28 September 2017

Theresa May’s Florence speech has given a new impetus to the Brexit talks. Jill Rutter looks at what we know after round four of the negotiations.

The mood music has changed. At the press conference after the fourth round of Brexit negotiations, David Davis spoke first setting out the areas of progress. And Barnier was notably warmer than his previous rather schoolmasterly approach to marking the British input into the Brexit negotiations. But the big question is whether this new dynamic will still exist when they next meet after the Conservative party conference, and whether it is strong enough to get a verdict on sufficient progress at the European Council a week later.

In parallel, the European Parliament has drafted its own Brexit resolution, to be voted on next week, which strikes a warier note.

On Ireland, warm words remain – but the “imaginative solution” is yet to be found

The principles on resolving Irish issues are not the problem. There has been progress on the Common Travel Area and citizens’ rights under the Good Friday Agreement. The problem is the practicalities of the border. And there, the calls for imagination and creativity remain. But the European Parliament resolution makes clear that it still regards this as a UK problem to solve. The semi-solution the UK has offered – the blue skies “new customs partnership” – is an issue for ‘future relationship’ negotiations, not the withdrawal talks. A way will need to be found to recognise that the sequencing is getting in the way of progress.

Greener on citizens’ rights, but still stumbling on the European Court of Justice

David Davis said that the UK-EU citizens’ rights negotiating table will be much greener after agreement on some key areas in the talks. But while welcoming the PM’s commitment to put rights in the withdrawal agreement into UK law, Barnier is clear that the refusal to give final jurisdiction to the ECJ is a “stumbling block” for the EU. The European Parliament points out that UK law provides no guarantee against subsequent change by another parliament.

There may yet exist a solution, in the form of a new dispute resolution mechanism which can cover both the withdrawal agreement and the future partnership. But we are not there yet. (The IfG will discuss this issue more in a paper out next week.)

Barnier also singled out the family reunification issue as an outstanding problem. The issue is that UK citizens currently have inferior rights to other EU citizens. The Government is between a rock and a hard place. Either it diminishes EU citizens’ rights, which the PM said she would not do; or it perpetuates an unfairness to British citizens; or it has to loosen up its migration regime, at a time when it is promising more, not less, control. It is not clear what will give.

Meanwhile, Home Office action against EU citizens is souring the tone of the negotiationsRecent instances of EU citizens, legally here, being threatened with deportation is doing nothing to reassure the EU 27 or the European Parliament that their citizens’ rights are safe in UK hands. Both Barnier and Guy Verhofstadt have drawn attention to the Home Office’s actions. So while David Davis can offer a more streamlined processes, and the PM is clear that the UK values EU citizens who chose to live here, their words are undermined by the actions of a department with a “hostile environment” mindset. Preventing further damaging mistakes must be top of Home Secretary Amber Rudd’s in-tray.

Clarity on money still seems some way off

The big move on Florence was on money: the offer to ensure that no EU member was out of pocket in this budget period. That clearly moved the talks forward, but the EU is still pressing for the UK to put a number on “honouring commitments” – the big (and apparently growing) heap of liabilities racked up during UK membership.

Rather than regard this as part and parcel of the final deal – the only way in which the Prime Minister could sell it to her backbenchers – Barnier is still representing this as the key which unlocks the door to phase two. Will the UK go further once the Conservative Party Conference is safely navigated?

Will Barnier seek permission to talk transition?

The Prime Minister made a formal bid for transition in Florence. Barnier has made it clear that he needs a further mandate from the European Council before talks can turn to a transition. He also said that transition can only be agreed once there is clarity on the key points of the withdrawal agreement – a requirement which appears in today’s draft European Parliament resolution.

So, a real sign of progress will be if Barnier seeks a mandate to start talking transition in October.

Comments

No surprise that the actions of the Home Office are giving pause for thought in Brussels as to UK reliability on promises. In a recent refugee deportation case (involving an individual at clear risk of Taliban reprisals; his father had been murdered by them) they proceeded to deport the individual even after an judge had ordered them not to proceed. They then twice launched emergency appeals including on a Saturday with a view to wriggling out of their legal obligations, leading a senior judge to suggest that the Home Secretary may well have been in contempt of court for deliberately breaching the original order.

We can hardly behave like this towards one vulnerable Afgahan man and not expect many EU citizens living in the UK, as well as the EU institutions, to be deeply dubious about the level of respect in some parts of HMG for the rule of law - especially if it makes hitting migration targets difficult.

Having said that, the UK courts once again come out of a bad situation well. Having lost both appeals, the Home Office has now flown the individual back to the UK to take forward his appeal. But their patently illegal actions and ongoing desire to defend the legally indefensible are hardly an advert for our current approach to the rigths of foreign nationals in the UK.

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