The European Union (Withdrawal Agreement) Bill is intended to give effect in the UK to the Withdrawal Agreement (WA) agreed by the UK with the EU-27 on 1 October 2019. The Bill received its second reading on 22 October 2019 and is currently in ‘limbo’ pending the start of the committee stage. If and when it is adopted, the Bill will make significant amendments to (inter alia) the European Union (Withdrawal) Act 2018 (EUWA).

Attempts will naturally be made to amend the Bill as it passes through Parliament. At present, it makes no provision for a further referendum to be held before the WA is ratified. Some may seek to change that. It would, however, be futile for amendments to be sought that would require to be done something that lies outside Parliament’s control, such as creating an EU/UK customs union. This would require the WA to be reopened, which the EU-27 have said they would not be prepared to countenance. Although they agreed to reopen the May deal at the request of the Johnson Government, this may not be something they will be prepared to repeat.

The Bill comprises 40 clauses and six schedules. Four clauses will be considered here.

Clause 29 requires the Government to bring before the House of Commons a motion for debate where the European Scrutiny Select Committee publishes a report on EU legislation adopted or proposed during the transition period which in the view of the Committee ‘raises a matter of vital national interest’ to the UK.

If, following the debate, outstanding concerns remained, it would be possible for these to be brought before the Joint Committee established by Article 164 WA. Should that Committee be unable to find a solution, the EU or the UK could request the establishment of an arbitration panel pursuant to Article 170 WA. Any doubts about the interpretation of EU law or the WA, or whether the UK had complied with a prior judgment finding it in breach of the Treaties or the WA, would have to be referred to the CJEU for a ruling under Article 174(1) WA. The panel’s final decision would be binding on the EU and the UK.

A provision that immediately attracted criticism is clause 30, which sets out the process by which Parliament could approve an extension of the transition period provided for by Article 126 WA. The objection is that, while the approval of the House of Commons is required for an extension sought by the Government and the House of Lords is required to have been given an opportunity to debate it, neither House is able to seek an extension of its own motion.

Clause 36 is headed ‘Parliamentary sovereignty.’ Clause 36(1) provides: ‘It is recognised that the Parliament of the United Kingdom is sovereign.’ Clause 36(2) goes on to state that the sovereignty of Parliament subsists notwithstanding directly applicable or directly effective provisions of EU law (including the WA) that remain in force during the transition period. Sub-clause 3 reiterates that ‘nothing in this Act derogates from the sovereignty of the Parliament of the United Kingdom.’

The wording of clause 36 is curious and the accompanying Explanatory Notes do little to elucidate it. They simply observe that the application of so-called ‘separation agreement law through the Withdrawal Agreement Bill does not constitute a derogation from the principle of Parliamentary sovereignty.’ Did Parliament previously doubt that it was and would remain sovereign? By whom is this now recognised? What is the extent of its sovereignty? What difference does this sub-clause make? The answer to that final question seems to be ‘no difference at all’, for the Explanatory Notes end by declaring: ‘the clause acknowledges the pre-existing legal position as regards Parliamentary sovereignty.’

Buried away in the supplementary and final provisions is clause 39. Under clause 39(1), a Minister ‘may by regulations make such provision as the Minister considers appropriate in consequence of this act.’ By virtue of clause 39(2), the power to make such regulations ‘may (among other things) be exercised by modifying any provision made by or under an enactment.’ This extensive Henry VIII power is qualified only by clause 39(3), according to which the term ‘“enactment” does not include primary legislation passed or made’ after the end of the transition period. At that stage, though, clause 39(5) says that a Minister may by regulations make such transitional, transitory or saving provision as the Minister considers appropriate in connection with the coming into force of any provision of this Act…’ Whether these powers will survive the passage of the Bill through Parliament remains to be seen. The juxtaposition of clause 39 with clause 36 on the principle of Parliamentary sovereignty is deeply ironic.

The island of Ireland

Theresa May’s deal was scuppered by the problem of preserving an open border between Northern Ireland and Ireland. From the outset, the need to resolve that problem was at the forefront of the minds of the negotiators (though scandalously the EU-27 sometimes seemed more concerned about the issue than the UK). In a nutshell, the fear was that the reintroduction of the physical infrastructure of a border which was once the focus of paramilitary activity might undermine the Belfast/Good Friday Agreement of 1998 and the peace process it inaugurated.

To avoid this, Theresa May’s deal included a Protocol with a ‘backstop’ designed to ensure that there would be no hard border between Northern Ireland and Ireland even if the EU and the UK failed to negotiate a trade deal to take effect at the end of the transition period. The backstop would have created a Single Customs Territory between the UK and the EU in which customs duties, charges having equivalent effect and quantitative restrictions would be prohibited. This would have ensured reciprocal tariff-free and quota-free access to markets for goods. With regard to trade with third countries, the UK would have been required to align the tariffs applicable in its customs territory with the EU’s Common Customs Tariff and not to apply lower tariffs to imports from third countries.

The May Protocol proved hugely controversial. Continued alignment with the Common Customs Tariff would have significantly reduced the UK’s flexibility in trade negotiations, making it more difficult for it to strike the much-vaunted trade deals with third countries. Moreover, there was no sunset clause specifying a date by which the backstop might cease to apply. That could only happen following a joint decision of the EU and the UK under Article 20 of the May Protocol. This led to fears that the UK could be stuck in the backstop indefinitely.

In Boris Johnson’s deal, implemented by clauses 21-24 and Schedule 3 of the Bill, Northern Ireland will remain part of the UK customs territory and internal market. Imports from Great Britain destined for Northern Ireland only will be free of duty and imports from third countries into Northern Ireland will be subject to UK customs duties. Imports from Great Britain and third countries which might later enter the EU will be subject to EU customs duties. There will be a degree of regulatory alignment between Northern Ireland and Ireland which will enable the border between them to remain open.

The May backstop would only have come into force if no better solution had been found by the end of the transition period. By contrast, the revised protocol will take effect when the transition period ends. That outcome was made possible because the EU-27 made a number of concessions. First, as noted above, they agreed to reopen the May WA. They also accepted that Northern Ireland would be outside the EU customs union and that customs controls on goods entering Northern Ireland could be carried out by the UK customs authorities, albeit in cooperation with the EU. This involved a departure from their previous position that the application of the Common Customs Tariff could not be entrusted to a third country (i.e. the UK). The UK also made a concession in accepting the need for some alignment in Northern     Ireland with EU rules, which would imply checks to ensure that those rules were met.

Article 18 of the Johnson protocol replaces the backstop with a requirement that the UK must, at specified intervals, seek ‘democratic consent in Northern Ireland’ to the continued application of the Protocol ‘in a manner consistent with the 1998 Agreement.’ If consent is not forthcoming, the Protocol will cease to apply after a period of two years. This represents a further concession by the EU-27, which had previously insisted that the backstop must potentially be permanent. The EU seems to have calculated that the people of Northern Ireland (a majority of whom voted to remain in the EU in the 2016 referendum) will want to continue to benefit from the peace process and the all-Ireland economy.

Anthony Arnull (@anthonyarnull) is Barber Professor of Jurisprudence, University of Birmingham.

(Suggested citation: A. Arnull, ‘The European Union (Withdrawal Agreement) Bill’, U.K. Const. L. Blog (4th Nov. 2019) (available at https://ukconstitutionallaw.org/))