Monday 09 October 2017 saw the commencement of the fifth round of Brexit talks. Given the portentous nature of this round of talks, the final round before the October European Council scheduled in the third quarter of this month. This is when the EU’s Chief Negotiator, Michel Barnier, will “take stock of the negotiations with President Juncker and President Tusk and the 27 Heads of State or Government.”
As a result of this a decision will be taken as to the question of whether “sufficient progress” has been made in the first three areas that the EU determined need to be sorted before talks can move on to any future relationship. These being Citizen’s Rights, Ireland and the Financial Settlement.
I thought it may be useful to take a stand back and take an objective look at where we are up to at the beginning of this phase of the negotiations.
As usual my starting point are the highly exciting, indeed riveting, websites for the European Commission and the Department for Exiting the European Union. (Yes, I know I could do with a more active social life!). It is here though can be found the publications of a press statement by Mr. Barnier and the closing remarks by Mr. Davis at the end of the fourth round of talks.
Both Mr. Barnier and Mr. Davis commended Theresa May’s speech in Florence, saying respectively:
“The Prime Minister’s speech in Florence has created a new dynamic in our negotiations.”
“Theresa May’s speech in Florence had at its heart a desire to drive progress this week. It was intended to change the dynamic and instill real momentum.”
With that established and agreed upon the two speeches took on a form that has now become a pattern.
Mr. Davis still appears to deal in the abstract with grand statements of intent and goodwill but lacking in detail whilst Michel Barnier’s submission is succinct, setting out clearly the key points that have been agreed and what still needs resolution. As he states when introducing the substance of his critique of the progress to date:
“Allow me also on my side to briefly outline what was agreed this week and what more needs to be done.”
In light of this observation it is to the content of Mr. Barnier’s press release I turn, to facilitate an assessment that is based on objective or at least transparent criteria. He details the three areas of focus.
Michel Barnier commends the agreement by the UK to give direct effect to the Withdrawal Agreement, meaning that EU citizens will be able to invoke the Withdrawal Agreement in the UK Courts.
There has also been agreement that the UK will apply EU concepts in a manner consistent with EU Law post Brexit, for the citizens concerned.
However, there is still no agreement that it should fall to the European Court of Justice to ensure the consistency of application.
This Mr. Barnier identifies as a “stumbling block” for the EU. He details three other areas of concern.
1 A big gap remains between our positions on family reunification. We want existing rights to continue for the citizens concerned.
2 The export of social security benefits also remains to be discussed.
3 Citizens need simplified administrative procedures. The UK stated its intention to put in place a streamlined system. We are looking forward, David, to hearing the details about this new system
For a graphic and detailed breakdown of the progress made to date and the sticking points still remaining please find the Joint Technical Note on the EU-UK Positions on Citizens Rights here
Michel Barnier simply reiterated the principles laid out in full in the recent blog on the island of Ireland (to be found here).
He has already stated that it is the responsibility of the UK, the party intent on leaving the EU, to come up with proposals for a solution that ensure “both the integrity of the Union’s legal order, and the Good Friday Agreement in all its parts”.
Mr. Barnier made reference to Theresa may’s speech in Florence in which he said she promised
“First: that no Member State should pay more; and no Member State should receive less because of Brexit.
Second, that the UK will honour commitments taken during its membership.”
But went on to deal a killer blow with this one liner
“For the EU, the only way to reach sufficient progress is that all commitments undertaken at 28 are honoured at 28.”
This is not really in line with the UK’s last negotiating position which was that the first of these would be limited to 2019-2020 and also that the UK had not really in a position to identify its commitments taken through membership.
No wonder the EU side may feel frustrations about this matter. There is still no position paper published by the UK nor it appears even a framework up for discussion about a proposed methodology for calculating this.
Can we turn to Mr. Davis’ closing remarks for enlightenment? Here are his comments in this crucial matter.
“The Prime Minister also made clear that the UK will honour its commitments made during the period of our membership.
We are not yet at the stage of specifying exactly what these commitments are. That will need to come later.
Nevertheless, our negotiating teams have held very constructive discussions this week on detailed technical issues relating to that.
This work is necessary so that when the time comes we will be able to reach a political agreement. And discussions will continue.”
Does this give clarity? I leave the reader to judge.
Just to give more of the flavour of David Davis speech in order to achieve a balanced perspective I quote his conclusions about the talks to date, there being no other specific, substantive points made in the three main areas that need urgent attention above.
“As I said at the start — this round was a vital one.
We’ve made important progress and capitalised on the momentum created by the Prime Minister’s speech.
We are working quickly through a number of complex issues, yet there remain some points where further discussion – and pragmatism – will be required to reach agreement.
It is true that there are differences of opinion. But with the continued diligence and creativity of our teams, I am confident we can resolve these.
While the UK’s departure from the European Union is inevitably a complex process, it is in all of our interests for these negotiations to succeed.
We must never forget the bigger picture. Britain wants to be the European Union’s strongest friend and partner.
We want us both to thrive side by side.
I leave Brussels optimistic about this future and I look forward to continuing the negotiations.”
SO WHERE ARE WE UP TO NOW?
We have the rather woolly but friendly rhetoric from the UK side to the detailed issues based analysis from the EU side. Comparing and contrasting the two it is apparent that at this stage that at the very least some very definite and firm proposals need to be forthcoming from the UK about the land border on the island of Ireland and the Financial settlement for “sufficient progress” to be declared.
At least some significant progress has been made on Citizens’ Rights but the vexed question of a suitable arbitrary body to regulate disputes is a major hurdle.
We will have to wait with bated breath for the outcome of this week’s deliberations before we can tell. The UK side like to say they don’t like to give too much detail in advance of the negotiations but a person could be excused for believing they have not worked any detail out yet.
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