Copy of the slides presented at the February QPol Brexit Clinic

1. Prof David Phinnemore (@DPhinnemore)
Prof Dagmar Schiek (@DSchiek)
Dr Viviane Gravey (@VGravey)
QPol Brexit Clinic
20 February 2018

2. Prof David Phinnemore

3. Article 50 Process – A Timeline
2017 29 March Notification of Intention to Withdraw X
29 April European Council (EUCO) adopts guidelines X
22 May Council Negotiating Mandate X
19 June Withdrawal Negotiations start X
15 December EUCO agrees ‘sufficient progress for move to second phase; adopts additional guidelines X
2018 29 January Council Supplementary Negotiating Mandate X
February Negotiations on transition arrangements start; Draft Withdrawal Agreement published
April ‘preliminary and preparatory discussions with the aim of identifying an overall understanding of the
framework for the future [UK-EU] relationship’ to start
October Withdrawal Agreement to be concluded; political declaration on future framework for future UK-EU
relations to be adopted
December Withdrawal Agreement to be signed
2019 January Ratification of Withdrawal Agreement by European Parliament and UK Parliament begins
29 March UK Withdraws from the EU; transition period begins
30 March UK-EU Negotiations on future relationship start
2020 31 December Transition period ends
2021 1 January UK-EU ‘new strategic partnership’ to enter into force

4. Article 50 Negotiations – Phase Two (2018)
Withdrawal
Commission and UK
complete work on
withdrawal issues
(financial settlement,
citizens’ rights, Irish
dimension, other
issues); drafting and
negotiation of the
Withdrawal
Agreement; conclusion
and signature of
Withdrawal
Agreement
Transition
Commission prepares
recommendations on
arrangements for
transitional period of
‘around two years’;
Council adopts
negotiating directives;
negotiation of terms of
transition; inclusion of
terms of transition in
Withdrawal
Agreement
Future UK-EU Relations
European Council in March 2018
adopts additional guidelines, ‘in
particular as regards the
framework for the future
relationship’; ‘preliminary and
preparatory discussions with the
aim of identifying an overall
understanding of the framework
for the future [UK-EU]
relationship’; political declaration
on future framework to be
included in Withdrawal Agreement
Ireland
and
Northern
Ireland
Strand
Withdrawal Agreement

5. The Irish Dimension: regulatory alignment
49. The United Kingdom remains committed to protecting North-South cooperation and to its
guarantee of avoiding a hard border. Any future arrangements must be compatible with these
overarching requirements. The United Kingdom's intention is to achieve these objectives through
the overall EU-UK relationship. Should this not be possible, the United Kingdom will propose
specific solutions to address the unique circumstances of the island of Ireland. In the absence of
agreed solutions, the United Kingdom will maintain full alignment with those rules of the Internal
Market and the Customs Union which, now or in the future, support North-South cooperation, the
all-island economy and the protection of the 1998 Agreement.
50. In the absence of agreed solutions, as set out in the previous paragraph, the United Kingdom will
ensure that no new regulatory barriers develop between Northern Ireland and the rest of the United
Kingdom, unless, consistent with the 1998 Agreement, the Northern Ireland Executive and Assembly
agree that distinct arrangements are appropriate for Northern Ireland. In all circumstances, the
United Kingdom will continue to ensure the same unfettered access for Northern Ireland's
businesses to the whole of the United Kingdom internal market.

6. Dr Viviane Gravey

7. UK-EU negotiations
• Common Policies & Transition?
• ‘Level Playing Field’ briefing
EU Withdrawal Bill
• Clause 11
• What will the Lords do?
Sectorial developments
• The 25 Year Environment Plan
• Governance & Ambitions

8. UK-EU negotiations
 The transition period – scope &
governance
 Level Playing Field ‘in the context
of the future trade relationship’
 EU prepares for non-cooperative
UK on environmental governance
European Commission website

9. EU Withdrawal Bill
 Henry VIII powers: ‘It is left
to the subjective opinion of a
minister to determine what a
“deficiency” is’
 Sharing competences
(devolved/central)
 Plugging regulatory &
governance gaps
House of Lords Select Cttee on the Constitution, EU Withdrawal Bill Report

10. 25 YEAR
ENVIRONMENT PLAN
 Limited scope: England only
 Work in Progress
 Reduced ambition?
‘Over the lifetime of this
Plan, we want to eliminate all
avoidable plastic waste.’*
*‘Avoidable means what is
Technically, Environmentally
and Economically
Practicable.’

11. Prof Dagmar Schiek

12. Some legal perspectives
• How to make the December
compromise on Ireland /
Northern Ireland legally
watertight?
• Perspectives on the all island
economy: services

13. Northern Ireland in the Joint
Negotiation Report
No hard
border,
continued
North/South
cooperation
Rights
maintained
(GFA)
New
regulatory
barriers GB /
NI, continued
East-West
Cooperation
Identities, EU
citizenship (52),
protection from
discrimination (53)
Only if agreed by NI
Executive &
Assembly (consent),
unfettered access for
NI business to UK
internal market (50)

14. EU and WTO legal requirements
• NI to remain in EU custom’s union
• As EU Membership of Ireland to be respected
(45)
• Can be achieved by granting NI autonomous
status in relation to WTO region
• NI to remain in internal market
• Also demanded by “normalisation”
• Can be achieved by granting autonomy to
accede EFTA / EEA
• EU VAT structures maintained
• EU to insert specific status into Directive
2006/111, subs. changes & related legislation
• To be ensured that Common Travel Area operates in
line with EU law (equal rights of all EU citizens)
14

15. In particular: service sectors
• Encompasses wide areas, including legal services, cultural
industries (Game of Thrones anyone?), banking, insurance
etc.
• Presently, EU law guarantees right to all island service
provision
– E.g. Belfast law firm to advise clients in Dublin or Cork
– Ulster Bank or Bank of Ireland operating on all island basis
• If NI to remain in Internal Market, no problem
– Regulatory alignment necessary, but not sufficient condition to
maintain this

16. Regulatory Divergence NI / GB
• Only necessary if GB leaves EU internal market, VAT
regime and/or customs’ union
• Not excluded under joint negotiation report
• Politics
• EU regards this as UK internal problem
• Different perspective Irish government
• Paragraph 48 JNR: refers to East West
Cooperation across political, economic, societal
and agricultural contexts
• Law
• East West relations in GFA mainly institutional
• No hard legal barriers
• Procedural requirements (consent)
16

17. Northern Ireland’s hybridity
• 1998 Agreement (concluded in Belfast on Good Friday)
protects the right of “the people of Northern Ireland” to
identify as British, Irish or both
• consequence of hybridity of NI, as a region of concern for both the UK
and Ireland, and which has the liberty to change its allegiance
• people of Northern Ireland defined in national law
• Joint negotiation report
• 52: Irish citizens residing in NI to continue enjoying rights as EU
citizens, phase 2 to examine “arrangements required to give effect to
ongoing exercise of and access to their EU rights, opportunities and
benefits”
• 53: the UK “commits to ensuring that no diminution of rights is
caused by its departure from the European Union, including in the
area of protection against forms of discrimination enshrined in EU
law”
17

18. What should the withdrawal agreement ensure?
• Agreement between UK and EU
• Enforcement with role for ECJ (preferably ECJ plus,
modelled on EFTA court) and institution fulfilling EU
Commission functions
• Draft national legislation
– “Great Repeal Bill” not suitable
– NI dimension ideally to be carved out from this, provided as
legislation with primacy and controls as outlined above.