Richard North, 15/11/2020  

Dipping into a piece on how to recognise a "bad EU deal", it struck me that the (anonymous) author has – like the people he writes for – completely missed the point.

Despite Mrs May having intoned that "no deal in better than a bad deal", at this stage of the game, if the Johnson administration eschews the no-deal option, the only thing on offer is a bad deal. The possibility of the UK securing a "good" deal evaporated with May's Lancaster House speech, when she ruled out continued participation in the Single Market, and thereby turned her face away from the Efta/EEA route.

By the time Johnson walked into No 10 as prime minister, it was probably too late to reverse course and, in any event, that wasn't going to happen. The new guy had even less of an idea of what was attainable than his predecessor.

That much is self-evident from his administration's actions, with the publication in February 2020 of its White Paper on "The Future Relationship with the EU", defining "The UK’s Approach to Negotiations".

Published two months after the general election, and following the UK's formal departure from the EU, with the first round of the negotiations due to start at the beginning of March, this was Johnson's first (and only) opportunity to stamp his mark on the nature of the deal he wanted with the EU. and, in so doing, he (and his team) demonstrated that he was about to tilt at windmills.

The clue to this was not difficult to find, as it had been stated and constantly repeated by Johnson himself, not least in his speech on 3 February in Greenwich, when he spoke of a choice "between full access to the EU market, along with accepting its rules and courts on the Norway model, or a free trade agreement, which opens up markets and avoids the full panoply of EU regulation, like the Canada deal".

But when in this speech, he made his preference clear, opting for "a comprehensive free trade agreement, similar to Canada's", he should have heeded Mrs May's Florence speech in September 2017 when she observed that a Canadian-style free trade agreement would "represent such a restriction on our mutual market access" that it would benefit neither the UK nor the EU.

And that was and is the reality. A deal that suited Canada (and barely so), more than 3,000 miles away across the Atlantic, would be nothing like a sufficient replacement for the UK's Single Market access, to which it had become accustomed.

But what we were then to see, in a process which has barely – if at all – been recognised, was Johnson and his team playing mind games with his own domestic audience, and with the EU.

Published in May, we saw the UK negotiating team's efforts in trying to speed up proceedings, putting on the table draft "legal texts" for a UK-EU Comprehensive Free Trade Agreement (CFTA), together with annexes and draft fisheries, air transport, energy and other agreements.

When they were made public on 19 May, the documents were accompanied by an explanatory letter to Barnier from David Frost. The legal texts, he claimed, drew "on precedent where relevant precedent exists", arguing that the draft FTA "approximates very closely those the EU has agreed with Canada or Japan".

Crucially, though, the White Paper had stated that, "whatever happens, the Government will not negotiate any arrangement in which the UK does not have control of its own laws and political life". That means, it said, "that we will not agree to any obligations for our laws to be aligned with the EU's, or for the EU's institutions, including the Court of Justice, to have any jurisdiction in the UK".

And yet, when looking at the totality of the documents offered, and comparing them with the provisions applicable to Canada, Frost's claim simply fell apart. In important respects, such as competition policy, the UK offered substantially less than was conceded by Canada.

On the other hand, the UK demanded much more than had been given to Canada, such as mutual recognition of standards in important commercial sectors, such as aviation, and participation in EU Agencies at a level which was afforded to no other third country outside the Efta/EEA grouping.

But while the British media have largely given Johnson a free pass on this, the flaws in the UK stance are clearly evident so that, while the prime minister continues to protest that all we ever wanted was "nothing more complicated than a Canada-style relationship", he speaks with forked tongue. He wants a lot more, and is prepared to give far less in return.

Clearly, Barnier – representing the EU – was less than impressed. In a speech for the Eurofi General Assembly, delivered on 30 June 2020, just over a month after Frost had published his drafts, he was forthright about the UK's "games". Referring to what was on offer in other free trade agreements, he noted that the UK "is looking to go much further". "I will be blunt", he then said, "its proposals are unacceptable".

Specifically in terms of financial services, he argued that the proposals would "severely limit the EU’s regulatory and decision-taking autonomy", not least because the UK was "seeking to create a legally enforceable regulatory cooperation framework on financial services", trying to turn the EU's unilateral decision-making processes into co-managed ones.

Secondly, the UK was trying to keep as many Single Market benefits as it could, leading Barnier wearily to state that the UK chose to no longer be a Member State. And in leaving the Single Market, it ceased to apply "our common ecosystem of rules, supervision and enforcement mechanisms", in particular refusing to recognise any role for the ECJ.

As he had said so many times, repeated by any number of high EU officials, Barnier repeated the obvious: "The UK cannot keep the benefits of the Single Market without the obligations". Yet that was precisely what Johnson wanted to do.

In another speech, this one in July, after yet another round of talks, he asserted that the EU side "had listened carefully to UK Prime Minister Boris Johnson's statements in recent weeks".

In particular, Barnier said, they noted "his request to reach a political agreement quickly, and his red lines: no role for the European Court of Justice in the UK; no obligation for the UK to continue to be bound by EU law; and an agreement on fisheries that shows Brexit makes a real difference".

On the other hand, he said, the EU's position remains, based on the Political Declaration. There would be no economic partnership without: robust guarantees for a level playing field – including on state aid – to ensure open and fair competition among our businesses; a balanced, sustainable and long-term solution for our European fishermen and women; and an overarching institutional framework and effective dispute settlement mechanisms.

This was no more and no less than the EU has always stated and, to this day, this is what the EU continues to ask for. And yet, the sides continue to talk but, at this eleventh hour, the amount the EU will concede, without substantial movement from the UK is minimal.

Such an approach might be considered, and often is by "Brexiteers" as unfair and inflexible, even amounting to "punishment beating" – as Johnson once put it, but it was always going to be the case that the EU was going to protect its own interests. Like the scorpion and the frog, that's what it does.

If the UK wants to go its own separate way – as the EU readily acknowledges that it is entitled to do – there is a price to pay. We may not like it but, as even Johnson has found to his cost over the last few days – to say nothing of Dominic Cummings – reality sucks.

Also published on Turbulent Times.

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