As Britain awaits the House of Lords to confirm a Parliamentary motion to host a general election on 12th December and break a Brexit deadlock, ARQ Group zooms in on the flash points on Boris Johnson’s tweaked Brexit agreement.
Mr Johnson is hoping to win a majority in Parliament in order to have his Brexit deal passed into law. If the Prime Minister manages to win a comfortable majority in the proposed upcoming election, it will spare the Government a raft of amendments that would be put through by Opposition parties at committee stage.
Should Labour win the proposed election, or it results in another hung Parliament, it is likely that amendments dealing with workers’ rights, the issue of Northern Ireland and EU citizens’ rights in the UK will be put forward.
EU officials granted a third extension for the UK to exit the 27-nation bloc, now set at 31st January 2020. Mr Johnson's Brexit agreement will more than likely be top of the Parliamentary agenda following the 12th December election.
In its analysis of the withdrawal agreement, ARQ presents the following key points, and whether they will attract amendments which could delay or even derail the bill:
• Legal continuity, providing for the supremacy of EU law in the UK during the transition period (to end 2020, unless extended). There is some extra Parliamentary scrutiny – if the European Scrutiny Committee thinks that any new EU law raises issues of “vital national interest” it can trigger a debate and a (non-binding) House of Commons vote on the matter. Before the European Research Group (ERG) got behind the deal, they might have challenged UK ‘vassal status’ during the transition. Now, they largely want the bill passed and Brexit as soon as possible.
• The bill implements the Withdrawal Agreement in the UK, including giving the Government power to pay the ongoing ‘divorce bill’. The ERG may try to link paying the financial settlement to progress in the trade talks – but this would cause problems with the EU and therefore with getting the deal ratified, so the Government will probably win out.
• A Parliamentary lock overextending the transition period beyond the end of 2020. If the Government wishes to extend the transition period, it must pass a motion in Parliament, specifying for how long. There is no mechanism for Parliament to ask the Government to seek an extension. A key ERG win, and a reason why they may not cause trouble on the bill. Remain-inclined MPs will probably try to amend this so that the UK cannot exit the transition period without a deal unless Parliament approves – the Government and ERG would resist this.
• A legal lock over the future relationship – the bill provides that this can only be negotiated in line with the political declaration – so no customs union, the UK outside the Single Market, only an arms-length free trade future deal, and ambiguous commitments on level playing field commitments. In effect this gives the non-binding political declaration the force of law, and hollows out the requirement that Parliament must approve the negotiating mandate for the future EU-UK relationship. Another win for the ERG and almost certainly a big Parliamentary battle, with Remain-inclined MPs pushing to remove this lock. The Government could concede this if it had to – in the end, the negotiating mandate for the future deal will be determined by the Government’s effective majority in the next Parliament.
• The safeguards for maintaining current EU labour market standards are weak. A Minister must make a declaration on whether new legislation is compatible with these standards, but, even if it isn’t, the Government can say that Parliament should approve it anyway. The Government must also make a statement on whether new EU workers’ rights are greater than UK protections, and whether the Government intends to replicate them – but there is no legal commitment. Labour MPs will probably table amendments at least to make it harder for the Government to dilute existing workers’ rights – the Government might be prepared to accept this if necessary.
• An Independent Monitoring Authority is established to protect EU citizens’ rights (they can also appeal to the ECJ for eight years after Brexit), but the rights have a cut-off. Once free movement ends, any EU nationals who have not secured settled status will have no legal right to remain in the UK, unless new legislation is passed.
• Much is left unclear on how the Northern Ireland protocol will work – meaning the practicalities and extra costs of trade across the Irish Sea will need to be worked out quickly. There are sweeping powers for Ministers to make such regulations “as the Minister considers appropriate”. The DUP will try to win concessions on a Unionist veto, and on scrutiny/approval of new NI rules.
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