Departure from the European Parliament

At the time of writing on 30 January 2020 the European Parliament had convened and had approved the Withdrawal Agreement by a thumping majority with 621 votes in favour, 49 against and 13 abstentions. This vote was the last act undertaken by UK MEP’s as they are now no longer members of the European Parliament.

After the historic vote President Sassoli said that: “It deeply saddens me to think that we have come to this point. Fifty years of integration cannot easily be dissolved. We will all have to work hard to build a new relationship, always focusing on the interests and protection of citizens' rights. It will not be simple. There will be difficult situations that will test our future relationship. We knew this from the start of Brexit. I am sure, however, that we will be able to overcome any differences and always find common ground”.

Vote in the Council of the European Union

The Withdrawal Agreement must now be put to a final vote in the Council of the European Union and must pass by qualified majority. This will be completed by written procedure. There is little doubt that the required majority will support the Agreement. This will then be ratified as a binding Treaty of the European Union.

What happened to the meaningful vote?

The Withdrawal Agreement Bill, which received Royal Assent on 23 January 2020, becoming the European Union (Withdrawal Agreement) Act 2020, repealed the legislation which had been passed to require a meaningful vote by the House of Commons to approve our departure from the European Union. Specifically it removed section 13 of the European Union (Withdrawal) Act 2018 and the requirement to lay the Withdrawal Agreement before Parliament for 21 days under the Constitutional Reform and Governance Act 2010.

The UK government was therefore able to ratify the Withdrawal Agreement with no further input from the UK Parliament.

Departure from the EU

At 11pm GMT on 31 January 2020 we will officially leave the European Union. We will then enter into the transition period.

The commencement orders for the 2018 and 2020 Acts have been introduced this week in anticipation of the ratification of the Withdrawal Agreement in Europe.

• The European Union (Withdrawal) Act 2018 (Commencement No. 5, Transitional Provisions and Amendment) Regulations 2020, SI 2020/74

• The European Union (Withdrawal Agreement) Act 2020 (Commencement No. 1) Regulations 2020, SI 2020/75 

Transition period

The transition period will commence on 1 February 2020 and is set to expire at the end of December 2020. During this period, the UK and the EU will attempt to reach a trade deal which will define their future relationship. A period of 11 months is widely considered to be a challenging time frame.

The transition period can be extended once for one to two years, but the decision to do so must be taken by the EU-UK Joint Committee before 1 July 2020. There is little political will on the UK side to seek an extension.

If a trade deal is agreed this will come into force on 1 January 2021. Parliamentary approval is required for any trade agreement. If the agreement refers to competences that the EU shares with Member States, then individual European national parliaments will also need to approve it.

During transition there will be important decisions about data protection, including whether a positive data adequacy decision will be reached by the EU which would in essence give recognition to the UK as an approved country for data compliance and would help with data flows after the transition period.

What will happen to European law during transition?

The short answer is that nothing will change. The longer answer is that the European Union (Withdrawal) Act 2018 will repeal the European Communities Act 1972. This Act provides the mechanism for the direct applicability of European law in the UK. European law will no longer apply in the UK.

This does not however mean that the body of law which we rely upon in the UK, particularly around data protection, worker rights and environmental protection, will cease to apply. Rather, the European Union (Withdrawal) Act 2018 brings the entire body of European law at Brexit date onto our statute books. This will be known as retained EU law. During transition we will continue to adopt newly introduced European law.

What will happen after transition?

From 2021, there will be natural divergence between domestic legislation and European law as we repeal elements of retained EU law and new legislation is proposed and implemented on both sides. It is anticipated that there will be significant changes to immigration law as a new immigration system is planned for 1 January 2021. Changes are also anticipated in employment law. The non-regression principals on worker rights and environmental protection which had been enshrined in Theresa May’s version of the Withdrawal Agreement have been lost. They appear in the political declaration but were removed from the European Union (Withdrawal Agreement) Act 2020 when this was introduced, replacing the 2019 Act of the same name, in the Queen’s speech following the December 2019 election.

In summary then, there will be no changes to law or rights during transition and significant changes are anticipated in 2021 and beyond.