Time for a Little More Time? Post-Brexit Trade Negotiations and the Current Pandemic

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 by Allan F. Tatham, Professor at Facultad de Derecho, Universidad San Pablo CEU

Background

In the present context of the COVID-19 pandemic, with its impact on the health, economic and social systems of states around the world, it appears somewhat trivial in comparison for the UK and the EU to be still pursuing agreement in the post-Brexit negotiations. On 18 March, the Union published its draft legal agreement for the future EU-UK partnership, in accordance with its 2020 Negotiating Directives and the 2019 Political Declaration of the parties. And while, by then, the UK had not presented a comparable document, its approach to the negotiations had been published on 27 February. From these sources, it would be fair to draw the conclusion that there remain many outstanding issues that need to be discussed and resolved. Among them the maintenance of a “level-playing field” to ensure fair competition and protection of standards; fisheries; financial services; security and police matters; and the role of the Court of Justice of the European Union or another mechanism for resolving disputes under a Comprehensive Free Trade  Agreement (CFTA). Even the negotiating styles are different, with the UK seeming to display a sort of “pick-and-mix” approach – essentially using as precedents different provisions selected from various agreements (that the EU has already concluded with other third countries), collecting them together and then arguing for their inclusion in the CFTA.

Given these real challenges, the onset of the pandemic appeared initially to have caused only ripples on the surface of the negotiations. In fact, the UK desired to portray a “business-as-usual” approach to the negotiations and so to “carry on regardless” with them through video conferencing. Moreover, shortly before he himself was quarantined and hospitalised for the virus, the British Prime Minister Boris Johnson in his daily coronavirus press briefings was continuing to repeat the mantra of sticking to the 31 December deadline. Only with Michel Barnier’s diagnosis with the virus, the need for more officials on both teams to self-isolate and the recognised limitations to video-conferencing, were the negotiations suspended at the end of March 2020.
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Editorial of November 2019

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 by Allan F. Tatham, Professor at Facultad de Derecho, Universidad San Pablo CEU


“Does Britain have a great future behind it?”: The stress of Brexit on a (Dis)United Kingdom

Introduction

Whatever the results of the British general election on 12 December 2019, Brexit will have major implications for the populations and governance arrangements of the four nations – England, Scotland, Wales and Northern Ireland – and their continuing membership of the United Kingdom (UK). The present author has already discussed the constitutional implications of a vote to leave the European Union (EU).[i] This discussion instead will briefly highlight how the results of that referendum and the ensuing three years or so have increasingly led two of the smaller “devolved” nations (England makes up over 85% of the UK’s total population of some 66.5 million people) to reassess their position in the UK.

The Brexit referendum itself of June 2016 revealed both inter-nation and intra-nation division. According to the figures,[ii] majorities in England and Wales voted to leave, while most voters in Scotland and Northern Ireland (as well as Gibraltar) opted for remain. Yet even these results are more nuanced than first appear: London also voted to remain as did some other cities (e.g., Bristol, Leeds, Liverpool, Manchester, Newcastle) though by differing margins. Moreover recent research[iii] has shown that in Wales, areas with predominantly Welsh-speakers had voted to remain (as did Cardiff) while many of the 21% English-born voters had voted leave. The picture in Northern Ireland was no less complex: there, the nationalist community voted overwhelmingly for remain, while the unionist community voted largely (though much less decisively) for leave.

Northern Ireland

Of the four nations, this is the one most directly affected by Brexit since it will be the only part of the UK with an external border with the EU (Ireland). It is also the only devolved nation, according to the 1998 Good Friday/Belfast Peace Agreement, that has in effect the legal right to secede from the UK, once a referendum has been held. In fact the most intractable issue in the Brexit negotiations has proved to be finding a solution to the Northern Irish trilemma: fulfilling the UK Government’s promise to leave the EU customs union and single market; to preserve British “territorial integrity”; and to continue its commitment to the peace agreement. However, leaving the customs union and single market would have meant the re-imposition a hard (or physical) border between the North and the South of the island of Ireland, entailing checks and customs duties: this represented for all parties a direct threat to the peace agreements. A way forward out of this trilemma was needed in order to avoid (or at least minimise) the immense social and economic dislocation implicit in a no-deal Brexit; this presented the negotiators with an immense task.
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