First impressions of the Political Declaration

First impressions of the Political Declaration

Following his analysis of the draft Withdrawal Agreement, which you can read on the BrexitCentral website here, Lee Rotherham has had an initial read of the Political Declaration, and shares his first impressions of the document below:

Introduction

  • Paragraph 3 endorses the ‘four pillar’ approach pushed by HMG. Inevitably the UK will end up with closer JHA and military cooperation than many people will be happy with.
  • Paragraph 3 also includes its own new form of elastic clause (cf Arts 94, 95, 308) which were problematic: “the future relationship may encompass areas of cooperation beyond those described in this political declaration”. This approach has always been a risk over greater integration.
  • Paragraph 4 is a positive: the question arises as to the extent of its justiciability when clashing against contradictory elements.
  • Paragraph 5 might end up being be marketed as a pledge over equivalence/mutual recognition of difference standards. Caveats: it is aspirational rather than directional; and doesn’t actually guarantee to deliver what was said at Florence.

PART I: INITIAL PROVISIONS

I. BASIS FOR COOPERATION

A. Core values and rights

  • Paragraph 7 is intriguing. The EU remains committed to the ECHR but HMG is only expected to “respect the framework”. Albeit vague, does this anticipate HMG will in the future sort out the muddle of the HRA98/Common Law-Strasbourg clashes?

II. AREAS OF SHARED INTEREST

A. Participation in Union programmes

  • Paragraph 11 – that’s quite a large list of areas the UK will participate in. This has significant implications for UK contributions. There is no commitment to these being assessed by juste retour which is the treaty norm, ie pay in, get roughly that much back. The list itself is a bit contentious.
  • That same principle (and link) applies to Culture and Education, seen in Brussels as the building blocks to building ‘homo europeensis’ – the EU National.
  • EU Overseas Development has also been part of the EU PR aspect, as can be seen in a review of the publicity commitments that people receiving EU money have to sign. UK aid should be UK flagged. There’s also more confidence in it not being subject to fraud and waste.
  • Defence capabilities is alarming because, as @VeteransBritain demonstrates, we risk being glued to PESCO, while damaging our own defence industries (there’s a key paper on that coming out shortly). Civil protection is duplicating regional and global work done by the UN.
  • If there is to be “provisions allowing for sound financial management”, can we at least get a public statement by the EU that they will finally get round to sorting out the outstanding cases of the whistleblowers? … and can we have a parallel statement by HMG committing to better oversight? Some background and practical recommendations here.

B. Dialogues

  • Paragraph 15 suggests we might end up still committing to the EIB, where we pay in twice as much as we see invested back.

PART II: ECONOMIC PARTNERSHIP

I. OBJECTIVES AND PRINCIPLES

  • Paragraph 19 The NI backstop, of course, is still in. The commitment to it, and to the possible replacement, is the same wording as in the original Recital.

II. GOODS

A. Objectives and principles

  • Paragraph 21: ” the Parties will form separate markets and distinct legal orders.” The latter was slightly less explicitly stated in the original (“respecting the Parties’ legal orders”). Now underlined here. That was good news, but undermined by the following para, beginning with a major “However”! “comprehensive arrangements” will include “deep regulatory and customs cooperation, underpinned by provisions ensuring a level playing field for open and fair competition” Not so good.

B. Tariffs

  • It’s hard to look at paragraph 23 and not conclude that it’s a customs union. It’s pretty well a dictionary definition.

C. Regulatory aspects

  • Paragraph 25 is the Poisoned Clause. Para 24 says there will be wonderful regulatory alignment. Para 25 says the UK will be the one doing the aligning. So the model will be a Fax Democracy.

D. Customs

  • Paragraph 26 then is the Paradox Clause, identifying some of the mechanisms that avoid the need for a hard border while elsewhere saying it’s the NI default. As. reading on, it states in paragraph 27!

III. SERVICES AND INVESTMENT

A. Objectives and principles

  •  Paragraph 29 – a target on Services: what you can get from a Canada+ …

C. Regulatory aspects

  • Paragraph 34 – not sure what this entails in terms of anticipated limitations on UK legislation and legislative procedure. It implies constraints on Parliament. That is mitigated by the intergovernmental approach slightly developed in para 35, but inclusion still may carry implications.

IV. FINANCIAL SERVICES

  • Not sure why in paragraph 37 the commitment to both parties obligation to maintain market stability is included. The fact that this is not self-evident is of itself a point of interest. Could the EU in the future cite any UK economic action as a breach of this commitment, ergo no deal? “fair competition” – an instance of ‘fairness’ being in the eye of the beholder.

VI. CAPITAL MOVEMENTS AND PAYMENTS

  • Capital movement in paragraph 43: “relevant exceptions” seems a little vague but there may be established legal trade terminology underpinning this.

 

VII. INTELLECTUAL PROPERTY

  • A double win for the French: droit de suite stays, to the detriment of London over NY/Zurich/Shanghai/Dubai. Directly inferred (but curiously not stated: “inter alia”) – foodstuffs geographical indicators stays.

 

VIII. PUBLIC PROCUREMENT

  • Paragraph 49 – EU attempting to keep open its access to UK public procurement. NB the UK is a disproportionately heavy and fair user of the EU database system. (To UK taxpayer advantage ultimately – but a hit vs. Corbyn)

 

X. TRANSPORT

A. Aviation

  • Paragraph 60. Would be useful to know how long it would be assessed to take to get a bridging CATA (Comprehensive Air Transport Agreement) in place for a default WTO+ scenario. The same applies for the mutuality clause (relevant for hauliers) under paragraph 62.

D. Maritime transport

  • Paragraph 65 – Reassuring to see that the UK will not be signing up to membership of all Euroquangos. See here for many more missed off this text which may not yet have been decided on: theredcell.co.uk/uploads/9/6/4/…

XI. ENERGY

A. Electricity and Gas

  • Paragraph 66 – a commitment for the UK to keep buying French energy into the future, and to keep the N-S Ireland power grid going.
  • Paragraph 67 generates a possible concern in the commitment to provide “security of supply” – a phrase historically used when the Commission has eyed up taking over North Sea reserves! A bit more difficult now but this may still generate obligations/expectations in a crisis.

C. Carbon pricing

  • Paragraph 72 – continued expectations of the UK to remain locked into historically disastrous EU carbon schemes – see this excellent tome.
  • I suspect CBI elements would be majorly split on review of how that might develop. Especially when comparing UK grants and costs with other EU and non-EU recipients.

 

XII. FISHING OPPORTUNITIES

  • Paragraph 74 – reference to non-discrimination over fisheries management bodes very ill. By definition, taking back control implies UK fishermen get first dibs, and the UK fleet grows back through new catch opportunities.
  • Paragraph 75 – there will be a new quota system. This is not good for the UK. Hard to see commitment to becoming “an independent coastal state” compatible with agreeing to joint fisheries, which by definition must be within UK reclaimed territorial waters (or they would fall outside national remits).
  • Goodbye CFP. Hello CFP II.

 

XIII. GLOBAL COOPERATION

  • Paragraph 77 I suspect is about simply authorising the FCO to be in the same room at EU27 diplo-planning meetings. The problem comes where less experienced and outnumbered officials go with the flow, since core policy will have been agreeed at Bxlles first.

 

II. LAW ENFORCEMENT AND JUDICIAL COOPERATION IN CRIMINAL MATTERS

  • Paragraph 83 – The more the UK wants from the JHA pillar, the greater its obligations will be. A problem given the Home Office has always wanted to sign up to more things than Conservative backbenchers. The paragraph also gives an entrée to Fundamental Rights principles, and undermines the possibly-inferred ECHR fixing cited earlier.

 

B. Operational cooperation between law enforcement authorities and judicial
cooperation in criminal matters

  • The UK will still be working closely with Europol (para 88) and related areas. A take on this side of things here

 

III. FOREIGN POLICY, SECURITY AND DEFENCE

  • On external action including Defence, there will be “ambitious, close and lasting cooperation” (paragraph 92). Problematic if you are trying to discourage counterparts from undermining NATO.

 

D. Defence capabilities development

  • Paragraph 104 still leaves the door half open with respect to the UK sidling alongside EU Defence Union agenda developments. But I wonder if the negotiators have been told to toughen this up a bit to underline separate Defence industries. Still caveated with “to the extent possible”

 

C. Health security

  • On Health Security (para 115), worth noting the risk of duplication with in particular WHO’s mandate
  • The EU treaty competency was largely introduced through political ambition.

 

A. Strategic direction and dialogue

  • Paragraph 125: encouraging civil society dialogue has never ended particularly well with Brussels. It ends up with “Brussels talking to Brussels”, closed loops, and the full panoply of this crowd.

D. Dispute settlement

  • Paragraph 133 – positive. Disputes settled by an independent panel.
  • Paragraph 134 – problematic. CJEU resolves disputes over interpreting EU law first. A critical role for the CJEU in setting the parameters for the dispute panel.

 

I. BEFORE WITHDRAWAL

  • Paragraph 142 – the implication is a timeframe and schedule. If so, it means dawdling would get spotted. But what then, if it looks like an end deal will not be delivered in a timely manner? Nothing stated. There is still no exit clause to the Transition Agreement.
  • The provision to have review meetings every six months (paragraph 147) does not in itself suggest a high tempo.

Excuse ‘gaps and flaps’ – this has been a first read and at speed.

Overall, the curate’s egg. A number of issues left unresolved, a couple of critical ones exacerbated. But at least we are a bit clearer on what the TA is supposed to lead to, for good and bad.