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Explainer: The EU is trying to force the UK to get real, here's how

There was a lot of activity again in Brussels today but the path ahead isn’t exactly clear. Here’s what we do know…

GettyImages-924448420 Source: Jack Taylor/Getty Images

THE UNITED KINGDOM will leave the European Union on 30 March 2019.

But there is much work to be done before that can happen. Actually, there’s much work to be done after it happens too. The so-called transitional period will not end until 31 December 2020 and any ‘future relationship’ between the UK and the EU has to be worked out after the leave date.

Despite numerous keynote speeches from Britain’s Prime Minister Theresa May and almost as many press conferences led by the EU’s chief negotiator Michel Barnier, there is still little concrete detail about what a Brexit will look like.

There was a lot of activity again in Brussels today but the path ahead isn’t exactly clear.

Here’s what we do know…

What was published today?

The European Commission published what it’s calling the draft Withdrawal Agreement between the EU and the UK. (You can read it in full here if you wish. It comes to 118 pages.)

While everything in it was agreed in principle with the UK during talks before Christmas (you’ll remember the discussions around the Irish border back then), it is only a draft text. This document will be discussed with the European Council and the Brexit Steering Group of the European Parliament before negotiations with the UK begin in earnest.

Changes are expected as early as next month when the Council will add guidelines around the framework for the future relationship.

Again, remember this is a draft text, drawn up by the EU so there is a starting point for negotiations with the UK about its withdrawal. This is its negotiating position, in full. The UK does not have a similar document as of yet.

So why bother with all the fuss today then?

The EU wants a deal done – written in legal stone – by October 2018 so that it can be ratified by all parties in an efficient manner.

Barnier emphasised today that the UK will be leaving the Union in 13 months. Again, that doesn’t leave much time for negotiations on this draft with the British government.

Or the EU could have decided it wanted its wishlist out there first. A lot of what is included in the text – particularly on Northern Ireland – is the ‘wooden spoon’ if the UK doesn’t come to the table with a better offer of what Brexiteers can deal with.

How is this different to what they were doing before?

Depends on who you talk to. According to Barnier, there are no substantial differences, just more detail. He said there were ‘no surprises’ contained within – although the reaction from May and other British politicians tells a different story.

It details how the UK could make an orderly exit from the EU in terms of citizens’ rights, the divorce bill, matters related to the transition period and, most importantly to us, the protocol on Ireland/Northern Ireland.

The European Commission says this document is simply a translation into legal text of the Joint Report of 8 December 2017 and the EU-UK Joint Technical note with some of the blanks filled e.g. “The section on citizens’ rights is extremely precise so that it can be relied upon directly by EU citizens in British courts,” the Commission said in a memo today.

So what does it say about Northern Ireland?

It contains details of the ‘backstop’ that we heard much about back in December.

That is, failing any deal being reached and a hard Brexit, then Northern Ireland would remain inside the customs union.

Chapter III, Article 3, of the document says:

A common regulatory area comprising the Union and the United Kingdom in respect of Northern Ireland is hereby established. The common regulatory area shall constitute an area without internal borders in which the free movement of goods is ensured and North-South cooperation protected in accordance with this Chapter.

It would mean alignment between the north and south for customs, VAT, energy, regulations for the protection of the environment and laws governing agriculture and fisheries. Northern Ireland would also have to adhere to EU rules on State Aid and would be under the jurisdiction of the European Court of Justice in those aforementioned areas.

But all of this is the last resort scenario – what has been labelled Option C.

Oh yeah, I keep hearing about Options A, B and C; unicorns and illusions. What’s the story with them?

The Joint Report, as agreed by the UK and the EU in December, outlined three options for Ireland/Northern Ireland. The details were contained in Paragraph 49 which reads as follows:

The United Kingdom remains committed to protecting North-South cooperation and to its guarantee of avoiding a hard border. Any future arrangements must be compatible with these overarching requirements. The United Kingdom’s intention is to achieve these objectives through the overall EU-UK relationship. Should this not be possible, the United Kingdom will propose specific solutions to address the unique circumstances of the island of Ireland. In the absence of agreed solutions, the United Kingdom will maintain full alignment with those rules of the Internal Market and the Customs Union which, now or in the future, support North-South cooperation, the all-island economy and the protection of the 1998 Agreement.

So Option A is that the UK and EU will find a way to avoid a hard border and protect North-South cooperation when they decide on what their future relationship will look like. In short, this would mean a very soft Brexit where the customs union remains in play for the UK.

This cannot even be discussed until Britain actually leaves in March next year. It is also looking less likely as hardline Brexiteers in May’s government insist they are leaving both the single market and the customs union, while for its part, the EU says the UK cannot cherry pick what parts of the Union it wants to keep. Hence, unicorns and illusions.

Option B then looks to the UK to “propose specific solutions to address the unique circumstances of the island of Ireland”. Barnier today said he looks forward to seeing these proposals. No viable ones (see Boris Johnson’s London borough comparison) have been forthcoming as yet. Hence, unicorns and illusions.

So then, Option C.

This was the only one included in this document but the Commission insists all three “remain on the table” but with the following caveat:

Given that two of the three options can only be made operational in the context of discussions on the future relationship, a Protocol has been included setting out, in legal terms, how the third option may be operationalised. This option means that the United Kingdom maintains full alignment with those rules of the Internal Market and the Customs Union which, now or in the future, support North-South cooperation, the all-island economy and the protection of the 1998 Agreement.

If another solution is found, it would supersede this protocol. Barnier did say today that he would prefer Option A, as did Ireland’s Foreign Affairs Minister Simon Coveney.

Under these proposals, where would the border be? 

Probably unsurprisingly, it’s not clear.

Asked by journalists today, Barnier said he would not refer to a border in the Irish Sea but conceded there would be checks at ports and airports.

May, however, said that this deal would, if implemented, create “a customs and regulatory border down the Irish Sea”.

Barnier was accused of – but denied – meddling in the constitutional affairs of the UK.

Is any of this binding?

Absolutely not and May has said today that she – or any other Prime Minister – would not sign up to it as is.

Speaking during Prime Minister’s Questions (PMQs), she said she will be “crystal clear” to the EU that she opposes the proposal, adding that it threatens the constitutional integrity of the UK.

GettyImages-925326790 Source: Alex Burstow/Getty Images

In the same session, she reaffirmed her commitment to avoiding a hard border.

Echoing her sentiments, Secretary of State for Exiting the European Union David Davies told his fellow Conservative party MPs in a letter today that the draft, as published today, would undermine the UK’s common market and constitutional integrity.

PastedImage-73578 Source: Tom Newton Dunne/Twitter

As Leo Varadkar predicted last night, there are ‘difficult’ times ahead.

We’ve a long way to go before this agreement is turned into legal text before the October 2018 deadline.

Why are the DUP angry?

No.

Not even a little bit.

Members were out the gates early after RTÉ’s Tony Connelly leaked aspects of the document last night with their criticisms and leader Arlene Foster today confirmed that the text is “unacceptable” to her party.

In a tweet, she said if Brexit played out with Option C it would be “economically catastrophic” for Northern Ireland.

Is the Irish government happy?

Reasonably.

The Tánaiste and Foreign Affairs Minister formally welcomed the text after its publication today, calling it an important step in the Brexit process.

“The draft includes a protocol on Ireland and Northern Ireland, which is an integral part of the draft agreement, and gives legal effect to the firm commitments made in December,” Simon Coveney said in a written statement.

We have always been clear that our preference is to avoid a hard border through a wider future relationship agreement between the EU and the UK [Option A], a view we share with the British government. We are also committed to exploring specific solutions to be proposed by the UK.

“At the same time, there is now the necessary legal provision to implement the backstop of maintaining full alignment in Northern Ireland with the rules of the Single Market and Customs Union necessary to protect North South cooperation and avoid a hard border. This is very much a default and would only apply should it prove necessary. This is about delivering on our shared objectives of protecting the Good Friday Agreement and the gains of the peace process, no less, no more.”

Later, he questioned May’s ability to deliver on her promises to both leave the single market and customs union while ensuring there will be no hard border.

He said this in itself was “hard to see”, telling RTÉ Radio One that nobody was looking to pick a fight or to have a go at the British government.

“Our response is, look, this [option C] doesn’t have to be the solution but come up with something better that we can agree and we’d be delighted to agree.”

Would the people of Northern Ireland have any say before the customs rules come into effect?

It is difficult to answer anything with certainty as we’re talking in hypotheticals but it would be unusual if one part of the UK was asked about arrangements, when others weren’t.

And, as previously stated, if Option C happens, it would actually be by default, not arrangement, because of the deal agreed to in December which could be put on a legally binding footing if it makes it into the final legal text in October. That is a big if though.

How much closer are we to a hard Brexit now?

Hard to say. There are still 13 months to try to figure out a deal. But it does make a Brexit more real.

GettyImages-925400722 Source: Leon Neal/Getty Images

Former prime minister John Major made a significant speech today, accusing May of ‘bad politics’ and ‘grand folly’. He said that he opposed Brexit because he was patriotic and didn’t want to see his country isolated, cut off and a bystander in international politics.

He urged May to change course and show a “willingness to compromise”. He also mooted the idea of a second vote, saying:

Many electors know they were misled: many more are beginning to realise it. So, the electorate has every right to reconsider their decision.

However, that second vote would only come about after MPs get a free vote on the potential legislation – and then parliament should be allowed to vote on having a second referendum.

Are there other things in the document outside of the Northern Ireland stuff?

Yes.

It deals with:

  • introductory provisions
  • citizens’ rights
  • separation issues such as goods placed on the market before the withdrawal date
  • the financial settlement
  • transitional arrangements
  • institutional provisions.

925762928 (2) Barnier's press conference today Source: Thierry Monasse/Getty Images

So, what does it say then on citizens’ rights?

Some of those blanks that are filled in by this draft treaty relate to citizens’ rights.

The document outlines that the rules agreed to in December – to give European Union citizens, regardless of country of origin, the right to reside in the UK if they currently live there (or do so any time up to the end of the transition period) – should also be extended to future spouses and civil partners. It also offers more safeguards to those people covered by these rules, ensuring they can cross the border of the host State (the UK) without fear of not being allowed back in.

The UK is not happy with the proposal that EU citizens arriving during the transition period are treated the same as those who were there before that process began.

PastedImage-47526

Further plans in the document would see a professional person who has their qualifications recognised by the UK currently retain that status after the leave date.

The text, published today, if implemented, would also see the establishment of an ‘independent authority’ in the UK which would “monitor the implementation and application of the citizens’ right part of the Withdrawal Agreement”.

According to the Commission, this body should have the “power to receive and investigate complaints from EU citizens and their family members, and to conduct inquiries on its own initiative, concerning alleged breaches by administrative authorities of the UK of their obligations under the citizens’ rights part of the Withdrawal Agreement”.

And the divorce bill?

This follows what was agreed in December and outlines payment deadlines and other practical pieces of information. The Commission said there was no need to make any adjustment to the £39 billion agreed financial settlement.

What does the UK government say about all that?

In his letter today, Davies said that negotiations have been “progressing well” in recent weeks. He said much of what is included will be “comparatively straightforward”, citing the rights of EU citizens in the UK and UK citizens residing in Member States and the EU budget plan to 31 December 2020 (the UK will honour its obligations to that end).

However, he also takes issue with the mechanisms mentioned for governing and enforcing any Brexit. He says the UK will not stand for the continuing jurisdiction of the European Court of Justice (CJEU).

He said he hopes to continue to engage in discussions in good faith and that many of the ‘separation issues’ mentioned in the draft text will not come to fruition because they will be superseded by agreements made when discussing future economic and security partnerships.

What next?

May is due to give another one of those keynote speeches on Brexit on Friday.

She will then talk to her MPs about Brexit policy on Monday. (They asked for more details today and she told them to ‘Just calm down’, according to The Guardian.)

And we will all edge ever closer to 30 March 2019.

More: EU/UK Withdrawal Agreement includes plan to keep Northern Ireland in the customs union

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