It will take several posts, of which this is the first, to go through this Agreement, even superficially. It is officially a draft, presumably because it still has to be approved by the EU Parliament (the House of Commons has approved). The general view, as we write, is that the Agreement is satisfactory. We will point out where we think otherwise.
This is not a lawyerly dissection of the Agreement but we hope it gives a fair impression of its content.
Having studied the Agreement further we have decided to limit our commentary to three (or possibly four) posts. In the main, public debate has been concerned with the trade in goods rather than services, other than financial, and the Single Market has not developed far for services either. Therefore our second post will focus on goods only while this post deals with the Preamble and Part One: Common and Institutional Provisions. The document takes up 1,246 pages of which the main clauses take about 400 pages and the rest are detailed annexes.
Although it is also a legal document, supposedly binding both parties to particular requirements, it is also a political document, as is witnessed by the opening paragraph:
REAFFIRMING their commitment to democratic principles, to the rule of law…
We have argued consistently and often that the EU is not democratic , though it professes its commitment to “democratic principles”–which is not the same thing. The UK’s commitment to democracy at least specifies that its government is accountable to voters, who can dismiss the government.
We have also pointed out that the EU does not consistently adhere to its own rules of law .
But we need not take these “principles” too seriously, nor the rest of the Preamble, as these are not presented as legal requirements. The scene is set more simply by:
SEEKING to establish clear and mutually advantageous rules governing trade and investment between the Parties,
We hope that the rest of the Agreement is both “clear and mutually advantageous” but we expect to find some examples, in 1,246 pages, that are not so.
“RECOGNISING the Parties’ respective autonomy…”, is clearer and—if they mean it—sets up a firm commitment (we wonder what ‘recognising’ means to lawyers).
The next paragraph is less clear but perhaps can be dismissed as political propaganda: “BELIEVING in the benefits of a predictable commercial environment…in a manner conducive to sustainable development…”. Commercial environments are rarely predictable and the EU has not so far kept its treaty promise to deliver much in the way of “economic, social and environmental” outcomes. (For example, a clearly bankrupt Italy (and others); high unemployment (especially for youth); Germany’s use of lignite.)
One contentious area is smoothed away by their recognition that there is a need for the “partnership to be underpinned by a level playing field for open and fair competition and sustainable development”.
Much else that the parties desire, consider, recognise, note, acknowledge and affirm we expect to find spelled out in more detail in the main text.
One final thing worth noting from the Preamble is “that the Parties may supplement this Agreement with other agreements forming an integral part of their overall bilateral relations as governed by this Agreement…”, which leaves room for plenty of further argument.
We then move into the main text where they open with more sugary propaganda in Article COMPROV.1: Purpose:
This 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.
(We assume that COMPROV refers to the title of this Part 1: Common and Institutional Provisions.)
The next article tells us a little more about “Supplementing agreements” and Article COMPROV.3 tell us that the parties shall assist each other “in full mutual respect and good faith”, which we are told carries more weight in legal terms than in everyday use.
For reasons that are not explained the document then jumps to Article COMPROV.13, which states how this Agreement and any supplementing agreement are to be interpreted, including in the light of the Vienna Convention on the Law of Treaties, and that the courts and domestic law of each party will not bind the other party. This is reinforced, after the next jump, by Article COMPROV.16, which appears to completely remove the superposition of EU law—and the need to bend the knee to the CJEU—over domestic UK courts and law:
2. 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 this Agreement or any supplementing agreement.
Then we move to TITLE III: INSTITUTIONAL FRAMEWORK, Article INST.1, which introduces the Partnership Council, the purpose of which is to “oversee the attainment of the objectives of this Agreement and any supplementing agreement.”
The rest of this section (pages 11 to 17) details the powers and structure of the Council, and provokes few comments from us. It may, under some circumstances, amend the Agreement or any supplemental agreement, which may raise questions about the substance of the Agreement if it can easily be amended out of sight of its Parliaments.
Many specialised committees are set up by Article INST.2, some of which may turn out to be quite powerful themselves, for example: “explore the most appropriate way to prevent or solve any difficulty that may arise in relation to the interpretation and application of this Agreement or any supplementing agreement…” and “monitor and review the implementation and ensure the proper functioning of this Agreement…”.
(References to “this Agreement” are invariably followed by “or any supplementing agreement”.)
Article INST.3 sets up specialised Working Groups, under the supervision of Committees. Article INST.4: Decisions and Recommendations has this:
“1. The decisions adopted by the Partnership Council, or, as the case may be, by a Committee, shall be binding on the Parties and on all the bodies set up under this Agreement…” However, “Recommendations shall have no binding force.”
Under Article INST.5: Parliamentary cooperation: “1. The European Parliament and the Parliament of the United Kingdom may establish a Parliamentary Partnership Assembly” which “shall be informed of the decisions and recommendations of the Partnership Council; and…may make recommendations to the Partnership Council.” So, in practice, both parliaments will be sidelined.
Under Articles INST.6, .7 and .8 domestic advisory groups and a Civil Society Forum will have no powers and little to do but “promote public awareness” and “conduct a dialogue”. So much for participative democracy.