Article 50, Brussels, Michel Barnier, Negotiating, Theresa May

You Can’t Always Get What You Want #Brexit

Written on Sunday December 17, 2017

Hammond BoJoOn Friday (Dec 15), the EU Council agreed that “sufficient progress” had been made to date to allow the exit talks between the EU and the UK to be expanded to include discussions on the “framework” of the future relationship between the UK and the EU.

This BEERG Brexit Briefing argues that, just as the EU dictated terms in phase 1, it will continue to dictate terms as the process continues because both the dynamics of the process and the hard economic realities favour the EU.

Why? Because as the Dubliners of my youth would have put it: “Beggars can’t be choosers”. In EU terms, it is the UK, and not the EU, that is the “demandeur” and demandeurs “can’t always get what they want”.

Remember, the UK decided to leave the EU. It was not asked to leave nor was it expelled. Generally in life you cannot unilaterally decide to leave a job, business organisation or sporting association, and then try to insist on negotiating the terms under which you will leave. Leave means leave. Leave does not mean “lets compromise and meet in the middle”.

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Article 50, Brexit, Brussels, Juncker, Michel Barnier, Negotiating, Theresa May

Not so Much a Marathon… More a Triathlon #Brexit

Written on Friday Dec 8th:

may junckerEarly this morning, Friday, December 8, the EU and the UK announced that they had reached terms on the three Article 50 issues which cover: the UK’s ongoing financial obligations to the EU; the rights of EU citizens in the UK; and issues relating to Ireland.

The EU Commission said that the agreement reached was sufficient to allow it to recommend to the EU Council (heads of government) next week that the talks proceed to phase 2, namely discussions on the “framework” of the UK’s future relationship with the EU.

Reading the various documents that have been released today it is hard not to come to the conclusion that the UK appears to have accepted the EU’s terms on all three issue. Outstanding payments from the UK to the EU are not conditional on any sort of future trade deal and will continue long into the future as commitments made by the EU28, of which the UK was a part, fall due. On citizens’ rights the European Court will have a role in defending the rights of EU citizens resident in the UK for eight years after Brexit, a political lifetime. On Ireland, the default position is no hard border.

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Article 50, Brexit, David Davis, GDPR, Irish border, Michel Barnier, Theresa May

Still a (very) Long and Winding #Brexit Road Ahead

This Briefing was written on 3rd Dec 2017

7EEC154E-1C26-4BA9-BD46-6E7E326308E2As we write this Briefing, early on Sunday Dec 3, it would appear that the EU and the UK are moving towards a position where the EU Council (heads of government) at its next meeting on December 14/15 will be able to declare “sufficient progress” in the Article 50 discussions to date to allow them to move on to the next stage, which will focus on the “framework” of the UK’s future relationship with the EU.

However, as one diplomat put it, until we see what has been agreed “on paper” rather than “in the papers” it is wise to withhold judgement. But it does seem that the logjam on citizens’ rights has been broken by the UK conceding an ongoing role for the Court of Justice of the European Union (CJEU) in upholding the rights of EU citizens resident in the UK after Brexit.

The UK has also agreed to meet all its outstanding financial obligations to the EU, estimated at around €50 billion net, while accepting that this money does not buy a future trade deal of any type, even if, for the moment, UK cabinet ministers are not exactly making that clear to MPs in the House of Commons. Continue reading

Article 50, Brexit, British Government, Brussels, Divorce, Northern Ireland

#Brexit: A Moment of Truth Fast Approaching

Written on Sunday Nov 26th.

Brexit4After we wrote our weekly Brexit Briefing last Friday, the news broke that the European Union (EU) had given the UK until Monday, December 4, to table revised and meaningful proposals on the three Article 50 issues, the rights of citizens, the “Irish question” and meeting financial obligations if it wishes the EU27 to agree at their December summit to move the talks to discussing the future relationship between the two parties. As Politico noted:

European Council President Donald Tusk set an “absolute deadline” of December 4 for the U.K. to submit a revised offer on the Brexit bill and a credible solution for the Irish border, telling U.K. Prime Minister Theresa May on Friday that otherwise it would not be possible to move on to the second phase of talks, a senior EU official said.

The official said May had accepted the timeframe, and that Tusk warned her if London misses the deadline, the European Council would not be able to declare “sufficient progress” at its December summit.

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Brexit, British Government, Brussels, Irish border, Northern Ireland

Break, for the Border #Brexit

This blogpost was written on Nov 24th, 2017

welcometoniThe week opened with the UK cabinet agreeing that it would offer more money to the EU to settle its financial obligation triggered by its decision to leave but only on condition that the EU would agree to now move to talks about the future relationship and that the money would only be paid over when a trade deal was actually signed. This is an offer that, by Friday, even the ultra-Brexit supporting newspaper, the Telegraph, was admitting would be rejected by the EU.

The week closed with howls of rage from British politicians, often Brexit supporting, when the EU announced that UK cities were to be excluded from consideration from the prized European Capitals of Culture competition for 2023. An example of the EU punishing the UK, Brexiters argued, apparently ignorant of the rules that only cities from EU, EEA or applicant countries can be so nominated. Why would the EU subsidise cultural activities in a city in a country that had left the EU?

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Brexit, Irish border, Michel Barnier, Northern Ireland

Is the UK’s #Brexit Cheque really in the post…?

This article was written on Nov 12th 2017.

13589652_f520It is becoming increasingly difficult to see Brexit ending well. Indeed, the process could hit the wall within weeks. Why? The complete and utter inability of the UK government to agree what it wants out of Brexit and, as a result, how to conduct the exit process. This should not be surprising given the closeness of the Brexit referendum vote: 52% to 48%, with the 52% only representing 37% of the total electorate.

It would appear that, when it comes to Brexit, the UK electorate roughly breaks down into three, though it is impossible to say exactly what weight to give to each of the three.

1. First, there are those who are totally opposed to Brexit and want to see the decision reversed.

2. At the opposite end of the spectrum are those who want, in the words of arch-Brexiteers, Boris Johnson and Michael Gove, the UK to become “a fully independent self-governing country”, irrespective it would seem, of the costs involved.

3. The third bloc, probably where most pragmatic businesses people are to be found, believe that if Brexit is to go ahead, then the economic disruption should be kept to a minimum, preferable through continued membership of the EU’s single market and the customs union.

On balance, and many of the polls show this, there is probably a majority in the UK who support leaving the political dimension of the EU but remaining within its economic dimension. The problem is that, what we might call the “economic remainers”, are split between the main political parties while the “Britain First” group of Johnson and Gove effectively control the Conservative Party, and thus the government.

Their control is such that within the past few days, the prime minister, Theresa May, has announced that she will bring forward an amendment next week to the European Union Withdrawal Bill which will embed the UK’s decision to leave the European Union at 12:00 midnight, Brussels time, on March 29th, 2019 in law. Irrespective of what happens between now and then.

The fact that there is no internal agreement within the UK as to the meaning of Brexit makes, as we note above, managing the process difficult, if not impossible. How do you get to where you want to go when you can’t decide on your preferred destination?

The first phase in the exit process is the Article 50 negotiations. The essence of Article 50 is found in the following language:

A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union.

The EU has identified three issues that must be resolved during the A50 discussion with the UK before talks can move to the issue of the “framework for its future relationship with the Union”. They are: settlement of the UK’s outstanding financial commitments with the EU; the rights of EU citizens in the UK and UK citizens in the EU; and issues relating to the island of Ireland, where the only land border between the EU and the UK will exist, post-Brexit.

When it comes to the settlements of the UK’s outstanding financial commitments to the EU the two sides are approaching it from mutually incompatible positions. The EU sees it as a simply a matter of the UK paying what it owes, a settling of accounts. Once outstanding accounts are settled then what happens in the future can be discussed. There can be no future discussion until all outstanding bills are fixed, or at least an agreement is reached on how the bills will be fixed.

The UK see it as a negotiation. We will pay what you say we owe provided we get future benefits for our money. There must be a quid-pro-quo. The UK has made an initial offer of €20 billion and now says that it will not increase that figure until the EU agrees to trade talks. Even then, it would find it politically impossible to increase the figure without an actual trade deal to show for it.

This was the week that EU patience with what it sees as UK gameplaying finally snapped. At a press conference last Friday, after what can only be described as two days on non-negotiations, the EU’s chief negotiator, Michael Barnier, said that the UK has two weeks to make a serious proposal on its outstanding financial commitments, put at roughly €60 billion by the EU, or else he would not be able to report “sufficient progress” to the heads of government of the remaining EU27 member states in December to allow talks to proceed to what the UK insists on calling “trade” but which Article 50 refers to as the “framework for its future relationship with the Union”. A big difference in understanding as to the substance of the next phase of discussions, if the process ever gets to that point.

As of today, it seems extremely unlikely that there is any sort of political consensus with the UK cabinet to do what Barnier asks. On the contrary, in a complete misreading of the EU’s position, there is a belief on the part of many of the “Britain First” grouping that the EU is so desperate for the UK’s money that it will fold and give the UK the trade terms it wants if only the UK would walk away from the negotiating table. David Davis appeared to confirm this when he said in a TV interview Sunday that the EU should not to expect a figure or a formula by which the UK’s obligations would be calculated.

Even if a solution could be found on the money, this week also saw what is probably the most intractable of the three issues, borders on the island of Ireland, take centre stage. A leaked document on Thursday last revealed that Ireland and the EU were demanding that Northern Ireland remain in the single market and the customs union to avoid a hard border between the two parts of the island, a demand immediately rejected by the UK government, which is dependent for its survival on the votes of the Democratic Unionist Party from Northern Ireland.

The UK accepts that there should be no return to a hard border in Ireland, which would put the peace process at enormous risk. But it can offer no concrete solutions as to how this can be done outside the customs union and the single market. “We’ll find other ways around that”, was all that the UK’s Brexit negotiator, David Davis, could offer when asked in the same TV program mentioned above.

However, the reality is that there is no way around it. If Northern Ireland is outside the customs union and the single market then a hard border is inevitable if the EU is to protect the integrity of its internal market from goods being smuggled from Northern Ireland into Ireland, and onwards into the rest of the EU. Magical thinking and as yet undiscovered technological solutions are not going to solve the problem.

Conservative politicians and sympathetic commentators were quick to assert that the “newly hardened” Irish position, as they deemed it, was the result of Sin Fein/IRA pressure on the Irish government. No such thing.

This has been the Irish position all along. It is just that, as with other matters, the UK government has not been paying attention to what the Irish have being saying, just as they have not been paying attention to what the European Parliament is saying on citizens’ rights.

The Irish don’t have a veto on the final Article 50 agreement, if ever one is reached. But they do have a veto on whether or not “sufficient progress” has been made in the Article 50 discussions to allow the process to move on to the discuss the “future framework”.

They are not about to throw that leverage away.

The Irish position is simple: with its extreme definition of what Brexit means, out of the EU, the single market and the customs union, the UK created the problem. If it wants the process to move forward, it had better solve it now.

Post-dated commitments that it will be solved in future trade discussions will not be accepted. Like post-dated cheques, post-dated commitments too often bounce.

Indeed, that might be a useful metaphor for where we are. The EU (and Ireland) wants guaranteed, certified cheques now if the process is to progress. But all the UK is offering is post-dated cheques, with the figures to be filled in a later date.

Brexit, Data Protection, Data transfers, GDPR, Theresa May

Another Brick in a #Data Wall? #Brexit #EUDataP

This article was written on Nov 4th, 2017

GDPR readyUnder the BEERG law of unintended consequences; the unintended outworking of an action or event is often far more significant or impactful than the intended one. And so, while the UK media obsessed on sex scandals and a cabinet resignation, the Brexit process crawled along with the announcement of another round of EU/UK talks next week and a vote in parliament forcing the government to publish 58 sectoral studies on the economic impact of Brexit.

Meanwhile, the most important Brexit consequence of the week may turn out to be an obscure clause in the Second Schedule of the Data Protection Bill, (lines 39 – 45 on page 125) which is currently being examined line-by-line in the House of Lords.

In an article in politics.co.uk last Friday, November 3, Martha Spurrier director of Liberty, an organisation which campaigns for civil liberties and human rights in the UK, drew attention to a little noticed provision in the Bill, Schedule 2, Part 1, Section 4.1 – Immigration, which reads:

The listed GDPR provisions do not apply to personal data processed for any of the following purposes—
    (a) the maintenance of effective immigration control, or
    (b) the investigation or detection of activities that would undermine the maintenance          of effective immigration control,
to the extent that the application of those provisions would be likely to prejudice any of the matters mentioned in paragraphs (a) and (b).

While, as Spurrier notes, the intent of the Bill is as the government puts to “empower people to take control of their data” she says that “it will strip millions of their rights.”
As Spurrier writes, contrary to the stated intentions of the legislation, the real impact of Schedule 2.4 means that:

…any government agency processing data for immigration purposes will be free of those pesky data protection obligations we’ve developed through successive Acts of parliament – and signed up to through the EU’s General Data Protection

In practice, the exemption will create a two-tier data rights regime. When an agency relies on the exemption, individuals will lose their right to know what information is held about them, who is processing it and why.

They will not be able to correct or erase information held about them – which doesn’t bode well considering how much of the data held on us is out of date or just plain wrong.

She goes on to note that the lack of a definition of effective immigration control or activities that would interfere with it “makes it practically impossible to draw up a list of all those who could be caught up”. “The exemption could also be used to facilitate the sharing of personal data between public services and the Home Office if it’s decided checking everyone’s entitlement to access healthcare, education or social housing is necessary for effective immigration control.”

She concludes that the idea “that personal data collected for one purpose can’t be used for another without the individual’s informed consent is the cardinal principle of data protection. This exemption makes a mockery of it and sets a damaging precedent for the privacy rights of all of us.”

What has this got to do with Brexit?

Simply, it is one more potential barrier, and a significant one at that, to the free flow of personal data from the EU to the UK after Brexit.

That public authorities could have such unfettered rights to citizens’ personal data without citizens been aware of what data is being held, could make it extremely difficult for the European Commission to issue an “adequacy decision” on the UK’s data protection regime. Such a decision is vital if personal data is to flow freely from the EU to the UK, without individual businesses having to go through complex procedures to put in place binding corporate rules or avail of standard contractual clauses which are, in any event, been called into question by privacy campaigners as failing to offer sufficient protect for data transferred to the US.

But “data adequacy decisions” are not easy come by and can take years. Only a handful have ever been issued. See here for details.

The EU Parliament is also likely to have a good deal to say on the matter. And what it has to say will not be kind to the UK.

The data economy in the EU was estimated to be worth €272 billion in 2015, or around 2% of the EU-28 GDP. And that figure is expected to rise to €643 billion by 2020, according to the UK’s Department for Exiting the European Union. 43% of EU tech companies are based in the UK and 75% of the UK’s data transfers are with the EU Member States. Over 70 per cent of the UK’s trade in services is supported by personal data flows as the government noted in a position paper last August: “Data flows between the UK and the EU are crucial for our shared economic prosperity and for wider cooperation, including on law enforcement.”

The UK government believe that it is taking the necessary steps to ensure it is aligned with the requirements of EU regulations and to comply with European legislation, post-Brexit.

Further, to consolidate the relationship, it is proposing “a UK-EU model for exchanging and protecting personal data, […]providing sufficient stability for businesses, public authorities and individuals.” This would ‘build on the existing adequacy model’, and would see continued engagement of the UK Information Commissioner’s Office with other EU regulators. In other words, it wants the UK’s data commissioner to still have a seat at the table.

However, as we have previously noted in these BEERG Brexit Briefings, there is a major obstacle in the way of the EU issuing a “data adequacy decision” as regards the UK, post-Brexit. The Investigatory Powers Act, which came into force at the end of last year, allows the U.K. government to monitor large batches of data, collect people’s browsing records and hack citizens’ phones and computers for security purposes.

The Act was initiated by Prime Minister Theresa May when she was still at the Home Office. Critics, such as the German Green MEP, Jan Philipp Albrecht, have suggested that the Act gives the UK security services more far-reaching powers that the US counterparts. It was concerns over the extent of the access by the US security services to the personal data of EU citizens which had been transferred to the US that led to the collapse of the old Safe Harbour Agreement, and its replacement by the Privacy Shield arrangement.

EU law provides for exemptions from general data protection principles in matters of:
•  national security and defence;
•  the prevention, investigation, detection and prosecution of criminal offences;
•  the protection of data subjects and the rights and freedom of others.

But these exemptions only apply to EU and EEA member states. They do not apply to “third countries”, EU terminology for countries that are completely outside the EU/EEA framework. After Brexit, as it has been defined by the UK government, the UK will be a such a “third country”, and so the security exemption will no longer apply. The problems created by the Investigatory Powers Act is securing an “adequacy decision” from the EU will be further exacerbated by Schedule 2.4, as discussed above.

There will be many in the UK who will argue that, even in the absence of an overarching Brexit agreement, the EU will cut “mini-deals” with the UK, including one on data flows. But then again, maybe not. As Sir Ivor Richards said in his comment to a House of Commons committee a week back:

What is going to happen? In the absence of a deal, have the French, Belgians or Dutch any incentive to sort that problem (customs blockages), or do they have an incentive to keep us stewing? In the area of data protection, do they have an incentive ultimately to cobble together some agreement at the last minute in order to keep data flows, or do they have an incentive to maximise the flow of UK business that has to shift to the continent?

The Investigatory Powers Act is already on the statute books. Schedule 2.4 of the Data Protection Bill is not.

Spurrier makes her own arguments as to why the provision should be opposed.

We simply seek to draw attention to the fact that it places another enormous brick in the wall as regards future data flows between the EU and the UK when Brexit bites.