Implementation of the Withdrawal Agreement - Joint Committee's First Meeting

Rt Hon Michael Gove MP

Author Chris McAndrew

Licence: Attribution 3.0 Unported
Source Wikipedia Michael Gove 

Jane Lambert

In EU's Draft Agreement on a New Partnership with the UK 29 March 2020, I wrote:

"Art 164 (1) of [the witdrawal] agreement established a Joint Committee comprising representatives of the EU and UK which shall be responsible for the implementation and application of the agreement. Following telephone discussions between the Vice-President of the Commission and Chancellor of the Duchy of Lancaster. a meeting is scheduled for tomorrow. Top of the agenda will be citizens' rights and the Northern Irish protocol."

A meeting did take place on 30 March 2020 by teleconference and the Cabinet Office and Michael Gove MP have published a Readout from the first meeting of the Withdrawal Agreement Joint Committee.

Citizens' rights and Northern Ireland were both discussed and the British government gave the following assurance::

"The UK reiterated our commitment to protecting the Belfast/Good Friday Agreement in all respects, and to upholding our obligations under the Northern Ireland Protocol. The UK emphasised our commitment to EU citizens in the UK and ensuring that UK nationals in the EU have their rights protected consistent with the Withdrawal Agreement."

Because compliance with the existing withdrawal agreement is likely to be crucial to the prospects of success of the new partnership negotiations, the role of the Joint Committee is important. That may well be the reason yesterday for the publication by the Cabinet Office of a Withdrawal Agreement Joint Committee - Fact Sheet at a time when the attention of governments everywhere is focused on other things.

Anyone wishing to discuss this article or the new relationship negotiations generally (and in particular their impact on innovation) should message me through my contact form. If you want a discussion by phone or VoIP I shall be glad to call you back.

EU's Draft Agreement on a New Partnership with the UK

The White Cliffs of Dover seen from Cap Griz Nez

Author Rolf Süssbrich Licence CC BY-SAv 3.0 Source Wikipedia English Channel 

Jane Lambert

Possibly because both sides' chief negotiators have tested positive for COVID-19 (Charlie Cooper UK chief Brexit negotiator self-isolates after showing COVID-19 symptoms 20 March 2020, Politico), the negotiations on the UK's new partnership with the EU has been put on hold since the beginning of this month (see Daniel Boffey UK-EU talks on post-Brexit relations 'in deep freeze'  26 March 2020 The Guardian).

That does not mean that there have been no developments. One of the most important was the delivery on 18 March 2020 of a comprehensive draft agreement to the British government from the European Commission (see Draft text of the Agreement on the New Partnership with the United Kingdom).  According to the Commission's website. that negotiating document was transmitted to the United Kingdom on 18 March 2020, following consultation with the European Parliament and Council. It was presented to the Council Working Party on the United Kingdom on Friday 13 March 2020.

Now anyone who has ever been involved in a negotiation will know that the party that produces the draft text first - whether it is a Tomlin order for the settlement of litigation or a turnkey contract for a new computer system - generally has the upper hand. That is more or less what happened in the withdrawal agreement negotiations.  The European Commission's draft agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community of 27 Feb 2018 was not substantially different from the Agreement on the withdrawal of the United Kingdom of Great Britain and Nothern Ireland from the European Union and the European Atomic Energy Community that the Prime Minister signed, and Parliament ratified with the European Union (Withdrawal Agreement) Act 2020, at the end of January.

The British negotiators ought to know that and they have promised their own draft agreement but nothing has materialized so far.  The Guardian reports that "UK officials said the legal text covering the outstanding areas would be produced at a time of the British government’s choosing, and attempts to find a new method of 'continuous dialogue' were being made" but, so far, nothing has been forthcoming.  Unless an agreement is reached by the end of the year this country loses preferential access to its nearest, largest and richest market under the terms of the withdrawal agreement and the statute.

Now that may suit some politicians' agenda.  The Guardian reports that Mr David Davis has said that the economies of the remaining EU member states will be so ravaged by the coronavirus menace that it will not matter much if the UK loses preferential access to that market because there will be so little trade to lose.  That may be true in the short term but it is one of the reasons that Fitch gave for downrating the UK's credit rating and keeping it on negative watch.  At a time when the UK will need every scrap of business and every penny of investment that it can get, erecting barriers to any trading partner does not seem a good idea.  Moreover, it is not likely that any other country will fill the trade gap. Certainly not the USA which has reported more confirmed cases than any other country and over 3 million unemployed, and probably not China if the British government insists on picking a quite unnecessary quarrel with that country (see Kate Procter Michael Gove appears to blame China over lack of UK coronavirus testing  29 March 2020 The Guardian).

In the hope that wiser counsels may prevail, it is worth looking at the draft partnership agreement. It is 436 pages long divided into 6 parts with some 36 annexes. Part 1 deals with definitions and interpretation and other common provisions, Part 2 with economy and trade, Part 3 with security, Part 4 with the UK's participation in the EU's programmes, Part 5 with institutional and horizontal provisions and Part 6 with final provisions. Readers are most likely to be interested in Part 2.  As it stretches over 202 pages divided into 17 titles it is by far the longest part of the draft agreement.  The titles cover transparency, good regulatory practices and regulatory cooperation, level playing field and sustainability which includes competition, state aid, social protection and climate change, trade in goods, services and investment, digital trade including data protection, capital movements, intellectual property, public procurement, mobility of natural persons, transport, energy and raw materials, civil nuclear and small and medium enterprises.  I have not had time to read every single provision but from the little I have seen which is IP, competition and data protection the draft is in line with the political declaration which the UK government has accepted.

Of course, there would be no point in negotiating terms for a future partnership if either side fails to implement the withdrawal agreement.  Art 164 (1) of that agreement established a Joint Committee comprising representatives of the EU and UK which shall be responsible for the implementation and application of the agreement.  Following telephone discussions between the Vice-President of the Commission and Chancellor of the Duchy of Lancaster. a meeting is scheduled for tomorrow.  Top of the agenda will be citizens' rights and the Northern Irish protocol.

Anyone wishing to discuss this article should contact me through my contact form.  During the coronavirus emergency, our clerks will be working from home in accordance with government requirements and calls to our landline will be diverted to their mobiles.   Readers are invited to contact me directly. If they want to chat I will call them back by phone or VoIP.

The Department for International Trade's Proposals for a US-UK Free Trade Agreement

Jane Lambert

According to the Department for International Trade, "[a free trade agreement] with the US represents significant opportunities throughout the economy, from agriculture to professional services. Potential benefits include better jobs, higher wages, more choice and lower prices for all parts of the UK." On 2 March 2020 the Department set out its approach to trade negotiations, negotiating objectives, response to a public consultation on a UK-US trade agreement and a preliminary assessment of the long-term impacts of a bilateral trade agreement between the UK and the US in a 184-page document entitled  UK-US Free Trade Agreement.

The document consists of an introduction, 4 chapters and an annexe:

• Chapter 1 - Strategic case 
• Chapter 2 - Outline approach 
• Chapter 3 - Public consultation on trade negotiations with the United States: Government response 
• Chapter 4 – Scoping Assessment 
• Annexe - Public consultation on trade negotiations with the United States: Summary of responses.

Chapter 1 estimates the benefits of a trade deal with the USA would be a long term increase in trade of approximately £15.3 billion which could deliver a £1.8 billion boost to UK workers’ wages, lower prices on key consumer goods imported from the USA and thereby raise living standards.  It considers how each of the nations and regions of the UK and particular sectors of the economy could benefit.  For instance,  it could enable professionals to move more easily and support recognition of professional qualifications in accountancy and law 

Chapter 2 outlines the structure of a free trade agreement with the USA covering:

• trade in goods including customs facilitation, technical barriers to trade and sanitary and phytosanitary standards; 
• good regulatory practice;
• trade in services;
• investment;
• intellectual property;
• competition;
• industrial subsidies;
• publicly owned enterprises;
• government procurement;
• sustainability'
• anti-corruption;
• trade and development;
• trade remedies;
• dispute settlement;
• special provisions for small and medium enterprises;
• women's empowerment;
• exceptions to protect national interests; and
• general provisions,

Each of those topics was the subject of a public consultation in 2018 to which the government received 158,720 responses.  Many of these were in identical form from campaign groups but some contained individual suggestions as well as 6,405 non-campaign responses from individuals, businesses, trade associations, non-government organizations and the public sector.  These together with the government's response are set out in the annexe to the document.  Chapter 3 sets out the government's policy on those topics taking into account the consultation and its previous responses.

Chapter 4 provides a preliminary assessment of the potential long-run impacts of a free trade agreement with the USA.  It opens with a snapshot of the UK's existing trade with the USA.  If there were substantial tariff liberalisation and a 25% reduction in non-tariff measures, GDP would increase by 0.07% or £1.6 billion, exports by 4.3% and imports by 4.1%.  If there were full tariff liberalisation and a 50% reduction in non-tariff measures, GDP would increase by 0.16% or £3.4 billion, exports by 7.7% and imports by 8.6%. The chapter models the impact of such tariff reductions and liberalization on the UK's nations and regions and sectors of the economy.   

No timetable appears to have been published for the start of negotiations with the USA. According to the press release Liz Truss kick-starts UK-US trade talks of 1 March 2020, they are expected to begin this month (that is to say, March 2020). Certainly, there is nothing to compare with the detailed negotiations with the Commission on the UK's new relationship with the EU. Nevertheless, I am monitoring such activity as takes place on my Trade Negotiations with the USA page.

Anyone wishing to discuss this article or any of the issues mentioned may call me on +44 (0)20 7404 5252 or send me a message through my contact page.

Negotiations on the Future Relationship between the UK and EU

Author Furfur Licence CC BY-SA 4.0 Source Wikimedia Brexit

Jane Lambert

The negotiations between the British government and the Commission on the relationship between the United Kingdom and the European Union began yesterday afternoon in Brussels with a bilateral meeting between the lead negotiators, David Frost and Michel Barnier (see AGENDA EU - UK Future Relationship 1st Round of Negotiations 2 - 5 March 2020).  I have already discussed the parties negotiating positions in Future Relationship Negotiations: The EU sets out its Stall 26 Feb 2020 and The Future Relationship with the EU The UK’s Approach to Negotiations - An Introduction and Overview 27 Feb 2020). I am also monitoring the negotiations on my EU Trade Negotiations page.

The negotiations are continuing today and tomorrow with negotiations between working parties on the following topics:

1. Trade in goods
2. Trade in services and investment and other issues
3. Level playing field for open and fair competition
4. Transport
5. Energy and civil nuclear cooperation
6. Fisheries
7. Mobility and social security coordination
8. Law enforcement and judicial cooperation in criminal matters
9. Thematic cooperation
10. Participation in Union programmes
11. Horizontal arrangements and governance

Particularly useful resources include The Future Partnership, The European Union and the United Kingdom – forging a new partnership, Documents related to the negotiations with the United Kingdom,
Questions & Answers on the draft negotiating directives for a new partnership with the United Kingdom and the Task Force for Relations with the United Kingdom on the Commission website and the link to member states' websites on brexit.  

Yesterday the British government also published the UK's approach to trade negotiations with the US in UK-USFree Trade Agreement which I shall discuss later.

Anyone wishing to discuss this article or the new relationship negotiations generally may call me on +44 (0)20 7404 5252 or send me a message through my contact page.

Brexit Briefing February 2020

Jane Lambert

One of the reasons why I have followed closely the negotiations on British withdrawal from the European Union and the United Kingdon's future relationship with the EU was to discern the likely future of the unitary patent and the Unified Patent Court.  Ever since HM Government signed the Agreement on a Unified Patent Court I have been tracking the progress of its implementation.  Both before and immediately after the referendum, I had expressed the view that the UK's participation in the project was incompatible with its departure from the EU (see Jane Lambert Were we to go - what would Brexit mean for IP 26 Feb 2016 NIPC Law and Jane Lambert What, if anything, can be salvaged from the UPC Agreement? 26 Jan 2018 NIPC Law).  Surprisingly, there were some, including the British government of the day, who took a contrary view (see Jane Lambert One Year to Brexit - Are Rumours of the Death of the Unified Patent Court Agreement Greatly Exaggerated? 29 March 2018). The only way to find out which view was right was to monitor the withdrawal and future relationship negotiations. This blog was, therefore, a spin-off from my tracking of the unitary patent and UPC's implementation.

I am very sorry to report that I have been proved right.   In an email to the IAM, a spokesperson stated:

“I can confirm that the UK will not be seeking involvement in the UP/UPC system. Participating in a court that applies EU law and bound by the CJEU is inconsistent with our aims of becoming an independent self-governing nation.”

As I said in Volte-Face on the Unified Patent Court Agreement. 29 Feb 2020 NIPC News, that objection was as clear on 26 April 2018 when the Foreign Secretary of the day, one Boris Johnson MP, deposited the instrument of ratification as it is now and the argument that the UPC Agreement was an international treaty outside EU law was untenable (see the IPO press release UK ratifies the Unified Patent Court Agreement  26 April 2018).  The decision to withdraw from the UPC Agreement is unlikely to be in the national interest. It will have been taken for political rather than economic reasons. That is the nature of the times in which we live.

The only other significant news is that the European Council has adopted a decision to negotiate a future partnership agreement with the UK (see Jane Lambert Future Relationship Negotiations: The EU sets out its Stall  26 Feb 2020).   Similarly, the Prime Minister has set out the UK's approach to the future relationship negotiations (see Jane Lambert The Future Relationship with the EU The UK’s Approach to Negotiations - An Introduction and Overview 27 Feb 2020). There is a lot of bluster about walking out of the negotiations and adopting an Australia style agreement if things do not go the government's way but can probably be discounted as strong meat for right-wing hacks and party activists.  It may well be that the EU needs access to the UK's market of 65 million but the truth is that British industry needs access to the EU's 450 million so much more,  Moreover, if one actually reads the addendum to the decision and the strategy document the two sides are not all that far apart.

Anyone wishing to discuss this article or any of the matters mentioned in it should call me on +44 (0)20 7404 5252 or send me a message through my contact page.