Brexit: BBC correspondents on the draft deal

The UK government has published its long-awaited withdrawal agreement and supporting papers for leaving the EU.

The draft Brexit Withdrawal Agreement agreed by the Cabinet sets out the terms of the UK’s “divorce” from the EU, over 585 pages. In addition, the EU and the UK published a joint political declaration on their future relationship, which sets out broad areas of future co-operation.

BBC editors and correspondents unpick the detail in the newly-published documents.

Amazingly, when you consider that immigration was one of the key issues during the referendum that led to Brexit, the word “immigration” only appears once in the draft agreement, and even then it is in the context of an “immigration document”.

But a large section of the draft agreement – Part Two – is dedicated to the rights of EU citizens to live in the UK, and UK citizens to live in the EU.

The UK will “take back control” of migration from the EU, but it will happen slowly.

The headline is that EU citizens and their families will continue to have the right to move to live and work in the UK (and vice versa) until the end of the transition period in December 2020.

  • A brief guide to where we are with Brexit
  • Brexit: All you need to know about the UK leaving the EU

Those who take up residence before the end of the transition period will be allowed to remain beyond transition and, if they stay for five years, will be allowed to remain permanently.

However, once the transition period is over, the draft agreement does allow the UK to require EU citizens who stay on to apply for a new residence document. The agreement says application forms for this residence status “shall be short, simple, user-friendly”. All this applies to UK citizens in EU countries too.

The draft agreement says that a country may ask people to “voluntarily” start applying for this residence status before the transition period ends.

Looking to the future, beyond the end of the transition period, the 14-page Outline Political Declaration document says that the UK and the EU will aim to achieve:

  • Arrangements for temporary entry for “business purposes”
  • Visa-free travel for short-term visits
  • Co-operation on tackling illegal immigration

Ashen-faced European diplomats haunt the corridors of Brussels. No rest for them until Sunday 25 November – the day of the “seal the deal” Brexit summit between Theresa May and EU leaders.

Diplomats from the 27 EU countries must now pore over 585 pages of the draft Brexit withdrawal agreement with lawyers to ensure all will be to each government’s liking.

Read more from Katya on the withdrawal agreement

The Court of Justice of the European Union (ECJ) is a kind of Supreme Court of the EU. It is the ultimate arbiter on matters of EU law.

This means it has the power to determine disputes between individuals and member states in this area, for example when an individual complains that a benefit he or she is entitled to under EU law is being denied.

The court also determines disputes between member states and EU institutions such as the European Commission.

During the transition period, the ECJ will maintain its current jurisdiction and powers. This means that the UK is bound fully to the court and by its rulings. If the transition period is extended, the same thing happens to the ECJ’s jurisdiction.

If no long-term trade agreement between the UK and the EU is concluded and the transition period comes to an end, then the so-called backstop arrangements will take effect. Under these plans, the UK and the EU will form a single customs territory.

At this point the ECJ will not be able to resolve disputes between the UK and EU. Instead there will be a dispute resolution procedure which provides for arbitration. However, the arbitration panel must refer any matter which concerns the interpretation of EU law to the ECJ.

Given that Scottish Conservative leader Ruth Davidson and Scotland Secretary David Mundell effectively threatened to resign over any deal that introduces different arrangements for Northern Ireland, why are they not now considering their positions?

On Wednesday night, Mr Mundell seemed to interpret the deal rather differently from some of his cabinet colleagues, saying: “I was content to move to the next stage… on the basis that arrangements for Northern Ireland will not undermine the economic or constitutional integrity of the UK.”

How does he square that with the warnings from Dominic Raab and Esther McVey that the deal does just that?

Other members of the Scottish Conservative parliamentary team say they want more clarification from the prime minister on the Union and on future arrangements for the control of UK fishing rights. But many are likely to back the deal.

The SNP has consistently argued it wants Scotland to remain a member of the EU single market and customs union even if the rest of the UK leaves.

The UK government maintains it would not be possible to have different arrangements for Scotland while it remains part of the UK.

The worry from Scottish unionists is that allowing a separate regulatory regime for Northern Ireland undercuts that argument and allows the SNP to demand separate arrangements for Scotland.

What does the deal mean in terms of trade between the UK and the EU, assuming of course that it does come into force as the prime minister hopes?

In the immediate aftermath of Brexit, the answer would be “no change”. We go into a transition or implementation period during which EU laws continue to apply. It ends on 31 December 2020 but can be extended.

During the transition period, there will be further negotiations to establish the long-term relationship. There is a draft political declaration setting out what that is intended to achieve.

The aim is trade in goods without tariffs or quantitative restrictions. But does that mean no checks at all? That will depend on how well aligned the UK’s rules on goods are with those of the EU.

On services, the aim is an agreement to liberalise trade between the UK and EU, on the basis of regulations in the country where the service is provided. Currently in some areas, complying with the supplier’s home regulation is enough.

If there is no deal on the long-term relationship that makes a hard border on the island of Ireland unnecessary, the “backstop” comes into force. That would keep the whole UK in what the draft calls “a single customs territory”, which seems to be a customs union in all but name – no tariffs on trade between the UK and the EU, and the UK unable to set a tariff on trade from third countries that is lower than the EU’s.

Some goods coming into Northern Ireland from the rest of the UK would be subject to new checks and controls if the Brexit backstop is implemented.

The details are contained in the draft withdrawal agreement between the UK and EU.

The backstop would mean Northern Ireland would have to stay aligned to some rules of the EU single market, so goods coming into the nation would need to be checked to see if they meet EU rules.

Guidance published by the EU says: “There would be a need for some compliance checks with EU standards, consistent with risk, to protect consumers, economic traders and businesses in the single market.

“The EU and the UK have agreed to carry out these checks in the least intrusive way possible.”

For industrial goods based on risk assessment, these could take place “in the market” or at traders’ premises. Such checks would always be carried out by UK authorities.

For agricultural products, existing checks at ports and airports would “be increased in scale in order to protect the EU’s Single Market, its consumers and animal health”.

However, goods going in the other direction, from Northern Ireland into the rest of the UK, would not be subject to new controls.

The deal states: “Nothing in this protocol prevents the United Kingdom from ensuring unfettered market access for goods moving from Northern Ireland to the rest of the United Kingdom’s internal market.”

The proposed transition deal allows the UK to remain part of a number of hugely important policing and security arrangements – for now. There is no certainty over what happens after 31 December 2020.

Under the proposed transition deal, the UK will still be allowed to:

  • Use the European Arrest Warrant to send criminals to face trial in the EU – and bring suspects to justice in the UK
  • Use powerful EU databases to check for alerts for missing people, arrest alerts and look for matches to DNA, fingerprints and vehicle number plates. These systems are used more than a million times a day by British police
  • Continue to take part in a large number of ongoing cross-border policing operations which are co-ordinated by the EU’s policing agency, Europol, where the UK is one of the leading partners
  • Check quickly for the criminal records of any foreign suspects arrested in the UK

There is, however, some ambiguity over whether the European Arrest Warrant extradition system will work anywhere near as smoothly as it does presently.

Under a special caveat (Article 185), nations could tell the UK that they can no longer send suspects to face trial, because their own constitution may not allow them to do so. Germany has an explicit ban on sending its citizens to face trial outside the EU.

And once transition ends, so does the access to data. The deal includes an explicit article that will lock the UK out of all EU databases and systems at the end of 2020.

The UK will be able to temporarily continue to request access to systems that will provide intelligence on suspects – but largely only in relation to investigations that are already under way.

As for what follows, the Outline Political Declaration on the future relationship makes clear that the UK wishes to remain part of all the existing security arrangements – including a new form of extradition and database sharing. That will require a special security treaty.

But the document also acknowledges that there may be legal roadblocks that prevent the EU sharing data with the UK on anything like the current scale.

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Your guide to Brexit jargon

Universities in the UK have been worried about losing access to EU research funding – worth about €100bn (£87bn) in the next round.

But beyond a confirmation that existing funding up to 2020 is assured, there is still no detail on how the UK might take part in future EU research partnerships.

The UK’s universities have been among the biggest beneficiaries – and the expectation is that the UK will negotiate to rejoin the club as an external partner.

But the terms – and how much the UK will have to pay – are not really any clearer.

And there are no signals about the place of EU academics at UK universities – who can be a quarter of the staff in some institutions.

That is for future discussion as part of immigration rules.

There is a section on the status of EU students in the UK – with no obligation to provide them with “grant maintenance aid for studies… consisting in student grants or loans”.

But it remains open to interpretation as to whether that means an end to tuition fee loans – or only refers to living costs.

Either way, nothing will change until 2020, and the door seems left open for further negotiation, clarification and reciprocal arrangements.

Keeping the UK attractive to EU students and staff is not only about money. It is about culture, competition and maintaining an international status.

More homework and revision are likely before the shape of any final relationship emerges.

Nothing is settled yet but the outline agreement on the future of Britain’s relationship with the EU conveys a hope that some key features will continue along pretty similar lines.

  • On energy, the document talks of a “framework” so electricity and gas networks can co-operate and supplies can continue to flow through the “interconnectors” that run under the Channel
  • On nuclear fuel, a wide-ranging agreement will be underpinned by commitments “to existing high standards of nuclear safety”

In other words, a system of British safeguards will essentially pick up where the European ones left off.

  • Co-operation on radioisotopes, so crucial to medical treatments, will be through “an exchange of information”. Although, again, no detail is given
  • And the document envisages the UK will participate in EU programmes on science and innovation. Although, of course, that is subject to “conditions” yet to be agreed

Getting a mention at all will be a relief for Britain’s leading science figures – but it’s a long way short of what they’re after.

Their long-standing plea is for certainty, not only in the arrangements for UK-based researchers applying for EU grants but also in the immigration rules for EU scientists coming here to study and work.

As the future of research looks unclear, many scientists are wondering whether to continue their work in the UK or look elsewhere.

Provisions for the environment and for farming have not been legally sealed yet, but environmental lawyers say we can get an idea of what lies ahead from the Irish Backstop agreement. This suggests that:

  • UK environmental law will have to be at least on a par with the EU at the end of the transitional period. After that, the UK does not have to accept new environmental laws from Brussels – but it must not slide back
  • The UK will have an adequately resourced independent environment watchdog, with the power to oversee public bodies and take the government to British courts
  • On farming, the UK has won its fight to reform agricultural subsidies to reward farmers for protecting the environment. It won’t be tied to the Common Agricultural Policy after March 2019
  • The UK will continue to uphold the precautionary principle and the “polluter pays” principle

Under the precautionary principle, firms trying to launch new products should show they are safe. Some Brexiteers feel this cramps innovation.

In the US, policies allow firms more leeway to launch new products in the expectation that they will be sued if anything goes wrong. Some Remainers fear a loosening of standards on food and the environment if the UK adopts an American-style approach.

There are many questions still unanswered, so environmentalists can’t yet judge whether the government has delivered its promise of a “green Brexit”.

A draft Brexit agreement will ease some of the concerns of pharmaceutical companies.

Industry leaders have made clear that a deal to leave the EU in March, followed by a transitional period to work through all the detail will be acceptable. Creating a level playing field for drug trials and testing to allow products to cross the Channel easily in both directions is of vital importance for the industry and the NHS.

The Association of the British Pharmaceutical Industry, responding to the government documents, said it welcomed an “important step towards securing a Brexit deal” and that a transition period would mean members could continue supplying medicines to patients without delay or disruption after March 2019.

The big worry in the NHS and the pharmaceutical industry is the spectre of mass traffic jams at Dover and the other Channel ports if the UK falls out of the EU in March without a deal.

It’s expected that in a no-deal scenario, there would have to be time-consuming new customs checks which would delay lorries carrying drugs and medical devices.

The government has told the pharmaceutical industry to stockpile six weeks’ worth of supplies.

Ministers say that planes will be chartered in advance to bring in vital medicines if the ports are blocked, but there are concerns in some quarters that preparations for a hard Brexit are not as advanced as they should be. With the deal agreed by the cabinet yet to get through Parliament, contingency planning will continue.

The NHS needs staff from outside the UK and, in theory, the post-Brexit issue has already been dealt with by the government.

EU nationals currently working in the UK can apply for what is known as settled status giving permanent residence. There is a fee of £65 for each application, though some hospitals have said they will cover that. What’s not predictable is how many may choose to leave after Brexit and how many will come into the UK to work in health and social care roles.

The British Medical Association said staff working in the UK were not convinced by the prime minister’s pledge if the UK crashed out without a deal. It has called for a government statement formally guaranteeing the rights of EU citizens in the event of a no-deal Brexit.

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BBC News – UK Politics

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