Everyone in a spin over whether joint report is legally binding
What is the difference between two states agreeing stuff and putting that stuff in writing and an international binding agreement? This is the conundrum which lawyers have been discussing over the past few days.
At the end of last week, the UK government and the European Union issued a joint report in relation to Brexit talks marking where agreement has been reached on hugely contentious areas such as citizen rights and how much the UK will have to pay to ‘divorce’ the EU.
Hilariously, almost the first paragraph muddies the waters on whether anything has actually been finally agreed. It reads:
“Under the caveat that nothing is agreed until everything is agreed, the joint commitments set out in this joint report shall be reflected in the Withdrawal Agreement in full detail.”
So far, so completely unclear.
The legal Twitterati has been only too happy to step up and set the record straight. Here’s lawyer and writer David Allen Green:
The UK and EU "sufficient progress" report is a serious piece of work intended to have serious consequences.
It establishes trust. It allows the parties to progress to phase 2.
It means an "orderly Brexit" is far more likely.
All serious things.
But not "legally binding".
— David Allen Green (@davidallengreen) December 11, 2017
Then the academics got involved.
Steve Peers, EU law professor at the University of Essex, argued (trigger warning: this could confuse you) in the Independent that the question we need to ask ourselves is whether the joint report was an international ‘treaty’, for that would make it binding. What makes a treaty? Well, you need the parties “consent to be bound” by a treaty, and, in Peers’ view, the joint report does not have that consent.
We have been here before, of course, when lawyers and professors spent many hours debating whether the EU referendum itself was legally binding. It has turned out that it didn’t really matter very much one way or the other.
The joint report published at the end of last week cleared the path for negotiations towards a final withdrawal agreement between the EU and the UK which will cover many of the issues set out in last week’s joint report.
But if you thought that was all fairly clear cut, then read MP David Davis’ statement today on the process. He starts “there will be at least two agreements…” (Legal Cheek emphasis).
The definite second agreement is on the future relationship between the EU and the UK which will deal with trade, defence, cooperation against terrorism and so on. This particular agreement can’t be agreed until the UK has left the EU.