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Brexit negotiations: Round 1

Jul 21, 2017
What happened in the first week of the Brexit negotiations? Eoin O’Shea takes a look.
 
Last week’s Brexit talks in Brussels were formally called the second round of negotiations. With the first round in June being only to agree the timetable for talks, it is perhaps apt to describe what went on last week as being the real first round of engagement between the parties.
 
Since the UK’s recent general election, there has been speculation (fuelled by none other than the UK’s Chancellor of the Exchequer) that the UK would change its negotiating stance from a hard Brexit to a soft Brexit (i.e. by the UK starting to argue that the UK should remain within the EU Single Market, like Norway, and/or the EU Customs Union, like Turkey. None of these possibilities were dealt with in last week’s negotiations because, as was evident last week, it is still the case that the UK will continue on its inevitable negotiating course towards a hard Brexit.
 
In preparation for last week’s negotiations, the EU published 24 position papers. The UK side was not so forthcoming. While there may potentially be a good deal of agreement between the parties on some items, it is the case that the sides left Brussels last Thursday with no real agreement/engagement on the substantial issues arising in this part of the Brexit negotiation process.
 
Before delving into the minutiae of what the EU/UK disagreed on in last week’s talks, it is worth pointing out that, if there will be no deal between EU/UK before Brexit happens, the UK will crash out of the EU without a trade deal in place. That would cause severe difficulties for the UK and for Ireland. Therefore, these talks between the UK and the EU (in which Ireland does not have direct involvement) are absolutely crucial for Ireland.
 
The EU has, with the agreement of the UK, divided the negotiation process into a couple of phases. The first phase (where we are now) concerns the rights of EU citizens present in the UK on Brexit day, the amount of money the UK must pay the EU on exit, and other matters. The ‘other matters’ bit is a moveable feast but includes issues relating to the Irish border and the preservation of the Common Travel Area between the UK and Ireland.
 
To sum up the first phase of the talks, it is my view that, not only was there no agreement, but there was no agreement on the possibility of there being an agreement. In lawyers’ parlance, the parties are headed for trial which, in these circumstances, is the worst possible outcome for Ireland.
 
On the most contentious issue in last week’s talks, which was the ‘financial settlement’ (i.e. what monies the UK will owe the EU on Brexit day), Michel Barnier, the EU’s chief negotiator, last week publicly welcomed that the UK had stated openly during the previous week that at least some monies were due from the UK to the EU on exit. At last Thursday’s press conference, however, David Davis, the UK’s chief negotiator, failed to confirm same by way of real words. In relation to citizenship rights on Brexit day, Barnier was asked by a journalist whether the European Court of Justice should still be involved post-Brexit in deciding on issues relating to EU citizens present in the UK on Brexit day. Barnier confirmed, in effect, that the involvement of the EU courts represented a red line for the EU negotiators. On that issue, Barnier’s position could not be further than that of the UK.
 
So the Brexit negotiations have not got off to a good start for Ireland. The possibility of there being no deal at all between the UK and the EU has increased. It is evident that the parties are still divided by ideological rather than practical considerations and, in truth, there was little from last week’s talks which would give one hope that the sides will eventually be drawn together.
 
Eoin O’Shea FCA is a practising barrister, specialising in commercial and tax law. Eoin is a former member of the European Court of Auditors.