It’s a Thursday in London, a day early once again, as if both parties had accepted that more time would not lead to a solution. Michel Barnier, the EU’s chief negotiator for a post-Brexit trade deal with the UK, is giving his regular post-negotiation press statement following the sixth week of talks since March 2020. As usual, the tone is woeful. The talks were useful, yes; “discussions took place in a positive atmosphere”; David Frost and his team had a “professional approach”. And yet, once again, the UK failed to live up to its own word, to respect the commitments it made in the Political Declaration of October 2019, thus preventing the EU from engaging in good faith with the UK during the negotiations.
If you are feeling an air of déjà vu, that is because the same story has been taking place every three weeks for the past five months. Both sides prepare for “constructive” discussions that respect the red lines each have fixed; and when the two positions inevitably clash, always on the same points of contention, the blame game starts. The EU is inflexible, uncreative, uncooperative; the UK is deceitful, reneging on its promises, unable to accept the reality of the Single Market. Each of Michel Barnier’s press statements reiterate the same areas of divergence and repeat the EU’s disappointment with the UK; on the other side, chief UK negotiator David Frost has been more creative in his ways to blame the EU, sometimes using press statements, sometimes supposedly private letters.
Getting stuck in the back-and-forth of letters, statements and messages should not lead one to ignore the progress achieved so far. Most areas of the partnership agreement are ready to go, and rely only on a solution to the few points of contention left to be implemented. For instance, on an area like police and judicial cooperation in criminal matters, the two sides are very close to an agreement and ready to compromise, provided that the thornier questions are resolved. Roughly, there are three issues left: the level playing field, and whether the UK will be forced to abide by EU state aid rules and food, social and environmental standards; the governance framework, and whether the UK will still be subject to the European Court of Justice (ECJ) on areas that fall under its jurisdiction; and fishing rights. Despite the blame game, the EU and the UK seem reasonably close to an agreement – and if one is found, it should be finalised within the next two months. So why is it so hard for the two parties to strike a deal?
There has been bad will on both sides undoubtedly. The EU has long exaggerated how long the negotiation process should take; as late as January 2020, European Commission President Ursula von der Leyen claimed there would not be enough time for a new deal to be struck by the end of 2020, when the UK’s transition period ends. Yet since the UK made its refusal to extend the transition period clear during the June High-Level Conference, the EU has been more willing to consider a deal quickly and agreed to an intensified timetable. On the other hand, many of the obstacles in the negotiations are caused by the UK stepping back from the commitments it made in the Political Declaration, where it had agreed to prevent unfair competitive advantages, stick to high standards with regards to state aid, competition, food, the environment and social issues.
The issues, ultimately, are structural. When the 27 EU Member States delegated their negotiating responsibility to Michel Barnier, thereby creating a single point of contact for all things negotiation-related, they gave him a very clear roadmap. In so doing, they also made the process on the EU side more technical and technocratic in nature: with little political autonomy himself, and with the difficulties that negotiating with 27 Member States imply, Michel Barnier has had very limited space for manoeuvre. His success in the negotiations so far can be attributed to the fact that he has managed to unite the EU around a single negotiating position, and has followed it so far. Having delegated the negotiation business, and being faced with the biggest pandemic in a lifetime, EU Member States have had other priorities to focus on; similarly, EU citizens have long moved on from the UK’s membership. From the EU side, there is limited interest in the negotiations. A no-deal Brexit would be an unideal outcome, but not one the EU feels is worse than endangering the integrity of the Single Market. Push come to shove, very few politicians and policymakers in the EU would see a no-deal as worse than a bad deal.
Across the Channel, the Brexit negotiations are a much more political issue. The current British government was elected to prove a point: Brexit would finally happen, and nothing would stop the process. The version of Brexit that the sitting Cabinet was elected on is one where Britain is no longer under the jurisdiction of the ECJ and where the Kingdom is finally free to decide all of its own rules and regulations. Anything less would be seen as a defeat at best, a betrayal at worst. While the EU’s conditions for an agreement are reasonable within the context of its partnerships with its other European partners, such as Norway, they are unacceptable for a government whose political success is heavily reliant on its main, if not only, election promise.
Is a deal still possible? Probably. The two sides are not that distant from one another; and while the COVID-19 pandemic provides for ideal media cover, the impact of a no-deal on the British economy should not be underestimated, especially at a time where the latter is already weakened. Yet as both sides are clearly willing to accept no-deal over what they see as a worse outcome, each is camping and waiting for the other one to flinch. If a deal is struck, merit is more likely to go to the creative solutions that the negotiators will have found to surmount their differences than to either party giving up on its positions. In the now possible – if not likely – event that the EU and the UK give up on a deal before the end of the year, negotiators will have to take a back seat as communications officials find the best way to blame the other side for the failure of the talks.
The Whitehouse team are experts in the potential impact of Brexit, providing political consultancy and public affairs advice to a wide range of clients, not only in the United Kingdom but also across the member states of the European Union. More information about our Brexit experience can be found here, or, if you have any questions, please contact our Chair, Chris Whitehouse, at firstname.lastname@example.org