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.
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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.
The corresponding page of the United Kingdom government has fewer resources but there is this 34-page explainer which summarises at a high-level the ‘core’ provisions of the agreement.
(Though without the contents pages and judicious use of spacing, numbering and tabes, that explainer would have significantly fewer pages.)
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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
/1
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
Thread
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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.
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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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Is there much chance of the UK adopting the EU approach, of approving the deal in principle and applying it provisionally, pending a detailed review and formal ratification later in 2021? (However sensible that might be, politically I suspect the answer is “no” – Johnson needs to be seen to get Brexit finally “done”, even if portions of the cake will be in and out of the oven for years to come.)
The other way around, assuming this is a “mixed” agreement, are we going to see every national and regional parliament in the EU sticking its oar in? What if the Walloons or the Flemings object? Do the people of Bruges keep their access to UK waters under the 1666 Fisheries Charter of Charles II? https://www.bbc.co.uk/news/amp/world-europe-55190259
Forgive my layman’s question, but does thos proliferation of “talking shops” tell us that this deal was only able to be agreed so quickly (compares to the decade or more that most such FTAs seem to take) because they agreed to pass most of the details on to these committees, and focused on the broad topics and headlines, like fish, instead? If yes, does this mean that it’s not really done, yet?
As a fellow layman, I’d suggest that the Partnership Committees and their subsets are ‘in -life’ oversight boards, designed to monitor and address diversions from the framework – of which there will inevitably be many. The deal is done – but as with any agreement, its performance (in uniquely uncharted waters) has to have a degree of regulated oversight and scope for negotiated diversion. Practically vital, but no doubt offensive to the most ardent ERG members.
When it comes to talking shops and committees the following quote from one of Pratchett’s Disciples books comes to mind:
‘What the Iron Maiden was to stupid tyrants, the committee was to Lord Vetinari; it was only slightly more expensive, far
less messy, considerably more efficient and, best of all, you had to force people to climb inside the Iron Maiden.’
Discworld, not disciples. Damned autocorrect.
Brexit is not going to deliver any advantages (a fact Lord Heseltine eloquently points out in his most recent letter to European Movement members). It was always a damage limitation exercise, but this was not something HMG either recognised or felt willing to admit.
The fate of the exercise, and how quickly (or not) calls to reverse it and rejoin the EU begin will depend on how badly it impacts people’s lives and UK-EU trade. The former is likely to be the critical factor, but if the latter starts pushing up prices and killing off jobs, there will be a ground-swell against this act of self-harm. It will emerge as a theme before the next general election and has the power to force an overdue revision to the UK’s electoral system if, as I suspect, Labour doesn’t pick up the guantlet and run with it: the LibDems certainly will. The Tories will not be able to rest on the laurels of “got Brexit done” and an “oven ready deal” that left the nation with a bad does of economic food poisoning. The division between its (assendent) Eurosceptic wing and its saner, traditional, business freindly side have not gone away – the Tory civil war is most definitely still on.
And aye yet we wail the loss in pounds, shillings and pence. But Farage and the ERG appealed to the heart, promising we would be world beating and wealthy, we should be slaves to no one! break free of the chains!! recover our glory!!! take back our own sovereignty!!!! become great again!!!!!
Born in Bannockburn, but I used always to feel British first; nationalists look the wrong way: backwards & inwards. And so the distress I feel is more in the heart than in the head. Brexit Blighters broke Blighty.
With hindsight (that wonderful thing), it seems the PM’s political objectives may have been:
1) to get a deal
2) to get a deal so very very late that there is insufficient time for proper parliamentary scrutiny or oversight – perhaps most importantly, scrutiny by Tory MPs.
Was that the best available strategy, after the 2016 vote? It may have been the only one that avoided no deal.
I think the remedies available if either party deviates, fails to comply with laws or takes unacceptable actions like disregarding the ECHR are particularly interesting.
I suspect these are more useful to the EU and what we saw at Dover before Christmas may become a more familiar sight as our government struggles to live up to its obligations.
Praised by the Daily Express.
It has been a very strange year.
Thank you Mr Green, very useful links,
But, alongside analysing the detail as you and your fellow workers are doing, the key point that must be emphasised over and over again is that the way of carrying out this deal (let alone the actual detail) is a catastrophic failure by this shambles of a government. To agree a deal of this complexity a few days before implementation is the very summit of incompetence. We, sadly, have a Prime Minister and a Cabinet that simply do not understand how trade actually works in practise. How far this once mighty trading nation has fallen! Dear heavens, the sheer waste of effort, of endless, pointless forms, of time and of money that so many people will now be put through in order that the Prime Minister can get some spurious, meaningless headline, while we end up in a position horribly worse than we enjoyed before. Even now I am sure he and his fellow children-dressed-up-as-adults are dreaming up some seven year old’s idea of a photo stunt to illustrate his “apparent success”.
Now that Boris has succeeded
With his ” lets get Brexit done”
We Scots now go about with
Lets get Independence done
Cutting off your nose to spite the face.. such an intelligent idea!
It’s no such thing. It’s certainly not in the same league as Brexit if we’re talking about acts of self-harm and Pyrrhic Victories.
Living as I do in the NE of England, believe me when I say that if I could, I’d have my part of the country go with them.
And you would be welcome. The reality on the ground is that we are more akin than either of us are to London and Roseland. Johnson’s ever closer Union concentrated in Downing St. can no longer hold. We either get regionalisation, or we split.
Agree with Brian Doyle re the English getting out of the EU, next step they should take is to get out of Scotland AND Ireland.
As a southern English member of the Lib Dems I find it difficult to accept that anyone could argue for a second EU referendum and against a second independence referendum. Both would have been, or are, legitimate and reasonable.
So after 4 1/2 years the easiest deal in history is done. It looks nothing like the promises of 2016, but with only a few days before the cliff edge, it’s this or nothing. Over the next few months we will learn more, but it’s difficult to see that we will get the benefits to compensate for the divisions we have suffered since the referendum
An omitted little niggle that no-one’s talking about: we continue the *research* cooperation of Euratom, even though we are definitely not members of Euratom any more.
It’s in there, with the five continuing cooperation agreements in European science. Continuing research cooperation with Euratom.
But there’s no mention whatsoever of the other things Euratom does – or rather, did – and I’m not convinced that there’s a legal framework for safety certification, reprocessing, trade in fuel-handling equipment, or the movement of (say) industrial inspection instruments with radioisotope x-ray sources.
Observant readers of the Article 50 Letter will recall that we made a point, separately and explicitly, of resigning from Euratom – we were a founding member, back in the days before the EU, the EC, and even the Coal and Steel Community – as well as from the European Union; so we made quite, quite sure that we’d Brexit Euratom while we were at it.
Well.
It is illegal under international (and European) law to move nuclear materials across a border unless the recipients are certified as fit and proper persons to receive them: suitably-qualified, with full certification of their training, their handling and transit and storage equipment, and all of the associated processes.
Likewise, any equipment for nuclear research, and for nuclear power generation and the associated fuel cycle.
Likewise, equipment and personnel for the decommissioning of nuclear sites.
Euratom is (or was) the legal and technical framework for that.
It no longer exists, for us in Brexitstan, other than as a non-tariff barrier. And, of course, as a framework for continuing cooperation in existing research projects.
If you want an example of the problems this will cause, let me pick one out of a hat…
Some of the architecturally-exciting new office buildings in London have diagonal beams and braces resting on colossal rocker bearings that are X-rayed when the building is constructed, and every five to ten years thereafter.
The last time I saw this done, it involved a portable rig that arrived from Harwich on a fleet of trucks; one of six such rigs – and crews – that travel continuously around Europe, accompanied by electronic documentation that would probably weigh three times as much as the radiation shielding and the hydraulic positioning rams, if anyone spent the next three years attempting to print it all out.
All six of those inspection rigs, and their crews, are now on the other side of the English Channel.
This structural inspection is a condition of the building’s insurance for occupation and use as an office.
That insurance is an essential legal underpinning of the bonds and loans and funding vehicles which paid for the construction of the building, and it needs to be up-to-date when the building is sold or re-financed.
If the structural inspection certificate is out-of date, the building’s locked: essential maintenance only, and kiss the rent goodbye.
If it is particularly exciting architecture, and it’s leaning sideways onto those rocker bearings, the same is probably true of the building next door.
The question “What will happen when it lapses?” is rather important to commercial property lenders and bondholders.
And, I would imagine, to the pension funds who seem to be enthusiastic investors in London’s very top tier of ‘landmark’ commercial property.
Some of it is very exciting architecture indeed.
The invisible tonnage of documentation which accompanies that inspection rig will not come back into existence with an airy ‘Make it so!’ and I am not at all reassured by the progress that my academic friends are making in restarting Britain’s university degrees in Nuclear Engineering.
I don’t think that we can construct that inspection rig in Britain and I know that we can’t crew it. And even if we could, we’d have to do it all within a new domestic certification framework which would take years to draft and implement.
Red tape is a thing with nuclear materials; good luck arguing against it if you ever meet someone who knows what happens when nuclear safety procedures have failed.
It’ll take a while to find a suitably-qualified legal professional, who can tell you where those arguments run up against (say) the Non-Proliferation Treaty. However, I predict that their answers will be refreshing, and short.
Facilitating that structural x-ray is one example of one – just one! – of the things that Euratom used to do for us.
We’ll find out about the others, soon enough.
Sound point.