Written by Carmen-Cristina Cîrlig,
On 29 January 2020, the European Parliament is set to vote on the recommendation to give consent to the treaty on the withdrawal of the United Kingdom (UK) from the European Union (EU), endorsed in its current version by EU leaders and the UK Prime Minister in October 2019. Parliament’s consent, following the completion of the UK’s domestic procedures for ratifying the agreement, will allow its entry into force on 1 February 2020. The UK will then cease its 47-year membership of the EU, although EU law will remain applicable to the UK during an 11‑month transition period ending on 31 December 2020. If however Parliament were to deny consent, the UK would leave the EU without a deal on 1 February 2020, absent another extension of the Article 50 period.
The EU-UK Withdrawal Agreement
After 40 months of negotiations, three extensions to the Article 50 TEU negotiating period and two draft agreements endorsed by the EU-27 leaders and the UK Prime Minister, the approval of the treaty setting out the terms of the UK’s withdrawal from the EU is now close to completion. Initiated in June 2017, the negotiations focused in a first phase on three key issues: protecting UK and EU citizens’ rights, agreeing a financial settlement, and ensuring the absence of a hard border on the island of Ireland. In the second phase of talks, from December 2017 on, the framework for the future EU-UK relationship and transitional arrangements were discussed. On 14 November 2018, negotiators agreed a draft withdrawal treaty and a political declaration setting out the framework for the future EU-UK relationship, both promptly endorsed by then UK Prime Minister Theresa May and EU-27 leaders. However, the UK House of Commons voted repeatedly to reject the withdrawal deal; and after taking office in July 2019, the new UK Prime Minister Boris Johnson set out to renegotiate the ‘backstop’ solution for Northern Ireland. On 17 October 2019, the European Council endorsed a revised withdrawal agreement, in which the main changes related to Northern Ireland, and revised political declaration. Subsequently, the EU-27 granted a further Article 50 extension to the UK until 31 January 2020 to allow the ratification process to be completed.
The withdrawal agreement is an extensive legal document comprising: common and final provisions, citizens’ rights, the financial settlement, rules on the transition period, other separation issues (rules on concluding ongoing processes at the end of the transition period, e.g. ongoing judicial procedures) and governance of the agreement. It also includes three Protocols (on Ireland/Northern Ireland, Gibraltar, and the UK Sovereign Base Areas in Cyprus) and annexes. The Political Declaration is a non-binding text, providing the basis for future EU-UK economic and security cooperation. The few changes in October 2019 reflect the UK government’s ‘different level of ambition’ with respect to the future EU-UK relationship.
The transition (or implementation) period is to last until 31 December 2020, during which time the UK, although a third country, is treated as a Member State (with the exceptions set out in the withdrawal treaty), but without any EU decision-making or representation rights. This period is extendable once (before 1 July 2020) for up to one or two years. The transition period was meant to allow time for negotiations on the future partnership, however experts consider that 11 months is insufficient to reach a comprehensive agreement in all relevant areas (the trade relationship, security cooperation, immigration, data-sharing, fisheries, etc.), all the more so if the UK wishes to diverge significantly from EU standards after the transition.
As regards the border issue, the revised agreement reverts from the previous UK-wide backstop option to a Northern Ireland-only solution, whereby once the transition period ends, Northern Ireland will apply EU customs and tariffs legislation, as well as the relevant EU single market rules needed to avoid any regulatory or customs border on the island of Ireland. A consent mechanism for Northern Irish authorities is also included. However many of the detailed rules necessary for the operation of this Protocol have still to be established by the parties.
In terms of governance, a Joint Committee made up of EU and UK representatives will be responsible for the implementation and application of the agreement. The treaty also includes a mechanism for dispute settlement, based on arbitration (with the role of the Court of Justice of the EU preserved if the dispute relates to a question of interpretation of EU law), and compliance provisions.
In the United Kingdom
The general election in the UK in December 2019 delivered a clear majority to the Conservative party of Prime Minister Boris Johnson, thus facilitating the adoption of the necessary legislation for ratifying and implementing the Withdrawal Agreement. On 19 December 2019, the government introduced the European Union (Withdrawal Agreement) Bill 2019-2020, which fulfils two roles: 1) it gives effect domestically to the withdrawal treaty (the UK being a dualist state); and 2) it fulfils provisions of the previous EU Withdrawal Act 2018 which requires an Act of Parliament before the UK can ratify the treaty.
The bill repeals previous domestic requirements related to the ratification of the withdrawal agreement; implements the transition period; delegates a range of powers to the government for the implementation of the citizens’ rights provisions, the Protocol on Northern Ireland and the separation issues; and, importantly, it confers direct effect to the relevant provisions of the Withdrawal Agreement, after the transition, and foresees that incompatible or inconsistent domestic legislation must be disapplied. In terms of changes from the October version, the bill does not include powers for the UK parliament relating to the future relationship negotiations and agreements, and blocks the possibility of the government asking for an extension to the transition period. The bill completed its passage through the UK Parliament on 22 January, with the House of Lords choosing not to insist on its earlier amendments, and received Royal Assent on 23 January 2020.
In the European Union
In December 2018, the European Commission adopted two proposals on the signing and conclusion of the withdrawal agreement. On 11 January 2019, the Council (Article 50) adopted a decision on signing the agreement and approved a draft decision to conclude the agreement. Both the decision to sign and to conclude the agreement were subsequently amended in light of the Article 50 extensions and the revised deal in October 2019. The draft Council decision to conclude the agreement was sent to Parliament for consent in October 2019. According to Rule 88 of its Rules of Procedure, Parliament gives its consent to a withdrawal agreement by a majority of votes cast (i.e. simple majority of Members present). Members elected in the UK have the right to vote. If Parliament gives consent, the Council can adopt the decision to conclude the agreement with a ‘super qualified majority’, following the treaty’s signature by both parties. Ratification by Member States is not required. For the agreement to enter into force, the parties must provide written notification that their internal ratification procedures are completed.
European Parliament position
Throughout the negotiations, Parliament has made its views heard through various resolutions and through its Brexit Steering Group has cooperated closely with the other EU institutions, in particular the Commission’s Task Force in charge of the EU-UK talks. On 15 January 2020, the EP adopted a new resolution on implementing and monitoring provisions on citizens’ rights in the Withdrawal Agreement.
The recommendation on consent was drawn up by the Committee on Constitutional Affairs (AFCO), rapporteur Guy Verhofstadt (Renew Europe, Belgium). Ten other Committees adopted opinions in the form of letters from their respective chairs to the AFCO Chair. On 23 January 2020, AFCO voted to recommend giving consent to the agreement by 23 votes, with 3 against, and no abstentions. In plenary, on 29 January 2020, there will be a single vote, to approve or deny consent, no amendments being possible.