Photo by Thierry Monasse/Getty Images

“We’re not going to subordinate our laws to theirs in any areas.”

There’s only two months left for one side to climb down, or the EU-UK talks will fail.

Artillery Row

Thanks to the coronavirus crisis, it is not quite business as usual for the British and EU teams who are negotiating what will follow the conclusion of the Brexit transition period on New Year’s Eve. Communicating over Webex video conferencing, the two team leaders, David Frost and Michel Barnier, cannot meet face-to-face. There are no opportunities for them to break off from an arduous session by going for a walk together along a balustraded terrace, or a latte in a quiet corner, let alone to compare some of Europe’s finest produce in a dark cellar. Video conferencing is helpful in setting-out formal positions in the age-old manner of the grand parley, but it cannot readily replicate the subtler building of confidences (as horse-trading is more politely described) that informal side-meetings facilitate.

This is widely perceived to be a disadvantage, particularly as time is of the essence and the opening positions from both sides remain incompatible on such fundamental points of principle as whether the UK must remain compliant to EU-devised regulation (the level-playing-field) in return for unrestricted access, or the preferred governance mechanism, or the continuation of the common fisheries policy.

Either one side will soon have to shift appreciably – and publicly – or there will not be a deal. For the effective deadline is far sooner than 31 December. If there is no basis for resolution on these three most contested issues by the time of the anticipated political declaration in June, then the likelihood of any meaningful deal recedes rapidly. The UK would rather use the remaining six months to plan for a new regime based on WTO rules from 2021 onwards than continue a dialogue that has no hope of success.

Whether David Frost and Michel Barnier can create a working understanding by holding the diplomatic equivalent of a Zoom supper party with one another remains to be seen. There were more than 100 representatives of both sides eves-dropping online to the most recent set of opening and closing plenary sessions. So, some form of more discreet channel will need to run in parallel to this technological equivalent of the Field of the Cloth of Gold. The twin track will also require Boris Johnson to engage one-to-one not only with Barnier but Europe’s main political leaders in the coming weeks. These approaches will focus on seeing the wider picture “in the round,” rather than picking over the small print.

This twin track involving the prime minister will happen. But it will not happen quite yet. According to a source close to the UK negotiating team, the prime minister will be unleashed only after existing gulfs have been narrowed.

Reducing the gulf to a crack requires the EU to adapt to a new reality – that it is negotiating with an independent sovereign state rather than a satellite state. If that awakening could be induced, then the prospects for a deal are still held to be favourable.

But ahead of the next session on 11 May, there is little outward evidence that Brussels has fully digested that the Brexit damage limitation approach adopted by Theresa May’s emissary, Ollie Robbins, has been junked and that David Frost and his team really are prepared to walk away. If Barnier’s team do not budge from their current position – which requires widespread British compliance to the level-playing field and continuance of the European Common Fisheries Policy then, according to the source close to the British team, “we’re never going to accept that.”

They’re talking about continuing the Common Fisheries Policy – which is never going to happen.

Barnier has expressed exasperation that the British have not yet submitted a formal text on how they wish to see fisheries operating after the transition period ends. According to the source, “We didn’t feel that it was useful to table a text up to this point because we’re talking past each other.  They’re talking about continuing the Common Fisheries Policy – which is never going to happen. When we move off that, then we can have a discussion about the basis of a text.”

What might that text look like when it is presented? Frost’s team are looking for a deal on fisheries that is comparable to that which the EU already has with Norway. The basis is that Britain has control of its own coastal waters and enters into annual negotiations on who can fish in them based upon ongoing scientific evaluation of fishing stocks.

If Brussels believes that a British starting position of sovereignty over its own waters is a mere negotiating tactic, ready to be traded for some other gain, we are assured that they are grievously mistaken. “There are some fundamentals we are not going change or move on” said the source. “They’re not negotiating positions because they’re what an independent state does. An independent state has control of its own coastal waters.”

The extent of Britain’s defiance on fisheries is equalled on the wider point of remaining compliant with EU regulation through the “level playing field.”  According to the source, “what we want to see now is an EU understanding that we’re not going to subordinate our laws to theirs in any areas. We’re not going to accept European Court [of Justice] involvement in settling disputes between us.” “If we see that they can understand the importance of that, then I think we’re going to reach agreement,” he added. “At the moment I’m not sure they quite have.”

What will convince Barnier – and President Macron, and Chancellor Merkel – that this is not bulldog bluster? An offer to postpone the end of the transition period (a move that would require fresh legislation at Westminster) would rather convince them that the British position was one of funk. Which is why Downing Street has persisted in stating so unequivocally that there will be no extension beyond 31 December, regardless of the coronavirus situation.

Downing Street is especially concerned that towards the end of this year, the EU will be enacting a new financial settlement to deal with the consequences of the coronavirus crisis (of which Italy is the greatest but by no stretch the only member state to be teetering on the financial precipice). That package will be designed for the EU’s remaining 27 members and without regard to the UK.  As the British negotiating team source puts it, “We’ll have no say in that. We don’t know what they’re going to be, what they’re going to cost, we don’t know whether they’ll suit our conditions. It does not seem sensible for us to continue to be bound into such an unpredictable situation.” The logic of Brexit is therefore especially persuasive that “we set our own laws for our own conditions.”

Setting our own laws, however, will not prove so simple in one part of the UK. Considerable difficulty remains for the British on the one-province-two-systems nature of the Northern Ireland protocol, although Frost’s team remain adamant that, as far as that protocol is concerned, “we’re absolutely committed to our legal obligations.”

More broadly, there is not even a meeting of minds on the governance of an EU-UK free trade agreement (FTA). Barnier wants everything in a single document, in the manner of an association agreement. This would create a single dispute settlement mechanism into which wide expanses of EU law is written and with the European Court of Justice as the final court of adjudication. To escape this fate, the British prefer instead a series of separate, parallel, agreements, based upon existing international precedents.

The British team’s expectation is that Barnier wants a deal. But if that agreement is to resemble anything close to the UK’s starting position that it is master in its own house (if rather less so in Northern Ireland) then there is going to have to be some backing down very publicly, very soon. In the meantime, the two lead negotiators might want to investigate how to set-up a Zoom supper party a deux. Whether or not they hit it off, it might at least help Michel Barnier grasp the extent to which the fusion cuisine of Ollie Robbins is not in David Frost’s cookbook.

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