UK Withdrawal Negotiations: State of Play and the Position Papers

Despite promising the ‘row of the summer’over the timetabling of the discussions before the negotiations began in June, David Davis, Secretary of State for Exiting the European Union, seems to have let earlier points of contention evaporate in the July heat.

Firstly, although the Foreign Secretary Boris Johnson recently agreed with a Tory backbencher that the EU could ‘go whistle’ for a financial settlement, the UK Government has now agreed that a financial settlement will form part of the final agreement; a recent statement from Davis confirmed that; “The government recognizes that the UK has obligations to the EU, and the EU obligations to the UK, that will survive the UK’s withdrawal – and that these need to be resolved.” 

That is not to say that the EU and UK negotiating terms have reached consensus; Politico quoted an unnamed EU official as saying that while the EU had provided a “detailed legal analysis underpinning a list of obligations which need to be included in the financial settlement”, as it stood “the UK was not in a position to present its legal analyses”. No numbers are therefore on the table, but this is quite possibly the most difficult point of the final settlement; as can be seen from comments above and below the line in the UK press, payment of any kind to the EU, regardless if it would be to honour past commitments or for future market access, is a toxic concept to Brexiteers. Add to the equation the insecure grip that Prime Minister Theresa May is now acknowledged to have over her own cabinet, let alone Parliament, and there is every possibility that any number agreed will prove to be too much to command majority support in Westminster.

Another red line, which has apparently faded in the negotiations, concerns a transitional period between the end of the 2 year negotiation period laid down by Article 50 and the final exit of the EU from EU structures. The form – and duration – of this is still unknown, but lack of knowledge has not prevented UKIP from claiming that “the Chancellor plans Brexit betrayal”.

Acceptance, in principle, of a transition agreement may not, however be sufficient to replicate all the institutional and physical structures – replacement of the European Medicines Agency, increasing customs capacity at Dover – that would be needed in time to prepare for an eventual exit from the Single Market  an outcome that appears to be growing in cross party support. More damning is that there has been little clarification on what the EU-UK relationship would be transitioning to; in the absence of even an outline of this, critical business decisions concerning investment and continued operations in the UK will have to made, long before the 2019 exit deadline approaches.

Jurisdiction of the Court of Justice of the European Union

One area where the position of the UK is rather more clear is in the entrenched opposition to a continuing role for the Court of Justice (CJEU) after Brexit; as paragraph 10 of the UK position paper on Ongoing Judicial and Administrative Positionsstates unequivocally;

“The UK has made clear that leaving the EU will end the jurisdiction of the CJEU in the UK, a position consistent with international legal precedent, placing the UK in the same position as all other third countries, including those with which the EU has deep and close relationships”

The rest of the paper then details the issues to be discussed, such as how to identify and deal with cases pending at the time of exit, what would be the status of judgments of the CJEU etc. Much reference is made to ‘certainty’, as well as ‘fairness’, but little detail is offered on the substantive detail as to how this will be achieved, rather the paper ends by noting that “[f]urther discussions with the EU are required to identify the full scope …and the appropriate approach…”.

The EU papers,  assert equally robustly that the CJEU needs to have competence firstly “to adjudicate in proceedings which are pending on the withdrawal date”, secondly, “to adjudicate in preliminary references submitted by courts in the United Kingdom after the withdrawal date relating to facts that occurred before the withdrawal date” and lastly asserting that

“Judgements of the Court of Justice given before the withdrawal date as well as judgements given in proceedings mentioned [above]… have binding force in the United Kingdom after the withdrawal date and are enforceable there under the same conditions as those laid down in Article 299 TFEU”. It is hard to see how this continuing role for the CJEU, even if restricted to consideration of facts which occurred before the date of withdrawal could be deemed compatible with the UK’s stated insistence to end the jurisdiction of the CJEU in the UK.

Citizens’ Rights

The next issue in which a doctrinally different approach between the UK and the EU is evident concerns citizens’ rights. Specifically, the EU has taken the view that existing rights of EU citizens in the UK should be protected to the same level as now, and that “The United Kingdom should ensure compliance…including as regards the required powers of judicial and administrative authorities, through a legislative act. “.

The UK, by contrast, proposed a “generous” offer on citizenship to EU nationals continuing to reside in the UK post- Brexit, to include a “settled status” allowing them to remain and apply for citizenship.

This, at EU level, was not considered to be acceptable. A technical note prepared after the most recent joint discussions in Brussels illustrates the gap between the two parties; of the 47 items on citizens’ rights discussed, 13 are listed as being subject to divergent positions, including critical elements such as future family members, the right to vote, and legal status of permanent residence holders.

Conclusion

Considering that a limited amount of time remains before the negotiated agreement needs to be placed in front of the EU and UK Parliaments, progress has been limited. In particular, the issue of the Northern Irish border has yet to be properly addressed – and resolution is not likely to come quickly. Likewise, either Parliament could end up effectively vetoing the agreement- in the UK case by voting down the European Union (Withdrawal) Bill, and preventing ‘domestication’ of EU law, which would presumably render a Withdrawal Agreement between the UK and EU null. While the broad and general agreement of the two negotiating teams thus far is relieving, any one of the points of detail outlined above has the possibility to push the negotiators out of time, thus setting the UK almost certainly on the road to a chaotic hard Brexit.