Law and Lawyers: A potentially devastating conjunction

Tuesday, 22 December 2020

A potentially devastating conjunction

Updated 25 December and 26 December

The "Great Conjunction" of Saturn and Jupiter occurred on Sunday 20 December. It was an interesting and rare event but it was merely an optical effect from the viewpoint of the observer on Earth. With all due respect to astrology, it caused no problems for anyone on the Earth. The other conjunction - Brexit and Covid 19 - is in an altogether different bracket.

Talks:

With just over a week to the end of the transition period, the post-Brexit relationship talks continue. It seems that much has been agreed but the parties have not reached a settlement over fishing rights including access to Britain's territorial waters.

It is reported that

"Downing Street has made a major counter-offer on fishing access for EU fleets in British waters to break the Brexit trade talks deadlock, raising hopes of a deal before Christmas. After a difficult period of negotiations, with both sides seemingly entrenched, the UK’s chief Brexit negotiator, David Frost, is understood to have tabled a proposal that could unlock the troubled talks" - The Guardian 21 December .

Parliament:

Parliament went into Christmas recess on Thursday 17 December. The recess will last until 5 January but a recall is possible if, for example, the government requires parliament to sit to consider any deal reached with the EU. Any deal will, in law, be a treaty (or maybe treaties) which will have to be ratified by both the UK and the EU. The process is described in some detail in this post by the Institute for Government.

Covid-19:

Meanwhile, coronavirus (Covid-19) continues to take its toll. Government data reported that up to 21 December there had been 67,616 deaths (within 28 days of first positive test) due to Covid-19. There were 33,364 new positive tests reported on 21 December.

England is now subjected to four tiers of coronavirus restrictions (previous post) leading to a vastly restricted Christmas period. The 4th Tier came into force on 20 December having been introduced into law after Parliament went into recess. (The tier legislaton was further amended with effect from 26 December). The emergence of a variant of the virus has caused serious concern and there are calls for a further national "lockdown" to stem further transmission - The Guardian 21 December.

Action by France and other nations:

Concern over the virus variant extended well beyond the UK. On Sunday 20 December, France blocked lorry movements from the UK for 48 hrs due to the new COVID strain alarm. The Eurotunnel was also closed. A considerable number of countries stopped flights from the UK.

According to the Prime Minister's statement of 21 December, the French Government imposed restrictions on UK freight crossing to France when accompanied by a driver. Mr Johnson said that the delays are "only occurring at Dover" and "only affect human-handled freight" which is "only 20% of the total arriving from or departing to the European continent". The "vast majority of food, medicines and other supplies are coming and going as normal."

The outcome of the French action was lengthy queues of lorries on the M20 in Kent and numerous lorries parked at the former Manston airfield - (pictured).

Brexit: flawed and mishandled:

I am, unashamedly, a 'remainer' and believe the whole Brexit project is fundamentally flawed given the UK's geographic proximity to continental Europe. The entire economy benefitted massively from EU membership which also leveraged British influence internationally.

It is probably a massive understatement to say that, from the outset, the Brexit project has been handled badly by politicians. Much could be written about the political process but, in my view, history is not likely to be too kind either to those who chose to launch Brexit on to the UK or to those who determined that the hardest of Brexits was to be pursued despite the 52:48 vote and the fact that two of the UK nations were against Brexit. For now, a couple of examples of the mishandling must suffice.

Under the terms of the Withdrawal Agreement, the transition period could have been extended but government refused to request an extension and, in January 2020, secured legislation to prevent Ministers agreeing in the Joint Committee to an extension. Political dogmatism therefore overrode the need to maintain flexibility so that account could be taken of any changes to circumstances. The intransigence has been maintained despite the immense demands imposed by the fight against cororavirus.

Even as negotiations were on-going, the government introduced the UK Internal Market Bill and admitted that a number of clauses in the Bill would breach the withdrawal agreement. This raised serious questions over the extent to which the UK government could be trusted in its international dealings. The clauses passed the House of Commons but met with stiff opposition in the House of Lords. Eventually, the clauses were withdrawn when agreement was reached with the EU regarding the implementation of the Northern Ireland Protocol - see details here. The Bill received Royal Assent and became the United Kingdom Internal Market Act 2020.

It is also worth noting that failure to reach a future relationship deal (or deals) with the EU could jeopardise co-operation in areas other than trade - e.g. live passenger number records vital in counter-terror operations; the Schengen Information System II database of missing persons and stolen goods; fingerprinting and DNA records in a system known as Prüm; and the European Criminal Records Information System (Ecris), which holds records of criminals across the bloc.

A future relationship with the EU will be crucial and it is possible that some form of deal will yet emerge but the UK economy now faces a difficult and uncertain future. The losses from Brexit alone are enormous. The conjunction of Brexit and Covid-19 is potentially devastating.

Update 23 December:

Wednesday 23 December - BBC News UK-France services return as travel ban eased and The Guardian France agrees to reopen UK border to lorry drivers with negative Covid test.

Update 25 December:

On Thursday 24 December it was announced that the UK government and the EU had agreed three agreements:

Trade and Co-operation Agreement (TCA)

Nuclear Co-operation Agreement - (Note - the UK left Euratom on 31 January 2020)

Agreement on Security Procedures for Exchanging and Protecting Classified Information.

Full text of the agreements is to be published later but the government published a Summary of the Agreements.

The agreements are subject to ratification by both sides.

House of Commons Library - The Trade and Co-operation Agreement: the path to a deal

The Library briefing notes that -

"The UK and EU will still need to take steps to ensure the deal is in place before the end of the transition period on 31 December.

The EU will not be able to fully ratify the agreement by the end of the year, as the European Parliament will not be able to organise the necessary consent vote until the new year. However, it will be able to provisionally apply the deal if this is agreed by Member State governments in the Council of the EU.

On the UK side, Parliament will be recalled on 30 December to approve the legislation required to implement the agreement prior to ratification. The legislation will most likely also be used to bypass the requirements of the Constitutional Reform and Governance Act 2010. This normally requires a 21 Parliamentary sitting day period before an international agreement can be ratified.""

European Commission

EU-UK Trade and Cooperation Agreement: protecting European interests, ensuring fair competition, and continued cooperation in areas of mutual interest