Brexit: the Withdrawal Agreement and Political Declaration Contents

Chapter 1: Introduction

Overview

1.This report provides an analysis of the ‘Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and from the European Atomic Energy Community’1 (hereafter referred to as the Withdrawal Agreement or the Agreement), and the associated ‘Political Declaration setting out the framework for the future relationship between the European Union and the United Kingdom’.2 Both documents were laid before Parliament on 26 November.

2.The Agreement and the Political Declaration will be debated in the House of Lords on 5–10 December 2018. The House of Commons will debate them on 4–11 December. In accordance with Section 13 of the European Union (Withdrawal) Act 2018, the House of Lords is required to ‘take note’ of the Agreement, whereas the House of Commons must give its approval if the Agreement is to be ratified. This report has been prepared by the European Union Select Committee with a view to informing both debates.

3.If the Commons gives its approval, the Government will then bring forward domestic legislation to implement the Withdrawal Agreement prior to ratification. That legislation will have to be agreed by both Houses.

4.The report focuses on only the most significant aspects of the Withdrawal Agreement and Political Declaration. The European Union Committee has published almost 40 reports since the 2016 referendum, reaching a consensus on each one. We have sought to maintain that consensus, and our report therefore neither endorses nor rejects the Agreement. Instead we have sought to provide a dispassionate analysis: it will be for each Member of the House (and each Member of the House of Commons) to reach his or her own view.

5.We recognise that there may be little or no opportunity to amend the text of either document: the two negotiating teams have, for now, finished their work. Nevertheless, this report, drawing on previous reports by the European Union Committee and its Sub-Committees, welcomes or highlights concerns over particular aspects of the Agreement and the Political Declaration. We signpost areas where further explanation might be required and put questions to the Government, which may be explored further in the debates. We also make recommendations about how the Withdrawal Agreement should be implemented in domestic law, drawing particular attention to areas where Parliament may wish to play a role in scrutinising the governance and other arrangements.

6.Our comments on the Political Declaration, the full text of which appeared only on 22 November, are necessarily provisional. If the Agreement is approved by the House of Commons on 11 December, the EU Committees will look in more detail at aspects of the future relationship between now and 29 March 2019, when the United Kingdom will leave the European Union.

Timeline

7.On 29 March 2017 the Prime Minister notified the European Council of the UK’s intention to withdraw from the European Union, in accordance with Article 50 of the Treaty on European Union (TEU). Article 50 provides that, following notification, the European Union should, within two years, “negotiate and conclude an agreement with [the withdrawing] State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union”.3

8.In the summer of 2017 the two sides agreed the sequencing of the negotiations. They would first address withdrawal, beginning with three specific areas stemming from the UK’s withdrawal: the protection of citizens’ rights after Brexit, the financial settlement, and issues arising with regard to the border between Ireland and Northern Ireland. They also agreed that “sufficient progress” would be needed on these withdrawal issues before discussions could begin on the second element referred to in Article 50, the framework for the future EU-UK relationship.

9.On 8 December 2017 the EU and the UK published a Joint Report, setting out the areas of agreement between both sides on the three withdrawal issues, as well as some other separation issues. This was a significant moment. Among other things, the parties agreed that they would respect the provisions of the Belfast/Good Friday Agreement of 1998 and avoid the creation of a hard border between Ireland and Northern Ireland, interpreting a hard border as “including any physical infrastructure or related checks and controls”.4

10.The Joint Report recorded the UK’s determination to resolve the issue of the Irish border within the context of an agreement on future relations; or, failing this, to propose technological solutions. But the two sides agreed that, “in the absence of agreed solutions”, the UK would “maintain full alignment with those rules of the Internal Market and the Customs Union which, now or in the future, support North-South cooperation, the all-island economy and the protection of the 1998 Agreement”.5 This agreement was the genesis of what has come to be described as the ‘Northern Ireland backstop’. The Joint Report also provided that the UK would ensure that “no new regulatory barriers develop between Northern Ireland and the rest of the United Kingdom, unless, consistent with the 1998 Agreement, the Northern Ireland Executive and Assembly agree that distinct arrangements are appropriate for Northern Ireland”.6

11.On 28 February 2018 the European Commission published the first draft of a Withdrawal Agreement between the European Union and the United Kingdom, translating the December Joint Report into legal terms. On 19 March an amended text was published, highlighting areas of agreement and disagreement using a green, yellow and white colour-coding.7

12.No further drafts of the Withdrawal Agreement were published between March and November, but on 19 June a Joint Statement was published, outlining further progress in the negotiations.8

13.A final draft Withdrawal Agreement was published on 14 November 2018 alongside an ‘outline’ of the Political Declaration on the future relationship.9 A fuller, final, draft of the Political Declaration was published on 22 November. The two documents were endorsed by the European Council (Art. 50) at its meeting on 25 November and the final text (no longer a ‘draft’) was laid before Parliament the following day.

14.Unhelpfully, despite being 585 pages long, the Withdrawal Agreement was published without either a contents page or an index. This makes it harder for all interested parties, whether in the UK or the EU, to compare it with the earlier colour-coded draft published in March 2018. The failure to provide a contents page is particularly regrettable, as the March draft included a detailed table of contents.

This report

15.This report is divided into four substantive chapters. Chapter 2 examines the withdrawal provisions, focusing primarily on issues relating to governance, citizens’ rights and the financial settlement. Chapter 3 considers the transition provisions. Chapter 4 analyses the Protocol on Ireland/Northern Ireland. Finally, Chapter 5 assesses the Political Declaration setting out the framework for the future relationship between the European Union and the UK.

16.We make this report for information, with a view to assisting debates in both Houses, and more widely, on the Withdrawal Agreement and the accompanying Political Declaration on future relations.


1 Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community as endorsed by leaders at a special meeting of the European Council on 25 November 2018 (25 November 2018): https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/759019/25_November_Agreement_on_the_withdrawal_of_the_United_Kingdom_of_Great_Britain_and_Northern_Ireland_from_the_European_Union_and_the_European_Atomic_Energy_Community.pdf [accessed 30 November 2018]

2 Political Declaration setting out the framework for the future relationship between the European Union and the United Kingdom (26 November 2018): https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/759054/26_November_-_Political_Declaration_setting_out_the_framework_for_the_future_relationship_between_the_European_Union_and_the_United_Kingdom.pdf [accessed 30 November 2018]

3 Treaty on European Union, Title VI:Final Provisions: Article 50, OJ C 326, pp 43–44 (consolidated version of 26 October 2012)

4 HM Government and European Commission, Joint report from the negotiators of the European union and the United Kingdom Government on progress during phase 1 of negotiations under Article 50 EU on the United Kingdom’s orderly withdrawal from the European Union (8 December 2017) para 43: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/665869/Joint_report_on_progress_during_phase_1_of_negotiations_under_Article_50_TEU_on_the_United_Kingdom_s_orderly_withdrawal_from_the_European_Union.pdf [accessed 30 November 2018]

5 Ibid., para 49

6 Ibid., para 50

7 European Commission and HM Government, Draft agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and European Atomic Energy Community, 14 March 2018: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/691366/20180319_DRAFT_WITHDRAWAL_AGREEMENT.pdf [accessed 30 November 2018]

8 Joint statement from the negotiators of the European Union and the United Kingdom Government on progress of negotiations under Article 50 TEU on the United Kingdom’s orderly withdrawal from the European Union (19 June 2018): https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/717697/Joint_Statement_-_19_June_2018.pdf [accessed 30 November 2018]




© Parliamentary copyright 2018