Status of UK
The transition period began on 1 February 2020, when the UK was no longer an EU Member State, and would run to 31 December 2020. As a result, the EU and UK only had eleven months to agree a new partnership, based on the Political Declaration of October 2019.
In the WA, there was a one-time opportunity to extend the transition period to either 31 December 2021 or 2022. But, to exercise the option, the UK and the EU needed to agree to do so before 1 July 2020.
The UK’s new status during the transition period meant:
- UK representation ceased in the EU institutions, agencies, bodies and offices.
- UK no longer played any part in the EU’s decision-making processes.
- EU law applied in the UK until the end of the transition period.
- This excluded the provisions of the Treaties and acts, which were not binding upon and in the UK before 1 February 2020. The same was true for acts amending such acts.
- European Court of Justice (ECJ) continued to have jurisdiction over the UK during the transition period. This also applied to the interpretation and implementation of the WA.
- UK could conclude international agreements with third countries and international organisations even in areas of EU exclusive competence (such as trade).
- EU had to authorise such agreements to enter into force, or to start applying, during the transition period.
As all EU law, across all policy areas, still applied to and in the UK during the transition period, the UK:
- remained in the EU Customs Union and in the Single Market with all four freedoms, and all EU policies applying;
- continued to apply the EU’s Justice and Home Affairs policy;
- was able to exercise its right to opt-in/opt-out to/of measures amending, replacing or building upon EU acts to which the UK was bound as a Member State;
- was subject to the EU’s enforcement mechanisms, such as infringement procedures;
- had to respect all international agreements the EU has signed;
- could not apply new agreements in areas of EU exclusive competence, unless authorised to do so by the EU.
Was an extension possible?
As time was short for the UK and the EU to agree and ratify the terms of their future relationship, there was a clear need for more time. If so, how could this have been done?
An Institute for Government paper set out the options to secure more time after 30 June. These options could have been used to continue negotiations after 31 December and prepare for the huge changes to the trading relationship, or to give businesses more time to prepare.
The paper said agreeing an extension by 30 June would have given the government the greatest certainty, flexibility and control. It went on to set out four ways that the UK and EU could create more time:
- Amend the end date of the transition period in the Withdrawal Agreement. This could be done at any point after June. but it would have first required the ECJ’s legal opinion.
- Create a new transition period to begin on 1 January 2021 . This would have meant striking a new, complex agreement and a lengthy ratification process, alongside future relationship negotiations.
- Include an implementation phase as part of the future relationship treaty. This would have given businesses time to make investment decisions and adapt supply chains.
- Create an implementation phase to prepare for a potential no-deal exit. Agree a temporary deal to allow traders to adapt to a no-deal scenario if talks had broken down.
All four options are politically sensitive and/or legally complex.