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Challenges of future EU negotiations highlighted in report

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Dr Tobias Lock
Dr Tobias Lock

A new report by an Edinburgh law professor has set out the complexity of the next phase of the Brexit negotiations and the subsequent negotiations on the UK’s future relationship with the EU.

Dr Tobias Lock of Edinburgh Law School prepared the report for the Scottish Parliament’s culture, tourism, Europe and external relations (CTEER) committee.

It sets out the legal, political and time constraints for the negotiation and conclusion of the withdrawal agreement; transitional arrangements, and the final agreement on the future relationship between the UK and the EU.

Joan McAlpine MSP, convener of the CTEER committee, said: “There is a lot of misunderstanding about the next stages in the negotiations and what can and cannot be negotiated. This report will, I hope, bring some realism and clarity to the debate on Brexit and improve understanding of the implications of Brexit for all of us.

“The guidelines agreed at last week’s European Council meeting also show that the EU27 are looking for clarity from the UK on the ‘end state’ relationship that it wants with the EU. We need to pay more attention to the position of the EU27 and the constraints that the European Union will operate under in negotiating the future relationship and this report is therefore vital reading for those who want to understand how our future will be determined.”

Lewis Macdonald MSP, deputy convener of the committee, added: “These research findings have identified important issues in the transition period that need addressed and reflect the very complex processes that lie ahead. Its publication is particularly timely in light of the agreement of the guidelines adopted at the December European Council meeting.”

The report highlights a number of key points:

  • While the European Council has agreed that sufficient progress has been made to move onto the second phase of the Article 50 negotiations, the European Council has indicated that negotiations can only progress as long as all commitments undertaken during the first phase are respected in full and translated into legal terms.

  • The EU 27 want a “status quo” transition, but without the UK participating in any EU structures as it will formally leave the EU on 29 March 2019. They want the UK to remain in the Customs Union and the Single Market, thus continuing to accept all four freedoms. There are limits to this, for instance, once the UK has left the EU, it will no longer be automatically covered by international agreements concluded by the EU alone. It is also unlikely that the transition would last for more than two years if it is agreed under the legal basis of Article 50.

  • The European Council foresees that “an overall understanding on the framework for the future relationship” should be identified in the second phase and that this will be elaborated in a political declaration accompanying and referred to in the Withdrawal Agreement.

  • The European Council indicated that it would adopt additional guidelines in March 2018 on the future relationship and called on the UK to “provide further clarity on its position on the framework for the future relationship.”

  • The UK’s new relationship with the EU will have to be founded on one or more international agreements between the EU and the UK that can only be signed when the UK is no longer a member of the EU (ie after 29 March 2019).

  • The EU operates under tight legal, procedural and political constraints in negotiating and concluding international agreements with third countries (non- Member States).

  • It is likely that the agreement(s) governing the new relationship between the UK and the EU will have to be ratified by all of the 27 Member States of the EU in accordance with their own constitutional processes. This will delay the ratification process for the new agreement(s);

  • The conceivable options for future cooperation between the UK and the EU, and the scope of a Canada-style free trade agreement.

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