Brexit negotiations - brief note on Round 3

A field in North Yorkshire

Five clear months have elapsed since the Prime Minister notified the EU that the UK would be leaving the EU.  On 22nd May the EU Council finalised its negotiating objectives for the starting phase of negotiations.

A first round of talks was held in June and a second round in July.  Some progress has been made but  Round 3 of the Brexit negotiations ended in Brussels on Thursday 31st August without major progress in the three areas set by the negotiating objectives - Citizen's Rights, the Financial Settlement and the Situation in Ireland.

The EU's principal negotiator - Mr. Michel Barnier - made a statement (HERE) noting that there was "useful clarification on many issues" but no decisive progress on the main subjects.  "At the current rate, we are far from seeing sufficient progress to be able to recommend to the European Council that we begin the discussion on the future relationship between the United Kingdom and the European Union at the same time as we will finalise throughout the year 2018 the withdrawal agreement."

The statement by the UK Secretary of State for Exiting the EU is HERE.

It is plain that although the Third Round ended with progress in some areas and with identification of the considerable work yet to be done, the financial settlement is a major sticking point and there is also the UK view that the EU negotiators, bound as they are by their guidelines, need to be more imaginative and flexible in their approach to withdrawal.

The UK presented certain legal arguments relating to the financial settlement but, as far as I know, these have not been published.   As Mr Barnier said, there are joint obligations towards third countries - e.g. guaranteed long-term loans to Ukraine - but the UK argues that it is not legally obliged to honour these obligations after Brexit.   There are also commitments to support innovative enterprises and green infrastructure in European regions until 2020 and these are not recognised by the UK as legal obligations.  It is a pity that the UK's arguments have not been published and thereby exposed to the vast legal expertise on EU matters available within the UK and elsewhere.

Another deep concern may prove to be Mr Barnier's reference to a need to build trust.  On Citizens' Rights he spoke of the need to reassure citizens and referred to the sending of deportation letters to about one hundred EU and EEA citizens even though they were living lawfully in the UK.  This was later said to be a mistake but Barnier said it was not the first time that something like this has happened.  "It reinforces the need to ensure that citizens’ rights are directly enforceable in front of national jurisdictions, under the control of the European Court of justice, a point on which we disagree today."  This lack of trust may manifest itself in other ways such as not entrusting the UK to enforce an agreed position via national courts alone.  In this way, lack of trust is capable of undermining or even preventing any kind of agreement.  Of course, a considerable number of British politicians are seeking an end to any Court of Justice of the EU jurisdiction vis-a-vis the UK.

In June 2017 the EU published its position paper regarding "essential principles on financial settlement" for Brexit - European Commission to UK 12th June 2017

: Next Steps: 

Week commencing 18th September - Fourth round of negotiations
Week commencing 9th October - Fifth round of negotiations
18th to 20th October - European Council Summit

: Library :

- EU Negotiating Position - 

European Parliament Resolution - 5th April 2017

European Council (Art 50) Guidelines - 29th April 2017

Council Decision - 3rd May 2017

Negotiating objectives - 22nd May 2017

EU Position Papers

European Council - Brexit

- EU Commission -

Brexit - Article 50 negotiations

- Europa -

EU Law and Publications

- UK Parliament and Courts - 

European Union Referendum Act 2015

R (Miller and Dos Santos) v Secretary of State for Exiting the EU  [2017] UKSC 5

European Union (Notification of Withdrawal) Act 2017

European Union (Withdrawal) Bill 2017 + Explanatory Notes + Delegated Powers Memorandum

- Department for Exiting the EU -

Article 50 and negotiations with the EU

- Law Society -

Brexit and the Legal Sector

- Bar Council - 

Brexit papers

Brexit papers - 3rd edition