On 17 October 2019, the UK and the European Union published the provisionally agreed text of a revised deal on the terms of withdrawal of the UK from the EU.
The document comprises changes to the previous principal draft Withdrawal Agreement – the remainder of which would still stand, including it would appear the commencement of a transition period following the date on which the UK ceases to be an EU member state.
The principal change is a new Northern Ireland Protocol and removal of the so-called ‘backstop. The backstop, which was only intended to apply in the event that no other agreement was reached between the parties regarding future customs arrangements, was in effect an insurance option to prevent a hard border between Ireland and Northern Ireland. In its original form, the backstop would have been in the form of a “single customs territory” between the UK and the EU. It was argued that this was at odds with the UK Government’s intention that the UK should no longer be part of the Customs Union once it has left the EU.
Under the revised agreement, which seeks to preserve a soft border between Ireland and Northern Ireland, Northern Ireland will remain in regulatory alignment with the EU with respect to goods. However, the agreement also ensures that Northern Ireland will remain in the UK’s customs territory, despite also being an entry point to the EU single market. Accordingly, UK authorities will apply EU tariffs to goods likely to enter the single market and UK tariffs to goods which are not so bound.
The agreement requires the consent of people in Northern Ireland: the Northern Ireland Assembly will be required to approve the continuation of arrangements four years after they come into effect (i.e. after the end of the transition period).
Separately, the parties have also published a revised Political Declaration, the non-binding document setting out a framework for a future trade deal between the UK and the EU. We will provide additional commentary on particular aspects of this in subsequent posts.
On the UK side, pursuant to section 13 of the EU (Withdrawal) Act 2018 Parliament must approve the deal – something the Government failed to achieve in relation to the previous draft agreement. The crucial vote is expected to take place in the next few days.
On the EU side, a qualified majority will be needed, i.e. the approval of 20 of the 27 Member States, as well as the approval of the European Parliament