Opinion: why Brexit will become a negotiation without end
FT contributing editor David Allen Green takes us on guided tour of the post-Brexit EU-UK trade agreement
Written and narrated by David Allen Green, produced by Tom Hannen
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An overview of the United Kingdom's post-Brexit relationship with the European Union. Not only has the United Kingdom departed from the European Union, the Brexit transition period has now come to an end. The United Kingdom formally left the European Union on the 31st of January, 2020. The transition period, however, meant that almost all European Union law and policy, such as the customs union and the single market, continued to apply until the end of last year. Now, from the 1st of January, 2021, the United Kingdom is outside not only of the European Union but also of the customs union, the single market, and almost all other areas of European Union law and policy.
But what has actually changed? Well, before the United Kingdom departed, it was subject to two extensive treaties - the treaty on the functioning of the European Union, the former treaty of Rome, and the treaty on European Union, the former Maastricht treaty. It also had in place domestic implementing legislation which would allow ministers to make regulations and other laws giving effect to European Union law. And now, after departure, the United Kingdom is subject to two new extensive treaties - the withdrawal agreement and the new trade and co-operation agreement. And there is also implementing domestic legislation which again will allow ministers to give effect to these international obligations in domestic law.
A Martian looking down and seeing on one desk the two treaties on European Union and the European Communities Act and seeing on another desk the two new agreements and the implementing legislation as piles of paper would assume nothing had changed. And to a certain extent the Martian would be correct. A great deal of the new legal paperwork is an exercise in creating provisions just to replicate the effects of provisions which are no longer in force. A legislative exercise in running forward only to stand still.
Yet, there are substantial changes. The first is in terms of coverage. Certain crucial policy areas, competencies of the previous treaties are just no longer there - internal market, common commercial policy, common agriculture and fisheries policy, the customs union, foreign and security policy.
The second is in terms of mechanisms. For example, the relationship agreement has no formal role for the European Court of Justice, but instead has an elaborate arbitration process. That said, the emphasis is on continuity. Any material impacts on trade or investment, for example, that arise as a result of significant divergences may be subjected to appropriate rebalancing measures.
There will be many, many committees, working groups, assemblies, in effect, talking shops. The new partnership council, the executive body which will oversee the relationship agreement, will meet part of the time in Brussels and part of the time in London, and will be supported by a secretariat drawn from both the European Union and the United Kingdom. United Kingdom ministers can agree decisions with their Brussels counterparts that will bind the United Kingdom in international law. And in the United Kingdom implementing legislation will allow ministers to modify domestic law or issue regulations to give effect to the decisions made with the European Union with little or no parliamentary input. This new relationship between the United Kingdom and the European Union is expressly intended to be a broad framework, and that it will be in place for at least five years before a review.
There is scope for smaller changes. There can be new committees and new supplementary agreements. But unless something unexpected happens, any further big shifts in the United Kingdom's relationship with the European Union, either closer or further apart, will have to wait five years and every five years thereafter. This is because the European Union operates itself on a five-year cycle.
The United Kingdom may now have departed the European Union, the single market, and the customs union. There are significant changes, but the departure is not a once-and-for-all event. And so the full extent of the changes brought about by Brexit between the European Union and the United Kingdom will take a considerable time to fully become apparent. Brexit will now become a negotiation without end.