International Law and Immigration

Brexit Timeline: Where Do We Go From Here??

By Dr. Vincent Power

On Friday, January 31st 2020 at 11 pm (GMT/London time), history was made when the UK became the first country to ever the leave the European Union (EU). While this was the official end of the UK’s 47-year membership in the EU, very little changed immediately. Rather, it marked the beginning of a transition period, due to end on December 31 2020, during which the UK and the EU must iron out the details of their future relationship. Dr Vincent Power, of Irish law firm, A&L Goodbody, reflects on the first week post-Brexit and considers some of the challenges that lie ahead.

8 JANUARY 2020

UK Prime Minister meets European Commission President

On 8 January 2020, the newly re-elected UK Prime Minister, Boris Johnson, met the newly appointed President of the European Commission, Ursula von der Leyen, in London.

The leaders discussed:

  • the EU-UK withdrawal agreement
  • the ratification process in the UK’s Houses of Parliament and the European Parliament

The Prime Minister stressed:

  • his priority was to implement the withdrawal agreement by 31 January 2020
  • the UK would not extend the transition period beyond 31 December 2020

The leaders discussed the Relationship Agreement between the EU and UK. The UK Prime Minister emphasized:

  • he wanted a broad EU/Canada-style free trade agreement between the EU and UK. The agreement would cover both goods and services as well as co-operation in other areas
  • the Court of Justice of the European Union must have no role in the future UK-EU relationship
  • the UK would have control of UK fishing
  • the UK would have control of the UK immigration system
  • the UK would ensure high standards in regard to employment, the environment, agriculture and animal welfare

The UK Prime Minister described the meeting as “positive”. He wanted a positive new UK and EU partnership, based on friendly cooperation and shared history, interests and values. Such optimistic and warm words are relatively easy at this stage given that the negotiation process has yet to commence in earnest.

The European Commission President spoke about the relationship being one of “old friends, new beginnings”. She stressed that the EU fully respects the decision by the UK to leave the EU but the decision brings with it consequences, as no relationship can be as close as being a member of the EU. The EU will, the President said, negotiate in good faith, in the framework of the Political Declaration, with the aim of achieving the best possible outcome. She stressed that time is short for such an agreement to be reached and then ratified before the end of 2020. The President made clear that there is a trade-off between any regulatory divergence and access to the EU market.

The Brexit negotiation process is beginning again. While some of the players have changed (Theresa May has been replaced by Boris Johnson while Jean Claude Juncker has been replaced by Ursula von der Leyen), Michel Barnier will still be centre stage. While much may have changed, much will remain the same.

9 JANUARY 2020

UK’s House of Commons passes the Withdrawal Agreement Bill 2019-2020

On 9 January 2020, the UK’s House of Commons passed the European Union (Withdrawal Agreement) Bill 2019-20 (WAB). Despite over 100 amendments being tabled, the WAB was passed unchanged.

The WAB has now passed to the House of Lords. It has already had its first reading. The current timetable in the House of Lords is:

  • 13 January 2020: Second Reading
  • 14, 15 and 16 January 2020: Committee Stage – this will be a committee of the whole House of Lords
  • 21 January 2020: Report State
  • 21 January 2020: Third Reading

If the House of Lords approves the WAB then it returns to the House of Commons.  

The WAB must be approved by both the House of Lords and the House of Commons. The bill passed by both houses must then receive Royal Assent.

It the WAB is enacted and given Royal Assent by 31 January 2020 then the UK may leave the EU as (re)scheduled on 31 January 2020.

If the WAB has not been enacted and given Royal Assent by 31 January 2020 then the UK would not be able to leave the UK on 31 January 2020 with the current deal but would have to leave without a deal, seek (and be granted) an extension or revoke the Article 50 notice. The current expectation is that the WAB would be enacted.

31 January 2020: UK Leaves the EU

The UK left the European Union (“EU”) at 11pm (GMT / London time) on Friday night, 31 January 2020.  The reason why the UK left at 11pm GMT (and not at midnight) was because, in this context, time is measured on the basis of the time in Brussels, Belgium which is one hour ahead of the UK.

The event was relatively low-key.  There was a private party at No. 10 Downing Street (the UK Prime Minister’s office) but there was no major official event.  Ironically, there were events in Brussels organised by the city to recognise the contribution of the UK and UK citizens to Brussels, Belgium and the EU.

In some ways, the departure was somewhat of a “False Brexit” because while the UK has left the EU, many of the EU rules still continue to apply to the UK so the impact was not as dramatic as one might have expected.

3 February 2020: UK Prime Minister sets out his Brexit Trade Vision

On the third day after the UK left the EU, 3 February 2020, the UK Prime Minister set out his vision for the UK’s relationship with the EU.  It was a hard-hitting speech which pulled no punches.

Boris Johnson begun by saying that “free trade is being choked… tariffs are being waved around like cudgels even in debates on foreign policy where frankly they have no place – and there is an ever growing proliferation of non-tariff barriers and the resulting tensions are letting the air out of the tyres of the world economy. World trading volumes are lagging behind global growth. Trade used to grow at roughly double global GDP – from 1987 to 2007. Now it barely keeps pace and global growth is itself anaemic and the decline in global poverty is beginning to slow.”

The Prime Minister then turned to discuss the US-UK dimension:

“We will get going with our friends in America and I share the optimism of Donald Trump and I say to all the naïve and juvenile anti-Americans in this country if there are any – there seem to be some – I say grow up – and get a grip.

The US already buys one fifth of everything we export.

And yes of course there are going to be difficulties:

Our shower trays seem to fall foul of US rules…, and if you want to sell insurance across America,… you still have to deal with 50 separate regulators, and it is high time I think we all agree that they cut their punitive tariffs on Scotch whisky.

And it goes without saying to all those conspiracy theorists who may still be in existence, all those believers in the Bermuda Triangle or who think that Elvis will be found on Mars, It goes without saying that of course the NHS is not on the table and no we will not accept any diminution in food hygiene or animal welfare standards.

But I must say to the America bashers in this country if there are any that in doing free trade deals we will be governed by science and not by mumbo-jumbo because the potential is enormous.”

He then turned to the possible relationship between the UK and the EU post-Brexit.  The two sides are commencing work on a new trade deal.  It will be challenging to reach such an agreement.  It may be the first time in history where two parties which had free trade between them, sit down to negotiate the erection of new barriers between them.  At this stage, there are tough words being spoken on both sides.  Boris Johnson was very emphatic in his views:

“… at the outset I wish to reassure our friends about one thing: to lay one myth to rest.

We will not engage in some cut-throat race to the bottom.

We are not leaving the EU to undermine European standards, we will not engage in any kind of dumping whether commercial, or social, or environmental, and don’t just listen to what I say or what we say, look at what we do.

And I say respectfully to our friends that in all those three crucial areas the anxiety should really be on our side of the Channel not yours.

Look at state aid:

France spends twice as much on state aid as the UK, and Germany three times as much, who is using subsidies to undercut? Not the UK.

In fact, the EU has enforced state aid rules against the UK only four times in the last 21 years, compared with 29 enforcement actions against France, 45 against Italy – and 67 against Germany.

The same applies even more emphatically to social policy – and here again I dispel the absurd caricature of Britain as a nation bent on the slash and burn of workers’ rights and environmental protection, as if we are saved from Dickensian squalor only by enlightened EU regulation, as if it was only thanks to Brussels that we are not preparing to send children back up chimneys.

In one field after another, Britain is far ahead.

The EU waited until last year before introducing two weeks of paid paternity leave; we in the UK guaranteed that right nearly two decades ago.

The EU gives employees the right to request flexible working only if they are parents or carers.

The UK provides that right to every employee with more than six months’ service – and they can make the request for any reason.

The EU provides a minimum of 14 weeks paid maternity leave;

Britain offers up to a year, with 39 weeks paid and an option to convert this to shared parental leave. How about that.

The UK has a higher minimum wage than all but three EU member states: in fact six EU countries have no minimum wage at all.

As for the environment, look at animal welfare.

It is not just that we want to go further than the EU in banning live shipment of animals: there are ways in which we already are further ahead.

The UK banned veal crates fully 16 years before the EU.

We are protecting elephants by introducing one of the strictest ivory bans in the world; and the EU, meanwhile, is still in the consultation stage.

And on the great environmental issue of our time, perhaps the greatest issue facing humanity, Britain was the first major economy in the world – let alone the EU – to place upon our own shoulders a legal obligation to be carbon neutral by 2050.

That will put huge strains on our system, it will require full effort and change but we know we can do it.

We have cut our carbon emissions by nearly twice the EU average since 1990, 42 percent and we have cut while the GDP has grown by about 70%; but here is the question: are we going to insist that the EU does everything that we do, as the price of free trade?

Are we? Of course not.

Our legislation to ban single-use plastics goes further and faster than anything proposed by the EU.

Does that mean we will refuse to accept a zero-tariff zero-quota deal with the EU unless the EU agrees to match us every step of the way?

Will we stop Italian cars or German wine from entering this country tariff free, or quota free, unless the EU matches our UK laws on plastic coffee stirrers or maternity leave or unless they match our laws in any other field of policy that might conceivably affect the production of an Alfa Romeo or a bottle of gewurtztraminer?

Will we accuse them of dumping?

Of course not.

Or wanting to dump?

Of course not.

So I hope our friends will understand that what is sauce for the goose is sauce for the gander.

There is no need for a free trade agreement to involve accepting EU rules on competition policy, subsidies, social protection, the environment, or anything similar any more than the EU should be obliged to accept UK rules.

The UK will maintain the highest standards in these areas – better, in many respects, than those of the EU – without the compulsion of a treaty.

And it is vital to say this now clearly because we have so often been told that we must choose between full access to the EU market, along with accepting its rules and courts on the Norway model, or a free trade agreement, which opens up markets and avoids the full panoply of EU regulation, like the Canada deal…..”

It will be interesting to see whether and how this tough talking at the outset of the trade negotiations translates into action.  We will not know for some time what will be the content and approach of the UK-EU trade agreement but it will be a difficult gestation.

3 February 2020: European Commission Chief Brexit Negotiator sets out his Brexit Trade Vision

On the third day after the UK left the EU, the European Commission’s Chief Brexit Negotiator, Michel Barnier, set out his vision.  He was doing so on the same day as the UK Prime Minister was setting out his vision.

The European Commission issued a recommendation to the EU’s Council to open negotiations with the UK to negotiate a new partnership with the UK.

Michel Barnier said: “we will negotiate in good faith. The Commission will continue working very closely with the European Parliament and the Council. Our task will be to defend and advance the interests of our citizens and of our Union, while trying to find solutions that respect the UK’s choices.”

Barnier’s sentiments matched those of the new President of the European Commission, Ursula von der Leyen, who said: “It’s now time to get down to work. Time is short. We will negotiate in a fair and transparent manner, but we will defend EU interests, and the interests of our citizens, right until the end.”

What happens now? The European Council will have to adopt the EU’s draft negotiating rules on a possible new agreement.  The existing agreement – the Withdrawal Agreement – has entered into force on 1 February 2020.  There is, under the Withdrawal Agreement, a transition period until 31 December 2020.  This transition period could last longer than the end of this year but the UK would have to ask for an extension and the UK has said that it will not do so.  Moreover, the UK has legislated through national legislation to say that it may not ask for an extension.  The EU says, by contrast, that negotiating such an enormous and unprecedented agreement in less than 11 months would be quite a challenge.

In some ways, the “easier” element of Brexit (i.e., negotiating the Withdrawal Agreement) has now been completed but the much more difficult element (i.e., negotiating the Relationship Agreement) has yet to start.  Watch this space – it will be difficult.

30 JUNE 2020

If the current Withdrawal Agreement is approved and the UK leaves on 31 January 2020 then the “transition” or “implementation” period would expire on 31 December 2020 but the UK could ask for an extension.

If the UK wants an extension (and only the UK may ask for an extension) then currently it must ask for one by 30 June 2020 but the UK Government has included in the UK’s Withdrawal Agreement Bill a prohibition on any extension.

31 DECEMBER 2020

If the current Withdrawal Agreement is approved and the UK leaves on 31 January 2020 then the “transition” or “implementation” period would expire on 31 December 2020.

If the UK wants an extension (and only the UK may ask for an extension) then currently it must ask for one by 30 June 2020 but the UK Government has included in the UK’s Withdrawal Agreement Bill a prohibition on any extension.

FUTURE

If the UK leaves the EU then it can be expected that the EU and the UK will continue to negotiate treaties, agreements and arrangements to cover all manner of issues over time. 

This is no different than the position of Switzerland which is continually negotiating agreements with the EU. 

The main agreement would be the Relationship Agreement/Free Trade Agreement – how easy that negotiation would be will be depend on how the UK and the EU deal with this first phase (the Withdrawal Agreement) which has proved more difficult and tricky that most anticipated.

For more information, please contact the author, Dr. Vincent Power at vpower@algoodbody.com.

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