Brexit – so, how’s it going?

According to the Government, Brexit negotiations are proceeding positively and the UK will be in a stronger position than ever after leaving the European Union.

According to the Opposition, Brexit was a good thing before the 2017 General Election, but is now a bad thing … unless the UK leaves but retains all the benefits of being in the Single Market (what has become known as the ‘soft Brexit’ option).

And according to the European Union, the UK’s negotiating team is too focussed on protecting the UK and its citizens rather than working towards a solution that satisfies the EU’s mandarins.

So, who to believe?

Brexit negotiations

The EU has maintained a consistent approach, namely that the negotiations must make sufficient progress on three key issues before it would be willing to discuss any form of trade deal with the UK. These issues are:

1. the protection of EU citizens’ rights whilst living in the UK,
   
   
2. the Irish/UK land border, 
   
   
3. the ‘compensation’ that the UK will pay the EU for leaving.

According to Members of the European Parliament, the UK has ‘seriously impeded’ the withdrawal talks because of a lack of ‘clear proposals’ over settling the so-called ‘divorce bill’ (even if some progress has been made on the other two issues). In contrast, the UK’s negotiating team believes the EU negotiators are so entrenched in their position that it’s a case of the EU’s way or no way, and that no matter what the UK proposes, it won’t be enough.

And besides, how can the UK know the amount it owes the EU if the UK doesn’t know what the post-Brexit trade arrangements will be?

Whatever the true position, and it’s probably somewhere in between the two extremes, it is rapidly becoming clear that the EU will not engage in trade talks for some time, and it is likely there will be many unresolved issues when the UK leaves the EU in March 2019. Undoubtedly most commentators realised very quickly that two years wasn’t long enough to negotiate both an exit from the EU and a trade deal – after all, the EU has been negotiating its potential trade deal with Canada for more than 8 years now.

The UK’s latest proposal is that, following departure, there is a transition period of ‘about’ two years where the UK will continue to pay into the EU and, in return, will continue to have access to the single market for trade purposes.  This would essentially be a temporary form of ‘soft Brexit’. Initial indications are that the EU will be unlikely to accept such a proposal, particularly as the UK has indicated that it will not accept judgments of the EU Court during that period., Again, it is yet to become clear that if no trade deal was reached at the end of that transition period, the UK would opt for a ‘hard Brexit’, leave the single market and rely on default World Trade Organisation terms when trading with its European partners.

Ultimately, it’s a negotiation, and neither side are going to reveal their hand. Until the final deal is struck, the general public are likely to be kept in the dark, and that shouldn’t come as a surprise. Expect each side to criticise the other and, at the last minute when everything seems lost, the politicians strike some form of ‘high level’ arrangement, and leave the civil servants to plough through the detail. Ultimately, when Brexit is finally complete, it is in both sides’ interests to make it work.

UK legislation

The EU Withdrawal Bill (commonly known as the ‘Great Repeal Bill’) is the piece of legislation that will cause the UK to leave the EU in March 2019. Not without controversy, it passed the first stage of the Parliamentary process in July and will be debated again on 14th and 15th November, the first two days of an eight-day debate split over a couple of weeks, as MPs start to work through those hundreds of proposed amendments.

And at the latest count, we’re anticipating more than 300 amendments will be proposed, together with more than 50 new clauses.

Although those amendments will cover many, many areas of Brexit-related law, there are three specific areas where they will be concentrated:

• What rights the EU Courts will have to pass judgments that will be binding on the UK courts, particularly in relation to EU citizens living in the UK.
  
  
• Which of the powers that will return from the EU to the UK Government will subsequently be devolved to the Scottish, Welsh and Northern Irish assemblies.
  
  
• What powers the UK Government has to make ‘secondary regulations’ relating to Brexit and whether  MPs will have the ability to debate those regulations in Parliament before they are made into law.

It was thought that now the political conference season was over, Parliament would publish a timetable for debating the Bill, but it now appears that the Bill will not return for Parliament debate until mid-November at the earliest.  Without this Bill being approved by Parliament, the UK cannot fully leave the EU in March 2019, so there is somewhat of an immoveable deadline. And don’t be surprised if anti-Brexit MPs use the ticking clock to maximum effect.

So will Brexit actually happen in March 2019?

Yes, probably.

But expect to see a transition period agreed between the UK and the EU agreed at the last minute, which will keep the UK in the EU in all-but-name until autumn 2021 to allow time for a trade deal to be reached.

And until we see the final deal between the UK and the EU, we won’t know what Brexit actually entails. Will it be a ‘soft’ Brexit where the UK pays to remain in the single market? Or a ‘hard’ exit where it doesn’t?

It’s likely that only towards the end of 2021 will the UK finally extricate itself from the EU, a timetable rather longer than was being discussed last year, but if something’s worth doing (and 17.4 million people believed it was worth doing in June 2016), then surely it’s worth taking the time to do it properly.

These notes have been prepared for the purpose of articles only. They should not be regarded as a substitute for taking legal advice.