08 December 2017

The Prime Minister’s early morning dash to Brussels has resulted in a European Commission recommendation of "sufficient progress". Jill Rutter looks at what this means for future talks.

The 15-page agreement published this morning sets out the basis on which the European Commission has recommended “sufficient progress” on the first phase of Brexit. The document itself includes a lot of detail, reflecting the work done by both sides in the last months, weeks, days and nights. Now we move to phase two – the future deal – and to talks on transition. 

What have we learned from today’s agreement on citizens’ rights, the bill and Ireland?

On citizens’ rights: both sides have moved

The UK has offered a much simpler and cheaper procedure, a lot of language designed to reassure on Home Office handling. It has somewhat conceded on future family reunification and on continued (but time-limited) oversight by the European Court of Justice (ECJ). The agreement also includes a promise to put the deal into domestic law and entrench it as far as we can.

On money: a methodology, but years away from knowing the total bill

Officials estimate the bill to be between £35–£39 billion – but it may take until the middle of the century to work out how much we ended up paying. The big win for the UK is that it is avoiding any upfront payment – we pay when the obligations fall due. We continue contributions as now – and can benefit from programmes started in this financing period. We also get some assets back.

On Ireland: a lot of reassuring language

The passages on Ireland, which nearly derailed the deal this week, are full of reassurances directed at both the Government in the Republic and the Unionists in the North (and the majority in the North who voted Remain). So we have language about supporting North-South and East-West co-operation; upholding the Good Friday Agreement and – bizarrely in an international document – a reiteration of the UK’s commitment to maintain the constitutional position of Northern Ireland in the UK. The Common Travel Area is maintained, and there is even the prospect of future EU funding for the programmes which support the peace process.

What does the Irish border “triple lock” mean in practice?

On the face of it, this looks as though the UK has conceded a very significant limitation in its room for manoeuvre on future regulatory divergence and trade deals. The agreement guarantees that there will be no hard border after leaving the EU Single Market and the Customs Union, and outlines how this might be achieved.

At the heart of the agreement is a rather tortured triple lock to resolve the border conundrum:

  1. First best from the UK standpoint is “to achieve these objectives through the overall EU-UK relationship”. That means no hard border is needed, whatever future trading relationship we agree with the EU on market access and customs. 
  2. If that fails, the UK will “propose specific solutions to address the unique circumstances of the island of Ireland”. 
  3. And if that fails, the UK will maintain “full alignment with those rules of the Internal Market and Customs Union which, now or in the future, support North-South co-operation, the all-island economy and the protection of the 1998 Agreement”. There is a guarantee to the North that that will mean the whole UK aligns – unless they decide otherwise.

Does the UK Government understand what it has signed up to?

One of the Government’s problems in settling the Irish issue is what Philip Hammond called its “end-state” discussion. This formulation constrains the end-state.

Michael Gove was the point person for selling the deal to Leavers on the Today programme. His interpretation is: 

We want to achieve the same ultimate goal, for example high standards of animal health in order to ensure there is no hard border on the island of Ireland – but we have the capacity to achieve that same goal by different means…” 

That was an approach the UK already offered in its position paper in the summer, but it is far from clear that the EU is as signed up to the view that equivalence – not adoption of EU rules – will be enough. Particularly if the UK is signing deals with countries with very different regulatory models, like the United States.

But Michael Gove says that this issue would only arise in the worst case no deal scenario:

“I am now hopeful…we will be in the position where we secure a comprehensive and deep free trade agreement which will mean that citizens within Northern Ireland and the Republic, but also citizens within the UK and the EU, will be able to sell each other goods and services in a frictionless way.” He later remembered to modify to “as frictionless as possible”.

That all depends on the UK getting a deal that is much, much better than the Canada deal. But Michel Barnier has repeatedly made clear that the UK cannot expect Single Market-style access with Canada-style obligations, so it is far from clear that this can be negotiated.

The UK may have reconciled itself to the Ireland solution by still believing it can have its cake and eat it. So, although the preamble says that this agreement is “without prejudice” to the agreement on the future relationship – it does shift the goal posts.

Further information

Read our detailed breakdown of the agreement: citizens’ rights, financial settlement, Ireland.

Comments

I know you can’t go into all the detail in blog post like this but there are some remarkable aspects to the agreement. For example, if you, as a British Citizen have your baby in NI that child will be eligible for EU citizenship. Children born in the rest of the UK won’t.
And isn’t it also true that the UK’s future trade policies will be largely determined by the view of NI and the ROI?

Children born in NI have direct citizenship of RoI under Article 2 of the constitution already (subject to Article 9). So there is no change.

The meaning of ROI citizenship has changed because the UK is leaving the EU and Ireland is not - to say that there is 'no change' is false

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