Brexit: the talks begin

After the UK triggered the Article 50 process on leaving the European Union at the end of March 2017, the European Council published guidelines for the negotiations, which were followed by a Council recommendation to the Commission setting out detailed negotiating directives.

The chief negotiators, David Davis for the UK and Michel Barnier for the EU (Commission Article 50 Task Force), met for the first formal talks on 19 June. This meeting focussed on agreeing the timing, structure and initial priorities of the negotiations. Terms of Reference were also adopted.

As the negotiations begin there are differences in the starting positions of the two parties on citizens’ rights and the financial settlement, but agreement on the need to find a solution to the Irish border question so as not to jeopardise the peace agreement.

The negotiations will follow four-week cycles throughout the first phase and dates have been set up to the week beginning 9 October 2017. For several weeks during this period neither the UK Parliament nor the European Parliament will be sitting.

The EU proposed a phased approach to the negotiations, starting with three priority areas – citizens’ rights, a financial settlement and the Ireland/Northern Ireland border – moving on to the UK’s future relationship with the EU if “sufficient progress” is made in these three areas. It is not clear what exactly is meant by this, which will be for the other 27 EU Member States to decide.

The principal negotiators are Michel Barnier and David Davis. EU negotiators will be supported by the Council, the Committee of Permanent Representatives and the EU Presidency. UK officials include Oliver Robbins from the Department for Exiting the EU, and Sir Tim Barrow, the UK’s top diplomat in Brussels.

There are joint negotiating groups of officials to tackle the first phase priorities, and a higher-level ‘dialogue’ on Ireland/Northern Ireland.

The EP will not participate directly in the negotiations, but the requirement for its consent to any withdrawal agreement has given it a powerful voice. It has adopted a resolution on its position for the negotiations, and has appointed a Brexit negotiator, Guy Verhofstadt, as well as a ‘steering group’ of political group chairs.

The UK Parliament has no formal role in the negotiations and its consent is not formally required for any withdrawal agreement. It has no specific structures or procedures for scrutinising treaties, but will use parliamentary questions and debates as well as Committee inquiries and reports. It will also be dealing with all the domestic legislation required for Brexit.

At the end of the negotiations, the Government has promised a vote on the withdrawal agreement, and Parliament could also choose to debate and vote on the final signed agreement before ratification, but it does not have to.

The UK’s devolved administrations have no formal role in the negotiations. A Joint Ministerial Committee (EU negotiations) was established as a forum for them to discuss Brexit with the UK Government, but there have been calls for them to have a greater say in the negotiations.

Both the EU and the UK have made a commitment to transparency in the negotiations. However, the EU’s policy is much more detailed, and it has so far published many more negotiating documents than the UK.

David Davis has repeatedly promised to provide the UK Parliament with information matching what the EP receives. However, it is still not entirely clear whether, when or how the EP will receive information on Brexit, still less how the UK will match that.

At the same time as the negotiations, the UK will need to adjust domestic legislation for Brexit. One of the tasks is to ensure that domestic legislation reflects the withdrawal agreement’s rights and obligations before the agreement comes into force – even though this legislation will have to be debated while the negotiations continue.

Giving Ministers wide powers to implement the withdrawal agreement will be controversial.

The agreement on initial negotiating groups shows that the subjects for discussion in phase 1 are citizens’ rights, the financial settlement, the Ireland/Northern Ireland border, and ‘other separation issues’ including Euratom and the EU’s third party agreements.

Dispute resolution is a controversial topic that runs through all of these, with fundamental disagreement between the EU and UK on the role of the CJEU.

Discussion of a future relationship and any transitional arrangements must wait for phase 2, as the Commission has no mandate to negotiate them yet.