What is Going On – The Legal Side

At the outset it is worth recalling that – in legal terms – nothing has been agreed. The joint declaration contains political commitments that now need to be translated into legal text. For some parts of the compromise reached in December, on citizens’ rights and on the financial settlement, this should not prove too difficult or controversial, while other questions – deliberately left open in December – still need to be negotiated.

Northern Ireland

The key challenge remains the compromise on Northern Ireland. In December, the UK agreed to the “avoidance of a hard border, including any physical infrastructure or related checks and controls”. Both sides agreed that this could happen in three ways: through the overall EU-UK relationship; agreed solutions to address the unique circumstances of the island of Ireland; or, failing the first two, full alignment with those rules of the internal market and customs union which “now or in the future” support North-South co-operation, the all-island economy and the protection of the 1998 Good Friday Agreement.

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So far, no-one has been able to come up with convincing solutions that would avoid the construction of any physical border infrastructure in the absence of Northern Ireland remaining in the customs union and the single market for goods and agriculture across all key North-South sectors. If no solution to avoid this is found (through the future relationship or specific, differentiated measures), this is likely to result in yet another crisis in the withdrawal negotiations in the coming weeks as the draft legal form of the withdrawal agreement is agreed (or not).

It should be noted that the commitments made to also avoid a hard border (in the Irish Sea) between the rest of the UK and Northern Ireland are essentially commitments made by the UK Government to the Democratic Unionist Party and thus a UK-internal matter. The EU is not expected to insist on the respective paragraph in the joint report being translated into the withdrawal deal (damaging though a border in the Irish Sea could be to Ireland’s economy too).


The next big challenge will be agreement on the transition period. The EU’s aim is to agree this as part of the withdrawal agreement on the basis of Article 50. The reason is that Article 50 is relatively “light touch” in procedural terms: it only requirews a qualified majority in the Council, which means that not every member state has the power to veto what has been agreed, plus the consent of the European Parliament. There seems to be general agreement that transition will be the continuation of the status quo with minor changes: the UK will remain bound by all EU law, but will no longer be represented in the EU’s institutions.

Transition will – by its very nature as a continuation of the status quo – cross most of the UK’s red lines: there will be ECJ jurisdiction; there will be free movement of people; the UK will continue to have to pay into the EU budget; and the UK will not be able to bind itself to free trade agreements with third countries.

Theresa May is already squaring up for a row with the EU over paying for continuing to be in the single market while having no say over new laws in the transition period. If she doesn’t back down that could break apart the first phase agreement on financial issues. And arguments are already under way over whether EU nationals who come to the UK during transition should have the possibility of claiming “settled status” as EU nationals arriving in the UK before March 29, 2019 will.

Two particular legal challenges should be highlighted. The first issue relates to the time limit of transition: will the transition agreement contain a clause allowing an extension of the transition period? If it does not, it may prove legally very difficult to get such an extension agreed as there is serious doubt whether Article 50 will still be available as a legal basis after Brexit.


The second relates to enforcement. If the UK violated the agreed rules during transition, enforcement through the usual EU law processes – by private individuals in national courts or by the EU Commission before the ECJ – would be too slow to be finalised before transition is over. So the question arises whether typical trade remedies, such as suspension of parts of the agreement for both sides, would be appropriate. A draft EU document has suggested taking precisely this approach.

From the point of view of a dualist state like the UK, agreeing issues externally does not guarantee that any external commitments will be enforceable internally. This is why the EU is insisting that both the citizens’ rights part of the withdrawal agreement, as well as EU law applicable during the transition period, retain the unique features of EU law: direct effect and primacy. This means the agreement itself – and not just internal legislation implementing it – can be invoked in national courts and that, if there is a clash between domestic law and EU law, EU law prevails.

At the moment, UK courts recognise these effects under the European Communities Act. The main argument for such recognition – which at first glance could be considered incompatible with the UK’s constitutional set-up – is that these two principles had been well-recognised when the UK signed up to the EEC in the early 1970s. There is, however, no guarantee that the UK courts will consider the same (or something similar) to be true of the withdrawal agreement even if the implementing legislation expressly says that “direct effect” and “primacy” should apply.

The Future Relationship

The final part of the EU-UK deal that needs to be in place by the autumn (for ratification by March 2019) will be a political declaration (ie legally non-binding) on the framework for the future relationship between the EU and the UK. However, it is expected that it will be cross-referenced in the legally binding withdrawal agreement. But that cannot force the two sides – having declared they are aiming for a certain type of future relationship – to negotiate successfully to a final deal some years later.

The framework – or outline – of the future relationship, that Article 50 refers to, will probably have three main pillars: trade, foreign policy & security, and police and judicial cooperation. There may also be a section on future research and educational cooperation. There are many problematic issues and challenges even on the foreign policy, security and police cooperation areas – even though these are much less controversial than trade. But for now, outlining the goals of a future trade relationship is where the biggest rows are likely.

So far, the Conservatives cannot agree amongst themselves on what sort of trade deal they want – just what they don’t want: not Norway, not Canada. And if they do agree, it’s rather likely that the EU’s response (at their summit on 22-23 March) will illuminate a huge gap between the two sides meaning, in April and May and into the summer, some serious, major and tense stand-offs can be anticipated. Even getting to that point assumes that the EU and UK have agreed on both the terms of transition and the draft legal form of the withdrawal agreement – without that the EU may not be willing to negotiate the framework of the future relationship at all.

What is Going On – The Political Side

Almost a year since Article 50 was triggered by Theresa May, and over 18 months since the EU leave vote itself, confusion and acrimony rein as to how the UK government intends to handle Brexit. In early summer last year, the government insisted that the EU should talk trade at the same time as the divorce issues. Yet, despite cabinet sub-committee meetings, impact studies (denied then leaked) and plentiful civil service advice – and the many statements and analyses from the EU side – the UK government has not said what future relationship with the EU it wants (just that neither Norway nor Canada fits its bill).

The uncertainty and political in-fighting in the Conservative government, and its erratic negotiating approach, is damaging the UK’s international reputation – including almost wiping out any trust on the EU27 side. It is damaging for the economy, for business, for investment plans, for a whole range of individuals and organisations (from universities to hospitals to charities) that work with and across the EU. It is also undermining the UK’s political processes and systems.

In the face of such extraordinary disarray on the part of the UK government, on issues that impact across the UK – creating the biggest systemic challenge in decades – the opposition Labour party is notably failing to hold the government to account. Its leader, Jeremy Corbyn, repeatedly chooses at Prime Minister’s questions not even to raise Brexit as an issue. Labour’s own deliberately ambiguous position underpins this democratic and political decay.

The Westminster system is, for now, failing. So what the EU faces is not just a huge challenge in getting to a Brexit deal with the UK. The EU also has to face the fact that one of its most important neighbours (as the UK is becoming) – its former partner, one of the largest European economies, one of the stronger foreign policy players, and an important democracy – is politically adrift.

Clarity from Government or Parliament?

The government, of course, denies this. But backbenchers such as Tory MP Anna Soubry and others are demanding that in the face of government chaos, parliament asserts itself. That would, though, depend at least on Labour coming up with a clear Brexit strategy in opposition to the government. Some raise the prospect of Westminster forcing a strategy of joining a customs union with the EU onto the government: but could the government contain such a defeat or would a general election then not be more likely?

Theresa May with her ministers Boris Johnson, David Davis, Liam Fox and David Liddington are now due to give a series of speeches in the coming few weeks at the end of which the government’s position on a future trade deal with the EU is intended to be clear. But the phrase “cake and eat it” is probably not going into retirement any time soon. From May’s speeches and pronouncements so far, it must be likely that – if and when she decides her approach – there will be requests for frictionless borders, untested customs arrangements, and regulatory divergence without losing access.

The EU, for their part, are expected to set out guidelines on the future relationship at their March summit. These are likely to contradict May’s newly set out approach (or if there is no approach, then it is increasingly likely the EU will offer some form of “take it or leave it” Canada-style approach to trade talks).

It seems near impossible for the Conservative government to suddenly shift its stance and push for a soft Brexit of the single market and customs union. And, despite the push for such an outcome from some Tory and Labour rebels and from the LibDems and Scottish National Party, the democratic and political challenges of the UK becoming a rule-taker across trade, regulations and standards are enormous. In the face of such a shift, the question of why the UK is leaving the EU at all would get increasing attention.

Where Next?

The technical, institutional and legal challenges of agreeing the draft legal text of the phase one Brexit agreement and of agreeing a transition period are immense. Coming to a framework for the future relationship that points the way ahead and indicates at least some provisional agreement on approach, issues and structures will also be tough (even if not as tough as the years it will then take to negotiate and ratify such an agreement). But managing to do this, while the Conservative party and government is fracturing, looks like a heroic task.

And yet, in the absence of Labour stepping up to its opposition role, the Tories may stumble along for some more months. But the crunch is coming. The extraordinary charade that UK politics has become is now facing deadlines on the withdrawal agreement, deadlines on transition and tough demands from the EU on explaining the UK’s desired trade relationship.

As big rows break out in the coming weeks and months – as they will – the UK may come perilously close to “no deal”. And demands to think again and/or to hold a further referendum on the deal (if there is one) will surely grow. And constitutional pressures – not only from Northern Ireland but also from Scotland – may come centre stage again too.

But there may be no simple route out of this Brexit chaos for the UK. The UK’s unfolding political breakdown, with increasing amounts of economic damage as a by-product, may yet have much further to go.