Overview
On 17 October 2019, the UK and the EU agreed the final draft Withdrawal Agreement and Political Declaration. The Withdrawal Agreement was ratified and entered into force on 31 January 2020. On 23 January 2020, Parliament passed the Withdrawal Agreement Act, which implemented the agreement in UK law.
The Withdrawal Agreement (WA) confirms the details of the financial settlement of current obligations and also largely protected citizens rights as they were for EU citizens living in the UK on exit day. It also contains three protocols (on the border between Ireland and Northern Ireland, the UK’s Sovereign Base Areas in Cyprus, and Gibraltar) and nine annexes. it also deals with separation issues to minimise disruption to people and businesses.
In October 2019, the EU and the UK agreed a small number of changes to May’s 2018 WA principally in relation to the Irish backstop. Only two Articles in the main Withdrawal Agreement changed from the November 2018 text, and the changes were minor. This means that the rest of the Agreement remains the same. The main differences are in the Protocol on Ireland/Northern Ireland. There were associated changes to the Political Declaration plus some other amendments.
The Brexit FactBase section on negotiations describes the changes in the final Johnson WA. The text of the original Withdrawal Agreement together with the Political Declaration on the framework for future EU-UK relations, was endorsed by EU leaders at a specially convened European Council meeting on 25 November 2018.
Structure of the WA
1 Common Provisions (p 6)
2 Citizens’ Rights (p 16)
3 Separation Provisions (p 69)
- Goods placed on the market
- Ongoing customs procedures
- Ongoing procurement procedures
- Ongoing VAT and excise duty matters
- Intellectual Property
- Ongoing Police and Judicial Cooperation in Criminal Matters
- Ongoing Judicial Cooperation in Civil and Commercial Matters
- Agriculture
- Data Protection
- Immunities and privileges
- Euratom
4 Transition (p 196)
5 Financial Provisions (p 210)
6 Institutional and Final Provisions (p 268).
Protocols
- Ireland/Northern Ireland (p 302) and Annexes to Ireland/N.I. protocol (p 331)
- Sovereign Base Areas of UK in Cyprus (p 476)
- Gibraltar (p 496)
Annexes
I. Social Security Coordination (p 505)
II. Provisions of EU law referred to in Article 41(4) (animal health) (p 529)
III. Time limits for situations or customs procedures referred to in Article 49(1) (p 531)
IV. List of networks, information systems and databases referred to in Articles 50, 53, 99 and 100 (p 533)
V. Euratom (p 547)
VI. List of administrative cooperation procedures referred to in Article 98 (p 552)
VII. List of Acts/Provisions referred to in Article 128(6) (p 555)
VIII.Rules of Procedure of the Joint Committee and Specialised Committees (p 560)
IX. Rules of Procedure for dispute settlement (p 569)
If you would like more detail on the draft Withdrawal Agreement of November 2018, please either refer to the House Of Commons research papers listed below or “Brexit Negotiations: What is in the Withdrawal Agreement”, published by the European Commission.
Transition period
The transition period ran to December 2020 but a one-time extension was possible to December 2022. It was unlikely that the future relationship would be ready by December 2020 (due to its scale, complexity and political sensitivity). The UK had to notify the EU of its wish to extend the transition period by 1 July 2020, but chose not to – despite the global pandemic.
During the transition period:
- Freedom of Movement continues and rights of EU citizens in UK remain largely unchanged
- UK makes payments to the EU budget. Financial settlement includes payments up to December 2020. Thereafter payments similar to those as member – likely to be €10 to €15 billion a year.
- UK follows EU laws and rules, including any new ones that come into force during the transition
- UK leaves EU governance bodies and has no role in EU decision-making. However EU agrees to consult with UK on new laws
- UK follows EU commercial policy (or EU trade policy)
- UK may discuss future trade agreements with other countries but may not sign or implement them
- EU law, where it applies, will continue to have supremacy over UK law
Dispute resolution
The UK and EU will first try to resolve disputes via a Joint Committee. If the Joint Committee cannot agree, then either the EU or the UK can request an arbitration panel. The EU and the UK will each nominate two members to the panel and agree a chair. If a party does not comply with a ruling, then the panel can impose a financial penalty. Temporarily, parts of the agreement could also be suspended (except in relation to citizens’ rights). If a dispute relates to interpretation of EU law, or whether the UK has complied with ECJ judgements, then the ECJ will have jurisdiction. The ECJ ruling will be binding on the arbitration panel.
Figure D.1 from the European Commission describes the governance structure for dispute resolution.
Figure D.1: Dispute resolution
Northern Ireland Protocol
The Protocol on Ireland and Northern Ireland (the Protocol) codified the “Irish backstop” referred to in the Joint Declaration of December 2017. The purpose of the backstop was to prevent a future border on the island of Ireland. This was the part of the original WA to which Johnson negotiated changes in late 2019.
The Protocol was necessary because, without it, there would need to be physical checks to ensure trust. It also provided appropriate redress mechanisms between the EU and UK. Outside the EU, no invisible borders existed. For example, between the US and Canada, there is infrastructure to check people and goods traffic (goods are subject to both customs and product safety checks). The majority of customs experts says that technological solutions to remove physical checks did not yet exist: few believed non-physical solutions would be ready by 2022.
A joint UK-EU committee would oversee the NI Protocol and the single customs territory. The Committee would take decisions by mutual consent and its verdicts would be binding. To end the Protocol, both parties must agree to end it.
Some key points to note under the Protocol (this is not a comprehensive list):
- NI continues to be a member of the EU Customs Union and the UK Customs Territory.
- NI continues to be in the Single Market for goods and complies with relevant EU laws, regulations and standards (such as technical regulation of goods, agricultural and environmental protection, state aid).
- There is an invisible border between NI and ROI but a harder border between GB and NI.
- Customs checks and controls apply for goods moving from GB to NI.
- No customs checks or controls are required for goods moving between NI and ROI.
- Goods moving directly from GB to NI are tariff-free unless the good is “at risk” of being moved into the EU afterwards.
- Goods from third countries entering NI are subject to the UK tariff, unless they are at risk of being moved to the EU, when EU tariff applies.
- European Commission and the ECJ have jurisdiction to enforce EU rules in NI. However, UK bodies will often be tasked with enforcement duties.
- Consent article gives NI democratic institutions the opportunity periodically to reject the protocol. If the Assembly vote against it, it will cease to apply two years later.
- 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.
Separation provisions
The Withdrawal Agreement covers a long list of separation issues to ensure an orderly wind-down of existing arrangements (see page 69), but provides no proposals for the future partnership.
The WA:
- enables goods placed on the market before the end of the transition period to continue to be further made available on the EU or UK market until they reach their end-user, with no need for re-certification, re-labelling or product modifications;
- provides for processes for managing and terminating ongoing intra-Union movements of goods, ongoing customs procedures as well as VAT and excise duty matters;
- protects existing unitary intellectual property rights, including the existing stock of EU geographical indications;
- winds down public procurement procedures ongoing at the time of the end of the transition period and guarantees the rights of those concerned by the procedures under Union law;
- includes provisions for winding down ongoing police and judicial cooperation in criminal matters;
- includes provisions for winding down administrative and judicial procedures (e.g. state aid and infringement cases);
- addresses the use of data and information exchanged before the end of the transition period and makes sure that data transferred before the end of transition period remain protected under the principles and provisions foreseen by Union law;
- provides for the disconnection of the UK from networks, information systems and databases established on the basis of Union law at the end of the transition period, in particular those networks that are only accessible to Union Member States or the Schengen associated countries;
- deals with ongoing judicial cooperation on commercial matters in order to make sure court judgements can be relied upon; and
- addresses all issues related to the United Kingdom’s departure from Euratom.