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All good things must come to an end …

by Politicker 0 Comments

… I’m talking about this Blog which is due to be archived shortly.

This Blog started out as a “Reality Check” for claims and counter claims being made by both sides in the EU Referendum campaigns of 2016. With the UK leaving the EU at the end of January, there is no need to continue with the Blog in its current form.

In summary …

The UK is due to Leave the EU on Friday 31 January 2020 and enter a “Transition Period” until 31 December 2020. This time will be used for discussions to determine the future relationship between the UK and the EU including arrangements for ongoing Trade between the UK and the EU. The Transition Period may, or may not, be extended although the UK Government has enshrined in Law, via the EU (Withdrawal Agreement) Bill, that the Transition Period will not be extended past the 31 December 2020.

During the transition period little will change with the UK remaining in both the EU customs union and single market and other things remaining unchanged

  • Travelling to and from the EU (including the rules around driving licences and pet passports)
  • Freedom of movement (the right to live and work in the EU and vice versa)
  • UK-EU trade, which will continue without any extra charges or checks being introduced

However, the UK will lose its membership of the EU’s political institutions, including the EU Parliament and EU Commission and any voting rights, but will still need to follow EU rules with the European Court of Justice having the the final say over any legal disputes.

The whole process has been conducted under 3 different Prime Ministers, David Cameron, Theresa May and Boris Johnson. 3 different Secretaries of State for Exiting the European Union David Davis, Dominic Raab and Steve Barclay and 2 General Elections. The Department for Exiting the European Union will be disbanded after the Withdrawal Date.

What’s happened since the EU referendum was held on 23 June 2016 ?

Based on the date for leaving, Friday 31 January 2020,

  • The EU Referendum was held 1318 days ago
  • Article 50 was invoked on 29 March 2017 which was 1039 days ago
  • The original date for leaving was 29 March 2019, 309 days
  • The next scheduled date for leaving was Fri Apr 12 2019, 295 days ago
  • Then it was 31 October 2019, 93 days ago

What lessons have been learned from negotiating with the EU ?

It seems that many mistakes were made by the UK in the negotiations with the EU.

There did not appear to be any clear plan (on the UK side) on how to proceed after the invocation of Article 50

It all started going wrong when David Davis turned up at the negotiating table and agreed (unreservedly) to the EU’s proposed Agenda for the talks. The EU outlined their plan that discussions would be in a number of phases with the initial phase concentrating on EU Citizens in the UK after Brexit, issues surrounding the land border between Northern Ireland and Ireland, the supposed financial debt owed by the UK to the EU, and other separation issues

However, the EU also controlled when talks on the future relationship would start. For example a future Trading relationship could only begin AFTER the UK had left the EU. The UK could have insisted on bringing forward discussion on a future Trade relationship from the beginning – this is likely to have helped overcome difficulties on how the land border between NI and Ireland could be resolved.

A non-binding Political Declaration document would be included with the Withdrawal Agreement to outline a Framework for the future relationship between the European Union and the United Kingdom.

The European Council reconfirms its desire to establish a close partnership between the Union and the United Kingdom. While an agreement on a future relationship can only be finalised and concluded once the United Kingdom has become a third country.

Perhaps the UK should have left immediately after the invocation of Article 50 before opening discussions with the EU – Article 50 does not define an Agenda or what form negotiations should take with the country leaving the EU. The UK may then have been in a more powerful position if the EU were proving intransigent in their approach to negotiations.

The roles of the UK’s negotiating team should also be brought into question. Who was actually leading negotiations on the UK side ? Superficially, it appeared that the Secretary of State for Exiting the European Union was in charge of the negotiations but is the case of a tiger without teeth? The real power seemed to be in the hands of the Civil Servant(s), in particular Olly Robbins. Was he driving negotiations with his own objectives? Who was he reporting to ?

The initial report on Phase 1 negotiations should also have raised some questions. It seems to have achieved all the aims of the EU but what exactly had been achieved for the UK ?

For example, regarding its shareholding in the EIB (European Investment Bank) the UK agreed that this could be repaid by the EU over 12 years !!

The UK share of the paid-in capital will be reimbursed in twelve annual installments starting at the end of 2019

The first eleven installments will be €300,000,000 each and the final one will be €195,903,950

The Withdrawal Agreement is a legally binding treaty between the UK and the EU – The Political Declaration, however, is not binding in any way.

Political Issues

Other major problems were essentially political.

David Cameron had promised to a hold a referendum on the UK’s membership of the EU and assumed that the electorate would vote to Remain in the EU.

The majority of MPs in Parliament were in favour of remaining in the EU and also assumed that the electorate would vote to Remain.

This assumption was proved to be invalid with a majority (narrow) voting to Leave the EU.

The EU Referendum Bill was rushed through Parliament and did not clarify what should happen in the event of a vote to leave the EU. This can be contrasted with the effort made in creating the United Kingdom Alternative Vote referendum held in 2011, which committed the Government to give effect to its decision. This lack of definition in the EU Referendum Bill gave rise to the question of whether the result of the EU referendum was merely advisable.

In the event, a majority voted to Leave the EU.

After promising to stay as Prime Minister, David Cameron resigned within days of the referendum – forcing a leadership election, in the Conservative Party, won by Theresa May in July 2016.

A legal challenge delayed the opportunity to invoke Article 50, the EU process for member states to leave the EU. In January 2017 the Supreme Court ruled that the process could not be initiated without an act of Parliament. The European Union (Notification of Withdrawal) Act 2017 became law in March 2017 and allowed the Prime Minister to invoke Article 50. The EU was formally notified on March 29 2017.

In April 2017 the Prime Minister, Theresa May, called a General Election in an attempt to boost the majority of Conservative MPs in Parliament. However, this approach backfired and resulted in a hung Parliament with the number of Conservative MPs falling from 330 to 317. She was able to form a minority Government with the support of the 10 Democratic Unionist Party (DUP) MPs

However, it would prove to be an almost impossible task in getting any agreement with the EU through Parliament – the majority of MPs were still against the UK leaving the EU and, as it turned out, numerous Conservative MP’s were also prepared to vote against their own party.

After failing to get approval in Parliament for her Withdrawal Agreement negotiated with the EU, Theresa May was forced to ask the EU for an extension to the original date for leaving the EU. An option was available to leave on Fri Apr 12 2019 at 11:00pm, and if this was not met an option to leave on Fri Apr 12 2019 at 11:00pm was the next opportunity.

After the 1st two dates for leaving came and went, it was necessary to hold elections for MEPs to the European Parliament as the UK were still members of the EU. At this election, the electorate showed their contempt for the main parties with the recently formed Brexit Party winning the most seats (29) and becoming, somewhat ironically, the largest single national party in the EU Parliament. next were the Liberal Democrats winning 16 seats, Labour in 3rd place with 10 seats (losing 10) the Green Party with 7 seats and the Conservatives with 4 seats (losing 15)

After various versions of the Withdrawal Agreement were rejected by Parliament three times, Theresa May resigned and was replaced by Boris Johnson in July 2019.

The basic problem, however, was still there – how do you get a Withdrawal Agreement through Parliament without a working majority of MPs in favour of leaving the EU. The number of Conservative MPs was also reducing, almost on a daily basis with resignations and MPs creating new parties.

In the meantime Boris Johnson sent negotiators back to Brussels with the intention of getting modifications to the Withdrawal Agreement, in particular to the Northern Ireland protocol. Having achieved the changes he desired, but still being unable to get the Agreement through Parliament, he proposed holding a General Election in order to achieve a majority Government in tune with leaving the EU.

A General Election was held on 12 December 2019, in which the Conservative Party won with a majority of 80 seats in the House of Commons. Many of the gains coming from former Labour held seats in the Midlands and North of England which had registered a strong ‘Leave’ vote in the 2016 EU referendum.

After winning the General Election with a sizable majority, Boris Johnson was able to finally get Parliament to approve “his” Withdrawal Agreement, via the EU (Withdrawal Agreement) Bill which enables the UK to leave the EU on 31 January 2020 at 11:00pm

References

o Withdrawal Agreement

Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, October 2019(pdf)

o Political Declaration

Political Declaration setting out the framework
for the future relationship between the European Union and the United Kingdom, October 2019 (pdf)

o House of Commons Library

Briefing Report: The October 2019 EU-UK Withdrawal Agreement (pdf)

o House of Lords European Union Committee

Brexit: the revised Withdrawal Agreement
and Political Declaration (pdf)

o Joint UK-EU reports

Phase 1 Joint Report from the Negotiators of the EU and UK
Phase 1 Joint Report from the Negotiators of the EU and UK
Dec 2017(pdf)

Transitional Arrangements in the Withdrawal Agreement

Another position paper issued by the EU on Transitional Arrangements in the Withdrawal Agreement to the EU27. This paper translates into legal terms the principles laid down in the European Council Guidelines of 29 April and 15 December 2017 and in the supplementary negotiating directives annexed the Council Decision of 29 January 2018.

This has been created for approval by the EU27 before it’s presented to the UK. It remans unclear whether this document is to be used as the basis for discussion with the UK or whether, as shown on past experience, it will be presented as a fait accompli

On this basis, this paper outlines in legal terms how such arrangements should be given effect in the Withdrawal Agreement.

Position paper “Transitional Arrangements in the Withdrawal Agreement”

The topics mentioned include:

  • There shall be a transition period, which shall start on the date of entry into force of this Agreement and end on 31 December 2020.
  • Unless otherwise provided in this Part, Union law shall be binding upon and applicable in the United Kingdom during the transition period
  • The United Kingdom shall not participate in any enhanced cooperation
  • During the transition period, the United Kingdom may not become bound by international agreements entered into in its own capacity in the areas of exclusive competence of the Union, unless authorised to do so by the Union
  • During the transition period, the institutions, bodies, offices and agencies of the Union shall have the powers conferred upon them by Union law also in relation to the United Kingdom and natural and legal persons residing or established in the United Kingdom. In particular, the Court of Justice of the European Union shall have jurisdiction as provided for in the Treaties.
  • etc.

Full details are available in the full document at

https://ec.europa.eu/commission/sites/beta-political/files/transition.pdf (pdf)

It is not clear whether the UK can accept not being allowed to sign any International Trade Agreements during this period.

Also, it is worth noting a footnote to the paragraph relating to the role of the European Court of Justice which states:

In addition, the Governance and Dispute Settlement Part of the Withdrawal Agreement should provide for a mechanism allowing the Union to suspend certain benefits deriving for the United Kingdom from participation in the internal market where it considers that referring the matter to the Court of Justice of the European Union would not bring in appropriate time the necessary remedies.

which effectively allows the EU to become Judge, Jury and executioner to matters which they themselves decide break terms of the Withdrawal Agreement.

Press statement by Michel Barnier 29 January 2018

Press statement by Michel Barnier following the General Affairs Council (Article 50) on the adoption of negotiating directives on transitional arrangements.

(Frenglish provided courtesy of Google Translate)

Merci, chère Ekaterina Zaharieva, pour le très bon début de la Présidence bulgare. Je me permettrais aussi de dire un mot de remerciement pour toute l’équipe de la Présidence estonienne qui vient de se terminer.

Thank you, dear Ekaterina Zaharieva, for the very good start of the Bulgarian Presidency. I would also like to say a word of thanks to all the team of the Estonian Presidency that has just ended.

Je suis heureux de vous retrouver après cette réunion du Conseil, qui doit nous permettre de débuter la deuxième phase de cette négociation complexe et extraordinaire.

I am pleased to meet you after this Council meeting, which will allow us to begin the second phase of this complex and extraordinary negotiation.

Le 15 décembre dernier, sur la base du rapport conjoint, que le Président Juncker, la Première ministre Theresa May, David Davis et moi-même avons acté, le Conseil européen avait jugé le niveau de progrès suffisant dans la négociation. Et il avait invité la Commission à présenter une recommandation pour une période de transition limitée dans le temps et couvrant tout l’acquis.

On 15 December, on the basis of the joint report, which President Juncker, Prime Minister Theresa May, David Davis and I have taken, the European Council found the level of progress sufficient in the negotiations. And he had invited the Commission to make a recommendation for a transitional period of time and covering the whole acquis.

Un mois après cette recommandation, le Conseil a adopté très rapidement aujourd’hui des directives claires de négociation. J’y vois un nouveau signe de cette unité forte, sincère des 27 dans cette négociation. Et cette unité vaut pour les trois institutions, le Conseil, le Parlement européen et la Commission.

One month after this recommendation, the Council has adopted very clear negotiating directives very quickly today. I see a new sign of this strong, sincere unity of the 27 in this negotiation. And this unity applies to the three institutions, the Council, the European Parliament and the Commission.

Et je voudrais remercier Ekaterina Zaharieva et la Présidence bulgare d’avoir apporté leur première pierre à cette unité au début de cette année 2018.

And I would like to thank Ekaterina Zaharieva and the Bulgarian Presidency for bringing their first stone to this unit early this year 2018.

Ladies and gentlemen,

Allow me to say a few words on these new negotiation directives:

The EU position is very clear: the transition will last for 21 months, until 31 December 2020.

During this limited period of time, the whole EU acquis will continue to apply to the UK. As well as the full EU supervision and enforcement framework, under the jurisdiction of the European Court of Justice.

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