This APPG looks to promote the Rule of Law as a public concept within both parliamentary and public discussion. The group was founded in June 2015, and is chaired by Conservative MP Dominic Grieve.

In their meeting on December 11, the committee, along with four expert speakers, focused specifically on the issues concerning the Irish border backstop, as well as the Prime Minister’s decision to bring the Brexit withdrawal deal to a vote by January 21, as she meets with EU member leaders this week in an attempt to get concessions. Theresa May’s decision to delay the vote on her deal came in response to cross-party parliamentary opposition.

Last month’s agreement between EU leaders approved a withdrawal deal, which included a commitment to avoiding the implementation of a ‘hard border’ between the Republic of Ireland and Northern Ireland.

The idea of a ‘backstop’ would be a last resort option to maintain an open border in the event that the UK leaves the EU without securing a deal. This would include maintaining the loosely-restricted trade within Ireland and sticking to customs union and single market procedures.

The UK Government wants this free movement of goods within Ireland to remain, however its dilemma comes with the fact that the recently approved deal involves leaving the customs union and single market. This would, by definition, involve substantive tightening of the movement of goods within the island of Ireland.

The backstop in this case would be an arrangement to maintain the current ‘frictionless’ border in the event of no deal. There is pressure to reach agreement on this backstop since the EU refuses to conduct trade talks until this agreement is in place.

A number of expert speakers attended the APPG meeting:

Paul Craig, Professor of English Law and Fellow of St. John’s College, University of Oxford and leading expert on EU and Public Law, based his discussion around the rationale for the backstop.

He made the general arguments that a hard border should be prevented as it it would be detrimental to the economic process, and maintained that it was important to avoid jeopardising the Irish peace process. The whole of the UK remains in customs territory within the EU, which is in place primarily for protection of industry. In addition to these rules, Northern Ireland is subject to all the regulatory rules that constitute the single market. The argument to remain in the single market is motivated by the desire for product safety: In the event that the UK left the EU without a deal, the backstop would ensure that product regulations are in place through remaining in the single market and customs union.

Professor Craig emphasised that Parliament’s ‘hard-brexiteers’ oppose the current withdrawal agreement because ‘they fear they will remain trapped in a customs union with the EU post-transition’. According to Craig, ‘the EU is never going to accept a unilateral UK right to stop the backstop’, and the consequence of a premature termination would be to expose the borders where adequate safeguards do not exist. ‘I have serious questions about whether a unilateral trigger would be compatible with EU law’, he continued.

Craig further argued that the EU does not wish to trap the UK in a permanent customs union, despite what some pro-leave politicians may believe. The UK formed the architectural structure of the withdrawal deal, and ‘the EU has no desire to keep us in that relationship in the long term’.

Maya Lester QC, Barrister for Brick Court Chambers and part of the legal team in Wightman, spoke next about the UK’s ability to revoke its request to leave the EU. Since Article 50 does not specify whether the UK is able to do this, on December 10, MPs, in a quest for clarity, looked to have it confirmed whether or not this option was available to the UK.

It was decided that the UK can change its mind without seeking agreement from other EU members, on the condition that this is the will of the people. An act of Parliament may be required for the UK to officially change its position. ‘If this is the case, then there would be some indication that the sovereign right of the UK was being exercised democratically’, Lester said.

Dr Brigid Fowler, Senior Researcher at the Hansard Society, discussed these issues from the mechanical perspective of how Parliament processes treaties. ‘We are currently witnessing, in real time, how not to make a treaty … this is a good start’, she opened.

Fowler stated that if you’re looking at the process from this perspective, it is an extremely unusual case, compared to the way in which Parliament is usually engaged in treaties. If the withdrawal agreement had been handled according to the normal process, Parliament would not have become engaged, as it has now. If the Government wishes to have a ratified treaty by March 29, the House of Commons needs to approve the withdrawal agreement; pass an act of Parliament, and parliamentary consent to ratification.

‘The broader issue that was coming up in debates yesterday was members trying to establish to what point in the process we had reverted … are we past the political statement and are simply delaying the meaningful vote, or have we reverted back to not having political agreement? … In terms of where we are … I think the Prime Minster is just delaying the initial meaning vote … but then it would be helpful if she could clarify why she keeps talking about January the 21st!’, said Fowler.

Finally, Raphael Hogarth of the Institute for Government used his statement to emphasise the importance of government taking time to conduct the Brexit process, once (and if) a deal is agreed. He discussed the integrative problem with the fact that the EU Withdrawal Act gives members a duty to go to the ECJ in the formulation of their agreement.

The issue of making EU laws (or equivalents) effective in the UK’s agreement was also discussed — UK courts are surely going to have to make references to existing EU citizens’ rights laws. A dispute settlement mechanism may also have to be provided for.

‘The government wants to put pressure on Parliament, but if we get a meaningful vote passed in march, we shouldn’t be passing this in a day’, Hogarth said in his statement, highlighting, in spite of the rushed and panicked climate right now, that the bill will need time. It is critical that Parliament  takes time to look at the constitutional issues raised by Brexit.

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