Brexit Briefing - August 2018

Rt Hon Dominic Raab MP

Author Chris McAndrew
Licence  Creative Commons Attribution Share Alike 2.0 unported
Source Parliament

Jane Lambert

Unless the British government withdraws its notice of intention to leave the European Union or the 27 remaining member states of the EU unanimously extend the notice period under art 50 (3) of the Treaty of European Union, the UK will leave the EU on 29 March 2019.  There are two possible scenarios as to what will happen after that.  If both sides sign a withdrawal agreement as contemplated by art 50 (2) arrangements between the UK and the remaining member states will continue more or less as they are now until 31 Dec 2020.  That would give negotiators a breathing space to negotiate an agreement for a future partnership with the EU that will come into effect on 1 Jan 2021.  If a withdrawal agreement is not signed by 29 March 2019 then the legal framework that has governed the UK's relations with its 27 closest neighbours, trading partners and allies will cease to exist with all sorts of unknown consequences.

A draft of the withdrawal agreement was published in February and 80% of it has been agreed according to Michel Barnier  in his op-ed An ambitious partnership with the UK after Brexit 2 Aug 2018 and the Rt Hon Dominic Raab MP, the new Brexit secretary, in his statement to the House of Commons on 4 Sept 2018.   However, as in all commercial negotiations, nothing is agreed until everything is agreed and the sticking point up to now has been how to ensure that there are no customs formalities at the border between Northern Ireland and the Irish Republic after the UK leaves the single market and customs union.  Two possible solutions have been offered so far neither of which is likely to be agreed.  The Commission has proposed a backstop arrangement by which Northern Ireland remains in the customs union and customs and immigration checks take place at British and Irish sea and airports.  The British government has suggested free movement for goods with a common rule book in its white paper on The Future Relationship between the United Kingdom and the European Union.

In his Commons statement Mr Raab described the Commission's proposals as "unacceptable, because they would create a customs border down the Irish Sea."  The white paper proposals have already prompted the resignation of two cabinet ministers and have been described by a former minister as less popular than the poll tax.  They are unlikely to survive a vote in the Commons let alone scrutiny by the Commission's art 50 task force.   Mr Raab told the Commons that "we are determined to reach a solution that protects the Belfast Agreement and avoids a hard border on the island of Ireland" but gave no details as to what that solution could be.

Interestingly, there now seems to be another snag which concerns geographical indications, a form of intellectual property.   In a statement following his meeting with Mr Raab on 31 Aug 2018, Monsieur Barnier said:

"On geographical indications - 3000 geographical indications in the 28 countries of the Union - I expressed again my worry. 

The EU's position is clear: Brexit should not lead to a loss of existing intellectual property rights.

We must protect the entire stock of geographical indications.

This protection is an international obligation, and seeing as it is one of the separation subjects, it must be clarified in the Withdrawal Agreement. We will come back to this subject, whose solution must be in the Withdrawal Agreement."

It is not clear why this is a problem as the UK is bound to protect geographical indications by section 3 of the TRIPs agreement and has always done so through the registration of collective and certification marks and the law of passing off.

Although Mr Raab stressed that he expected to reach a deal with the EU, that it remained the most likely outcome and the government's top and indeed its overriding priority, HMG had a duty as a responsible government to prepare for any eventuality.  Accordingly it has started to publish guidance to businesses and individuals on how to prepare for withdrawal without an agreement which I discussed in And if there is no deal ................. on 24 Aug 2018.

Concern over the consequences of leaving without a withdrawal agreement appears to have begun a shift in attitude over Brexit.  A number of opinion polls were published apparently showing growing disenchantment with Brexit and support for a second referendum (see Benjamin Kentish
2.6 million Leave voters have abandoned support for Brexit since referendum, major new study finds 4 Sept Independent and Patrick Grafton-Green Brexit news latest: Brits would vote 59-41 to remain in EU if second referendum was held, new poll shows 5 Sept 2016 Evening Standard).  A number of politicians in the Labour and Conservative parties as well as the Liberal Democrats have called for a peoples' vote or second referendum on the terms of the UK's withdrawal from the EU and they have been joined by a growing number of business and trade union leaders. The prime minister has rejected those calls and they have not been endorsed by the leader of the opposition but these are uncertain times in which anything is possible.

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