Brexit Briefing March 2020

Cairnryan

Author Linda Bailey Licence CC BY-SA 2.0 Source Wikipedia Cairnryan 

Jane Lambert

This was the month when negotiations for a new relationship with the European Union were supposed to start in earnest. One round did take place at the beginning of the month but the next round and all subsequent ones have been put on hold (see Jane Lambert Negotiations on the Future Relationship between the UK and EU 3 March 2020). That is hardly surprising since both sides have more urgent matters to address. Also, the chief negotiators, Michel Barnier for the EU and David Frost for the British Government, have been indisposed by the coronavirus.

However, two significant events did occur in March.  First, the Commission has sent the British government the text of a draft future partnership agreement on 14 March 2020 just as it did in the withdrawal agreement negotiations.  As I said in  EU's Draft Agreement on a New Partnership with the UK 29 March 2020 "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." The British team probably knows that already which is why it has offered to produce its own draft but, so far, nothing has been forthcoming.

The other important event was the first meeting of the Joint Committee, a body created by art 164 of the Withdrawal Agreement to oversee the implementation of that agreement   The Committee held its first meeting on 30 March under the co-chairmanship of the Chancellor of the Duchy of Lancaster and the Vice-President of the Commission (see Jane Lambert Implementation of the Withdrawal Agreement - Joint Committee's First Meeting  31 March 2020). The Cabinet Office was very quick to publish a readout which suggested that all was agreed:

"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."

The Commission published a more nuanced account expressing concern about British progress in implementing the Northern Ireland Protocol in its statement:

"The parties agreed on the importance for the UK to set out its plans over the coming months with regard to the implementation of the Protocol on Ireland/Northern Ireland. The Commission committed to working with the UK to implement the Protocol. There is an urgent need to present a detailed timetable and proceed with the necessary measures, such as preparing for the introduction of customs procedures for goods entering Northern Ireland from Great Britain, and ensuring that all necessary sanitary and phytosanitary controls as well as other regulatory checks can be carried out in respect of goods entering Northern Ireland from outside the EU."

Clearly, the EU expects customs posts to be erected at Cairnryan and Larne to avoid the need for border controls on the island of Ireland.

In the last Brexit Briefing 1 March 2020, I mentioned the British government's announcement that it would not participate in the Unified Patent Court (see Jane Lambert Volte-Face on the Unified Patent Court Agreement  29 March 2020).  That seemed to spell the end of the Unified Patent Court and the unitary patent although the House of Lords EU Justice Sub-Committee was not prepared to accept it as a fait accompli (see Should inventors be worried by UK opting out of Unified Patent Court? Lords Committee to find out 6 March 2020 EU Justice Sub-Committee, UK Parliament).

The project sustained a further blow when the German Constitutional Court held that the statute ratifying the United Patent Court Agreement was unconstitutional because the lower house of the federal parliament was not quorate when it passed that bill (see Jane Lambert German Constitutional Court's Decision in Re Unified Patent Court Agreement 22 March 2020 NIPC Law).  Immediately after that judgment, the German justice minister announced that a new bill to ratify the agreement would be introduced.  The EU Justice Sub-Committee's Summary published the following observation in its Summary for March 2020:

"The UK Government recently informed the industry that it no longer intends for the UK to participate in the Unified Patent Court system. This is a new system, still in the process of being established, that would allow inventors to apply for a single patent that will then be recognised by all participating states. Although primarily involving European countries, the system sits largely outside of EU law and EU institutions, and so advocates in the sector had hoped participation would not be affected by Brexit. Witnesses at the Committee’s evidence session on 10 March expressed their disappointment in the decision and their belief that Brexit should not need to affect the UK’s participation."

So all is not yet lost (see Jane Lambert  Unified Patent Court refuses to die - Try Growing Garlic 31 March 2020 NIPC News).

Anybody interested in the negotiations with the EU can follow progress on the European Union Trade Negotiations page.  I have also been following trade negotiations with the USA even though there would have been a limit to what the USA could agree with the UK in an election year. The tragic news of coronavirus casualties, business failures and job losses means that it will have very little to offer.  China offers more hope as it appears to be recovering from the COVID-19 pandemic better than most countries.  If our government can avoid picking unnecessary quarrels and its backbenchers resist the temptation to rock the boat our trade with that country should grow.   I have already written about the Belt Road Project and other Chinese initiatives in The Shanghai Cooperation Organization 8 Sept 2017.

Anyone wishing to discuss this article or any of the topics covered is invited to message me through my contact page as my clerks and I are working from home during the current emergency.  I shall be glad to call back by phone or VoIP should any reader want to chat about these issues.   At this very worrying time, I respectfully remind my readers of the World Health Organization advice and hope that they will all stay safe and well.