EU Brexit withdrawal proposal: a lawyer explains the detail

EPA/Olivier Hoslet

EU Brexit withdrawal proposal: a lawyer explains the detail

The European Commission has published a first draft of a document that will, if agreed, govern the details of the Brexit process. Inevitably this has caused controversy in the UK – even though it has yet to be signed off, either by the EU27 member states or, obviously, by the UK itself. What are the main points of contention?

The draft withdrawal agreement contains six parts and two protocols (which will have the same legal force as the main text). Of these, there are controversial issues in part two (citizens’ acquired rights), part four (transitional period), part six (institutional rules) and the protocol that deals with Ireland.

Some also regret any agreement for the UK to pay financial commitments that the EU27 argue will be outstanding on Brexit day (part five) – although that part of the withdrawal agreement reflects what the UK already signed up to in December.

Citizens’ acquired rights

The basic idea put forward in this part of the document is that UK citizens living in the EU27 on Brexit day, and EU27 citizens living in the EU on Brexit day, will in principle keep their existing rights. There was agreement in December on many issues here, but some were outstanding. From those issues, the Commission proposes that UK citizens living in the EU27 countries on Brexit day will lose their right of free movement to other EU27 countries, which will disappoint many of the UK citizens concerned.

The Commission also wants to reopen a prior agreement on limiting family reunion for EU27 citizens in the UK after Brexit day. It argues that the more liberal EU laws rules should continue to apply.

For their part, EU27 citizens are disappointed that the UK will be able to require them to apply for “settled status” after Brexit day, fearing that some of them will lose their rights as a result of this process. Many of those who are not working – stay-at-home parents for instance – are concerned that they won’t meet the requirement to have “comprehensive sickness insurance”. The UK has promised to waive this requirement, but the proposed deal does not turn this promise into a legal rule.

Transitional period

The UK and the EU27 agree that there should be a transition (or implementation) period after Brexit Day in March 2019 – during which most EU law continues to apply to the UK – but disagree on some of the details. For instance, they disagree on whether this period should finish at the end of 2020 (as the EU27 want) or at an indefinite date (as the UK wants).

Furthermore they disagree on whether EU27 citizens who arrive in the UK during a transition period should have all the same rights as EU citizens who arrived beforehand. A new position paper from the UK government suggests they should have fewer rights. There are also disagreements on issues such as deciding on fisheries catches and the extent to which the UK would be consulted on, or could object to, new EU laws during this time.

Institutional rules

The Commission proposes giving jurisdiction to the European Court of Justice to decide on most disputes concerning the draft treaty. Although the UK has agreed to this already for EU27 citizens’ rights, it might be reluctant to agree to it more broadly. In addition, the Commission wants the EU to have power to sanction the UK unilaterally for breach of the agreement, in addition to the rules on dispute settlement and court jurisdiction. The UK could argue that this is excessive and one-sided.

The Irish border question

Perhaps the most controversial issue is the treatment of Ireland. The UK agreed in December to avoid a hard border between Northern Ireland and the Irish Republic. But if no solution could be found as part of the general EU/UK relationship or on the basis of special technology, then the UK would ensure “full alignment” with those EU rules necessary to ensure avoidance of a hard border and the continuation of North-South cooperation. That could mean giving Northern Ireland a special status not enjoyed by the rest of the UK – itself a controversial proposal.

The proposal from the EU inverts that agreement, setting out rules on full alignment which would apply as the general rule, unless some other arrangement between the UK and the EU were reached. The proposal would mean that Northern Ireland would remain subject to EU rules on movement of goods and customs. This would not necessarily mean that Northern Ireland was treated differently from the rest of the UK – but, to avoid this, the entire UK would have to stay in regulatory alignment.

The UK government finds either prospect unappealing, although Jeremy Corbyn’s recent explanation of the Labour party’s Brexit position would be in synch with the idea of continued UK-wide regulatory alignment with the EU.

The next step in the Brexit process will be the UK’s counter-proposals for the withdrawal agreement. It will need to decide what it wants when it comes to the Irish border and other issues that could form the basis of compromise with the EU – or whether indeed it is prepared to leave the EU without any agreement at all.