( A non-negotiable read of fifteen minutes.)
Watching the pathetic British approach to negotiating its departure from the EU, ( In as much as England seems to think that it is the EU that is leaving England rather than the other way around.)
If the European Union was negotiating to join the UK it would be understandable that UK Justice system would apply.
It beggars belief that UK negotiators think their EU counterparts lack imagination and flexibility.
The UK side appear to have left all planning and preparation for this incredibly complex operation until after the referendum, and then to have stitched together a bunch of deliberately ambiguous “positions.”
It behooves England to remember that they initiated this stupidity and to be grateful the EU is still prepared to talk.
Michel Barnier, chief negotiator for the European Union is right to insist that the UK is subject to the European court of justice (ECJ) which can hold Britain to whatever treaty is agreed after Brexit whether there is a transition period or not.
He would be right to remind Mr Fox who is claiming the EU is bribing the Uk that his Conservative party is a dab hand at bribery using in effect £1bn of public money, buying DUP MPs’ in Northern Ireland votes. A sellout to all those who voted Conservative.
The UK that needs to engage with reality – and a little flexibility wouldn’t come amiss! Facts do not cease to exist because they are ignored. Between two stools one falls to the ground.
This is where the negotiations stand so for.
What the EU wants: The EU’s basic position is that EU citizens living in the UK and UK citizens living in the EU should keep the same rights as they do now, including those ‘super-rights’ which they hold over and above British citizens in the UK. The EU has also shown a willingness to compromise in these areas, although new disagreements have opened up over its hardened stance in other areas, such as over local election voting rights and the right to move between different member states for UK citizens in the EU.
What’s the catch?
The EU has demanded that the European Court of Justice maintains a direct ability to enforce EU citizens’ rights in the UK after Brexit, while the UK has been adamant that the direct jurisdiction of the ECJ will end.
What the UK wants: To pay as little as possible, and to agree on payment as late as possible. The UK has committed to paying what it believes it legally owes, but so far its approach has been to critique the EU’s proposed financial settlement, rather than submit a proposal of its own. British officials are concerned about being “salami-sliced” by the EU over the ‘bill’ and are hoping to hold out for as long as possible before agreeing to any figure, in order to maximise the UK’s leverage when it comes to issue of the future trading relationship later on in the negotiations.
What the EU wants: The EU is anything but frugal, and the UK’s impending departure leaves a net €12bn hole looming in its annual budget. Failure to secure a significant sum from the UK would force the EU into the uncomfortable position of either having to go round the remaining wealthy member states with a begging bowl and asking them to cough up more, or having to cancel future projects funded via the EU budget. Money, and lots of it, is a key priority for the EU in the negotiations.
What’s the catch? Any significant payment presents the UK with its own problems in terms of selling the deal politically at home. While there is some logic to the claims that Britain should not be paying at all – can anyone imagine the EU handing over a large lump sum in the case of a net recipient such as Poland or Greece deciding to leave – this is ultimately an area where long-term benefits outweigh the short-term costs for the UK. Phasing the payments over a transitional period could make it more palatable to the UK, as the ‘bill’ could then effectively take the form of Britain continuing with a similar level of annual budgetary contributions for a couple of extra years.
What the UK wants: The UK has made preserving peace and stability in Northern Ireland its top priority. To this end, it has unilaterally committed to a fully open and invisible border with no new physical infrastructure on the UK side of the border, preserving the Common Travel Area between the UK and the Republic of Ireland and the special status that Irish citizens enjoy in the UK, and writing the Good Friday Agreement into the Brexit withdrawal agreement directly to reaffirm all sides’ commitment to it. The UK has also called for a customs exemption for small and medium-sized businesses, which are primarily engaged in local cross-border economic activity, and the use of technological solutions and mutual recognition schemes to ensure that any other customs checks can take place remotely.
What’s the catch? The catch here is pretty hard to miss – coming up with any solution to how goods can move across a border is obviously not going to be possible until both sides have discussed what the customs arrangements for moving those goods will be. However, the EU has ruled out any discussion of trade and customs at this stage due to its rigid phasing of the negotiations. This internal contradiction may explain why they have yet to publish a position paper on the issue. Ultimately, the EU’s position may be that joint agreement on high-level principles satisfies its criteria for “sufficient progress” in this area of the negotiations, but the fact remains that no long-term solution will be possible until the EU engages on technical customs issues.
What the UK wants: The UK’s ‘future partnership paper’ outlines two possible models of a future relationship, although the UK’s intention at this stage appears to be primarily to spark further discussion about the relative merits of each scenario, rather than set out a definite position. One would involve maximising the use of technology and remote procedures to yield highly streamlined customs arrangements requiring a minimum of physical infrastructure and checks at borders themselves. The second essentially proposes the adoption of two parallel customs systems in the UK, one aligned with the EU and one with the rest of the world, although this has been dismissed by many critics as being too complicated to implement.
What’s the catch? As covered above, the obvious catch is that the Irish border issues cannot be resolved until the EU talks customs, although this has now led to accusations from the EU side that the UK is trying to use the Irish border issue to force them to talk about trade earlier than they want to. In this case, however, it’s hard to argue that it’s not just common sense.
What the EU wants: The EU has so far stuck to its guns on its demands that the ECJ keeps the direct ability to enforce the withdrawal agreement in the UK, particularly over citizens’ rights, although there have been hints that its position may be softening. Another issue is that the ECJ itself has a track record of vetoing the creation of new EU legal bodies which impinge on its position as the sole body allowed to adjudicate on the interpretation of EU law, which could pose a legal headache out of the Commission’s direct control.
What’s the catch? There are catches on both sides here. One problem for the Commission itself is that the negotiating directives handed down to it by the European Council of member state leaders may not allow it to compromise on an issue as significant as this without approval from the Council first. In practice, this means waiting until after Angela Merkel has secured her likely re-election in the German federal elections on 24 September. The catch for the UK lies in the precise detail of the agreement. If the UK accepts a model too similar to the EFTA Court, in practice this could lead to the UK still effectively being overruled by the ECJ when it tries to sign future trade deals or reform EU law, depending on how any post-Brexit agreements are worded.
What the UK wants: The UK is happy for legal cases already in progress at the Court of Justice of the European Union (of which the ECJ is one part) to continue after the day of withdrawal, but does not want new cases to be able to be brought to the CJEU after Brexit has happened, even if the facts of the case took place before withdrawal.
What the EU wants: The EU wants the CJEU to retain the right indefinitely to adjudicate over any legal case where the facts of the case took place before withdrawal, even if the case itself is not brought until years after Brexit.
What’s the catch? The EU has seemingly gotten itself into a mindset where it is convinced that the UK is liable to become some sort of rogue state overnight with no regard for the rule of law, unless the CJEU maintains a degree of direct authority in the UK. Any compromise on legal issues will be hard to achieve until the EU is able to temper it’s overly paranoid attitude in this area.
What the UK wants: The UK’s preferred option is to essentially keep the status quo by opting into existing EU regulations which govern the choice of jurisdiction in civil and commercial matters, for instance whether a dispute between a British and a German business should be heard in a British or German court. Otherwise, the UK would attempt to fall back on the Lugano Convention, which governs the EFTA states, or the Hague Conventions which apply more generally in international law.
What the EU wants: The EU’s civil and commercial paper is focused on resolving ongoing cases which are already in progress, rather than looking ahead to the future relationship, while the criminal cooperation paper also calls for the “orderly completion” of ongoing cases involving EU instruments such as the European Arrest Warrant. It also calls for both sides to be able to keep all confidential information exchanged by law enforcement agencies prior to Brexit.
What’s the catch? The difference is over the scope – the UK is looking ahead to the future relationship while the EU is committed to resolving ‘separation issues’ first. However, given the UK’s desire to continue existing EU processes, it will probably deem the EU’s specific separation demands in this area to be largely acceptable.
What the UK wants: The UK is seeking continued close cooperation with the EU on nuclear issues along with a “smooth transition” to a new UK safeguards regime with “no interruption in safeguards arrangements”. The UK wants to prioritise minimising barriers to civil nuclear trade and ensuring continued mobility of skilled nuclear workers and researchers, along with continued collaboration on nuclear research and development, as well as resolving issues around ownership of existing nuclear materials and waste.
What the EU wants: The EU paper is more limited in scope, focusing mainly on issues of safeguarding arrangements and ownership of nuclear materials and waste. The EU also wants the UK to pay for the transfer of any safeguarding property in the UK as part of the financial settlement.
What’s the catch? The UK’s heavy involvement in European civil nuclear activities mean that there is strong mutual benefit to both sides agreeing a deal. However, with a number of EU states shunning nuclear power altogether, including Germany, it may be lower down the EU’s list of priorities than the UK’s, although France’s heavy reliance on nuclear power should offset Germany’s indifference.
What the UK wants: The UK wants all goods already legally placed on the market at the time of withdrawal to continue to be able to be legally sold, as well as goods which have already undergone compliance procedures, even if they have not yet reached the market. The UK also wants services supplied along with those goods, such as maintenance and repair services, to continue to be supplied without added restrictions.
What the EU wants: The EU also wants goods already on the market to continue to be legally sold without added restrictions, although their paper does not address compliance-checked goods yet to go on sale or services accompanying goods, as proposed by the UK.
What’s the catch? There may be disagreement over the scope, as outlined above, although it is possible that the EU had simply not got round to considering the additional cases outlined by the UK at the time of publishing its own position paper.
What the UK wants: The UK wants to preserve as close to the status quo as possible on data protection and data transfers between the UK and the EU. The EU’s new General Data Protection Regulation (GDPR) comes into force in May next year and will be implemented by the UK before its departure. The UK is seeking an enhanced version of the EU’s existing ‘adequacy model’ which it currently uses to grant approval to third countries for EU data sharing, including Switzerland and New Zealand.
What the EU wants: The EU has not yet indicated its position on data protection.
What’s the catch? The decision to grant data protection ‘adequacy’ to third countries is a decision of the Commission which can be unilaterally withdrawn, while securing approval has often proved to be a lengthy and difficult process, with even Japan failing to receive approval in the past. The UK will want a more permanent bilateral agreement than this to ensure ongoing certainty.
In my opinion it is only the lawyers that are going to benefit from any agreement.
Stupidity consist in waiting to come to a conclusion. Nothing is so exhausting as indecision, and nothing is so futile. Long term planning does not deal with future decisions, but with the future of present decisions.
What ever about Europe it sticks out like a sore tum that if it was not for trade and free movement of people England would be a country heading for bankruptcy.
It is beyond comprehension that a government refuses to offer the British public a chance to choose again.
All comments appreciated. All like clicks chucked in the bin.