Better Late than Never - The UK Counter Proposals in the New Relationship Negotiations

Jane Lambert

In my Brexit Briefing for April 2020, I wrote that Monsieur Barnier had come close to accusing British officials of negotiating in bad faith for not discussing commitments that their government had made in the Political Declaration except in the most general terms and by responding to a draft treaty that the Commission had proposed on 18 March 2020 with a number of text proposals which Monsieur Barnier has been asked not to share with the member states or the European Parliament. He was scarcely less critical in his remarks after round 3 of the negotiations on 15 May 2020.

By a letter dated 19 May 2020, Mr David Frost who described himself as our "Sherpa and EU Advisor" addressed some of Monsieur Barnier's concerns. The letter enclosed a 291-page draft Comprehensive Free Trade Agreement ("the CFTA"), a policy document entitled The Future Relationship with the EU, several draft annexes to that agreement and draft agreements on fisheries, air transport, civil aviation safety, energy, social security coordination, civil nuclear energy, law enforcement and judicial cooperation on criminal matters, transfer of unaccompanied asylum-seeking children and readmission of people residing without authorization,

In his letter, Mr Frost agreed to the sharing of the letter and draft agreements with the governments of the remaining member states.  He added:

"We are making the texts public as a constructive contribution to the negotiations, and in particular as a response to your suggestions in the last two Rounds that it would help you explain our proposals in more detail to Member States. We are very clear that we are not seeking to negotiate directly with Member States and that it is for you, as the EU’s negotiator, to manage any differences of perspective that may emerge. I hope that today’s publication will facilitate that work and clear up any misunderstandings about the purpose and effect of what we have put to you."

 The text of the British proposals replicates many of the provisions of the EU's free trade agreements with other countries such as Canada, Japan and South Korea. In Mr Frost's words:

"our legal texts draw on precedent where relevant precedent exists (and we have made pragmatic proposals where it does not, for example on road transport or energy cooperation). So, for example, our draft FTA approximates very closely those the EU has agreed with Canada or Japan. Our draft fisheries agreement is very close to the EU/Norway Agreement. Our aviation proposals are similar to those the EU has agreed with other third countries. Our draft civil nuclear agreement is very close to similar cooperation agreements that Euratom (and indeed the UK) has concluded with other third countries. And so on."

The rest of the letter complains of the structure of the 18 March draft:

"Overall, at this moment in negotiations, what is on offer is not a fair free trade relationship between close economic partners, but a relatively low-quality trade agreement coming with unprecedented EU oversight of our laws and institutions"

Mr Frost concludes:

"I remain convinced that it would be very straightforward for us to agree a modern and high-quality FTA and other separate agreements, like those you have agreed with other close partners around the world, and that we could do so quickly."

The draft CFTA is a substantial document consisting of 34 chapters and the policy document is a detailed explanatory note.  Chapter 24 on intellectual property, for example, is 27 pages long.  It is a serious negotiating document and a much better offering from the HM government than I had expected.  How far or indeed whether. it will appeal to the other side remains to be seen.  The point has already been made that the UK economy is bigger than that of most other states with which the EU has made free trade agreements and that it is closer than any of them.

Anyone wishing to discuss this article or any of the topics mentioned in it may message me through my contact form.  I will reply by email, phone or video.

Brexit Briefing April 2020

Author NIAID Licence CC BY 2.0

Jane Lambert

The world has changed since 23 June 2016 and indeed much of that change has occurred since 12 Dec 2019. The United States and the United Kingdom have suffered more deaths from CORVID-19 than any other country and a severe contraction of economic activity. The virus has affected other large countries but not to the same extent.  The other significant event that occurred in April was the announcement that China had overtaken the USA in the number of applications for patents through the Patent Cooperation Treaty for the first time ever (see WIPO PR/2020/848 7 April 2020).  In terms of domestic applications, China is considerably further ahead.  That country filed 1.5 million applications compared to the USA's 597,000 {see World Intellectual Property Indicators 2019 -Patents WIPO 2019).

Despite those changes, British officials are quietly pursuing negotiations that are likely to result in trade barriers with the UK's nearest and largest market from 31 Dec 2020 and an American administration in an election year that is struggling to control the pandemic and the resulting economic downturn.  Such policy would, of course, be justified by the 2016 referendum result and the 2019 general election though it is probably the case that the government won with remainder votes who were more afraid of Corbyn than they were of brexit.

The new relationship negotiations resumed in April as I noted on 18 April 2020 in Barnier and Frost talk at last and two rounds have actually taken place. In a press statement by Michel Barnier following the second round of future relationship negotiations with the UK on 24 April 2020, the EU chief negotiator warned of

"two very real deadlines that we are faced with and which have been set by law:

• 30 June 2020: Will we decide or not, before that date, and by joint decision with the British, to extend the transition period, according to the possibility that is foreseen in the Withdrawal Agreement?

• And, 31 December 2020 – the date of the ‘economic Brexit', following the ‘political Brexit' that took place at the beginning of this year: On this date, which will bring important and definite changes in many areas, will the United Kingdom leave the Single Market and Customs Union with or without an agreement with the EU?"

By a circular dated 29 April 2020, the Commission announced that it had reviewed and updated the plans that it had made for a British departure from the EU without a withdrawal agreement and has set them out in a number of sector readiness notices that can be found on its Getting ready for the end of the transition period page.

In his statement, Monsieur Barnier came close to accusing British officials of negotiating in bad faith. In the Political Declaration that accompanied the withdrawal agreement, both sides made commitments for the future framework that British negotiators refused to discuss except in the most general terms.  There is concern that the British government is failing to implement the provisions of the withdrawal agreement that would enable the border between Northern Ireland and the Republic of Ireland to remain open.  In order to monitor such implementation, the Commission has sought permission to open a representative office in Belfast which was refused by the Paymaster General on 27 April 2020 (see the letter from the Rt Hon Penny Mordaunt MP to Helga Schmid and Michel Barnier).  Further, the only British response to the draft treaty that the Commission proposed to the UK on 18 March 2020 has been a number of text proposals which Monsieur Barnier has been asked not to share with the member states or the European Parliament.

Negotiations began with the US Trade Representative on a trade agreement with the USA on 5 May 2020 after a two-month break with platitudinous statements on both sides (see Joint Statement of UK International Trade Secretary Liz Truss and USTR Robert Lighthizer  5 May 2020 Department for International Trade and Statement of USTR Robert Lighthizer on the Launch of U.S.-UK Trade Negotiations 5 May 2020 Office of the US Trade Representative).   It is worth remembering that any deal with the USA will have to be approved by the US Senate which will have concerns if a largely US brokered peace deal in Northern Ireland breaks down as a result of the failure to honour the commitments on Northern Ireland in the withdrawal agreement.

I shall be updating the EU new partnership negotiations page and the US trade agreement negotiations page.  Ideally, there should be a page on British involvement with the one belt one road initiative and the UK's relationship with China which is already providing much of the investment and technology for the UK's next generation of nuclear power stations, high-speed rail and 5G mobile communications but at the moment that relationship seems to be going nowhere.  Anyone wishing to discuss this article or any of the issues raised in it should call 020 3819 8725while lockdown continues or message me through my contact form.