Beyond the Irish border dilemma there are vital Brexit issues being overlooked

Other provisions for our departure deserve far greater scrutiny

October 17, 2019
Michel Barnier with the draft Withdrawal Agreement in November 2018. Photo:  Mario Salerno/DPA/PA Images
Michel Barnier with the draft Withdrawal Agreement in November 2018. Photo: Mario Salerno/DPA/PA Images

As attention in Westminster and Brussels is again focused on the question of whether the UK and the EU27 can reach an agreement on issues relating to the Irish border, in order to get a Brexit deal over the line before 31st October, the wider question of the contents of the Withdrawal Agreement as a whole is often overlooked.

In December 2018, the House of Lords European Union Committee produced a detailed report on the contents of the WA. Given that the UK government does not appear to have sought to re-open most of these provisions in its negotiations with the European Commission, I thought it the right time to revisit the EU committee’s conclusions.

Aside from the Protocol on Ireland and Northern Ireland—the “backstop”—the deal that was agreed in principle in November 2018 contains detailed provisions relating to governance of the WA, citizens’ rights after Brexit, the financial settlement with the European Union, and transitional provisions. It also includes an option for an extension to the transition period, during which the UK will have to agree its future relationship with the European Union.

The committee highlighted several major issues in addition to the “backstop.” Perhaps most notable was the operation of the Joint Committee that would be responsible for the governance of the agreement. It comprises representatives of the EU and the UK and would be co-chaired. This may sound entirely technocratic, but the operation of the Joint Committee is critically important. The EU Committee described it as a “uniquely powerful and influential body” which would be “critical in ensuring the smooth working of the Withdrawal Agreement.”

Disputes between the parties would, in the first instance, be decided by the Joint Committee and decisions adopted by the JC would be binding on the EU and the UK, and would have the same legal effect as the Withdrawal Agreement. The Joint Committee would also have the powerto amend aspects of the Agreement to take account of errors, omissions and deficiencies, and to address unforeseen situations. The EU Committee noted that although changes that “amend the essential elements” of the Agreement are excluded, “this is a widely drawn power, and is not subject to clear scrutiny procedures or parliamentary oversight.”

It was also critical of the transparency of the Joint Committee more generally, stating that the relevant rules “suggest that meetings would be confidential, decisions might not be published, and even summary minutes might not be made publicly available. This is an unsatisfactory state of affairs, given the significant role that the Joint Committee will play.” The EU Committee examined how to ensure effective parliamentary scrutiny of the Joint Committee in its subsequent report Beyond Brexit: how to win friends and influence people.

In addition to exploring the role of the JC, the EU Committee raised a number of other issues in its report. It broadly welcomed the provisions on citizens’ rights, noting that they would “allow individuals and families to continue with their lives and careers with a minimum of disruption.” It also highlighted the fact that much of the financial settlement related to UK contributions to the 2019 and 2020 EU budgets, which coincided with what was then expected to be a transition period starting on 29th March, during which the UK would continue to be subject to be part of the EU single market.

On the question of the transition period, the EU Committee acknowledged that during the transition, “the UK will carry all the responsibilities of EU membership without the institutional rights and privileges enjoyed by EU member states.” The Agreement provides that the transition period may be extended from 31st December 2020 for a period of “up to one or two years.” Such a decision would have to be notified by July 2020 and would have to be agreed by the parties in the Joint Committee.

The EU Committee identified this as one of the most significant elements of the text and warned that the Withdrawal Agreement did not provide any clear role for parliament in authorising an extension. Moreover, the cost of any extension would be determined by a negotiation in the Joint Committee. And any extension of the transition period would also mean that the UK would remain subject to EU law (including new regulations and directives and the jurisdiction of the Court of Justice of the European Union) for an extended period, without any representation in the EU institutions.

Time is now very tight. But while reaching a deal on the Irish border is clearly critical to concluding an agreement with the EU, the other commitments made in the Withdrawal Agreement are extremely significant and should not be overlooked.


Charles Kinnoull is the Chair of the House of Lords European Union Committee