Catherine Barnard / Sep 2023
Photo: Wikimedia Commons
After a divorce, rebuilding a civilised relationship with the former spouse is always difficult: too many wounds left raw, too many things said that can’t be unsaid. Some people never manage it; others have to make the effort because of the children (or even the pets). And so it is with the UK and the EU. They continue to live next door; they are the closest of trading partners but bitterness remains, especially for the civil servants who have spent the last seven years trying to negotiate the new UK/EU relationship.
Things are better than they were. Boris Johnson’s departure as prime minister has helped that. Lord Frost, the UK’s chief negotiator, no longer holds his former sway. Rishi Sunak, the current Prime Minister, is seen as a grown-up. Successfully negotiating the Windsor Framework in February 2023 to help softening the GB/NO border was a personal triumph (though its implementation is proving to be more of a challenge). Drawing the teeth of the excesses of the Retained EU (Revocation and Reform) Bill (now Act) also spoke to his ability as a Prime Minister. There were signs of hope for a more mature, less fractious relationship. There has even been a memorandum of understanding on financial services cooperation.
But the early shoots of spring have withered in the scorching summer heat. Associate membership for the UK of Horizon Europe was viewed by many, especially in the university world, as the most obvious benefit of the warmer relationship. The agreement, we are told, is sitting on the Prime Minister’s desk. And yet, he is prevaricating. It is no longer seen as value for money by the Treasury. Yet leading British scientists are begging the Prime Minister to sign it. There was even talk by European Council President Charles Michel also talked of a new UK/EU bilateral dialogue on global issues; this has been rebuffed by the UK.
The EU side too has shown that it is not wiling to play ball over the terms of the Trade and Cooperation Agreement (TCA); it will not countenance a new agreement on the origin content requirements for batteries for electronic vehicles and for electric/hybrid cars themselves. And for the British public the reality of Brexit is being felt. High inflation, staff shortages, the loss of dreams of retiring to the sun. While covid masked a lot of this reality, the covid-blame effect is dwindling. The Brexiter promises of a have-it-all Brexit look increasingly empty.
So can anything be done? There is a growing interest in the potential offered by the TCA review provisions. Specifically, Article 776 TCA requires the UK and the EU ‘jointly’ to ‘review the implementation of this Agreement and …. any matters related thereto five years after the entry into force of this Agreement’. Can Article 776 be used to address some of the fundamental weaknesses of the TCA, at least as viewed from the UK side: issues over more favourable value added tax terms for UK exporters, over mobility for young people, over the volume of paperwork for those exporting?
The EU side has poured cold water over such hopes. It draws attention to the fact that the text talks about the review being about only the implementation of the TCA, not its content; the reference to ‘any matters related thereto’ might give some wriggle room but is not the basis for a rewriting of the Treaty (which would in any case need a mandate from the Member States); and the review will not take place until 2026 (five years after the TCA came into force in 2021) and no earlier.
Of course there is a lot of political water between now and then, not least elections in the UK and in the EU. The landscape may look somewhat different in 2025. Further, Article 776 is not the only way to amend the TCA. The TCA was always structured so that ‘supplementary agreements’ could be added but these would take time to negotiate. The Partnership Council, the political body with oversight of the TCA, has powers to make some changes to the text of the TCA. But all of this requires political will, a will that is currently sorely absent on both sides.