Brexit: Is the Ongoing Saga Coming to a Close?

Brexit has been a controversial topic since its inception in 2016, and even more so in recent months. The road to an agreement has been bumpy, with the U.K. requesting several extensions.[1] The current extension is set to expire on October 31, 2019, and thus the U.K. and E.U. have been busy negotiating a deal.[2] Last week, the EU endorsed a new deal with the U.K. which altered the terms of the Political Declaration and the Northern Ireland/Republic of Ireland Border.[3]

The Political Declaration between the parties has focused on the economic relationship between the U.K. and E.U. after the U.K. officially leaves.[4] The Political Declaration is a nonbinding aspect of the negotiations, meaning whatever declarations made by the parties could change.[5] In the latest Declaration, the parties have agreed to a Free Trade Agreement with zero tariffs or quotas.[6] Additionally, it requires commitments to ensure fair trade.[7] Fair competition has been a huge concern for countries within the E.U. because the U.K. could discontinue regulations relating to consumer and environmental protections.[8] This concern is not unfounded, as Prime Minister Boris Johnson has outwardly stated that he does not intend to adhere to E.U. rules.[9] Thus, the nonbinding nature of this agreement, and its potential implications are concerning to the international community.

The Northern Ireland boarder has continued to be a main focus of negotiations because of its implications on trade and the Good Friday Agreement, which eliminated the border between Northern Ireland and the Republic of Ireland.[10] Under this new agreement, the Northern Ireland border will remain untouched, requiring Northern Ireland to abide by EU’s Single Market rules on goods, sanitary rules for veterinary controls, rules of agricultural production, and VAT.[11] Although this avoids a hard border, this does mean that there will be custom checks between Great Britain and Northern Ireland.[12] The new agreement does allow Northern Ireland to review the customs arrangement in 2024, and if necessary, vote to change the arrangement.[13] However, the Democratic Unionist Party (DUP) of Northern Ireland vehemently opposes this new agreement because the party does not have the majority in Northern Ireland and could not control the process.[14] Furthermore, DUP opposes the customs arrangement because it treats Northern Ireland differently than the rest of the U.K.[15] DUP believes that this customs arrangement “would be damaging the fabric of the Union with regulatory checks and even customs controls between Great Britain and Northern Ireland…”[16] Although DUP does not have the majority in Northern Ireland, it does have a say in Parliament, with many parties looking to it for direction on voting.[17]

The U.K. Parliament met on Saturday to vote on the new deal, however, it was narrowly voted down.[18] Instead, a majority voted for the Letwin Amendment, requiring Prime Minister Johnson to request an extension from the E.U. in order to enact legislations for the deal.[19] DUP voted in favor of this amendment because the party believes this is the only way to ensure the Northern Ireland aspect of the deal is given proper scrutiny, and also to allow the party time to renegotiate the terms for the border.[20] In an interesting move, Johnson has stated that he will advocate for the E.U. to deny the extension, believing that this new deal should be pushed through before the deadline so that the U.K. may finally move on.[21] Requesting an extension is required by law, and thus the question of whether Johnson can refuse to make the request has been referred to the court for a determination.[22] In the meantime, Johnson plans on holding another vote on the new deal on October 21, 2019.[23]

Although it appears that the Brexit negotiations have turned the corner, with an agreement on the horizon, it depends on how U.K.’s Parliament acts. It will be interesting to see the outcome of the October 21st vote and whether the October 31, 2019 deadline will be extended.

  1. Stephenson Harwood LLP, Brexit Snapshot, Lexology (May 7, 2019), https://www.lexology.com/library/detail.aspx?g=460bf4f0-f85d-4f23-b31a-10c7658827ed.
  2. Gabriela Baczynska & Jonas Ekbolm, EU, Britain Enter Intense Brexit Talks as UK Departure Date Looms, Reuters (Oct. 11, 2019, 1:10 AM), https://www.reuters.com/article/uk-britain-eu/eu-britain-enter-intense-brexit-talks-as-uk-departure-date-looms-idUSKBN1WQ0OY.
  3. European Commission Press Release IP/19/6120, The Commission Recommends the European Council (Article 50) to Endorse the Agreement Reached on the Revised Protocol on Ireland/Northern Ireland and Revised Political Declaration (Oct. 17, 2019) [hereinafter European Commission Recommendations].
  4. Id.
  5. Benjamin Mueller & Matina Stevis-Gridneff, What is the New Brexit Deal?, The New York Times (Oct. 17,2019), https://www.nytimes.com/2019/10/17/world/europe/brexit-deal-details.html.
  6. European Commission Recommendations, supra note 3.
  7. Id.
  8. Mueller & Stevis-Gridneff, supra note 5.
  9. Id.
  10. Simon Carswell, Brexit Explained: Why Does the Border Matter and What is the Backstop?, The Irish Times (Oct. 12, 2018, 4:09 PM), https://www.irishtimes.com/news/politics/brexit-explained-why-does-the-border-matter-and-what-is-the-backstop-1.3661518.
  11. European Commission Recommendations, supra note 3.
  12. Chris Morris, Brexit Deal: Where Have the UK and EU Compromised?, BBC (Oct. 17, 2019), https://www.bbc.com/news/uk-50090030.
  13. Jayne McCormack, Brexit Deal: Why does the DUP Opinion Matter?, BBC (Oct. 17, 2019), https://www.bbc.com/news/uk-northern-ireland-50086035.
  14. Id.
  15. Id.
  16. Morris, supra note 12.
  17. McCormack, supra note 13.
  18. Brexit: DUP Votes for Amendment to Delay UK Exit, BBC (Oct. 19, 2019), https://www.bbc.com/news/uk-northern-ireland-50107513.
  19. Id.
  20. Id.
  21. Saturday’s Brexit Vote in Parliament, What Happens Now?, BBC (Oct. 19, 2019), https://www.bbc.com/news/uk-politics-50095368.
  22. Id.
  23. Saturday’s Brexit Vote in Parliament, What Happens Now?, supra note 21.