Michel Barnier's Statement at the End of the Fourth Round of Negotiations

Michel Barnier
By Foto-AG Gymnasium Melle,
CC BY-SA 3.0,

Jane Lambert

As I said in my May Brexit Briefing, a fourth round of talks between British and Commission negotiators was scheduled for the 2 to 5 June 2020.  They have now taken place and a statement has been made on their progress by Michel Barnier (see Statement by Michel Barnier following Round 4 of negotiations for a new partnership between the European Union and the United Kingdom 5 June 2020).

On its face, it does not make very encouraging reading.  Monsieur Barnier said that there were four big sticking points, namely:

• "Fisheries, and free and fair competition, the so-called ‘level playing field' – two essential elements of the new economic partnership we want to build;

• Guarantees protecting people's fundamental rights and freedoms needed to underpin a close police and judicial cooperation in criminal matters;

• And finally, the governance of our future relationship."

On none of those issues, according to Monsieur Barnier, has there been any significant progress.  He complains that the British wish to renegotiate the Political Declaration setting out the framework for the future relationship between the European Union and the theUnited Kingdom which the Prime Minister signed and expressed concerns as to the implementation of the Northern Ireland Protocol to the Withdrawal Agreement.

There has been no parallel statement from the British side.  As I said in my comments on the British counterproposals and Brexit Briefing a lot more work has been done on the British side than might be expected for mere window dressing. Nevertheless, Andrew Bailey, the Governor of the Bank of England has warned business leaders to prepare for the present transition or implementation period to expire without an agreement (see Ryan Weeks Bank of England governor tells banks to brace for no-deal Brexit – report 3 June 2020 Financial News).

I have added Monsieur Barnier's speech and my comments to my EU negotiations page. I am also monitoring the UK's negotiations for free trade agreements with the USA and Japan.  Despite the deteriorating relationship with China over Huawei, Hong Kong and responsibility for the pandemic I am minded to monitor China's Belt, Road Initiative ("BRI").  The BRI is a massive infrastructure project over the next 30 years for which British businesses and their professional advisors are well placed to win contracts.  I am under no illusions as to the nature of the present Chinese leadership but while countries' interests remain constant governments and policies can and do change.

Anyone wishing to discuss this article or any of its topics should call my clerk Stephen Somerville on 07986 948267 or send me a message through my contact page.

Brexit Briefing May 2020

By ClemRutter, Rochester, Kent. - Own work,
CC BY 2.5, https://commons.wikimedia.org/w/index.php?curid=2163988

Jane Lambert

A lot happened in May.  Mr David Frost presented British proposals for a comprehensive free trade agreement with accompanying agreements on various other matters (see Jane Lambert Better Late than Never - The UK Counter Proposals in the New Relationship Negotiations 19 May 2020). Michel Barnier answered David Frost's shrill and petulant covering letter from David  Frost of 19 May 2020 with a firm but measured and courteous response the very next day. The British government resumed its negotiations with the USA for a free trade agreement on 5 May 2020 and published its proposals for a free trade agreement with Janan.

The British proposals are structured very differently from the draft agreement of 18 March 2020 but they are a substantial set of documents and contain many provisions upon which the Commission ought to be able to agree.  It is said that Mr Frost's letter irritated many on the continent but they will be aware that Mr Frost and his political masters have an audience of Conservative backbenchers and a Eurosceptic press.  Another round of negotiations begins today on an agreed agenda.  For the first time since negotiations began, both sides' proposals have been exchanged.

If there is to be an extension to the 11th-month transition or implementation period it has to be agreed in June. A bill to extend that period has been introduced into the House of Commons by Sir Edward Davey, acting leader of the Liberal Democrats. It is supported by the Scottish National Party, Plaid Cymru, the Green Party, the Alliance Party and the Social Democratic and Labour Party in Northern Ireland but not the Labour Party and it has been welcomed by Monsieur Barnier in a letter dated  25 May 2020 (a copy of which can be downloaded from this blog's EU negotiations page.  Labour's reticence has surprised some but it can probably be explained by the fact that he party under its new leader is doing rather well in the polls and sees no advantage in picking fights that it can't win,

Many commentators are gloomy about the outcome of the new relationship negotiations but I am not so sure.  A lot of work has been done on the British draft agreements which would have been pointless had they been intended to fail. The UK needs continued access to the single market more than its negotiators concede because there is no obvious alternative. With the highest number of coronavirus deaths in the world and record unemployment, the US economy is in an even worse mess than ours.  It now has race riots in its major cities with which to contend.  Relations with the other economic superpower have deteriorated still further with the Chinese government's clampdown on Hong Kong.

Anyone wishing to discuss this article or the new relationship negotiations, in general, should call 020 3819 8725 while lockdown continues or message me through my contact form

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.

Barnier and Frost talk at last

Foto-AG Gymnasium Melle / CC BY-SA
(https://creativecommons.org/licenses/by-sa/3.0)

Jane Lambert

Negotiations for a new partnership between the Europen Union and the United Kingdom took place in Brussels between 2 and 5 March 2020 (see Negotiation rounds on the future partnership between the European Union and the United Kingdom).  Those negotiations were due to continue through March and April 2020 as set out in the Terms of Reference on the UK-EU Future Relationship Negotiations). For various reasons, those negotiations did not resume until 15 April 2020.

According to a Joint statement by EU and UK negotiators following the videoconference on 15 April 2020, the two sides took stock of the technical work that has taken place since the first negotiating round on the basis of the legal texts exchanged by both sides.  The reference to an "exchange of texts" is interesting because the public was aware of a draft agreement that had been proposed by the Commission on 18 March 2020.  The initial British response was that a legal text covering the outstanding areas would be produced at a time of the British government’s choosing  (see Jane Lambert EU's Draft Agreement on a New Partnership with the UK 29 March 2020).  That text, which is still to be published, apparently contained major areas of convergence as well as divergence.

The negotiators agreed to continue negotiations by video conference on the weeks commencing 20 April, 11 May and 1 June. Each negotiating round will last a week rather than the much shorter periods set out in Annex B to the Terms of Reference.

The parties also welcomed the first meeting of the Joint Committee (Implementation of the Withdrawal Agreement - Joint Committee's First Meeting  31 March 2020) and that the proper and timely implementation of the withdrawal agreement including the Northern Ireland Protocol was a key priority for both sides.

Also on 15 April 2020, the Managing Director of the IMF called for the negotiating period to be extended beyond the 31 Dec 2020 because of the "unprecedented uncertainty" arising from the pandemic.  Mr Frost tried to slap down any suggestion of this kind on twitter:

Extending would simply prolong negotiations, create even more uncertainty, leave us liable to pay more to the EU in future, and keep us bound by evolving EU laws at a time when we need to control our own affairs. In short, it is not in the UK's interest to extend. 2/2

— David Frost (@DavidGHFrost) April 16, 2020

Well that may be Mr Frost's view and it is possibly even his instructions but the world has changed. Coronavirus has laid waste to Italy and Spain but the damage to those countries is greatly exceeded by the loss of life and economic destruction that it has wrought in the USA. America is in no position to make good our restricted access to the European single market. When the facts change maybe the policy should change with them.

Anyone wishing to discuss this article may call me my clerk Stephen Somerville on 07986 948267 or send me a message through my contact form.

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.

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.