27th December 2020
The draft trade agreement between the European Union and the United Kingdom and related documents were published yesterday.
As this blog has previously averred, there is not sufficient time for this agreement and related documents to be properly analysed and scrutinised before the Brexit transition period ends automatically on 31st December 2020.
All one can really do in the time available is read through the documents, spot patterns and complications, and notice the more obvious deficiencies, discrepancies and omissions.
Proper analysis and scrutiny of such a large legal instrument is not and cannot be a linear, read-through exercise.
It is instead complex: comparing provisions within the agreement and related documents, then matching the provisions with external legal instruments, and – most importantly – practically stress-testing the proposed provisions against reality.
As this blog has previously said, legal codes are akin to computer coding – and so quick reviews before deployment will not spot the inevitable bugs.
All that said, there are already some emerging shapes and overall impressions.
The best starting point is the European Union page, which has links to a number of relevant documents.
You will see there that there is not just one draft agreement, for trade – there are also a security of information agreement and a civil nuclear Agreement.
There is also a 26-page document of ‘declarations’.
Also worth looking at is this 2-page table of consequences of the United Kingdom’s departure and the benefits of the agreement.
(Though without the contents pages and judicious use of spacing, numbering and tabes, that explainer would have significantly fewer pages.)
A number of commentators and experts have also shared their early views and impressions.
The excellent team at the Institute of Government have provided initial analyses of the provisions at their site – see the links on the left of that landing page for their looks at individual areas.
I did promise @instituteforgov analysis of the #Brexit deal on 26 Dec… and here it is!https://t.co/RdUj2Tyu1O— Maddy Thimont Jack (@ThimontJack) December 26, 2020
With the caveat this is based off an initial read through – please do shout if you think we are missing something!
More analysis will follow so keep an eye out👀
Professor Steve Peers – author of various leading texts on European Union law – spent Christmas Day and Boxing Day putting together an explanatory thread on Twitter.
The thread, like the rest of his social media output, is an astonishing work of immediate legal commentary and is a boon for the public understanding of law.
Thanks, Santa!— Steve Peers (@StevePeers) December 25, 2020
A few preliminary comments… pic.twitter.com/reCOwwjERU
There was other outstanding commentary.
Trade expert Dr Anna Jerzewska:
While we're all digesting the details, quick point— Dr Anna Jerzewska (@AnnaJerzewska) December 26, 2020
There are two separate questions here:
1⃣ Is this a good deal for the UK vs what we had
2⃣ Is this a good FTA
And I think we should focus on the latter
Services expert Nicole Sykes:
Overall take:— Nicole Sykes (@NicoleSykes_) December 26, 2020
1. There are some areas where business does surprisingly well given red lines eg. aerospace, @AnnaJerzewska has some thoughts on haulage too
2. A lot will come down to implementation and how well bodies crack on with 'cooperating' eg. qualifications, customs 24/25
Former United Kingdom senior trade official David Henig did a post and a thread:
What were UK government priorities in the negotiation? We claimed it was fish and sovereignty, and that without these we would walk away. It turned out these weren't the highest priorities, because of a repeated error of ignoring the internal negotiation. pic.twitter.com/xcos8EWTwr— David Henig (@DavidHenigUK) December 27, 2020
Another trade expert Sam Lowe observed that the trade side of the agreement was thin and – but for politics and choreography – could have been completed more quickly:
My hot take is that while, yes, the EU-UK trade deal has been negotiated in record time, it could quite easily have been all wrapped up by the end of the summer.— Sam Lowe (@SamuelMarcLowe) December 25, 2020
John Lichfield provided an informative thread on fisheries:
Fish thread.— John Lichfield (@john_lichfield) December 26, 2020
Having read the Brexit deal, I believe B. Johnson misled the nation on Thurs when he said Britain could catch “all the fish that it wants ” in UK waters in 5 years’ time. The clear presumption in the text is that EU fleets will have similar access after 2026.1/12
And extradition lawyer Edward Grange had a similarly informative ‘quick look’:
What does the Trade and Cooperation Agreement mean for the UKs #extradition arrangements with the EU27?— Edward S. Grange (@ExtraditionLaw) December 26, 2020
Lets take a quick look
In my own area of particular interest – institutions, governance and dispute resolution – my own very preliminary tweet got widely shared:
About ten pages of the UK-EU trade agreement are devoted to setting up – without exaggeration – dozens and dozens of UK-EU talking shops— davidallengreen (@davidallengreen) December 26, 2020
Committees, assemblies, working groups and so on
All with various powers and functions
Welcome to the future, negotiations without end
And it was even picked up by the Daily Express, which – in an extraordinary and unexpected turn of events – described this blog as an ‘influential blog’.
Anton Spisak looked at this far more closely and he compiled this helpful diagram:
The Brexit deal marks a new beginning of a complex relationship in which Britain and the EU will have to learn to live together differently.— Anton Spisak (@AntonSpisak) December 26, 2020
This is the new institutional infrastructure set up by the treaty. New Partnership Council, 19 specialised committees, 4 working groups. pic.twitter.com/KGWR8IiAge
This elaborate scheme was correctly described by Professor Phil Syrpis as follows:
And all so that the newly sovereign UK can – finally – free itself from the EU’s regulatory orbit. Apparently.— Phil Syrpis (@syrpis) December 27, 2020
The UK has lost its say in the making of EU rules. Now, there are a whole set of new mechanisms seeking to ensure it does not diverge too much.
All this is only ‘first glance’ stuff – a Boxing Day walk-through a long and complicated legal text.
But what is already plain is that what the United Kingdom government is boasting and spinning about the agreement may not be accurate.
Remember, however, that the old saying ‘the devil is in the detail’ is often the opposite of the truth.
Devils lurk and thrive in generalities, mismatched expectations, mutual misunderstandings, and grand sweeping statements.
It is these that bedevil us.
Details – that is precise language – flush out these devils.
And as we understand more about what has actually been agreed in this ‘deal’ – and what was not agreed – we will no doubt see many devils flush past.
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