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The Brexit negotiations, having completed the eighth round, are now proceeding on an informal basis following a summer during which no discernible progress has been made toward an acceptable deal. While rumours abound of ‘progress’, essentially the EU is still offering a future trade agreement that represents poor value for the UK and is very advantageous to the EU’s trading interests, covering goods not services, and only then in ways that suit the EU. The EU is also making extraordinary demands that the UK agree to terms not contained in any comparable trade agreements. These include wide-ranging controls over the UK’s future State aid and other so-called ‘level playing field’ issues and de-facto annexation by the EU of the Northern Ireland (NI) economy, as well as of a large share of the UK’s natural fisheries resources.
The UK government is rightly resisting these demands, and is willing if necessary to ‘walk away’, either with no trade deal or with a very limited deal on the future UK/EU relationship. As recent events have shown, this increasingly raises the question of the acceptability of the concluded and ratified Withdrawal Agreement (WA) and the NI Protocol (NIP). We have previously reported in depth on the multiple problems riddled throughout these documents.
The WA and the NIP encroach on UK sovereignty by imposing EU law, European Court of Justice (ECJ) jurisdiction, uncapped liabilities and other EU demands on the UK. The quid pro quo for the UK – the only one – was that this year was meant to be spent agreeing a future relationship arrangement that respected UK sovereignty and replaced the initial unequal obligations with a durable solution. It might be thought that in the event of a ‘no’ or a ‘limited’ deal at the end of this year, those EU-imposed legal constraints would simply fall away when the Transition Period ends. However, this is not so. The UK must take firm and proactive steps for that to happen.
The UK also wishes to reach a win-win future relationship deal, durable enough to be worthwhile. For this, the deal needs to respect the entirety of UK sovereignty and properly address services, including financial services. EU propositions involving ongoing EU control over aspects of UK law and its economy, such as through the EU’s State aid laws and its politicised ECJ, cannot form part of any such arrangement. Nor can the UK be subject to ongoing liabilities to the EU, as determined by the EU.
The errors of Theresa May’s administration, and the political earthquake they caused, are lessons for the future. The flaws and inconsistencies in the EU’s position need to be grasped and addressed, not acquiesced in, whether wittingly or unwittingly. The Government’s controversial UK Internal Market Bill, while addressing some conflicts in the WA, does not achieve this.
This paper addresses how the UK should tackle the remaining period of negotiation to optimise any future trading relationship with the EU and ensure that we achieve a sovereignty-compliant Brexit.
In order to achieve such an outcome, the UK must
I. Recognise the reality of its current position and build on its recent legislative initiatives
II. Terminate and replace – or void – the WA/NIP before 31 December 2020, replacing it with a win-win UK-EU FTA
III. Motivate the EU to cooperate by employing negotiating leverage available to the UK, the US, and other countries
IV. Appreciate the legal, political, and national consequences of failing to act before 31 December