The Brexit process – the beginning of the end?

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After around eighteen months of negotiations, on 25 November 2018, a special meeting of the European Council endorsed the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community. At the same time, a Political Declaration on the future relationship was also endorsed.

The Withdrawal Agreement (“the Agreement”) sets out arrangements for the UK’s departure from the EU. The future relationship between the UK and the EU will be formally negotiated after the UK has left the EU. Ahead of this formal negotiation, the EU and UK agreed the non-binding Political Declaration on the future relationship.

If ratified, the Agreement will facilitate the UK’s departure from the EU on 29 March 2019 in an orderly fashion. Failure to ratify the Agreement would increase the chances of the UK leaving the EU without a deal as the EU27 have indicated there is no room to re-negotiate the agreement.

What’s covered by the Withdrawal Agreement?

The Withdrawal Agreement provides for governance arrangements including the establishment of a Joint Committee, dispute resolution procedures and the role of the European Court of Justice.

Provision is also made in the Agreement for a transition period to the end of 2020, which effectively means the UK will continue to operate as if it were an EU Member State, though without participating in the EU’s decision-making processes. There is also an option to extend the transition period by a further one or two years.

On citizens’ rights, the Agreement largely protects the existing rights of EU citizens in the UK and UK citizens in the EU.

The Agreement also sets out an agreed financial settlement, ensuring both the UK and the EU honour the financial obligations accumulated whilst the UK was a member of the EU.

The Northern Ireland “backstop”

Given the red lines of the EU and the UK, the hardest negotiating issue to reach agreement on was how to ensure that when the UK leaves the EU, trade across the Ireland and Northern Ireland border can continue to operate as freely as it currently does. Maintaining an open border with no physical infrastructure was a priority for both the EU and the UK and aligns with the principles of the Good Friday Agreement. This issue has been addressed in the Protocol on Ireland and Northern Ireland which introduces a “backstop”.

The Protocol makes clear that the backstop is “not the preferred or expected outcome”, with the UK Government suggesting it still hopes to negotiate a future relationship which means the backstop is never required. Linked to this aspiration is the ability to extend the transition period if necessary and desirable rather than invoke the backstop.

Article 1 of the Protocol also makes clear that the backstop arrangement should not be seen as creating a permanent relationship between the UK and the EU and that it is only intended to apply temporarily (if at all) unless and until it is superseded.

The Protocol proposes an EU-UK wide customs arrangement and sets out other arrangements for ensuring the avoidance of a hard border between Ireland and Northern Ireland as a result of Brexit. These include provision for Northern Ireland to continue to abide by the EU’s Customs Code and relevant Single Market in goods legislation, to ensure free movement of goods across the Ireland and Northern Ireland border. This approach will however mean that there will need to be checks on goods entering Northern Ireland from the rest of the UK.

To facilitate the single customs territory between the EU and the UK, the Protocol creates a set of arrangements designed to ensure that the regulatory environments in the UK and EU custom territories are similar in some respects – this is referred to as the “level playing field”.   These provisions relate to environmental protections and labour and social standards.

If the backstop contained in the Protocol is ever introduced, it will mean Northern Ireland has a different relationship with the EU compared to the rest of the UK. This will be as a result of Northern Ireland’s alignment to the Single Market in goods.  The Scottish Government has suggested that Northern Ireland’s potential direct access to the Single Market in goods will give it a competitive advantage within the UK.

Guidance on the Withdrawal Agreement

Both the UK Government and the European Commission have produced guidance on the Withdrawal Agreement:

SPICe has published a briefing examining the Withdrawal Agreement from a Scottish perspective.

What happens next?

With the Withdrawal Agreement and Political Declaration now finalised, attention turns to the UK Parliament. The European Union (Withdrawal) Act makes provision for both documents to be subject to the so-called meaningful vote in the House of Commons. The details of this are set out in the House of Commons Library Briefing A User’s Guide to the Meaningful Vote.

If the Withdrawal Agreement and Political Declaration are endorsed by the House of Commons, the Withdrawal Agreement will then require the consent of the European Parliament and implementing legislation in the UK. The UK Government has indicated it will introduce legislation to ensure the Agreement is fully ratified.

The introduction to the UK Government’s White Paper, Legislating for the Withdrawal Agreement between the United Kingdom and the European Union, states that it will work with the devolved administrations in developing the Bill and that the Bill is likely to engage the legislative consent mechanisms.

“The Withdrawal Agreement will place binding obligations on the whole of the UK, including the devolved administrations. This paper identifies a number of areas in which the implementation of the Withdrawal Agreement in domestic legislation may touch on devolved matters. The UK Government is committed to working effectively with the devolved administrations. In developing the Bill, the Government will continue to follow the established practices and conventions to seek the consent of the devolved legislatures where it is relevant to do so. Based on the Government’s current view on the content of the Bill, as set out below, it is expected those practices and conventions will apply in this instance.”

This blog has also been discussed in a Scottish Parliament podcast.

Iain McIver, SPICe Research