Today's White Paper on the Withdrawal Agreement - What's happened to Ireland?

Satellite Image of Ireland

Author NASA
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Jane Lambert

Today our government published yet another white paper on Brexit.  This one is entitled Legislating for the Withdrawal Agreement between the United Kingdom and the European Union Cm 9674 and it proposes legislation for the implementation of the withdrawal agreement contemplated by art 50 (2) of the Treaty of European Union,

A draft of that agreement was published at the end of February and about 80% of it has been agreed according to Monsieur Barnier  (see Press statement by Michel Barnier following the July 2018 General Affairs Council (Article 50) 20 July 2018). But there remains one stumbling block and that is how to avoid the need for border posts with customs officers and immigration inspectors along the border between the Irish Republic and Northern Ireland when the UK leaves the Customs Union and Single Market that allows freedom of movement between member states.  One obvious solution would be for Northern Ireland to remain in the Customs Union and Single Market so that the border between the EU and UK is the Irish Sea but that would be anathema to Ulster Unionists as well as many in the Conservative Party and perhaps other British politicians.

It is no doubt for that reason that the 44 page white paper is almost silent on Ireland.   I counted only 13 references to the island in the text, mainly in the Introduction.  There is a lot more detail on Citizen's Rights (Chapter 2 - paragraph 16 to 51), the Implementation Period (Chapter 3 - paragraph 52 to 104), The financial settlement (Chapter 4 - paragraph 105 to 136) and Procedures for approval and implementation of the Withdrawal Agreement and framework for our future relationship (Chapter 5 - paragraph 137 - 157).  A lot of Mrs May's problems would disappear if more of her backbenchers and local Conservative Association members bothered to read those last 20 paragraphs.

In that it shows how far the negotiations have progressed on everything except Ireland and it betokens an intention to seeing the job through I am mildly comforted by  this document. Should anyone wish to discuss it or Brexit in general, call me on 020 7404 5252 or send me a message through my contact form. 

The White Paper on the Future Relationship between the UK and the EU

Jane Lambert

Art 50 (2) of the Treaty of European Union requires the European Union to "negotiate and conclude an agreement with [a departing] State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union." The white paper on The Future Relationship between the United Kingdom and the European Union Cm 6593 is intended to satisfy the need for a framework for the future relationship with the EU to be taken into account.  Its defects and deficiencies are obvious but they probably do not matter because nobody expects its proposals to be accepted lock, stock and barrel by the remaining member states of the EU.  The purpose of the white paper is short term.  It is simply to address the requirements of art 50 (2).

According to Michel Barnier, some 80% of the provisions of the withdrawal agreement required by art 50 (2) have already been agreed (see Press statement by Michel Barnier following the July 2018 General Affairs Council (Article 50)  20 July 2018).  The draft agreement provides for an implementation period between 30 March 2019 and 31 Dec 2020 during which time EU law will continue to apply to the UK even though it will cease to be a member state.  At the end of that period it is hoped that a new agreement will be in place to govern relations between the UK and the 27 remaining states.

The white paper is a political expedient contrived to calm the nerves of employers in the aerospace, automotive and other industries while satisfying the demands of those seeking an end to British contributions to the EU budget and the jurisdiction of the Court of Justice of the European Union, the restoration of control of immigration from the EU 27 at ports and airports and so on.  Monsieur Barnier recognized the white paper for what it was when he described it as "le fruit d'un débat très intense au Royaume-Uni qui était nécessaire" ("the fruit of a very intense debate in the UK which had been necessary") adding that everyone is well aware that that debate is not over yet.  Although the white paper is not all bad - I found its commitments on continued judicial cooperation on civil and commercial matters and its commitment to the Unified Patent Court and the unitary patent very much to my liking (see Jane Lambert Like the Curate's Egg - The White Paper on the Future Relationship between the UK and EU 18 July 2018 NIPC News) - it is unlikely to form the basis of a permanent relationship for all the reasons that Monsieur Barnier gave in yesterday's press statement.

However, that does not mean that it is without value.  As Monsieur Barnier also said:

"De notre point de vue, il y a plusieurs éléments qui ouvrent la voie à une discussion constructive pour la déclaration politique sur notre future relation, par exemple :

• la proposition d'un accord de libre-échange, qui devrait constituer le cœur de notre future relation économique. On rejoint là une proposition clef des guidelines du Conseil européen : un ambitieux free trade agreement;

• des engagements en matière de level playing field, notamment en ce qui concerne les aides d'Etat et les règles sur l'environnement et l'emploi;

• et une large convergence de vues sur de possibles et nécessaires coopérations en matière de sécurité intérieure et extérieure.

Le Royaume-Uni apporte des garanties en matière de protection des droits fondamentaux et reconnaît la Cour de justice de l'UE comme seul arbitre du droit européen.
Cela facilitera les échanges de données entre le Royaume-Uni et nous, et cela ouvre donc la possibilité d'élargir notre offre en matière de coopération sur la sécurité interne en particulier."

A political declaration on the future relationship is how the Commission and remaining member states interpret the requirement in art 50 (2) to take account of the departing state's future relationship with the EU.

Getting a withdrawal agreement that will lead to a transitional period between 29 March 2019 and the 31 Dec 2020 in which the UK will be formally outside the EU but the EU treaties. legislation and case law of the Court of Justice will continue to apply is probably the best for which those who wish to see as little disruption as possible to the UK's relationship with the EU can realistically hope.  A second referendum on the withdrawal terms is attractive to some but it would require legislation and time to campaign and the 2 year notice period provided by art 50 (3) runs out in less than 9 months.

Even though 80% of the text of the withdrawal agreement is agreed, it is by no means certain that we will get it.  The question of what should be done about Ireland (and to a lesser extent Gibraltar) remains as intractable as ever.  There are many MPs in the Conservative Party and even one or two in Labour who would relish an abrupt end to the UK's relationship with the remaining EU member states regardless of any inconvenience, discomfort and hardship that it would cause in the short term in the hope that it would lead to a complete reordering not only of our trade and foreign relations but also of our economy and society. I doubt that many of my clients or readers would want that to happen but such an outcome is very much on the cards and they are advised strongly to prepare for it.

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

The Chequers Statement explained

Chequers Court

Author Stephen Simpson
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Source Wikipedia

Jane Lambert

The Statement from HM Government issued from Chequers on 6 July 2018 appears to be a direct response to the European Council's Conclusions of 29 June 2018.  In order to understand both documents it is necessary to have regard for the Joint statement from the negotiators of the European Union and the United Kingdom Government on progress of negotiations under Article 50 TEU on the United Kingdom's orderly withdrawal from the European Union.

The Joint Statement refers to a draft treaty for the withdrawal of the UK from the European Union which was first published on 28 Feb 2018.  The draft treaty is intended to be an agreement "setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union" within the meaning of art 50 (2) of the Treaty of European Union. It provides a timetable and road map for the orderly withdrawal of the UK from the EU. The draft agreement provides for the UK to observe the obligations of membership until 31 Dec 2020 after which a new framework agreement is hoped to be in place.

Without a withdrawal agreement, art 50 (3) provides that the treaties and the entire superstructure of legislation that has governed the relationship between the UK and its neighbours and allies since 1973 will simply fall away on 29 March 2019.

There are some who believe that such an outcome would be a good thing because it would enable:

• British businesses and consumers immediately to buy goods from suppliers outside the EU more cheaply than they can now because the UK would no longer have to apply the common external tariff on such goods; and 
• British diplomats to negotiate trade deals with countries outside the EU that would be more favourable to British business than the ones to which HM government is already a party.

That may or may not be the case but it is not a view shared by business leaders in the aerospace and automotive sectors that have warned that they will reconsider investing in the UK if the UK leaves the EU without, at the very least, a withdrawal agreement on the lines of the 28 Feb draft.

The problem for both the British government and the remaining EU member states is that any withdrawal agreement will have to be ratified by the British and European parliaments and there is not much time left for them to do it. That is why the Council expressed concern that no substantial progress had yet been achieved on agreeing a backstop solution for the border between the Irish Republic and the United Kingdom and called upon the UK to make its position clear on any framework agreement for future trade relations between the UK and EU.

Both the British government and the remaining EU member states are committed to an open border between the United Kingdom and the Republic of Ireland.  The EU Commission proposes a backstop agreement which would require Northern Ireland to remain in a customs union with the Irish Republic.  As that would be politically unacceptable to the UK, the Chequers statement makes two proposals. The first is that:-

"The UK and the EU would maintain a common rulebook for all goods including agri-food, with the UK making an upfront choice to commit by treaty to ongoing harmonisation with EU rules on goods, covering only those necessary to provide for frictionless trade at  the border."

Secondly:

"The UK and the EU would work together on the phased introduction of a new Facilitated Customs Arrangement that would remove the need for customs checks and controls between the UK and the EU as if a combined customs territory."

The government listed the benefits of the proposal one of which is that it should

"enable the Government’s commitments to Northern Ireland to be met through the future relationship, avoiding the need for a border between Northern Ireland and Ireland, or within the UK."

There is no guarantee that these proposals will be accepted but they are a start.  The alternatives to a withdrawal treaty are no agreement at all and the last paragraph of the statement makes arrangements for that eventuality, an agreed extension of the two year negotiating period in accordance with art 50 (3) or, if that is legally or politically possible, the revocation of the notice of intention to withdraw from the EU.

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 form.

Brexit Briefing - June 2018

Author Mikelo 

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Source: Wikimedia Commons

Jane Lambert

Despite Lords' amendments and a threatened revolt by a number of Tory MPs, the European Union (Withdrawal) Bill received royal assent and is now law. I have removed my link to the bill and added one to the Act in the left hand column.

But from the government's point of view that was the only progress that it could celebrate.  Members of the Cabinet could not agree on mechanisms for avoiding a hard border with the Republic of Ireland. There were reports that the Rt Hon Michael Gove MP had torn up a report on a policy said to be favoured by the Prime Minister in a fit of pique (see  'Livid' Michael Gove rips up EU customs partnership report 30 June 2018 BBC website). Major employers like Airbus SE and BMW have been drawing up contingency plans for the UK's departure from the EU without a withdrawal agreement (see Hope for the best but prepare for the worst 22 June 2018).

A draft withdrawal agreement has been available since 28 Feb 2018 but many of its provisions are still to be agreed (see Brexit Briefing - February 2018 7 March 2018).  There has been progress as the European Council acknowledged in its Conclusions of 29 June 2018 but there is a great deal more still to do.    It expressed concern that no substantial progress had yet been achieved on agreeing a backstop solution for Ireland/Northern Ireland despite commitments undertaken by the UK in this respect in December 2017 and March 2018.  It also called for work to be accelerated with a view to preparing a political declaration on the framework for the future relationship. 

The lack of progress with such two issues is the reason for the nervousness of businesses like Airbus and BMW.  At the time that the draft was published there was every hope that the parties would reach an agreement before the 29 March 2019 that would allow integrated aerospace and automotive manufacturing across the Channel and North Sea to continue.  As every day passes such an outcome becomes less and less likely.  There is a growing chance that the UK will withdraw from the EU without any agreement at all.

Although most businesses seem to regard withdrawal without agreement as a bad thing some will find opportunity.   Regardless of whether such an outcome would be good or bad it has to be planned for and it is reassuring that many organizations are doing just that,

Anyone wishing to discuss this article or Brexit in general should call me on 020 7404 5252 or send send me a message through my contact form.