Last reviewed 6 January 2020

It was clear during the recent election campaign that Boris Johnson and his team had agreed on the simple message “Get Brexit done” given that he and his Ministers repeated the slogan at every opportunity. The reactions to it were two-fold: one, it was very effective in delivering votes; and two, it was some distance from the truth. What the Prime Minister was promising to “get done” with his “oven-ready deal” was to persuade Parliament to back the Withdrawal Agreement that he had negotiated with the European Commission in the weeks before Christmas.

As has been highlighted on several occasions previously, this is only the preliminary Brexit stage as it concerns just the three issues which the EU insisted on settling before it would proceed to the more complicated process of discussing its future trade arrangements with the UK. These issues are:

  • the financial settlement which the UK needed to pay the EU to settle past debts and future commitments;

  • the rights of EU citizens living in the UK and UK citizens living in other Member States; and

  • how to maintain the only land border between the UK and the EU (between Northern Ireland and the Republic of Ireland) while protecting the integrity of the Single Market and maintaining the commitments to free access underpinning the Good Friday Agreement.

The easy bit

That these issues were not sorted out in the early days of the negotiations can be traced to the fact that the two sides took diametrically opposing positions on this third point. The EU’s chief negotiator, Michel Barnier, refused to accept any proposals that would allow non-EU goods to enter the Single Market without checks, while the then Prime Minister, Theresa May, set out her famous red lines and insisted that no British Premier could accept a border that separated Northern Ireland from the rest of the United Kingdom (even in the Irish Sea).

Her position became even more entrenched when the decision to hold a snap election in 2017 backfired to the extent that she was left reliant on the Democratic Unionist Party (DUP) for her majority. They vetoed her first attempt at the Withdrawal Agreement, which was not, in fact, greatly different from the deal that Mr Johnson expects to steer through Parliament in January. Having originally told the DUP that he too would be sticking by the declaration of never dividing the UK, he of course took the gamble of casting them aside and taking his chances in a general election. Now, with a majority of 80, Mr Johnson is no longer bound to any smaller political groups or factions and can confidently predict that the UK will leave the EU on 31 January 2020.

Now comes the hard part

Except of course that it won’t. What it will do is to remain in the EU’s customs union and single market for a transitional period of one year during which it will hope to both meet the demands of businesses for continuity, by sticking to current EU rules and standards, and to fulfil the need to take back control - by withdrawing its members from the European Parliament and not appointing a European Commissioner. This, the Government insists, effectively means that the UK will have “left” the EU, although numerous commentators have pointed out that it will still be under the jurisdiction of the EU’s Court of Justice (CJEU) while no longer having any say in producing the legislation which that body enforces.

Time is of the essence

Under the Treaty rules which govern Brexit, the UK could have taken two years to complete its transition out of the Union but, during the election campaign, Mr Johnson decided to highlight his determination to take a hard line by cutting that period in half. The UK will, he insisted, leave the EU at the end of 2020 and, while he did not quite repeat the well-worn phrase “with or without a deal”, that was implicit in his statement. That possibility is not a year away, as it appears at first glance, but could in fact become a reality within six months. This is because the UK will have to request an extension (should Mr Johnson be tempted to back down from his current position) by the end of June. If he does not do so, and if negotiations are not going as well as hoped, then UK businesses will again be forced to start reading up on the rules of the World Trade Organisation (WTO).

On Her Majesty’s service

Within days of his election victory, the Prime Minister asked the Queen to return to Parliament for the second time in a matter of weeks in order to set out his programme for the future in the traditional Queen’s Speech. This began: “My Government’s priority is to deliver the United Kingdom’s departure from the European Union on 31 January” and continued “Thereafter, my Ministers will seek a future relationship with the European Union based on a free trade agreement that benefits the whole of the United Kingdom. They will also begin trade negotiations with other leading global economies.”

The path ahead, according to the briefing note which the Government issued to accompany the Queen’s Speech will involve the following items of legislation:

  • The European Union (Withdrawal Agreement) Bill which will ratify the deal secured by the Government in October;

  • An Agriculture Bill to reform UK agriculture by improving environmental protections and strengthening transparency and fairness in the supply chain;

  • A Private International Law (Implementation of Agreements) Bill will provide a clear framework for cross-border resolutions for individuals, families and UK businesses involved in international legal disputes; and

  • A Fisheries Bill which will enable the UK to reclaim control over its waters whilst ensuring the sustainability of marine life and the environment.

In addition, the Government will end free movement and pave the way for a modern, fairer points-based immigration system. It will also “provide certainty, stability and new opportunities for the financial services sector”.

The future of trade

In addition to the above items of legislation, the Government plans to introduce a Trade Bill which will:

  • create powers so that the UK can transition trade agreements to which it is party through membership of the EU, ensuring continuity for businesses;

  • establish a new independent body, to protect UK firms against injury caused by unfair trade practices and unforeseen surges in imports (a role previously carried out by the European Commission);

  • give UK businesses continued access to £1.3 trillion per annum of procurement opportunities in 47 countries, by creating the powers for the UK to implement the WTO Agreement on Government Procurement; and

  • ensure that the UK government has legal powers to gather and share trade information as evidence to support UK firms against surges in imports and unfair practices.

Level playing field

The main stumbling points in the next phase of negotiations will again centre on the two sides having mutually exclusive aims, with progress probably depending on how far each will be prepared to compromise. If the UK wants a very ambitious free trade agreement, French President Emmanuel Macron has already warned, then, “we need a very ambitious regulatory cooperation”. However, Boris Johnson has made it equally clear that the UK needs to have the freedom to diverge from EU regulations and standards if it is to strike the ambitious agreements with non-EU countries, and particularly the United States, on which he has staked his reputation.

He also wants a UK-EU agreement that will mean no tariffs, no quotas and as few checks as possible. It is hard to see how the EU can allow him to have both without risking a queue of other Member States asking if they too can leave the Union while continuing to enjoy its many benefits. When he was leading the Vote Leave group in the run up to the 2016 referendum, Mr Johnson was famous for his claims that he was pro having cake and pro eating it. The EU was unimpressed then and its leaders are unlikely to be any more receptive to the idea now.

New cast for a new season

In the months ahead, UK followers of the Brexit saga will need to get used to some new names, on the other side of the table at least. It will be no surprise if Michael Gove is named as the head of the UK negotiating team and we know that he will be facing the man who has already had to deal with three Brexit Ministers, Michel Barnier. Elsewhere across the Channel, however, it has been all change as familiar names such as Commission President Jean-Claude Juncker and Council President Donald Tusk have come to the end of their terms of office. They have been replaced, respectively, by the longest-serving member of German Chancellor Angela Merkel's cabinet, Ursula Von der Leyen, and the current interim Prime Minister of Belgium, Charles Michel. Ms Von der Leyen has already cast doubt on the UK’s plans for accelerated trade talks, as has her (Irish) Trade Commissioner Phil Hogan, so it could be another difficult year.