24 Feb 2020

A fraught negotiation looms between the EU and the UK


There are increasing grounds for concern that the UK is backing away from the legal and political commitments it made last October in its Withdrawal Agreement with the EU. The Withdrawal Agreement was made before the UK General Election, when Boris Johnson led a minority government. Now he has an overall majority, and the prospect of four more years in office. He has more weight to throw around, at least in the short term. Some of the governments on the EU side are not in such a strong position.

There is a suspicion that he may now be backing away from legally and politically binding commitments he gave to the EU in order to appear to “get Brexit done” before his General Election.

For example the newly appointed Northern Ireland Secretary has stated that there “will be no border down the Irish Sea”. Boris Johnson has made similar comments.

This could be interpreted as meaning that the UK was acting in bad faith when it agreed to the Withdrawal Agreement and to its legally binding protocol on Ireland.

In the Protocol, the UK committed itself to what amount to border controls between Britain and Northern Ireland.

While the word “border” is not used in the Protocol, the UK accepted, in Article 5, that EU customs duties would be collected on goods coming into Northern Ireland from Britain if those goods were “at risk of subsequently being moved” to the rest of Ireland and thus into the EU.

In addition, it was envisaged that goods would also have to be checked for the purposes of collecting the appropriate amount of VAT, and of verifying their origin. EU officials were to have a right to be present when this checking was being done, so as to assure themselves that UK officials were correctly interpreting the EU laws that would apply in Northern Ireland.

The protocol contains detailed provisions for determining how UK goods at risk of entering the EU through Ireland might be identified and controlled, and how the customs duties on them might be collected. This was not to be done at the land border in Ireland, so it had to be done before the goods entered Northern Ireland, effectively on either side of the Irish Sea.

It is difficult to see how the new Northern Ireland Secretary’s comment that there would be no border in the Irish Sea can be compatible with the legally binding protocol to which the UK agreed, unless one accepts the interpretation that the word “border” only applies to a border on land.

The UK Government also seems to backing away from its commitments on ensuring fair competition, which it made in the Political Declaration agreed with the EU as the framework for the Withdrawal Agreement.

This Political Declaration, while not legally binding in the same way as the Withdrawal Treaty itself, is part of the Withdrawal process under Article 50 of the EU Treaties, and it is referred to in the Withdrawal Treaty.

For either the EU or the UK to back away from what they had agreed in the Political Declaration would amount to bad faith, and could poison future relations.

One can accept that, once the UK leaves the EU, the EU should accept the autonomy of the UK’s decision-making processes, and vice versa. In a legal sense, there should be a relationship of equals between the EU and the UK.

But if there is to be trade between the EU and UK, it is only common sense that there be a basic compatibility of standards. Indeed most modern trade agreements are more about standards than they are about mere tariffs and quotas.

This is reflected in the Political Declaration, which makes repeated references to the need for provisions for a level playing field and fair competition in any future agreement between the UK and the EU. Article 17 says the Partnership between the UK and the EU should ensure “a level playing field for open and fair competition” between UK and EU firms. Article 77 commits the UK and the EU to “uphold the common high standards applicable to the EU and the UK at the end of the transition period in areas of state aid, competition, social and employment standards, environment, climate change and relevant tax matters”.

The common standards applying at the end of the transition period at the end of this year are the existing EU standards. The UK agreed there would be no rolling back of these EU standards.

But Boris Johnson said, in a speech in Greenwich earlier this month, that “There is no need for a free trade agreement to involve accepting EU rules on competition policy, subsidies, social protection, the environment or anything similar, any more than the EU should be obliged to accept UK rules”.

Prime Minister Johnson’s EU negotiator, David Frost went further last week when he said, “to think that we might accept EU supervision on so-called level playing field issues simply fails to see the point of what we are doing”, adding that the UK must be free to “set laws that suit us”.

On the face of it, these statements appear to be in flat contradiction with the level playing field provisions in the Political Declaration, which clearly envisage mutual supervision of the EU by the UK, and vice versa, to ensure that neither side does anything that interferes with open and fair competition or rolls back standards.

There may be some room for benign interpretation. Prime Minister Johnson could say he is referring to rules to be made in future by either the EU or the UK, and not to the rules in force now.

But the Political Declaration only says that the “common high standards” in force at the end of the transition period should not be reduced. It does not prevent new rules being made by either side, so long as they do not reduce these standards. So it is difficult to know what Mr Johnson and Mr Frost are talking about.

The agreed Declaration does not require the UK or the EU to use exactly the same words to maintain those standards, just that standards should not be reduced. But statements like that by David Frost, rejecting any EU supervision of what the UK does, could undermine the Political Declaration in a fundamental way.

Is there also a greater betrayal lurking in plain sight? Could “Australia” just be code language for simple WTO terms or in other words “no deal”? Is the Prime Minister using this relatively innocuous expression, combined with his apparently unachievable year-end deadline, to camouflage the fact that he is heading for just that outcome? Time will tell.

Meanwhile, the EU should be careful not to overestimate its own negotiating leverage, and not to look for certainty on everything. But if it wants a good relationship with its immediate neighbours and to avoid a reputation of being unreliable in international relations, the UK should dial back the rhetoric. Trust needs to be rebuilt.


John Bruton is a former Irish Prime Minister (Taoiseach).