Brexit update

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The summer months of July and August saw Brexit regularly dominate headlines in the UK press. Newly-appointed Secretary of State for Exiting the European Union, Dominic Raab, making several trips to Brussels for talks with the EU’s Chief Brexit Negotiator, Michel Barnier.

In fact, within his first few weeks in the role, Raab spent more time in face-to-face meetings with Barnier than his predecessor David Davies did throughout the first half of 2018.

Despite the renewed intensity of negotiations, talk of a ‘no deal’ scenario (in which the UK crashes out of the EU in March 2019) increased during the summer months. In the UK, the Government published a first tranche of documents designed to prepare individuals and businesses for the possibility of a cliff-edge Brexit. The Commission already published similar set of documents in early 2018.

Progress on the conclusion of the Withdrawal Agreement, which sets out the terms of the UK’s exit from the EU, as well as the transition period, stalled in early 2018 when it became clear that UK and EU negotiators did not interpret the December 2017 agreement on the need for a Northern Irish “backstop” in the same way. The EU believes that a legally-operable backstop must be agreed to conclude the Withdrawal Agreement. Conversely, the UK Government believes that the aim of achieving a so-called frictionless border on the island of Ireland would best be achieved through the terms of the future UK-EU relationship. The Chequers Deal and subsequent UK White Paper sets out the manner in which the UK Government believes this end goal can be achieved.

Since its publication, Raab and colleagues have been selling the merits of the White Paper to politicians in the EU’s member states, as well as to Barnier and his team. While the EU, generally-speaking, cautiously welcomed the proposals as a good basis for negotiations on the future UK-EU deal, many voices in Brussels have pointed to the problems caused by the proposal, particularly regarding the UK’s proposals on customs.

The argument in Brussels is that, since the UK’s intention is to leave the EU’s Customs Union, border checks in Ireland will be required to protect the integrity of the EU’s single market. The UK’s proposals on customs in the White Paper do not entirely remove the need for border checks, particularly given the fact that elsewhere the UK would like to retain its right to regulatory autonomy. Any difference in regulation and standards between the two blocs would automatically necessitate checks. For that reason, the Commission and all 27 EU member states insist that the UK must sign a backstop agreement on Northern Ireland, to ensure that, even if the UK pursues the type of Brexit it has indicated it desires, frictionless trade can be maintained on the island of Ireland.

Worryingly, neither side has shifted its position on the issue since the beginning of the year. It now seems unlikely that an agreement will be reached by the October Council meeting, meaning that an extraordinary meeting of heads of state may need to be called in November. Should talks run into November, the likelihood of a ‘no deal’ scenario will greatly increase.

Under the terms of the Article 50 process, the member states and the European parliament will need time to approve the final text of the agreement. The European Parliament’s Constitutional Affairs Committee committee recently states that it would be able to vote on the agreement in its March plenary session, and that it would only vote on the text after it had been approved by Parliament in the UK.

With time now passing quickly, and many businesses executing their contingency plans, the success of negotiations in the coming weeks will be imperative to ensuring that the UK does not crash out of the EU in March 2019.

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The Law Societies' Brussels Office monitors developments and represents the profession in negotiations with the European institutions.

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