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On 17 October 2019, UK and EU negotiators reached agreement on a revised withdrawal agreement and political declaration on the framework for the future relationship. It was subsequently endorsed by the European Council.

The revised withdrawal agreement contains changes to the protocol on Ireland/Northern Ireland. The protocol in the previous agreement (agreed under Theresa May) contained provisions to prevent a hard border on the island of Ireland through what was commonly called the backstop. The revised agreement contains new provisions concerning customs arrangements, Northern Ireland’s relationship with the EU single market, VAT collection, and protections for the UK’s internal market. The agreement also sets out a consent mechanism, which would engage the Northern Ireland Assembly four years after the end of the transition period.

A revised political declaration was also agreed. The principal changes to the declaration are that the future UK/EU relationship would be based on a “comprehensive and balanced” free trade agreement (FTA). This replaced references in the previous agreement to a “free trade area” and a trading relationship on goods “that is as close as possible”.

It has been reported that campaigners have lodged a petition at the Court of Session in Scotland, seeking an injunction stopping the Government asking for parliamentary approval of the agreement. The petition claims the revised protocol contravenes section 55 of the Taxation (Cross-border Trade) Act 2018, which makes it unlawful for the Government “to enter into arrangements under which Northern Ireland forms part of a separate customs territory to Great Britain”.

The deal was met with opposition from parties across the House of Commons. The Labour Party, the Scottish National Party, the Liberal Democrats, and the Democratic Unionist Party all said they would not support the new agreement.

Both the UK and the EU must formally ratify a withdrawal agreement before it can enter into force. Each side has its own procedures that it must complete before it can ratify the withdrawal agreement. If either side failed to do so by 31 October 2019, the default legal position under international law remains that the UK will leave the EU on that date with no deal, unless there was an agreed extension period or the UK revoked its article 50 notification of its intent to leave.

The debate motions tabled for the parliamentary sitting on 19 October 2019 also refer to section 1 of the European Union (Withdrawal) (No. 2) Act 2019. This legislation is also known as the Benn Act. Section 1 provides that the Prime Minister must ask the European Council for an extension to article 50(3) of the Treaty on European Union unless one of two conditions is met. Therefore, were the House of Commons to agree to either the new withdrawal agreement, or to leave the EU with no deal, the letter would not be required to be sent.


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