The latest round of the Brexit negotiations from 6-9 February did not bring much good news. It is true that rather challenging issues were on the agenda: governance, Ireland, transition and future relations. I understand that the UK was not prepared to even discuss this last issue of the future relationship. Moreover, not much in terms of substance could be debated, as the logistics of the upcoming negotiation rounds have not yet been agreed.
As the clock continues to tick with the same speed as before, it has become obvious that an intensification of the talks is necessary. On the EU side, we adopted our negotiating directives on the transition on 29 January. We have also produced a first draft – of course not yet final – of the transition chapter of the withdrawal agreement. We expect that the full text of the agreement will be finalised by Michel Barnier’s team by the end of February. This would allow official negotiations with the UK on the agreement to start after the March European Council.
There are still unresolved issues, like the cut-off date for EU citizens to be covered by the protections envisaged in the withdrawal agreement. Here, the EU side insists that free movement applies throughout the whole transition period. For the UK government, the proposed cut-off date is the day of Brexit in March 2019.
There is also the question of British representatives continuing to participate in different EU bodies during the transition period. The UK has stated its preference to have these rights carry on and to have that spelt out clearly in the withdrawal agreement. However, the EU definitely prefers to have any such arrangements on a case-by-case basis.
Diverging views remain as well on the idea of continuing the UK’s opt-in solutions in the area of justice and home affairs. It appears that doubts remain on the EU side on allowing a third country, the UK, to have a say on EU international agreements in this field. These issues have been on the table for a while, but there has been no political readiness on the UK side to address them.
The governance of the withdrawal remains an outstanding conflict – or, if you prefer, a present absence of agreement. The Brits seem to stick to their red line on no role for the ECJ, insisting instead on moving towards an international arbitration model. However, the EU position as defined last July – that the ECJ should have a role, particularly on the interpretation and application of EU law – remains unchanged. I cannot imagine that anything less than a joint UK-EU committee to manage the agreement and ECJ involvement could be an acceptable solution.
The most worrying aspect of the UK approach in the negotiations is of course the continued lack of detailed solutions for the Irish border. The December joint report envisages two paths – either an acceptable agreed solution or a backstop position. The latter requires a detailed proposal from the UK for full regulatory alignment for Northern Ireland in those areas of the single market and customs union which are a sine qua non condition for avoiding a hard border.
Of course, the UK would be happy if this kind of backstop solution applied to the entire UK territory. For the EU, this is not an option. In any case, both sides agreed to find an exceptional mechanism to address the specific situation on the island of Ireland.
My impression is that UK government continues to underestimate the time factor in the Brexit negotiations. It appears not to take into account the well-known fact that the EU will continue to be represented by Michel Barnier, who will continue to consult with all the member states and the European Parliament at each stage of the negotiations. Wasting time now does not mean that we can go faster later on, because those internal EU consultations will still have to take place.
The closer we get to drafting the legal texts, the more in-depth those consultations will need to be. Indeed, the weaker the unity among the EU27, the longer the discussions will become. Any document will have to be acceptable to all on the EU side. Any version of the withdrawal agreement will first have to be negotiated among the EU27, and consulted on with the European Parliament, and only then be subject to the final negotiations with the UK.
This is going to take time – so time must not be wasted.
Prof Danuta Hübner MEP is Chair of the European Parliament’s Committee on Constitutional Affairs and former European Commissioner for Regional Policy. She is Advisory Board Member of the Scottish Centre on European Relations.