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Agreement on the Withdrawal of the United Kingdom from the European Union
Draft Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, as agreed at negotiators' level on 14 November 2018
The United Kingdom (orange) and the remaining 27 member states of the European Union (blue)
TypeTreaty setting out terms of withdrawal
ContextUK withdrawal from the EU (Brexit)
DraftedNovember 2018
ConditionRatification by the Council of the European Union, the European Parliament, and the Parliament of the United Kingdom.
Negotiators
Signatories
DepositarySecretary General of the Council of the European Union
LanguagesThe 28 EU languages
Full text at Wikisource
  1. ^ Olly Robbins was appointed as the Prime Minister's Europe Advisor on 18 September 2017. He was previously the Brexit Department's first Permanent Secretary.
  2. ^ Other incumbents during the negotiations were David Davis (July 2016 to July 2018) and Dominic Raab (July 2018 to November 2018).

The Brexit withdrawal agreement (officially: The draft Agreement on the Withdrawal of the United Kingdom from the European Union) is an (as of 11 September 2019) unratified treaty between the European Union (EU) and the United Kingdom (UK), setting the terms of the withdrawal (Brexit) of the latter from the former. It covers such matters as money, citizens rights, border arrangements and dispute resolution. It also contains a transition period, and an outline of the future relationship between the UK and the EU. Published on 14 November 2018, it was a result of the Brexit negotiations. The agreement was endorsed by the leaders of the 27 remaining EU countries[2] and the UK Government led by Prime Minister Theresa May, but faced opposition in the UK parliament, whose approval was necessary for ratification. (Ratification by the European Parliament is also required but (as of September 2019) remains to be sought). On 15 January 2019, the House of Commons rejected the withdrawal agreement by a vote of 432 to 202.[3] The Commons rejected the Agreement again on 12 March 2019, on a vote of 391 to 242,[4] and rejected a third time of 29 March 2019 by 344 votes to 286.

Closely connected to the withdrawal agreement is the non-binding Declaration on Future European Union–United Kingdom Relations.

Background

Main articles: 2016 United Kingdom European Union membership referendum and United Kingdom invocation of Article 50 of the Treaty on European Union

2015 United Kingdom general election and 2016 Brexit referendum

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.[5][6]

The referendum, held on 23 June 2016, resulted in a 51.9% to 48.1% majority vote for leaving the European Union.[7]

Events

On 28 June 2016, five days after the referendum, Chancellor of Germany Angela Merkel announced to the German parliament the forthcoming EU negotiation position: the UK could only remain in the European Single Market (ESM) if the UK accepted EU migrants. There would be no cherry picking of the ESM's four conditions (free movement of goods, capital, services and labour). While she expected the UK to remain an important NATO partner, the EU's priority was unity and self-preservation. She warned the UK not to delude itself.[8] The next day, Tusk confirmed that the UK would not be allowed access to the ESM unless they accepted its four freedoms of movement for goods, capital, services, and people.[9]

In contrast, at her October 2016 party conference, Prime Minister Theresa May emphasised that ending the jurisdiction of EU law and free movement from Europe were priorities. She wished "to give British companies the maximum freedom to trade with and operate in the Single Market – and let European businesses do the same here", but not at the expense of losing sovereignty.[10][11]

In November 2016, May proposed that Britain and the other EU countries mutually guarantee the residency rights of the 3.3 million EU immigrants in Britain and those of the 1.2 million British citizens living on the Continent, in order to exclude their fates being bargained during Brexit negotiations.[12] Despite initial approval from a majority of EU states, May's proposal was blocked by European Council President Tusk and German Chancellor Merkel.[13]

In January 2017, the Prime Minister presented 12 negotiating objectives and confirmed that the UK government would not seek permanent single market membership.[14] The European Parliament's lead negotiator Guy Verhofstadt responded that there could be no "cherry picking" by the UK in the talks.[15]

The statutory period for negotiation began on 29 March 2017, when the letter notifying withdrawal, signed by the British Prime Minister, was handed to the President of the European Council. The letter called for a "deep and special relationship" between the UK and the EU, and warned that failure to reach an agreement would result in EU-UK trade under World Trade Organisation terms, and a weakening of the UK's cooperation in the fight against crime and terrorism. The letter suggested prioritising an early deal on the rights of EU citizens in the UK and vice versa. In the letter, the Prime Minister reasoned that, as the EU leaders did not wish "cherry picking" of the ESM, the UK would not seek to remain within the ESM. Instead, the UK would seek a free trade agreement with the EU.[16] In response, Merkel insisted that the EU would not discuss future cooperation without first settling the terms of the divorce, Verhofstadt referred to the letter as "blackmail" with regard to the point on security and terrorism, and EU Commission president Jean-Claude Juncker warned that the UK's decision to quit the block was a "choice they will regret one day".[17]

A meeting at 10 Downing Street took place on 6 April 2017 between Theresa May and Donald Tusk to discuss "the way ahead on Brexit".[18] Another meeting took place in London on 20 April 2017, this time between Theresa May and Antonio Tajani to discuss the rights of EU citizens.[19] After 20 April meeting, Antonio Tajani said that the UK and EU27 timetables fitted well together, with a two-year exit deal negotiation followed by a three-year transition phase.[20] A 10 Downing Street meeting between Theresa May, Michel Barnier and Jean-Claude Juncker took place on 26 April to discuss the withdrawal process. May reiterated the UK's aim for a "deep and special partnership" after Brexit.[21]

On 29 April 2017, immediately after the first round of French presidential elections, the EU27 heads of state unanimously accepted, without discussion,[22] negotiating guidelines prepared by the President of the European Council.[23] The guidelines take the view that Article 50 permits a two-phased negotiation, whereby the UK first needs to agree to a financial commitment and to lifelong benefits for EU citizens in Britain, before the EU27 will entertain negotiations on a future relationship.[24] In the requested first phase of the withdrawal negotiation, the EU27 negotiators demanded the UK pay a "divorce bill", initially estimated as amounting up to £52bn and then, after additional financial demands from Germany, France, and Poland, amounting to £92bn.[25]

Nevertheless, a 4 March 2017 report of the European Union Committee of the House of Lords, stated that if there is no post-Brexit deal at the end of the two-year negotiating period, the UK could withdraw without payment.[26] Similarly, the Prime Minister insisted to EU Commission President Juncker that talks about the future UK-EU relationship should start early and that Britain did not owe any money to the EU under the current treaties.[27]

At 29 April summit, a meeting took place between Michel Barnier and both houses of the Irish parliament on 11 May, where Barnier assured members of Dáil Éireann and Seanad Éireann that Europe would "work with you to avoid a hard border".[28] Barnier went on to say that "the Irish border issue would be one of his three priorities in the negotiations", and that "there is always an answer".[29]

In May 2017, unflattering details of a four-way meeting between Prime Minister Theresa May, Brexit Minister David Davis, EU Commission President Juncker and his chief-of-staff Martin Selmayr were leaked to the German newspaper Frankfurter Allgemeine Sonntagszeitung, presumably by Martin Selmayr.[30] According to the leaked description, Juncker claimed that Theresa May was "living in another galaxy" when suggesting that British and EU migrant rights could be rapidly negotiated and agreed in the course of June 2017. German Chancellor Angela Merkel concurred the next day by stating that there were "illusions" on the British side.[27] A few days later, Juncker disclaimed responsibility and called the leak a mistake, Der Spiegel magazine reported that Angela Merkel was annoyed with Juncker for the leak, while European Council President Tusk admonished participants to use discretion during the negotiations.[31] The background for German nervousness allegedly is the possibility that Britain may veto EU budget increases, which for example in the immediate term amount to 4 billion euros. A continued British veto would have far-reaching consequences and "will hurt us" according to German MEP Jens Geier.[32]

On 22 May 2017, the Council of the EU authorised its negotiators to start the Brexit talks and it adopted its negotiating directives.[33] The first day of talks took place on 19 June, where Davis and Barnier agreed to prioritise the question of residency rights, while Davis conceded that a discussion of the Northern Irish border would have to await future trade agreements.[34]

Negotiation

Main article: Negotiations leading to the Brexit withdrawal agreement

This article appears to be slanted towards recent events. Please try to keep recent events in historical perspective and add more content related to non-recent events.
Chief negotiators for the UK and EU

During 2017 and 2018, representatives of the United Kingdom and the European Union negotiated terms for Brexit, the planned withdrawal of the UK from the EU. These negotiations arose following the decision of the Parliament of the United Kingdom to invoke Article 50 of the Treaty on European Union, following the UK's EU membership referendum on 23 June 2016.

The negotiating period began on 29 March 2017, when the United Kingdom served the withdrawal notice under Article 50. Withdrawal was to occur on 29 March 2019, two years after the date of notification, as required by Article 50.

Negotiations formally opened on 19 June 2017, when David Davis, the UK's Secretary of State for Exiting the European Union, arrived in Brussels to meet with Michel Barnier, the Chief Negotiator appointed by the European Commission.[35] They began to discuss a withdrawal agreement, including terms of a transitional period and an outline of the objectives for a future UK-EU relationship. In November 2018, European Union officials announced that they would accept no further negotiations or changes before the UK legally leaves.

If the withdrawal agreement is ratified by the UK and other EU state governments and comes into force, negotiations to establish Free Trade Agreement treaties between the EU and the UK will be needed. In addition, the EU's existing Free Trade and WTO tariff-rate quotas with third countries (agreed while the UK was still a member) may need be split or renegotiated.[36][37]

In March and April 2019, Prime Minister of the United Kingdom Theresa May and European Union leaders agreed to move the date of the UK's departure to 31 October 2019.[38][39]

May resigned as leader of the ruling Conservative Party on 7 June 2019,[40] and on 23 July, Boris Johnson was elected as her successor.[41] As of 26 July 2019, the Johnson ministry has not reopened negotiations on the withdrawal agreement and has declared that the Irish backstop be scrapped as a pre-condition to doing so, which the EU has declared that it will not do.[42]

First phase

The European Commission said that it would not start any negotiation before the UK formally invoked Article 50.[43] In October 2016, European Commission President Jean-Claude Juncker said the EU should not negotiate in such a way that Britain would have to hold a second referendum.[44] On 28 June 2016, Chancellor Merkel, and on the following day European Council President Tusk, stated that the UK could remain in the European Single Market (ESM) only if the UK accepted its four freedoms of movement: for goods, capital, services, and labour.[45] In October, Prime Minister May emphasised that ending the jurisdiction of EU law and free movement from Europe were the UK's priorities, along with British and EU companies having maximum freedom to trade in the UK and the ESM.[46][47]

In November 2016, May proposed that Britain and the other EU member states mutually guarantee the residency rights of the 3.3 million non-British EU citizens in the UK and those of the 1.2 million British citizens living in the rest of the EU, in order to exclude their fates being bargained during Brexit negotiations.[48] Despite initial approval from a majority of EU states, May's proposal was blocked by Council President Tusk alongside member state Germany.[49]

In January 2017, the Prime Minister presented 12 negotiating objectives and confirmed that the UK government would not seek permanent single market membership.[50] She also called for an end to ECJ jurisdiction, a new customs agreement excluding the common external tariff and the EU's common commercial policy, an end to free movement of people, co-operation in crime and terrorism, collaboration in areas of science and technology, engagement with devolved administrations, maintaining the Common Travel Area with Ireland, and preserving existing workers' rights. She also confirmed, "that the Government will put the final deal that is agreed between the UK and the EU to a meaningful vote in both Houses of Parliament, before it comes into force."[51] The European Parliament's lead negotiator, Guy Verhofstadt, responded that there could be no "cherry-picking" by the UK in the talks.[52]

The statutory period for negotiation began on 29 March 2017, when the UK formally submitted a letter notifying withdrawal. The letter called for a "deep and special relationship" between the UK and the EU, and warned that failure to reach an agreement would result in EU-UK trade under World Trade Organization (WTO) terms, and a weakening of the UK's co-operation in the fight against crime and terrorism. The letter suggested prioritising an early deal on the rights of EU citizens in the UK and vice versa, and stated that the UK would not seek to remain within the ESM. Instead, the UK would seek a free trade agreement with the EU.[53] In response, Merkel insisted that the EU would not discuss future cooperation without first settling the terms of leaving the EU; Verhofstadt referred to the letter as "blackmail" with regard to the point on security and terrorism, and EU Commission President Juncker said the UK's decision to no longer be a part of the Union was a "choice they will regret one day".[54]

The UK and EU negotiators agreed that initial negotiations, relating especially to residency rights, would commence in June 2017 (immediately after the French presidential and parliamentary elections), and full negotiations, relating especially to trading agreements, could commence in October 2017 (immediately after the 2017 German federal election).[55][56][57] The first day of talks was 19 June 2017.[56]

On 29 April 2017, immediately after the first round of French presidential elections, the remaining 27 member states' heads of government accepted negotiating guidelines prepared by Tusk.[58] The guidelines took the view that Article 50 permitted a two-phased negotiation, in which the UK first agrees to a financial commitment and to lifelong benefits for EU citizens in Britain, and then negotiations on a future relationship could begin.[59] In the first phase, the member states would demand the UK pay a "divorce bill", initially estimated as amounting to £52 billion[60] and then, after additional financial demands from Germany, France, and Poland, to £92 billion.[61] A report of the European Union Committee of the British House of Lords, published on 4 March 2017, stated that if there were to be no post-Brexit deal at the end of the negotiating period, the UK could withdraw without payment.[62]

On 22 May 2017, the European Council authorised its negotiators to start the Brexit talks and it adopted its negotiating directives.[63] The first day of talks took place on 19 June, where Davis and Michel Barnier, European Chief Negotiator for Brexit, agreed to prioritise the question of residency rights, while Davis conceded that a discussion of the Northern Irish border would have to await future trade agreements.[64]

On 22 June 2017, Prime Minister May guaranteed that no EU citizen living legally in the UK would be forced to leave, and offered that any EU citizen who lived in the UK for more than five years until an unspecified deadline between March 2017 and March 2019 would enjoy the same rights as a UK citizen, conditional on the EU providing the same offer to British citizens living legally in the EU.[65] The Prime Minister detailed her residency proposals on 26 June, but drew no concessions from EU negotiators,[66] who had declined to expedite agreement on expatriates by the end of June 2017,[30] and who are hoping for European courts to continue to have jurisdiction in the UK with regards to EU citizens, according to their negotiation aims published in May 2017.[67][68]

The second round of negotiations began in mid-July 2017. Progress was made on the Northern Irish border question; UK negotiators requested a detailed breakdown of the "divorce bill" demand; and the EU negotiators criticised the UK's citizenship rights offer.[69] David Davis did not commit to a net payment by the UK to the EU with regards to the requested divorce bill, while Michel Barnier would not compromise on his demand for the ECJ to have continuing jurisdiction over the rights of EU citizens living in the UK after Brexit,[70] rejecting the compromise proposal of a new international body made up of UK and EU judges.[71]

On 16 August 2017, the UK government disclosed the first of several papers detailing British ambitions following Brexit, discussing trade and customs arrangements.[72] On 23 August Prime Minister May announced that Britain would leave the ECJ's direct jurisdiction when the planned transition period ended, but that both the British courts and the ECJ would also keep "half an eye" on each other's rulings afterwards as well.[73] One of the UK government's position papers published in August called for no additional restrictions for goods already on the market in the UK and EU.[74]

The third round of negotiations began on 28 August 2017. There was disagreement over the financial settlement; The Irish Times explained that British negotiators referred to the seven-year Multi-annual Financial Framework (MFF or Maff) for the period 2014–2020 agreed by member states and the European parliament as a "planning tool" for the next period rather than a legally-binding financial obligation on member states. The British case is that the MFF sets ceilings on spending under various headings and is later radically revised during the annual budget process when real legal obligations on each state arises. This contrasts with the EU Commission's methodology for calculating the UK Brexit bill which involves dividing the MFF into the shares historically agreed by each member state.[75] On the Irish border question there was a "breakthrough", with the British side guaranteeing free movement of EU citizens within the common travel area constituting Ireland and the UK.[76]

On 5 September 2017, Davis said that "concrete progress" had been made over the summer in areas such as protecting the rights of British expats in the EU to access healthcare and over the future of the Irish border, while significant differences over the "divorce bill" remained.[77] On 9 September, the EU Commission published several negotiating papers, including one in which the EU concedes/declares that it is the responsibility of the UK to propose solutions for the post-Brexit Irish border. The paper envisages that a "unique" solution would be permissible here; in other words, any such exceptional Irish solution would not necessarily be a template for post-Brexit relationships with the other EU member states.[78]

On 22 September 2017, May announced further details of her Brexit proposal.[79][80] In addition to offering €20 billion over a two-year transition period and continued acceptance of European immigrants,[81] she also offered a "bold new security relationship" with the EU which would be "unprecedented in its depth" and to continue to make "an ongoing contribution" to projects considered greatly to the EU and UK's advantage, such as science and security projects.[80][79] She also confirmed that the UK would not "stand in the way" of Juncker's proposals for further EU integration.[80][79] Barnier welcomed May's proposal as "constructive,"[82] but that it also "must be translated into negotiating positions to make meaningful progress".[82] Similarly, President of France Emmanuel Macron was adamant that the EU would not begin negotiations on future EU-UK relationships until "the regulation of European citizens, the financial terms of the exit, and the questions of Ireland" were "clarified" by the UK.[83]

The fourth round of talks began on 25 September, with Barnier declaring he had no mandate from the EU27 to discuss a transition deal suggested by Prime Minister May. Davis reiterated that the UK could honour commitments made during its EU membership only in the context of a future "special partnership" deal with the EU.[84]

At the European Council meeting of 19/20 October 2017, the 27 leaders of the EU states were to decide whether or not to start trade negotiations with the UK.[74] However, Davis has conceded that so soon after the German elections on 24 September, a German coalition government may not be in place in time for making this decision in October, delaying any European Council decision until their December meeting.[85][86]

EU negotiators have stated that an agreement must be reached between Britain and the EU by October 2018 in order to leave time for national parliaments to endorse Brexit.[82]

On 9 October 2017, May announced to the British Parliament that Britain could operate as an "independent trading nation" after Brexit if no trade deal is reached with the EU.[87]

Second phase

In December 2017, EU leaders announced an agreement to begin the next phase of negotiations, with talks on a transition period after March 2019 to begin in early 2018 and discussions on the future UK–EU relationship, including trade and security, to begin in March.[88]

On 10 June 2018, the Irish Prime Minister Leo Varadkar cleared the path for the June negotiations by postponing the Irish border question until the final Brexit deal in October 2018.[89]

On 19 June 2018, the UK and the EU published a joint statement outlining agreements at the negotiators' level. Michel Barnier praised the "dedication and commitment" of the negotiating teams, and said progress had been made in issues like customs, VAT and the European nuclear agreement, Euratom.[90][91]

On 12 July 2018, Prime Minister May and part of the cabinet published a proposal for an agreement on future relations between the UK and EU. Its nickname came to be known by various British media outlets as the Chequers plan. It was finalised at a meeting of the UK Cabinet held at Chequers on 6 July. Brexit Secretary David Davis resigned over the agreement on 8 July,[92] while former Foreign Secretary Boris Johnson followed him the next day,[93] saying that the government allowed "a fog of self-doubt" to fall on its negotiations.[94]

Content

The withdrawal agreement, which runs to 599 pages, covers the following main areas:[95]

The agreement also sets up a transitional period, which lasts until 31 December 2020 and can be extended once by mutual consent. During the transitional period, the UK will remain a member of the European Economic Area, the single market, and the customs union, EU laws will continue to apply to the UK, and the UK will continue to pay into the EU budget. However, the UK will not be represented in the decision-making bodies of the EU. The transition period will give businesses time to adjust to the new situation and time for the British and EU governments to negotiate a new trade deal between the EU and UK.[96][97]

On the Irish border question, there is a Northern Ireland Protocol at the end of the agreement which sets a backstop which will come into force, in the case that there is no new agreement between the EU and UK before the end of the transition period. In that case, the UK will shadow the EU's Common external tariff and Northern Ireland will keep in aspects of the Single Market. Neither party can unilaterally withdraw from this customs union. The goal of this backstop agreement is to avoid a "hard" Irish border, where customs checks are necessary.[98]

The governance will be through a Joint Committee with representatives of both the European Union and the British government. There will be a number of specialised committees reporting to the Joint Committee.

The withdrawal agreement also includes provisions for the UK to leave the Convention Defining the Statute of the European Schools, with the UK bound by the Convention and the accompanying regulations on Accredited European Schools until the end of the last academic year of the transition period, i.e. the end of the spring semester of 2020-2021.[99]


The more important elements of the draft agreement are these:[100]

Common provisions

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).

Citizens' rights: general provisions

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).

Rights and obligations

UK nationals and Union citizens, family members that are UK nationals or Union citizens and family members that 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.

Coordination of social security systems

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

Goods placed on the market

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).

Ongoing customs procedures

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 licencing requirements in Union law". The Agreement also addresses the ending of temporary storage or customs procedures (Art. 49).

Ongoing value added tax and excise duty matters

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).

Annexes

Main articles: Irish backstop and Brexit and the Irish border

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.

Irish backstop

Further information: Brexit and the Irish border

The Irish backstop is the familiar name given to a draft agreement between the UK and the EU that aims to prevent a hard border in Ireland after the United Kingdom leaves the European Union. Known formally as the Northern Ireland Protocol, it is a standalone (draft) treaty appended to the proposed Brexit withdrawal agreement enabling the United Kingdom to leave the European Union with the least disruption possible.

The backstop aims to prevent a hard border by keeping Northern Ireland in some aspects of the Single Market, until such time as an alternative arrangement including a technical or other solution can be delivered that will permit the border to be effectively invisible. The proposal also provides for the UK (as a whole) to have a common customs territory with the EU until the solution is delivered, to avoid the need for customs controls within the UK (between Northern Ireland and Great Britain). The "backstop" element is that the arrangement would continue to apply until a solution is found, even if there is no trade agreement between UK and EU by the end of the transition period. Although the Irish government and Nationalists in Northern Ireland strongly support the protocol, Unionist opposition is seen as a major reason for Westminster's decisions to refuse to ratify the Withdrawal Agreement as a whole.

History
Sovereign states of Ireland: Republic of Ireland, to the south and west; the United Kingdom to the north (Northern Ireland)
Aftermath of the Brexit vote

Main article: Brexit and the Irish border

The Northern Irish border will be the only significant land border the European Union will have with the United Kingdom after Brexit, a difficult to control border due to a lack of significant geographic barriers.[101] The completion of the Single Market in 1992 and the Good Friday Agreement in 1998 were seen as making it possible to dismantle what had previously been extensive border infrastructure between Northern Ireland and the Irish Republic.[102]

In Irish government planning meetings before the referendum, the Irish border was identified as an important issue in the event of a vote to leave.[103] From the time the referendum result was clear the Irish government told other EU countries that they considered that an open border on the island of Ireland was an essential element of the Good Friday Agreement.[104][102]

Initially there were bilateral talks between Dublin and London to devise technical solutions to border issues.[103]

Initial Backstop proposal

Further information: Brexit negotiations

=EU Task Force=

On 7 September 2017, the EU Task Force published guiding principles for the dialogue on Ireland / Northern Ireland which reiterated and expanded the principles given in 29 April guidelines, in particular the protection of the Good Friday Agreement and the continuation of the Common Travel Area.[105] On 9 September 2017, the EU Commission published several negotiating papers, including "Guiding Principles on the Dialogue for Ireland/Northern Ireland". In it, the EU concedes/declares that it is the responsibility of the UK to propose solutions for the post-Brexit Irish border. The paper envisages that a "unique" solution would be permissible here; in other words, any such exceptional Irish solution should not be seen as a template for post-Brexit relationships with the other EU members on border and customs control matters, for example ETIAS.[106]

Prime Minister Theresa May said in October 2016 that there would be "no return to the borders of the past".[107]

=December 2017 Joint Statement=

In December 2017, the negotiating teams from European Union and the UK proposed an agreed draft:

49. The United Kingdom remains committed to protecting North-South cooperation and to its guarantee of avoiding a hard border. Any future arrangements must be compatible with these overarching requirements. The United Kingdom's intention is to achieve these objectives through the overall EU-UK relationship. Should this not be possible, the United Kingdom will propose specific solutions to address the unique circumstances of the island of Ireland. In the absence of agreed solutions, the United Kingdom will maintain full alignment with those rules of the Internal Market and the Customs Union which, now or in the future, support North-South cooperation, the all island economy and the protection of the 1998 Agreement.[108]

Although initially approved by the British Prime Minister (Theresa May), the DUP (on which whose confidence and supply support the Government's minority administration depends) vetoed this and subsequently a second paragraph (50) was inserted stressing that there would be no new controls on goods and services moving from Northern Ireland to Great Britain. This second paragraph was not incorporated into the EU's proposed text of the Withdrawal Agreement, as the European Union argued that it is exclusively an internal matter for the United Kingdom.[109]

The negotiators returned to the backstop question in 2018 (see below).

Both the UK and the EU have prioritised avoidance of a 'hard border' as one of the three most important areas to resolve in order to reach a Withdrawal Agreement.[110]

Early Parliamentary debates

Main article: Parliamentary votes on Brexit

Many Brexit-supporting Conservative and DUP MPs continued to oppose the backstop without a specified end-date, concerned that it could tie the UK to many EU rules indefinitely,[111] although the DUP has said that it is open to time limiting the backstop.[112] The EU side (in particular the Irish Government) sees a time-limited guarantee as without value, in particular due to scepticism about any near-term delivery of 'alternative arrangements'.[113]

On 15 January 2019, the UK parliament rejected a government motion to approve its draft withdrawal agreement. In late January 2019 many Brexit-supporting Conservative and DUP MPs continued to oppose a backstop without a specified end-date, concerned that it could tie the UK to many EU rules indefinitely,[114] although most of the Conservative rebels later voted for the Withdrawal Agreement and backstop without the DUP. This opposition was in spite of a LucidTalk opinion poll (released 6 December 2018) indicating that 65% of Northern Ireland voters were in favour of a Brexit that kept Northern Ireland in the EU single market and customs union.[115] On 28 January 2019, May expressed opposition to the backstop that she and the EU had agreed and urged Tory MPs to vote in favour a backbench amendment replacing the backstop with unspecified "alternative arrangements".[116][117]

Paul Bew, a crossbench peer, observed that the top-down character of the backstop overturns the bottom-up character of the Good Friday Agreement and thus risks that "the current deterioration in North-South relationships might intensify in unpredictable and dangerous ways".[118]

The Brady Amendment

On 29 January 2019, the House of Commons voted 317 to 301 to approve Sir Graham Brady's Amendment to the Brexit Next Steps motion,[119] which calls for "the Northern Ireland backstop to be replaced with alternative arrangements to avoid a hard border, supports leaving the European Union with a deal and would therefore support the Withdrawal Agreement subject to this change."

Following the vote Michel Barnier said the backstop is "part and parcel" of the UK's Brexit withdrawal agreement and will not be renegotiated.[120]

Barnier said to France's RTL radio: "Time is too short to find an alternative arrangement to the Irish backstop and Britain’s divorce deal with the European Union will not be re-opened for negotiation. We ourselves talked of so-called alternative arrangements which could prevent the return of a hard border. Only, no one, on either side, was able to say what arrangement would be needed to ensure controls on goods, animals and merchandise, without having a border. We have neither the time, nor the technologies."

Barnier said he hoped that UK Prime Minister Theresa May’s meeting with opposition Labour party leader Jeremy Corbyn might produce new ideas. He said the EU was prepared to re-write the Political Declaration which provides the outline for a future trade deal.[121]

Attorney General's Legal Opinion

A humble address was placed before the House of Commons on 13 November 2018, requiring release of the legal advice given to the government regarding the proposed EU withdrawal agreement. The government's response was presented to parliament by Attorney General Geoffrey Cox on 3 December. However, the following day, it was deemed by MPs to be incomplete, which led to a vote in which, for the first time in history, the Government of the United Kingdom was found to be in contempt of Parliament.[122]

The full advice was later released showing that the terms of the backstop could mean that the UK could face "protracted and repeated rounds of negotiations".[123] In March 2019 further advice was published saying that the Vienna Convention on the Law of Treaties could be used if the backstop was shown to have a "socially destabilising effect on Northern Ireland".[124]

The Malthouse compromise

Kit Malthouse was credited as the convener of an agreement between limited factions of the Conservative party on Brexit on 29 January 2019.[125] The proposal comprised two parts. Plan A was to reopen the withdrawal agreement with the EU and renegotiate the backstop. Britain's transition period would also be extended so there was more time to agree the future relationship. Plan B was akin to a managed 'no deal'. The Malthouse compromise was seen as a supplement, by some Leavers, to the Graham Brady amendment: in a nutshell, it aimed to replace the backstop with a different one, which would either allow a smooth transition to a deal or put in place a triple safety net if there is no deal. EU negotiators saw the plan as unrealistic, and an example of the Conservative party negotiating with itself, with one EU official going so far as to call it "bonkers".[126][127] On 13 March 2019, the House of Commons voted down the Malthouse compromise by a margin of 374-164[128][129]

As of June 2019, these alternative arrangements remain to be identified. On 8 May 2019, the UK Conservative Party established a 'panel of experts' to advise its Alternative Arrangement Commission on possible technical solutions to the dilemma.[130]

The Johnson Government

In July 2019, Theresa May resigned and Boris Johnson became Prime Minister, with Boris Johnson saying that he wanted to replace the Irish backstop within the Withdrawal Agreement.[131] On 19 August, the Prime Minister wrote a strongly-worded letter to the President of the European Council, describing the agreement that he had previously voted for as "anti-democratic and inconsistent with the sovereignty of the UK".[132] Despite the backstop having been explicitly agreed as a temporary measure, he continued to highlight that it was "inconsistent with the UK's desired final destination" for its relationship with the EU. His third stated reason for the backstop being unviable is that it "risks weakening" the Good Friday Agreement and the Northern Ireland Peace process.

Mr. Tusk reminded Mr. Johnson that those opposing the arrangement without "realistic alternatives" supported re-establishing a hard border on the island of Ireland. This was the reality "even if they do not admit it", he added. "The backstop is an insurance to avoid a hard border on the island of Ireland unless and until an alternative is found", Mr Tusk tweeted.[133]

The Irish government considers "The very purpose of the backstop is to maintain the status quo, by ensuring free movement and no hard Border on the island of Ireland; which is central to the GFA. The reality is Brexit itself is a threat to the GFA".[134]

November 2018 agreement

On 14 November 2018, following a five-hour Cabinet meeting, Prime Minister May announced that her Cabinet approved a draft agreement with the EU.[135][136][137][138] On the same day the government published Explainer for the agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union, stating that negotiations on the future UK-EU were ongoing and that the Withdrawal Agreement would not be signed without an agreed Political Declaration on the future relationship "on the basis that nothing is agreed until everything is agreed".[139]

Objectives

The text of the backstop protocol states 4 objectives of this protocol:[140]

Duration

Article 2 and article 20 provide ways to limit the backstop.

Legal effect
The UK–Republic of Ireland border crosses this road at Killeen (near Newry), marked only by a speed limit in km/h (Northern Ireland uses mph).

Article 2(2) of the protocol states that it is a temporary measure[141] while the United Kingdom identifies and develops a mutually satisfactory technology that operates customs, excise, phytosanitary and other controls on the frontier between the UK and the EU, without any evident border infrastructure. The arrangements must be such as to comply with section 10 of the European Union (Withdrawal) Act 2018, on 'Continuation of North-South co-operation and the prevention of new border arrangements'.

In April 2019, a report commissioned by the German Green Party concluded that the backstop could allow the UK to undermine EU environmental, consumer, and labour standards, because it lacks sufficiently detailed controls.[142]

Common customs territory proposal

Northern Ireland will per article 6(2) be bound by the entire EU Customs Code, and shall be considered part of the EU customs territory per article 15(1). To reduce friction between Northern Ireland and the rest of the UK, article 6 of the Northern Ireland protocol proposes that (from the end of the transition phase on 31 December 2020), the UK and the EU customs territories will operate as one until the parties agree jointly that a mutually satisfactory alternative arrangement has been reached.[143] The single customs territory between the United Kingdom and the EU does not cover fish products: as a result fish from Great Britain to Northern Ireland would be subject to EU tariffs unless a separate agreement on fisheries is reached.[144]

This alternative arrangement must be such as to continue to ensure that there is no evident border in Ireland. In addition, Northern Ireland will maintain "regulatory alignment" with the EU Single Market, again until a mutually satisfactory alternative arrangement can be put in place for Single Market regulations as well as Customs and Excise.[145][146]

Ratification

In the ensuing months, the Parliament of the UK refused three times to ratify the agreement. In July 2019 Boris Johnson became Prime Minister of the United Kingdom and Leader of the Conservative Party. Johnson appointed Michael Gove to the Cabinet with the responsibility for co-ordination of planning across Government Departments for a no-deal Brexit.[147] As of 4 August 2019, the Johnson ministry has not reopened negotiations on the withdrawal agreement and has declared that the backstop must be scrapped as a pre-condition to doing so, which the EU has declared that it will not do.[148]

Reaction

The Irish government, in particular, is insisting on this backstop.[149][113] One Irish official said the impact the absence of the backstop may have on the economy and people of the island could be "akin to a 'blockade' of the Northern economy".[150] As of September 2019, the Irish government is in negotiations with the European Commission to discuss the location of no-deal customs checks for cross-Border trade on the southern side of the border.[151]

This protocol has been strongly opposed by the Democratic Unionist Party,[152] who see it as weakening Northern Ireland's place within the United Kingdom,[153] and is regarded by a number of commentators as the main reason why the withdrawal agreement has not been ratified by the Parliament of the United Kingdom.[154][155][156] Since 2018, the DUP have said the Northern Ireland backstop must be removed from the Brexit withdrawal agreement if they are to continue to support the Conservative government in the House of Commons,[157][158] although the party has said that it's open to a time limit on the backstop.[159]

The protocol is also opposed by the Ulster Unionist Party[160] and the Traditional Unionist Voice.[161]

Sinn Fein, the SDLP, the Alliance Party of Northern Ireland and the Green Party in Northern Ireland all support the backstop.[162]

Some commentators say Britain is faced with a trilemma between three competing objectives: an open border on the island; no border in the North Channel; and no British participation in the European Single Market and the European Union Customs Union.[163]

The Northern Ireland population is no longer majority/minority and is 60% supportive of "special arrangements to accommodate Northern Ireland’s strangeness".[164][115]

Alternative arrangements

See also: Non-tariff barriers to trade

No technology solution to address these issues has been designed yet or implemented anywhere in the world, let alone in such a unique and highly sensitive context as the Northern Ireland border.

Theresa May, 20 July 2018[165]

The notion of "Alternative arrangements" appears in two parts of the protocol:

A leaked memo by Industry Minister Richard Harrington, obtained by Sky News, said “This [technical solution] idea was considered and rejected by both the UK and the EU in summer 2018, as both parties concluded that it would not maintain an open border. That is why we ended up with the current backstop. There is currently no border in the world, outside a customs union, that has eliminated border infrastructure.”[166]

On 8 May 2019, the UK Conservative Party established a panel of experts to advise its Alternative Arrangement Commission on possible technical solutions to the dilemma.[130] The panel includes proponents of the two ideas below. The only participant with an Irish connection is Graham Gudgin, a former adviser to Brexit supporter Lord Trimble.[130] On 6 July 2019, the panel proposed a number of arrangements that, it believed, should be acceptable.[167] The Irish Government did not comment on the report since it was not a formal UK proposal but "it is understood [that] it believes [the report] to be fundamentally flawed and a misreading of what had already been agreed".[167]

Smart Border 2.0

Lars Karlsson, former director of the World Customs Organisation and deputy director general of Swedish Customs, proposed how such a 'Smart Border 2.0' might operate.[168][169] As of June 2019, the proposal remains a theoretical one.

"Drive through border"

The information technology division of Fujitsu is reported as having pitched an artificial intelligence solution that would analyse social media posts.[170] Fujitsu said that the report in The Sun was incorrect to claim that the technology involved automatic number plate recognition cameras on a restricted number of authorised border crossings.[170] A spokesperson for the Department for Exiting the EU said that "this proposal was not taken forward as it does not work for the unique circumstances of the Northern Ireland border".[170]

Ratification

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.

UK government resignations

See also: List of resignations from the second May ministry

On 15 November 2018, the day after the agreement was presented and received backing from the cabinet of the UK government, several members of the government resigned, including Dominic Raab, Secretary of State for Exiting the European Union.[171]

Votes

It has been suggested that Meaningful vote#Votes be merged into this section. (Discuss) Proposed since April 2019.

Further information: Meaningful vote

On 15 January 2019, the House of Commons voted down May's deal by 230 votes,[3] the largest vote against the United Kingdom government in history.[172] The May government survived a confidence vote the following day.[3] On 12 March 2019, the Commons voted down May's deal by 149 votes, the fourth-largest defeat of the government in the history of the Commons.[173][174] A third vote on May's deal, widely expected to be held on 19 March 2019, was refused by the Speaker of the House of Commons on 18 March 2019 on the basis of a parliamentary convention dating from 2 April 1604 that prevents UK governments from forcing the Commons to repeatedly vote on an issue that the Commons has already voted upon.[175][176][177] A cut-down vote on the Withdrawal Agreement alone without the attached Political Declaration passed the Speaker's test for 'substantial change' was held on 29 March 2019, but was voted down by 58 votes.[178]

Future relationship

Main article: Continuing United Kingdom relationship with the European Union

See also: Declaration on Future European Union–United Kingdom Relations and Customs Union between the EU and the UK

  Non-EU states that participate in the EU Single Market: Iceland, Liechtenstein, Norway and Switzerland (see also EFTA)[179]

While negotiations between the United Kingdom and the European Union were in progress, Barnier, as the EU's chief negotiator, speaking in Rome to Committees of the Italian Parliament on 21 September 2017, stated that a future trade deal with the United Kingdom is the trade deal which will be negotiated after sufficient progress has been made on the withdrawal deal. Barnier commented that the EU will want to negotiate a future trade deal with the United Kingdom, because trade with the United Kingdom will continue.[74] At the same time Barnier said "the future trade deal with the United Kingdom will be particular, as it will be less about building convergence, and more about controlling future divergence. This is key to establishing fair competition."[74]

The United Kingdom's prime minister, in a speech at the Santa Maria Novella church in Florence on 22 September 2017,[180] proposed an economic partnership between the UK and the EU which respects both the freedoms and principles of the EU, and the wishes of the British people. At the same time she re-affirmed that after the UK leaves the EU a period of implementation would be in their mutual interest, to be agreed under Article 50 for a strictly time-limited period.[181]

The European parliament voted a Brexit resolution (the European Parliament resolution of 14 March 2018) on the framework of the future EU-UK relationship (2018/2573(RSP)) with 544 MEP against 110 (with 51 abstentions[182]). The 14 page[183] document states that an association agreement between EU and UK could be an adequate framework for the future. This resolution proposes that the agreement address four domains: trade, interior security, foreign and defense policy collaboration, and thematic cooperation (for instance for research and innovation).[184][185] The resolution also urges the UK to present a clear position on all outstanding issues pertaining to its orderly withdrawal.[183]

On 13 November 2018, the UK and EU reached an agreement on the wording of the Withdrawal Agreement (WA) and Political Declaration.[186][187] The Withdrawal agreement covers the settlement of UK's financial commitments, the Border between NI and Ireland, the status of EU citizens in the UK, and the conditions for the transition period. The Political Declaration is effectively a statement of intent between the EU and UK to proceed to negotiate to a full and final trade deal which will apply after the transition period. It outlines the shape of the future relationship between the EU and UK, but is not a legally binding trade agreement. On 14 November 2018, May's Cabinet approved the draft agreements.[135][136][138][137] Shortly after it was approved by the British Cabinet, the European Commission published the 585 pages draft withdrawal agreement.[2]

In December 2018, Secretary for Work and Pensions Amber Rudd suggested that a Norway-plus model – the membership of the European Economic Area (EEA) – could be an alternative if Theresa May's Brexit deal is rejected.[179]


See also

Template:Wikipedia books Template:Wikipedia books

Notes

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