Draft EU withdrawal bill sets out Irish border 'fall-back'

Out-Law News | 07 Mar 2018 | 11:52 am | 2 min. read

The EU has published the draft text of a withdrawal agreement setting out the potential terms of the UK's departure from the EU, including a "fall-back" to avoid a hard border with Ireland in the event that agreement on a different arrangement cannot be reached.

The draft document (119-page / 980KB PDF) "translates into legal terms" the joint progress announcement between the UK and EU of December 2017. However, UK politicians have rejected the proposed solution to the problems raised by the land border between the EU and UK in Northern Ireland, which Arlene Foster of the DUP has described as "constitutionally unacceptable".

The 119-page draft agreement is split into six parts: introductory provisions; citizens' rights; other separation issues such as goods placed on the market before the withdrawal date; the financial settlement; transitional arrangements; and institutional provisions. It anticipates that post-Brexit transitional arrangements will come to an end on the EU's preferred date of 31 December 2020.

The UK is due to publish its formal response to the text on Monday, according to press reports.

Brexit advisory expert Guy Lougher of Pinsent Masons, the law firm behind Out-Law.com, said that the UK government would "negotiate hard" on the draft text.

"The length and detail of the draft withdrawal agreement is a small taster for just how complicated and lengthy would be any draft agreement trying to cover the detail of the UK's future trading relationship with the EU," he said. "That is why time is desperately short if any agreement is to be concluded before October 2018, when it is currently anticipated that proceedings will move from the negotiation to the ratification phase."

"Unsurprisingly, the issue of Ireland and the border with Northern Ireland features large, reflecting the fact that the December 2017 arrangement between the EU and UK essentially fudged the issue. During prime minister's questions this week Theresa May stated that the draft agreement is unacceptable in its provisions for Ireland, so there is clearly much work still to be done on the issue. It will be very challenging to try and achieve a solution acceptable to all participants," he said.

December's joint statement between the UK and EU committed the UK to "full alignment" with EU customs rules in Northern Ireland and "no new regulatory barriers" between Northern Ireland and the rest of the UK "in the absence of agreed solutions". The joint statement also provided for "reciprocal protection" for the rights of EU citizens living in the UK and UK citizens living in the EU on the date of the UK's withdrawal from the EU, as well as their family members; and confirmed that both parties had agreed a "methodology" for the final financial settlement.

A "protocol" on the Ireland/Northern Ireland relationship included in the draft agreement proposes the creation of a "common regulatory area" between the EU and Northern Ireland, which would incorporate EU rules on customs and free movement of goods, agriculture and fisheries, environmental protection, the Single Electricity Market and state aid. However, the inclusion of this protocol should not be seen to "prejudge discussions" on other options, according to the European Commission.