Brexit withdrawal agreement

In the Conservative Party's manifesto for the United Kingdom general election in May 2015, the party promised an EU referendum by the end of 2017.[13][14]

The referendum, held on 23 June 2016, resulted in a 51.9% to 48.1% majority vote for leaving the European Union.[15]

The Agreement assists the arrangements of withdrawing the UK from the European Union and Euratom (Art. 1), provides a clear definition for the territorial scope of the United Kingdom (Art. 3), and assures the legal liability of the Agreement (Art. 4). Additionally, it states that by the end of the transition period, the UK shall be denied access to "any network, any information system and any database established on the basis of Union law" (Art. 8).

The Agreement defines and provides the personal scope of citizens, family members, frontier workers, host states, and nationals. Article 11 deals with continuity of residence and Article 12 discusses non-discrimination (i.e., it would be prohibited to discriminate on grounds of nationality).

British nationals and European Union citizens, family members who are British nationals or European Union citizens and family members who are neither of those two shall maintain the right to reside in the host State (Art. 13). The host State may not limit or condition the persons for obtaining, retaining or losing residence rights (Art. 13). Persons with valid documentation would not require entry and exit visas or equal formalities and would be permitted to leave or enter the host state without complications (Art. 14). In case the host State demands "family members who join the Union citizen or United Kingdom national after the end of the transition period to have an entry visa", the host State is required to grant necessary visas through an accelerated process in appropriate facilities free of charge (Art. 14). The Agreement further deals with the issuance of permanent residence permits during and after the transition period, as well as its restrictions. Moreover, it clarifies the rights of workers and self-employed individuals, and provides recognition and identification of professional qualifications.

This title discusses special cases, administrative cooperation, legal adaptations and development of Union laws.

The Agreement defines the goods, services and the processes connected to them. It claims that any good or service that was lawfully placed in the market prior to the withdrawal from the Union may be further made available to the consumers in the UK or the Union States (Art. 40 & 41).

This title addresses the custom procedures of goods moving from the customs territory of the UK to the customs territory of the Union and vice versa (Art. 47). The processes that start before the end of the transition period "shall be treated as an intra-Union movement regarding importation and exportation licensing requirements in Union law". The Agreement also addresses the ending of temporary storage or customs procedures (Art. 49).

The VAT applies to goods that are exchanged between the Union and the UK. By way of derogation from previous Articles, the Title permits access to information systems that are necessary for the application or processing of the VAT (Art. 51).

There are ten annexes to the draft. The first is a protocol to maintain an open border between the EU and the UK on the island of Ireland (generally known as the 'Irish backstop'). The second covers the arrangements for a common customs territory to operate between the EU and the UK, until a technical solution can be found that delivers both an open border and independent customs policies. The third covers operations of the joint customs territory. The fourth covers 'good governance in the area of taxation, environmental protection, labour and social standards, state aid, competition, and state-owned undertakings. The fifth to eighth cover relevant provisions in EU law. The ninth and tenth details procedures arising from main sections of the draft.

The Northern Ireland Protocol, known familiarly as the "Irish backstop", was an annex to the November 2018 draft agreement that described the provisions to prevent a hard border in Ireland after the United Kingdom leaves the European Union. The Protocol included a safety-net provision to handle the circumstances where satisfactory alternative arrangements remain to come into operation at the end of the transition period. This draft was replaced by a new Protocol that is described next.

The Irish backstop is removed, and replaced by the protocol on Northern Ireland/Ireland. In this, the whole of the UK comes out of the EU Customs Union as a single customs territory, with Northern Ireland included in any future British trade deals. However, Northern Ireland adopts EU Single Market regulations on goods (including the EU VAT) in order to prevent a hard border and remains an entry point into the EU Customs Union.[23] This leads to a de jure customs border on the island of Ireland, but a de facto customs border down the Irish Sea. EU tariffs (which ones dependent on a UK-EU FTA), collected by the UK on behalf of the EU, would be levied on goods going from Great Britain to Northern Ireland that are "at risk" of then being transported into and sold in the Republic of Ireland; if they ultimately aren't, then firms in Northern Ireland can claim rebates on goods where the UK had lower tariffs than the EU.[24][25]

The protocol provides for application of EU-law in the area of goods (including electricity) and a role for the European Court of Justice with regards to procedures in case of non-compliance as well as the possibility and requirement for UK courts to ask for preliminary rulings on the application of EU law and related parts of the protocol.[26]

This protocol also includes a unilateral exit mechanism for Northern Ireland: the Northern Ireland Assembly will vote every four years on whether to continue with these arrangements, for which a simple majority is required. These votes will occur two months before the end of each four-year period, with the first period starting at the end of December 2020 (when the transition period is expected to end).[27] If the Assembly is suspended at the time, arrangements will be made for the MLAs to vote. If the Assembly expresses cross-community support in one of these periodic votes, then the protocol will apply for the next eight years instead of the usual four.[27] However, if the Assembly votes against continuing with these arrangements, then there will be a two-year period for the UK and EU to agree to new arrangements.[24][25]

The 2019 revisions also adjusted elements of the political declaration, replacing the word "adequate" with "appropriate" in regard to labour standards. According to Sam Lowe, trade fellow at the Centre for European Reform, the change excludes labour standards from dispute settlement mechanisms.[28] In addition, the level playing field mechanism has been moved from the legally-binding withdrawal agreement to the political declaration,[24] and the line in the political declaration that “the United Kingdom will consider aligning with union rules in relevant areas” has been removed.[27]

The reception of the agreement in the House of Commons ranged from cool to hostile and the vote was delayed more than a month. Prime Minister May won a no confidence motion in her own party, but the EU refused to accept any further changes.

On 15 November 2018, the day after the agreement was presented and received backing from the cabinet of the British government, several members of the government resigned, including Dominic Raab, Secretary of State for Exiting the European Union.[29]

Following an unprecedented vote on 4 December 2018, MPs ruled that the British government was in contempt of parliament for refusing to provide to Parliament the full legal advice it had been given on the effect of its proposed terms for withdrawal.[30] The key point within the advice covered the legal effect of the "backstop" agreement governing Northern Ireland, the Republic of Ireland and the rest of the UK, in regard to the customs border between the EU and UK, and its implications for the Good Friday agreement which had led to the end of the Troubles in Northern Ireland, and specifically, whether the UK would be certain of being able to leave the EU in a practical sense, under the draft proposals.

The following day, the advice was published. The question asked was, "What is the legal effect of the UK agreeing to the Protocol to the Withdrawal Agreement on Ireland and Northern Ireland in particular its effect in conjunction with Articles 5 and 184 of the main Withdrawal Agreement?" The advice given was that:[30]

The Protocol is binding on the UK and EU [para 3], and anticipates a final future resolution of the border and customs issues being reached [para 5,12,13]. But "the Protocol is intended to subsist even when negotiations have clearly broken down" [para 16] and "In conclusion, the current drafting of the Protocol ... does not provide for a mechanism that is likely to enable the UK lawfully to exit the UK wide customs union without a subsequent agreement. This remains the case even if parties are still negotiating many years later, and even if the parties believe that talks have clearly broken down and there is no prospect of a future relationship agreement." [para 30]

Immediately following announcement of a revised withdrawal agreement on 17 October 2019, Labour, the Liberal Democrats, and DUP said that they could not support the new deal.[31]

According to evidence presented by lobby group "British in Europe" (representing British citizens resident in EU countries) to the Brexit Select Committee of the House of Commons in June 2020, "as many as 23 EU member states [had] yet to implement systems to document the future rights of the estimated 1.2 million British citizens already living on the continent, who are in the dark over their future rights and obligations".[45] "The UK launched its [registration] system for EU citizens last March [2020], with more than 3.3 million people granted pre-settled or settled status to remain in the country after Brexit", the Committee was told.[45]

On 6 September 2020, the Financial Times reported that the British government planned to draw up new legislation that would bypass the withdrawal agreement's Northern Ireland Protocol.[46][47] The new law would give ministers the power to define what state aid needs to be reported to the EU, and define what products that at risk of being brought into Ireland from Northern Ireland (the withdrawal agreement states that in the absence of a mutual agreement, all products should be considered at risk).[48] The government defended the move, saying the legislation was compliant with the protocol and merely "clarified" ambiguity in the protocol.[49] Ursula von der Leyen warned Johnson not to break international law, saying that the UK's implementation of the withdrawal agreement was a "prerequisite for any future partnership".[50] On 8 September, the Secretary of State for Northern Ireland Brandon Lewis told the British Parliament that the government's planned Internal Market Bill will "break international law".[51]

On 1 October 2020, the European Commission sent a letter of formal notice to the British government as the first step in an infringement procedure, as the UK's Internal Market Bill would be "in full contradiction" to the Northern Ireland Protocol if adopted as-is.[52] Following discussions of the EU-UK Joint Committee on 8 December 2020, the two sides reached an agreement in principle on all issues regarding the implementation of the withdrawal agreement, and the UK agreed to withdraw the offending clauses of the Internal Market Bill.[53]