‘SUFFICIENT PROGRESS’: A WELCOME BREAKTHROUGH
As such, negotiations will accelerate to the second phase which will relate to a possible transitional arrangement and the establishment of a framework for the future relationship between the United Kingdom and the European Union. This represents a welcome breakthrough in the protracted negotiation process.
The first phase of negotiations gave priority to three main areas with the underlying objective of ensuring the United Kingdom’s “orderly withdrawal” from the European Union:
(a) Protection of citizens’ rights
Protection of those citizens who have exercised free movement rights under EU law prior to the United Kingdom’s withdrawal from the European Union, whether that be UK citizens who have exercised such rights within the European Union or vice versa, was identified as an issue of high priority in the first phase of negotiations.
The Commission Communication outlines that the negotiators have come to “a fair and equitable common understanding” as to the future status of those citizens who have built their lives around the rights and protections guaranteed by EU law.
Those individuals who have exercised free movement rights prior to the United Kingdom’s withdrawal from the European Union will continue to be protected beyond that date and will thus be able to continue to reside in the relevant territory under the same conditions as prior to the relevant date.
Furthermore, family members of those who have exercised free movement rights under EU law who themselves are not yet residing in the relevant territory prior to the United Kingdom’s withdrawal from the European Union including spouses, registered partners, parents and those in a durable relationship with the individual exercising free movement rights, will continue to be protected in the same way as they would have been protected by reunification rights under EU law.
The Commission Communication puts specific emphasis on the rights of children and makes clear that all children of the individual exercising free movement rights, including those born after the United Kingdom’s withdrawal or born outside the state that the responsible Union citizen is residing, will be protected by the Withdrawal Agreement.
However, not all citizens’ rights issues that flow from the United Kingdom’s withdrawal from the European Union have been resolved.
The Commission continues to assert that future spouses or partners of the responsible Union citizen should be protected following the United Kingdom’s withdrawal from the Union. However, this may stymie further negotiations with the United Kingdom who may be unwilling to allow protection to extend to such situations as it may be politically difficult to sell this to their population.
(b) The relationship between Ireland and Northern Ireland
The relationship between Ireland and Northern Ireland after the United Kingdom’s withdrawal from the Union provides a particularly complex issue to be resolved.
The United Kingdom has asserted its commitment to avoid a “hard border” between Northern Ireland and Ireland. At the same time, owing largely to the UK government’s current reliance on the support of the DUP, regulatory barriers between Northern Ireland and the rest of the United Kingdom remain untenable without the consent of Northern Irish bodies.
As the Commission have acknowledged, the United Kingdom’s intention to ensure that no ‘hard border’ exists between Northern Ireland and Ireland is “hard to reconcile with the United Kingdom’s communicated decision to leave the internal market and the Customs Union”.
Notwithstanding the fact that it has been asserted that “sufficient progress” has been made regarding the unique problem posed by the future relationship between Ireland and Northern Ireland, the situation is still far from cleanly resolved. The “flexible and imaginative solutions” that the European Council (Article 50), in an EU 27 format, has called for to resolve this unique problem have not yet been thoroughly imagined.
(c) Financial Settlement
Rather than the United Kingdom agreeing a lump sum to be paid to the European Union, instead a ‘methodology’ has been agreed that will be followed to calculate the obligations to be honoured by the United Kingdom in the context of its withdrawal.
In turn, the United Kingdom has agreed to continue to participate in the current EU budget until the end of 2020. This is despite the fact the United Kingdom will officially exit the EU in March 2019.
This should not, however, be seen as some kind of punitive measure and instead should be seen as reflective of the United Kingdom’s continued relationship with the European Union at this time. As such, the United Kingdom will continue to fully benefit from EU spending until the 2020 budget cycle.
An affirmation by the European Council (Article 50), in an EU 27 format, as recommended by the Commission, that ‘sufficient progress’ has been made regarding negotiations between the European Union and the United Kingdom is an important landmark in negotiations. It has paved the way for phase two negotiations on establishing a transitional agreement and a framework for the future relationship between the United Kingdom and the European Union.
As such, the prospect of a harmful ‘no deal’ appears to have diminished considerably which represents a victory for all parties involved in the negotiations.
However, there is still much to agree in the second phase of talks. For example, there remains issue as to how the United Kingdom’s commitment to avoiding a ‘hard border’ between Ireland and Northern Ireland can be reconciled with its communicated decision to leave the internal market and the Customs Union.
This issue is a symptom of a wider lack of clarity shown by the British Government with regards to its vision of a future relationship with the European Union which will hopefully be further elucidated following the second phase of negotiations.
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