Article 50 a year on: Brexit ‘red lines’ change colour

“Dear President Tusk… We are leaving the European Union,” wrote Theresa May on 29 March, 2017.

A year after the British prime minister triggered Article 50 setting the formal process in motion, the EU and the UK have successfully negotiated the terms of departure and a 21-month transition period after the official exit date, 29 March 2019 — at 23.00 GMT to be precise.

In the autumn of 2016, May told the Conservative Party conference: “We are going to be a fully independent, sovereign country.” Her more forthright utterances, later developed in government position papers, became branded as British “red lines”.

Meanwhile countless European leaders told Britain it could not “cherry-pick” from the rules. Brussels set out in a series of guidelines and directives its own negotiating parameters to protect its interests.

“There will be give and take. There will have to be compromises,” said May in January 2017. A little over a year later, most of the concessions so far have been made in London.

European Court of Justice

“We will take back control of our laws and bring an end to the jurisdiction of the European Court of Justice (ECJ) in Britain,” May said in the same speech at Lancaster House. “Our laws… will be interpreted by judges not in Luxembourg but in courts across this country.”

Subsequent government papers reinforced the same message. ECJ jurisdiction would end “on the day the UK leaves the EU”, even where the facts of a case occurred before withdrawal.

In the run-up to the recent transition deal, the UK’s tone changed. British cases would be determined in British courts, the prime minister said in her speech at Mansion House. “But, where appropriate, our courts will continue to look at the ECJ’s judgments.”

She went further. In future, if UK and EU law was identical, “it may make sense for our courts to look at the appropriate ECJ judgments so that we both interpret those laws consistently”.

The EU’s negotiating directives, drawn up after Article 50 was triggered, said a Brexit agreement should be implemented and enforced fully respecting “the autonomy of the Union and of its legal order” and be governed by ECJ jurisdiction.

The transition agreement sets out many circumstances where the European court will continue to have jurisdiction in the UK during the transition period. The ECJ’s role after that time, from 2021 onwards, is unresolved.

Immigration

“We will get control of the number of people coming to Britain from the EU,” said Theresa May at Lancaster House.

“The Free Movement Directive will no longer apply and the migration of EU nationals will be subject to UK law,” stated a UK government White Paper in February 2017.

“Free movement of labour ends when we leave the European Union in the spring of 2019. We’ll be very clear about that,” UK Home Office Minister Brandon Lewis said in July 2017.

By early 2018, the prime minister was saying that life for new arrivals from the EU to the UK after Brexit would be “different”. A government policy paper in March mentioned plans for a registration scheme. However, the principle that EU citizens would continue to be able to come to Britain during the transition — and earn the right to settle permanently — was conceded.

The transition agreement makes it clear that EU citizens arriving in the UK before 31 December 2020 — and British people heading for the continent during that time — will continue to enjoy the same rights and guarantees as those arriving before Brexit.

The government’s white paper on immigration, once promised later in 2017, is now not due until later this year.

Citizens’ rights

Both the British government and the European Union (in its May 2017 position paper) spoke of wanting to guarantee the rights of EU citizens in the UK and Britons in other member states. May insisted that Britain would not unilaterally move to protect the former until the EU had made a reciprocal commitment.

It was not until last December’s phase one accord on divorce issues was struck that terms were sealed. Then, announcing the transition deal earlier this month, the UK’s Brexit Minister David Davis said both sides had delivered “on our commitment to provide certainty to citizens”.

However, citizens’ groups noted that a draft guarantee of freedom of movement for Britons in Europe had been removed from the final text. British MEPs wrote to Davis to ask for clarification.

Meanwhile groups representing EU citizens in the UK – “the3million” and “British in Europe” – wrote to Donald Tusk amid concerns that questions remained unanswered over the status of some categories of people.

There have also been concerns that the negotiators’ principle that “nothing is agreed until everything is agreed” threatens citizens’ rights in particular, by prolonging uncertainty until the final Brexit deal is struck.

Money

“Because we will no longer be members of the single market, we will not be required to contribute huge sums to the EU budget,” said Theresa May at Lancaster House. “The principle is clear: the days of Britain making vast contributions to the European Union every year will end.”

The issue of the UK’s financial obligations to the EU over its departure has sometimes seen rhetoric triumph over detail. Foreign Secretary Boris Johnson famously said the EU could “go whistle” over its “extortionate demands”.

Brussels has never put a figure on what it believes Britain owes. Its position paper in June 2017 said “the UK should honour its share of all financial commitments made by the EU during British membership”.

In her Florence speech in September 2017, the prime minister confirmed that the UK would continue paying into EU coffers until the end of the current budget in 2020, to which Britain had signed up. This was taken to amount to two years’ net contributions for 2019 and 2020, a total of around 20 billion euros.

Last December’s “breakthrough deal” said the UK had agreed to pay into the EU budget for 2019 and 2020 “as if it had remained in the Union”. It would also “contribute its share” for EU liabilities incurred before the end of 2020 that became due in the future.

The British government has estimated that the settlement will cost around 40 to 45 billion euros. The UK’s public finances watchdog, the Office for Budget Responsibility (OBR) has said relatively small payments (of tens of millions of euros) may still be made in the 2060s. But it expects around 75 percent of payments to have been made by 2020.

Irish border

Negotiations over how to keep open the UK’s only future land border with the EU against a sensitive political and historical context have somewhat bucked the trend. Here, red lines have hardened rather than become blurred as talks have progressed.

At Lancaster House May spoke of “guiding principles” and “priorities” in seeking solutions to keep arrangements as they were. The EU’s guidelines said “flexible and imaginative solutions” would be required.

Diplomatic pressure from Dublin helped stiffen the EU’s stance. In the autumn May and EU leaders vowed there would be “no physical infrastructure” at the border. But Brussels has been unimpressed with the UK’s proposals for technical solutions.

The December deal said the UK had agreed to “maintain full alignment” for Northern Ireland within EU single market and customs union rules in some sectors. The European Commission has since translated these principles into a legal text as part of the transition deal.

If no other solutions were found then a backstop solution would ensure a common regulatory area to ensure the ‘free movement of goods’ and for the North to be considered “part of the customs territory” of the EU.

This part of the transition deal remains shaded in white, indicating disagreement over its content. In February, May rejected the EU’s plan for regulatory alignment across the island of Ireland as it would create a border in the Irish Sea and threaten the UK’s constitutional integrity.

London has always argued that the key to avoiding a hard border can be found in a comprehensive free trade agreement that both the UK and the EU hope to strike.

Global trade deals

“I want Britain to be able to negotiate its own trade agreements,’”said May at Lancaster House, justifying the decision to leave the EU’s customs union. “But I also want tariff-free trade with Europe and cross-border trade there to be as frictionless as possible.”

Brussels has always said that frictionless trade in such circumstances would be impossible. The EU’s recent trade negotiating guidelines say that being outside the customs union and single market “necessitates checks and controls”.

Writing in July 2016, soon after the referendum, the soon-to-be Brexit Minister David Davis said new trade deals with non-EU countries could be negotiated in detail while the UK was still a member of the EU and come into force “at the point of exit”.

Announcing the transition deal earlier this month, the EU’s chief negotiator Michel Barnier said the UK would preserve the benefits of the single market and customs union during this period. Davis said Britain would be able to sign and ratify new trade deals during the “implementation” period which would come into force afterwards.

The EU has somewhat softened its stance on this last point, while the Brexit minister’s earlier promises fall well short in reality.

Fishing

As recently as 11 March this year, the UK’s environment minister and arch-Brexiteer Michael Gove made a renewed appeal for Britain to leave the EU’s Common Fisheries Policy as soon as Brexit took effect.

“The Prime Minister has made it clear: Britain will leave the CFP as of March 2019,” he said in a joint statement with Scottish Conservative leader Ruth Davidson.

However, the transition deal confirmed earlier reports that the EU would resist any renegotiation of fishing quotas during the transition period. Britain will stay in the CFP until the end of 2020. During talks in 2019 it will not have a place at the negotiating table but will be consulted.

In a nutshell

In its drive to secure a transition or “implementation” period and avoid a “cliff-edge” after Brexit, the UK has bowed to many of the EU’s demands. Many arrangements will remain the same as now when Britain leaves the EU in March 2019, but the UK will lose its voting rights.

Brexiteers have complained of a climbdown, even capitulation — but dissent has been muted as many have their sights set on the big prize when the UK finally breaks free of the EU, and accept the transition as a price worth paying.

Some fundamental discrepancies between both sides’ positions remain unresolved — on trade and the Irish border, for instance. Brussels has an interest in Britain being seen to be worse off after leaving the EU, while London wants to demonstrate the opposite.

Yet when push comes to shove, the past year has shown that where there is the political will — and both sides want to avoid a potentially catastrophic ‘no deal scenario’ — deals can be done.