Brexit - Overview of the draft Political Declaration 22 November

A draft Political Declaration (PD) has been agreed at negotiator level - see Department of Exiting the EU.

The outline declaration published on 14 November 2018 is now just part of the history of the Brexit-story - see this previous post.

The Prime Minister's statement to the House of Commons (22 November) may be read HERE and the ensuing debate HERE.

Status of the Declaration:



Article 50(2) of the Treaty on European Union (TEU) provides for the negotiation of an agreement setting out the arrangements for the withdrawal of a departing Member State, taking account of the framework for its future relationship with the Union.

The 27 page Political Declaration will not be legally binding and has to be read alongside the Draft Withdrawal Agreement which will be legally binding if it is eventually ratified.  The European Council is to meet on 25 November to consider the two documents.

Draft Political Declaration 22 November

Draft withdrawal agreement 14 November

Article 184 of the draft withdrawal agreement provides - "The Union and the United Kingdom shall use their best endeavours, in good faith and in full respect of their respective legal orders, to take the necessary steps to negotiate expeditiously the agreements governing their future relationship referred to in the political declaration of [DD/MM/2018] and to conduct the relevant procedures for the ratification or conclusion of those agreements, with a view to ensuring that those agreements apply, to the extent possible, as from the end of the transition period."


The Political Declaration (PD) is therefore the basis on which negotiations for the future relationship will take place.   The following is an overview of the PD though a full reading of the PD is essential.


Introduction:

The Introduction is at paras 1 to 5.  It is clear from paragraph 3 that the future relationship may encompass areas not referred to in the PD.

Paragraph 4 refers to respecting the 2016 referendum including with regard to the development of independent trade policy and the ending of free movement of people.   One of the problems with the 2016 referendum is that the "Leave" outcome has always been open to interpretation.  The Prime Minister adopted her own "red lines" in her Lancaster House speech in January 2017.   The reference in paragraph 4 to the referendum will lock that interpretation into the entire process from now onwards.

Part I  Initial Provisions - Sets down some core values - e.g. respect for and safeguarding of human rights and fundamental freedoms, democratic principles, the rule of law and support for "non-proliferation."  There is also a commitment to a high level of data protection.

Para 7 states -

Note that this refers to respecting the "framework of the" ECHR.  This differs from the outline PD of 14 November which stated - "Reaffirmation of the United Kingdom's commitment to the European Convention on Human Rights (ECHR) ...."  Neither formulation appears to me to prevent change to the detail of human rights protection in the UK such as the Human Rights Act 1998.

General principles will be established for UK participation in EU programmes - e.g. in areas such as science and innovation, defence capabilities, civil protection and space etc.  Participation will involve payment of a "fair and appropriate financial contribution."

The parties will also explore options for a future relationship with the European Investment Bank Group.

Draft Political Declaration 22 November

Part II Economic Partnership - This part of the PD divides into 14 sections number I to XIV.

Paras 16-19 - Objectives and Principles - refers to an "ambitious, wide-ranging and balanced economic partnership."  This will encompass a free trade area.  Para 19 states:

This is the only time the word "backstop" appears in the PD.  Nevertheless, it was a bone of contention with several MPs during the debate following the Prime Minister's statement.  For instance, Ian Duncan Smith MP called for the withdrawal agreement to be amended to strip out the backstop.  The Democratic Unionist Party (DUP) also sought removal of the backstop. 

Goods are covered by paras 20 to 28.  The parties envisage comprehensive arrangements that will create a free trade area, combining deep regulatory and customs cooperation and underpinned by provisions for open and fair competition.  The aim is to ensure no tariffs, fees, charges or quantitative restrictions across all sectors.

The possibility of cooperation with EU agencies will be explored - e.g. European Medicines Agency, European Aviation Safety Agency (EASA) etc.  Here is re-invention of the wheel given that the UK is already party to such agencies.

There will be ambitious customs arrangements making use of all available facilitative arrangements and technologies.  Para 27 notes:

When the UK-EU trade deal becomes a reality, the two sides will be "separate markets and distinct legal orders."  This indicates rejection of Theresa May's ambition for frictionless trade and the common rulebook - key elements in the Chequers plan.

Services and Investment - paras 29 -36.  The parties should conclude ambitious, comprehensive and balanced arrangements on trade in services:

The PD then goes on to set down what the future may hold for Financial Services (paras 37 to 39; Digital (paras 40 - 42), Capital Movements and Payments (para 43), Intellectual Property (paras 44 -47), Public Procurement (paras 48 - 49).  Much of this material is based on phrases such as "the parties should conclude" or "the arrangements should include" or "the parties should agree" etc.  The PD therefore gives little more than basic steers for negotiations. 

The Guardian 22 November commented regarding financial services - "The City of London will be disappointed but not surprised by the stark picture emerging in the joint declaration on financial services. Instead of “passports” that make it easy to do business in the EU, bankers and traders will have to rely on “equivalence”, a stricter regime used by the US and Switzerland, allowing market access to be withdrawn at 30 days’ notice. There is a commitment to complete equivalence assessments by the middle of June 2020. The two sides have also agreed to “appropriate consultations” on granting and withdrawing equivalence, although that may be little consolation to the 5,500 UK-based firms that will be losing the more-valued passports."

Draft Political Declaration 22 November

The ending of Freedom of Movement of Individuals has become an article of faith for those favouring a hard form of Brexit and it will end after the transition period.  According to the Prime Minister, the UK is to adopt a "skills based immigration system."  The PD contains paragraphs headed Mobility and these provisions are hardly likely to endear themselves to those who value the existing EU right to obtain work in other EU states.

Transport is the subject of paras 60 to 65 and the four sectors of aviation, road transport, rail transport and maritime transport are addressed.  On aviation the PD states:

The “comprehensive air transport agreement” will cover safety, security, air-traffic control, consumer protection, as well as market rules for aviation companies. But the short aspirational text leaves majority British-controlled airlines in the dark about how Brexit will affect their business, especially valuable transatlantic routes. At the moment, EU aviation agreements, such as the transatlantic Open Skies deal, are only open to European airlines where 51% of shareholders are in the EU. The EU has snubbed the British government’s request to join the European Aviation Safety Agency, merely noting that the two sides will arrange for close cooperation between the EASA and the UK's Civil Aviation Authority (CAA).

Paras 66 to 72 are concerned with Energy.  Withdrawal from the EU has also entailed withdrawal from Euratom.  The PD requires the future relationship to include wide-raging cooperation Nuclear Cooperation between Euratom and the UK - para 68.  Here again is the reinvention of wheels inherent in Brexit.

Fishing - of immense importance to Scotland - is covered by paras. 73 to 76 where a "new fisheries agreement" on access to waters is required (para 75).  The post-transition period future of fishing will remain in doubt until such an agreement is in place.  The aim is to have it in place by 1 July 2020.

On the thorny issue of fisheries, The Guardian 22 November, noted - "If any issue is going to poison the future trade talks, it is the trade-off between access to British waters for European fishing fleets and the right of UK exporters to sell their products into the European market. The political declaration is carefully worded to avoid this issue exploding now. Access to waters is linked to “quota shares”. The political declaration also commits both sides to have a new fisheries agreement in place by 1 July 2020, six months before the end of the transition period. The more dynamite demands of the nine EU member states who have skin in this game are likely to be set out in a side-declaration by the 27 EU member states at the leaders’ summit on Sunday. The European commission has admitted that this is one of the issues still open for the leaders to nail down when they gather in Brussels."

The section on the Economic Partnership concludes with paragraphs on Global Cooperation (para 77-78) and "Level Playing Field for Open and Fair Competition" (para 79).

Draft Political Declaration 22 November

Part III  Security Partnership - begins with Objectives and Principles (paras 80 -81).  Part III then addresses Law enforcement and Judicial Cooperation in Criminal Matters (paras 82-91); Foreign Policy, security and defence (paras 92-109); Thematic Cooperation (paras 110-117); Classified and Sensitive non-classified information (paras 118-119).

This Part proceeds in similar vein to Part II.  It is largely aspirational: essentially a road-map to guide  negotiations.

In the paragraphs on Law Enforcement we see this:

The European Arrest Warrant system will apply for the time being but new arrangements will be needed post-transition - see BBC News 19 June.

It is surprising that little has been said by politicians regarding possible involvement of UK military forces in EU operations.  The PD states:

Clearly the UK will be able to choose whether to participate or not.  If it chooses to be involved then the UK will be able to participate in certain conferences and to second staff to the designated operational HQ.  Yet again, much is to be left to a future Framework Participation Agreement.

Part IV - Institutional and other horizontal arrangements.  These are addressed in paras. 120-137.  For example, at para 124 we see a requirement for "regular discourse" -

Paragraphs 132-135 cover dispute settlement and here we find that where a dispute raises a question of the interpretation of EU law, an arbitration panel can refer it to the Court of Justice of the EU "as the sole arbiter of Union law."  The court will give a "binding ruling" and the arbitration panel then decides the dispute in accordance with the ruling.

Unsurprisingly, the ongoing involvement of the CJEU is a major concern to those politicians who seek an end to any CJEU authority in matters involving the UK.  That is actually an unrealistic aspiration since, in the EU legal order, the CJEU is established by the treaties as the final authority on interpretation of EU law.  Therefore, if the EU and the UK are to have any form of post-Brexit cooperation the potential for CJEU involvement cannot be excluded altogether.

Draft Political Declaration 22 November

Part V - Forward Progress. 


Part V of the PD provides for preparatory organisational work before the UK withdraws (paras 141-143) and then for formal negotiation afterwards (paras 144-146).  The preparatory work is to enable rapid commencement of and progress in formal negotiations.  Progress will be reviewed at a high level conference at least every 6 months - para 147. 

Final:

In summary, the PD is essentially a blueprint for negotiations to come.  It certainly gives an indication of the magnitude of the work yet to be done but there is very little in it beyond statements about what the parties should do and the general principles they should adopt.  Here then is perhaps the most worrying aspect of the whole business.  The UK will have left the EU before there is any certainty as to what the eventual relatonship will be.  Many rules relating to crucial areas will not be worked out until after Brexit with no guarantees as to what those rules may entail.

The document has satisfied very few.  The key question for this week is whether, along with the withdrawal agreement, it will receive the endorsement of the European Council.  If such endorsement is given then it will be the turn of the UK Parliament to hold its "meaningful vote" on the documents.  The Parliamentary arithmetic is very difficult to predict but the odds are probably against acceptance. The fact that the withdrawal agreement avoids a "cliff-edge" brexit on 29 March will inevitably weigh heavily in the minds of MPs.

Media etc:

The Guardian 22 November 2018 - The Brexit political declaration - rated

"Across the 26 pages of the political declaration, outlining a plan for the post-Brexit EU-UK relationship, the word “consider” is used 19 times. You can almost hear the thwack as the major issues are booted, one by one, into the long grass of the Belgian countryside."

BBC News 22 November 2018 - Brexit: What's in the political declaration?

Politics.co.uk - 23 November - May's Brexit deal is a humiliation for Britain

Chris Grey - Reflections on the Political Declaration