28th December 2020
More is now becoming apparent of the nature of the draft trade and cooperation agreement between the European Union and the United Kingdom.
This post looks at two fundamental issues: structure and duration.
In regard of structure, let us start with what is expressly stated as the ‘purpose’ of the agreement:
‘This Agreement establishes the basis for a broad relationship between the Parties […]’
The word ‘broad’ is significant, especially when one looks at the following provision.
This provision expressly provides that it is envisaged that there will be ‘other’ agreements that will both ‘supplement’ this agreement but will be subject to this agreement.
The key word here, at the end of the numbered paragraph, is that this agreement is a ‘framework’.
As such it is not, and is not intended to be, a once-and-for-all agreement, setting out all the terms of the post-Brexit relationship between the European Union and the United Kingdom.
This will not surprise many (no doubt they are already scrolling down to type ‘why is this a surprise?’ in the comment box below) but it is significant – and consequential – and needs spelling out.
This is explicitly not an agreement which shows that the United Kingdom has, in one single bound, ‘taken back control’ and become free.
The agreement instead shows, even in its first two substantive provisions, that Brexit will be an ongoing negotiation, maybe one without end.
All this agreement does – expressly and openly – is provide a ‘broad…framework’.
Once this is understood then other parts of the agreement make sense.
For example, there are numerous specialised trade committees set up for various sectors.
Loads of talking shops.
But some have rightly noted that some sectors do not have specialised trade committees.
This really is extraordinary. For many years financial services was at the heart of the UK’s EU policy. The U.K. had a significant role shaping policy for the whole region. And now not even a committee..! https://t.co/0js6S5XCmE— Charlotte Moore (@charlotsmoore) December 26, 2020
The specialised trade committees which have been set up, however, oversee certain parts of the agreement.
So, if a sector is not the subject of other provisions in the agreement, then there will not be a specialised trade committee to oversee that sector.
(This is akin to, say, parliamentary select committees that are set up to mirror government departments.)
The reason, therefore, there is not a financial services specialised trade committee under this agreement is that there are no substantive provisions under this agreement on financial services (yet) for that committee to monitor.
If and when there is a ‘supplementary’ agreement on financial services, for example, there will be a corresponding new specialised trade committee.
That new committees can be formed is expressly provided for in the powers of the partnership council, that can ‘by decision, establish Trade Specialised Committees and Specialised Committees’.
The agreement, therefore, envisages both new supplementary agreements and new specialised committees.
(And these envisaged potential extensions are elsewhere in this agreement.)
In other words, this agreement is intended and designed to be a dynamic arrangement between the parties, where areas of trade and cooperation can change and indeed become closer (or less close) over time.
This means one consequence of Brexit is that the United Kingdom has swapped the dynamic treaties of the European Union which envisages things becoming closer (or sometimes less close) over time for a new ‘broad…framework’ dynamic agreement that also envisages things becoming closer (or sometimes less close) over time.
And this is part of the design, as the examples above show.
There is more.
Not only is the agreement envisaged and designed to be dynamic over time, it will also be subject to five-yearly reviews.
So slow, incremental changes within five periods will be complemented by possible far more substantive shifts every five years.
This again is part of the design.
Buried on page 402 of the agreement:
“The Parties shall jointly review the implementation of this Agreement and supplementing agreements and any matters related thereto five years after the entry into force of this Agreement and every five years thereafter.”
And once you realise there is this five year cycle, you notice it elsewhere in the agreement.
There are numerous references to ‘2026’ and ‘five years’.
And as John Lichfield has pointed out in this significant and informative thread, 2026 is also a significant date on the fisheries question:
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
Five year periods, of course, accord neatly with the five year cycles of the European Union.
The European Commission is appointed for a five year term, for example, and the European Parliament is elected every five years.
Each President of the European Council also tends to serve a five year term.
So this five year cycle of reviews is convenient for (and is no doubt designed to be convenient for) the European Union.
Each Commission, each European Parliament, and each President of the European Council, will have its turn to shape the relationship with the United Kingdom, before handing it onto the next.
The five year cycle also may suit the United Kingdom.
The Fixed-term Parliaments Act provides that each parliament should last five years – though, of course, this statute is set for repeal.
But, in any case, the politics of the United Kingdom generally tends to follow cycles of four to five years.
And if Fixed-term Parliaments Act stays in place, the next general election is in 2024, just in time for the run-up to the next review of the agreement.
The trade and cooperation agreement is expressly and openly designed to have both small changes within five year cycles and potentially big changes every five years.
As such, this agreement is not the end of Brexit.
The agreement is not (and is not intended to be) a once-and-for-all settlement of the relationship between the European Union and the United Kingdom.
It is instead – deliberately – a dynamic agreement, capable of enabling closer union (or less close union) over time.
The five year cycles accord exactly with the convenience of the terms of the European Union and also roughly match the political cycle of the United Kingdom.
This agreement does not bring Brexit to an end, it is instead a five year political truce.
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