The Brexit Negotiations (2): What Is The UK's Opening Position?

This is our second Alert on the Brexit negotiation1, which started on Monday, June 19, 2017. Having outlined the EU's opening position, we now turn to that of the United Kingdom. The main source used is the UK Government's "White Paper" entitled "The United Kingdom's exit from and new partnership with the European Union", which was presented to the UK Parliament in February 2017.2 We also set out additional considerations based on the result of the recent UK general election, which may affect the extent to which the Government is able to pursue the approach outlined in the White Paper.

The White Paper

The White Paper is a 75-page document, which is in many respects aspirational, setting out what the UK would like to achieve and with a significant emphasis on trade. The theme is one of a "Global Britain", seeking partnership with the EU.

Interestingly, the UK emphasises that it sees the negotiations as unusual because the UK starts with the same rules as in the EU: "Unlike most negotiations, these talks will not be about bringing together two divergent systems, but about managing the continued cooperation of the UK and the EU. The focus will not be about removing existing barriers or questioning certain protections but about ensuring new barriers do not arise".3

The White Paper has 12 sections4, following "12 principles" which the UK states will guide its approach.

The most important points are as follows:

1. Providing certainty and clarity.

   The UK stated that it would introduce "the Great Repeal Bill" to convert the body of existing EU law into domestic law. This Bill was to enable the preservation of the rights and obligations that already exist in the UK under EU law and provide a basis for future changes in UK law. Therefore, existing EU law will remain part of UK law on the day the UK leaves the EU, with adjustments as required.5 Material changes, if any, would come later.

2. Taking control of UK laws.

   First, the White Paper emphasises that the sovereignty of Parliament is a fundamental principle of the UK constitution. After the UK's exit, the UK's laws will be made in London (and regional assemblies in Edinburgh, Cardiff and Belfast).

   Second, the White Paper explains that the UK will bring an end to the jurisdiction of the Court of Justice of the European Union ("CJEU") in the UK. Nevertheless, it is stressed that the UK Government will continue to honour the UK's international commitments and comply with international law.

   Third, the UK Government advocates the adoption of suitable "dispute resolution mechanisms" for the future relationship with the EU. The UK Government cites as examples the systems in the EU-Canada Comprehensive Economic and Trade Agreement ("CETA")6, or the Free Trade Agreement between the EU and South Korea7, while noting that whatever may be agreed will depend on the specific negotiations between the UK and the EU.

3. Protecting ties with Ireland and maintaining the "Common Travel Area".

   First, the White Paper emphasises the importance of trade between the UK and Ireland (over £43 billion), and observes that many people commute regularly across the borders between Northern Ireland and Ireland (some 14,000). The Government states that it wants to protect the special rights for Irish and Northern Irish citizens in existing agreements and to maintain the ability to move freely between the UK and Ireland, notably through the "Common Travel Area" ("CTA"). (This is a pre-existing special travel zone for the movement of people between the UK, Ireland, the Isle of Man and the Channel Islands.)

   Second, the UK Government states that it has an explicit objective on EU exit to ensure that full account is taken of the particular work with the Irish Government and the circumstances of Northern Ireland, safeguarding business interests, cooperation on law enforcement and security agencies.

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