Brexit Briefing: Part One

This post has been contributed by Hilaire Barnett, Public law tutor for Undergraduate Laws.

The Brexit process has proven to be a complex interweaving of constitutional, legal and political issues and as the date for the United Kingdom’s departure from the EU approaches — 29 March 2019 — a review of the progress to date seems appropriate. The post will be published over two weeks – with this part dealing with the process up to now and an understanding of some of the key issues.

It all started of course with the referendum of June 2016 when the British people voted to leave the European Union (EU). In order to initiate the leaving process the government needed to give formal notification to the EU under Article 50 TEU and, following the decision of the Supreme Court in Miller v Secretary of State for Exiting the EU [2017] UKSC 5, Parliament passed the European Union (Notification of Withdrawal) Act 2017. There then followed a protracted period of negotiations with the EU over the terms on which the UK would leave.

The outcome of those negotiations was a legally binding Withdrawal Agreement (an international treaty) and the non-legally binding Political Declaration, both of which must be approved by the House of Commons (with a ‘take note’ motion in the House of Lords) in accordance with section 13 of the European Union (Withdrawal) Act 2018. Following parliamentary approval the European Union (Withdrawal Act) Bill will be introduced to give legal effect to the Agreement. The Withdrawal Agreement will also need to be ratified by the UK Parliament under the terms of the Constitutional Reform and Governance Act 2010. On the EU side, the Agreement must be approved by the European Parliament, by a simple majority of votes, and approved by the Council by qualified majority (20 of 27 Member States representing at least 65% of their combined populations).

When published in November 2018 the Withdrawal Agreement and the Political Declaration were met with immediate opposition from a number of sources including a number of Government Ministers. Throughout the negotiations with the EU, a central difficulty existed in relation to Northern Ireland. The British government had promised that the union between Great Britain and Northern Ireland would be protected, and that on leaving the EU Northern Ireland would not be treated any differently from the rest of the UK. At the heart of the terms of the Withdrawal Agreement — and what caused the political turmoil which followed — was ‘the backstop’.

The backstop was intended to act as an insurance policy to ensure that there would never be a hard border between the Republic of Ireland and Northern Ireland — an issue of great political sensitivity in both the north and south of the country. The Political Declaration states that the ‘UK and EU are determined to replace the backstop solution on Northern Ireland by a subsequent agreement that establishes alternative arrangements for ensuring the absence of a hard border on the island of Ireland on a permanent footing’ (at paragraph 19). If it became necessary to use the backstop, it would be for as short a period as possible. The backstop is complex (see the Protocol on Ireland/Northern Ireland in the Withdrawal Agreement) but at its heart lies a temporary UK-wide customs union with the EU which would avoid the need for any checks on goods crossing the border between the Republic of Ireland and Northern Ireland, with some additional specific EU rules applying in Northern Ireland. It is argued by opponents to the backstop — principally but not exclusively the Democratic Unionist Party and Ulster Unionist Party of Northern Ireland — not only that this would amount to treating Northern Ireland differently from the rest of the UK but also that failure to reach an agreement which would terminate the backstop could potentially trap the UK into a permanent restriction on its independence and the right to enter trade agreements with other countries.

Should agreement prove difficult to achieve, the UK may request (before 1 July 2020) a one-off extension of the transition period: a request which would be considered by the EU-UK Joint Committee which is established under the Withdrawal Agreement to oversee the withdrawal arrangements and deal with any disputes. Alternatively, either party may, at the end of the transition period, notify the Joint Committee that they believe the backstop is no longer necessary. This notification must be considered within six months, and the decision reached by mutual agreement: there is no mechanism by which the UK can exit from the backstop unilaterally.

In addition to the Northern Ireland issue, the Withdrawal Agreement covers citizens’ rights (EU citizens living in the UK and UK citizens living in the EU); the financial settlement; issues relating to intellectual property; ongoing customs and excise matters; ongoing police and judicial cooperation in criminal matters; ongoing judicial cooperation on civil and commercial matters and administration; Euratom issues; public procurement issues and other matters relating to the functioning of institutions of the EU. There are also Protocols dealing with Gibraltar and Sovereign Base Areas in Cyprus. Part 4 of the Agreement sets out a transition period following exit through to 31 December 2020. The Political Declaration sets out the framework for the future relationship with the EU and applies to the whole of the UK. It is not legally binding, however, and the details of the future relationship with the EU will need to be negotiated and agreed once the UK has left the EU and is no longer a Member State.

In the second part of this blog we will look further at the EU (Withdrawal) Act 2018 and the parliamentary progress towards the intended exit date of 29 March 2019.

1. Article 132 WA.
2. Article 20 Protocol on Ireland/Northern Ireland.