A route to a clear and authentic Brexit is now more confused and difficult than ever after the Commons decision to vote down the Withdrawal Agreement for a third time, and its failure to agree on an alternative in the recent indicative votes. Recent propositions including negotiating with and thereby legitimising the leader of the opposition is regrettable.
However, one option has already secured the backing of the House and presents a viable option for breaking the current impasse. The so called ‘Brady Amendment’ passed in the House of Commons back in January with a majority of 16 with the support of the DUP. This amendment urged the Government to replace the backstop with ‘alternative arrangements to avoid a hard border’ in relation to Northern Ireland.
Since then the Government has, in view of many in the House, failed to secure these ‘alternative arrangements’ and present with absolute legal clarity an option which does not threaten the integrity of the United Kingdom.
Nonetheless, it remains the only consensus MPs have been able to reach and therefore should remain the focus of current efforts.
I have been contacted by Sir Edward Leigh MP with a proposal for preventing the indefinite nature of the Northern Ireland Protocol and finding a way forward which achieves Brexit and secures majority support.
He proposes a Conditional Unilateral Interpretative Declaration which would ensure that should negotiations to replace the backstop fail ‘by the deadline of 31 December 2020, the UK could unilaterally give one-year notice to end the backstop.’
The main points of Sir Edward’s plan are:
1. In international law, a UK unilateral interpretative declaration is binding on both parties.
2. The EU would be legally bound by our unilateral interpretative declaration.
3. Only exception is if they formally lodge an objection or fail to ratify. Ball is in their court if so.
Whilst concerns exist that a UK unilateral declaration would be non-binding on the EU, under widely accepted norms of international law the EU doesn't need to agree to it but rather must simply refrain from lodging a formal objection for it to carry legal weight. In other words, ‘inaction from the EU would confirm the declaration’s legality and make it an integral part of the agreement.’
Should the EU make a formal, legal objection to the unilateral declaration and the Agreement fail to receive approval as a result, it would only return us to the current situation. This proposal therefore presents an untested option without great risk and would, in my view, be a preferable route through this unchartered territory.