By Charles Pigott, Professional support lawyer for Mills & Reeve, Anne Frechette-Kerbrat and Peter Moore, Partners, UK desk at Fidal.
Fidal and Mills & Reeve have a formal affiliation and the similarities between them mean they regularly work together to provide clients with advice that serves their interests both in the UK, France and beyond.
The promise to “get Brexit done” helped Boris Johnson to achieve the largest Conservative majority since the Thatcher years. To what extent will the election result bring greater certainty for the Brexit process?
The UK will be leaving the EU by 31 January 2020
As a result of the Conservative election victory, we can be sure that the UK will be leaving the EU with a withdrawal agreement by 31 January 2020. That means the UK will stay within the Single Market until at least 31 December 2020 on the terms of the transitional arrangements set out in the Withdrawal Agreement. There will be no way back into the EU for the UK, whether by way of a second referendum or otherwise, without the UK making a fresh application for EU membership.
What are likely terms of the future trade deal?
Some have speculated that as a result of his comfortable 80 seat majority, Mr Johnson will be able to soften his hard Brexit stance. However, the Conservative manifesto was quite clear that his Government would “keep the UK out of the single market, out of any form of customs union, and end the role of the European Court of Justice.”
While there is some room for manoeuvre (for example over the degree of regulatory alignment) a move to any kind of customs union to reduce friction at the border would appear unlikely. That means that we are probably looking at a relatively conventional free trade deal, with some add-ons to address key areas like data protection and security cooperation.
When will it be concluded?
The Conservative Manifesto rules out extending the transitional period beyond 31 December 2020, raising a renewed possibility of a no-deal Brexit if a new deal cannot be agreed and ratified by then. The more ambitious the deal, the more difficult it will be to complete and ratify within the current timetable. So there are likely to be trade-offs between the scope of the deal and the political need to get it done quickly.
One possible compromise might be to complete the deal in principle by 31 December, and extend the transitional period to allow the ratification process to be completed. That is likely to essential if the new deal is a more ambitious “mixed agreement”, which, unlike the Withdrawal Agreement, would require ratification by all EU member states.
The issue of the extension of the transitional period will be key in the upcoming discussions between the UK and the EU
We should learn more about how the negotiations will be structured in the coming weeks. From a UK perspective, one key issue is the extent to which Parliament will be involved in approving the UK’s negotiating mandate, and hence the degree of public scrutiny which can be brought to bear on the UK’s negotiating strategy.
For more information about the decisions the Government is facing as it prepares for the Brexit trade negotiations, read this briefing published by the Institute for Government.