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Agreement is reached on withdrawal and a framework for future relations

The Brexit negotiators – Michel Barnier’s Article 50 Task Force for the EU and the UK Government – reached agreement on a Withdrawal Agreement on 14 November 2018, and the 27 other EU Member States endorsed it on 25 November. The Treaty on European Union sets out the exit process in Article 50, including how the EU institutions ratify such an agreement. UK ratification involves a vote on the negotiated text before a Bill is introduced in Parliament which will pave the way for its ratification.

The ‘meaningful vote’

The so-called ‘meaningful vote’ on the Withdrawal Agreement was held on 15 January – postponed from 11 December – and as most had predicted, Parliament voted against the Agreement and Political Declaration (by 432 votes to 202). One of the main obstacles for the UK Parliament was the Protocol on Ireland/Northern Ireland which provides for a ‘backstop’. The ‘backstop’ is a series of measures intended to ensure goods can move across the border between Ireland and Northern Ireland without checks and the associated physical infrastructure that are the norm at international borders outside the EU.

Objections to the Withdrawal Agreement

Other objections from MPs to the negotiated Withdrawal Agreement included the payment to the EU of £39 billion, the loss of UK control over EU legislation that it would be required to implement during a 21-month (or possibly longer) transition period, and the inability for new UK trade agreements with third countries to enter into force until after the transition period.

EU ‘clarifications’ and ‘assurances’

The Prime Minister had sought ‘clarifications’ and ‘assurances’ from the EU that the backstop would not or could not become permanent. The European Council stated in its Conclusions in December 2018, and has been willing to give further assurances, that the backstop is not intended to be permanent and that the aim is to agree a future relations agreement as soon as possible which will enter into force after the end of the transition/ implementation period. This is already set out in the Protocol itself and elsewhere in the Withdrawal Agreement.

Letters have been sent by the UK and the EU, setting out UK concerns and EU responses with assurances on the intention behind the use of the backstop respectively. The EU also agreed to consider the provisional application of parts of the future relations agreement if one has not been concluded or fully ratified in time. Theresa May made a statement to the Commons on 14 November setting out what the EU letter had clarified. The Attorney General also confirmed that European Council Conclusions had legal force in international law.

But there are still UK concerns that the EU assurances do not equate to legally binding guarantees, and that the backstop could enter into force and remain indefinitely.

What might the EU offer the UK?

The European Commission has said it will not re-open negotiations or change the negotiated text. The text of the Withdrawal Agreement and Political Declaration have already been sent to the European Parliament for its consideration.

But can or will the EU offer the UK more to facilitate their approval by the UK Parliament? In theory, the EU can offer the UK whatever it wishes – but is unlikely to change its mind about the current text. It will not agree to a time-limited backstop, because a backstop that expires before it is replaced by a permanent structure is not actually a ‘backstop’.

What the EU might offer, apart from further assurances along current lines, is a short extension of the Article 50 negotiating period. But this would be purely to give the UK more time to settle internal differences rather than to re-open the negotiated Agreement.

An Article 50 extension could also be sought for a General Election to be held. A longer extension would be required in order to stage another referendum. However, this would cause complications given that it would most likely run past the European Parliament elections in May, which are currently being planned without UK participation.

After the rejection of the Withdrawal Agreement by the UK Parliament, Michel Barnier told the European Parliament plenary that the risk of ‘no deal’ was now much greater and more preparations were needed.

The EU has continued to insist that the WA is the best agreement possible, but there are indications that it may change its position on the content of the WA if the UK changes its ‘red lines’.

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