Roderick Crawford works on conflict resolution in countries such as Yemen, South Sudan and Iraq, and on Brexit-related matters. He is a former editor of Parliamentary Brief.
In the European Commission’s press conference following the close of the fourth round of talks on the UK-EU future relationship last Friday, Michel Barnier, having spelled out that there had been little progress of any substance in his prepared remarks, was decidedly shaky when it came to defending EU demands for the application of EU rules and a role for the Court of Justice on state aid. He also seemed to suggest that he might seek a change in his mandate from the European Council to depart from these demands.
If so, this should not be seen as a concession to the UK but, rather, as a tactical withdrawal of a negotiating position that contradicted the Political Declaration – a document that Michel Barnier has promoted to the status of a sacred text and had invested significant political capital in promoting as such.
The case that the Declaration clearly contradicted his mandate is pretty clear, and I set out the reasons why last week on this site.
However, what really mattered was not just that it contradicted the framework for level playing field issues, but that it contradicted clearly established UK red lines that were made clear to the EU and accepted by them in their own negotiating guidelines over two years ago.
The EU has been reluctant to use modern free trade agreements as models for how to address these level playing field issues for the future relationship. The case for using these as models is confirmed by the Declaration, which was renegotiated last autumn by Boris Johnson. The political declaration describes itself in the following words:
“this declaration establishes the parameters of an ambitious, broad, deep and flexible partnership across trade and economic co-operation with a comprehensive and balanced Free Trade Agreement at its core, law enforcement and criminal justice, foreign policy, security and defence and wider areas of cooperation”. (October 2019; amendment in bold.)
When Michel Barnier says that the Declaration was negotiated and agreed by Boris Johnson he is, perhaps, being slightly tongue in cheek.
But it is true in this respect: Johnson negotiated that “a comprehensive and balanced Free Trade Agreement” should form the core of trade and economic co-operation in the political agreement. As we all know, level playing field rules and robust mechanisms exist in such FTAs between the EU and other sophisticated economies with trustworthy and capable domestic governance.
That does not mean it will be straightforward to identify and agree the ‘common high standards’ – and we should remember the lessons of the mapping exercise done as part of the preparation for the protocol on Ireland/Northern Ireland. Its success may depend on the resolution of a deeper problem in the negotiations.
The basis for co-operation that is set out at the beginning of the Declaration is, in many ways, the source of the problem we face. The future partnership is to be underpinned by shared values sounds fine, but its negotiation is being undermined by unshared values. The Union’s values — or the Commission’s values — and the UK’s values are not always the same. This has been a source of tension in the past: it is so now.
Essentially, the EU seems to want a controlled partnership, not a partnership that works because there are shared values and common interests. This may appear to be in its interests, but it is not. Such a partnership would be no partnership at all. The basis of a real partnership is trust, and once this has broken down attempts at enforcement do not make up for its absence; they have a tendency, rather, to reduce trust still further.
The Declaration does not fully account for the reality of an independent UK that has shared values with the EU as well as very different values to it; shared interests as well as different interests. The implications of this for the spirit of the governance of the future relationship have therefore been understated by the Declaration.
For the future relationship to be a success — and it really needs to be a success — the Declaration should allow for the reality of divergence between the parties; it is, after all, not a sacred text, but a toolbox that comes not from negotiations with the current government but, instead, is a legacy of the car-crash negotiations of Theresa May, with balm and sticking plasters applied by Johnson. The toolbox needs adding to get the job done — to borrow from Barnier’s recent language.
One of the most problematic elements of the current negotiations is the overarching institutional framework envisaged for it in the Dclaration. This would link the governance of the free trade agreement with that of foreign policy co-operation and legal and judicial co-operation.
There is no good reason for linking an area of co-operation where the UK may be vulnerable – such as future trading terms – with areas where it feels entirely comfortable without formal arrangements: foreign and defence policy, for example. There are, of course, bad reasons for it.
The same is true for the core values and rights that are meant to underpin the future relationship; these have been fleshed out in ways that are either unnecessary, questionable, or which may have unintended consequences; disagreements here can result in repercussions in the operation of the future relationship which in practice are likely to work only one way given the EU’s dominant economic position.
If only one party can make use of such connections between values and rights and trade, or foreign policy and trade, then those connections have no role in a partnership agreement. Changing the governance structure and the conditionality of the future relationship is unlikely to be achieved by the negotiating teams — but changed they must be.
The Declaration provides for dialogue at the appropriate level to provide for strategic direction — it seems clear that point has arrived.
Such a meeting is planned for this month; it is needed not to put momentum into the talks, as Barnier has suggested, but to recalibrate them in order to allow for a successful conclusion to the negotiations in establishing a new relationship between the UK and the EU that not only furthers the prosperity of Europe but allows for both parties to work towards the same ends by different means, whilst allowing healthy dialogue and sometimes the championing of different values without recourse to sanctions. It is time for Johnson to go to Brussels.