In Part 1 I explained Article 50 and why I think UK should leave first and only then attempt a new formal relationship with the EU, if at all. I envisage that UK should undertake four related streams of activity:
- Formal negotiations with the EU under Article 50 strictly limited to arrangements for withdrawal.
- Framework discussions with the EU and with individual member states about a future relationship in which no formal agreement need come into force prior to the Withdrawal Agreement. It must be absolutely clear that such discussions are separate, if related, and not part of the agenda of the formal withdrawal negotiations and therefore will not be included in the ensuing Withdrawal Agreement. Where article 50 refers to a framework of future relations, this is what it means. It is important that the UK be free of any restriction imposed by EU membership when concluding these framework discussions and negotiations. First, the UK’s approach depends on its developing relations with non-EU states. Secondly, it may then deal directly with individual member states or with the EU depending on the matter to be discussed.
- Widen our horizons. Develop international relationships and trade globally with non-EU states and organisations to further the UK’s interests and to play a full role in world affairs as a sovereign independent nation not as a subordinate state of the EU.
- Independent actions that need no discussion with the EU to replace EU involvement in UK affairs, eg., replacing CAP farming subsidies and EU funding of industry and research projects. Most of these will be intended to reduce uncertainty and to provide continuity to business, organisations and individuals affected by UK’s withdrawal.
Matters which the UK should NOT negotiate under Article 50
Let’s be clear about issues that the UK does not need to negotiate or that are not relevant to arrangements for withdrawal, and therefore should neither be on the agenda nor in the final agreement:
- A trade deal with the EU with one possible exception, passporting rights which are on the agenda (see below).
- UK Immigration and border controls. (the UK as at present will continue until withdrawal to decide on a case-by-case basis whether to adopt any EU-wide rules on immigration, visa and asylum policies in respect of non-EU immigrants and visitors.)
- Resumption of the UK’s seat on the World Trade Organisation, although the timing and detailed arrangements may be negotiable within limits.
- The UK’s sovereign rights over its adjacent waters (territorial seas, contiguous zone, exclusive economic zone), in accordance with the United Nations Convention on the Law of the Sea (UNCLOS) will be fully restored on the date of the agreement, subject only to any agreements the UK makes with individual member states.
- EU law and the jurisdiction of the ECJ over the UK will cease totally and unconditionally on the date of the agreement.
- EU policies including Common Foreign and Security, Energy, Environment, Justice and Home Affairs shall cease to apply to the UK on invoking Article 50 except where directives or regulations have already come into force.
- The UK’s participation in EU institutions is to be maintained except in areas from which the UK has specifically withdrawn, until withdrawal comes into effect – The European Council, Council of the EU, the EU Commission, the EU Parliament, the ECJ, the various Advisory Institutions etc. Article 50 clearly states that the UK is entitled to full participation until the withdrawal agreement comes into effect.
A UK Government needs to have clear ‘Red lines’ but these need not be disclosed prior to negotiations. They put people’s backs up and you look stupid when you climb down from your high horse. Best to start negotiations with things that are easy to agree quickly. Concessions don’t generate good will, agreements do.
Negotiable – the Article 50 Agenda
It is not necessary for all the details of the arrangements for withdrawal to be agreed in advance. The formal Withdrawal Agreement need not do much more than set dates and state key points of agreement. Early actions could be agreed for a limited time by a Memorandum of Understanding. The aim should be to achieve an agreement in a few months, preferably before the French elections in April 2017 and certainly before the German federal elections in September 2017. With this scope – much more narrow than what the Government appears to have in mind – it should be feasible. This means invoking Article 50 no later than November 2016. The absolute latest date, in case negotiations do drag on, is April 2017 so that the Withdrawal Agreement comes into effect before the EU Elections in May 2019. Below is my initial list for the UK to propose.
1) Rapid but phased wind-down of UK participation:
1a) Application of EU directives and regulations to the UK, in particular forthcoming EU wide policies, financial arrangements, laws should be reviewed on a case by case basis. For example it would be sensible to exclude the UK from the EU Ports Directive, banking union, EU jurisprudence, EU armed forces, migration initiatives, and border protection (except as an adjacent state)
1 b)UK payments to the EU and EU funding of British industry and research, education etc.
2) Immediate abolition of EU Public Procurement rules for new projects. It is absurd to suggest projects starting after Article 50 is invoked and continuing after Brexit should comply with EU rules.
3) Immediate abolition of EU rules for advertising employment opportunities across the EU.
4) Immediate abolition of EU Energy policies in the UK.
5) Arbitration in the event of the parties being unable to resolve any dispute, to accord with the Vienna Convention on the Law of International Treaties.
6) Continuing reduced representation of the UK to the EU – UKRep – after withdrawal.
7) Purchase by the remaining EU member states of the UK’s share of EU assets.
8) Settlement of the UK’s outstanding liabilities.
9) Termination or resolution of any cases involving or impacting the UK that are pending before the ECJ.
10) Status of the 3 million EU citizens resident in the UK and the 1.2 million British citizens resident in the EU.
11) Withdrawal from or replacement of the Dublin Agreement and other such agreements subsumed in the EU.
12) Timetable and detailed arrangements for resumption by the UK of its seat on the WTO currently ‘on loan’ to the EU.
13) Timetable and detailed arrangements for the withdrawal of EU member states from UK waters as defined by UNCLOS. Framework discussions will cover alternatives.
14) Early recognition of the UK’s fully EU compliant financial services regulatory regime, ie., advancement of Mifid2 in 2018 to replace pass-porting rights.
In Part 3 I suggest what should be included in ‘Framework’ discussions and what UK should do independently of the EU.