In a flurry of legislative activity this week, on Monday and Tuesday the British House of Lords approved five amendments to the European Union (Withdrawal Agreement) Bill the House of Commons approved on January 9; on Wednesday the House of Commons rejected all five amendments and returned the bill to the House of Lords; and yesterday the House of Lords, rather than engaging in parliamentary ping-pong by approving one or more of the amendments a second time, acquiesced and approved the original bill without a vote. Soon thereafter, the bill received the Royal Assent and became the European Union (Withdrawal Agreement) Act 2020.
It was obvious after Prime Minister Boris Johnson and the Conservatives won 365 of the 650 seats in the House of Commons in the December 12 election that the House would quickly approve the Withdrawal Agreement Bill and indeed it did so, giving the bill its first reading on December 19, immediately after the debate on the Queen’s Speech which opened the new Parliament, and approving it on second reading on December 20 by a vote of 358 to 234. On January 9, it received its third and final reading, was approved by a vote of 330-231 and was sent to the House of Lords.
The House of Lords, which must approve all legislation, tends to give special attention to aspects of bills that involve rights and matters pertaining to the courts, the system of justice and the political institutions of the UK. With varying degrees of support, on Monday and Tuesday the House of Lords approved five amendments—one that would give EU nationals the right to remain in the UK without having to apply for that right and would give them documentary proof of the right; a second that removed the power of ministers to decide which European Court of Justice rulings could be disregarded or set aside; a third which removed the independence of British courts with respect to EU case law; a fourth, put forward by Lord Alfred Dubs, who arrived as a child from Czechoslovakia in 1939 fleeing the persecution of Jews after the German takeover, that would allow children who are refugees to be reunited with their families; and a fifth that took note of the Sewel Convention under which Parliament should not legislate on devolved issues without the consent of the devolved institutions.
On Wednesday, the House of Commons rejected by substantial margins in separate votes all five amendments and returned the original bill to the House of Lords. That could have started a game of parliamentary ping-pong, with alternative versions of the bill going back and forth between the two houses until, finally, both agreed on some version. But given the Conservatives’ 80-seat majority in the House of Commons, the House of Lords acquiesced and yesterday approved the bill in its original form without a vote.
In its December 13 meeting in its Article 50 format—i.e., without Boris Johnson—the European Council reconfirmed its desire to establish as close as possible a future relationship with the UK in line with the Political Declaration setting out the framework of the future relationship between the EU and UK. After making a point of emphasizing that the future relationship “will have to be based on a balance of rights and obligations and ensure a level playing field,” it invited the Commission to submit to the Council a draft comprehensive mandate for a future relationship with the UK immediately after its withdrawal and invited the General Affairs Council to adopt swiftly the relevant decisions and negotiating mandate. And it welcomed the Commission’s decision to reappoint Michel Barnier as its chief negotiator for the negotiations on the future relationship.
But the Withdrawal Agreement Bill that became law yesterday includes an important change in the earlier bill that will greatly complicate the work that lies ahead for the EU and the UK in negotiating their future relationship. The withdrawal agreement negotiated by the EU and UK provides for a post-exit implementation, or transition, period during which the UK, although no longer a member of the EU, will remain in the EU’s Internal Market and Customs Union. The agreement stipulates that the transition period will end on December 31, 2020 unless the UK requests and the EU grants, by July 1, 2020, an extension to December 31, 2021 or December 31, 2022. That provision was agreed because both parties understood it would be exceptionally difficult to reach an agreement in regard to all of the relevant issues involved in their future relationship during the implementation period.
But the Conservatives in their election manifesto promised there would be no extension of the transition period and Johnson reiterated that promise on numerous occasions during the campaign. The bill signed into law yesterday removes a clause in the earlier version that gave MPs the right to approve an extension of the transition period and replaces it with a new clause that prohibits any extension of the implementation period. It defines the “completion day” of the implementation period as December 31, 2020 at 11 p.m.
The EU Commission will submit its draft comprehensive negotiating mandate to the Council very soon after the UK leaves, which means the EU and UK will have, at most, less than eleven months to complete a negotiation that, judging by the agreements negotiated by the EU with Canada and Japan, would normally take several years. It took more than five years for Canada and the EU to negotiate their Comprehensive Economic and Trade Agreement and almost five years for Japan and the EU to negotiate their Economic Partnership Agreement—and, as complicated as both were, they are much less complicated than the partnership outlined in the Political Declaration. Prohibiting any extension of the transition period means the UK and the EU are highly unlikely to achieve the “ambitious, broad, deep and flexible partnership across trade and economic cooperation” foreseen in the Political Declaration and will probably achieve, at best, only a limited Free Trade Agreement—limited to trade in goods but not covering services, despite the fact that services account for 80 percent of the UK economy and 40 percent of its exports to the EU. That prohibition also means there’s a real possibility the UK could go over the cliff edge of a no-deal exit without any agreement at all at 11 p.m. on December 31.
With the UK’s Withdrawal Agreement Bill enacted into law, earlier today European Commission President Ursula von der Leyen and European Council President Charles Michel signed the Withdrawal Agreement negotiated by the EU and UK in 2017-18 and modified last fall with a new Protocol on Ireland/Northern Ireland and forwarded it to the European Parliament for ratification. That will take place next Wednesday and the UK will leave the EU next Friday at midnight Brussels time. Very soon thereafter, the Commission will submit to the Council its draft comprehensive negotiating mandate for the future relationship. And then the hard work will begin.
David R. Cameron is a professor of political science and director of the MacMillan Center’s Program in European Union Studies.