What the Jersey fish tale tells us about the TCA

Posted on 4th November 2021 by admin

Today sees a meeting between British and French ministers to discuss the vexed question of fishing licences for Jersey waters. This event is important for a number of reasons.

Firstly, it’s the pathway that got opened up earlier in the week by the French decision not to move to unilateral sanctions over the issue, so that’s a positive development for talking through problems rather than laying down more harsh rhetoric (as both countries have been doing of late).

Secondly, it’s a reflection of the outsized importance that this issue has acquired over the past weeks, compared to its economic (or even its symbolic) value. This is a reflection of the wider low-trust environment that the UK operates in with both France and the EU.

But finally, it’s also the first time that the UK will have secured a bilateral meeting with an EU member state to discuss provisions of the Trade & Cooperation Agreement (TCA). The rigour of keeping to the Commission as the interlocutor on such matters has been exceptional and even the very particular nature of the matter might give others some pause for thought, not least Ireland.

In this context, Jersey might turn out to be an important demonstrator of things to come, even if the practicalities involved are somewhat mundane. Given that this is all a sideshow to the looming return of Article 16 – which is a very much bigger problem – we might loose sight of this rather quickly, especially if a deal can be worked out.

However the entire episode has also underlined a number of issues with the TCA that are likely to be repeated down the line.

Most obviously, the situation seems to have stemmed from different interpretations of Art.502(1), which requires that historical access to Jersey waters ‘can be demonstrated’. The necessary level of proof is not specified and this appears not to be a practice that can draw on any significant international law: littoral states that break-up and that divide their waters between successors tend not to offer on-going access at all.

The UK government took a rather firm line on all this, asking for GSM traces and the like, something that smaller French boats couldn’t provide because they don’t carry that kind of equipment. As have been pointed out elsewhere, this was a technical issue that was allowed to escape into chancelleries, with all the additional costs that’s incurred.

The vagueness of the provision is only underlined by Art.502(4) which allows for the entire arrangement to be changed without a full ratification process, suggesting this was at best a stop-gap. Perhaps this also explains the noticeably more constrained and proportional range of remedial measures that can be applied in the event of alleged non-compliance (Art. 506(2)) which means that even if the French had been able to convince the Commission to start on this – already a very big uncertainty – then remedies wouldn’t have stacked up to much.

Again, given the more general reading of the TCA – with its multiple dispute settlement mechanisms, regular reviews and termination clauses – this argues that this set of provisions wasn’t fully nailed down, so minimising contagion made more sense.

We can rehearse the reasons for the hurried nature of the TCA’s negotiation, formulation and ratification and who’s at fault for what, but ultimately none of this changes the situation as the parties find it now.

Indeed, it is this aspect that more forcefully comes back to Northern Ireland and the Protocol.

The UK narrative of late has been one of negotiating the TCA during a period of ‘extreme weakness‘, a bold claim given that ratification only came after the landslide of the December 2019 general election. That aside, the Jersey issue has risked playing into that narrative framing, even if it is within the current text and very much smaller. France does have a presidential election on the way, but it also doesn’t want to be the one to crash the already-beleaguered relationship. Hence the Commission’s refusal to accede to French demands to launch measures under Art.506.

If there is a silver lining, then it was the British protestation that French actions would result in the UK bringing proceedings under the TCA’s dispute settlement mechanism. The rhetoric of the need to stick to the provisions of the treaty raised some hollow laughs elsewhere, after the Internal Market Bill and the suggested use of Art.16 to remove the CJEU from the Protocol, but it does show that there is a logic available to working with what you have.

Unfortunately, it has also underlined very clearly that there is a very long road to travel before relations across the Channel can get back to the level they more usually enjoy.

 

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Making sense of the UK’s approach to the Protocol

Posted on 21st October 2021 by admin

Just a short post this week, since I already wrote about this in a Twitter thread earlier in the week:

https://twitter.com/Usherwood/status/1450012501085667332?s=20

The thread was an attempt to make sense of what the UK is doing and whether it might work. As you’ll see, I’m not that confident that it will. Conversations with people on both sides this week haven’t changed my mind on that either.

Part of that is the low trust environment that exists. The number and quality of connections that the EU has with the UK are both relatively low, which means there are fewer opportunities for the kind of frank discussions that might find a way through the current impasse.

As a result, the weight of rhetoric (on both sides) increases in the calculation.

To take an obvious example, the unwillingness of the UK to publish its replacement text for the Protocol makes it impossible to work out a more dispassionate understanding of its needs, so we have to fall back on the words of Lord Frost or Boris Johnson, with all the additional complexities that brings.

Even if the Commission proposals last week do leave various points to be precised and elaborated, at least they work more transparently towards a new set of agreements (or implementations of existing agreements, to be more exact).

This shouldn’t be that surprising – I noted in evidence back at the start of the year, for example – but that doesn’t change the situation as we find it.

Rebuilding contacts and conversations is going to have to be a priority if things are to start to improve between the EU and UK, and it’s probably the UK that has to start that.

I’d not hold your breath right now.

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Reworking the Protocol, or just trying to make it work?

Posted on 14th October 2021 by admin

This week has seen the full return of the Ireland/Northern Ireland Protocol to political agendas, after a lull during the UK’s party political conference season.

Last night saw the publication of the Commission’s extensive proposals on enabling the implementation of the Protocol, following much consultation both within the EU member states and with Northern Irish stakeholders.

That had been somewhat pre-empted by the Lord Frost’s speech on Tuesday, which were taken as a rejection in principle of those proposals, given the more fundamental problems around the Protocol’s operation.

In particular, Frost spoke of the collapse of Unionist support and of the need to remove the EU’s Court of Justice (CJEU) as the ‘ultimate polic[er]’ of the treaty.

As explained in the graphic below, the CJEU is incorporated into the Withdrawal Agreement in two ways. Temporarily, it discharges all outstanding cases before it, including those brought during transition, and offers a time-limited route for handling Citizens’ Rights cases. Permanently, it has a role to provide definitive rulings on matters of EU law that arise from disputes and from the operation of the Protocol in Northern Ireland (the sovereign bases in Cyprus too, not that this seems to be a live issue).

That permanent role is a function of the basic model of the Protocol itself: Northern Ireland is effectively an extension of the EU’s single market and customs union, and each of those is made up of rules set by the EU. Therefore, to ensure uniform interpretation of those rules (needed to make either element meaningful), you need to have a single ultimate court to decide what’s what.

In short, as David Allen Green rightly notes, if you want to remove the CJEU, then you want to stop Northern Ireland being inside the single market and customs union, which is a fundamentally situation for the region, and one that isn’t compatible with the Good Friday Agreement.

However, the UK seems bent on pushing this point, and Frost once again reminded the EU that it considers it has grounds to invoke Art.16 of the Protocol. I’ll refer you back to previous posts (and podcast) about why this isn’t likely to solve anything.

The second graphic (which you can read in conjunction with this one) works through a related issue, namely how use of Art.16 might lead to other responses.

Route one will be within the Article itself, since the other party is given the right to make appropriate rebalancing measures: these would be not only a prompt response, but would also limit escalation.

But the Article sits under the WA’s dispute settlement mechanism, and there’s a link through to the Trade & Cooperation Agreement, should the matter not be resolved and remedies of the arbitration panel not be applied.

Admittedly, this is a set of very big steps, and slow ones at that, but it’s useful to remember that legally, as well as politically, the Protocol has the potential to rewind the entire system of EU-UK relations. That might serve the agendas of some in London, but it’s hard to see how anything on better terms for the UK might then ensue.

This is then the bigger point from this week’s exercise: things might not be working well, but sitting down and trying to find a collaborative solution might be the least worse option for all involved. Whether the UK climbs down the Commission’s ladder is still unclear, but we should expect much contagion of the relationship if they don’t.

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The long way down

Posted on 7th October 2021 by admin

This post originally appear on Encompass Europe.

This is a good moment to reflect on one of the many paradoxes of Brexit: for something that has occurred under so much time pressure, there has always still been a summer break.

That was true in 2017 and 2018 during the Article 50 negotiations and even last year, when Covid and a British government unwilling to add to the transition period might have been cause to break the pause.

So this summer’s hiatus – whether paddleboarding in Cyprus or not – has not been much of a shock, especially with the conclusion of active negotiations on the basic treaties of the EU-UK relationship.

But this is to miss the bigger picture, namely the continuing instability of that relationship.

Brexit was always going to be a long-term process, for a number of reasons. Most importantly, the depth of the entwining of British political, economic and social structures with those of the EU and its member states over the previous half-century was not something that could be unpicked in anything less than a generation.

The depth of that entanglement was long a bugbear of the eurosceptic movement in the UK, particularly those who wanted nothing more than a ‘common market’, but it is only now that the full extent of it has become apparent to most people.

That some of that was actually generally well-thought-of – such as the enrichment of the typical British supermarket shelf with European produce, or no-cost roaming for mobile phones – is neither here nor there, even if it does explain some of the cries of ‘that’s not the Brexit I voted for’.

However, disentanglement is one thing. Much more problematic is the question of what comes in its place.

As has always been the case in post-WWII British European policy, the purpose of the relationship with the rest of the continent has been less than settled. The historic model of a balance of power seemed less than relevant in the wake of the end of the Cold War, even as the tropes of the ‘special relationship’ and ‘global Britain’ have pulled successive generations of politicians towards visions of a much grander role. Europe, and by extension the EU, has been a problem to be managed, rather than an opportunity to be grasped.

Brexit has simply put this issue in a much more prominent position. Yes, the UK wants to move apart from the EU, but without deciding on why it wants to do, or how.

As much as the twin treaties of the Withdrawal Agreement and the Trade & Cooperation Agreement have set up some parameters, it is striking how much they leave to be decided down the line.

The former’s Irish Protocol remains in a very uncertain place in a period of fluid Northern Irish politics, while the latter’s framework for future cooperation is more hung up on the ever-lengthening transitional and grace periods being applied. As I’ve noted elsewhere, the TCA is more about potential than reality.

Crucially, neither treaty is unambiguously accepted as the definitive basis for relations. This goes beyond the continual (and unjustified) rhetoric of the British government about signing under a degree of duress, to the multiple active elements of the TCA that both sides agreed could be pushed down the line.

This is partly a function of the hurried nature of the negotiations, but more fundamentally it is a result of the negative-sum nature of the withdrawal: no model of leaving the EU would fail to generate costs, so the process has been one of allocation. The only real questions have been how honest everyone would be about those costs and how publics would react when they found out.

Sadly, the answers are respectively “not particularly” and “not very happy at all”. Rhetoric is one thing; empty shelves are another.

All of which suggests that rather than representing the new baseline for EU-UK relations, the current situation is more likely to be a staging post towards further deterioration.

This autumn will see a number of tests of this. While the introduction of UK customs controls has been pushed back once more, the Irish Protocol issues are set to kick back in, along with potential legal challenges by the EU. The cross-cutting impact of Covid on labour and goods supply will also increase pressure.

Even where there are solid reasons to renegotiate parts of the treaties, this is now bound up in the bigger problem of neither side wanting to reopen that they do have in legal terms, both for fear of what else might get reworked and from a strong desire not to repeat the psychodramas of 2016-20.

What is unclear right now is what it will take to stop things worsening even further. Perhaps some joint sense of mission through COP26 this winter, perhaps a new government in London, but the message right now is that this is going to get worse before it gets better.

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Tracking EU-UK meetings

Posted on 30th September 2021 by admin

At various points in the Brexit process I’ve produced trackers, primarily to capture interactions between the EU and the UK. that included ones for the negotiations on the Withdrawal Agreement and the Trade & Cooperation Agreement (and this), as well as the progress of UK enabling legislation.

The aim has been to keep sight of developing processes, where that might reveal as much as the outcome.

This is of more salience now that the two treaties are in force, since it will be their operationalisation that matters, especially in the context of how each side see the question of any renegotiation. Failure to engage in the agreed structures might be a leading indicator of rising pressure to reform the system, and/or a marker of good faith efforts (depending on which side you stand on).

With that in mind, I’ve been running two trackers for the numerous bodies of the two treaties since their entry into force. Data comes from the comprehensive resource on the Commission website.

As you can see below, the WA has seen very much more activity, partly because it’s been in force longer, but also because its text left a lot of critical matters to be resolved by the Joint Committee. The Irish Protocol has been a big driver of this, but so too have been the demands relating to citizens’ rights (as registration periods come to an end) and other matters.

By contrast, the TCA has been very slow to get moving, institutionally. That might be understood as a function of the more slow-burning nature of its content, but the failure to meet the intended quarterly meetings of the main Partnership Council is essentially political: the WA has crowded out the agenda on this.

In any case, I’ll be continuing this work for the next few years, since it might highlight shifts ahead of the consent vote on the Protocol in 2024 and the general review of the TCA the following year.

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The UK-EU relationship: Better the devil you know?

Posted on 23rd September 2021 by admin

This is a version of a piece originally posted on Euronews.

This summer has provided ample demonstration of the difficulties of the relationship between the UK and the EU.

The constant rumbling of discontent over the Northern Ireland Protocol has been accompanied by periodic British threats to walk away from it. Last week’s State of the European Union address by Commission President Ursula von der Leyen neglected to mention the UK at all. And this week’s cancellation of talks on security cooperation with France comes hot on the heels of the AUKUS deal that tightens the links between the UK, US and Australia.

In short, there’s little sign on either side of the Channel that there is much appetite for trying to make the relationship work any better than its current semi-comatose state. Continue reading →

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A post summer update

Posted on 9th September 2021 by admin

The past month or so has been relatively quiet in the world of the WA/TCA: the British proposals in its Command Paper had sat, largely uncommented, since late May as more prosaic matters have swirled.

However, as Brussels and Westminster have restarted, so too has there been a degree of movement.

Most importantly, there has been a further extension of grace periods, or more accurately a ‘standstill’ on the current operation of the Protocol. This was done by unilateral action of the UK, with the EU ‘taking note‘, but reserving the right to block an unlimited time period for this.

The aim of the standstill has been to open up some more space for discussions about Protocol operation, but it’s not very explicit about which grace periods are extended, since there are some that are directly linked to the Protocol (most obviously chilled meats) and others that are more indirect (relating to UK imposition of checks on incoming goods under WTO commitments). Until I’m on top of what’s what I’m not updating my graphics (here and here respectively), but I will ASAP.

We also now have more economic data on the impact of Brexit on the flow of goods. While there was a lot of media coverage in early 2021 of this, it was evident that there had been a lot of distortion from traders stockpiling ahead of Christmas, then holding off moving goods in the New Year to avoid the immediate teething problems.

However, we now have data through to the middle of the year, which shows some clear impacts and diversion of trade, relative to other trading partners, for both the EU and UK. The picture painted is of much correction after the end of transition, but some emerging signs of more structural barriers, notably in the slow recovery of EU exports to the UK.

Finally, I’ve been spending most of this week with the good people of UACES, at the annual conference. The excellent presentations and discussions have given me an opportunity to update/enrich some graphics and to confirm the content of others.

A case in point is the operation of the Protocol’s Article 16, on safeguards. Billy Mel Araujo’s analysis has been added in down, and points to an additional factor that I had missed, namely that the threshold for triggering this is rather low. This matters because even if it doesn’t do what a lot of British politicians seem to think it does, that might not stop its use, with all the attendant problems that come with that.

I will also note in passing that I am very honoured to be the new Chair of UACES, and I’d like to give my wholehearted thanks to Nick Startin, who’s been excellent in that role during three rather tough years.

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Legal options for changing the Northern Ireland Protocol

Posted on 28th July 2021 by admin

As a parting gift before a summer break, I’ve pulled together the various legal pathways currently available to changing the Protocol.

This is based on the text of the Protocol/Withdrawal Agreement itself, plus a bit of customary international law, and covers both modification and disapplication of the Protocol itself.

As the graphic suggests, there are three main paths.

First, amendment is possible through two routes. One is a minor corrections option within the Joint Committee, although these can’t change the basics of the text, so it’s not really an amendment procedure of any consequence (certainly in the current political climate). The other is a generic treaty amendment, concluded by mutual agreement of the parties.

Second, the Protocol allows for new EU-UK agreements to supersede all or part of the Protocol, with the only proviso that such supersession needs to be spelled out, presumably so that whatever remains of the Protocol has clear limits for its application. This is a remnant of the original backstop model negotiated by Theresa May, where the Protocol would only kick in if the future relationship (i.e. the TCA) didn’t cover certain criteria. However, it still requires the agreement of the EU too.

So the only unilateral pathway for UK changes to the Protocol is the Consent provision of Art.18, which allows the Northern Ireland Assembly to vote (from 2024) to disapply Arts.5-10 of the Protocol (i.e. the main economic elements).

While some have seen the current arguments about the Protocol as laying the groundwork for such a vote after next year’s Assembly elections, as an ‘escape’ from the Protocol, it’s essential to read all of Art.18.

In particular, non-Consent does not end any other obligation of the parties, especially (and pointedly) the Good Friday Agreement (Art.18(4)). As such, both the UK and EU would be bound by the same set of constraints that produced the Protocol in the first place.

This is all really just to underline that while the Protocol is undoubtedly problematic, it is also the product of intense negotiation and calculation by both sides that this is the least-worst option available. As I noted in a thread late last week, treaty-making comes with obligations and there is no path open to the UK to change that basic fact.

Whether that means the Protocol will stick is a very different question and one that we’ll have to come back to in September. Until then, have a good summer and do let me know if you have any requests on graphics, as I’m always happy to help where I can.

 

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tl;dr – The UK’s Command Paper on the Northern Ireland Protocol

Posted on 21st July 2021 by admin

The publication on 21 July of the UK government’s Command Paper came just before the end of the Parliamentary session. Flagged for several weeks, it was presented as the culmination of a long push to secure changes to the Northern Ireland Protocol.

Undoubtedly, the Paper does cap the numerous public statements of Lord Frost, Brandon Lewis, Boris Johnson and others in government, not least in saying that a root-and-branch reformulation of the entire text is needed, rather than some tweaking at the edges.

But it is another aspect of culmination that is more striking: the lack of credibility behind the proposals advanced.

Put briefly, the UK’s position appears to be one of “we didn’t mean to sign the Protocol, so let’s change it”, an approach that has no grounds in either international law or basic political common sense.

The international law aspect is something I’ve covered already, but to recap the basics: if you freely sign a treaty, you’re bound to stick to it, unless there’s some very fundamental change of circumstances. And no, disliking it isn’t enough.

The political angle is one that’s not too complex to unpack either.

In any potential negotiation, you need to know what your best alternative to a negotiated agreement (or BATNA, for acronym fans) is. As long as you can get a better outcome by negotiating than by not negotiating, then you should negotiate and agree.

Note that this is purely relative: the negotiated outcome might be poor, but it just needs to be less poor than not agreeing. And so it is for Brexit.

The EU might not like the Protocol much, but it was better than any other option on the table, or walking away from the table altogether.

As such, the UK’s proposal to renegotiate the Protocol needs to be a clear improvement on the status quo.

And yet, the Command Paper barely deals with the EU’s needs (beyond Single Market integrity), which means the case has not been made to even start on this, so the Commission’s rejection of renegotiation is less than surprising.

Since the UK knows all this, the question has to be why bother pursuing a route that isn’t going to lead anywhere good? Playing with invocations of Article 16 (which isn’t what the UK government thinks it is, but that’s a different point) can only result in numerous legal and trade retaliations from the EU, and a big telling-off by the US, only to leave the UK with the original problem still in place, so it’s not really going to work.

As with so much of the Brexit process, this isn’t really about the external aspect, but the internal one. The deep allergy of Number 10 to signing up to anything that gives a formal role to the EU in UK affairs is driven by the pressures of backbenchers, regardless of the views of public opinion, businesses or anyone else.

Indeed, the most telling sentence in the entire Command Paper is from para 14:

Nevertheless, the revised Protocol delivered the fundamental requirement of enabling the UK as a whole to leave the EU in a genuine and meaningful way

British policy is thus about what mustn’t happen, rather than what must; a strategy that has failed repeatedly since 2016.

The hope is still, clearly, that someone will come up with a cunning wheeze to square the numerous circles, so all that’s needed – and fortunately all that’s possible – is to keep things from settling into any kind of regularity, so that no one gets too comfortable.

I’ve set out some further thoughts on the Command Paper in this thread, but the key is that this isn’t any kind of unblocking process, but rather a holding pattern:

https://twitter.com/Usherwood/status/1417826694216495109?s=20

As a bit of a side-note, I’ll also mention that the DUP made various positive noises about the proposals in the Command Paper, largely because they talk to the same people.

The DUP’s seven tests from last week did highlight the problems of the current Protocol, but also of all the other options out there. Those that do meet the DUP’s requirements don’t work for either the EU or Number 10.

This suggests that we are still a very long way from any kind of stable equilibrium on Northern Ireland.

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Financial Settlement News

Posted on 15th July 2021 by admin

Perhaps the most striking thing about the breaking of the story about the unexpectedly large size of the UK’s financial liabilities under the Withdrawal Agreement last week was that it generated so little attention.

The consolidated EU accounts for 2020 were published on 9 July, but it took a ‘tip-off‘ to RTE to get them checking the text. Number 10 said it ‘didn’t recognise the figure’, but then that was it.

So little for something that had been flagged in 2016 as one of the hardest issues to crack in the then-upcoming negotiations.

In practice, finances were dealt with relatively early and relatively simply: the WA set out (Arts.135-148) the rules for deciding what was and wasn’t included, plus a schedule for payments.

But no figures. Precisely to avoid getting anyone’s backs up. And because until the money’s spent, no-one actually knew how much it would be.

Which didn’t stop the UK trying to work out the bill.

The graphic below sets out those estimates, as well as highlighting the huge potential for misjudging totals. The Commons Library briefing on all this is excellent as a guide.

The short answer to the mismatch between the UK estimates and the Commission’s first calculation (which is unlikely to move much) is that both the basic calculations on contributions and RAL were shifted by Covid and the associated economic slump, which also affected valuations of other assets and liabilities.

Number 10 might not have recognised the total, but they also haven’t gone hard on rebutting it, which suggests this is one fight that they are not going to push on.

UPDATE: The UK government’s report on the 2020 budget reiterates the March OBR estimate, but doesn’t challenge the more recent Commission valuation.

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