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.

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