Brexit: the revised Withdrawal Agreement and Political Declaration Contents

Chapter 1: Introduction

Overview

1.On 19 October 2019 the Government laid before Parliament revised texts 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 Earlier versions of both documents had previously been laid before Parliament on 26 November 2018.3

2.This report provides an analysis of both documents, in their latest versions. It draws heavily on the report we published on 5 December 2018, analysing the original texts, with a view to informing debates and votes that were then expected to take place over the following week.4 Despite the delay and controversy of the past year, much of the latest text is unchanged, and our original analysis of the provisions on citizens’ rights, the financial settlement, and governance and dispute resolution, remains largely valid. Where these sections of the Agreement are concerned, this report therefore reproduces much of the content of our 2018 report. Our analysis of the latest text of the Protocol on Ireland/Northern Ireland, on the other hand, is almost entirely new, and our comments on the revised Political Declaration have been substantially updated.

3.Under 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. The Government originally scheduled these debates to take place the same day as the documents were laid, Saturday 19 October 2019, but while the House of Lords duly agreed a ‘take note’ motion, the House of Commons voted for an amendment to the motion to approve the Agreement, which stated that the House of Commons “withholds approval unless and until implementing legislation is passed”. The Government then introduced the European Union (Withdrawal Agreement) Bill,5 clause 32 of which would have repealed the requirements contained in Section 13 of the 2018 Act. Clause 31 of the revised text of the Bill, published on 19 December 2019, again seeks to repeal section 13 of the 2018 Act, while clause 32 would waive the requirements for parliamentary scrutiny contained in Part 2 of the Constitutional Reform and Governance Act 2010.

4.The effect of these provisions is that no parliamentary procedure, beyond the enactment of the European Union (Withdrawal Agreement) Bill, will be required prior to ratification by the Government of the Withdrawal Agreement. That Agreement is, nevertheless, one of the most important international agreements that the United Kingdom has entered into in recent history, and this report has been prepared by the European Union Select Committee with a view to promoting informed debate on the Agreement, both in Parliament and beyond.

5.The report is necessarily selective. We comment on particularly significant elements of the Withdrawal Agreement and the Political Declaration. We signpost areas where further explanation might be required and pose questions to the Government. And while this report is not primarily focused on the European Union (Withdrawal Agreement) Bill, we touch on the Bill in various places, and include in an appendix the letter we sent to the Leader of the House, Baroness Evans of Bowes Park, on 4 November 2019, in which we raised a number of questions about the Bill in the form in which it was then before Parliament.

Timeline

6.On 29 March 2017 the then Prime Minister, Rt Hon Theresa May MP, 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”.6

7.In summer 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 relating 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.

8.On 8 December 2017 the EU and the UK published a Joint Report, setting out areas of agreement on the three withdrawal issues, as well as on 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”.7

9.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”.8 This agreement was the genesis of what became known as the ‘Northern Ireland backstop’, the Protocol on Ireland/Northern Ireland that was attached to the November 2018 text of the Withdrawal Agreement.

10.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 green, yellow and white colour-coding.9

11.No further drafts of the Withdrawal Agreement were published between March and November, but on 19 June 2018 a Joint Statement was published, outlining further progress in the negotiations.10

12.A final draft Withdrawal Agreement was published on 14 November 2018 alongside an ‘outline’ of the Political Declaration on the future relationship.11 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 2018 and the final text (no longer a ‘draft’) was laid before Parliament the following day.

13.It was envisaged that the House of Commons would vote on the Withdrawal Agreement on 11 December 2018, but faced with the prospect of defeat the Government decided the day before the vote to withdraw its motion. The first ‘meaningful vote’ therefore took place only on 15 January 2019, when the motion to approve the Agreement was defeated by 432 votes to 202. A second ‘meaningful vote’ on 12 March also resulted in defeat for the Government, as did a third, on 29 March.

14.On 19 August 2019 the new Prime Minister, Rt Hon Boris Johnson MP, sent a letter to the President of the European Council, Donald Tusk, indicating his wish to renegotiate elements of the Withdrawal Agreement. He confirmed that the changes sought by the Government related primarily to the Protocol on Ireland/Northern Ireland. But he noted also that the Government’s “desired final destination for a sustainable long-term relationship with the EU” had changed, making it clear that it excluded membership of the EU’s single market or customs union. He accordingly said that he could not “continue to endorse” the commitment in the December 2017 Joint Report to “full alignment”.

15.Following the Prime Minister’s letter negotiators from the EU and UK met, and on 17 October the new Protocol on Ireland/Northern Ireland was published. The full consolidated text of the Withdrawal Agreement and a revised Political Declaration on future relations were laid before Parliament on 19 October and, as we have noted, later that same day the House of Commons passed a motion declining to approve the Agreement until implementing legislation had been passed. The Government duly introduced that legislation, the European Union (Withdrawal) Bill, on 21 October. The House of Commons voted to give the Bill a second reading the following day, but then voted against the Government’s programme motion, after which progress on the Bill was paused. The dissolution of Parliament followed on 6 November 2019, and a revised Bill was published on the day of the State Opening of Parliament following the general election, 19 December 2019.

Government engagement

16.As we have noted, our report on the previous iteration of the Withdrawal Agreement and Political Declaration was published on 5 December 2018. By convention, the Government response to our report should have been provided within two months—no later than 5 February 2019. But no response has been forthcoming.

17.Government engagement has been of a variable standard throughout the Brexit process. There have been positive elements, and we are grateful to the current Secretary of State for Exiting the European Union, Rt Hon Stephen Barclay MP, for his constructive approach on the three occasions he has appeared before the Committee; we are also grateful to the Chancellor of the Duchy of Lancaster, Rt Hon Michael Gove MP, for attending our meeting to discuss ‘no deal’ planning on 9 September 2019. Nevertheless, the Government’s failure to respond formally, in writing, to the many important points raised in our analysis of the Withdrawal Agreement and Political Declaration—documents of the highest importance to the future of the United Kingdom—is a matter of regret.

This report

18.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 or implementation 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.

19.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, as well as on the implementing legislation, the European Union (Withdrawal Agreement) Bill.


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, presented to Parliament pursuant to Section 1 of the European Union (Withdrawal) Act (No. 2) 2019 and Section 13 of the European Union (Withdrawal) Act 2018 (19 October 2019): https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/840655/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 25 October 2019]

2 Political Declaration setting out the framework for the future relationship between the European union and the United Kingdom (19 October 2019): https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/840656/Political_Declaration_setting_out_the_framework_for_the_future_relationship_between_the_European_Union_and_the_United_Kingdom.pdf [accessed 25 October 2019]

4 European Union Committee, Brexit: the Withdrawal Agreement and Political Declaration (24th Report, Session 2017–19, HL Paper 245)

5 European Union (Withdrawal Agreement) Bill (Session 2019): https://services.parliament.uk/Bills/2019–20/europeanunionwithdrawalagreement.html [accessed 6 November 2019]

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

7 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 25 October 2019]

8 Ibid., para 49

9 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 25 October 2019]

10 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 25 October 2019]




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