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This regular paper produced by SPICe sets out developments in the UK’s negotiations to leave the European Union, the process for which has now formally begun following the Prime Minister’s triggering of Article 50 on 29 March 2017.

The updates will provide information on the UK Government’s approach to leaving the EU including the domestic legislation necessary to ensure a smooth transition in terms of the UK statute book, along with details of the positions of the Scottish Government and the other Devolved Administrations. The updates will also provide information on developments within the EU with regard to the UK’s departure. Finally the updates will provide information on the key issues likely to be at play during the negotiations and in developing the UK’s future relationship with the European Union.

As was clear both during the referendum campaign and since the decision to leave the EU was taken, there is an abundance of information and analysis available, and this SPICe paper will try to cover the key issues by drawing on that information and analysis.

This week’s update focuses on an update on the Article 50 Withdrawal negotiations and the conclusion of the UK Parliament’s consideration of the European Union (Withdrawal) Bill.

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Ahead of next week’s European Council meeting (28-29 June), a further round of Brexit withdrawal negotiations has taken place this week. The agenda for the negotiations showed discussions were planned on Ireland/Northern Ireland and the future relationship.

Late on 19 June, the UK Government and European Commission’s negotiating taskforce published a Joint statement on the Withdrawal Agreement which provided details of progress in the negotiations to date. Specifically, the joint paper records the progress made since the publication on 19 March 2018 of the draft Agreement on the withdrawal of the UK from the Union and the European Atomic Energy Community (the Withdrawal Agreement).

The 14-page joint-report sets out progress that has been made in relation to a number of areas such as the placing of goods on the market; ongoing value added tax and excise duty matters; ongoing judicial cooperation in civil and commercial matters; and ongoing public procurements and similar procedures. These areas all relate to arrangements and cooperation in place as the UK leaves the EU rather than the future relationship.

On issues still to be resolved, the joint-report states:

“Both Parties have engaged on outstanding issues concerning the protection of data processed before the end of the transition/implementation period ('period'), geographical indications, the treatment of ongoing police and judicial cooperation in criminal matters, the finalisation of ongoing Union judicial and administrative procedures at the end of the period and possible new procedures concerning facts arising before the end of the period, consistent application and interpretation of the Agreement by both the Union and the UK and dispute settlement.”

The Ireland/Northern Ireland border issue is to be settled by a protocol setting out arrangements. On the protocol, the joint-report states:

“On Northern Ireland and Ireland, scoping work has continued on the full range of provisions in the Protocol, in the context of both parties’ commitment to the Belfast or Good Friday Agreement in all its parts. Both Parties recognise that the backstop on Ireland/Northern Ireland requires provisions in relation to customs and regulatory alignment in line with paragraph 49 of the Joint Report of December 2017. Discussions were held on the UK proposal of 7 June which aims at addressing the customs aspects of the backstop. The finalised results of the North-South mapping exercise on cross border cooperation will be published shortly. The Parties are committed to accelerating work on the outstanding areas, noting that both Parties agree the scope of the draft Protocol reflects the issues that require legally operative agreed text in the Withdrawal Agreement.”

The last edition of the Weekly Update provided details of the UK’s proposals on the backstop.

The publication of the joint-report suggests little progress has been made in the negotiations since March, particularly in relation to the Ireland/Northern Ireland

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backstop. This perspective has been reinforced by the leak of the draft European Council conclusions for next week’s meeting. The key section in relation to Brexit (shown below) expresses concern at the pace of negotiations and encourages all Member States (EU27) to prepare for all outcomes. This can be interpreted as a warning that a no deal Brexit is increasingly possible unless significant progress is made in the Withdrawal negotiations ahead of the October European Council.

1. In light of the state of play presented by the Union negotiator, the European Council welcomes the further progress made on parts of the legal text of the Withdrawal Agreement.

2. The European Council expresses its concern that no substantial progress has yet been achieved on agreeing a backstop solution for Ireland/Northern Ireland. It recalls the commitments undertaken by the UK in this respect in December 2017 and March 2018, and insists on the need for intensified efforts so that the Withdrawal Agreement, including its provisions on transition, can be concluded as soon as possible in order to come into effect on the date of withdrawal. It recalls that negotiations can only progress as long as all commitments undertaken so far are respected in full.

3. Work must also be accelerated with a view to preparing a political declaration on the framework for the future relationship. This requires further clarity from the UK as regards its position on the future relationship. The European Council reconfirms its position set out in the guidelines March 2018.

4. The European Council renews its call upon Member States and all stakeholders to step up their work on preparedness at all levels for all outcomes.

On 19 June, the European Commission’s Chief Brexit negotiator, Michel Barnier made a speech in Vienna at the European Union Agency for Fundamental Rights which he used to address post Brexit co-operation between the EU and the UK in the area of security and justice. Barnier told his audience:

“After Brexit, it is clear that we will need to cooperate strongly with the UK in these areas.

But, we will need to cooperate on a different basis. That is a challenge in itself.

The UK has decided to leave the EU, its institutions, structures and safeguards. It will be a third country outside Schengen and outside the EU's legal order. This is a fact.

Facts have consequences.

The UK's recent paper on security, law enforcement and criminal justice expresses a desire to keep the benefits of EU membership.

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This is understandable when you look at what we have achieved together as a Union in internal security.”

Together, on the basis of the European Arrest Warrant, we extradite wanted criminals or suspects – including own nationals – from one Member State to another.

Together, we set up Europol to support Member States law enforcement authorities. Europol pools information from across the EU and helps fight cross-border crime.

Together, with our Schengen partners such as Norway and Switzerland, we operate the Schengen Information System. It was consulted over 5 billion times last year to monitor who is crossing Schengen borders. It helped to capture dangerous criminals and terrorists. It also helped to retrieve not only stolen cars, but also missing people and missing children.

Together, under the European Investigation Order, we collect evidence from each other and exchange it swiftly in order to bring criminals to justice.

Together, we execute each other's judicial decisions in real time, for instance by confiscating criminals' property or freezing their assets.”

On the future relationship with the UK, Barnier set out four pillars on which the EU wished to build the relationship:

Effective exchange of information Operational cooperation between law enforcement authorities Judicial cooperation in criminal matters. Measures against money laundering and terrorist financing.

The section of the speech which received most publicity in the UK related to judicial cooperation in criminal matters and future participation in the European Arrest Warrant. Barnier stressed that future UK participation in the European Arrest Warrant would be possible but it would be dependent on the UK Government moving its red lines on the future relationship with the EU:

“The European Arrest Warrant is linked to the free movement of people. It works well because it is based on mutual trust between Member States.

This trust is underpinned by:

shared respect for fundamental rights as set out in the Charter of Fundamental Rights;

by certainty that other Member States enforce and apply the rules the same way, under the jurisdiction of the European Court of Justice;

and by the concept of EU citizenship, which allows Member States to lift the constitutional ban on the extradition of their own nationals.

Yet today we know that the UK is not ready to accept the free movement of people, the jurisdiction of the Court and the Charter of Fundamental Rights – for the Charter, this was confirmed last week by the House of Commons.

This means that the UK cannot take part in the European Arrest Warrant.

Culture, Tourism, Europe and External Relations Committee ǀ SPICe: Brexit update paper

This does not mean that we cannot work together on extradition.

We are ready to build on the existing Council of Europe convention, to which all Member States have signed up.”

With the withdrawal negotiations making little progress due to the Ireland/Northern Ireland backstop issue, RTE’s Europe Editor Tony Connelly wrote a view from Ireland last week suggesting a backstop deal is becoming more remote.

Connelly suggests that whilst the UK Government struggles to find a position which can unite the governing party, the EU27 watch on with growing frustration:

“The view from Brussels and Dublin is that Westminster is quite simply a parallel universe.

If anything the past ten days have made things a lot worse. One senior EU official has privately confided that we could be heading for a "cataclysmic" outcome.

In a nutshell, Dublin is angry that two years after the referendum, 15 months after Article 50 was triggered, six months since December’s Joint Report, three months since Theresa May promised the European Council President Donald Tusk that she was committed to a legally operable backstop, and with only three-and-a-half months before the October deadline, London has tossed a half-baked solution on the table.

"The view in Dublin," says one source, "is that London is saying, ‘well, we’ll put something on the table. That’s enough for now’."

The European Commission Task Force is also dismayed that Britain is engaged in what it regards as a disingenuous attempt to twist the backstop into a UK-wide solution.

Likewise, member states are deeply concerned that the UK manoeuvre - staying in the customs union and single market for goods for a temporary period - is a devious bid for an "end state", one which raises enormously troubling and complex questions.

Most of all, the depths which Theresa May has had to plumb just to survive week to week is not seen as a sign of endurance. Rather, it will render the prospect of a legally operable backstop, one which satisfies Ireland’s needs, more remote than ever.”

Connelly suggests that hopes of progress ahead of the European Council on any of the substantive withdrawal issues are non-existent. In terms of a way of making progress towards agreeing terms on the backstop, Connelly suggests the EU27 may focus on the transitional arrangements not having been formally signed off until a withdrawal agreement is in place:

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“The view in both Dublin and Brussels is that the UK was happy to bank the transition in March, but not so willing to abide by the Joint Report and the letter to Donald Tusk. The slack Dublin has been giving Theresa May over her domestic travails is starting to run out.

"It’s not a serious engagement," says one senior figure close to the negotiations. "We all know why she’s struggling to do it. But that’s neither here nor there. They can’t on the one hand say, we’ve got to get all this done within a few weeks, but would you please bear with us as we try to figure out our own internal politics."

So what options are open?

"Is it one giant finger wag?" asks one Government source. "Or a more serious situation?"

A threat to suspend negotiations is seen as counterproductive for the simple reason that the EU is trying to get sufficient progress, and progress would probably grind to a halt if a veto was wielded.

The more likely option is to put the transition back in the spotlight.

"The British put so much effort into securing the impression that the transition was agreed in March," says the source, "that if that starts to look suspect now, that has to cause them difficulty"

Connelly finishes his piece by suggesting that with respect to Ireland and Northern Ireland, something somewhere has to give:

“"There is a big risk that this will spoil everything at the end," says one senior official. We must not underestimate that. The Brits are now so dug in on the fact that they cannot do anything specifically for Northern Ireland."

According to the laws of gravity, something will surely have to give.

"To me," says a senior EU figure, "there will have to be a crisis in the UK, or a crisis between the UK and the EU."

Another official added: "The essential question is, will Ireland be thrown under a bus? I don’t believe so."

Writing in the Financial Times (£), Charles Grant, Director of the Centre for European Reform has speculated that the future UK-EU relationship might involve agreement of the UK’s continued participation in the single market for goods (but not services). Grant wrote that only participation in the customs union and the single market in goods can completely remove the need for border controls between Ireland and Northern Ireland.

Whilst Grant accepts that at this stage the EU would not be prepared to accept such an arrangement, and that if it were to be acceptable it’d require UK compliance with EU rules and regulations. If this were to be agreeable to the UK Government, Grant

Culture, Tourism, Europe and External Relations Committee ǀ SPICe: Brexit update paper

speculates that pressure might be placed on the EU negotiators by some EU27 governments who are keen to agree such an arrangement such as those with “significant manufacturing ties to the UK”.

For now, both Germany and France hold the Commission view that the UK cannot cherry pick and that the benefits of the single market are indivisible. In addition, the UK would be unlikely to win many allies unless its red lines on issues such as ECJ jurisdiction are softened, however, if progress in these areas can be made, Grant speculates that:

“A fight back may be approaching in both Britain and other EU countries from those who are prepared to compromise on legal principles and wish to maximise future trade.”

On 20 June, the Scottish Government published a consultation on proposals for managing the transition to a new rural support policy to replace the EU’s Common Agricultural Policy.

The document says:

“Our proposals seek to generate discussion within Scotland’s farming and crofting communities. They aim to create a transition period of up to five years as we move from the current funding and support approaches in the existing Direct Payments and Scottish Rural Development Programme (SRDP) to developing and implementing a new rural policy framework for Scotland. Should resources allow, that period might also usefully enable the testing and piloting of new approaches.”

On 20 June, the European Union (Withdrawal) Bill completed its parliamentary process and it now awaits Royal Assent.

The Bill had its first reading in the House of Commons on 13 July 2017. Significant amendments were made at Report Stage (5th sitting, 2 May) in the House of Lords as to how the Bill deals with devolution in respect of the competencies that will be repatriated from the European Union (see Brexit Update 24 May).

The final “ping pong” stage started in the Commons on 12-13 July 2018 and ended on 20 July 2018. The next section of this Update describes proceedings in relation to the “meaningful vote” and devolution clauses.

At Report Stage, the Lords made changes to the European Union (Withdrawal) Bill to provide a legal framework for the parliamentary process of approving the Withdrawal Agreement and, in various “no deal” scenarios, a new parliamentary power to issue a direction to the UK government “in relation to the negotiations” under Article 50.

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During the first Commons’ “ping pong” session, UK Government amendments to replace the Lords changes were agreed. These changes required the UK Government to bring a vote to ratify the withdrawal agreement, but did not require a parliamentary vote in the “no deal” scenarios. An amendment from Dominic Grieve MP was tabled which did address the “no deal” scenarios, but this was not put to a vote while negotiations on a compromise continued.

The Bill then went back to the House of Lords on 18 June. Amendments from the UK Government and Viscount Hailsham were tabled. Both amendments provided for parliamentary votes in the “no deal” scenarios and both were agreed to (Viscount Hailsham’s by division).

The Bill returned to the Common on 20 June. Debate centred around whether the “no deal” scenario vote would be on an amendable or unamendable motion (see House of Common Library Insight blogpost for analysis and Hansard for the Commons debate). The only division was on the question of whether to agree to the Viscount Hailsham amendment. The result of this division was to remove the Viscount Hailsham amendment from the Bill.

Finally, the Bill went back to the Lords that evening. After debate (see Hansard) the House of Lords agreed to the changes made in the Commons.

LSE Brexit Blog summarises the debate in sticky notes while the UK Constitutional Law Association covers the issue in greater depth with a blogpost from Alison Young, Professor of Public Law at University of Cambridge: European Union (Withdrawal) Bill and the Meaningful Vote: Constitutional Inconsistency or Constitutional Inconvenience?

During the Commons’ Consideration of Lords Amendments on 12 June, there was debate and vote on the Lords amendments in respect of devolution and the repatriated competencies.

The debate is available in Hansard and on parliament.tv (this link cuts to the start of debate on devolution issues).

In line with the Programme Order (the timetabling motion) the proceedings were stopped after the six-hour cut off following 18 minutes of substantive debate on the devolution issues. There was then a vote on whether to agree to a group of all the remaining Lords amendments on the agenda but not yet voted on. This group included the Lords amendments in respect of devolution and the resulting division was:

Division No. 177 Ayes: 321 (Tellers: Paul Maynard, Stuart Andrew). Noes: 40 (Tellers: Marion Fellows, David Linden). Question agreed to.

This means that the UK government’s amended proposal for dealing with repatriated competences in devolved areas (as agreed with the Welsh government, but not the Scottish Government) formed part of the Withdrawal Bill and was not revisited during the remainder of the “ping pong” process.

Culture, Tourism, Europe and External Relations Committee ǀ SPICe: Brexit update paper

An emergency debate on the Sewel Convention took place on 18 June. The Sewel Convention is the self-denying ordinance of the UK Parliament that it will "not normally legislate with regard to devolved matters without the consent of" the affected devolved legislature. The debate is available on parliament.tv and in Hansard here.

On 19 June, Michael Russell MSP, the Minister for UK Negotiations on Scotland's Place in Europe, made a ministerial statement to the Scottish Parliament, on the Sewel Convention, the Minister told Parliament:

“We will therefore seek urgent discussions with the UK Government, first of all on how to protect Sewel before introducing any other legislative consent motions to this chamber.

… It is therefore time to look again at how we can embed the requirement for the Scottish Parliament’s consent in law. If legislation at Westminster is required to give the people of Scotland the assurance that they need on that, we would expect—and demand—that that would swiftly follow. While we are at it, we must also look at new robust intergovernmental processes—for example, by placing the joint ministerial committee structure in agreed legislation, with enforceable rules, including rules on dispute resolution.”

On 18 June, the Lords agreed to all the Commons changes made on 12-13 June (as described in Brexit Update 15 June 2018). The only UK Government defeat was that described above on the “meaningful vote”.

Some further changes, as proposed by the UK Government and in addition to those described in the sections above, were also agreed by the Lords on 18 June. These were in relation to subordinate legislation procedure and an amendment to remove the “18 or over” age restriction in relation to the family unity clause (see Brexit Update 15 June 2018).

The European Parliament’s Brexit coordinator Guy Verhofstadt MEP was in the UK Parliament on 20 June and appeared in front of the Exiting the European Union Committee in the morning and the Home Affairs Committee in the afternoon.

On the same day, the de facto deputy Prime Minister David Lidington MP appeared before the Public Administration and Constitutional Affairs Committee on the future of devolution in the UK after leaving the EU.

A backbench debate on the ‘Future of the Erasmus+ Scheme after 2020’ will take place in the House of Commons on 21 June. Ahead of the debate the House of Commons Library published a briefing.

The following is a snapshot of Westminster’s committee activity on Brexit that may be of interest to members.

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Exiting the European Union Committee

On 20 June, the committee heard from Guy Verhofstadt MEP, Brexit Coordinator and Chair of the European Parliament Brexit Steering Group on the European Parliament's role in UK-EU negotiations and what the European Parliament's priorities.

Scottish Affairs Committee

The committee has opened inquiries on:

Scotland’s priorities for future trade relations with the EU and related questions (accepting written submissions until the end of June 2018)

The future of the oil and gas industry On 25 June the committee will hear from industry witnesses.

Immigration and Scotland’s economy

Home Affairs Committee

On 20 June the committee heard form Guy Verhofstadt, Brexit Coordinator and Chair, Brexit Steering Group, European Parliament on the options available for future immigration arrangements between the UK and the EU.

Environmental Audit Committee

On 19 June the committee heard evidence on the UK Government’s proposals for a new environmental watchdog from Lord Deben, Chair of the Committee on Climate Change, Baroness Brown of Cambridge, Chair of the Committee on Climate Change Adaptation Sub-Committee and Sir Amyas Morse, Comptroller and Auditor General of the National Audit Office.

Public Administration and Constitutional Affairs Committee

On 20 June the committee heard from the de facto deputy Prime Minister David Lidington MP and Lucy Smith, Director General of UK Governance Group on the UK Government's position on the future of devolution in the UK after leaving the EU. This form part of the committee’s open inquiry on Devolution and Exiting the EU.

Science and Technology Committee

The committee held an evidence session on an immigration system that works for science and innovation on 19 June. On 26 June the committee will hear from the Minister for Defence Procurement, Head of Cyber and Space Policy at the Ministry of Defence and the Director of the UK Space Agency on the Galileo global navigation satellite system.

Culture, Tourism, Europe and External Relations Committee ǀ SPICe: Brexit update paper

EU Select Committee

The committee has ongoing inquiries on UK-EU relations and negotiations, and published a report on UK-EU relations after Brexit on 8 June.

On 18 June, the committee’s heard from Robin Walker MP, Parliamentary Under Secretary of State at the Department for Exiting the European Union on UK-Irish relations on the progress of Brexit negotiations in relation to Northern Ireland and Ireland, Gibraltar, the Overseas Territories and the Crown Dependencies.

The committee also operates various sub-committees. The EU Justice Sub-Committee heard from Home Secretary, Sajid Javid on citizen rights after Brexit, and the EU Energy and Environment Sub-Committee will hear from witnesses on 27 June on the future of REACH regulations post-Brexit.