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Beyond Brexit: how to win friends and influence people Contents

Chapter 2: Governance of the Withdrawal Agreement and Political Declaration

The Withdrawal Agreement and Political Declaration

8.The proposed UK-EU Withdrawal Agreement and the accompanying Political Declaration setting out the framework for future UK-EU relations were presented to Parliament on 26 November 2018. Updated texts were presented on 11 March 2019. Taken together, these documents set out in varying levels of detail three distinct (yet interlocking) formal elements of post-Brexit UK-EU inter-institutional relations:

9.In this chapter we consider each of these in turn. We use as a basis the analysis set out in our report on Brexit: the Withdrawal Agreement and Political Declaration, published on 5 December 2018.2 We do so despite the House of Commons’ decision, on two occasions, to reject the Withdrawal Agreement and Political Declaration, since the governance mechanisms set out in the Withdrawal Agreement and Political Declaration are likely to underpin any deal on UK withdrawal that is ultimately reached.

The transition period

10.The Withdrawal Agreement states that the transition period3 will run from when the Agreement comes into force until 31 December 2020, with the possibility of a single extension “for up to one or two years”. During the transition period, all EU law (including both the full EU acquis at the point of UK withdrawal and new laws that come into force during the transition period) will continue to apply to the UK, producing “the same legal effects as those which it produces within the Union and its Member States”.4 The UK will lose its current right to opt into new Justice and Home Affairs (JHA) measures, but will be able to opt into measures that “amend, build upon or replace existing [JHA] measures.”5

11.While the Withdrawal Agreement in large part removes the UK’s rights as an EU Member State to participate in the EU’s institutions and agencies during the transition period, there are limited exceptions.6 The UK can be invited to send national experts to “meetings or parts of meetings” of “Commission expert groups” and/or EU “bodies, offices or agencies”,7 but only in exceptional circumstances and when the discussion involves legislation “to be addressed to the United Kingdom”,8 or where the presence of a UK expert “is necessary and in the interest of the Union”.9 UK experts will not have voting rights. The UK also has consultation rights in relation to fisheries and the negotiation and agreement of Total Allowable Catches (TACs) under the Common Fisheries Policy.10

12.In our report on Brexit: the Withdrawal Agreement and Political Declaration we expressed concern about the sudden removal of the UK’s institutional privileges during the transition period, in particular given that all EU law will apply to the UK during this period. These changes mean that the UK will inevitably have less influence over the EU institutions and their deliberations during the transition period. Nevertheless, it is incumbent on the Government to take advantage of those limited opportunities that remain to seek to maximise the UK’s influence with the EU institutions.

Governance of the Withdrawal Agreement

The Joint Committee on the Withdrawal Agreement

13.The main governance structure that would be established by the Withdrawal Agreement is the Joint Committee.11 It would be the primary forum responsible for the implementation and application of the Withdrawal Agreement, and its main provisions are as follows:

14.Beyond this outline structure, the precise modus operandi of the Joint Committee remains to be determined.

The Specialised Committees

15.Under the Withdrawal Agreement, Specialised Committees on the following themes would be established:

16.The Joint Committee may establish additional Specialised Committees, dissolve any of them, and will decide on the tasks of Specialised Committees and supervise their work.26

17.Specialised Committees will be co-chaired by representatives of the UK and EU (who will be represented by the Commission, albeit with some caveats27), and both sides will ensure that their representatives have “appropriate expertise”.28

18.The Joint Committee’s Rules of Procedure will also, broadly, apply to the Specialised Committees (unless the Joint Committee decides otherwise). They will meet at least once a year, and additional meetings may be held at the request of the EU, the UK or the Joint Committee. They will inform the Joint Committee of their meeting schedules and agenda in advance, and report to it after each meeting.29

The Protocol on Ireland/Northern Ireland

The Specialised Committee on the Protocol on Ireland/Northern Ireland

19.The Specialised Committee on issues related to the implementation of the Protocol on Ireland/Northern Ireland will:

(a)facilitate the implementation and application of the Protocol;

(b)examine proposals concerning the implementation and application of the Protocol from the North-South Ministerial Council and the North-South Implementation bodies set up under the 1998 Belfast/Good Friday Agreement;

(c)consider specific matters brought to its attention by the Northern Ireland Human Rights Commission, the Equality Commission for Northern Ireland, and the Joint Committee of representatives of the Human Rights Commissions of Northern Ireland;

(d)discuss any point raised by either side of relevance to the Protocol that is giving rise to a difficulty; and

(e)make recommendations to the Joint Committee regarding the functioning of the Protocol.30

The Joint Consultative Working Group on the Protocol on Ireland/Northern Ireland

20.The Withdrawal Agreement will also establish a Joint Consultative Working Group on the implementation of the Protocol, to serve “as a forum for exchange of information and mutual consultation.” It will be co-chaired by the EU and UK, comprise representatives of the EU and the UK, and be supervised by and report to the Specialised Committee. It will meet at least once a month, unless decided otherwise by mutual consent. Within the working group, the EU and UK will exchange information about the implementation of relevant EU legislation.31

The composition of the delegations in matters pertaining to Northern Ireland

21.As we have noted, the Commission will represent the EU in the Joint Committee. However, Ireland may request that the Commission be accompanied by a representative of Ireland in the meetings of the Specialised Committee on issues related to the implementation of the Protocol on Ireland/Northern Ireland.32

22.The exchange of letters between the Prime Minister and Presidents Tusk and Juncker on 14 January 2019 provided more detail on the composition of the UK delegation. The Prime Minister stated that “it is for the United Kingdom to decide how it is represented in the governance of the Protocol”, including “how the Northern Ireland Executive are represented in those forums where matters pertaining directly to Northern Ireland are discussed”.33 Presidents Tusk and Juncker confirmed that the Withdrawal Agreement and Protocol “do not prevent the United Kingdom from facilitating, as part of its delegation, the participation of Northern Ireland Executive representatives in the Joint Committee, the Committee on issues related to the implementation of the Protocol on Ireland/Northern Ireland, or the joint consultative working group, in matters pertaining directly to Northern Ireland”.34 This was subsequently confirmed in the 11 March Instrument relating to the agreement on the withdrawal of the UK from the EU.35

23.Dr Katy Hayward, Reader in Law, Queen’s University Belfast, thought that input from the North-South institutions established under the 1998 Belfast/Good Friday Agreement would be “quite critical” for the Specialised Committee’s work. She also suggested that the Joint Committee could “allow the First Minister and deputy First Minister in Northern Ireland to be present and to have speaking rights if issues relating to Northern Ireland are being discussed”. If there was no devolved administration, she added, senior civil servants should have speaking rights.

24.Dr Hayward observed that the Joint Consultative Working Group was unprecedented in the EU’s relationships with third countries. She suggested that it could have a decision-shaping role as “the first point at which potential new legislation or the implications of EU legislation, or indeed legislation within Northern Ireland, could be considered and discussed in some detail”. She also suggested that business communities and the civic community could contribute to its deliberations.

25.Dr Hayward was confident that the new bodies did not contravene the Belfast/Good Friday Agreement, in particular in light of the January 2019 paper on UK Government commitments to Northern Ireland and its integral place in the United Kingdom (see Box 1).36 The 11 March Instrument relating to the agreement on the withdrawal of the UK from the EU subsequently stated that “the Protocol does not affect or supersede the provisions of the 1998 Agreement in any way”, in particular the provisions of Strand Two of the Agreement that “areas of North-South cooperation in areas within their respective competences are matters for the Northern Ireland Executive and Government of Ireland to determine.” It also stated that any new EU act falling within the scope of the Protocol, but neither amending nor replacing an EU act listed in the Annexes to the Protocol, would require the agreement of the UK in the Joint Committee.37

Box 1: UK Government commitments to Northern Ireland and its integral place in the United Kingdom

The January 2019 paper on UK Government commitments to Northern Ireland and its integral place in the United Kingdom includes commitments to:

  • Ensure a strong role for the Northern Ireland Assembly before Northern Ireland-specific backstop provisions are given effect in domestic law;
  • Seek the agreement of the Northern Ireland Assembly if the UK Government were ever to consider agreeing to new areas of law applying specifically to Northern Ireland to the Protocol;
  • Provide a guarantee that nothing in the Protocol will change the scope, functions or remit of the North-South Ministerial Council or the North-South Implementation Bodies, or change any areas of North-South cooperation without explicit agreement from the Northern Ireland Executive;
  • Agree a Memorandum of Understanding with a future Northern Ireland Executive setting out arrangements for the Executive’s role in respect of the Joint Committee, the Specialised Committee and the Joint Consultative Working Group, when issues relevant to Northern Ireland are discussed. The MoU “would also set out the agreed processes and forums to ensure effective dialogue and information-sharing with the Executive on the implementation of the Protocol”;
  • Provide a guarantee that the UK will ensure that all engagement and dialogue under the governance arrangements applying to the Withdrawal Agreement will be consistent with the three-stranded approach set out in the Belfast/Good Friday Agreement, with no change to the role of the UK or Irish Government; and
  • Ensure that the voice of a restored Northern Ireland Executive, along with the other devolved administrations, is at the heart of work on negotiations on the future UK-EU relationship.

Source: HM Government, UK Government commitments to Northern Ireland and its integral place in the United Kingdom (9 January 2019): https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/769964/NI_unilateral_commitments_-_9_January_FINAL.pdf [accessed 6 March 2019]

26.Victoria Hewson, Senior Counsel, Institute of Economic Affairs, in contrast, argued that “the new interactions of the institutions that will support the backstop, should it come into effect, will have definite effects on how the institutions of the Belfast agreement would work”. She argued that “the Government of Ireland and the Irish voters south of the border will have more say on those particular rules and regulations than the people in Northern Ireland will have themselves”, and also that Strand Three of the 1998 Agreement, covering intergovernmental relations between London and Dublin, had been “completely written out not only of the Article 50 negotiations but the whole way that the backstop will work going forward”.38

27.While the governance mechanisms under the backstop have been broadly supported by nationalist and other parties, unionist parties, in particular, have expressed concern that they would create a democratic deficit. We wrote to the Speaker of the Northern Ireland Assembly to invite the views of the political parties represented in the Assembly on the proposed governance structures. The Ulster Unionist Party responded, as follows:

“For the first time in our history, decisions on areas of law affecting Northern Ireland would be decided not by our Government at Westminster, nor by our locally elected representatives in the Northern Ireland Assembly, but by 27 other Governments, including the Republic of Ireland. The role of the Committees that would have a say in our affairs after Brexit, were the Backstop to be initiated, removes even the thinnest veneer of democratic accountability from our affairs. Our form of governance in Northern Ireland acknowledges the need for cross-community legitimacy in decision making, therefore it is concerning that areas of law making could take place over our heads with no democratic scrutiny or accountability.”39

Conclusions

28.The new governance mechanisms envisaged under the Protocol on Ireland/Northern Ireland would mark a significant development in the inter-institutional structure governing relations between Northern Ireland and Ireland. These structures are among the most well-defined of the inter-institutional mechanisms set out in the Withdrawal Agreement and Political Declaration. They will also be supported by particularly intensive dialogue, as shown by the fact that the Joint Consultative Working Group, itself an innovation, will meet monthly.

29.There is a possibility within these mechanisms to give Northern Ireland institutions and stakeholders a voice in the development of UK-EU relations, in particular in the context of bilateral relations with Ireland. We welcome the Government’s commitment to ensure that the Northern Ireland Executive will have a role in relation to the Specialised Committee, Joint Consultative Working Group and relevant discussions in the Joint Committee, and urge it to go further and consider how large and small businesses, employee representatives and civic groups can contribute to the work of the new structures, and in particular the work of the Joint Consultative Working Group.

30.In our 2017 report on Brexit: devolution we highlighted the “delicate equilibrium” established by the Belfast/Good Friday Agreement, and urged all sides not to weaken this equilibrium or the confidence of both unionist and nationalist communities in the political process. The history of the peace process demonstrates that new institutions will only succeed if both communities in Northern Ireland support and are willing to participate in them. In that context, we note with concern the perceptions of a lack of democratic accountability within the new inter-institutional structures envisaged under the Protocol on Ireland/Northern Ireland.

31.We note the Government’s assurances set out in its January 2019 paper on UK Government commitments to Northern Ireland and its integral place in the United Kingdom, and urge all sides to engage in continued dialogue to ensure that the new institutions secure the democratic legitimacy that they will need if they are to function effectively. Their interaction with the institutional framework of the 1998 Agreement therefore requires careful examination and continuous review. This in turn underlines the urgent need to re-establish the power-sharing institutions of the Northern Ireland Assembly and Executive.

The Specialised Committee on the Sovereign Base Areas in Cyprus

32.Article 165 of the Withdrawal Agreement establishes a Specialised Committee on the implementation of the Protocol on the Sovereign Base Areas in Cyprus. The Protocol itself states that Cyprus and the UK shall cooperate to ensure the effective implementation of the Protocol on the Sovereign Base Areas in Cyprus, in particular with a view to countering fraud and other illegal activities. The Government of Cyprus and the UK may make further arrangements concerning the implementation of any of the provisions of the Protocol, which the Government of Cyprus shall inform the Commission of before they come into force.40

33.In parallel with the provisions of the Protocol on Ireland/Northern Ireland, while the Commission will represent the EU on the Specialised Committee, the Republic of Cyprus may request that one of its representatives accompany the Commission at meetings of the Specialised Committee.41

34.We welcome the proposal to establish a Specialised Committee on the Sovereign Base Areas in Cyprus, and note that its success both depends on, and can help ensure, the continued maintenance of effective UK-Cypriot bilateral relations and communication.

The Specialised Committee on Gibraltar

35.The Protocol on Gibraltar sets out specific provisions in relation to citizens’ rights, air transport law, fiscal matters and protection of financial interests, environmental protection and fishing, and cooperation in police and customs matters. The Withdrawal Agreement also states that there will be close cooperation between Spain and the UK, including the establishment of coordinating committees as a forum for regular discussion between the competent authorities to monitor matters relating to employment and labour conditions; waste management, air quality, scientific research and fishing; and police and customs matters. Other than in relation to employment and labour conditions, the EU will be invited to participate in meetings of the coordinating committees.42

36.These coordinating committees will report on a regular basis to the Specialised Committee on Gibraltar. As well as examining these reports, the Specialised Committee will facilitate the implementation and application of the Protocol on Gibraltar, discuss any issues giving rise to difficulty raised by either side, and make recommendations to the Joint Committee on the functioning of the Protocol.43

37.As is the case in the provisions on Ireland/Northern Ireland and the Sovereign Base Areas in Cyprus, the Commission will represent the EU in the Specialised Committee on Gibraltar, but the Kingdom of Spain may request that the Commission be accompanied by its representative. However, no reference is made to the participation of the Government of Gibraltar.44

38.We call on the UK Government to confirm that the Government of Gibraltar will fully participate in (and where appropriate lead) the work of the Specialised Committee on Gibraltar and associated coordinating committees, and to explain the means by which it will do so.

Governance of the negotiations on the future relationship

39.The precise structure of the negotiations on the future relationship has yet to be set out. However, in July 2018, the EU’s Chief Brexit Negotiator, Michel Barnier, gave some indication of the Commission’s thinking when he presented to the Committee the following possible framework for the future partnership discussions.

Figure 1: EU/UK possible framework for the Future Partnership Discussions proposed by the European Commission (July 2018)

Diagram of possible framework for Future Partnership Discussions

Source: Task Force on Article 50 negotiations with the United Kingdom, Slide on the EU/UK Possible Framework for the Future Partnership Discussions (15 May 2018): https://ec.europa.eu/commission/sites/beta-political/files/eu-uk_possible_framework_for_the_future_relationship.pdf [accessed 6 March 2019]

40.The Political Declaration subsequently set out three substantive elements to the future relationship:

41.Part V of the Political Declaration sets out the steps that will be taken by the Parties to prepare for the negotiations.46 The 14 January 2019 joint letter from Presidents Tusk and Juncker subsequently expressed the EU’s commitment to:

42.The 11 March 2019 Joint Statement supplementing the Political Declaration, and Instrument relating to the Withdrawal of the UK from the EU, confirmed the two sides’ commitment, “immediately following the United Kingdom’s withdrawal … [to] take the steps necessary to begin formal negotiations”, including “by setting up their respective negotiating structures and discussing logistical arrangements”. The Joint Statement also set out both sides’ commitment expeditiously to identify those areas likely to require the greatest consideration, and the associated technical and legal issues that will need to be addressed, and to draw up a full schedule for the negotiations, taking into account the European Parliament elections (in May 2019) and the appointment of a new Commission (in the second half of 2019). The documents stated that “negotiations on the various strands of the future relationship will then proceed in parallel”, and that efforts should be “redoubled should the negotiations not be concluded within one year from the date of the United Kingdom’s withdrawal.”

43.The 11 March documents also stated that a specific negotiating track, to be “embedded in the overall negotiation structure”, will be established at the outset of negotiations, on alternative arrangements to replace the customs and regulatory alignment in goods elements of the Protocol on Ireland/Northern Ireland, including comprehensive customs arrangements, and “the potential of all existing and emerging facilitative arrangements and technologies to replace the backstop in whole or in part.” This strand will take account of progress in the wider negotiations, in particular on goods regulations and customs. This will involve consultation by both sides with “private sector experts, businesses, trade unions, the institutions established under the Good Friday or Belfast Agreement, and appropriate involvement of parliaments.”48

The high-level conference

44.Part V of the Political Declaration also envisages that a high-level conference will take place at least every six months from the date of UK withdrawal, to take stock of progress and agree, as far as possible, actions to move forward.49 The 11 March documents stated that progress concerning alternative arrangements to the backstop solution in the Protocol on Ireland/Northern Ireland will be assessed at the first high-level conference, and at each subsequent conference, “to ensure that the negotiations are concluded in good time.” Both sides also agreed “to convene immediately, upon the request of either party and at short notice, additional extraordinary high-level conferences at any moment.”50

45.Aside from any governance arrangements deriving from the still-to-be-determined structure of the negotiations, this appears to be the only formal intergovernmental mechanism thus far envisaged to oversee the negotiations on the future relationship (as opposed to oversight of the future relationship itself).

46.It has not been confirmed who will be the ‘principals’ in this high-level conference. On the EU side, this will be an early and important indicator of who within the EU institutions will have overall responsibility for the maintenance of future UK-EU relations. In that context, we note that on 11 March, President Juncker stated that the Commission’s team for the future relationship negotiations would be led by the EU’s Chief Brexit Negotiator, Michel Barnier.51

47.We await further details on the structure and governance of the negotiations on the future relationship, although we note that the Political Declaration proposes specific strands on an economic partnership, a security partnership, institutional and other horizontal arrangements. We also note the commitment to a specific negotiating track on alternative arrangements to the backstop solution in the Protocol on Ireland/Northern Ireland, and welcome the commitment by both sides within this track to engage with private sector experts, businesses, trade unions, the institutions established under the Belfast/Good Friday Agreement, and parliamentarians.

48.We welcome the commitment to a high-level conference at least every six months to review the progress of negotiations on the future relationship. We call on the Government to confirm who will lead the UK delegation. We note that the EU’s Chief Brexit Negotiator, Michel Barnier, will lead the Commission’s future relationship negotiating team. In that context, we urge the Government urgently to seek clarification from the EU on who will represent it in this high-level conference, and who will have overall responsibility for the maintenance of future UK-EU relations.

Governance of the future relationship

49.Part IV of the Political Declaration envisages a structure for governance of the future relationship, including “dialogue between the Parties at summit, ministerial and technical level, as well as at parliamentary level”. The summit and ministerial levels should oversee the future relationship, provide strategic direction and discuss opportunities for cooperation in areas of mutual interest, and “enable the partnership to evolve in response to changing and unforeseen circumstances”. The Declaration also calls for “specific thematic dialogues at ministerial and senior official level” as part of the economic and security partnerships, taking place “as often as is necessary for the effective operation of the future relationship”.52

50.We welcome the proposals for intergovernmental dialogue at summit, ministerial, official and technical level as part of the governance of the future UK-EU relationship. In particular, we welcome the acknowledgement of the potential for evolution of the relationship, and for thematic dialogue in relation to its specific strands. The closer the dialogue, the more likely it is to fulfil the aspiration of both sides for “an ambitious, broad, deep and flexible partnership”.

The Joint Committee on the future relationship

51.Paragraph 129 of the Political Declaration states that a Joint Committee will be established, to manage and supervise the implementation and operation of the future relationship, and to facilitate the resolution of disputes. It will comprise the Parties’ representatives at an appropriate level, establish its own rules of procedure, reach decisions by mutual consent, and meet as often as required. It could also establish sub-committees.53 Paragraph 132 of the Declaration states that “arrangements for dispute settlement and enforcement will be based on those in the Withdrawal Agreement”.54

52.While neither the Withdrawal Agreement nor the Political Declaration specify this in terms, the Joint Committees on the Withdrawal Agreement and on the future relationship appear to be envisaged as distinct entities. The Joint Committee on the Withdrawal Agreement will be established more quickly, for obvious reasons, but given that issues pertaining to the Withdrawal Agreement are likely to be long-lasting, the two Joint Committees (and their respective Specialised/Sub-Committees) will probably operate in parallel for a considerable period.

53.Moreover, paragraphs 129 and 132 seem to imply that the Rules of Procedure and modus operandi of the Joint Committee on the future relationship will draw on the precedent of the Joint Committee on the Withdrawal Agreement. In light of this, there may be scope for a streamlined approach: for instance, it may be practicable for the same principals to be involved in both Joint Committees, and for meetings to be coordinated.

Analysis of the Joint Committee and Specialised Committee models

54.The proposed Joint Committees (and the Specialised Committees) are the most significant, and the most fleshed out, of the new formal inter-institutional governance structures. Joint Committees are a common tool in international agreements (including those made by the EU), and two examples are set out in Boxes 2 and 3. However, they are less familiar in the UK.

Box 2: The EEA Joint Committee

This Joint Committee is responsible for the management of the EEA Agreement. The parties are the EU, represented by the European External Action Service (EEAS),55 and EEA EFTA States, represented by their Ambassadors to the EU. The Joint Committee “typically meets six to eight times a year”, and is “a forum in which views are exchanged and decisions are taken by consensus to incorporate EU legislation into the EEA Agreement.”56 Its Rules of Procedure are published,57 as are agendas, conclusions (upon agreement with the EU), a list of adopted Joint Committee Decisions (JCDs),58 an annual report59 and a schedule of meetings.60 Minutes are restricted, but can be requested.

Four sub-committees assist the Joint Committee (on the free movement of goods; the free movement of capital and services including company law; the free movement of persons; and horizontal and flanking policies). Numerous expert and working groups report to these sub-committees.

Box 3: EU-Switzerland Joint Committees

There are over 20 Joint EU-Swiss Committees, covering the majority of bilateral agreements between the parties. According to the Swiss Government: “The joint committees serve as a platform for the exchange of information, for advice and for consultation. They also play a key role should differences of opinion arise. Decisions are made unanimously within the scope of the powers afforded by the respective agreement. Neither Switzerland nor the EU can amend the agreements unilaterally. Any changes always require the consent of both contracting parties. Automatic amendment is not possible.”61

Switzerland and the EU are currently in negotiations over a new overarching institutional framework agreement, one key element of which would be a new dispute resolution procedure. This may result in significant changes to the current Joint Committee structure.

55.The EEA and Swiss examples illustrate the scope to adapt the format and procedure of the Joint Committee model. Much depends on the commitment to dialogue of either side, and the strength and stability of the bilateral relationship. Joint Committee meetings in both the EEA and Swiss examples can often be formal, straightforward (and therefore brief) affairs. It is possible that the UK-EU Joint Committees will follow the same model. Yet as the primary means of formal communication and exchange between the parties, the Joint Committee could be more than the sum of its parts. It will be, in short, what the two parties decide to make of it.

56.Sir Ivan Rogers, former UK Permanent Representative to the EU, told us:

“There has to be an overarching political appetite from the top, in the institutions and Member States and here … to say that we must end up with a world where we cannot just treat the Brits as any other third-country partner … You need some sort of privileged relationship outside the room, but the construction of that needs a lot of thought. Why would Prime Minister-level people, or Foreign Secretary-level people, really devote energy and attention to that unless it really matters? If it is just some sort of technocratic make-work exercise where, on a six-monthly routine, they invite us in on a Saturday afternoon, it is obviously not going to cut it.”62

57.The effectiveness of the Joint Committees envisaged under the Withdrawal Agreement and Political Declaration, and the bodies that will report to them, will depend on:

2 European Union Committee, Brexit: the Withdrawal Agreement and Political Declaration (24th Report, Session 2017–19, HL Paper 76)

3 The Government has consistently described the period immediately following the UK’s exit from the EU as an ‘implementation period’. Successive drafts of the Withdrawal Agreement, on the other hand, have referred to a ‘transition period’, and although Article 126 of the current text refers to “a transition or implementation period”, the terms ‘transition’ is still used throughout the text. We therefore use the term ‘transition period’ in this report.

4 Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (11 March 2019), Articles 126–7, 132: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/785114/11_March_WA_-_WEB_VERSION.PDF [accessed 13 March 2019]

5 Withdrawal Agreement (11 March 2019), Article 127(5). The UK can also be compelled to participate by the Council in such measures where the UK’s non-participation “in the amended version of an existing measure makes the application of that measure inoperable” for the other EU Member States (Article 4a of Protocol (No 21) of the Treaty on the Functioning of the European Union).

6 European Union Committee, Brexit: the Withdrawal Agreement and Political Declaration (24th Report, Session 2017–19, HL Paper 76), paras 118–122

7 Withdrawal Agreement (11 March 2019), Article 128(5)

8 Withdrawal Agreement (11 March 2019), Article 128(5)(a)

9 Withdrawal Agreement (11 March 2019), Article 128(5)(b)

10 Withdrawal Agreement (11 March 2019), Article 130(2)

11 Withdrawal Agreement (11 March 2019), Article 164. See European Union Committee, Brexit: the Withdrawal Agreement and Political Declaration (24th Report, Session 2017–19, HL Paper 76), paras 24–29. We analyse the operation of Joint Committees at paras 54–57 and Boxes 2 and 3.

12 Withdrawal Agreement (11 March 2019), Annex VIII, Rule 1

13 Proposal for a Council Decision on the conclusion of 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, COM (2018) 834

14 Withdrawal Agreement (11 March 2019), Article 164 and Annex VIII, Rules 4 and 9

15 Withdrawal Agreement (11 March 2019), Article 166

16 Withdrawal Agreement (11 March 2019), Annex VIII, Rule 2

17 Withdrawal Agreement (11 March 2019), Annex VIII, Rule 10

18 Withdrawal Agreement (11 March 2019), Annex VIII, Rule 8(5)

19 Withdrawal Agreement (11 March 2019), Article 164(4)

20 Save in relation to Part One (the Common Provisions, including definitions, scope etc.), Part Four (the Transition) and Part Six (the Institutional and Final Provisions) of the Withdrawal Agreement (11 March 2019).

21 Withdrawal Agreement (11 March 2019), Article 164(5)(d)

22 See European Union Committee, Brexit: the Withdrawal Agreement and Political Declaration (24th Report, Session 2017–19, HL Paper 76) and European Union Committee, Dispute resolution and enforcement after Brexit (15th Report, Session 2019–19, HL Paper 130).

23 Withdrawal Agreement (11 March 2019), Article 132(1)

24 Withdrawal Agreement (11 March 2019), Protocol on Ireland/Northern Ireland, Articles 6–7, 9, 13–15 and 20.

25 Withdrawal Agreement (11 March 2019), Article 165. See European Union Committee, Brexit: the Withdrawal Agreement and Political Declaration (24th Report, Session 2017–19, HL Paper 76), paras 30–33.

26 Withdrawal Agreement (11 March 2019), Article 164

27 See paras 21, 33 and 37

28 Withdrawal Agreement (11 March 2019), Article 165(3)

29 Withdrawal Agreement (11 March 2019), Article 165 and Annex VIII, Rule 13

30 Withdrawal Agreement (11 March 2019), Protocol on Ireland/Northern Ireland, Article 16

31 Withdrawal Agreement (11 March 2019), Protocol on Ireland/Northern Ireland, Article 17

32 Council decision on the conclusion of 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, COM (2018) 834

33 Letter from Rt Hon. Theresa May MP to President Tusk and President Juncker, 14 January 2019: https://www.consilium.europa.eu/media/37878/20190114-letter-may-to-tusk-juncker-brexit.pdf [accessed 6 March 2019]

34 Letter from Rt Hon. Theresa May MP to President Tusk and President Juncker, 14 January 2019: https://www.consilium.europa.eu/media/37878/20190114-letter-may-to-tusk-juncker-brexit.pdf [accessed 6 March 2019]

35 Instrument relating to 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 (11 March 2019): https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/785121/2019–03-11_Instrument.pdf [accessed 14 March 2019]

36 Oral evidence taken on 12 February 2019 (Session 2017–19), QQ 5–6 (Dr Katy Hayward, David Henig, Marie Demetriou QC and Victoria Hewson)

37 Instrument relating to the Withdrawal Agreement (11 March 2019)

38 Oral evidence taken on 12 February 2019 (Session 2017–19), QQ 5–6 (Dr Katy Hayward, David Henig, Marie Demetriou QC and Victoria Hewson)

39 Letter from Ulster Unionist Party to Lord Boswell of Aynho, 21 February 2019: https://www.parliament.uk/documents/lords-committees/eu-select/interinstitutional-relations-inquiry/UUP-response.pdf [accessed 19 March 2019]

40 Withdrawal Agreement (11 March 2019), Article 165 and Protocol relating to the Sovereign Base Areas of the United Kingdom of Great Britain and Northern Ireland in Cyprus

41 Council decision on the conclusion of 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, COM (2018) 834

42 Withdrawal Agreement (11 March 2019), Protocol on Gibraltar

43 Ibid.

44 Council decision on the conclusion of 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, COM (2018) 834

45 Political Declaration setting out the framework for the future relationship between the European union and the United Kingdom (11 March 2019): https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/785113/11_March_PD_-_WEB_VERSION.pdf [accessed 18 March 2019]

46 Political Declaration (11 March 2019), Part V

47 Letter from President Tusk and President Juncker to Rt Hon Theresa May MP, 14 January 2019 https://www.consilium.europa.eu/en/press/press-releases/2019/01/14/joint-letter-of-president-tusk-and-president-juncker-to-theresa-may-prime-minister-of-the-united-kingdom/ [accessed 6 March 2019]

48 Instrument relating to the Withdrawal Agreement (11 March 2019). See further paras 135 and 138.

49 Political Declaration (11 March 2019), Part V

50 Instrument relating to the Withdrawal Agreement (11 March 2019)

51 President Jean-Claude Juncker, Remarks at today’s joint press conference with UK Prime Minister Theresa May, 11 March 2019: http://europa.eu/rapid/press-release_SPEECH-19-1635_en.htm [accessed 14 March 2019]

52 Political Declaration (11 March 2019), Part IV

53 Political Declaration (11 March 2019), para 129

54 Political Declaration (11 March 2019), para 132

55 Or, before the Lisbon Treaty came into force in 2010, by the Commission.

56 European Free Trade Association, EEA Joint Committee: https://www.efta.int/eea/eea-institutions/eea-joint-committee [accessed 6 March 2019]

57 Decision of the EEA Joint Committee No 1/94 of 8 February 1994 Adopting the Rules of Procedure of the EEA Joint Committee, OJ L 85 (30 March 1994), p 60

58 See for example for 2019: European Free Trade Association, Overview of adopted JCDs (8 February 2019): https://www.efta.int/sites/default/files/documents/legal-texts/eea/other-legal-documents/List-Adopted-Joint-Committee-Decisions/2019%20list%20of%20Adopted%20Joint%20Committee%20Decisions.pdf [accessed 6 March 2019]

59 European Free Trade Association, Annual Report of the EEA Joint Committee 2019: The Functioning of the EEA Agreement (Article 94(4)) (4 February 2019): https://www.efta.int/sites/default/files/documents/eea/eea-institutions/18-4960%20EEA%20Joint%20Committee%20-%208%20February%202019%20-%20Annual%20Report%202018.pdf [accessed 6 March 2019]

60 European Free Trade Association, Standing Committee / Joint Committee meeting schedule: first half of 2019: https://www.efta.int/sites/default/files/documents/eea/eea-institutions/Joint-Committee-meeting-schedule-first-half-2019.pdf [accessed 6 March 2019]

61 Swiss Confederation, Federal Department of Foreign Affairs, Switzerland and the European Union (2016): https://www.eda.admin.ch/dam/eda/en/documents/publications/EuropaeischeAngelegenheiten/Schweiz-und-EU_en.pdf [accessed 6 March 2019]

62 Oral evidence taken on 20 February 2019 (Session 2017–19), Q 8 (Sir Ivan Rogers)



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