The Future Relationship with the EU The UK’s Approach to Negotiations - An Introduction and Overview

Jane Lambert

Except for the misleading and mischievous inference in paragraph 2 that the UK was somehow less than economically and politically independent while it was one of the most powerful and influential EU member states and the reference to a non-existent agreement between the EU and Australia in paragraph 7, the policy statement entitled The Future Relationship with the EU the UK’s Approach to Negotiations CP 211 is considerably less confrontational and better thought through than many of the documents emanating from our side than in the negotiations for the withdrawal agreement.  It is, of course, very different in form from the European Council's Decision authorising the opening of negotiations with the United Kingdom of Great Britain and Northern Ireland for a new partnership agreement.  A Council Decision is a legal instrument that binds the European Commission's negotiating team.  A policy statement binds nobody though a departure from its terms might have political consequences.

The policy statement proposes a comprehensive free trade agreement consisting of 33 chapters:

• Chapter 1: General Definitions and Initial Provisions 
• Chapter 2: National Treatment and Market Access for Goods
• Chapter 3: Rules of Origin
• Chapter 4: Trade Remedies
• Chapter 5: Technical Barriers to Trade (TBT)
• Chapter 6: Sanitary and Phytosanitary (SPS) Measures
• Chapter 7: Customs and Trade Facilitation (CTF) 
• Chapter 8: Cross-Border Trade in Services
• Chapter 9: Investment
• Chapter 10: Temporary Entry and Stay for Business Purposes
• Chapter 11: Domestic Regulation
• Chapter 12: Mutual Recognition of Professional Qualifications
• Chapter 13: Telecommunications Services
• Chapter 14: Delivery Services
• Chapter 15: Audio-Visual Services
• Chapter 16: Financial Services
• Chapter 17: Digital
• Chapter 18: Capital Movements, Payments and Transfers
• Chapter 19: International Road Transport
• Chapter 20: Subsidies 
• Chapter 21: Competition Policy
• Chapter 22: State Owned Enterprises, Enterprises Granted Special Rights or Privileges and Designated Monopolies
• Chapter 23: Intellectual Property
• Chapter 24: Good Regulatory Practice and Regulatory Cooperation
• Chapter 25: Trade and Sustainable Development
• Chapter 26: Trade and Labour
• Chapter 27: Trade and Environment
• Chapter 28: Tax
• Chapters 29-31: Administrative Provisions, Transparency, and Exceptions
• Chapter 32: Managing the Agreement
• Chapter 33: Final Provisions.

Some of the issues raised by the policy statement will be less controversial than others.  For instance, I can see no discernible difference between HM government's position on intellectual property than the Council's. On the other hand, there is a difference in approach to competition policy, particularly in relation to state aid.

The British government suggests separate agreements in relation to fishing, aviation, energy, mobility and social security coordination, continued participation in certain EU programmes such as Erasmus and Horizon, nuclear cooperation, law enforcement and judicial cooperation, asylum and migration, the security of information and other matters.

The paper also addresses technical and other processes beyond the scope of the future relationship negotiations such as third country listing and similar procedures for animals, plants and foodstuffs, data adequacy, equivalence in financial services and civil judicial cooperation.  I am heartened by the government's aspiration to contract to the Lugano Convention which would effectively continue the arrangements under the Brussels Convention.

Anyone wishing to discuss this article or the future relationship negotiations, in general, should call me on +44 (0)20 7404 5252 or send me a message through my contact form.

Brexit Briefing - July 2019

10 Downing Street

Author Sgt Tom Robinson RLC/MOD
Licence Open Government Licence  v. 1.0
Source Wikipedia 10 Downing Street

Jane Lambert

On 24 July 2019 HMQ invited the Rt Hon Boris Johnson MP to form a government. Immediately, he installed a new team of ministers and advisers with the mission of withdrawing the United Kingdom from the European Union by 23:00 on 31 Oct 2019. Ostensibly the Johnson administration's objective is to negotiate a new withdrawal agreement within the meaning of art 50 (2) of the Treaty on European Union or renegotiate the existing draft but its preconditions for resuming talks are well beyond the negotiating guidelines of the European Council of 29 April and 15 Dec 2017 and 23 March 2018. According to Daniel Boffey and Rowena Mason, the Commission has advised the governments of the 27 member states that "Boris Johnson has no intention of renegotiating Brexit deal" (5 Aug 2019 The Guardian).

Now announcements of that kind are not always to be taken at face value. It is possible for one side or the other to make sufficient concessions to enable a deal to be done.  Parliament may pass a motion of no confidence or even a statute requiring the revocation of the notice of intention to leave the EU in the event of no-deal,. But these are unlikely.  They will require an act of political courage on the part of a sufficient number of remain minded Tory MPs that few have exhibited to date. There will be enormous demonstrations by brexit supporters and possibly even civil unrest.  The recent plunge in the value of the pound suggests that markets anticipate a disorderly brexit, that is to say, leaving without a withdrawal agreement.

And then what?  In Preparing Brexit: No Deal, the Institute for Government warns that:

• It will be much harder and more complex to strike a deal with the EU;
• No-deal means losing deals with many other non-EU countries;
• A showdown in Parliament cannot be avoided:
• Brexit will dominate Whitehall;
• The government will have to support struggling and failing businesses: and
• The Union will come under unprecedented pressure.

Will we gain in a trade deal with the USA what we lose from erecting barriers between ourselves and our nearest and largest market?  Possibly, but unlikely (see What Sort of Trade Deal (if any) could the UK negotiate with the USA? 8 June 2018).  This morning we were flattered by Senator Tom Cotton and 44 of his colleagues in Cotton, Colleagues Pen Letter Pledging to Back Britain After Brexit 3 Aug 2019. But we were exposed to some healthy realism by former Treasury Secretary Larry Summers who made the point that we have very little leverage in any negotiations with the Trump administration

What can businesses and individuals do to mitigate the consequences of a hard brexit? Obviously, take note of the avalanche of guidance notes and emails that are likely from the government in the next few weeks but there are also a lot of useful suggestions in the CBI's What comes next? The business analysis of no deal preparations (see Practical advice on preparations for No deal from the CBI and IfG 1 Aug 2019).

Anyone wishing to discuss this article or legal issues relating to brexit generally should call me on 020 7404 5252 during office hours or send me a message through my contact form.