There are three tricky issues left on the table, and one of them seems impossible to resolve.
First published in December 2020.
As Prime Minister Boris Johnson heads to Brussels to try and move the EU-UK negotiations to a conclusion in their dying days, it’s worth remembering one simple fact: the issues that are causing problems now are the same ones that have always been barriers to a deal.
If the Article 50 talks that ran between 2017 and 2019 were all about ending UK membership of the European Union, then the current negotiations have been about creating a new relationship between the two sides. While the former dealt with the rights of citizens in each other’s territory and the management of the Irish dimension, the latter has been focused on more general trading arrangements and the extent to which the UK wants to remain aligned with EU rules in the future.
First, and perhaps least, is the question of fisheries. As a potent symbol of the failings of EU membership since the 1970s, with depletion of stocks and ever more of the catch being taken by non-UK vessels, it is not so surprising that the UK wants to be out of any obligations to retain elements of the Common Fisheries Policy. “British waters for British fishermen” is also one of the easier slogans to sell to a public that might be otherwise lost in the intricacies of all this.
By contrast, the EU would like to retain its access, partly because so much of the UK catch ends up on European plates but also because the arrangements for fisheries management it proposes are more robust and enforceable than the more usual model of cooperation that exists. Either way, the EU has grounded its arguments in the language of customary practice, which matters a lot in the law of the sea: basically, how things were should be a strong guide to how things will be.
While evocative, fisheries remains a tiny part of either side’s economic activity. So while it might make for punning headlines, it is unlikely to be the thing that makes or breaks this all. In addition, it has the great advantage that compromises can be found in a number of different ways, which makes it an ideal chip in balancing the other two, more fundamental problems.
Level playing field
Of these, the “level playing field” will have the most immediate and obvious impact. In essence, this is simply about whether the two sides can agree that they won’t use a weakening of standards on things like environmental protection or workers’ rights to make goods and services more competitive after Brexit.
The EU is concerned that once the UK is no longer beholden to the commitments that come with EU membership, it might start a race to the bottom on standards. That would have major consequences for EU producers, given the size and proximity of the UK.
By contrast, the British government worries that the level playing field is a means to continue the obligations of membership even after the UK has left the EU. While the government says it has no plans to cut back on protections, it feels it only right that it should have the option to do so, more on principle than on need.
The gap here has been much less bridgeable than fish, because there are very few ways to cut this up. Either you’re committing to follow the other side’s standards, or you’re not. And given that whatever happens on this will affect the entire economy, it’s not something that can simply be brushed under the carpet, especially given the lack of trust in talks right now.
Boris Johnson. | Flickr - Number 10
Prime Minister Boris Johnson talks to President of the European Commission Ursula von der Leyen from his office at Chequers during the Brexit talks.
And it’s that shortage of trust that drives the final issue: governance and dispute settlement. The big sweep of the Brexit process since the 2016 referendum has been one of relations worsening, rather than improving, between London and Brussels. At every major juncture, the UK has acted in ways that raised fundamental questions for the EU about whether the country is acting, or even can act, in good faith.
As a result, the EU wants to be able to ensure that any deal has a robust and effective enforcement mechanism. That involves both the use of the EU’s Court of Justice to pronounce on matters of EU law and a cross-retaliation mechanism. This latter is the notion that non-compliance in one area of any agreed cooperation can be met with penalties in another: so not sticking to fishing quotas might see tariffs on cars, for example.
As well as arguing that its word is bond, the UK has taken the view that, as a non-member of the EU, it cannot still be bound by the EU’s legal order, and that any problems should be contained within their own field, rather than potentially contaminating the entire relationship. Much as with the level playing field element, there aren’t many options here, and the UK’s case is relatively weak, given the practices in other modern free trade agreements around the world. Perhaps some wording to underline that the EU court’s role would be contained to interpretation of the meaning of EU law only might help, but that hasn’t been enough until now.
And this brings us back to the start: none of this is new. Nine months of intense negotiation haven’t solved any of these three elements, so it’s hard to see how any new solutions might be produced by a (potentially brief) meeting between Johnson and European Commission president Ursula von der Leyen. Which might be the point. If a deal is to come together, then it is more than likely to be built from the solutions that were identified long beforehand. What will differ is that this is a political moment – a time when the opportunity to dress all this in fine rhetoric and demonstrative action might overcome the technical awkwardness and negotiating compromises.🔷
Professor Simon Usherwood, Professor in Politics, University of Surrey. All aspects of Brexit and EU-UK relations, plus some learning and teaching.
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