UK: The Brexit Negotiations (2): What Is The UK's Opening Position?

This is our second Alert on the Brexit negotiation1, which started on Monday, June 19, 2017. Having outlined the EU's opening position, we now turn to that of the United Kingdom. The main source used is the UK Government's "White Paper" entitled "The United Kingdom's exit from and new partnership with the European Union", which was presented to the UK Parliament in February 2017.2 We also set out additional considerations based on the result of the recent UK general election, which may affect the extent to which the Government is able to pursue the approach outlined in the White Paper.

The White Paper

The White Paper is a 75-page document, which is in many respects aspirational, setting out what the UK would like to achieve and with a significant emphasis on trade. The theme is one of a "Global Britain", seeking partnership with the EU.

Interestingly, the UK emphasises that it sees the negotiations as unusual because the UK starts with the same rules as in the EU: "Unlike most negotiations, these talks will not be about bringing together two divergent systems, but about managing the continued cooperation of the UK and the EU. The focus will not be about removing existing barriers or questioning certain protections but about ensuring new barriers do not arise".3

The White Paper has 12 sections4, following "12 principles" which the UK states will guide its approach.

The most important points are as follows:

1. Providing certainty and clarity.

The UK stated that it would introduce "the Great Repeal Bill" to convert the body of existing EU law into domestic law. This Bill was to enable the preservation of the rights and obligations that already exist in the UK under EU law and provide a basis for future changes in UK law. Therefore, existing EU law will remain part of UK law on the day the UK leaves the EU, with adjustments as required.5 Material changes, if any, would come later.

2. Taking control of UK laws.

First, the White Paper emphasises that the sovereignty of Parliament is a fundamental principle of the UK constitution. After the UK's exit, the UK's laws will be made in London (and regional assemblies in Edinburgh, Cardiff and Belfast).

Second, the White Paper explains that the UK will bring an end to the jurisdiction of the Court of Justice of the European Union ("CJEU") in the UK. Nevertheless, it is stressed that the UK Government will continue to honour the UK's international commitments and comply with international law.

Third, the UK Government advocates the adoption of suitable "dispute resolution mechanisms" for the future relationship with the EU. The UK Government cites as examples the systems in the EU-Canada Comprehensive Economic and Trade Agreement ("CETA")6, or the Free Trade Agreement between the EU and South Korea7, while noting that whatever may be agreed will depend on the specific negotiations between the UK and the EU.

3. Protecting ties with Ireland and maintaining the "Common Travel Area".

First, the White Paper emphasises the importance of trade between the UK and Ireland (over £43 billion), and observes that many people commute regularly across the borders between Northern Ireland and Ireland (some 14,000). The Government states that it wants to protect the special rights for Irish and Northern Irish citizens in existing agreements and to maintain the ability to move freely between the UK and Ireland, notably through the "Common Travel Area" ("CTA"). (This is a pre-existing special travel zone for the movement of people between the UK, Ireland, the Isle of Man and the Channel Islands.)

Second, the UK Government states that it has an explicit objective on EU exit to ensure that full account is taken of the particular work with the Irish Government and the circumstances of Northern Ireland, safeguarding business interests, cooperation on law enforcement and security agencies.

4. Controlling immigration.

First, the UK Government makes clear that it must control the number of people coming to the UK from the EU. While the UK will remain open to immigration, especially high-skilled immigrants arriving lawfully, the EU Free Movement Directive8 will no longer apply and the migration of EU nationals will be subject to UK law.

Second, however, the UK Government confirms that existing EU students and those starting courses in 2016-2017 and 2017-2018 will continue to be eligible for the duration of their course.

Third, the Government also makes it clear that it is still working on its assessment of the impact of Brexit on the different sectors of the economy and the labour market.

Finally, the Government notes that implementing any new arrangements for EU nationals will be complex.

5. Securing rights for the EU nationals in the UK and UK nationals in the EU.

First, the UK states that some 2.8 million EU nationals are resident in the UK, many from Poland, whereas some 1 million UK nationals are long-term residents of other EU countries, with large numbers in Spain, France and Germany.

Second, interestingly, the UK also notes that under the EU Free Movement Directive those who have lived continuously and lawfully in a country for at least five years automatically have a permanent right to reside.

Third, the UK Government states that it would like the issue of the rights of EU citizens living in UK and UK nationals living in the EU to be resolved soon. For instance, access to healthcare for UK citizens living in the EU is a priority for the UK Government. The Government therefore emphasises that it wants to reach a reciprocal deal on such issues at the earliest opportunity.

6. Ensuring free trade with European markets.

Although the UK Government states that it will not seek membership of the EU Single Market, it stresses that it will be pursuing a new "strategic partnership with the EU", including a Free Trade Agreement and a new customs agreement.

First, the UK Government states that it will look for "the freest possible trade in goods and services between the UK and the EU". The UK will seek a specific model for its situation, including a new customs agreement with the EU. The agreement "may take in elements of current Single Market arrangements in certain areas".9 The UK suggests that the arrangement should be fully reciprocal and in the UK and EU's mutual interests.

Second, the White Paper shows that the UK has a £61 billion trade deficit (a UK deficit in goods of £89 billion, with a £28 billion surplus in services) with the EU27 and presents other figures showing a close trading relationship. For instance, the White Paper notes that producers in EU Member States rely on UK firms in their supply chain and that the UK often contributes a significant share of the foreign content in the EU countries' exports.10

Third, the White Paper provides detailed information for certain markets. For example:

  • As regards goods, the White Paper points out that European Standards Organisations ("ESOs") are not EU bodies and the British Standards Institution ("the BSI") will retain membership in the international organisations in charge of developing standardisation. The UK Government's theme is that the BSI will continue to work with ESOs so that complying with standards should not be an issue. The UK Government states that a new partnership should allow for "tariff-free trade in goods" that is "as frictionless as possible" between the UK and the EU Member States.
  • As regards agriculture, food and fisheries, the White Paper also emphasises that the UK is a net importer of agri-food goods (£28 billion), whilst having significant exports to the EU (£11 billion), and underlines that this shows the UK and the EU's mutual interest in continued levels of market access in the future.11
  • As regards services (excluding financial services), the White Paper states that in the future partnership with the EU, the UK will be aiming for "the freest possible trade in services" between the UK and the EU27.
  • As regards financial services, the UK Government notes that the financial sector is a very important part of the UK's economy. Not only in London, but in other parts of the UK. The UK notes that both UK and EU firms benefit from financial services passports (over 5,000 UK firms to the EU; and around 8,000 European firms to the UK). The UK Government states again therefore that the new partnership should aim for the "freest possible trade in financial services between the UK and the EU".
  • The UK Government also argues that market fragmentation should be avoided as well as the possible disruption or withdrawal of services. The UK's argument is that it is a global "hub for money, trading and investment" which is useful to Europe as a whole. The White Paper underlines that over 75% of the EU27's capital market business is conducted through the UK. The UK also argues that EU27 firms have an interest in continuing to serve UK customers.
  • As regards energy, the White Paper emphasises that disruptions should be avoided. The UK Government is aware of the importance of interconnections with the EU for gas and electricity. The UK is therefore considering all options for the UK relationship with the EU on energy to avoid disruption, in particular as regards the all Ireland single electricity market.
  • As regards transport, the White Paper notes that the four transport modes will have to be considered in the negotiations (aviation, road, rail and maritime). However, the UK Government stresses the interest for all sides to seek arrangements to support affordable and accessible air transport, as well as maintaining connectivity. The UK also notes that some 80% of cross-border road haulage between the UK and EU is handled by foreign hauliers.
  • As regards communication networks, the White Paper notes that the UK Government wishes to ensure that UK telecoms companies can continue to trade as freely and competitively as possible with the EU and to let European companies do the same in the UK. As regards content carried over electronic communications, it is recalled that the UK is the EU's biggest broadcasting hub and is seeking to preserve the ability for businesses to trade as freely as possible.

Fifth, as for what it calls "cross-cutting regulations", the White Paper recognises the role of areas such as competition law and IP. The Government states that it will seek to maintain the stability of data transfer between the UK and the EU Member States (noting that the European Commission can recognise data protection in third countries as "essentially equivalent" to that in EU).

Sixth, the UK notes that it will need to discuss with the EU and the Member States, its relationship with several European agencies, such as the European Medicines Agency, the European Food Safety Agency and the European (Financial Services) Supervising Authorities.

Finally, the UK makes clear that it wants to be able to negotiate its own preferential trade agreements, without being bound by the EU's Common External Tariff, or the EU Common Commercial Policy. It will therefore seek a "new customs arrangement" which will allow it to do so, while also allowing for trade between the UK and EU, "as frictionlessly as possible".

It is not entirely clear what this means, but one possibility would be that goods manufactured in the UK ("of UK origin") or the EU ("of EU origin"), could move freely, without duties, between the UK and the EU, with duties only applicable to goods from outside the UK or from outside the EU, when moving to the EU or the UK respectively.

7. Securing new trade agreements with other countries.

First, the UK Government wishes to develop further trade with the growing export markets around the world through a variety of trade tools, since the importance of trade with markets outside the EU has grown.

Second, the UK Government states that the UK can have an independent trade policy without the need to reflect the position of the EU27 and, as a result, will have the opportunity to negotiate deals better suited to the UK and make quicker progress with new partners.12

Third, the UK states that its WTO membership will be the "bedrock" on which it will build future trade relationships. After Brexit, the UK aims to establish new schedules covering trade in goods and services at the WTO, replicating as far as possible its current position as an EU Member State.

8. Delivering a smooth, orderly exit from the EU.

The UK Government stresses that it wants to avoid a "disruptive cliff edge" on exit. It aims to reach an agreement by March 2019, but believes that a phased "implementation process" may be in the UK and the EU's mutual interest. However, "no deal is better than a bad deal" and the UK will pass legislation to mitigate the effects of that.


Finally, the UK states that "[i]t remains overwhelmingly and compellingly in the UK's national interest that the EU should succeed. ... [The UK vote to leave the EU] was no attempt to do harm to the EU itself or to any of its remaining Member States. Rather the vote was driven by a desire to restore [the UK's] own parliamentary democracy, national self-determination and to become even more global and internationalist in action and in spirit".13

The UK general election

In the UK general election on June 8, 2017, the Conservative majority was lost, so the Conservative party no longer has a majority by itself (a so-called "Hung Parliament"). As a result, the Conservatives are in negotiations with the Democratic Ulster Party ("DUP") to see if they can reach an understanding to establish a majority on key votes, but the Conservatives currently govern as the largest minority in Parliament.

The election result was interpreted by some as an indication that many "Remainers" (those who wanted the UK to stay in the EU) had voted against the Government to signal that they wanted the UK to negotiate an exit arrangement as favourable as possible to the UK. It was suggested that meant staying as integrated as possible with EU markets to protect jobs and the economy, rather than prioritising limits on immigration and issues of sovereignty.

It is not yet clear what the Government's weaker majority will mean for its approach to Brexit.

  • Some have suggested that the UK Parliament will be in a stronger position to demand more flexibility on Brexit issues, insofar as it has to approve the final Brexit agreements and related legislation. For example, it has been suggested that the UK might be more flexible on possible trade options in order to retain as much trade with the EU, or that the UK should consider allowing CJEU jurisdiction in some cases.14
  • Another idea is that there should be a cross-party parliamentary committee involved in, or at least consulted about the negotiations from the UK side to secure Parliamentary approval.15
  • It may be noted also that Labour opposed the Great Repeal Bill, preferring an "EU Rights and Protections Bill", retaining workers' rights, equality law, consumer rights and environmental protections.
  • It is also not clear what impact an alliance with the DUP might have on any issues related to Ireland.

However, yesterday, the Government indicated that it is still committed to the Great Repeal Bill. It also announced related legislation on seven issues, which it considers must be addressed in the next two years, so that the UK is ready to handle these issues after Brexit: customs, trade, immigration, fisheries, agriculture, nuclear safeguards and international sanctions. For example, the Customs Bill will create a new legal basis for a standalone UK customs regime on Brexit, a subject currently handled at EU level.16

The Government also indicated that it intended to implement the EU General Data Protection Regulation, the EU data protection rules which are due to come into force in 2018. This is partly to meet the UK's obligations while a member of the EU, but also to help the UK maintain its ability to share data with other EU Members States and internationally after Brexit.17

Many of these aspects appear likely to evolve as the UK Government seeks to achieve both consensus in the UK on the way forward and agreement with the EU.




3 P. 5.

4 Those not covered below are: strengthening the (British) Union; protecting workers rights; ensuring the UK remains the best place for science and innovation; cooperating in the fight against crime and terrorism.


6 A "CETA Joint Committee" with disputes going to an ad hoc arbitration panel, if necessary.

7 Which provides for an arbitration system.


9 Para. 8.3, p. 35.

10 Para. 8.8, p. 39.

11 Para. 8.15, p. 41.

12 Para. 9.7, p. 55.

13 P. 67.

14 See,

15 See, e.g.

16 See, the BBC report on

17 See, the BBC report on

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions