Summary

On 28 February the European Commission published a 119-page draft withdrawal agreement (WA) which put into legal language the conclusions of the negotiations in phase one, which was agreed in a Joint Report on 8 December 2017. It included other draft Articles on matters not covered by the Joint Report, as well as detailed provisions on broad areas of agreement.

Amended versions were published on 15 and 19 March, and the latter will be the basis for discussion by the European Council on 22-23 March.

It dealt with

  • citizens’ right
  • separation provisions
  • e Commission’s proposals for a transition period.
  • financial settlement,
  • institutional provisions as envisaged by the Commission.
  • Northern Ireland
  • The soverrign base area in Cyprus

Negotiating and amending the withdrawal agreement

What was published was a draft only. Negotiations will continue in the coming months, with a view to agreeing on a final draft in October 2019.

The EU published an amended draft text on15 March and another draft on 19 March which contained, primarily in the section on transition, areas of agreement between the EU and the UK.

If agreement on a WA text can be reached by the March European Council, the negotiations will at that point move on to discuss the future relationship between the UK and the EU.

New Draft Negotiations Guidelines were adopted by European Council on 23rd March 2018. There is a separate article on them. The new guidelines adopted on 23 March do not contain or refer to the annex.

Ratification Necessary once Agreement Finalised

Once a legal text has been agreed between the UK Government and the European Commission, it will then need to be approved by the EU institutions. Article 50 TEU also requires the European Parliament to approve the final text of the withdrawal agreement. If the EP approves the agreement by a simple majority, for it be concluded, it must be passed by European Council acting by qualified majority (20 of the other 27 Member States).

In the UK the Government has committed to holding a vote on a resolution in both Houses of Parliament, before the EP holds its vote, where each House will be asked to approve the withdrawal agreement.

Implementing the withdrawal agreement

The state of negotiations

The draft Withdrawal Agreement will “take account of” the framework for the UK’s future relationship with the EU, but will not regulate the long-term future EU – UK economic and trade relationship. This will be negotiated once the UK has left the EU and become a third country, and will be determined by a separate treaty (or treaties).

The UK and the EU will also negotiate a ‘political declaration’ on the framework for the future relationship, which will “accompany” the Withdrawal Agreement.  This will not be an international treaty but is intended to provide an agreed set of objectives as to the content of a treaty on the future relationship, the detail of which will be negotiated and agreed during the implementation or transition period.

The UK Government said in a written statement on 13 December that both Houses of Parliament will be asked to approve the political declaration on future relations at the same time as the withdrawal agreement, once the negotiations are concluded.

If the withdrawal agreement is approved and concluded, the UK Government has said it will implement the agreement through a Withdrawal Agreement and Implementation Bill. This Bill would need to be passed before exit day, expected to be on 29 March 2019 (may also apply to new exit date on 31 December 2020), in order to enable the transition to take effect at the moment that the UK leaves the EU.

EU procedures

Under Article 50 TEU the Council of the EU concludes (‘ratifies’) the withdrawal agreement by a qualified majority (20 of the EU27). European Parliament resolution on the future relationship

The EP is not involved in the negotiating process but has adopted resolutions on the negotiations, prepared by the Brexit Steering Group led by Guy Verhofstadt. Under the Article 50 procedure, the EP must give its “consent” to the WA by a simple majority before it can be “concluded on behalf of the Union” by the Council, so its views are important to the negotiators on both sides.

On 7 March the EP published a draft resolution on the framework for future EU-UK relations. The resolution confirmed earlier EP conditions,

The EP debated the resolution at its plenary session on 14 March and adopted it by 544 votes to 110 with 51abstentions.

Some key points of the EP resolution are:

  • an EU-UK association agreement would be the “appropriate framework” for future EU – UK relations;
  • the EP will assess the content of the political declaration on the framework for future relations when it is asked to give its consent to the Withdrawal Agreement;
  • EU representatives on the Joint Committee “should be subject to appropriate accountability mechanisms involving the European Parliament”;
  • a third country cannot have the same benefits as an EU or EFTA/EEA Member State;
  • a deep and comprehensive trade deal must include “a binding interpretation role” for the CJEU and there can be no sectoral “cherry-picking”;
  • there must be a “level playing field” where EU standards are safeguarded and EU competition and state aid rules are adhered to;
  • limitations in the cross-border provisions of financial services are “a customary feature” of free trade agreements;
  • the EP’s preferred option is for the UK to remain in the Single Market and customs union;
  • The EP welcomes the Commission’s draft withdrawal agreement proposal on Northern Ireland, according to which, if there is no solution to the border issue, Northern Ireland should remain in the EU customs union and maintain “full regulatory alignment”;
  • The UK could continue to participate in “civilian and military EU missions”, but would not lead them. UK procedures

 

UK approval

The UK Government has committed to holding a vote on a resolution in both Houses of Parliament before the European Parliament holds its vote, where each House will be asked to approve both the withdrawal agreement and the political declaration on the framework for the future

relationship.  The Government has said that if Parliament fails to approve the motion, the UK will leave without a deal on 29 March 2019 (may also apply to new exit date on 31 December 2020).  The Government has said the vote will be held “ as soon as

possible” after a final text on the withdrawal agreement is agreed.

The Withdrawal Agreement and Implementation Bill If the withdrawal agreement is approved and concluded the UK Government has said it will implement the agreement through a

Withdrawal Agreement and Implementation Bill. This Bill would need to be passed before exit day, expected to be on 29 March 2019 (may also apply to new exit date on 31 December 2020), in order to enable the transition to take effect at the moment that the UK leaves the EU.

Common provisions

Article 1 clarifies that the UK’s withdrawal is from both the EU and the European Atomic Energy Community (Euratom).

Article 3 makes clear that the WA will apply to the UK and its Overseas Territories and Crown Dependencies, to which the EU Treaties currently to a greater or lesser extent apply.

Article 4 refers to the domestic primary legislation needed to ensure  that any provisions of domestic legislation inconsistent with Part 2 of the WA on citizens’ rights can be “disapplied”

This confirms that if approved, the withdrawal agreement will need to be implemented through primary legislation that allows for both transitionary arrangements and the enforcement of the rights in Part 2 of the WA.

The proposed Withdrawal Agreement and Implementation Bill(WAI Bill) is expected to contain provisions that enable transitional arrangements to take effect and provide instructions to domestic courts as to the constitutional status of the rights and duties within the Withdrawal Agreement.

The WAI Bill might have to provide the domestic courts will the power to scrutinise the compatibility of primary legislation for the purpose of enforcing the relevant rights. It is likely that any such provisions will have implications for the operation of the legislative framework in the European Union (Withdrawal) Bill. Article 4(4) confirms that references to EU law in the WA must be interpreted in line with the judgments of the CJEU given before the end   A new Article 4a introduced in the amended draft on 15 March sets out a ‘good faith’ clause:

The Parties shall, in full mutual respect and good faith, assist each other in carrying out tasks which flow from this Agreement. They shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising from this Agreement and shall refrain from any measures which could jeopardise the attainment of the objectives of this Agreement.

This Article draws on BRIEFING PAPER   Number 8269, 23 March 2018   Brexit: the draft withdrawal agreement. UK public sector information is reproduced pursuant to the Open Government Licence  The Legal Materials contain UK public sector information licensed under the Open Government Licence v3.0. The Licence is available  at http://www.nationalarchives.gov.uk/doc/open-government-licence/version/3/ (the UK Licence).

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