Thursday 8 March 2018

The road to Brexit - further developments

Tusk and Verhofstadt
Nothing has happened to convince me that Brexit is anything other than a profoundly mistaken policy for which, in the referendum of 23rd June 2016, the British people were persuaded to vote and did so by a narrow majority.  The referendum result immediately split the four nations of the UK since Scotland and Northern Ireland voted remain.  The UK government has chosen to set the hardest of "red lines" - out of the EU, out of the Customs Union, out of the Single Market, out of the jurisdiction of the Court of Justice of the EU.   All of that has been combined with political talk of a future "deep and special relationship" with the EU but what form that relationship will take is still unclear even though almost a year has elapsed since the triggering of Article 50 TEU.

The absence of clarity about the future relationship is undoubtedly beginning to take its toll on British business - (e.g. here and also see Euroclear) - and the time for political positioning has gone.  Specific proposals are required that can be put into legal form.

Draft Withdrawal Agreement:

On 28th February, the text of the DRAFT Withdrawal Agreement was published by the EU Commission - see European Commission Draft Withdrawal Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community.   The draft withdrawal agreement contains provision for a "transition period" lasting until 31st December 2020.

Future relationship?

On 7th March, the President of the European Council (Mr Donald Tusk) made a statement about Draft Guidelines on the framework for the future relationship with the UK.  The draft guidelines are yet to be adopted by the European Council which meets on 22nd and 23rd March.  The Council will, in an EU 27 format, review the state of the negotiations following the United Kingdom's notification of its intention to leave the EU and adopt additional guidelines.  The draft guidelines are available HERE (or here) and the Council has restated the EU's determination to have as close as possible a partnership with the UK in the future. Such a partnership should cover trade and economic cooperation as well as other areas, in particular the fight against terrorism and international crime, as well as security, defence and foreign policy.

The European Parliament is also in the process of setting out its vision for the future EU-UK relationship - see European Parliament 7th March.    A motion prepared by the European Parliament’s Brexit Steering Group raises the possibility of an ASSOCIATION AGREEMENT founded on Article 8 TEU and Article 217 TFEU - (see Treaties).   The motion is available HERE.

Such a framework could be based on four pillars: trade and economic relations, foreign policy, internal security and thematic cooperation (e.g. cross-border research and innovation projects).  A consistent governance framework, with a robust dispute resolution mechanism, is also required.  (NB: International agreements inevitably require such mechanisms).  The motion stresses that the EU has binding common rules, common institutions and common supervisory, enforcement and adjudicatory mechanisms, to make it clear that even closely-aligned third countries with identical legislation cannot enjoy similar rights, benefits or market access to those of EU member states.

This approach by the European Parliament ought to be welcomed and it has the merit of keeping to a minimum the number of agreements that will be required between the EU and the UK.

Article 8 TEU -

1. The Union shall develop a special relationship with neighbouring countries, aiming to establish an area of prosperity and good neighbourliness, founded on the values of the Union and characterised by close and peaceful relations based on cooperation.

2. For the purposes of paragraph 1, the Union may conclude specific agreements with the countries concerned. These agreements may contain reciprocal rights and obligations as well as the possibility of undertaking activities jointly. Their implementation shall be the subject of periodic consultation.

Article 217 TFEU -
The Union may conclude with one or more third countries or international organisations agreements establishing an association involving reciprocal rights and obligations, common action and special procedure.

Interestingly, the UK was party to an Association Agreement with the former European Coal and Steel Community from 1954 until 1973.  That agreement was negotiated by Jean Monnet (1888-1979) and Duncan Sandys (1908-87) following the UK's rejection of the Schuman Plan which spoke of the need for an ‘intimate and enduring’ partnership between Britain and mainland Europe.

It is to be hoped that the EU position will enable agreement to be reached with the UK.  Specific proposals from the UK government have been noticeable by their absence!  

House of Lords:

The European Union (Withdrawal) Bill continues its committee stage in the House of Lords.  The Institute of Government has published this useful summary (dated 5th March) of the present position.

European Union Act 2011:

This Act will be repealed by the European Union (Withdrawal) Bill.  This little noticed fact - it's tucked away in Schedule 9 - will remove any possibility of argument that a referendum is required to endorse any future treaties with the EU.  See the 2011 Act.

Committee on Exiting the EU:

The Committee on Exiting the European Union publishes material from the documents provided by the Department for Exiting the EU.
The Committee on Exiting the European Union publishes material from the documents provided by the Department for Exiting the EU, in response to the Humble Address of 31 January 2018.

At its meeting on Wednesday 7 March, the Committee agreed to publish the documents provided by the Department in full with the exception of a single annex highlighted by the Department as being sensitive to the ongoing EU-UK negotiations. 

The briefing and associated correspondence between the Chair and Secretary of State can be found in the publications section of the Committee's website.
Ireland First:

The red lines set by the British government include taking the UK out of the EU Single Market and Customs Union.  As noted in this previous post, the UK government's position entails a "hard border" either (a) between Northern Ireland and the Republic of Ireland or (b) between the island of Ireland and mainland UK.  On 8th June, the President of the European Council (Mr Donald Tusk) stated that further progress in Brexit talks will be dependent on the UK proposing a solution capable of avoiding a hard border - The Independent 8th March.

Addendum 12th March:

Politico - UK's new Brexit best friend - Guy Verhofstadt

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