Update on Withdrawal negotiations

The UK and the EU reached tentative agreement yesterday on key elements of the UK’s withdrawal from the EU. That was achieved by the translation of much of December’s Joint Report into the legal text of the Withdrawal Agreement. This is expected to lead to the "orderly withdrawal" of the UK. However, crucial issues remain unresolved. Moreover, the agreement is conditional on both sides agreeing a final withdrawal treaty. Key points include:

Implementation period – A platform for the future?

The UK and the EU agreed on an implementation period, lasting 21 months, from exit day on 29 March 2019 to 31 December 2020. It is designed to “smooth the path to the future permanent relationship”. The implementation period is expected to provide certainty in the short term for citizens and businesses. More importantly, it is intended to serve as a platform on which the negotiating parties can build their future relationship. The UK will be able to “step out, sign and ratify new trade deals with old friends – and new allies – around the globe for the first time in more than 40 years”, to quote David Davis’ press statement yesterday. These new trade deals, however, will come into force only after the 31 December 2020. Another way in which the implementation period serves as a platform for future relationships is in foreign and defence policy. The plan is to use the 21 months to build an “ambitious partnership” with the EU and other third countries. As Michel Barnier summarised in his press statement yesterday, the implementation period will be “un temps utile, très utile”: a very useful period for the UK’s administration to adapt to the changes.

During the implementation period, EU law will apply as before the exit date. International agreements and trade deals which arise from the UK’s EU membership will continue to apply as now. This means that after the UK leaves the EU on 29 March next year, it will more or less remain a “substantial” member although not a “formal” member of the EU for a further 21 months. This led to some sharp critique by some that the UK will become a “vassal state”: an EU law-taker but no longer a law-maker.

Citizens’ rights – certainty at last?

The negotiating parties have reached an “accord complet”, a complete agreement on citizens’ right after exit date and throughout the implementation period.

In particular, the parties reached agreement on a package that should apply to those who arrive during the implementation period. EU citizens arriving in the UK between the 29 March 2019 and 31 December 2020 will enjoy the same rights and guarantees as those who arrive before Brexit. The same will apply to UK citizens going to the remaining EU27. This may be viewed as a significant concession by the UK Government compared with its original proposals to make significant changes to the rules on EU immigration during the transition period.

Fisheries – “far from acceptable”

Fishing arrangements will continue to be negotiated by the EU during the two-year Brexit transition period. This deal, part of a much wider transition agreement negotiated by Brexit Secretary David Davis and EU chief Michel Barnier, means the UK will be "consulted" during the transition, but Brussels will continue to set quotas. The UK's share of fishing catch will be guaranteed during transition but the UK will effectively remain part of the EU Common Fisheries Policy (CFP), which covers fishing stocks and vessel access, yet without a direct say in its rules, until the end of the implementation period on 31 December 2020. Through 2020, the UK’s intention is to negotiate fishing opportunities as an independent coastal state. Ever since the release of the draft agreement yesterday, the failure to deliver full control over fishing rights has given rise to strong criticism, especially from the industry in Scotland.

Northern Ireland and Ireland – No agreement on Irish border

Some Irish issues have been fully agreed, notably the continuation of the Common Travel Area – the agreement that allows Irish and UK citizens unrestricted travel and residence throughout the UK and Ireland. However, the EU and the UK have not reached agreement on the Irish border. The so called “back stop” option for the Irish border would keep Northern Ireland under EU law and essentially remaining part of the Single Market and Customs Union if no other border solution can be found. The parties have agreed that a “back stop” is required but there is yet no agreement on how that would work in practice, hence on the “right operational approach” concerning Northern Ireland and Ireland, to quote David Davis’ press statement yesterday.

The parties agreed, however, to work towards a solution in order to avoid a “hard” border. Despite the progress on areas like citizens’ rights and the implementation period, the missing agreement on the Irish border proves to remain a sticking point to the Brexit negotiations.

Outlook

The Draft Agreement published on Monday 19 March might be a “decisive step” towards an orderly Brexit. The deal, however, depends on a broader agreement on the UK’s withdrawal, which is to be finalised this year. Even though the negotiating parties made large progress on Monday, the caveat that “nothing is agreed until everything is agreed” is still valid. It remains to be seen what the European Council will make of it at the end of this week’s Council meeting. Check our hub for further updates.