British Proposals for Renegotiating the Northern Ireland Protocol

Author Heenah Licence CC BY-SA 4.0 Source Wikimedia Commons

 

Jane Lambert

The pickle in which HM government finds itself over the Northern Ireland Protocol to the agreement between the EU and the UK for the UK's withdrawal from the European Union was hardly unexpected. If there is to be regulatory divergence between the UK and the EU there have to be customs inspections and formalities somewhere.  If the re-establishment of customs posts on the border between the Republic of Ireland and Northern Ireland is unacceptable to this country's European and American allies, then inspections and formalities have to take place between Great Britain and both parts of the island of Ireland.

Immediately after the end of the implementation or transition period provided by art 126 of the withdrawal agreement, there was disruption in the supply of goods from Britain to Northern Ireland.  These led to street protests and calls for the denunciation of the Protocol if not the whole of the withdrawal agreement.  But there are signs that Northern Ireland retailers are sourcing more and more products from within Northern Ireland, the Republic or the rest of the EU.  That is, of course, weakening economic ties with Great Britain and strengthening ties with the Republic. Ultimately that could lead to the cession of Northern Ireland to the Irish Republic. While Irish unification would be welcomed by some in Great Britain it would be regarded as a calamity not only by Northern Ireland Unionists but also by many members of the British Conservative and Unionist Party.   

Mrs Theresa May was offered an arrangement similar to the Northern Irish Protocol but she rejected it on the ground that it was something that no British Prime Minister could accept.  That raises the question of why her immediate successor did just that.  Para 13 of the UK Government position paper Northern Ireland Protocol: the way forward (CP 502) published on 21 July 2021 offers the following explanation:

"However Parliament’s insistence in the BennBurt Act that the UK could not leave the EU without an agreement radically undermined the Government’s negotiating hand; and the final compromise, while delivering the fundamental aim of a clear Brexit, and recognisably based on the UK’s proposal, included several elements which would prove to cause difficulties subsequently: notably, though not only, the EU’s insistence on customs arrangements between Great Britain and Northern Ireland, with detail to be worked out subsequently; and the failure to provide for Northern Ireland’s consent to enter the arrangements."

That does not make a lot of sense.  Had the government's negotiating hand not been "undermined" the government would have been free to take the United Kingdom out of the EU without any agreement on anything including the border between the Irish Republic and Northern Ireland.  That would inevitably have led to border controls and probably security forces to protect them.

The doleful consequences of the Protocol are summarized in para 20 of the position paper:

"Supply chains have been disrupted and costs increased, with staff redeployed to deal with new bureaucracy, impacting investment and growth. Consumers have seen real impacts: at least 200 companies in Great Britain have stopped servicing the Northern Ireland market; plants and trees long-sourced from Great Britain can no longer be stocked in nurseries or garden centres in Northern Ireland; supermarkets have reduced their product lines due to the delays and barriers in moving goods; and the costs of deliveries for those who do serve the market have continued to increase. The effects are felt more broadly too. Medicines are at risk of discontinuation because the hurdles to clear to reach the small Northern Ireland market make supply unviable. And pet owners, including those reliant on assistance dogs, have faced the prospect of unnecessary vaccinations and treatments, and bureaucratic certification hurdles simply to travel within the United Kingdom."

If this is true, the Northern Irish Protocol is clearly not working for the benefit of British suppliers to Northern Ireland but that does not mean that consumers in that province are going hungry.  There are signs that supplies from Great Britain are being replaced by supplies from Ireland and other EU member states (see InterTradeIreland Cross-Border Trade & Supply Chain Linkages Report).

In the position paper, the government is threatening to invoke art 16 of the Protocol.   It is hard to see how that will help.  The first paragraph of the article provides:

"If the application of this Protocol leads to serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade, the Union or the United Kingdom may unilaterally take appropriate safeguard measures. Such safeguard measures shall be restricted with regard to their scope and duration to what is strictly necessary in order to remedy the situation. Priority shall be given to such measures as will least disturb the functioning of this Protocol."

It would appear that "safeguard measures" taken under this article are to be proportionate, short-term and to be taken only in an emergency.  If such measures lead to an imbalance between the rights and obligations under this Protocol, the other party may take such proportionate rebalancing measures as are strictly necessary to remedy the imbalance in accordance with art 16 (2).  Extensive consultations are required before a party may resort to art 16.

The revision to the Protocol that the British government appears to want is inspection-free entry of goods that are intended for consumption in Northern Ireland and full controls for goods intended for the Republic and beyond.   How this would work is not clear because most exporters to the Republic would be expected to choose the M4 to Fishguard or the A55 to Hollyhead rather than the long drive to Cairnryan. The only advantage of the latter would be the opportunity to smuggle. 

The other concession that the government seeks is to remove the resolution of disputes from the jurisdiction of the Court of Justice of the European Union. As EU law applies to the Protocol it is unlikely that there can be much movement there.

Anyone wishing to discuss this article may call me on +44 (0)20 7404 5252 during normal business hours or send me a message through my contact form.

Is there a Convention that a Referendum binds Parliament?

Standard YouTube Licence


Jane Lambert

A tenet of our constitution is that no Parliament can bind its successors. Another is that MPs are representatives and not delegates.  Nothing in the European Union Referendum Act 2015 required the government to implement the vote but, even if it had, it would not have been effective because there has been a general election since then.  There is nothing in law to prevent the legislature from repealing a statute providing for a referendum as easily as it could any other.

So where do Mrs May and many others in her party find support for her curious notion that Parliament is under an obligation to deliver brexit?  Could it be an emerging convention?   If so, it is a very recent one as we have only had three referendums since 1975.  When Winston Churchill proposed a referendum on extending the life of the wartime parliament until victory over Japan, Clement Atlee replied:

"I could not consent to the introduction into our national life of a device so alien to all our traditions as the referendum which has only too often been the instrument of Nazism and Fascism."

Some have argued that the sheer number of votes in favour of brexit give the 2016 referendum a special status.  Perhaps but it is worth remembering that almost exactly the same number voted for the Nazi party in the 1933 Reichstag elections (see March 1933 German federal election Wikipedia).

Parliament has ignored referendum results before even when the majority was overwhelming,  Some 66% of the Western Australian electorate voted for the secession of their state from Australia in 1933. The implementation of that decision required the approval of the UK Parliament because the Australian constitution was then a British statute. Westminster refused to consider secession as I noted in The Western Australian Secession Referendum - A Precedent for Dealing with Troublesome Referendums? 17 Dec 2018 which was probably for the best in view of the war with Japan a few years later (see Sometimes it is a Good Thing to ignore Referendums 19 Dec 2018).

At best the so-called duty can only be a political one arising from the 2015 Conservative election manifesto. There is no reason why anyone else should feel bound to deliver brexit unless they want to do so.  Anyone wishing to discuss this article or brexit, in general, should call me on 020 7404 5252 during office hours or send me a message through my contact page.

Sometimes it is a Good Thing to ignore Referendums

Jane Lambert

The Prime Minister's response to growing calls in her party and the nation for a "Peoples' Vote" or second referendum is that it would somehow "break faith with the British people" (see Brexit: May to urge MPs not to 'break faith' by demanding people's vote 17 Dec 2018 The Guardian).  In my article The Western Australian Secession Referendum - A Precedent for Dealing with Troublesome Referendums? (17 Dec 2018 NIPC Brexit) I wrote that a select committee of 3 peers and 3 MPs recommended that Parliament should not even consider the result of a referendum in which almost all eligible voters had participated and where the majority was 66% as opposed to a rather paltry a 51.9% plurality.

The issue that was the subject of the referendum was whether the state of Western Australia (with a land area of just over 1 million square miles or just over a third of the territory of Australia) should secede from the federation and become a separate nation.  The reason why that question came before the British Parliament is that the Australian constitution was a British statute that made no provision for secession.  The only way that the result of the referendum could be implemented was by an Act of the United Kingdom Parliament.  Parliament set up the select committee to consider arguments from both the state and federal governments.  The history of those events is discussed by Mr Tom Musgrave of the University of Wollongong in an excellent article entitled The Western Australian  Secessionist Movement which was published at page 95 of the Macquarie Law Journal (2003) Vol 3. Copies of Mr Musgrave's article may be downloaded from the Macquarie Law Journal website.

The parallels between the Western Australian secession referendum and the UK's Brexit referendum are striking.  Identity and sovereignty were important issues in both referendums.  Western Australia had enjoyed considerable autonomy under the Colonial Laws Validity Act 1865  (c. 63 28_and_29_Vict) and many of its inhabitants were reluctant to give up that autonomy to join states many hundreds of miles to the east in a continent-wide federation. Similarly, a large section of the British public had always been opposed to an ever closer union.  For a while, participation in the Australian federation brought many economic benefits just as British membership of the European Union did in the United Kingdom.  Those benefits came to an end for many in Western Australia with the Great Depression just as they did for many in the UK with the 2008 recession. A single-issue political movement known as the Dominion League campaigned for a secession referendum just as UKIP did in the UK.  In Western Australia as in the UK, much of the press was vociferous in its support for those referendums and the outcomes of those who campaigned for them.

In my earlier article, I noted that the arguments for and against independence were almost exactly the same as in the Brexit debate.  Essentially whether the will of the overwhelming majority of the Western Australian electorate trumped parliamentary sovereignty as expounded by Burke and Dicey.  In 1935 the doctrines of Burke and Dicey won and it was probably just as well that they did because Austraila found itself at war with Japan in 1941.  Enemy forces bombarded Darwin in February 1942 and were on the point of launching an invasion.  Happily, Australian forces supported by their American and other allies gallantly resisted that challenge but that may not have happened had Australia fragmented into separate nations.  The population of Western Australia was under a million in the early 1940s. There might well have been antagonism between the successor states which would have obstructed a military alliance.  Had Australia or just Western Australia fallen to the enemy the course of the Second World War might have been very different.

Returning to the present, neither Mrs May nor anyone else has explained persuasively why Parliament should not exercise its independent judgment on whether Brexit is or is not a good thing rather than give effect to the will of a narrow plurality.  Losing faith in democracy is one argument and even civil disorder along the lines of the vestes jaunes protest in France has been forecast.  Exactly the same was said in 1935 but nothing like that happened in the end.  Economic conditions improved and calls for independence abated.

There is no reason to suppose the same would not happen if Parliament called a second referendum or simply repeated the European Referendum Act 2015.  As this is a legal blog and not a political one I do not argue that Parliament should do either of those things.  At the same time, nothing has happened since 1935 that leads me to doubt that, if Parliament wished to do so, it could.

Anyone wishing to discuss this or my previous article is welcome to call me on 020 7404 5252 or send me a message through my contact page.

Mrs May's Mansion House Speech: Some Home Truths At Last

Source Guardian,  Standard YouTube Licence

 Jane Lambert

The Prime Minister's speech at the Mansion House on Friday has received a mixed reception.  According to Toby Helm "most Conservative MPs and peers gave the prime minister a period of grace after Friday’s address."  However, Lord Heseltine dismissed it as "more detail on a set of demands that the European Union had made clear all along it would never agree to" (see Tories’ Brexit unity fades as Heseltine slams May’s speech 2 March 2018 The Guardian).

I hold no brief for the Prime Minister, but I think that is a little unfair.  She did speak some home truths though I fear she may have pulled her punches:

1. Brexit will be no bed of roses:  "We are leaving the single market. Life is going to be different. In certain ways, our access to each other's markets will be less than it is now. How could the EU's structure of rights and obligations be sustained, if the UK - or any country - were allowed to enjoy all the benefits without all of the obligations?"
2. "Even after we have left the jurisdiction of the ECJ, EU law and the decisions of the ECJ will continue to affect us." Aside from the niggle that the initials "ECJ" are no longer used as that tribunal is now known as the Court of Justice of the European Union ("CJEU") and has been for many years, I welcome that remark.  It will make it easier to reach agreement on the withdrawal treaty and it may just make it possible for the UK to remain a party to the Uniform Patent Court Agreement.  On the other hand, she omitted to say that the UK will lose its judge and advocate general on the Court who have hugely influenced its decisions since 1973. 
3. No State Aids or Featherbedding:  "If we want good access to each other's markets, it has to be on fair terms. As with any trade agreement, we must accept the need for binding commitments - for example, we may choose to commit some areas of our regulations like state aid and competition to remaining in step with the EU's."

The reason Mrs May had to say these things is that there has been a lot of wishful thinking about Brexit. Some have argued that the shock of the departure of its third largest member state would rip the EU apart. That could happen but there are no signs of its happening yet.  It is equally possible that the remaining member states could integrate more quickly and become stronger and more influential than ever. Another bit of wishful thinking is that German car manufacturers, Italian white goods makers and French farmers will force their governments to make concessions were we ever to play hardball. I have never understood that argument because we are not going to start making those goods in Britain or sourcing those goods from elsewhere. Tariffs might dent demand for EU goods and services but it won't destroy it and the business communities in those countries know it.  The fact is that the UK is not negotiating from a position of strength and will on many issues have to take what the remaining member states have to offer or leave it.

Finally, the Institute for Government has produced an excellent, tabulated analysis of the PM's speech with "Area" in come column, "What the Prime Minister said" in another and "What this means" in the third (see The Prime Minister's Mansion House Brexit speech 2 March 2018 The Guardian).  I was about to do my own analysis along similar lines but this is so much better.

Anyone wishing to discuss this article or Brexit in general should call me on +44 (0)20 7404 5252 during office hours or send me a message through my contact form.

Brexit Briefing - September 2017

Helen Tse and Jane Lambert

Jane Lambert

Since my last Brexit Briefing, there has been a fourth round of negotiations on the terms of the UK's withdrawal from the EU, Mrs May made a speech at the church of Santa Maria Novella in Florence that has been generally warmly received, the British government and the Commission's art 50 task force published position papers on data protection and intellectual property and Helen Tse's book Doing Business After Brexit was launched in Manchester.

The Brexit Negotiations

Despite Mrs May's concessions in Florence. there is still a gap between the two sides which may prove to be unbridgeable.  It was summed up today by Michel Barnier in his speech to the European Parliament:

"We understand and share the worry of the 4.5 million British and European citizens who want to continue living and working like they did before Brexit.
This worry, which you refer to in your resolution, has been worsened by certain discriminatory measures taken by the British authorities. We are worried about this.
To effectively guarantee these rights, we need:

1. The withdrawal agreement to have direct effect to allow British authorities and judges to rely directly on the withdrawal agreement. Without direct effect, these rights could be changed over time
2. A coherent interpretation of the agreement on both sides of the Chanel, which only the European Court of Justice can assure."

Mrs. May went some way to allaying those fears by offering to incorporate the terms of any withdrawal agreement that guarantees the rights of the citizens of the remaining member states into English and Welsh, Scottish and Northern  Irish law, but, as I said in Has Mrs May done enough to break the Logjam? 24 Sept 2017, "it does not address the problem that a future British government could repeal any statute that incorporates a withdrawal agreement at any time." In Fourth Round of Brexit Talks: Still a Logjam 29 Sep 2017 I suggested a possible solution in the form of a constitutional convention but for countries used written constitutions that is unlikely to be enough.  I fear that the reluctance of our government to accept the interpretation of any withdrawal agreement by the Court of Justice will be the deal breaker.

Data Protection 

In its position paper on  data protection, the Commission's art 50 task force warned that "the United Kingdom's access to networks, information systems and databases established by Union law is, as a general rule, terminated on the date of withdrawal." That would be disastrous for a country with a services based economy.  As I said in Another Data Protection Act! "You're joking! Not another one!" - A Short History of Data Protection Legislation in the UK 23 Sept 2017 NIPC Law, we enacted data protection legislation because other countries passed laws that restricted the flow of personal data to us To enable the United Kingdom to safeguard personal data after the General Data Protection Regulation ceases to apply to us, the Government has introduced a new Data Protection Bill into the House of Lords (see Introduction to the Data Protection Bill 16 Oct 2017 NIPC Data Protection).

Intellectual Property

The Commission's position paper on intellectual property rights including geographical indications has been generally welcomed as far as it goes.  However, it is silent on the unitary patent which Tony Rollins regards as assent to the British position that the Unified Patent Court Agreement is an international agreement extraneous to the Treaties (see Commission Position Paper on Intellectual Property Rights including Geographical Indications 7 Sept 2017). I wish I could agree with him but I don't think I can for the reasons set out in my postscript. Fourteen countries including France have ratified the UPC Agreement which means that it could come into effect upon  British and German ratification. Unfortunately, German ratification has been delayed by mysterious proceedings in the German constitutional court. The following announcement appears on the UPC's website:

"A case is currently pending in the German Federal Constitutional Court (FCC) concerning the law passed by the German Parliament on the implementation of the Agreement on the Unified Patent Court (UPCA). This will cause delay to the German ratification of the UPCA and the Protocol on Provisional Application."

There is no indication as to how long those proceedings will last.

Asia

In response to a tweet by Lord Digby Jones that the 21st Century belongs to Asia, not the EU, I looked at Chin, India and Russia which are the three largest countries in that continent and found that they are coming together in the Shanghai Cooperation Organization, BRICS and the One Belt One Road project just as we are drawing away from our neighbours (see The Shanghai Cooperation Organization 9 Sep 2017). Our IP attaché to Beijing, Tom Duke, was in the UK last month and I had the honour of chairing his talks in Barnsley and Leeds.  His visit culminated in a symposium at the IPO's London office hosted by the IPO and SIPO entitled "Future Proofing the IP System" (see UK-China IP symposium highlights importance of innovation 22 Sep 2017 .Gov.UK website).

Book Launch

Finally, Helen Tse's book, Doing Business After Brexit, to which I have contributed the chapter on IP and data protection, was launched at a meeting of the Manchester SME Club at Deloitte's Manchester office on 20 Sept 2017. I reported it in Doing Business After Brexit  24 Sep 2017 in IP North West. The photograph of us both that appears at the top of the page was taken at that event.

Further Information

Should anyone wish to discuss this article or Brexit further, call me on +44 (0)20 7404 5252 or send me a message through my contact form.

Fourth Round of Brexit Talks: Still a Logjam

Author Gene Daniels

Jane Lambert

In Dispute Resolution: A Potential Deal Breaker? 8 Aug 2017 and Has Mrs May done enough to break the Logjam? 24 Sep 2017 I argued that the real stumbling block to a settlement in the withdrawal negotiations is not the size of the divorce bill but what guarantees, if any, can be given of our performance of our obligations under a withdrawal agreement. As I said in my latter article, Mrs May's offer to incorporate such a withdrawal agreement into national law and make sure our courts may refer directly to it is a step in the right direction but it does not address the problem that a future British government could repeal any statute that incorporates a withdrawal agreement at any time.

In their closing statements, Monsieur Barnier and Mr Davis seemed to agree. Monsieur Barnier said:

 "On citizens' rights, our priority, the UK has agreed to give direct effect to the Withdrawal Agreement.
This is very important.
It will give the assurance to our citizens that they will be able to invoke their rights, as defined by the Withdrawal Agreement, before UK courts.
We agreed to guarantee - for the citizens concerned - that the UK will apply EU law concepts in a manner that is consistent with EU law after Brexit.
But we failed to agree that the European Court of Justice must play an indispensable role in ensuring this consistency. This is a stumbling block for the EU" (see Press statement by Michel Barnier following the fourth round of Article 50 negotiations with the United Kingdom 28 Sept 2017 Commission website)

Mr Davis replied:

"But we must also acknowledge that a major question remains open between us – it relates to the enforcement of citizens’ rights after we leave the European Union.
The UK has been clear that, as a third country outside of the European Union, it would not be right for this role to be performed by the European Court of Justice.
But we have listened to the concerns that have been raised – and as a direct result of hearing those concerns the United Kingdom has committed to incorporating the final withdrawal agreement fully into UK law. Direct effect if you like.
We also recognise the need to ensure the consistent interpretation of EU law concepts.
We have not agreed the right mechanism for doing this yet but discussions this week have again been productive" (see David Davis' closing remarks at the end of the fourth round of EU exit negotiations in Brussels 28 Sept 2017 Department for exitng the European Union).

Monsieur Barnier acknowledged the progress that had been made in the talks but warned in his speech that the parties were not yet in a position to move on to discussing future trading relations. That was confirmed today by the President of the Commission who warned that such movement would require a miracle (see Brexit: Miracle needed to advance talks, says Juncker 29 Sept 2017 BBC website).

This will be a great disappointment for the British government, particularly those members of it who had campaigned for Brexit in last year's referendum. They had hoped that the remaining member states would back down on the ground that as they export far more manufactured goods to us than we export to them they had at least as much to gain from a trade deal as we would. That may be true but I doubt if it will happen for two reasons. The first is that the benefit of maintaining the union between themselves outweighs (or at any rate is perceived to outweigh) the value of their trade with us, significant though that may be. The second is that it is by no means certain that they would lose that trade as we are unlikely to lose our predilection for German cars and white goods, French wine and cheese, Spanish shoes and Italian handbags just because prices rise a little to take account of whatever tariff on those items that we may impose. They also know we want a trade deal and that Mrs May has already made concessions in her Florence speech to get one. They might be forgiven for believing that hanging tough delivers rewards.

So is there any way to break the logjam?  From a British lawyer's perspective, yes there is. We may not have a written constitution but we do have rules that known as conventions that are at least as robust as those of other countries' constitutions.  For instance, any Parliament could extend the 5-year limit to the duration of a Parliament originally contained in the Parliament Act 1911 and now re-stated in the Fixed Term Parliaments Act of 2011 but it would never do so. Would not an agreement between the main political parties not to repeal a withdrawal agreement statute be enough?  The political reality for those who understand our constitution is that it probably would, but that may not be how they see things from across the Channel.

Could we give in?  It would solve a lot of problems if we did.  It might enable us to continue to participate in a number of institutions that we like such as Euratom and the Unified Patent Court but it would probably re-open divisions in the Tory Party (and perhaps also the Labour Party) that the referendum was intended to heal. I remain pessimistic.

Has Mrs May done enough to break the Logjam?

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Jane Lambert

The Rt Hon Theresa May MP and Monsieur Michel Barnier visited Italy last week.  Both made speeches.  Monsieur Barnier delivered his to the Foreign and European Affairs Committees of the Italian Parliament in Rome on 21 Sept 2017 (see Speech by Michel Barnier in front of the Committees of Foreign Affairs and the Committees of European Affairs of the Italian Parliament 21 Sept 2017). Mrs May delivered hers the next day at the church of Santa Maria Novella (see PM's Florence speech: a new era of cooperation and partnership between the UK and the EU 22 Sept 2017).

Mrs May went to Florence with the object of persuading Monsieur Barnier or perhaps those instructing him that the parties had made sufficient progress on the negotiation of a withdrawal agreement to discuss the terms of a new relationship between the European Union and the United Kingdon after the 29 May 2019 or any transitional period that may follow our departure.  Has she done enough to achieve that objective?

If the differences between  Her Majesty's Government and those of the remaining member states were really about money as is so often said by politicians and the press in this country, then I would say that she probably had.  She said in terms:

"I do not want our partners to fear that they will need to pay more or receive less over the remainder of the current budget plan as a result of our decision to leave. The UK will honour commitments we have made during the period of our membership."

But, as I said in  Dispute Resolution: A Potential Deal Breaker? 8 Aug 2017 I don't think money is the real problem.

The stumbling block is the constitutional principle that no Parliament may bind its successor.  Whatever Mrs May agrees to in a treaty, whatever treaty commitments she enshrines in statute, a future administration, whether of the right or of the left, could repeal it and the courts of England and Wales, Scotland and Northern Ireland would have no option but to give effect to the statute.

That's not possible right now because Union law prevails over national law. If Parliament passed an Act that was repugnant to EU law our courts would simply disregard it.  After Brexit, British nationals in the remaining states will still have the guarantee of EU law if a remaining state were to enact legislation that is repugnant to the withdrawal agreement but EU nationals living here would not because the EU treaties will have ceased to apply here by reason of art 50 (3).

That is why Monsieur Barnier said in Rome:

"On citizens' rights, our priority in this negotiation:
The issue of guaranteeing the rights of EU citizens in the United Kingdom has not been solved.
It is absolutely necessary that all these citizens, hundreds of thousands of whom are Italian citizens living and working in the United Kingdom, can continue to live as they did before, with the same rights and safeguards.
This is a human and social question, which the European Parliament and its president, Antonio Tajani, are vigilantly watching, and rightly so.
Citizens should be able to enforce their rights directly from the withdrawal agreement. This would prevent any possible dilution of these rights, if the rules implementing them in the UK were to change.
In the same way, we want these rights to be valid in national courts and that national courts have the possibility – or even the obligation – to refer questions related to the interpretation of rights deriving from European law to the Court of Justice of the European Union. The Court of Justice would remain the ultimate guarantor of the agreement.
This is for a simple reason: rights need to be effectively guaranteed.
Our citizens have real concerns today – which we share – when the Home Office sends deportation letters or appears to defy High Court orders, as we read in the press.
Our position on this point has been clear since the beginning. We want to provide the strongest safeguards for the rights of citizens on both sides of the Channel. We are waiting for the United Kingdom to express the same wish."

So what did Mrs May offer in response? Well, there was some movement.  The Prime Minister acknowledged the need for guarantees and made the following concession:

"We have also made significant progress on how we look after European nationals living in the UK and British nationals living in the 27 Member States of the EU.
I know this whole process has been a cause of great worry and anxiety for them and their loved ones.
But I want to repeat to the 600,000 Italians in the UK – and indeed to all EU citizens who have made their lives in our country – that we want you to stay; we value you; and we thank you for your contribution to our national life – and it has been, and remains, one of my first goals in this negotiation to ensure that you can carry on living your lives as before.
I am clear that the guarantee I am giving on your rights is real. And I doubt anyone with real experience of the UK would doubt the independence of our courts or of the rigour with which they will uphold people’s legal rights.
But I know there are concerns that over time the rights of EU citizens in the UK and UK citizens overseas will diverge. I want to incorporate our agreement fully into UK law and make sure the UK courts can refer directly to it.
Where there is uncertainty around underlying EU law, I want the UK courts to be able to take into account the judgments of the European Court of Justice with a view to ensuring consistent interpretation. On this basis, I hope our teams can reach firm agreement quickly."

The offer to incorporate a withdrawal agreement into national law and make sure our courts may refer directly to it is a step in the right direction - especially if our courts can take account of judgments of the Court of Justice of the European Union. But it does not address the problem that a future British government could repeal any statute that incorporates a withdrawal agreement at any time.  If I were advising Monsieur Barnier and his team (which, thankfully, I am not) I would have to tell them that Mrs May's concession is just not good enough.

Should anyone wish to discuss this article, he or she can call me on +44 (0)20 7404 5252 during office hours or send me a message through my contact form.