Brexit and getting down to legal drafting
With the arrival of the Coronavirus on the world scene, Brexit has been relegated to almost (it may seem!) a walk-on role in the UK and EU public consciousness. Questions of health and even of life and death understandably do take precedence. Nevertheless, a lot continues to happen on the Brexit front, even though Brexit's immediate profile is lower.
The UK Government has been busy putting Bills before the UK Parliament , which seek to implement the UK Government's Brexit agenda and were flagged up in the Queen's Speech at the beginning of the current Parliamentary session in December 2019. Prominent amongst these Bills are the Private International Law (Implementation of Agreements) Bill 2019-21, the Immigration and Social Security Co-ordination (EU Withdrawal) Bill 2019 -21 and the Environment Bill 2019-21.
The Private International Law (Implementation of Agreements) Bill implements into UK domestic law, with effect from the end of the transition period on 31 December 2020, the Hague Conventions on Choice of Courts Agreements, on Parental Responsibility and Child Protection, and on Maintenance.
The Immigration and Social Security Co-ordination (EU Withdrawal) Bill implements into UK from the same date the repeal of EU law provisions relating to free movement of persons and other EU law provisions relating to immigration.
The Environment Bill will, according to the UK Government's published background notes on the Queen's Speech. "protect and preserve the planet for generations to come. It will establish a new Office for Environmental Protection, increase local powers to tackle air pollution, introduce charges for specified single use plastics , and ban exports of polluting plastic waste to non-OECD countries". It is part of the UK Government's response to current environmental challenges and demonstrates the UK's commitment to ensuring that high environmental standards are maintained by the UK after the transition period.
UK Government lawyers are also busy in a more direct way with the current trade negotiations between the UK and the EU, particularly with the UK Government's announcement on 9 March 2020 that it is intending to publish a text of a draft UK-EU Trade Agreement ahead of the next round of trade talks between the two sides scheduled to begin on 18 March next. According to the Financial Times, the EU is also set to publish its own draft UK-EU Trade Agreement ahead of the next round of trade talks as well.
The speculation is that the UK draft will be modelled on existing EU trade agreements with third countries (such as the Canada-EU Trade Agreement) and will seek to emphasise the UK Government's position that the UK-EU trade agreement should be regarded in many ways as like other EU trade agreements and not contain in addition the desired EU provisions for alignment and for a European Court of Justice role in the interpretation of EU law as part of a UK-EU trade agreement.
The President of the European Commission, Mme Ursula von der Leyen, clearly is concerned that the UK wants to have its cake and eat it and was reported by the FT to have said on the same day that "it will be important that the UK kind of makes up its mind - the closer they want to have access to the single market, the more they have to play by the rules that are the rules of the single market". In other words, the UK cannot have an especially close relationship with the EU in terms of trade without accepting some specially tailored obligations to ensure the integrity and competitiveness of the EU single market.
The respective positions of the UK and EU on the trade negotiations are well-known and at the moment each side is using legal drafting and lawyers' arguments to support its case.
It is early days yet in the trade negotiations, but time is short.
Observers should keep a close eye on the detail as they continue to emerge from the discussions over coming weeks.
