After two months of negotiation, the UK and EU still far apart about future relationship

On March 2, the European Union and the United Kingdom began negotiating their future relationship. Roughly 100 British officials, led by David Frost, the UK’s chief negotiator, and Sir Timothy Barrow, the UK’s ambassador, arrived en masse in Brussels for first of several scheduled rounds of negotiation with a similarly-sized group of officials in the EU’s Task Force for Relations with the United Kingdom headed by Michel Barnier, the EU’s chief negotiator. Their aim was to negotiate an “ambitious, broad, deep and flexible partnership across trade and economic cooperation with a comprehensive and balanced Free Trade Agreement at its core,” as the EU and UK agreed last October in their revised Political Declaration setting out  the framework for their post-Brexit relationship—and to do that in time to avoid a no-deal departure of the UK from the EU’s internal market and customs union when the current transition period ends at midnight on December 31.

That remains the aim of the negotiation. But two months on, there has been little progress and, instead, a good deal of mutual finger-pointing at the other side for the lack of progress. Some of that, of course, is to be expected in the early stages of an exceptionally complex and difficult negotiation as each side reiterates and seeks to reinforce its initial positions. And obviously the coronavirus pandemic has greatly complicated the negotiation. Not only have Barnier and British Prime Minister Boris Johnson, like so many others in the EU and UK, been hit themselves with the virus, but it has become apparent that negotiating by videoconference rather than in person is a distinctly second-best means of discussing and resolving the complex issues that divide the parties. Nevertheless, the fact remains that, two months on, there has been little progress in the negotiation. And more importantly, given the well-defined positions of both sides and the acrimonious exchanges after the first five-day round of negotiations in early March and the second five-day round of negotiations in late April, it seems less likely now than it did two months ago that there will be an agreement.  

On March 5, after the first round of negotiations, Barnier noted that while there was a convergence on some of the EU and UK objectives—for example, in regard to cooperation in civil nuclear matters and the UK’s participation in some EU programs— there were “very serious” differences in at least four areas: 1) the question of maintaining a “level playing field” to prevent distortions of trade and unfair competitive advantages; 2) judicial and police cooperation in criminal matters, including cooperation with regard to the fundamental rights of individuals, the continued application of the European Convention on Human Rights, and the continued role of the European Court of Justice in interpreting European law; 3) the governance of the future agreement; and 4) fisheries – specifically, whether an agreement on fisheries should be, as the EU insists, part of the overall economic agreement or, as the UK insists, reciprocal access to its waters should be negotiated on an annual basis.

In addition, Barnier noted in regard to the Irish Protocol, the amended portion of the Withdrawal Agreement designed to ensure that, in all future circumstances, the border between Northern Ireland and the Republic remains open, that “the time for negotiation is over. It is time to implement a specific agreement in a pragmatic and operational manner. Companies in Northern Ireland now urgently need clarity from the UK authorities about implementation. We will monitor implementation very closely and regularly within the Joint Committee [the body that will oversee the administration of, and compliance with, the Withdrawal Agreement].”

The negotiators originally scheduled a second round for March 18-20 in London but, because of the widening spread of the coronavirus pandemic, on March 12 Barnier and Frost agreed, via videoconference, not to hold that round in the form originally planned and to explore alternative ways to continue the discussions. On March 18, the EU Commission published a 441-page draft text of “The Agreement on the New Partnership with the United Kingdom” and the UK provided the EU, on a confidential and hence unpublished basis, with text proposals on some areas. But the timing of the next round, already complicated by the need to figure out how to conduct by video conference almost a dozen simultaneous discussions among the working groups, was further complicated when Barnier announced on March 19 that he had tested positive for COVID 19 and was in quarantine. The next day, Frost, experiencing symptoms of COVID 19—he had last met with Barnier at the outset of the first negotiating round two weeks earlier—and went into quarantine himself. And a week later, of course, Johnson tested positive as well.

On March 30, the Joint Committee, co-chaired by European Commission Vice President Maroš Šefčovič and British Chancellor of the Duchy of Lancaster Michael Gove, met for the first time to discuss the implementation of the Withdrawal Agreement. The parties agreed, in particular, on the importance for the UK to set out its plans over the coming months with regard to the Protocol on Ireland/Northern Ireland, including presentation of a detailed timetable for the introduction of customs procedures for goods entering Northern Ireland from the rest of the UK and plans for ensuring that all necessary sanitary and phytosanitary controls as well as other regulatory checks will be carried out on goods entering Northern Ireland from outside the EU. The parties agreed to launch the work of the six Specialised Committees identified in the Withdrawal Agreement and agreed, in particular, that the Specialised Committee on the Protocol should, without delay, discuss and prepare the decisions the Joint Committee will have to adopt in relation to the Protocol before the end of the transition period on December 31.

On April 15, Barnier and Frost took stock of the technical work that had been undertaken since the first negotiating round in early March on the basis of the texts that had been exchanged by both sides and agreed on three week-long negotiating rounds that would begin on April 20, May 11, and June 1. On April 20-24, the second five-day round of negotiations took place by videoconference and covered, among other issues, trade in goods, trade in services and investment, fisheries, level playing field, transport, law enforcement and judicial cooperation in criminal matters, energy and several other issues.

On April 24, after the five-day round of negotiation concluded, Barnier, while thanking both teams for their professionalism and constructive spirit, and thanking Frost, in particular, for his professionalism, frankness, and determination, underscored the fact that, as in the previous round, little progress had been made. Noting that a joint decision must be made by June 30 in regard to extending the transition period, that the UK had made it clear again in recent days that it would refuse any extension of the transition period, and that in order to limit the shock to the British economy that will occur when the UK leaves the Single Market and Customs Union, there must be an “intelligent agreement” and the provisions of the Withdrawal Agreement must, in any event, be operational by December 31, Barnier emphasized that, “more than ever, we need to start to make progress together…we need to make tangible progress before June if we are to reach an agreement that honours our economic interdependence and our geographic proximity by the end of the year.” Noting that the EU’s aim in the second round was “to advance on all areas of the negotiation in parallel—including the most difficult areas,” he said “that goal—of achieving parallel progress on all areas—was only very partially achieved this week.” While the second round did identify some areas where the positions are close, at least on the technical level, he said “the United Kingdom refused to engage seriously on a number of fundamental issues….We cannot accept to make selective progress on a limited set of issues only. We need to make progress on all issues in parallel…. The UK cannot refuse to extend the transition and, at the same time, slow down discussion on important areas.”

There were, Barnier said, four areas in which “progress this week was disappointing.” They were, not surprisingly, the same four areas he had highlighted on March 5 after the first round of the negotiation: 1) ensuring a level playing field, meaning preventing unfair trade distortions and unjustified competitive advantage and guaranteeing high social and environmental standards; 2) overall governance of the future partnership; 3) police and judicial cooperation in criminal matters; and 4) fisheries. Regarding the need to ensure a level playing field, he said, “The UK this week failed to engage substantially on these topics. It argued our positions are too far apart to reach an agreement. It also denounced the basic premise that economic interconnectedness and geographic proximity require robust guarantees.” Lest the UK forget, he reminded it “there will be no ambitious trade deal without an ambitious level playing field on open and fair competition.” Regarding the governance of the future partnership, he said, “we remain very far apart…. The EU proposed a single framework for the UK and the EU to manage jointly and efficiently all areas of our future relationship. The UK continues to insist on a number of separate agreements, each with their separate governance arrangements. This leads to duplication, inefficiencies and a lack of transparency in the application and enforcement of the partnership, which is in nobody’s interest.” He also noted three important points for the EU that the UK currently rejects—reference to common values such as democracy, rule of law and human rights, continued adherence by the UK to the European Convention on Human Rights, and UK recognition of the role of the European Court of Justice when concepts of Union law are used. Regarding police and judicial cooperation in criminal matters, he said “the UK refuses to provide firm guarantees, rather than vague principles, on fundamental rights and individual freedoms. It insists on lowering current standards and deviating from agreed mechanisms of data protection.” And regarding fisheries, Barnier said bluntly, “we made no progress.” Noting that the UK has not put forward a legal text on the issue, he said, “We have made no tangible progress despite the Political Declaration stating that we should make our best endeavours to reach an agreement by July…to provide sufficient clarity for EU and UK fishermen, and also for all businesses linked to fisheries.” And as with the level playing field issue, he reminded the UK, “The EU will not agree to any future economic partnership that does not include a balanced, sustainable and long-term solution on fisheries. That should be crystal clear to the UK.”

Finally, Barnier noted that the High Level Conference of the parties that will take place in June will be an occasion “to take stock on what real progress the UK has made for the implementation of the Protocol on Ireland and Northern Ireland.” Anticipating the April 30 meeting of the Specialised Committee on the Protocol, he said, “We need clear evidence that the UK is advancing with the introduction of the agreed customs procedures for goods entering Northern Ireland from Great Britain. We need clear evidence that the UK will be able to carry out all necessary sanitary and phytosanitary controls, as well as other regulatory checks on goods entering Northern Ireland from outside the EU as of January 2021.” In closing, he noted that he had reminded Frost again that “the faithful and effective implementation of the Withdrawal Agreement is absolutely central to our ongoing negotiations. This is the line that we will hold.in particular on Ireland and Northern Ireland.”

To these comments, Frost tweeted, “If we are to make progress now, we need to focus on agreeing a future relationship that has a comprehensive FTA at its core, like those the EU has agreed elsewhere. We support high standards.  But there is no need for novel and unprecedented ‘level playing field’ rules, for example tying us to EU laws, or a role for the EU court.…What the EU proposes is unlike anything agreed in other such FTAs and we will not agree to it here. Finally, we are ready to work to agree a fisheries agreement which reflects our rights under international law to control our own waters, & provides for annual negotiations over access based on scientific principles. We won’t agree to continuing the Common Fisheries Policy.”

On April 30, the Specialised Committee on the Protocol on Ireland/Northern Ireland met for the first time. The EU said the discussion took place in a “constructive atmosphere” and the parties took stock of the implementation efforts on both sides and had a first exchange of views in regard to the decisions the Joint Committee will have to take before the end of the transition period. The EU, for its part, noted that the proper and timely implementation of the Withdrawal Agreement remains a key priority, especially in regard to maintaining peace and stability on the island of Ireland in the context of the Good Friday Agreement while ensuring the integrity of the EU’s Single Market. Noting that time is short, the EU underlined the importance of the UK setting out its plans with regard to all implementation measures prescribed by the Protocol and providing a detailed timetable, and it said the exchanges now urgently need to be followed up by tangible measures. The UK, for its part, simply noted that the UK and EU had exchanged updates on the implementation of the Protocol and discussed the preparatory work for the future decisions that will be taken by the Joint Committee and said its approach at all times will be focused on protecting the Belfast/Good Friday Agreement and on preserving Northern Ireland’s place in the UK. In short, the usual boilerplate for a meeting devoid of any substance—which is, of course, not surprising given that it was the Specialised Committee’s first meeting.  

The EU-UK future relationship negotiation will resume next Monday with a five-day round that will be followed by another five-day round beginning on June 1. But as of today, more than three months after the UK left the EU, more than two months after the negotiation began, less than two months before the High Level Conference of the parties will take stock of the entire negotiation, and less than eight months—barring a highly-unlikely, last-minute decision by the UK to request an extension of the transition period—until the UK leaves the EU’s Single Market and Customs Union, one thing is clear: The EU and UK are still a very long way from reaching an agreement about their future relationship and, as Michel Barnier so frequently says, “the clock is ticking.”

David R. Cameron is a professor of political science and the director of the MacMillan Center’s Program in European Union Studies.