Negotiations between the UK and the EU are now in their second phase. The first ended with the conclusion of the withdrawal agreement, which set out the terms of the UK’s departure.
The UK duly ceased to be a member state on 31 January 2020, but under the terms of the agreement during the implementation (or ‘transition’) period it continues to enjoy the privileges of membership until 31 December 2020.
The purpose of this second phase of negotiations is to determine the nature of the future relationship between the UK and the EU.
Who will represent the two sides in this second phase? What is the schedule for the negotiations? How are they organised? If agreement is reached, what are the approval procedures?
Terms of reference
The UK and EU have agreed on terms of reference for the negotiations. The framework draws on the political declaration agreed by both sides on 17 October 2019, which lists the areas that are to be covered by the new relationship: trade in goods and services, sectors including fish, and foreign policy, security and defence cooperation.
The political declaration envisages that the new relationship will commence on 1 January 2021. However, the UK has stated that it reserves the right to leave the negotiations, in which case there would be no deal. If that happened, UK-EU relations would be governed by a combination of limited, short-term contingency arrangements and trading on WTO rules.
The negotiating parties
The EU has again agreed that Michael Barnier, French politician and former European Commissioner, will lead the negotiations for the European Union. He heads the Task Force for Relations with the UK, which is based in the European Commission.
Negotiations on the UK side will be led by David Frost, who has been appointed by Boris Johnson as head of ‘Task Force Europe’ – the successor body to the Department for Exiting the European Union. Both sides have also assigned deputy chief negotiators.
The first round of the negotiations began on 2 March 2020. Full negotiating rounds will take place every two to three weeks, unless the two sides agree otherwise. The talks will alternate between London and Brussels, and will be conducted in English, except where duly justified circumstances require French.
Rounds are scheduled for 18 March in London, 6 April in Brussels, 27 April in London and 13 May in Brussels, and progress will be reviewed at a high-level meeting planned for June 2020.
The UK and the EU have agreed that negotiations will take place in 11 negotiating groups, which will meet in parallel.
They cover: trade in goods; trade in services, and investments; level playing issues; transport; energy and civil nuclear cooperation; fisheries; mobility and social security cooperation (including visas for travel and work); law enforcement and judicial cooperation; thematic cooperation (including cybersecurity and migration); participation in EU programmes; and horizonal arrangements and governance.
However, the negotiating parties can agree to merge or divide groups, or to create new ones.
The negotiating groups work under the guidance of plenary negotiating sessions that are co-chaired by the Chief Negotiators or their deputies.
Agreement and approval
The timetable for concluding an agreement of the envisaged breadth and scale is tight. Although the withdrawal agreement provides for the possibility of an extension to the talks (which would have to be submitted by July), the UK has firmly rejected this option.
Moreover, given the time needed for ratification on the EU side, an agreement would have to be reached by October in order for it to become effective at the start of 2021.
There is an additional complexity, in that the ratification procedure used on the EU side depends on the scope of the agreement. A relatively narrow agreement covering areas that fall within the EU’s exclusive competence can be approved at EU level, requiring only a qualified majority vote in the Council and the consent of the European Parliament.
If, however, the agreement extends into fields where both the EU and the member states have competence, it would require unanimity in the Council, the consent of the European Parliament, and domestic ratification by all the member states, according to their constitutional arrangements for such agreements.
In some countries, the latter involve not only the national legislature, but regional parliaments.
The shadow of implementation
At the same time as the UK and the EU are negotiating their future relationship, they will be implementing the withdrawal agreement – an international treaty which imposes binding obligations in three areas of considerable sensitivity: the rights of EU citizens in the UK, the financial settlement, and the Irish border.
Suggestions by the Prime Minister, and other ministers, that goods entering Northern Ireland from Britain do not require checks have caused concern in the EU, since the Irish Protocol commits the UK to customs and regulatory checks in the Irish Sea. Indications that the UK is likely to backslide or that it will fail to fulfill its obligations are likely to erode trust in the negotiations.
In summary, the terms of engagement for the negotiations on the future relationship have been agreed by the two sides.
But, even without taking into the account the distance in negotiating positions taken by the two sides, the short timescale, the UK’s refusal to contemplate an extension, and uncertainties concerning the ratification process suggest that the negotiations will not be plain sailing.