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The logic of the Attorney General
16 December 2018
This note focuses on a narrow front in the Brexit wars, the Attorney General’s (AG’s) advice on the Ireland/Northern Ireland Protocol to the Withdrawal Agreement and the implications of that advice for a different issue, the UK’s status as a party to the European Economic Area Agreement (EEAA) immediately following Brexit. Though narrow, the front is nevertheless one of enormous significance for Brexit policy. Mr Cox’s letter to the Prime Minister of 13 November 2018, headed “Legal effect of the Ireland/Northern Ireland Protocol”, should, when duly considered, be a game changer.
The question of interest
Brexit has created circumstances that were not anticipated at the time of the drafting of the EEAA. The emergence of such circumstances is a very familiar, recurring phenomenon in the operation of complex agreements of all kinds, including international agreements.
These agreements typically take the form of incomplete contracts, meaning that they do not attempt to specify, with any great precision, the performance requirements of parties in all contingencies (all sets of circumstances). Hence, they frequently contain provision for arbitration arrangements to resolve the significant ambiguities that can easily arise and to settle the disputes that those ambiguities can trigger.
For international agreements, where the arrangements established by a Treaty are inadequate for resolving an ambiguity/dispute, the function of settling matters is served by the processes of international law. Brexit is such a case and the question of interest is: what are the implications of withdrawing from the EU for the UK’s participation in the EEAA?
The AG’s reasoning on the ‘indefiniteness’ of the Protocol
Mr Cox opens his substantive remarks at paragraph 3 of his letter of 13 November 2018 by noting that the Protocol on which he was asked to advise is part of an international agreement (the Withdrawal Agreement) that is binding on the parties and that must be performed by them in good faith and in accordance with the ordinary meaning to be given to its terms in their context and in the light of the Treaty’s object and purpose.
The words here are taken straight from the interpretive principles of the Vienna Convention on the Law of Treaties (VCLT, Article 31(1)), signifying the relevance of international law to the AG’s task. That is an important point to note, because very many of the blogs and comments on the EEAA issue have entirely ignored the implications of international law. In contrast, it is where the AG starts.
The references to context and to object/purpose are critical because international agreements rarely give rise to disputes that are easily adjudicated by reference to very narrow snippets of text alone. Thus, when it comes to the critical question of whether or not the Protocol is of an indefinite nature, the AG proceeds on a ‘wider-look’ basis as follows.
In the relevant sections of the advice (paras 12-16) he makes reference to Article 50 TEU, to Article 5 (good faith) and Article 184 (best endeavours) of the Withdrawal Agreement, to Articles 1.3, 1.4 and 2.1 of the Protocol, and to the Protocol’s preamble, thus covering material from a range of textual contexts. He first notes that different readings of this material can lead to different conclusions concerning ‘indefiniteness’. Hence there are ambiguities to be resolved.
The AG resolves them by reference to the overarching object or purpose of the Protocol, as summarised in the preamble where it recalls “the commitment of the UK to protect North-South cooperation and the UK’s guarantee of avoiding a hard border, including any physical infrastructure or related checks or controls”. Thus, the reasoning goes, if it turns out to be the case that the parties have negotiated in good faith and used best endeavours to reach an agreement, but have nevertheless failed to reach an agreement, that does not give grounds for disapplication of the Protocol, notwithstanding that there exist snippets of text suggesting otherwise. In a nutshell, that is because the disapplication of the Protocol in those (no-agreement) circumstances would work against the achievement of the Protocol’s overarching object/purpose. Only if another agreement is reached that commensurately serves the Protocol’s overarching object/purpose could the Protocol ‘fall away’.
The VCLT’s words “in the light of the Treaty’s object and purpose” are clearly central here: they are the taken as the touchstone for resolving ambiguity.
The same reasoning applied to the EEAA
There has been a long-running debate since the referendum as to whether the UK will continue to be a party to the EEA Agreement following the UK’s withdrawal from the EU. The relevant question can be put as follows: will the UK’s EEAA’s obligations and rights continue ‘indefinitely’ until such time as a VCLT-compliant exit from the EEAA has been achieved, or will the obligations and rights end, ‘definitely’ and ‘automatically’, in consequence of Brexit?
This is not the time or place to rehash those arguments in detail, but a general feature of the interchanges can be noted. Those who conclude in favour of ‘indefiniteness’ – what I have referred to as “EEA continuity” – tend to emphasise the centrality of international law and of the object and purpose of a Treaty in resolving ambiguity, whereas those who argue for ‘automaticity’ tend to look at things through the lens of European Law and to rely on inferences that could possibly be drawn from narrow snippets of the EEAA’s main text (EEAA Articles 2(c), 126(1) and 128 are favourite sources of cited text).
In his approach to the Ireland/Northern Ireland Protocol, it will be obvious from the earlier remarks that Mr Cox has relied on the first of these two approaches, focusing on the primacy of international law (even for a Treaty so intimately linked to European Law as the Withdrawal Agreement) and on object or purpose as a touchstone for resolving the ambiguities that arise from different readings of snippets of text. His central conclusion on ‘indefiniteness’ was “… in international law the Protocol would endure indefinitely, until a superseding agreement took its place, in whole or in part …” [his emphases].
The relevance and centrality of international law are, I think, even clearer for the EEAA than for the Withdrawal Agreement. The EEAA is a multilateral Treaty that was originally drafted to accommodate seven, fully sovereign states that were not members of the EU and which declined to accept the judicial authority of the CJEU. In contrast the Withdrawal Agreement, if it is signed and ratified, will be a Treaty between the EU and a state that, at the time of its signing, was one of the EU’s own members and subject to the authority of the CJEU.
The EEAA issues also appear clearer when it comes to using the object and purpose of a Treaty to resolve ambiguities. The immediate questions here concern (a) the nature EEAA’s object and purpose and (b) the implications of alternative interpretations of the Treaty’s text for the achievement of that object or purpose.
The object/aim/purpose of the EEAA is admirably succinct and is of an economic nature. It is specified in Article 1(1):
“The aim of this Agreement of association is to promote a balanced strengthening of trade and economic relations between the Contracting Parties with equal conditions of competition, and the respect of the same rules, with a view to creating a homogeneous European Economic Area, hereafter referred to as the EEA.”
I have emphasised “between the Contracting Parties” because the UK is one of those parties, each and all committed to pursuit of the shared aim/object/purpose. Under international law, it achieved that status by signing and ratifying the Agreement. All the other parties have therefore made commitments to promote a balanced strengthening of trade and economic relations with the UK, just as the UK has made the same commitment to each of the other parties. It is a basic principle of international law that these commitments must be met (pacta sunt servanda).
Given the overarching aim set out at Article 1(1), if there are conflicting interpretations of parts of the text of the EEAA, resolution of the ambiguities can proceed by asking the question: how would adoption of each of the ‘candidate interpretations’ bear upon the capacity to achieve the specified, shared aim/object/purpose?
If the object or purpose is of economic nature, as it is in the case of the EEAA, then judges or arbitrators necessarily have to make economic assessments. Explicit statement of this fact can make even judges nervous (something I have directly experienced as a participant in judicial training exercises). But it is unavoidable: they do not get to pick and choose the factual matrix with which they are presented when their judgments are sought.
In the EEAA case though, there should be no reason for judges/arbitrators to doubt their own capacity to undertake the relevant assessments: the economic points are very simple. All that needs to be assessed in the event of a dispute about interpretation is which of the contested ‘automaticity’ or ‘indefiniteness’ interpretations better serves the overarching aim of Article 1(1), and that is something of a no-brainer. It is very difficult to see how the UK falling out of the EEAA could do anything but weaken, rather than strengthen, the trade and economic relations between say, the UK and Norway, given that the EEAA serves as an FTA between the two countries. Similarly, if WTO tariff schedules are taken as a relevant comparator, the ‘automaticity’ interpretation would lead to the sudden appearance of a 10% tariff on autos for all UK trade with the 27 remaining EU Member States. That again would serve to weaken trade between the Contracting Parties of the EEAA.
At a general level, it would I think be difficult to conclude that the aim of promoting trade and economic relations across an economic zone or area would not be significantly harmed by the removal of the zone’s second largest economy.
To avoid any misunderstanding, this is not an argument for the EEA as a policy choice. Some would no doubt prefer an immediate exit from the EEA in the UK’s own interests. However, the UK’s interests are not the relevant criterion in answering the question posed: the criterion is rather the impact on the Agreement’s shared purpose, its Article 1(1) aim. Moreover, those who favour EEA-exit on policy grounds should properly have sought to trigger the EEAA’s Article 127 (the exit provision), which would have led to UK withdrawal in a way that would have been compliant with the Agreement itself and hence with international law. The UK gave a solemn commitment to do things that way when it signed and ratified the Agreement, but the current Government has, de facto, not honoured the commitment, most likely because of a perception that nothing close to a majority could be mustered, whether in Parliament or among the public, for that course of action. Pacta non sunt servanda now.
Following the AG, therefore, it might be said, perhaps with greater force than for the Ireland/Northern Ireland Protocol, that in international law the EEAA will endure indefinitely, until such time as a withdrawal process that is not in breach of the Agreement is completed.
On that basis, in the absence of a consensus among the Contracting Parties, including the UK itself, that the UK should withdraw on 29 March 2019, a ‘deep and special’ trade and economic cooperation agreement with the EU, its Member States, Iceland, Liechtenstein and Norway will remain in place on 30 March 2019.
In the post referendum period the Government has been faced with two questions on which legal advice has been sought, each of great importance for Brexit policy and each engaged with the same basic issue, whether or not an international Treaty is ‘temporally indefinite’. In one case (the Ireland/Northern Ireland Protocol) the Government, has received advice from the Attorney General – now in the public domain and with its reasoning fully laid out for all to see and examine – that the answer is in the affirmative. In the other case, concerning the EEA Agreement (where prima facie the AG’s reasoning leads more quickly and more definitely to the same answer) the Government has proceeded on a presumption that the answer is in the negative.
The much earlier advice on the EEAA, which the Government has claimed justifies its view that that the UK’s Treaty rights and obligations will be extinguished, definitely and automatically, on Brexit Day, has never been disclosed. Its authors have not been identified. The basis of the conclusion (which could have been provided without disclosing the advice itself) has never seen daylight. We can’t even be sure that the advice actually exists in any written down or formally presented way. There is no indication in political speeches or articles that the object or purpose of the Agreement has been considered to be a relevant factor in reaching a conclusion on “EEA Continuity” (i.e. no indication that VCLT interpretive principles have been followed). Nor is there any indication that the Cabinet has been able to see and discuss the advice. It all seems to be locked away in a secret garden.
In these circumstances, there would be great merit in asking Mr Cox quickly to provide the PM and the Cabinet with a review of the integrity and robustness of any earlier advice on ‘automaticity’. If that were done, and if he were to reach the same conclusion as he did in relation to the Ireland/Northern Ireland Protocol, Brexit prospects and options ahead would come to look very different by the opening of the new year. Moreover, if that did indeed turn out to be the case, the Prime Minister, Cabinet and Parliament would then have the advice of Lord David Owen to turn to for one, immediately relevant and manifestly feasible answer to the question: What is to be Done?