by Federico Fabbrini, Full Professor of EU Law at Dublin City University and Founding Director of the Brexit Institute, Dublin
The withdrawal of the United Kingdom (UK) from the European Union (EU) on 31st January 2020 represented an historical moment – but it did not represent the end of Brexit.
On the one hand, the Withdrawal Agreement, regulating the terms of the UK’s exit from the EU, established an 11-month stand-still transition period, which maintained the status quo: under the terms of the transition, the UK continues to participate in the EU internal market and customs union until 31st December 2020, despite being outside the EU’s institutions.
On the other hand, immediately after the formal exit date, in February 2020, the UK and the EU started new negotiations to flesh out the terms of their future relations: through this process, the parties have endeavored to transform the Political Declaration attached to the Withdrawal Agreement into a new, legally binding partnership treaty defining the future terms of EU-UK cooperation in areas ranging from trade to security.
Negotiations disturbed by Covid-19
Nevertheless, the negotiations between the parties have proved extremely difficult. To begin with, the talks were disrupted by the explosion of the coronavirus – a new, severely acute respiratory syndrome, known also by its medical acronym Covid-19, which resulted in the largest pandemic the world has experienced, at least since the 1918 Spanish influenza. As a result, for most of March and April 2020 negotiations between the EU and the UK were suspended and postponed.
Moreover, the UK and the EU put forward very different visions on the type of partnership they were seeking to achieve, which effectively prevented them from making meaningful progress towards a deal. In particular, while the Commission drafted and published as early as of 18th March 2020 a full draft text of an Agreement on the New Partnership between the EU and the UK – with a common institutional framework and strong guarantees of a level playing field, – on 19th May 2020 the UK released draft texts of a suite of separate and interrelated international agreements which they wanted to negotiate, which however contrasted with the comprehensive approach sought by the EU and its intention to codify a commitment to a level playing field.
At odds on Ireland/Northern Ireland
Most crucially, however, besides the divergence regarding their future relations, the UK and the EU have been at odds about the implementation of the Withdrawal Agreement Protocol on Ireland / Northern Ireland.
This Protocol – which was renegotiated by UK Prime Minister Johnson and the European Commission and agreed in October 2019 – found a solution to the grave problem of the Irish border. Specifically, to avoid a hard border, the Protocol crafted a special status for Northern Ireland, which would remain part of the UK constitutional territory but continue to apply all EU rules essential to the functioning of the internal market and customs union, effectively shifting the trade and customs border from within the island of Ireland to the Irish sea. While the application of the Protocol was subject to a periodic consent mechanism by the Northern Ireland Legislative Assembly, it undoubtedly established a new border between Northern Ireland and Great Britain, which the UK government was due to operationalise before the end of the transition period. Yet, if the UK government was initially slow in taking steps to articulate its approach on the application of the Protocol, it has now significantly backtracked on its commitments.
In particular, on 9th September 2020, the UK Government introduced in the UK Parliament the UK Internal Market Bill, which introduced provisions contrasting with the clear obligations undertaken by the UK in the Withdrawal Agreement. In particular, while section 40 of the bill re-affirmed Northern Ireland’s place in the UK internal market and customs union, section 41 prohibited the UK executive from introducing “a new kind of [Northern Ireland-Great Britain] check, control or administrative process.” Moreover, section 42 empowered the UK government “to dis-apply or modify export declarations” applicable by virtue of Article 5 of the Northern Ireland Protocol (which requires Northern Irish business to file export declarations for shipping goods towards Great Britain), and section 43 similarly granted authority to the executive to dis-apply Article 10 of the Northern Ireland Protocol (which requires Northern Ireland to abide by EU state aid law). Finally, with remarkable boldness, section 45 of the bill explicitly stated that the abovementioned provisions “have effect notwithstanding any relevant international or domestic law with which they may be incompatible or inconsistent” – including “any provision of the Northern Ireland Protocol” or “any other provision of the EU withdrawal agreement.”
The unprecedented step by the UK – traditionally an internationally law-abiding nation – to renege on its legally binding obligations under the Withdrawal Agreement prompted an international outcry. While the Speaker of the United States House of Representatives Nancy Pelosi stated that “if the UK did anything to undermine the Good Friday Accords, they […] should not even think about having a US-UK bilateral trade agreement,” European Commission President Ursula von der Leyen stressed with shock that ‘pacta sunt servanda’ and called immediately for an extraordinary meeting of the EU-UK Joint Committee. In fact, on 10th September 2020, the Commission released a statement in which it affirmed that the EU “expects the letter and the spirit of th[e Withdrawal] Agreement to be fully respected. Violating the terms of the Withdrawal Agreement would break international law, undermine trust and put at risk the ongoing future relationship negotiations.” As a result, the Commission intimated to the UK government to pull back the illegal provisions of the Internal Market bill by the end of September, and clarified that the EU would not be shy in resorting to the “mechanisms and legal remedies to address violations of the legal obligations contained in the [Withdrawal Agreement].”
Damaging trust … and more
It remains to be seen what the fate of the UK Internal Market bill will be. UK Prime Minister Johnson has so far rejected the EU’s request to withdraw the proposed legislation, despite the decision by the Commission to start now infringement proceedings against the UK. Nevertheless, it is certain that the move by the UK Government damages trust, raising serious concerns for the EU (and other countries worldwide) on the reliability of the UK as an international partner. In fact, as the European Parliament (EP) political group leaders and the members of the UK Coordination Group underlined in a joint statement released on 11th September 2020, failure by the UK to abide by its obligations in the Withdrawal Agreement would lead the EP to block any future EU-UK agreement.
With the end of the transition period fast approaching, and the UK’s respect for the Withdrawal Agreement dramatically questioned, the prospects for a negotiated deal on the future EU-UK relations also seem therefore to be quickly fading from sight.