Brexit Negotiating Terms of Reference

Dr Iyiola Solanke

At their first meeting in Brussels today, Michel Barnier and David Davis agreed overall Terms of Reference for the forthcoming Brexit negotiations. The Terms of reference set out a general structure and schedule for negotiations between now and October 2017. After today’s formal opening, actual talks will begin in July. Round 1 will take place in the week commencing July 17th followed by Round 2 in the week of August 28th, Round 3 in the week of September 18 and Round 4 in the week of October 9th. We do not yet know what happens beyond that date.

Setting the pattern for future negotiations, the joint post-meeting press conference was held in English and French, with interpretation provided by the European Commission. All negotiations and working documents will be produced in these two languages. The negotiations themselves will take place on two levels – general plenary sessions and smaller group meetings. The document states that each round of negotiations ‘should’ comprise public officials of both sides only however this leaves scope for others, such as business leaders and bankers, to also take part. Names are not given, but Politico has helpfully produced a list of the key players on each side.

Plenary negotiating sessions will be co-chaired by so-called ‘Principals’ and/ or ‘Co-ordinators’ – presumably from the central team on each side. These persons will have overall responsibility both for keeping the process on track and providing advice. They will also have responsibility for a specific dialogue on Ireland/ Northern Ireland, launched today.  It is not clear who will lead/co-ordinate the smaller group meetings or how many there will be – the ‘Principals’ have discretion to create additional working groups, sub- groups or indeed organise ‘breakout sessions’ as required.

In total, just 3 negotiating groups were created today. Two are very specific: Citizens’ Rights and Financial Settlement. The latter will clearly deal with the Brexit Bill and the former will focus on the situation of EU citizens in the UK and UK citizens in other parts of the EU. It is also to be hoped that it will deal with the situation of Zambrano carers whose rights to remain in the UK to look after their British citizens children also derive from EU law. The final negotiating group created today has a general remit and will focus on other Separation Issues.

The basis of the negotiations will be texts created by either side. There is no specific timeframe for sharing these materials – the document simply rather limply states that ‘Negotiation texts that are intended for discussion at any negotiating round should be shared at least one week in advance wherever possible.’ This is surprising – given the ever-decreasing timeframe, tighter rules on the exchange of documents might have been better.

The timeframe is also loose – the above-mentioned ‘Negotiation rounds’ will ‘in principle’ take place during one week in every month. However, this is a loose arrangement which can be departed from by mutual consent. Negotiators may also meet informally in between formal sessions to prepare negotiations.

Transparency is addressed in the document. While setting out that transparency is the default, EU rules do not apply to the UK. As the document says, ‘both Parties will handle negotiating documents in accordance with their respective legislation.’

This suggests that British citizens will be at a disadvantage – while the EU 27 will have to adhere to EU rules on transparency in Regulation 1049/2001 (the Access Regulation) and CJEU case law, the UK will not be so bound, even while still a member of the EU. It is left to the owner of the information to determine how widely it should be available. Disclosure by either the United Kingdom or the European Commission of documents originating from the other side will be subject to prior consultation of the originating party. Joint public statements on the negotiations will be made wherever possible.

Sadly, and paradoxically, the EU appears to have agreed to undermine the substance EU citizenship rights of UK nationals prior to Brexit, even while they stress the importance of these rights by making them the focus of early negotiations. The Lisbon Treaty made transparency a citizenship right, set out for the first time in EU law in Article 15 TEU.  In addition, Article 42 of the EU Charter emphasizes the right of access to documents. It is to be wondered which other rights may be conceded to the UK to facilitate the negotiations.

Furthermore, it is also noticeable that these comments on transparency refer only to materials – there is no mention of transparency in relation to debates, discussions and decisions. It is striking that the Government did not insist on this. It is clearly crucial that transparency be maintained during the negotiations so as to protect the very democratic accountability that leaving the EU was intended to restore.


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