Framework for Negotiations

The European Council has set the framework for the EU’s negotiating position. The talks are led by the European Commission’s chief negotiator. The European parliament observes and must consent to the ultimate agreements.

The European Union’s heads of state have said that they are determined to protect European Union and the EU project. They do not wish to give the UK an agreement that may incentivise other states to withdraw. At the same time, they are aware that a so-called hard or disorderly Brexit would damage both EU states and the United Kingdom.

The UK Prime Minister, Theresa May set out her objectives in her Lancaster House speech on 17 January 2017. These were reiterated in a White Paper published by the UK Government on 2 February 2017.

The EU has indicated that negotiations under Article 50 are to be conducted as a single package. Nothing is agreed until everything is agreed. The EU will approach negotiations with unified positions and engage the UK exclusively through the channels set out in the guidelines.

The first phase is designed to provide as much clarity and legal certainty as possible and settle the disentanglement of the UK from the EU. Once the European Council deems that sufficient progress has been achieved, the negotiations will proceed to next phase.

An agreement on the future relationship between the EU and the UK can only be concluded once the UK effectively leaves the EU and becomes a third country. However, discussions on an overall understanding of the future relationship may start during the second phase of negotiations.

EU Negotiating Team

The EU has appointed former French Foreign Minister, Michel Barnier as its chief negotiator. Ultimately, the heads of government and states coordinated by the European Council President Donald Tusk, supported by the Council’s Brexit task force will be heavily involved in the agreement, given the requirement that it’ be ratified by the EU Council.

On 22 May 2017, the Council excluding the UK adopted the decision authorising the opening of Brexit negotiations and adopted negotiating directives. They indicated that the first set of negotiations directives is intended to guide the Commission for the first phase. They prioritise the necessity for an orderly withdrawal including citizens’ rights, financial settlement, and the situation in Ireland as well as other matters in which there is a risk of legal uncertainty as a consequence of Brexit.

UK Negotiating Team

From the UK side, the matter of agreeing on the terms of withdrawal and the agreement of a future arrangement rests primarily with the nearly established Department for Exiting the European Union. Other departments such as the Department for International Trade, the Department for Business and the Treasury will be intimately involved in the negotiations process.

The UK government has indicated that the resumption of control over migration and the ending of the European Court of Justice’s jurisdiction in the UK are paramount considerations. They are generally understood as incompatible with membership of the single market on the basis that the four freedoms of movement for workers, capital, services, and goods are asserted by the EU  to be indivisible.

The UK government has indicated that it will seek to maintain the Common Travel Area with the Republic of Ireland. It will seek early agreement on the protection of the rights of EU nationals in the UK and UK nationals in the EU. It wishes to secure an agreement on these matters within the two-year time frame to enable new border measures and arrangements to be put in place.

The UK had sought to negotiate the future relationship in tandem with the withdrawal negotiations. It has ultimately accepted the EU decisions on sequencing.

Withdrawal Agreement

There are two distinct agreements contemplated by Article 50. The EU shall negotiate and conclude an agreement with the withdrawing state setting out the arrangements for its withdrawal taking account of the framework for its future relationship with the EU. This agreement seeks to deal with unwinding ongoing matters and involvement in programs, financial adjustment and the rights of EU nationals in the withdrawing state and withdrawing state national in the EU.

The agreement on withdrawal is to be agreed by the UK and a by qualified majority of the remaining EU states namely 20 of the 27 comprising at least 65 per cent of the population. This agreement in itself does not require the consent of national parliaments.

The EU Treaties cease to apply on the date of withdrawal under the withdrawal agreement or failing that two years after notification (30th March 2019), unless the European Council in agreement with the exiting member state (the UK) decides to extend this period. The European Union by the  European Council (heads of government) must unanimously agree to any extension.

The withdrawal agreement will contain a framework only of the new relationship. There are likely to be transitional arrangements before the final agreement is entered. The European Parliament has resolved that the transitional period should not be more than three years

Transitional Arrangements Likely and Agreed in Principle

The arrangements for withdrawal are likely to include transitional measures regarding the winding down of UK’s involvement in EU programs, a once off contribution to the EU budget if applicable and the rights of nationals in the withdrawing state, in each state. The framework for the future relationship will cover possible future trade arrangements and other features of a long-term relationship.

It appears there will a transitional agreement for a period after 29 March 2019 (may also apply to new exit date on 31 December 2020) during which the UK’s future relationship with the EU might be negotiated and concluded. There may be an extension of the withdrawal date. It seems unlikely that a complete agreement can be entered within two years.

There may be a point at which UK may symbolically leave the EU, with many of the remaining details the subject of negotiations and ongoing transitional arrangements with further agreements be entered. The result is that there is likely to be significant uncertainty as to the ultimate outcome for many years to come.

If negotiations are not concluded and all necessary consents are given within two years, then in the absence of an extension, the UK will simply cease to be a member of the EU on 29 March 2019 (may also apply to new exit date on 31 December 2020). This is what is described as a hard or disorderly exit.

New Relationship Agreement

The UK government is seeking a comprehensive bespoke trade deal involving a limited customs union.  If a new substitute agreement is entered in relation to the future relationship of the UK and the EU, then unanimous consent is likely to be required of the other EU states. Their parliaments are likely to have to ratify it. This is because it would be a mixed agreement dealing with both EU and member state competences.

In the absence of a new trade deal, then on the taking effect of withdrawal, the World Trade Organisation rules require each of the EU and UK to apply the same tariffs and conditions of trade on imports from each other as the EU now applies in respect of  other World Trade Organisation members, with which there is not a comprehensive agreement.

The worst scenario from a trading and certainty perspective is the absence of both a withdrawal agreement and a new free trade agreement. This would leave continuing uncertainty regarding such basic matters and issues such as EU and UK’s citizens’ rights to be in the other’s territories.

Role of Parliament

The House of Commons has established an Exiting the European Union Committee. Other select committees are expected to take an interest and be involved. Their reports may influence ministers and may lead to debate.

Parliament has no direct role in the negotiations. However, Parliament has the ultimate power over the government and in view of the minority government position may wield considerable influence. The current DUP confidence and supply arrangement has a two-year time life only but may be renewed. The parliamentary arithmetic may be changed affected by by-elections and unexpected steps by members.

The Constitutional Reform and Governance Act 2010 allows parliament to block ratification of a treaty. The Lords may indicate dissent, but this may be overridden with Commons support. There are some exceptions.

Parliament has very little direct input into the contents of the agreement beyond a possible ability to block it and ultimately express a lack of confidence in the Government in practice. However if Parliament were to block an agreement close to the withdrawal deadline, there may be a hard/disorderly Brexit. This may leave Parliament with relatively few e practical options, even if there was a majority against the proposal terms.

Devolved Legislatures

The UK government is primarily responsible for agreeing on an exit/withdrawal agreement and if possible a new agreement or arrangement for the future relationship between the United Kingdom and European Union. It has undertaken to consult with the devolved administrations in Scotland, Wales, and Northern Ireland.

Many of the EU powers and areas repatriated under Brexit fall with the competence of the devolved legislatures in Scotland, Wales, and Northern Ireland. Under the Sewel Convention, which is not legally binding,  UK parliament does not legislate on matters within the competence of the devolved legislatures without their consent.

The Supreme Court decision in the Miller case conclusively determined that the matter of leaving the EU was one for the UK government. There is no role for or consent required from the devolved governments.

Revocability of Article 50

It is debatable as to whether the EU can revoke the Article 50 notification which has been given. The UK Supreme Court arguments in the Miller case assumed that is irrevocable.

There are good arguments in terms of EU order as to why it should be interpreted as being irrevocable. There is no ultimate authority on whether the Article 50 notice is revocable or not. Arguably only the European Court of Justice can determine whether Article 50 is revocable. The

In principle, the UK and other EU states collectively might agree on an amendment or withdrawal of the withdrawal letter.

Key Rights Depend on UK Law Only Post Brexit

After Brexit, the remaining body of law of former European Union Law will be given effect by the UK legislation. Many European Union laws will require repeal modification and amendment in the context of the  Repeal Act. Many laws (and some rights) will cease to exist by reason of the UK leaving the EU.

Treaty rights which would require treaty amendment and the consent of all states of the European Union may be repealed by ordinary UK legislation. Rights conferred or confirmed by directives and regulations will be subject to repeal or amendment by the UK Parliament, rather than through the legislative procedure of the European Union usually involving the Council of Ministers and the European Parliament. Most European Union rights will be no longer available to UK citizens and will be no longer be directly enforceable against other EU citizens in other states.

It may be that a new agreement is entered between the EU and UK which preserves or re-enacts certain of these all laws and rights in new modified terms. It may provide for its own institutions, to which recourse may or may not be had by private parties. It is likely that a direct right to assert the agreement will be limited to those with accrued rights (e.g. already living in each other’s territory) as opposed to those claiming a new right (e.g. to establish themselves in another state).

The institutions, in particular, the Commission which enforces certain laws will no longer have jurisdiction or power in the UK  so that the functions will be conferred on domestic UK bodies in their place.

The European Union will cease to have jurisdiction and UK citizens will cease to have recourse to both the main European Union institutions such as the Commission and the Courts of Justice but also to the myriad of other EU bodies in various fields such as the European Aviation Safety Agency, European Fisheries Control Agency, European Chemical Agencies and numerous others.


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