13. Negotiations to 31 January 2020

• Phase 1 focused on Withdrawal Agreement, principally citizens’ rights, Irish border and financial settlement
• Phase 2 of initial negotiations finalised WA and agreed principles for future UK-EU relationship
  • Future relationship covers trade and important areas like defence and security
  • In July 2018, Chequers White Paper proposed details for UK-EU relationship, but proved divisive
  • Detailed Phase 2 work takes place during the transition period
• Commons rejected WA three times between 15 January and 29 March 2019
• On 11 April, EU and UK agreed second Article 50 extension to 31 October to ratify WA
• Subsequent 2019 events:
  • 23 May, UK participated in EU elections
  • 24 July, Boris Johnson became PM
  • 28 August, Parliament prorogued from 10 September to 14 October
  • 24 September, Supreme Court ruled prorogation unlawful & void
  • 2 October, UK Government proposed changes to WA but not seen as workable
  • 17 October, UK agreed revised WA/PD with EU
  • 19 October, Parliamentary approval withheld until WA Act passed
  • 19 October, UK requested third extension to 31 January 2020
  • 22 October, Commons approved second reading of WA Act but rejected short timetable for scrutiny
  • 22 October, Government put WA Act into limbo
  • 28 October, EU agreed Art 50 extension to 31 January 2020
  • 6 November, Parliament dissolved for General Election
  • 12 December, Conservatives won large parliamentary majority
• 23 January, European Union (Withdrawal Agreement) Act 2020 passed
• 24 January, Brexit Withdrawal Agreement signed
• 31 January 2020, UK left EU:
  • Article 50 period ended
  • Transition period began
  • Transition lasted to 31 December 2020 (but could have been extended)
  • Phase 2 Brexit negotiations began

Click here for summary of Brexit FactBase.

This section deals with the negotiations up to 31 January 2020, when the UK officially left the EU. Please go to the Brexit FactBase section on the 2020 negotiations for details of the subsequent negotiations on the UK’s post-Brexit relationship with the EU.

EU approach

EU team

European Council guidelines

The European Council (the leaders of the EU member states) adopted Art. 50 guidelines for Brexit negotiations on 29 April 2017. The guidelines address the basic principles underlying the EU’s negotiating position such as acting with one voice, mitigating uncertainty for citizens and businesses, adhering to the principle of sincere cooperation and ensuring the integrity of the internal market.

The negotiations had two phases:

• Phase 1 covered separating the UK from the EU and from all the rights and obligations that the UK derives from commitments undertaken as a member state. The phase aimed to provide clarity and legal certainty to citizens, businesses, stakeholders and international partners on the immediate effects of the UK’s withdrawal. It had three priorities:
  • Citizens’ rights
  • UK’s financial settlement
  • Border between Norther Ireland and the Irish Republic
• Phase 2 focused on transition arrangements and the future EU-UK relationship. Importantly, the guidelines stated that it would not be possible to conclude an agreement setting out any future relationship between the UK and the EU until the UK formally leaves the EU and becomes a third country. The 27 member states indicated that they were willing to engage in “preliminary and preparatory discussions” with a view to establishing an overall understanding on the framework for future UK-EU relations.

Transition arrangements are in the interests of the EU and the UK. These arrangements provide bridges towards the framework for the future relationship. In the transition, the EU and the UK will need to work through a lot of detailed negotiations and operational implications to implement Phase 1 matters, negotiate Phase 2 and prepare for the end of Phase 2.

Source: European Council (Art. 50) guidelines for Brexit negotiations

European Commission

The Commission negotiated with the UK in line with the Council’s guidelines. During the process, the Commission made recommendations to the Council in relation to the negotiations.

The Council adopted the Commission’s initial recommendations, authorised the start of Brexit negotiations and published Brexit negotiating directives (22 May 2017). These negotiating directives together with the European Council guidelines described the priorities for Phase 1.

The Commission kept the member states informed throughout the process. For example, ahead of the first meeting between the EU and UK negotiators, the Commission shared draft negotiating documents with all 27 EU member states. These documents covered:

• Citizens’ rights;
• Euratom;
• Issues related to goods placed on the market before the UK’s withdrawal;
• On-going judicial and administrative procedures;
• The governance of the Article 50 agreement; and
• The method to be used to determine financial settlement.

During the negotiation, the Commission’s Brexit website provided timely updates. You can now find these and other negotiation documents in the Commission’s Brexit archive

Sources: 

European Commission, Negotiating documents on Article 50 negotiations with the United Kingdom,
Documents published as part of the European Commission’s approach to transparency on Article 50 negotiations with the United Kingdom, released before 1 February 2020

UK approach

UK team

Their supporting team included:

• Sir Tim Barrow, UK’s EU ambassador
• Claire Moriarty, second most senior civil servant at DExEU
• Glyn Williams, immigration policy

Boris Johnson became PM on 24 July 2019, succeeding Theresa May
David Davis was Secretary of State for Exiting the European Union from 13 July 2016 to 8 July 2018, when he resigned.
Dominic Raab was appointed on 9 July 2018 and resigned on 15 November 2018.
Stephen Barclay was appointed on 16 November 2018.
Claire Moriarty replaced Philip Rycroft who retired on 29 March 2019.
David Frost replaced Sir Olly Robins on 24 July 2019.

UK objectives and speeches

Lancaster House and White Paper

The February 2017 White Paper built on Theresa May’s Lancaster House speech on 17 January. It laid out the UK Government’s 12 negotiating objectives and its arbitrary ‘red lines’, which Theresa May had originally announced at the September 2016 Tory party conference. The White Paper was a political document rather than a technical document – it was high level and provided little detail. At the party conference, she had also announced that Article 50 would be triggered by the first quarter of 2017.

Table 13.1 summarises the UK’s 12 objectives for Brexit which were aspirational and related mainly to limiting the damage of Brexit. The Government’s “red lines” constrained the UK’s negotiating position by saying that, in addition to leaving the EU, the UK would leave the Single Market, the EU Customs Union and the jurisdiction of the ECJ.

On 1 February 2017, MPs voted by a majority of 384 to pass the European Union Bill giving the Government authority to trigger Article 50 and begin Brexit negotiations. The bill was supported by the Labour leadership, but the SNP, Plaid Cymru and the Liberal Democrats opposed the bill. Forty-seven Labour MPs and Tory ex-chancellor Ken Clarke voted against the bill.

The Prime Minister triggered Article 50 on 29 March 2017 before agreeing the government’s negotiating stance for the future UK-EU relationship, for example, in terms of its desired trade deal. The triggering of Article 50 started a legally-binding two-year clock for the UK to leave the EU.

Source: The United Kingdom’s exit from and new partnership with the European Union White Paper, Feb 2017

Florence

In her Florence speech on 21 September 2017, Theresa May confirmed the Government’s view was that neither the Norway (EEA-EFTA) nor Canada (a deep FTA) approaches would be suitable for the UK, but did not say what she wanted. She acknowledged that a transition period of around two years would be needed after March 2019 during which the UK would remain a member of the Single Market and the EU Customs Union.

On Northern Ireland, the Prime Minister confirmed that the UK and the EU had committed to protecting the Belfast Agreement (the Good Friday Agreement) and the Common Travel Area. Looking ahead, she was explicit that neither the UK nor the EU would accept any physical infrastructure at the Irish border with Northern Ireland. This goal contradicts the red lines of leaving the Customs Union and the Single Market, which creates a customs border between Norther Ireland and the EU.

Mansion House

At the Mansion House on 2 March 2018, Theresa May laid out some elements of her vision for the future UK-EU relationship. It included some blurring of the UK’s red lines, for example in relation to the role of the ECJ, but maintained unresolved contradictions such as leaving the EU Customs Union but avoiding a border on the island of Ireland. The speech contained several examples of where the UK wanted to maintain benefits of EU membership after leaving the EU (such as having influence over EU standards and rules) but to be able to diverge from them when it suits the UK. This stance was commonly referred to as the UK “wanting to have its cake and eat it” or “cherry-picking”.

Most commentators viewed the Mansion House speech as short on the concrete details needed for the Phase 2 negotiations. Four months later, the Chequers White Paper attempted to provide these.

Phase 1 agreement – March 2018

On 19 March 2018, the UK and the EU agreed that there will be a transition period for 21 months to 31 December 2020 (coinciding with the end of the EU’s current seven-year financial plan). In this period the UK would continue to be a member of the Single Market and the Customs Union.

The UK and the EU also reached agreement on citizens’ rights (but further details were still needed) and the UK’s financial settlement. Free movement of EU citizens in the UK and UK citizens in the EU will continue. However the Irish border question was unresolved as was governance (principally the role of the ECJ).

In the transition period, the UK has no say in new EU laws and regulations but will comply with them. The EU guaranteed that it would consult with the UK in the transition. For some UK politicians, this represented an unacceptable loss of UK sovereignty.

Following the UK’s departure at the end of the Article 50 period, work will continue to complete the complex negotiations in relation to trade and other matters. The UK’s aim was for this work to complete before the end of the transition period but most observers said at the time that this aim was unrealistic (this was before subsequent extensions to Article 50).

Chequers White Paper – July 2018

On 12 July 2018, for the first time since the referendum vote in June 2016, the Chequers White Paper (‘The future relationship between the United Kingdom and the European Union’) described in 90 pages the UK Government’s proposals for its future relationship with the EU. The White Paper contained more detail than the subsequent November 2018 Political Declaration.

The Chequers proposals proved divisive in Parliament – leading to cabinet resignations and objections from Tory MPs.

Although this meant that the Chequers proposals were shelved, it is worth looking at them to appreciate the breadth and complexity of issues that the UK’s future relationship with the EU will need to embrace. We discuss the White Paper in Appendix G under its three sections:

• Economic partnership
• Security partnership
• Cross-cutting cooperation

The appendix also considers its interaction with government legislation.

EU reaction to Chequers White Paper

The Brexit Steering Group of the European Parliament gave a cautious welcome to the Chequers White Paper. They saw it as a basis for starting negotiations.

The priority for the EU was to finalise the Withdrawal Agreement and, in particular, resolve the Irish border question while preserving the integrity of the Single Market and its four freedoms of movement (goods, services, capital and people). The political agreement on the future relationship was the second priority.

Following discussion with EU ministers, Michel Barnier said that the Commission welcomed proposals in the White Paper. They could form the basis for constructive discussions for the political agreement, but the Commission made it clear in July that it was looking for practical and workable solutions, but not more bureaucracy. Michel Barnier also highlighted the links between goods trade and services trade, and the need to consider them because freedom of movement of goods on its own was not a viable option.

In the UK, one main area of debate was the most appropriate model for UK-EU trade arrangements. To minimise the economic damage of Brexit, UK politicians revived discussion of alternative trade models such as the Canadian FTA or an EEA-EFTA arrangement. For all options, customs arrangements were a key consideration, because of the implications for the Irish border.

Sequence

Phase 1 agreement – December 2017

Phase 1 related solely to the Withdrawal Agreement and prioritised the urgent issues of citizens’ rights, the Irish border and the financial settlement. Negotiations began on 19 June 2017, shortly after the UK General Election on 8 June.

On 8 December 2017, the European Commission President, Jean-Claude Juncker, and the UK Prime Minister, Theresa May, confirmed sufficient progress on Phase 1 to allow Brexit negotiations to move to Phase 2. They had agreed in principle on the three priorities and other issues. They endorsed a Joint Report setting out a common understanding on the future Withdrawal Agreement. On 15 December, the European Council officially adopted guidelines confirming this progress.

The negotiations moved on to Phase 2 where the goal was to agree a legally-binding Withdrawal Agreement and the principles for the future UK-EU relationship, in a Political Declaration. Although the Phase 1 priorities had been agreed in principle, there was still much detailed technical work to be done on Phase 1 in parallel with the Phase 2 activities.

At the end of Phase 1, the UK and the EU had agreed:

• EU citizens
  • EU citizens in the UK and UK citizens in the rest of the EU have the right to stay. Rights of their children and those of partners in existing “durable relationships” are also guaranteed.
  • UK courts will preside over enforcing rights over EU citizens in Britain but can refer unclear cases to the ECJ for eight years after withdrawal.
• Irish border
  • Promise to ensure there will be no hard border and to uphold the Belfast agreement.
  • UK, including Northern Ireland, will leave the EU Customs Union.
  • Unclear how an open border will be achieved.  If there is no solution, the UK will ensure “full alignment” with the rules of the EU Customs Union and Single Market.
  • No new regulatory barriers will be allowed between Northern Ireland and the rest of the UK without the permission of Stormont in the interest of upholding the Good Friday Agreement.
• Financial settlement
  • Described the principles to calculate the bill but does not provide an amount.
  • UK agreed to pay into the EU budget as normal in 2019 and 2020 and agreed to pay its liabilities such as pension contributions.
• Other issues
  • Need for cooperation on nuclear regulation and police and security issues.
  • Ensure continued availability of products on the market before withdrawal and to minimise disruption for businesses and consumers.

Phase 2 overview

Although Phase 2 began on 16 December 2017, it was going to be challenging to complete the Withdrawal Agreement and the Political Declaration by March 2019. In parallel with the Withdrawal Agreement, the details of the transition arrangement were being negotiated. The timetable had to allow time for approval by the EU27 leaders and by the European and UK Parliaments. This meant that most of the work on Phase 2 needed to complete by the autumn of 2018.

The EU timetable had set the European Council meeting in October 2018 as the target date to finalise the Withdrawal Agreement. The UK had indicated that it thought it was likely that the Agreement would not be ready until a few weeks later.

The Withdrawal Agreement includes the legal form of the items agreed in Phase 1, and others such as the alternative arrangements for Euratom. Without an agreed Withdrawal Agreement, there would be no transition period and the UK would leave the EU with nothing legally agreed. All informed observers (and most MPs) believe that ‘no deal’ would be disastrous for the UK. Please see the section on ‘no deal’ for details of the implications.

The UK Government had said in 2016 and 2017 that it was aiming for a full agreement on the future relationship (including a trade agreement) by the autumn of 2018. However, the EU Select Committee of the House of Lords and most external observers concluded some time ago that this was unrealistic. The Government failed to achieve its aim.

Draft Withdrawal Agreement

On 28 February 2018, in the absence of any proposal from the UK, the European Commission published a draft proposal for the Withdrawal Agreement. The draft reflected the December 2017 agreement and provided further proposals to deal with the Irish border issue, including a ‘backstop’ that would preserve the Good Friday Agreement (an international treaty) if there was no alternative solution.

Highlights from the Commission’s first draft:

• Northern Ireland will remain part of the EU Customs Union and maintain full regulatory alignment – effectively imposing a new trade boundary in the Irish Sea.
• ECJ will retain legal authority to adjudicate any disputes that arise in relation to the withdrawal treaty (for example, any disagreements on citizens’ rights or the UK’s continuing financial obligations to the EU).
• Transition period will end on 31 December 2020, the final day of the EU’s current long-term budget plan.
• During the transition, the UK will lose all voting rights and decision-making power but must comply with all existing EU laws and regulations plus any new rules adopted by the EU27. The UK would have no recourse if it opposes any new EU policy or rule.
• All existing EU regulatory, budgetary, supervisory, judiciary and enforcement instruments and structures will apply.
• During the transition, the UK will remain a member of the Customs Union and the Single Market (with all four freedoms). As a result, the UK will continue to apply and collect EU customs tariffs and perform all EU border checks for imports from third countries.

The European Council reconfirmed its readiness to establish partnerships with the UK in areas such as the fight against terrorism and international crime, as well as security, defence and foreign policy.

The European Council said it would continue to follow the negotiations closely and would adopt additional guidelines at one of its next meetings, particularly regarding the framework for the future relationship. It called on the UK to clarify its position on the framework.

Events March 2018 – October 2019

On 19 March  2018, the European Commission published an updated draft of the Withdrawal Agreement, outlining completed and uncompleted areas.Table 13.2 summarises the timing of the main events after March 2018.

In July, the Government published a White Paper on its proposals for the future relationship – the Chequers proposal. See Appendix G for details. Disagreements in the Conservative party over Chequers led to cabinet resignations and the proposals were shelved.

On 20 September, the EU leaders met informally in Salzburg , and reconfirmed the EU’s objections to the Chequers proposal.

On 18 October, the European Council met and decided that insufficient progress had been made to finalise the WA, principally in relation to the Irish backstop.

On 14 November, the WA agreed between the EU and the UK, was published, subject to UK and EU Parliamentary approval. See Appendix F for details of the WA.

On 25 November, European Council (leaders of the EU27) approved the WA unanimously (even though approval required only a supermajority from leaders representing at least 20 of the 27 states and 65% of the population).

On 15 January 2019, the Commons voted down the WA in a resounding defeat for the Government. The Government then survived a no-confidence motion on 16 January.

On 29 January, MPs approved an amendment requiring the Government to seek changes to the Irish backstop. However, on 14 February the Government lost a non-binding motion that sought to endorse its negotiating strategy.

On 12 March, the Commons voted down the WA for a second time, even though it was accompanied by a joint interpretative statement and a joint statement agreed with the EU.

On 21 March, UK and EU agreed to extend Article 50 until either 22 May, subject to MPs approving the WA, or until 12 April if they did not approve it.

On 29 March, the Commons voted down the WA for a third time. Three options were then available to the UK:

• Revoke Article 50;
• Request the EU to extend Art50 period again; or
• Take the ‘no deal’ option.

On 11 April, UK and EU agreed to extend the Article 50 period to 31 October 2019 (details below). As a condition for extended EU membership, the UK undertook to hold European elections on 23 May (if not, the extension would have been limited to 30 June).

On 24 July, Theresa May stood down and Boris Johnson became Prime Minister. Around 160,000 Conservative Party members could vote for who they wanted to replace Theresa May as leader of the Conservative Party and therefore Prime Minister. Boris Johnson won 92,153 votes, while Jeremy Hunt won 46,656.

On 28 August, the PM prorogued Parliament which the Supreme Court of the UK deemed unlawful on 24 September (see details below).

On 2 October, the Government published new proposals for amendments to the the May Withdrawal Agreement focusing mainly on the arrangements for the island of Ireland but also removing level playing field undertakings (see below).

On 8 October, Parliament was prorogued again until 14 October.

17 October, UK and EU amended Johnson’s proposals and agreed changes to the Ireland/Northern Ireland Protocol and the Political Declaration.

19 October, the Commons passed the Letwin amendment that withheld Commons approval until the details of the Withdrawal Bill had been agreed.

19 October, Government requested the EU for a third extension to Article 50 to 31 January 2020. The EU granted the extension on 28 October.

Commons voting in more detail

In the UK, in November 2018, the next step was for Parliament to vote on the Withdrawal Agreement. UK legislation required the Parliamentary vote to take place before the end of January 2019. The vote was scheduled for 7pm on Tuesday 11 December, but the Government, recognising that it faced defeat, pulled it on 10 December,

The first ‘meaningful vote’ then took place on Tuesday 15 January 2019 and resulted in a resounding defeat for the Government: 432 MPs voted against and 202 voted for it (majority of 230).

The EU stated repeatedly that the legally-binding Withdrawal Agreement is not open to renegotiation but small changes to the Political Declaration could be possible. Given the scale of the Government’s defeat, minor amendments would not make the agreement acceptable to MPs.

Considerable political uncertainty followed the Government’s defeat on 15 January. The Government survived a no-confidence vote on 16 January (325 to 306, majority 19), and then tried to create a version of the WA that could be passed, with further assurances from the EU.

On 29 January 2019:

• MPs passed the ‘Brady amendment’ to approve the WA subject to the PM negotiating alternative arrangements for the Irish backstop (317 to 301, majority 16).
• MPs passed the ‘Spellman amendment’ to reject a no-deal Brexit in principle (318 to 310, majority 8).

Even with these changes, Commons approval seemed unlikely. In addition, the EU would need to agree any changes.

On 14 February, there was a second non-binding and, therefore, largely symbolic Commons vote. Its aim was to endorse the Government’s negotiating strategy. The Government lost this vote (303 to 258, majority of 45) which undermined its authority and reduced its credibility with Brussels. In the debate the Government confirmed that its strategy was to leave on 29 March with ‘no deal’ if Parliament does not approve the WA. This ignored the will of the Commons which was clearly against ‘no deal’.

The next binding vote in the Commons on the WA was scheduled to take place on 27 February, but the Government deferred it to 12 March. Ahead of the vote, the Government provided three additional documents (including a joint interpretative statement and a joint statement agreed with the EU), providing legal clarifications and assurances. On 12 March, MPs voted the WA down by 391 to 242 votes, majority of 149.

It had seemed likely that the Government would try again for Commons approval for the WA, probably on 19 or 20 March. However, the Speaker ruled on 18 March that the Government could only bring the WA (and the PD) back to the Commons with substantive changes or if the context for the vote changed. Even if the WA passed, a short extension to Article 50 would be needed to process the relevant legislation. If no further vote took place or it did not pass, a longer delay would be needed (assuming UK does not leave with no deal).

The Commons also had four other important votes:

• On 13 March MPs voted against no deal (321 to 278, majority 43)
• On 14 March MPs voted to extend the Article 50 period (412 to 202, majority of 210), subject to unanimous approval by the EU27
• MPs rejected the so-called Malthouse Compromise
• MPs rejected an initial vote for a second referendum, mainly because Labour whipped an abstention on it.

The PM said on 11 April that she might bring the WA back to the Commons for a fourth meaningful vote depending on the outcome of discussions with Labour. However, those discussions were inconclusive.

Note that, even if the Commons had passed the WA, the volume and the complexity of primary legislation (six bills) and secondary legislation (over 350 statutory instruments were unapproved as at 12 March) was so great that Parliament would have needed considerable time to process the legislation. Even if the UK had left the EU on 29 March 2019, it would not have been the end of Brexit but the beginning. It would have started years of Brexit negotiations on the future relationship between the UK and the EU, probably to the mid 2020s.

Requests for extension

On 20 March the Prime Minister wrote to Donald Tusk asking for a short extension to 30 June.  The EU rejected this proposal and proposed two dates: 22 May if the UK approved the WA or 12 April if it did not.

On 29 March there was a third meaningful vote and the Government was again defeated (344 to 286, majority of 58).This meant that the offer of an extension to 22 May expired and that the UK was due to leave the EU with ‘no deal’ on 12 April.

On 5 April, the Prime Minister wrote again to Donald Tusk asking for an extension to 30 June. The EU Council met in an emergency session on 10 April to consider her request.

On 11 April, the EU Council and the UK government agreed an extension of the Article 50 period to 31 October, in order for the UK to approve the WA. There was a review at the EU summit on 20-21 June. If the WA is ratified by both sides earlier, the UK will leave on the first day of the following month. If not, it may be possible for the deadline to be extended again – if the UK requests it and the EU agrees. Alternatively, the UK will leave the EU on 31 October with no deal.

The UK participated in EU elections on 23 May. If the United Kingdom had failed to live up to its obligation to hold elections, the UK would have left on 1 June 2019, with ‘no deal’.

The terms of the extension of Article 50 precluded any re-opening of the WA. The European Council has also stressed that such an extension could not be used to start negotiations on the future relationship, but it would consider amendments to the Political Declaration.

In the meantime, the EU imposed no conditions to deny the UK its rights as an EU member. On its side, the UK undertook to respect its obligations in the EU treaties, for example to follow the principle of sincere cooperation and to refrain from doing anything that would jeopardise the attainment of the EU’s objectives.

Consolidated Version of the Treaty of the European Union, 9 May 2008

September and October 2019

Recap: September – October

If Parliament had not approved the WA (or a modified one), no action was taken and no revocation or extension had occurred the UK would have left the EU with no deal on 31 October 2019. The Government and the Bank of England assess that ‘no deal’ would be catastrophic for the UK. Please see the section on ‘no deal’ for details of the implications.

On 9 September, the Benn-Burt Bill (often referred to simply as the ‘Benn Bill’) received Royal Assent. It prevents the government from leaving the EU without a deal on 31 October and requires it to seek an extension from the EU if there is no deal (scroll down for details.)

On 10 September, Parliament was prorogued – suspended – and prevented from holding the government to account (scroll down for details).

The Government says it is pursuing a deal with the EU. However, it seems impossible to refine the WA to make it acceptable to both the EU or MPs. Legal experts also say that there is insufficient Parliamentary time before 31 October to approve a new WA.

On 24 September, 11 judges of the Supreme Court unanimously decided that the Prime Minister had illegally suspended parliament. Parliament resits on 25 September.

On 27 September, an exchange of letters between Stephen Barclay and Michel Barnier confirmed that little substantive progress had been made.

On 2 October, the Prime Minister sent the UK’s proposed changes to the WA to the EU, but these were not seen as workable. Parliament was prorogued a second time from 8 October until 14 October.

On 17 October, the EU and the UK agreed revisions to the Withdrawal Agreement relating to the  Ireland/Northern Ireland Protocol and the Political Declaration.

On 19 October, at an unusual Saturday sitting of Parliament, the Commons passed (322 to 306, majority of 16) the Letwin amendment which said that Parliament will withhold approval of the Johnson deal until the withdrawal bill implementing Brexit has been passed. Later that evening, the Government asked the EU for an extension of Article 50 to 31 January 2020 (as required by the Benn-Burt Bill).

Late on 21 October, the Government published its draft withdrawal bill. On 22 October, the Commons voted (329 to 299, majority of 30) in favour of a second reading which would allow detailed scrutiny and the addition of amendments, but voted against the programme motion (322 to 308, majority of 14) because it allowed very little time to do this. As a result, the Government decided to pause the progress of the bill through Parliament.

On 28 October, the EU granted that request for a third extension (details to follow).

An act of Parliament is needed to implement the Withdrawal Agreement in order to meet:

• International obligations: when the UK becomes party to an international treaty, the treaty does not automatically take effect in UK law. Instead, Parliament must legislate to give effect to the treaty.
• Requirements of prior legislation: under the EU (Withdrawal) Act, Parliament must pass a further Act before the UK is allowed to ratify the treaty.

Note that, even with a further extension to 31 January, if Parliament still does not approve a deal or Article 50 is still not revoked, the UK would leave the EU without a deal on 1 February 2020.

Revocation

Throughout the Article 50 period, including any extension, the Government retains the power to revoke Article 50, which would prevent ‘no deal’ as the UK would remain a member of the EU.

The ECJ ruled on 10 December 2018 that the UK has the power to revoke Article 50 unilaterally. If it did revoke, the UK would remain a member of the EU on its current terms – retaining its budget rebate and its opt-outs from the Euro and Schengen.

Note that it would not be feasible for the UK to revoke Article 50 and re-trigger it shortly afterwards.

Prorogation – suspension of parliament

Prorogation is a formal mechanism to end a session of Parliament until proceedings begin again with a new Queen’s speech. A prorogation means Parliament’s sitting is suspended, closing down Parliament completely: no legislation can be passed, and members of Parliament cannot scrutinise the executive (neither in the Commons nor through committees, written questions etc.).

The Crown exercises its prerogative power on the advice of the Privy Council. The process has been a formality in the UK for more than a century: the Government of the day, through the Privy Council, advises the Crown to prorogue and the Crown grants the request.

On 28 August, the Queen approved the Privy Council’s request to prorogue Parliament from 10 September or just before. The PM planned for Parliament to return on 14 October. Parliament would have been closed for five weeks between 10 September and 14 October, which represents 23 working days.

This prorogation was significantly longer than normal for starting a new Parliamentary session. Since the 1980s, prorogation has rarely lasted longer than two weeks (and, between sessions during a Parliament, has typically lasted less than a week). It has always led either to the dissolution of the current Parliament (prior to a General Election) or to the start of a new Parliamentary session.

The suspension of Parliament would have meant that all legislation in process would fall and would have to be started again when Parliament restarted. This would have included bills currently before Parliament required to provide legal certainty after a no-deal Brexit such as in relation to immigration, trade and agriculture. Also, prorogation would have meant that the Withdrawal Agreement could, in theory, be brought before the Parliament again in the new session.

The reduction in sitting days meant there would have been insufficient time for Parliament to pass a new backstop-free WA (if one could be negotiated). Therefore, the stated position of the Government that it wished to renegotiate the WA before 31 October was implausible.

The only plausible explanation for prorogation was that the PM wanted to close down Parliamentary scrutiny of the Government’s  plans.

The correct step for a Government frustrated by Parliament (elected by the people) would be to seek the support of the people through a General Election or a referendum.

Prorogation vs recess and dissolution

Prorogation is quite different to a recess – a break in the parliamentary session – which was due to take place from roughly 13 September to 8 October 2019 to allow for party conferences. During a recess, there are no sitting days, but Parliament still functions and current legislation is not guillotined. Select committees, for example, continue with their work, and MPs can ask written questions. In prorogation, everything stops.

Parliament normally votes on a recess. In 2019, it looked increasingly likely that Parliament might vote against it, but prorogation meant that no such vote could take place.

Prorogation is distinct from dissolution. The dissolution of Parliament brings the current Parliament to an end. Members of the House of Commons cease to be Members of Parliament. A General Election is then held to elect new MPs. The Government remains in office but there are conventional constraints on what it can do during the election period. A short period of prorogation usually precedes dissolution.

What might MPs have done?

Any meaningful effort to block ‘no deal’ had to take place in the week of 2 September. If it was left until after 14 October, there would be insufficient time for ‘no deal’ to be stopped. In early September, there were three options.

The first option was for MPs to seek to change the administration by a vote of no confidence. Such a process is now largely governed by the 2011 Fixed-term Parliaments Act. However, a vote of no confidence needed Parliamentary time, which was limited by the suspension. As a result, Brexit may have happened before anything resulted from such a vote.

The law does not require the Prime Minister to resign even if Parliament passes an initial motion of no confidence. Instead, it stipulates that there should be a further confidence vote 14 days later. MPs would therefore have 14 days to find someone else to be PM. If they fail, the incumbent PM would remain in post and set the date for an election.

The only way to replace a current PM is if the Commons make it clear that there is someone else better placed to command the confidence of the House. To do this, the alternative candidate could demonstrate greater support than the total MPs who make up the whipped vote of the Tory/DUP grouping (which stood at 320 but was reduced by the loss of DUP support and rebel Tory MPs). If no candidate succeeds, an election would almost inevitably follow. The PM would then set the date of that election.

The second option was for Parliament to legislate to oblige the Government to request the EU for an extension to the Article 50 period beyond 31 October. The Benn-Burt Bill did this (scroll down for details).

A third option is that, given the Parliamentary impasse, the Brexit issue should be dealt with separately through a referendum (or a General Election, which is quicker, but mixes Brexit up with other issues).

Legal challenges

In parallel with these routes forward, there were three legal challenges. Two challenged the legality of the prorogation, and one challenged ‘no deal’.

1. The SNP MP, Joanna Cherry, Jolyon Maugham and others, took action in the Scottish Court of Session on 3 September:

• The judges rejected her case on the basis that prorogation is a political matter in which the court does not have the power to intervene.
• She appealed and, on 11 September, Scotland’s highest civil court ruled that the suspension of the UK Parliament is unlawful.
• The ruling did not immediately affect the current suspension of Parliament, because no order had been given by the court to cancel the suspension ahead of the full hearing at the UK Supreme Court in London which took place 17-19 September.

2. Gina Miller’s lawyers urgently applied to the High Court for a judicial review of Mr Johnson’s plan to prorogue Parliament. She was joined by Sir John Major:

• Case was heard on 5 September and on 6 September their legal challenge dismissed.
• Judge ruled that the Prime Minister’s decision to prorogue was inherently political and that there are no legal standards against which to assess its legitimacy.
• Judge granted leave for an appeal to the UK Supreme Court which was heard 17-19 September. The hearing involved 11 judges (the maximum numbers permissible) and lasted three days.

3. In Belfast, the Troubles victims’ campaigner, Raymond McCord, brought legal actions at the High Court in Northern Ireland aimed at challenging the prorogation and stopping ‘no deal’. Mr McCord sought an urgent injunction to force the prime minister to reverse his plans.

• NI High Court decided not to consider the prorogation challenge because similar challenges were before English and Scottish courts.
• They heard the claim that a no-deal Brexit and the imposition of a hard border would damage the NI peace process, endanger the Good Friday Agreement and harm the economy.
• Hearing took place on 12 September and the claim was dismissed.
• NI appeal court heard appeals against the decision on Friday 13 September.
• On 27 September, the Belfast judges decided the issue was non-justiciable and refused leave to appeal. However the plaintiffs may petition directly for a Supreme Curt hearing.

Supreme Court ruling

The two prorogation appeals reached the UK Supreme Court in London on Tuesday 17 September for a three-day hearing. The Supreme Court gave its judgement on 24 September.

The Supreme Court:

• Found that the decision to prorogue Parliament was unlawful because it had “the effect of frustrating or preventing the ability of parliament to carry out its constitutional functions without reasonable justification.”
• Found that “no justification for taking action with such an extreme effect has been put before the court.”
• Upheld the Court of Session’s ruling that prorogation was void.
• Stated that the Privy Council’s decision to ask the Queen to suspend parliament was also “unlawful, void and of no effect and should be quashed”. In effect, the judges said “Parliament has not been prorogued”.

There is no appeal against a Supreme Court ruling.

Parliament resumed its sitting on 25 September.

Sources: House of Commons Library, Prorogation of Parliament, June 2019

BBC News, 30 August 2019

Opinion of Lord Doherty, Court of Session, September 2019

BBC News, 12 September 2019

Benn-Burt Bill

The purpose of the Benn-Burt Bill was to ensure that the UK did not leave the EU on the 31 October without an agreement, unless Parliament consented.

The Bill gave the Government time either to reach a new agreement with the EU at the European Council meeting in October or to seek Parliament’s specific consent to leave the EU without a deal.

If neither of these two conditions had been met by 19 October then the Prime Minister had to send a letter to the President of the European Council requesting an Article 50 extension until 31 January 2020.

• If the European Council agrees to an extension to 31 January 2020, then the Prime Minister must immediately accept it.
• If the European Council proposes an extension to a different date then the Prime Minister must accept that extension within two days, unless the House of Commons rejects it.

Clause 2 of the Bill gave Parliament, and the Commons in particular, an ongoing role in scrutinising progress towards the securing of a deal between the UK and the EU. The Government must publish a report on 30 November explaining what progress it has made. MPs would then, by 5 December, be asked to ‘approve’ that report.

If MPs do not approve that report or amend the report’s approval motion, the Government would then have to set out a further report explaining what it proposes to do in the negotiations. This second report would have to be published by 10 January 2020. This reporting and approval requirement then repeats every 28 days until either the UK reaches a deal with the EU or the Commons resolves that the requirement should cease.

Source:
House of Commons Library, The Benn-Burt Bill: Another Article 50 Extension?, 4 September 2019 Benn-Burt Bill as tabled

Johnson agreement

Johnson’s initial proposals

On 2 October, the Prime Minister sent the UK’s proposed changes to the WA/PD to the EU, but these were not seen as workable (see my assessment of 14 October here). Its proposals for two borders and customs checks on goods traffic between Ireland and Northern Ireland, were cumbersome and would have endangered peace in Northern Ireland.

The publicly available documents consisted of a short letter to Jean-Claude Juncker, the outgoing President of the European Commission, and a seven-page explanatory note. The government also made a confidential  legal text available to the European Commission, but not to the public nor to member states. The proposals were high level and did not explain how they would operate in practice or provide legal certainty to the EU, businesses or government departments.

Brussels’ initial response, given by the Brexit Steering Group of the European Parliament, was underwhelming:

“The proposals do not address the real issues that need to be resolved, namely the all – island economy, the full respect of the Good Friday Agreement and the integrity of the Single Market.”The UK proposals would operationally only be worked out in detail by the EU and the UK, or in the UK unilaterally, during the fourteen-month transition period. This does not provide the necessary certainty or fulfil the agreed principles in the Withdrawal Agreement.

In summary, [we have] grave concerns about the UK proposal, as tabled. Safeguarding peace and stability on the island of Ireland, protection of citizens and EU’s legal order has to be the main focus of any deal. The UK proposals do not match even remotely what was agreed as a sufficient compromise in the backstop.”

Johnson’s final agreement

Negotiations continued and on 17 October the UK and the EU agreed the final draft Withdrawal Agreement and Political Declaration. The Withdrawal Agreement was subsequently ratified and entered into force on 31 January 2020.  On 23 January, parliament passed the Withdrawal Agreement Act, which implements the agreement in UK law.

The final version included several revisions, which reflected UK concessions on Johnson’s proposals. For full details, please go to Appendix F, Withdrawal Agreement and Political Declaration.

Key points to note are:

• Customs territory. After the transition period, at the end of 2020 (or 2022, if extended):
  • UK would leave the EU customs territory i.e. before a long-term trade treaty is negotiated.
  • Northern Ireland will officially be part of the UK’s customs territory, meaning that it applies UK tariffs to imports from outside the UK and can participate in future British trade deals.
  • At the same time it would be within the EU customs territory, meaning that the EU-UK customs border for Ireland and Northern Ireland will be placed in the Irish Sea.
  • NI follows most of the EU’s customs and regulatory rules. (See Table 13.3 for an overview of NI-ROI trade).
• The spirit of the GFA would be preserved as there would be no checks at the land border between NI and ROI.
  • Northern Irish products can cross the border without having to pass any controls – friction-free.
• The level-playing provisions are still absent from the WA for Great Britain, but:
  • The PD (clause 77) now includes the original WA commitments to: “open and fair competition, encompassing robust commitments to ensure a level playing field. Given the Union and the UK’s geographic proximity and economic interdependence, the future relationship must ensure open and fair competition, encompassing robust commitments to ensure a level playing field.” These commitments include those that relate to state aid, competition, social and employment standards, environment and climate change, and tax.
  • The legally-binding WA Article 184 commits both sides to “use their best endeavours, in good faith” to deliver the intentions of the PD.
• The VAT arrangements are principally unchanged from the original Protocol.
  • NI remains in UK VAT area.
  • NI follows EU law on VAT and continues to use EU IT systems.
  • UK continues to be responsible for implementing EU rules on VAT.
  • Reduced Irish VAT rates may apply in NI.
• The mechanism for democratic consent underpins the deal:
  • New trading arrangements will take effect at the end of the transition period without any NI vote of consent.
  • After four years, the NI Assembly will hold a vote to continue the arrangements and the associated divergence between NI and GB rules.
    • If it agrees by a simple majority, the trading rules will apply for a further four years. If there is “cross-community” support in the assembly, they will apply for a further eight years. Cross-community support requires a majority among parties on each side of the republican-unionist divide, or the support of 60% of members, including 40%
      on each side.
    • If the vote fails to win a simple majority, the new trading rules will only extend for two years. During that period the Joint Committee will have to work out a new system to keep the border open while protecting the Single Market.
• Interpretation and dispute resolution:
  • Specialised Committee on the Protocol considers issues relating to the interpretation and implementation of the Protocol.
  • Joint Committee of the WA is available to reconsider any issues which the Specialised Committee is unable to resolve.
  • WA also provides for reasonable means to settle these disputes, including with an arbitration procedure.
  • Protocol allows each Party to take appropriate unilateral safeguarding measures to remedy if application of the Protocol leads to serious economic, societal or environmental difficulties. If these unilateral measures look excessive, the other Party may take re-balancing measures.

Please go to the Brexit FactBase section on impact assessment for the economic implications of Johnson’s proposals. Go to the Brexit FactBase section on trade for descriptions of current UK-EU trade arrangements and the trade barriers that Brexit causes.

• Legislative implementation
  • 23 January 2020, European Union (Withdrawal Agreement) Act 2020 passed
  • 24 January 2020, Brexit Withdrawal Agreement signed
  • 31 January 2020, UK left EU
• • • Article 50 period ended
    • Transition period began
    • Transition lasts to 31 December 2020 (with possible extension)

Please go to the Brexit FactBase section on Negotiations from 1 February 2020 for details of the subsequent negotiations on the UK’s post-Brexit relationship with the EU.

Sources on 17 October agreement:
Overview of Northern Ireland Trade, Northern Ireland Statistics and Research Agency, 19 June 2019
Brexit deal: Withdrawal Agreement, Institute for Government
Brexit deal: Northern Ireland Protocol, Institute for Government
Brexit deal: Political Declaration on future UK-EU relationship, Institute for Government

Sources on 2 October proposals:
The economic impact of Boris Johnson’s Brexit proposals, The UK in a Changing Europe, 14 October 2019
The lies that bind us, The Brexit Blog, Professor Chris Grey, University of London, 5 October 2019
The four flaws in Boris Johnson’s proposals for a rewritten Brexit deal, Alex Stojanovic, Institute for Government, 3 October 2019
Johnson’s Brexit proposal is riddled with problems, Professor L Alan Winters CB, UK Trade Policy Observatory, Sussex University, 3 October 2019
Brexit, Miracle of the century, Richard A North, EU Referendum blog, 3 October 2019

Last updated on 20th May 2024 by Richard Barfield