Written by Izabela Bacian with Fernando Hortal Foronda,
Leaders of the 27 EU Member States (EU-27) endorsed the agreement on the withdrawal of the United Kingdom (UK) from the European Union (EU) with a revised Protocol on Ireland/Northern Ireland, as well as a revised political declaration on the framework of the future EU-UK relationship. They invited the Commission, the European Parliament and the Council to take steps to ensure the entry into force of the withdrawal agreement by 1 November 2019. Following postponement of the House of Commons vote to approve the deal, the President of the European Council, Donald Tusk, will consult the EU-27 Heads of State or Government as to whether to agree to the request he received on 19 October for an extension of the Article 50 negotiation period to 31 January 2020.
1. UK Withdrawal Agreement
On 17 October 2019, the European Commission and United Kingdom reached agreement at negotiators’ level on a revised Protocol on Ireland/Northern Ireland and a revised political declaration on the framework of the future EU-UK relationship. Both were endorsed by the European Council (Article 50) at its meeting later the same day. The revised Protocol provides a legally operative solution that avoids a hard border on the island of Ireland, protects the all-island economy and the Good Friday (Belfast) Agreement. Contrary to the previous solution (the ‘backstop’), the revised Protocol no longer presents an insurance policy that applies unless and until the EU and the UK conclude a subsequent agreement that replaces it in part or in full. Instead, the agreed solution will continue to apply unless it fails to receive the democratic support of the Northern Ireland Assembly.
Throughout the three-year long negotiations, several proposals have been made to address the unique situation on the island of Ireland and avoid the creation of a hard border between Ireland and Northern Ireland. These have included proposals under which Northern Ireland would remain part of both the single market and the EU customs union, or more recently where the whole of the UK remained part of a single customs union with the EU.
The latest proposal, agreed on 17 October 2019, (detailed in Box 1) is based on four main elements: 1) Northern Ireland remains aligned to a limited set of EU rules, notably relating to goods, and will still apply the Union Customs Code for goods entering its territory. There will be no checks on goods at the border or on the island; 2) Regarding customs duties, Northern Ireland remains within the UK’s customs territory. Differentiated treatment would be applied between goods entering Northern Ireland headed for its market and goods bound for the EU market, with the latter paying EU tariffs; 3) To maintain the integrity of the single market and avoid distortions of competition, Northern Ireland will remain under EU rules for value added tax (VAT), while the UK will collect the VAT; and finally, 4) To ensure long-term democratic support for the application of relevant EU rules in Northern Ireland, the consent of the Northern Ireland representatives will be required after an initial four years following the entry into force of the Protocol (after the end of the transition period, in theory December 2020). Consent will be required periodically to extend the arrangements: where that consent has previously been given with a cross-community majority, eight years thereafter, but where only a simple majority has been found, four years thereafter. Should consent not be given, the arrangements would cease to apply to Northern Ireland two years later.
| Issue | Revised Protocol on Ireland/Northern Ireland |
| Good Friday (Belfast) Agreement | The Protocol provides a legally operative solution that avoids a hard border on the island of Ireland, protects the all-island economy and the Good Friday (Belfast) Agreement in all its dimensions. |
| Regulatory compliance for goods | Northern Ireland will remain aligned to a limited set of rules related to the EU’s single market in order to avoid creating a hard border on the island of Ireland. This will concern legislation on goods, food safety and animal and plant health measures (sanitary and phytosanitary), rules on agricultural production and marketing, VAT and excise in respect of goods and state aid rules. Northern Ireland will remain part of the UK’s VAT area. The UK will charge reduced rates of VAT in Northern Ireland on products for which the Irish VAT rate is lower. |
| Consent of Northern Ireland | The Protocol is a fully legally operative solution that will continue to apply unless it fails to receive the democratic support of the Northern Ireland Assembly. The Assembly will be asked to provide its consent for the Protocol four years after the end of the transition period and every eight or four years thereafter, depending on whether a cross-community majority or only a simple majority is obtained. This consent will concern issues of regulatory alignment on goods and customs, the single electricity market, VAT and state aid. |
| Customs | Northern Ireland is part of the customs territory of the United Kingdom. It will be able to benefit from participation in the UK’s independent trade policy. While Northern Ireland will leave the EU Customs Union, the Union Customs Code will continue to apply to all goods entering Northern Ireland. No checks or controls will be necessary on the island of Ireland. |
| Customs duties | EU customs duties will apply to goods entering Northern Ireland only if those goods pose a risk that they will subsequently enter the EU single market. The Joint Committee will establish, before the end of the transition period, the criteria necessary to make that determination. For goods from third countries that are not at risk of entering the EU, customs duties in Northern Ireland will be the same as in other parts of the UK. |
| Revised political declaration | |
| Nature of future relationship | The precise nature of commitments should be commensurate with the scope and depth of the future relationship and the economic connectedness of the parties. Parties should uphold the common high standards applicable in the EU and UK at the end of the transition period in the areas of state aid, competition, social and employment standards, environment, climate change, and relevant tax matters. |
| Level playing field | The precise nature of commitments should be commensurate with the scope and depth of the future relationship and the economic connectedness of the parties. Parties should uphold the common high standards applicable in the EU and UK at the end of the transition period in the areas of state aid, competition, social and employment standards, environment, climate change, and relevant tax matters. |
2. Future relations with the UK
In the Article 50 meeting’s conclusions, the European Council reiterated its gratitude to EU Chief negotiator, Michel Barnier, ‘for his tireless efforts and for his contribution to maintaining unity among EU-27 Member States throughout the negotiations’. The European Council restated its determination to pursue as close a political partnership as possible with the UK. Nevertheless, negotiations on ‘a balanced, ambitious and wide-ranging free trade agreement’ depend on ‘sufficient guarantees for a level playing field‘, as stressed in the European Council guidelines. The EU-27 leaders committed to maintaining the future relationship with the UK as an item for discussion at each formal European Council meeting.
Regarding the content of the political declaration, the UK has indicated that it would be pursuing the negotiation of a free trade agreement, eliminating the possibility of joining the EU customs union in the future, and aiming for a higher level of regulatory divergence from the EU.
3. Procedure in the UK Parliament
In the meantime, UK Prime Minister Boris Johnson put forward a motion for the House of Commons to approve the withdrawal agreement and the political declaration on Saturday 19 October. This was to comply with two key pieces of legislation: 1) the European Union (Withdrawal) Act 2018, which states that the ratification of the withdrawal agreement requires the agreement and the political declaration to be approved by a resolution in the House of Commons; and 2) the European Union (Withdrawal) (No 2) Act 2019 (commonly known as the Benn Act). The latter states that the House of Commons must either agree to the withdrawal agreement or agree to leave the EU without a withdrawal agreement; and should the House fail to agree to either of these scenarios by 19 October, it requires the Prime Minister to request an extension, to 31 January 2020, of the negotiating period under Article 50(3).
At its sitting on 19 October, the House of Commons adopted an amendment, the ‘Letwin Amendment’ (proposed by Conservative MP, Sir Oliver Letwin). This amendment delays approval of the withdrawal agreement unless and until implementing legislation (referred to as the Withdrawal Agreement Bill) is passed. Given this delay, and to comply with the Benn Act, a letter was sent to European Council President Donald Tusk later the same day, requesting an extension of Article 50 to 31 January 2020. At the same time, Johnson sent a second letter deploring the ‘corrosive impact of the long delay on delivering on the mandate of the British people’ as expressed in the 2016 referendum. Johnson committed to put the necessary legislation forward without delay, so that a vote in the House of Commons could still take place in the week beginning 21 October. On Monday of that week, the Speaker of the House of Commons, John Bercow, rejected a motion by the Government aimed at holding another meaningful vote on the agreement, on the basis that the motion was of the same substance as two days earlier, and without any change in circumstances, and thus proceeding in this way ‘would be repetitive and disorderly’. Subsequently the government introduced the Withdrawal Agreement Bill on 21 October, and proposed an accelerated timetable to complete all stages of its passage in the House of Commons by the end of that week.
The current Conservative Party UK government has a minority of votes in the House of Commons. Despite the Conservative-Democratic Unionist Party (DUP) agreement under which the DUP has supported the government, the DUP has announced that its MPs will vote against the deal, expressing concerns about the negative impact of the deal on Northern Ireland’s economy and the Belfast Agreement political settlement, based on the consent principle. Close cooperation on Brexit between the DUP and the European Research Group (ERG) within the Conservative party, may lead some ERG Conservative MPs to vote against the deal. However, Johnson may be able to build a majority if a sufficient number of former Conservative MPs, other independents and some Labour MPs support the deal.
4. Procedure in the EU and consultation on a further extension
The EU-27 leaders invited the Commission, the European Parliament and the Council to take the necessary steps to ensure the entry into force of the withdrawal agreement by 1 November 2019. Following the UK request for a further extension, European Council President Donald Tusk responded that he would ‘now start consulting with EU leaders on how to react’. The previous request for an extension had generated differences in opinion among Member States, with a minority led by France calling for a short extension, and a larger number favouring a longer period.
While Johnson has offered to attend another European Council meeting to discuss the situation, EU‑27 leaders have not confirmed this. Should a consensus arise on the duration of the extension, the decision could be taken by written procedure, without convening another European Council (Article 50) meeting. Some Member States, notably Germany, have indicated openness to a short technical extension.
In the meantime, on 21 October, the Scottish and Welsh First Ministers, Nicola Sturgeon and Mark Drakeford, sent a letter to Donald Tusk calling for an extension long enough to ensure proper scrutiny of the Withdrawal Agreement by both parliaments, as well as sufficient time for a referendum, which both of the signatories favour, to be held.
The Council has given its authorisation for signature, and the agreement has been sent to the European Parliament for its consent. The European Parliament’s Brexit Steering Group, the body coordinating the Parliament’s approach in the negotiations with the UK, met to examine the deal on 21 October 2019. The rapporteur, Guy Verhofstadt, appointed by Parliaments’ Constitutional Affairs Committee (responsible for the consent procedure) will in due course draw up a recommendation for Parliament on whether to approve the withdrawal agreement.
The European Parliament’s consent is given by a simple majority vote. Following Parliament’s consent, the Council may conclude the agreement by ‘super’ qualified majority (at least 72 % of the participating Member States, comprising at least 65 % of their population).
Statement by the President of the European Parliament
At the European Council meeting on 17 October, EP President David Maria Sassoli (S&D, Italy) welcomed the agreement reached with the UK and also expressed his gratitude to the EU’s Chief Negotiator, Michel Barnier, for the results achieved. He announced that the European Parliament would immediately begin detailed examination of the terms and content of the agreement, to ensure its coherence with the EU and its citizens’ interests.
Following a meeting of the Parliament’s Conference of Presidents on 21 October, Sassoli announced that the European Parliament would only vote on giving its consent once the UK Parliament had approved the agreement. In the meantime, the Constitutional Affairs Committee would start its examination of the deal. Parliament would be ready to ‘move forward rapidly when needed’, he emphasised.
Read this briefing on ‘Outcome of the European Council (Article 50) meeting on 17 October 2019‘ in the Think Tank pages of the European Parliament.
