‘Sufficient progress’ made on Phase 1 of the Brexit Talks

Early this morning, the European Commission and the UK announced:

  • The European Commission and UK negotiators have reported to the European Council that "sufficient progress" has been made in Phase 1 of the Brexit negotiations to allow Phase 2 talks to commence
  • The European Council will meet next week on whether to allow Phase 2 talks to commence and the current expectation is that those talks will commence
  • The UK agrees that there will be no hard border between Ireland and Northern Ireland (e.g., no physical infrastructure)
  • Even if there is no final EU/UK agreement, it is now very likely there would be no hard border
  • The EU and UK agree that EU citizens in the UK will have their rights respected by the UK and vice versa with the Court of Justice of the European Union having a role to play for some years
  • The Common Travel Area between the UK and Ireland would continue post-Brexit
  • The UK agrees to make a substantial financial contribution to the EU
  • There will still be an Irish strand in the Phase 2 Brexit negotiations – which is important

This is not a treaty or an agreement but it is an important step on a difficult road. 

The hardest part (i.e., Phase 2 Talks and agreeing the Withdrawal Agreement and other arrangements) is yet to be done and now it has to be done in the shortest time frame (i.e., 533 days since the Referendum but only 476 days left until the UK is scheduled to leave the EU). 

We are moving away from a "Hard Brexit"/"Soft Brexit" into a "Spectrum Brexit".

Key provisions from the report include:

  • "43. The United Kingdom’s withdrawal from the European Union presents a significant and unique challenge in relation to the island of Ireland. The United Kingdom recalls its commitment to protecting the operation of the 1998 Agreement, including its subsequent implementation agreements and arrangements, and to the effective operation of each of the institutions and bodies established under them. The United Kingdom also recalls its commitment to the avoidance of a hard border, including any physical infrastructure or related checks and controls.
  • 44. Both Parties recognise the need to respect the provisions of the 1998 Agreement regarding the constitutional status of Northern Ireland and the principle of consent. The commitments set out in this joint report are and must remain fully consistent with these provisions. The United Kingdom continues to respect and support fully Northern Ireland's position as an integral part of the United Kingdom, consistent with the principle of consent.
  • 45. The United Kingdom respects Ireland's ongoing membership of the European Union and all of the corresponding rights and obligations that entails, in particular Ireland's place in the Internal Market and the Customs Union. The United Kingdom also recalls its commitment to preserving the integrity of its internal market and Northern Ireland's place within it, as the United Kingdom leaves the European Union's Internal Market and Customs Union.
  • 46. The commitments and principles outlined in this joint report will not pre-determine the outcome of wider discussions on the future relationship between the European Union and the United Kingdom and are, as necessary, specific to the unique circumstances on the island of Ireland. They are made and must be upheld in all circumstances, irrespective of the nature of any future agreement between the European Union and United Kingdom.
  • 47. Cooperation between Ireland and Northern Ireland is a central part of the 1998 Agreement and is essential for achieving reconciliation and the normalisation of relationships on the island of Ireland. In this regard, both Parties recall the roles, functions and safeguards of the Northern Ireland Executive, the Northern Ireland Assembly, and the North-South Ministerial Council (including its cross-community provisions) as set out in the 1998 Agreement. The two Parties have carried out a mapping exercise, which shows that North-South cooperation relies to a significant extent on a common European Union legal and policy framework. Therefore, the United Kingdom’s departure from the European Union gives rise to substantial challenges to the maintenance and development of North-South cooperation.
  • 48. The United Kingdom remains committed to protecting and supporting continued North-South and East-West cooperation across the full range of political, economic, security, societal and agricultural contexts and frameworks of cooperation, including the continued operation of the North-South implementation bodies.
  • 49. The United Kingdom remains committed to protecting North-South cooperation and to its guarantee of avoiding a hard border. Any future arrangements must be compatible with these overarching requirements. The United Kingdom's intention is to achieve these objectives through the overall EU-UK relationship. Should this not be possible, the United Kingdom will propose specific solutions to address the unique circumstances of the island of Ireland. In the absence of agreed solutions, the United Kingdom will maintain full alignment with those rules of the Internal Market and the Customs Union which, now or in the future, support North-South cooperation, the all island economy and the protection of the 1998 Agreement.
  • 50. In the absence of agreed solutions, as set out in the previous paragraph, the United Kingdom will ensure that no new regulatory barriers develop between Northern Ireland and the rest of the United Kingdom, unless, consistent with the 1998 Agreement, the Northern Ireland Executive and Assembly agree that distinct arrangements are appropriate for Northern Ireland. In all circumstances, the United Kingdom will continue to ensure the same unfettered access for Northern Ireland's businesses to the whole of the United Kingdom internal market.
  • 51. Both Parties will establish mechanisms to ensure the implementation and oversight of any specific arrangement to safeguard the integrity of the EU Internal Market and the Customs Union."

 For further information, please contact a member of the A&L Goodbody Brexit team.

Date published: 8 December 2017