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May speech 'concrete step forward' on Brexit, but Ireland issues remain outstanding, says expert

Out-Law News | 25 Sep 2017 | 10:27 am | 3 min. read

The latest speech by UK prime minister Theresa May contains some "concrete steps forward" in the UK's negotiations with the EU regarding its exit from the trading bloc, an expert has said.

However, the speech omitted any proposals to address the deadlock between the two parties on border controls between the UK and the Republic of Ireland, one of three issues on which progress must be made before negotiations can more into a second phase, according to Guy Lougher of Pinsent Masons, the law firm behind Out-Law.com.

The speech was an attempt to "break the current logjam" in negotiations between the two parties and contained concrete proposals on two of the three major issues identified by the EU, Lougher said. May is proposing a two-year transitional 'implementation' period, during which the UK will honour its funding commitments to the EU; as well as a guarantee that the rights of EU citizens in the UK will be enshrined in the final withdrawal agreement.

Without any concessions on Ireland, though, it was very possible that the EU would "maintain its view that there has not been enough ground conceded by the UK to justify moving negotiations into the second phase", Lougher said.

"The key question on Ireland is how to reconcile the EU's need for adequate controls – especially on immigration, customs, and plant and animal standards - with avoiding the reintroduction of a 'hard' border," he said. "And it remains to be seen whether the EU considers the offer of a financial contribution in return for a transitional arrangement is sufficient progress in lieu of a clear offer to pay an 'exit' bill," he said.

"Nevertheless, the UK's proposals on the transitional period, the contribution to the EU's budget, the role of future [Court of Justice of the EU] case law, and a new adjudication mechanism in relation to the Withdrawal Treaty represent concrete steps forward," he said.

In her speech, May said that the UK was "moving through a new and critical period" in its relationship with the EU, with the intention of becoming the EU's "strongest friend and partner". She said that negotiators from both sides shared "a profound sense of responsibility to make this change work smoothly and sensibly, not just for people today but for the next generation who will inherit the world we leave them".

May confirmed that the UK would cease to be a member of the EU on 29 March 2019, at the end of the two-year negotiating period provided for in the Treaty on European Union. However, she acknowledged that neither party would be "in a position to implement smoothly many of the detailed arrangements that will underpin" their future economic and trading relationship.

For this reason, the UK would seek a "strictly time-limited" transitional period, during which the UK would continue to have access to EU markets on current terms. During this period, the UK would continue to play a role in EU security arrangements and EU citizens would continue to be able to come and live and work in the UK. However, a "registration system" would operate during the transitional period in "preparation" for a future immigration regime.

The UK would honour its financial commitments to the EU during the period of its membership, but was also keen to continue to work together on joint policies and programmes "which are greatly to the UK and the EU's joint advantage" in future. In doing so, it would "make an ongoing contribution to cover our fair share of the costs involved", May said.

May said that one of her "first goals" as part of the negotiations was to "ensure that [EU citizens in the UK] can carry on living your lives as before". To address concerns that the rights of EU citizens in the UK and UK citizens overseas may diverge over time, the terms of the final agreement would be "incorporate[d] ... fully into UK law" so that the UK courts would be able to refer directly to it.

UK courts should also be able to "take into account the judgments of the European Court of Justice with a view to ensuring consistent interpretation" where there was uncertainty around underlying EU law, she said.

May said that the UK's future economic partnership with the EU should not be modelled on either membership of the European Economic Area or a third country free trade agreement. This would benefit neither party, given that the UK was the EU's largest trading partner and "a market of considerable importance for many businesses and jobs across the continent", she said.

"Let us not seek merely to adopt a model already enjoyed by other countries," she said. "Instead let us be creative as well as practical in designing an ambitious economic partnership which respects the freedoms and principles of the EU, and the wishes of the British people."