In 2019, the House of Commons voted against Theresa May’s Brexit deal three times. In October, the Commons withheld approval for the revised deal negotiated with the EU by the Johnson Government.

At the end of October, the UK and EU agreed to delay the scheduled Brexit date, for a third time, to 31 January 2020. Boris Johnson proposed the election as a way of breaking the Brexit deadlock.

This Insight examines the possible next steps on Brexit in the new Parliament.

Brexit options

The options for withdrawal from the EU will remain much the same as they were before the election: leave the EU with an agreement, leave without a deal or revoke the Article 50 notification and remain in the EU.

The choice could be delayed by another Article 50 extension (if agreed by the UK and EU). This would be necessary if the UK Government wanted to renegotiate the withdrawal deal again, or if another Brexit referendum was to be held (which might lead to Article 50 revocation). But the EU is unlikely to agree to repeated extensions that leave the UK’s status within the EU unresolved, meaning the choice would have to be made sooner or later.

Leaving the EU with an agreement

Before the UK can leave the EU with an agreement, Parliament needs to pass legislation to implement the agreement in UK law. The European Parliament also needs to give consent.

The Conservative party pledged to take the UK out of the EU on 31 January 2020 on the basis of the revised Withdrawal Agreement (WA) negotiated in October 2019.

That agreement would be ratified and implemented by Parliament passing the EU (Withdrawal Agreement) Bill (known as the WAB).

At present, there is a legal requirement to hold a separate ‘meaningful vote’ on both the WA and the accompanying Political Declaration on the future framework of the EU-UK relationship. The version of the WAB published in October 2019 would have repealed that requirement.

The version of the WA agreed by the Johnson Government was largely identical to the one agreed by Theresa May’s Government in November 2018. The main difference was a revised protocol on Ireland/Northern Ireland. The unchanged provisions of the WA include the following:

  • A transition (or implementation) period until the end of December 2020. During this period, EU rules – with a few exceptions – will continue to apply to the UK. This provides a bridging period while the UK and the EU negotiate a new relationship. The period can be extended for one or two years. During this time the UK will no longer have representation in EU institutions
  • Provisions on citizens’ rights to give permanent residence rights to UK citizens living in EU Member States and to EU citizens living in the UK at the end of the transition period
  • Separation provisions to allow processes that are ongoing at the end of the transition period to come to an orderly end. For example, where European arrest warrants have been issued or where goods have been placed on the market (enabling continued circulation until they have reached their end user)
  • Financial provisions to settle existing obligations (the ‘divorce bill’). Future UK payments will reflect commitments and liabilities arising from its time as a Member State
  • A joint EU-UK committee to oversee the WA, with an independent arbitration panel in the case of disputes
  • Protocols on the Sovereign Base Areas in Cyprus and Gibraltar

Leaving the EU without a deal

A no-deal Brexit remains the default scenario if the UK and the EU are unable to agree a deal that can be ratified in both the UK and EU Parliaments. Further extensions to the Article 50 period could delay but not avert this outcome. Without a ratified withdrawal agreement, on the assumption the EU will not agree to extensions indefinitely, a no-deal Brexit can only be averted by revoking the Article 50 notice.

In a no-deal scenario, the current UK-EU relationship would cease to apply. Trade between the UK and EU would fall back to World Trade Organization rules. The European Commission has stated that before further talks can take place, it would expect the UK to address the three main issues covered by the WA: citizens rights’ provisions, the financial settlement and the Northern Ireland-Ireland border.

Negotiating the future relationship

The Political Declaration (PD) set outs a possible framework for the future relationship between the UK and the EU, and covers both an economic and a security partnership. The detail is still to be negotiated. The PD is not a legally binding document and it is possible for an alternative relationship to develop.

The revised PD, agreed in October 2019, stressed that the basis of the future economic relationship will be a free-trade agreement. References in the November 2018 PD to a close UK alignment with EU rules were removed.

The revised PD suggests that the UK and EU will need to maintain certain “level playing field” standards to ensure fair competition between the UK and EU given their geographical proximity. These would be in taxation, environmental and employment standards, and state aid and competition policy. But the precise nature of any commitments would depend on the scope of the future relationship. In October, the EU’s chief Brexit negotiator, Michel Barnier, indicated that UK access to EU markets will be “proportional” to commitments to common rules.

Negotiations on the future relationship will commence as soon as possible after the UK’s withdrawal from the EU.

Extending the transition period

If the UK leaves the EU under the terms of the WA in early 2020, the Government will have the option of asking for an extension of the transition period. Currently, transition is due to end on 31 December 2020, but it can be extended for a further “one or two years.” An extension would need to be agreed by both the UK and EU, and the decision needs to be taken by 1 July 2020.

The Conservative Party manifesto stated that a Johnson Government would negotiate a trade agreement with the EU in 2020 and it would not extend the implementation period beyond December 2020. But the Labour Party and others have warned of the risk of a no-deal scenario at the end of 2020, if a future relationship framework is not ready for implementation and the transition period is not extended. Legal arrangements for regulating the UK-EU relationship could cease at this point.

Numerous commentators have expressed scepticism about the chances of a new UK-EU relationship framework being in place by the beginning of 2021. Recent EU trade agreements have taken four to seven years to conclude. International treaties can be applied provisionally ahead of ratification. The October PD refers to the European Commission’s readiness to apply relevant aspects of the future UK-EU relationship provisionally at the end of 2020, but that would still require some form of agreement by then.

Ratification of a future agreement could take time. If a so-called ‘mixed agreement’ is proposed (one which goes beyond the EU’s exclusive competence), ratification by national parliaments within EU Member States – and in some cases their regional parliaments – is required.

Further reading

Insights for the new Parliament

This article is part of our series of Insights for the new Parliament. This series covers a range of topics that will take centre stage in UK and international politics in the new Parliament.