The UK Government has said it may breach the Withdrawal Agreement it signed with the EU less than 12 months ago. Where does this leave the negotiations on the EU and UK’s post-Brexit relationship?
The future relationship talks, so far
The post-Brexit future relationship talks have already been running for six months. The first block of negotiating rounds ended in June with a political summit, where the only agreement of substance was that the talks should continue. Another block of rounds was duly timetabled, and chief negotiators and their teams have been hard at work. The list of problematic issues has slowly dwindled, and the ones that remain are in sharper focus. However, the emphasis here should be on slowly. Of the four issues identified as sticking points after the first round – level playing field, fisheries, shared governance, and the role of the Court of Justice of the European Union (CJEU) – none appear to be resolved.
And as the EU’s chief negotiator Michel Barnier repeats often, the clock is ticking. This is the case for both sides.
The UK formally left the EU on 31 January 2020, but the UK then entered the “transition period”. The transition period is created by the EU-UK Withdrawal Agreement (which was ratified by the UK on 29 January 2020). It effectively maintains the status quo and allows the UK to continue as if it were an EU member state, whilst not participating in the EU’s institutions and governance structures. But this period will end on the 31 December 2020 when the UK will leave the EU’s single market, customs union and a myriad of other cooperation mechanisms.
The future relationship negotiations aim to allow some cooperation to continue at the end of 2020 in areas of shared interest, like trade, law enforcement, transport, energy etc. by way of an international agreement. The negotiations’ original timetable hoped to see this agreement in time for Member States’ political leaders to endorse at the European Council on 15-16 October 2020. This was to allow sufficient time for ratification and implementation. But more recently, Michel Barnier has suggested instead that the end of October was the “strict deadline”.
Time to move on?
At this stage only one further week of formal talks is scheduled. It appears difficult to envisage that this will be enough for an agreement to be hammered out between the chief negotiators. More talks can be arranged of course, but the political context is also becoming fraught.
On 7 September, the Prime Minister set a hard deadline for walking away from the negotiations.
“There needs to be an agreement with our European friends by the time of the European Council on 15 October if it’s going to be in force by the end of the year. So there is no sense in thinking about timelines that go beyond that point. If we can’t agree by then, then I do not see that there will be a free trade agreement between us, and we should both accept that and move on.”
In the same week the UK government published its UK Internal Market Bill. This Bill provides powers to UK Ministers to be used to protect the UK’s internal market if the UK and EU do not reach agreement on implementation of the Ireland/Northern Ireland Protocol. The Secretary of State for Northern Ireland, Brandon Lewis, admitted that:
“yes, this does break international law in a very specific and limited way. We are taking the power to disapply the EU law concept of direct effect, required by article 4, in certain very tightly defined circumstances.”
The EU’s reaction to this was swift. After an extraordinary meeting of the EU-UK Joint Committee on 10 September, the European Commission set another hard deadline. This one is for the UK to step back from its proposals by the end of September, under threat of legal action.
“Vice-President Maroš Šefčovičcalled on the UK government to withdraw these measures from the draft Bill in the shortest time possible and in any case by the end of the month. He stated that by putting forward this Bill, the UK has seriously damaged trust between the EU and the UK. It is now up to the UK government to re-establish that trust. He reminded the UK government that the Withdrawal Agreement contains a number of mechanisms and legal remedies to address violations of the legal obligations contained in the text – which the European Union will not be shy in using.”
What effect has this had on the state of the future relationship talks?
It’s hard to tell for sure. While the uproar over the UK Government’s internal market proposals was occurring, the talks scheduled to take place across the week continued. The chief negotiators kept largely quiet on the issue in their official statements, but later argued on twitter.
Both sides are probably still assessing their options. The next formal negotiating round begins just ahead of the EU’s “end of the month” deadline for the UK government to withdraw its internal market proposals which are at odds with the Ireland/Northern Ireland Protocol. Presumably the EU and UK will let the current (limited) schedule of talks between the negotiators play out before taking final decisions on what to do next. If this is what happens, then there will be less than a fortnight between the end of the timetabled formal talks and the Prime Minister’s 15 October “move on” deadline.
Michel Barnier’s statement that the end of October was the “strict deadline” implied that the mid-October European Council would not be the final date for a deal, at least from the EU’s side. But the Prime Minister’s deadline explicitly refers to that date as the key decision point.
If there is ultimately no agreement on the EU-UK future relationship signed and implemented before the end of the transition period, then it is worth remembering that the problem does not go away. If the UK wishes to have any formal cooperation or trading arrangements, the EU demands are likely to be the same or similar and the same sticking points bedevilling the current negotiations are likely to arise again.
Iain Thom
Researcher (Environment, Rural, Constitution and International Relations Unit)
SPICe briefing series on the EU-UK future relationship negotiations: A series of SPICe briefings following the EU-UK future relationship negotiations are publicly available from the Scottish Parliament’s digital publications hub. If you would like to receive an email notification when a new briefing in this series is published please contact iain.thom@parliament.scot to be added to the distribution list.