ANDREW FARRAN. The Brexit withdrawal agreement for the transition tabled

Mar 26, 2018

The Brexit negotiators have produced a lengthy and complex draft agreement to provide for all procedural aspects of Britain’s withdrawal over the transitional period. It is concerned to preserve acquired individual rights and to enable the institutions (including judicial and law enforcement institutions) to operate effectively meanwhile. The substantive issue of Britain’s trade and ‘community’ relationship with the Union after withdrawal still remains to be settled.

Far off Brexit watchers may have been wondering how it was that one supposed deadline after another for submitting negotiating proposals on each side seem to have passed without notice or protest. But be aware that all this time the negotiators have had their heads down, engaged with complex detail and, instead of producing a mouse, have on 199th March produced a massive draft document purporting to cover every aspect of the ‘withdrawal’ over the transitional period.

The draft document, described as a ‘decisive step’, consists of some 129 finely spaced pages, including 168 Articles, Protocols with respect to Ireland and Cyprus, and 7 Annexes (not all yet completed) as well as an “Indicative Annex’ to cover some specific loose ends.

The document is multi-coloured with those sections backgrounded in green being agreed at the negotiators’ level, those in yellow agreed with respect to policy objectives, and those on white being sections proposed by the EU and subject to ongoing discussions. It is hoped that the draft will be setttled and adopted at the EU summit later this month.

The draft is headed: “Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Commission”. The transition period begins when the agreement enters into force and continues until 31st March 2020.

The draft is essentially procedural and facilitative The draft is essentially procedural and facilitative. It surmounts the first hurdle concerning Britain’s separation or divorce fee and on-going contributions to EU institutions during the transition. There are areas of dissatisfaction, for example Scotland’s fishing industry is angry that Britain has allowed itself simply to be consulted on offshore rights until 2021 instead of claiming these back from the date of withdrawal; and Northern Ireland is really no closer to knowing how the border dilemma with Ireland will be settled – though it will be in the context of a ‘common travel area’ and, subject to agreement, of a ‘common regulatory area’.

The agreement will be intended to provide a legal and administrative framework for preserving and recognising acquired and accruing personal residential and work rights, the status of business establishments, trading, customs and excise procedures, intellectual property protections, on-going police and judicial cooperation as well as judicial cooperation in civil and commercial matters. There are additional articles on judicial and administrative procedures per se . Other articles are concerned inter alia with privileges and immunities with respect to European Parliamentary members, the status of institutions, bodies, offices and agencies of the EU, and to facilitate currency exchanges. This brief summary is not supposed to be exhaustive though the draft agreement itself certainly is.

In the matter of judicial and quasi-judicial institutions the hard Brexiters may cry ‘vassal state’ but the negotiators appear to have taken the view that institutions with the primary role in a given area should be allowed to get on with it without discriminating among claimants, and that counter-part institutions should extend full faith and credit to the others’ determinations. The document is clear that the European Court of Justice will have “jurisdiction” over matters relating to EU law and EU citizens during the transition – once regarded as a “red line” by hard-line Brexiters.

The draft does not anticipate the nature of the post-transitional relationship The essential point to note is that the draft does not foreshadow the nature of the substantive trading or ‘community’ relationship between the UK and the EU beyond the transition – though the UK may negotiate new relationships with third parties meanwhile to operate only after its withdrawal. Presumably the existing tariff and quota levels which the Union currently has for outsiders will apply to the UK after the transition unless varied up or down or otherwise meanwhile. This of course has additional consequences for the Irish border in regard to which the parties have committed themselves to “avoiding a hard border” while allowing the free movement of persons. which is guaranteed. What is not yet clear is how the ‘border’ will or can be administered should their trade regimes vary after the transition. In that respect the draft states that agreement “on the right operational approach” is awaited and the parties have agreed “to engage urgently in the process of examining all relevant matters”.

Of particular interest are the residential interests of UK and EU citizens in each other’s territories during transition and beyond. Where persons have a legal residential or work status in the other country this is to be preserved and recognised by the issue of confirming certificates. The general assumption appears to be that five years of permanent (continuing) residence gives rise to such rights, and that five years of continuous absence (apart from casual comings and goings) would in most circumstance lose that right. There is a range of complex provisions to do with immediate and extended families which doubtless will provide a feast for lawyers but the negotiators seem to have striven hard to cover all contingencies (caveat emptor reading this!)

The central political issues still lie ahead. The draft begs the outcome apart from providing a detailed framework for its implementation when resolved.

Andrew Farran is a former diplomat, legal academic and trade policy adviser

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