On 17 October 2019, the European Commission reached an agreement at negotiator level with the UK on a revised Protocol on Ireland / Northern Ireland and a revised Political Declaration on the framework of the future EU-UK relationship.
The revised Protocol is no longer an insurance policy that applies unless and until the EU and the UK conclude a subsequent agreement that replaces it in part or in full. It is a fully legally operative solution that will continue to apply unless it fails to receive the democratic support of the Northern Ireland Assembly. The Assembly will be asked to provide its continued support for the Protocol 4 years after the end of the transition period and every 4 years thereafter. Northern Ireland will continue to apply the EU’s Customs Code and will remain aligned to those rules of the Single Market in order to avoid a hard border on the island of Ireland. UK authorities will implement and apply the provisions of EU law that the Protocol makes applicable in the UK in respect of Northern Ireland.
The transition period previously agreed remains in the revised Withdrawal Agreement according to the media, which should mean no change until December 2020, subject of course to an extension agreed by both the EU and the UK.
The main change in the Political Declaration relates to the future EU-UK economic relationship where the Government has opted for a model based on a Free Trade Agreement (FTA). The Political Declaration contains the shared ambition to have an FTA with zero tariffs and quotas between the EU and the UK. Part II, section iv (financial services) of the Political Declaration has not been changed. Significantly this means that the end of June 2020 date for aiming to complete equivalence assessments remains, as do the shared ambitions for regulatory and supervisory cooperation. The Political Declaration is not legally binding but Article 184 of the Withdrawal Agreement commits both sides to “use their best endeavours, in good faith” to deliver the document’s intentions.
In terms of next steps, the European Council (Article 50) needs to endorse the Withdrawal Agreement and approve the revised Political Declaration.
Before the Withdrawal Agreement can enter into force, it needs to be ratified by the EU and the UK. For the EU, the Council of the EU must authorise the Withdrawal Agreement, before sending it to the European Parliament for its consent. The UK must ratify the agreement according to its own constitutional arrangements.
In the UK, section 13 of the EU (Withdrawal) Act 2018 provides that Parliament must approve the deal – something the Government failed to achieve in relation to the previous draft Withdrawal Agreement. The new deal is expected to be voted on by MPs when Parliament sits this Saturday.
If on Saturday MPs reject the new deal and reject the UK leaving the EU without a deal, then the Benn Act, passed last month, requires the Prime Minister to request a further three-month delay to the Article 50 process. Where the UK makes such a request for an extension but the EU rejects it, the UK will leave the EU on 31 October and the statutory instruments that HM Treasury has developed for onshoring EU legislation become effective (as does the PRA / FCA temporary permissions regime and its new rules and guidance in connection with a no-deal Brexit).
The UK Government has previously tried to call an early general election but it lacked sufficient support in the House of Commons. Opposition MPs have said that they won’t back an election – or call for a vote of no confidence in the UK Government – until the law aimed at blocking a no-deal Brexit is implemented.