Michel Barnier outside 10 Downing Street. Leon Neal/Getty Images

Is a deal any closer?

There is movement on everything, except the fundamentals

Artillery Row

On 15 June, Boris Johnson called a video-conference with the presidents of the EU Commission, Council and Parliament and agreed with them that the “early understanding on the principles underlying any agreement” on a UK-EU agreement should be in place through intensified talks in July. As far as Johnson was concerned, the common understanding would involve: Britain’s independence from the jurisdiction of the European Court of Justice (ECJ); that Brussels could not temper or bind Britain’s full legislative sovereignty; and a fisheries agreement that left British waters regulated from London rather than Brussels.

The sixth negotiating round concluded on Thursday with announcements by Michel Barnier and David Frost that no such understanding exists, or is close on at least the second and third of Johnson’s pre-requisites. As Britain’s chief negotiator, David Frost put it

 “considerable gaps remain in the most difficult areas, that is, the so-called level playing field and on fisheries.  We have always been clear that our principles in these areas are not simple negotiating positions but expressions of the reality that we will be a fully independent country at the end of the transition period. That is why we continue to look for a deal with, at its core, a free trade agreement similar to the one the EU already has with Canada – that is, an agreement based on existing precedents. We remain unclear why this is so difficult for the EU, but we will continue to negotiate with this in mind.”

In his press conference, Barnier clarified why Brussels finds it so difficult. He regarded Brussels’ pre-requisites as entirely compatible with the Political Declaration that Johnson had signed last October. “The EU has always insisted that an economic partnership with the UK must include robust level playing field rules and an equitable agreement on fisheries.” Effectively dismissing a Canada-style deal, Barnier said, “let me be very clear: a less ambitious agreement on goods and services will not lead the EU to drop its demands for a robust level playing field.” As for what the UK was demanding on fisheries, this was “simply unacceptable.”

The achievement of this week’s talks in London was to get two teams inhabiting different planets into the same room. The talks have been structured in a way that parks progress on areas where agreement could more readily be achieved until the major, more strategic, areas have been settled. It is a methodology designed to ensure nothing is agreed until one side caves in on the matters of principle they say are non-negotiable.

And yet, there has been movement across several areas but for which the precedence given to the fundamentals prevents formal agreement being sealed. As Barnier admits, on transport, energy, police and judicial cooperation and social security coordination, the discussions have been “intense”, “useful” and “good.” On Britain’s part, Frost’s team have made the greatest concession on a single institutional framework.

The initial British position sought a series of separate agreements to cover the different areas, but Brussels wanted one treaty to bind them all. “We’ve made one quite significant move on the structure of the treaty,” a UK official involved in the talks confirmed on Thursday, “they have said to us a Switzerland style suite of agreements would be too complicated to manage for them and might present ratification difficulties in parliament if they all had to be voted on.”

In next week’s talks, there will therefore be emphasis on how a comprehensive treaty might be organised in a way that honours Britain’s preference to keep a separation of its component parts. “Our view is that the important thing is that bits of the treaty remain functionally separate,” explained the British official. The Political Declaration assumed that there would be separate fisheries and civil nuclear agreements and this is still the UK’s preference. But “in other areas, you can group them a bit where there are linkages in the different subjects.”

The achievement of this week’s talks in London was to get two teams inhabiting different planets into the same room.

In turn, Brussels appears to have acknowledging that direct ECJ jurisdiction is a hurdle too high for Frost’s team. “They have indicated flexibility” said the UK official, “they’ve heard and understood that point of concern to us.” The British position is for future EU-UK dispute arbitration to follow existing international precedents. These precedents are well-established on trade disputes, but where they do not exist – for example on cross-border law enforcement – no such arbitration process should be devised.

Whilst Frost and Barnier were delivering their verdicts on progress, Boris Johnson was visiting Scotland in a bid to shore-up support for the Union. If the UK did surrender back fisheries to the Common Fisheries Policy (or a mechanism like it), it would represent a betrayal to Scotland’s fishermen and one that Nicola Sturgeon would taunt Unionists with pitilessly.

But the Union that concerns Barnier is not the one between Scotland, England and Northern Ireland. “On fisheries, the UK is effectively asking for a near total exclusion of EU fishing vessels from UK waters. That is simply unacceptable. … Any agreement cannot lead to the partial destruction of the EU fishing industry.”

Shortly after Barnier made this claim, the senior UK official involved in the talks effectively claimed the EU’s chief negotiator was mistaken. Yes, the UK would take back control of its own fishing grounds, but “that doesn’t necessarily require the exclusion of EU trawlers from our waters. What it means is an agreed basis in which we have the right to control access to that zone.”

There will be more talks next week. Barnier has a holiday earmarked in his calendar during the first fortnight of August, after which another formal round is scheduled to proceed. So, if fundamentals prove to be tradable after all, and a deal does, somehow, emerge when should we expect it? The UK official mentioned “September.” Proving he is no push over, Barnier said “October.”

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