Brexit Briefing September 2020

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Jane Lambert

The event for which September 2020 will be remembered was the introduction of the United Kingdom Internal Market Bill    Why the Bill was needed at all or at any rate while negotiations on the new partnership with the European Union are at a critical stage is far from obvious.  As I said in The United Kingdom Internal Market Bill  19 Sept 2020 "my first impression on reading through this bill was that there was nothing in it that did not already fall within the scope of existing legislation except perhaps Part 5."

As even Nigel Farage could see, a stiff response from the European Commission was to be expected and perhaps even justified:

Forget Theresa May and Michael Howard - Johnson's conduct is now making even Nigel Farage seem sensible and reasonable https://t.co/llqrXJHVLi

— david allen green (@davidallengreen) October 1, 2020

If the UK is to leave the customs union and single market and the Republic of Ireland is not, there have to be customs controls at the border between the Irish Republic and Northern Ireland unless it is placed somewhere else. The only other place they could be located is between the ports of Great Britain and Northern Ireland.  That is what Mrs May said no British Prime Minister could ever do.

It seems unlikely that this difficulty was not foreseen by Mr Johnspn or members of his party when they voted for the European Union (Withdrawal Agreement) Act 2020 which ratified the Agreement on the withdrawal of the United Kingdom of Great Britain and Nothern Ireland from the EuropeanUnion and the European AtomicEnergy Community.  The only explanation that occurs to me is that the Messrs. Johnson, Gove and Lord Frost hoped to renegotiate the withdrawal agreement in the new partnership talks.

Since art 50 (2) of the Treaty on European Union required the negotiators to take account of the framework for the UK's future relationship with the EU which was supposed to be expressed in the Political Declaration, the EU negotiators were mandated only to flesh out the details of that framework.  That is the substance of their draft treaty of 18 March 2020.  When Johnson, Gove, Frost and company refused to consider that draft the talks became deadlocked allegedly on state aids, fishing and dispute settlement.

If that surmise is right the United Kingdom Internal Market Bill could have been intended to jolt the EU into making concessions.  The threat is that if nothing is done the Irish government will be forced to police the border with Northern Ireland that could lead to political instability in the Republic as well as (possibly but from the Briitish point of view much more affordably) in Northern Ireland.   If that is the tactic it is not clear that it will work for the Commission announced at 10:00 this morning the first step in taking legal action against the UK.  We should know fairly quickly for both sides agree that the middle of October is the cut-off point for ratification of any new partnership agreement by the parties' legislatures before the end of the year,

Other developments in September have been the Agreement in Principle on a Comprehensive Economic Partnership with Japan 12 Sept 2020, exploratory talks with the governments of the parties to the Comprehensive and Progress Agreement on the Trans-Pacific Partnership and continuing talks with the US government on a possible trade deal.

Anyone wishing to discuss this article or any of the issues discussed should call me on 020 7404 5252 during office hours or send me a message through my contact form.

A Withdrawal Agreement Reading Guide

Jane Lambert

Art 50 (2) of the Treaty on European Union requires the European Union to negotiate and conclude an agreement with a member state that has given notice of its intention of leaving the EU that sets out the arrangements for its withdrawal, and takes account of the framework for its future relationship with the EU.  The draft agreement that has been negotiated by officials for the British government and European Union is the agreement contemplated by that provision.  It is intended to come into effect at 23:00 on 29 March 2019 and remain in force until 31 Dec 2020.   It is hoped that a new agreement concluded in accordance with the framework for the future relationship between the UK and EU will take its place to govern relations between the UK and the EU on 1 Jan 2021.

The draft withdrawal agreement can be downloaded from the website of the Department for Exiting the European Union at 14 November Draft Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community or from the website of the Taskforce on Article 50 negotiations with the United Kingdom at the Draft Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, as agreed at negotiators' level on 14 November 2018.  A copy of the political declaration on the future relationship can also be downloaded from the Department for Exiting the EU website.

The draft withdrawal agreement is a hefty document consisting of 585 pages but it is not densely typed. Many of its pages contain just a few lines of text in a fairly large font.  Like most other international agreements it consists of

• a preamble, 
• 185 articles in the body of the draft, and 
• a number of protocols and annexes.

The 185 articles are divided into 6 Parts covering "Common Provisions", "Citizens' Rights", "Separation Provisions", the "Implementation" or "Transition Period", "Financial Provisions" and "Institutional and Final Provisions". Some of those Parts are very long and are further subdivided into Titles and Chapters. There are protocols on Northern Ireland, the sovereign bases in Cyprus and Gibraltar.  The annexes cover "Social Security Coordination", "Provisions of Union law referred to in Article 41(4)", "Time limits for the situations or customs procedures referred to in Article 49 (1)", "List of Networks, Information Systems and Databases referred to in Articles 50, 53, 99 and 100", "Euratom", "List of Administrative Cooperation procedures referred to in Article 98" "List of Acts/Provisions referred to in Article 128(6)", "Rules of Procedure of the Joint Committee and Specialised Committees" and "Rules of Procedure."

To assist readers to find their way around the draft withdrawal agreement, the government has published an Explainer for the agreement on the withdrawal of the United Kingdom of Great Britain and NorthernIreland from the European Union.   Consisting of 56 pages, this "Explainer" is also a pretty heavy document but it is written in non-technical language and greatly facilitates navigation of the draft agreement,

The outline political declaration is much more concise.   It consists of 6½ pages of bullet points divided into 6 Parts covering "Initial Provisions", "Economic Partnership", "Security Partnership", "Institutional Arrangements" and the "Forward Process."

Art 50 (2) requires any draft withdrawal agreement to be approved by the remaining member states acting on a qualified majority and also by the European Parliament.   It will also have to be approved by the British Parliament many members of which and peers have already expressed misgivings.   I am in no position to judge whether this is a good deal or a bad deal for the UK but the alternative is no deal at all and the guidance notes published by the government on How to prepare if the UK leaves the EU with no deal are far from encouraging.

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

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.

Anyone withing 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 page.