Saturday, 26 December 2020

Agreement with the EU ~ Overview ~ Post No.1 ~ Fundamentals

Over a reasonably short number of posts I hope to offer a fair and balanced view of the key agreements finally reached on 24 December between the UK government and the EU.  

Anyone but a latter day Rip Van Winkle will have their opinion as to whether Brexit is "good" or "bad" but it is crucial that the nation now moves forward and I have no doubt that the agreements constitute a better future relationship than a "no deal" scenario. 

This post looks at the Preamble and Titles One and Seven of the Trade and Cooperation Agreement (the TCA). This is an overview and the agreement itself must be read in full if the reader wishes to have a detailed understanding.


Links to the agreements:

The Draft EU-UK Trade and Cooperation Agreement 

The Draft EU-UK Security of Information Agreement 

 The Draft EU-UK Civil Nuclear Agreement  

Draft EU-UK Declarations

Explanatory material:

European Commission - Trade and Cooperation Agreement - A new relationship with big changes - Overview of consequences and benefits

Preliminary:

A preliminary point is to note the word "Draft". The agreements are in draft form because they have yet to be ratified by both sides (UK and EU). 

The Trade and Cooperation Agreement (TCA) is a lengthy document of 1246 pages. The text is divided into a Preamble and then seven Parts plus a number of Annexes and Protocols. 

It is possible that other "supplementing agreements" will be reached in the future.

It is in the 7 Parts that the various "Titles" are to be found and within the "Titles" are the "articles.".

"Articles" are numbered in a way which describes the part of the TCA where the article is to be found. For example, Article COMPROV.1: Purpose is to be found in Part One (Common and Institutional Provisions).

* PREAMBLE *

The Preamble to the TCA is essentially a setting of the scene by which the purposes of the treaty are described as well as the considerations that led the parties to conclude the treaty. 

The TCA Preamble contains 25 statements - e.g. "Noting that, the United Kingdom withdrew from the European Union and that with effect from 1 January 2021, the United Kingdom is an independent coastal State with corresponding rights and obligations under international law"

* PART ONE  - Common and Institutional Provisions *

Part One comprises three Titles - I (General Provisions) - II (Principles of Interpretation and Definitions) - III (Institutional Framework).

TITLE I (General Provisions) - HERE.

Article COMPROV.1: Purpose - "The agreement establishes the basis for a broad relationship between the parties, within an area of prosperity and good neighbourliness characterised by close and peaceful relations based on cooperation, respectful of the Parties' autonomy and sovereignty."

Article COMPROV.2: Supplementing agreements. This allows for further bilateral agreements between the UK and EU and such agreements will constitute "supplementing agreements" to the TCA (unless otherwise provided for in those agreements).

Article COMPROV.3: Good faith - The parties shall, in full mutual respect and good faith, assist eachother in carrying out tasks that flow from the TCA and any supplementing agreement. The parties must take appropriate measures to fulfil obligations and must refrain from measures which could jeopardise the attainment of the objectives.

TITLE II (Principles of Interpretation and Definitions) - HERE

Article COMPROV.13: Public International Law - This requires good faith regarding interpretation of the TCA. Customary rules of treaty interpretation apply including those codified in the Vienna Convention 1969.

Given the UK government's wish to avoid any involvement of the Court of Justice of the EU it is also provided that - 

"For greater certainty, neither this Agreement nor any supplementing agreement establishes an obligation to interpret their provisions in accordance with the domestic law of either party."

and then provides

"For greater certainty, an interpretation of this Agreement or any supplementing agreement given by the courts of either Party shall not be binding on the courts of the other party"

Article COMPROV.16: Private Rights - With some exceptions (not considered further here), nothing in the TCA or any supplementing agreement shall be construed as conferring rights or imposing obligations on persons other than those created between the parties under public international law.  

Further, the Agreement or a supplementing agreement cannot be "directly invoked" in the domestic legal systems of the Parties. Here is a marked difference between the TCA and the Treaty on European Union (TEU). The TEU was the "conduit" by which EU law flowed into the UK's domestic legal systems.

It is also provided that a party shall not provide for a right of action under its law against the other party on the ground that the other party has acted in breach of the TCA or a supplementing agreement.

Article COMPROV.17: Definitions - sets out a number of definitions - not considered further here.

Title III (Institutional Framework) - HERE.

Comprises 7 articles setting out in considerable detail a framework for institutions aimed at securing successful operation of the TCA.

Article INST.1: Partnership Council - establishes a "Partnership Council" at Ministerial level. The powers of the Council are defined and will be considerable. For example, the Council will have power to adopt decisions where the TCA permits it to do so.  Council can also make recommendations regarding implementation and application of the agreement.

(A domestic matter: Given the powers of the Council, it will be necessary for Parliament to establish some mechanism for scutinising its work. It remains to be seen what is proposed).

Article INST.2: Committees - establishes 19 committees and details their powers. Examples of committees are the Trade Partnership Committee, Trade Specialised Committee on Goods, Trade Specialised Committee on Services, Investment and Digital Trade, Specialised Committee on Energy, Specialised Committee on Air Transport, Specialised Committee on Aviation Safety, Specialised Commitee on Road Transport ... etc ...

Article INST.3: Working Groups - defines 4 working groups: Working Group on Organic Products, Working Group on Motor Vehicles and Parts, Working Group on Medicinal Products, Working Group on Social Security Coordination.

Article INST.4: Decisions and Recommendations - Decisions adopted by the Partnership Council or, as the case may be, by a Committee are binding on ther Parties. Recommendations have no binding force.

Article INST.5: Parliamentary Cooperation - The European Parliament and the UK Parliament may establish a Parliamentary Partnership Assembly to exchange views on the partnership.

Article INST.6: Participation of civil society: The parties shall consult "civil society" on the implementation of the TCA - in particular through interaction with the domestic advisory groups and the Civil Society Forum referred to in Article INST.7: (Domestic Advisory Groups) and INST.8 (Civil Society Forum). It will be particularly interesting to see how these mechanisms are developed and the extent to which the UK government brings the devolved administrations on board.

It will now be convenient to look at Part Seven (Final Provisions). The scene has then been set to enable consideration of other aspects of the agreement.

* Part Seven (Final Provisions) *

Link to Part 7

Article FINPROV.1: (Territorial Scope) - states the territories to which the TCA will apply and also some territories where the TCA will not apply. It will not apply to Gibraltar.

Article FINPROV.2:  (Relationship with other agreements) - The TCA and any supplementing agreement apply without prejudice to any earlier bilateral agreement between the UK and Euratom. The parties reaffirm their obligations to implement any such Agreement.

Article FINPROV.3: (Review) - Provides for 5 yearly reviews of the implementation of the Agreement and any supplementary agreements. The first review to be 5 years after entry into force of the agreement. It remains to be seen whether this provision will result in the Brexit question being raised every 5 years or whether the review will be confined to more detailed matters of implementation.

Article FINPROV.6: (Classified information and sensitive non-classified information. This article is not considered further here.

Article FINPROV.7: (Integral parts of this Agreement) - provides that the Protocols, Annexes, Appendices and Footnotes form an integral part of the agreement. A detailed list is included.

Article FINPROV.8: (Termination) - enables either party to terminate the agreement by written notification through diplomatic channels. The agreement would cease to be in force 12 months following the date of notification. This provision and FINPROV.3 (Review) may be seen by some politicians as offering frequent opportunities to seek escape from the deal.  The result is that the agreement has a degree of instability.

Unlike the (in)famous Article 50 of the Treaty on European Union (TEU), there is no provision for what may happen after termination. That would presumably be a matter for a further agreement if the parties desired it or if, as is likely, it was essential in practice.

Article FINPROV.9: (Texts) - provides for the Agreement to be available in specified languages.

Article FINPROV.10: (Future accessions to the Union) - this deals with the situation if another State is to accede to the Union. The UK would be consulted.

Article FINPROV.10A: (Interim provision for transmission of personal data to the UK.

Article FINPROV.11: (Entry into force and provisional application) - The agreement comes into force as provided for by this article. The article also provides for provisional application of the agreement from 1 January 2021. Provisional application will be until the earliest of (a) 28 February 2021 (or another date as decided by the Partnership Council) - (b) the date when all processes for ratification have been completed.

UK Parliament - Committee on the Future Relationship with the EU - The UK-EU furure relatonship: the Trade and Cooperation Agreement (pdf)

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