Foreign Relations & International Law

Brexit: One Year Anniversary

Shannon Togawa Mercer
Monday, April 2, 2018, 9:00 AM

Happy Brexitaversary!

Published by The Lawfare Institute
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Happy Brexitaversary!

One year ago, the U.K. government invoked Article 50 of the Treaty on the European Union (TEU), officially starting the two-year countdown to “Brexit.” Negotiations between the U.K. and the EU may last until March 29, 2019 but at 11 p.m. GMT on the 29th, the United Kingdom will partially exit the EU and enter a negotiated transition period that will last until Dec. 31, 2020.

As I mentioned in my first post on the topic in August 2016:

While Brexit isn’t a national security issue per se, the withdrawal of the U.K. from the EU is one of the biggest international law stories of our time. It will change the EU permanently. It will redefine models for political cooperation across states that transcend the traditional treaty system and, perhaps most immediately, it carries with it large implications for the movement of people, money, goods and information. So it necessarily carries major national security consequences.

How has the slow march toward these national security consequences played out? Let’s review: On June 23, 2016, 52 percent of the United Kingdom voted in a referendum and chose to exit the European Union. This referendum, while earth-shaking for its result and what it portended, did not actually do anything. Only about nine months later, when the United Kingdom notified the EU of its intention to withdraw, was “Brexit” official. In period between the referendum and notification, there were significant domestic questions resolved by the judiciary about whether the Prime Minister would be allowed to unilaterally trigger Article 50 of the TEU. Parliament subsequently passed a bill to allow Prime Minister Theresa May to invoke Article 50 and begin negotiations.

So we now find ourselves a year after the Article 50 trigger was pulled and halfway into the treaty’s allotted negotiation period. What does May have to show for it?

Not enough.

Negotiations between the U.K. and the EU officially began in June 2017 with the first phase of talks addressing cornerstone issues: the rights of EU citizens in the U.K. and U.K. citizens in the EU; the Irish border; and the debt the U.K. will owe the EU upon exit. When I wrote in September, analysts were expecting trade negotiations—arguably the most complicated of the impending negotiations—to start in October. I was skeptical, and rightfully so as things turned out. Negotiations on trade are beginning this month.

But there has been some progress: the parties have negotiated the phase one objectives and on Dec. 8, 2017, reached a provisional deal on parts of the legal text of the eventual Withdrawal Agreement. The parties agreed that EU citizens living in the U.K. and U.K. citizens living in the EU will retain their current rights (although those rights may not be retained if the U.K. citizens moves to another EU country), settled the divorce finances (the BBC says the bill will cost the U.K. somewhere between £35 and £39 billion) and a handful of other issues—for example, agreeing that there will be no hard border between Northern Ireland and the Republic of Ireland. Later in December, Parliament voted to guarantee itself a final vote on the Brexit deal. This stance may, when 2019 rolls around, delay the finalization of any Withdrawal Agreement.

This month has seen the most negotiation progress. On March 2, May delivered an important speech outlining the U.K.’s position on its future economic partnership with the EU—a position that notably included her desire to stay out of the single market and customs union. On March 19, the U.K. and the EU agreed to a transition period—between March 29, 2019 and Dec. 31, 2020—during which EU law will still apply in the U.K. with some exceptions limiting the U.K.’s participation in EU governance. The U.K. will still be party to EU agreements with third parties during the transition period but—and this is important—the U.K. will be able to negotiate, sign and ratify its own international agreements. On March 23, the EU adopted guidelines for further negotiations, including on trade, the movement of people, security and defence cooperation, judicial and law enforcement cooperation, data flow regulation, Withdrawal Agreement governance principles, transportation, and climate change and sustainable development. The most recent draft of the Withdrawal Agreement, published on March 19, will give you a sense of exactly how much remains to be done.

I previously outlined the complications presented by the upcoming trade negotiations, but at least one element of the future trade relationship is coming into focus: the best agreement the EU is likely to offer is a Free Trade Agreement because the United Kingdom is refusing to remain in the single market or the customs union. In her March speech, May outlined an approach to future trade relations that involved piecemeal access to the EU market, sector-by-sector and some involvement in regulatory agencies without full commitment to the single market. The EU derided this as “cherry picking.” While the EU has been clear that it would like a Withdrawal Agreement ready for ratification by European Parliament by October 2018, seven months to negotiate a comprehensive trade deal would be break-neck speed in the trade world. Put simply, there is little chance that a deal will be ready for ratification by October.

On security matters, the exact nature of the border between Northern Ireland and the Republic of Ireland has yet to be defined—beyond the general requirement that it not be a physical border separation. Determining the parameters of an invisible border between the two nations without jeopardizing the key functions of a border—namely, security and trade enforcement—will necessarily implicate law enforcement and intelligence cooperation between the EU and the U.K. The solution will also hold in the balance the hard-won peace in Northern Ireland. The EU has suggested that Northern Ireland remain in the EU customs union, but this has not been well received by U.K. negotiators. U.K. and EU officials have just begun a round of talks to resolve this issue before the June European council summit, but whether the parties can come to a reasonable solution remains to be seen.

Moreover, according the recent negotiation guidelines, the EU will insist on an EU adequacy decision in order to maintain data flows with the U.K. Hayley Evans and I discussed the complexity of Brexit data negotiations at length, and it remains to be seen whether the U.K. will meet the EU’s standards considering existing and pending domestic data legislation. The U.K. has said that it will adhere to the General Data Protection Regulation (GDPR), which is the new EU data protection regime coming into force in May 2018, but it has not made any commitments beyond Brexit day. Both parties have demonstrated earnest desires to forge strong law enforcement and defense cooperation mechanisms, but the recent guidelines specify the EU’s desire to negotiate a “Security of Information Agreement” to govern the exchange of information in such cooperative scenarios. If the U.K. agrees with that, the resulting agreement will weigh heavily on the security of both parties.

Finally, the issue of the freedom of movement between the EU and the U.K.—said to be one of the driving forces behind the vote to exit—is as of yet also unsettled. The guidelines suggest “ambitious provisions” for the movement of people with “reciprocity and non-discrimination” and a consideration of “options for judicial cooperation in matrimonial, parental responsibility and other related matters...taking into account that the UK will be a third country outside Schengen and that such cooperation would require strong safeguards to ensure full respect of fundamental rights.” The ultimate settlement of this question will have significant security implications, and it is unlikely that the EU and the U.K. see eye to eye on the position taken in the EU’s guidelines.

One year into the Brexit timeline, in short, major topics that will weigh on regional and global security remain areas of significant concern and major uncertainty.

One additional note on a matter extrinsic to the negotiations themselves: even as the talks continue, the integrity of the Brexit referendum vote itself has recently come into question. It is now mired in the same data drama as is the 2016 U.S. presidential election. According to Christopher Wylie, the former director of research at Cambridge Analytica (although his job title is contested by Cambridge Analytica itself), Aggregate IQ (AIQ), a Canadian company associated with Cambridge Analytica, was employed by the “Vote Leave” campaign to provide data analytics on voters. Wylie alleges that the data analyzed and provided was stolen and “AIQ played a very significant role in Leave winning.” The Financial Times reports that Vote Leave spent nearly half of its campaign budget on AIQ services in the period before the vote.

On March 17, the New York Times reported that Cambridge Analytica, a U.K. company, had worked for the Trump campaign and harvested private information from more than 50 million Facebook users without consent. Andrew Keane Woods wrote a useful piece on Lawfare digging into the American legal issues associated with these activities. Wylie has said that AIQ and Cambridge Analytica were intimately connected, sharing the same technology and working jointly on Cambridge Analytica projects. Shahmir Sanni, another whistleblower, has alleged that Vote Leave spent more money on AIQ than it reported under the auspices of another campaign organization, BeLeave. If true, this could constitute a violation of Electoral Commission rules. Accordingly, the U.K. Electoral Commission is investigating this as part of a larger investigation into the Vote Leave campaign. Cambridge Analytica and AIQ have denied that they worked together during the Vote Leave campaign, but the spectre of election manipulation and stolen data will weigh heavily on the legacy of the Brexit vote, fueling those lonely calls for a second referendum.

American tradition suggests that the appropriate first year anniversary gift is paper but the U.K. and the EU have no finalized treaty papers to show for their efforts. This next year will be fraught with even more difficult negotiations; it goes without saying that the honeymoon period is over.

Shannon Togawa Mercer is a senior associate at WilmerHale. Her practice focuses on complex global data protection, privacy, and cybersecurity matters. Ms. Togawa Mercer has extensive experience counseling clients on cross border data protection and privacy compliance as well as cyber incident response. She has practiced in London and Washington D.C. and previously served as Managing Editor and Senior Editor at Lawfare. Ms. Togawa Mercer also served as National Security and Law associate at the Hoover Institution.

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