaration which did not sit well with Brexiteers – such as the recognition of the need for a level playing field in the context of an economic partnership – were not legally binding and, therefore, could be jettisoned or significantly reshaped in negotiations on the future relationship after the exit date.

Recent statements by Johnson and Brandon Lewis (the newly appointed Secretary of State for Northern Ireland) lend some credence to the assertion that the UK is planning to, or is at least prepared to, breach its legal obligations under the Withdrawal Agreement. Both Johnson and Lewis have asserted that there would be no checks on goods crossing the Irish Sea, something that would clearly contravene the Northern Ireland Protocol. Furthermore, there have been indications that the UK intends not to maintain the positions it agreed with the EU in the Political Declaration or at least, on a very generous understanding of its approach, interprets those positions very differently to the EU. The UK government’s approach as set out in its negotiating document of 27 February 2020, states (at para. 6) that the UK “will not agree to any obligations for our laws to be aligned with the EU’s”. While these statements may be the grandstanding one might expect at the opening stage of negotiations, they may equally be a straightforward statements of intent.

The possibility that the UK could agree to withdrawal arrangements with the intention of later undermining them could not have been unknown to the EU. However, the limitations placed on the material scope of a withdrawal agreement by Article 50(2), as described above, restricted the extent to which it could protect itself from such an approach by the UK, since the Withdrawal Agreement could not create legally binding, detailed obligations vis-à-vis future economic relations between the parties. Article 184 of the Withdrawal Agreement does impose an obligation on both the EU and the UK to “use their best endeavours, [and] in good faith … to take the necessary steps to negotiate expeditiously the agreements governing their future relationship referred to in the Political Declaration.” However, even if an alleged failure to fulfil this obligation were to be litigated, it would be highly difficult to prove a failure to use best endeavours or act in good faith.

If the UK is set on breaching legally binding obligations in the Withdrawal Agreement (including the Northern Ireland Protocol), there are of course remedies that can be pursued by the EU. These remedies have been recently and expertly set out by Steve Peers in his post How do you solve a problem like Suella? The legal aspects of breach and termination of the withdrawal agreement. However, legal remedies, especially international ones, may be of limited use if the UK government is determined not to abide by international dispute resolution mechanisms. The EU might have reasonably assumed that restricting access to its internal market might have been an economic stick in such circumstances, but this course of action might, as Professor Ronan McCrea has pointed out in an article in The Irish Times, prove problematic where the UK government is actually determined to restrict its own access. Moreover, it cannot be assumed that Johnson’s government is a rational economic actor: the mere threat of economic and political consequences for non-compliance with international legal obligations or reneging on a previously agreed negotiating framework will be ineffective if those consequences must first be experienced to be understood.

I am not suggesting that there is a magic formula of words that could have been utilised in Article 50 so as to avoid the possibility of a withdrawing state going rogue. I also do not wish to be unfairly critical of those who drafted the provision and had to do so whilst gaming an abstract and almost inconceivable possibility of a withdrawal, rather than a concrete case. There are also very good reasons for the two-year time limit and the limiting of the scope of the withdrawal arrangements to be agreed prior to exit; I certainly cannot offer any unproblematic alternatives. It may well still be that the benefits of these aspects of the process outweigh the disbenefits. That said, the time pressure and the delaying of negotiations on a future relationship until after exit – when added to the UK’s febrile political climate in late 2019, negotiating fatigue, and a desire on both sides to avoid a no-deal Brexit at all costs – may have (partially) incentivised Johnson’s government to strike an agreement, potentially with the intention of, or indifference to, later reneging on it. That is, of course, assuming that there was a plan, let alone a nefarious one.

This post represents the views of the author and not those of the Brexit blog, nor LSE.

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About the author

John Cotter

John Cotter is a lecturer in law at the School of Law, Keele University.

Posted In: Economics of Brexit | Exit negotiations | Featured | Free trade agreements | Northern Ireland | UK and European law

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