The EU’s chief negotiator has rejected an appeal by the UK’s Brexit secretary for the full gamut of citizens’ rights in the withdrawal agreement to be protected in the event of a no-deal exit.
In a clear signal from Brussels that it is not willing to countenance a “managed no deal”, Michel Barnier said the suggestion that the citizens elements could be “carved out” was “far from straight-forward” and that the focus should be on getting the Brexit deal ratified.
While emphasising that British nationals living in the EU would not be “left in the dark” about their rights in the event of the UK leaving without a deal, he insisted to Stephen Barclay that a range of problems existed in ringfencing the rights contained in the agreement, including the continued role of the European court of justice.
Under the terms of the withdrawal agreement, which has been rejected three times by the Commons, the ECJ would give rulings on the interpretation of the rights contained in the agreement. There would be no legal basis for such an arrangement in the event that the withdrawal agreement was not ratified by the Commons.
“Our joint efforts should remain focused on making sure that the withdrawal agreement will be ratified and will enter into force,” Barnier wrote. “We should not be distracted from this essential objective”.
The EU negotiator’s letter to Barclay came in response to a request from the British government for discussions to be opened on ringfencing the citizens’ rights aspects of the withdrawal agreement, a policy agreed by the Commons in an amendment tabled by the Conservative MP Alberto Costa.
The Costa amendment suggested that workers rights, from maternity and paternity leave to protections for agency workers, part-time, fixed-term and young workers, should remain for British nationals living on the continent as if the UK was a member state.
The EU’s member states are, on the advice of the European commission, developing their own legislation to protect the rights of British nationals living in their countries in the event of the UK crashing out but there remain areas that are not covered.
In his letter to Barnier, Barclay said the government had “particular concerns in relation to healthcare arrangements as these are not covered by the current proposals published by the commission”.
He added: “The government’s position remains that the withdrawal agreement provides the best way of providing confidence to citizens.
“Nonetheless, given our shared commitment to protecting the rights of citizens in all scenarios, I would welcome your views on the proposal put forward by our parliament to ringfence citizens’ rights and I propose that we discuss this issue in more detail when we meet.”
The letter in response from Barnier, however, offered Barclay little succour. There is concern in Brussels that the UK is seeking to renegotiate the withdrawal agreement by stealth.
Barnier wrote that the citizens’ rights part of the withdrawal agreement was part of an “overall and comprehensive approach” to Brexit that could not be picked apart, including the Irish backstop to avoid a hard border on the island of Ireland which Barnier said was to the “benefit of people residing there”.
“It is therefore far from straight forward to identify which provisions would need to be ‘carved out’ as part of the ringfencing exercise proposed by the House of Commons in February, with the risk of unequal treatment of certain categories of citizens”.
In a second letter by the Brexit secretary, Barclay responded: “I agree that our joint efforts should remain focused on making sure that we reach an agreement in order to secure an orderly departure for both the UK and the EU. However, I suggest that together our officials continue to work on how we best protect citizens’ rights in all scenarios.”