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The Lawyers Advise: UK-EU Trade and Cooperation Agreement – Unfinished Business?

TCA Principles Work for the UK, say Star Chamber ‘Legal Eagles’

These should now be applied to Northern Ireland and other trade to restore stability, honour the Good Friday Agreement and respect UK freedoms.

Publication: 12 noon, Thursday 20th May 2021
PDF: The Lawyers Advise: UK-EU Trade and Cooperation Agreement – Unfinished Business?

For many people December’s UK-EU trade deal was the final act in a protracted drama about the future basis for UK-EU trade. In parliament and the country, many looked to the group of lawyers who advised the European Research Group of MPs for their opinion on whether the fine print respected the referendum vote for sovereignty.

The Lawyers Advise: UK-EU Trade and Cooperation Agreement – Unfinished Business? is a version of the advice specially prepared for publication by four of these lawyers, Martin Howe QC, Barnabas Reynolds, David Collins and James Webber, with an analysis of the political and constitutional difficulties encountered between 2016-2020, by Sheila Lawlor, Politeia’s Research Director.

The lawyers confirm that the terms on which trade will be conducted and disputes resolved in the UK-EU Trade and Cooperation Agreement 2020 pass the test of sovereignty. In particular:

  • Legal Framework – Each party’s goods and agriproducts economy will be under its own laws, and disputes resolved by independent arbitration
  • Trade – The arrangements for tariff free, quota free trade in goods and agriproducts are consistent with international trade practice
  • Level Playing Field Laws (LPF laws) – The adjustment provisions for when the parties’ rules diverge contain a complex formula which puts the onus of proof (independently assessed) on the party complaining. The new, liberal, subsidy control mechanism is entirely different from the EU’s state aid model.

But there are serious matters of unfinished business:

  • Northern Ireland – the legitimate expectation in the UK-EU Political Declaration 2020 was that the transitional arrangements for Northern Ireland trade would be superseded by the TCA. That expectation has not been met.  Northern Ireland rules for goods and agriproducts are not governed by the TCA, but by the 2019 Withdrawal Agreement and its NI Protocol, which applies EU law in NI and creates a border in the Irish Sea.
  • Fisheries – there is a lengthy adjustment period, until mid-2026, during which preferential EU access tapers down and the UK achieves full sovereignty over her waters.
  • Financial services – the TCA does not cover these (nor other services). There is a negotiated Memorandum of Understanding on the topic which is yet to be signed. Also, the EU is still to recognise UK regulatory standards as equivalent, in the manner it does for countries all over the world, allowing for mutual financial access across multiple areas.

What can now be done now, as a matter of urgency? The authors advise that it is open to the UK to withdraw from or supersede the Protocol and that there are compelling legal mechanisms to protect the people of Northern Ireland from the disruption and disenfranchisement wrought by the Protocol. Separately, the UK should prepare to take on full sovereignty over its fishing waters. And it should proceed urgently to re-regulate in its own interests for the financial sector, while meeting international standards (which it plays a more significant role than the EU in setting) and awaiting any sensible offers from the EU on new arrangements.

They add: –

Having left the EU, the UK now needs to behave as a sovereign, crafting its future in the interests of all of its people and seizing the opportunities that lie ahead.

ENDS

Notes to Editors

The Lawyers Advise: UK-EU Trade and Cooperation Agreement – Unfinished Business? by Martin Howe, Barnabas Reynolds, David Collins, James Webber and Sheila Lawlor will be published on Thursday 20th May 2021 at 12 noon.

  1. Established in 1995, Politeia is an independent, non-partisan think-tank providing a forum to discuss economic, constitutional and social policy with a particular focus on the role of the state in people’s lives.
  2. The Lawyers Advise: UK-EU Trade and Cooperation Agreement – Unfinished Business? by Martin Howe, Barnabas Reynolds, David Collins and James Webber and Sheila Lawlor will be published on Thursday 20th May 2021. An online launch event will be held on Thursday 20th May at 12.30pm-1.30pm. Journalists are welcome to join, to register to attend click here.
  • Martin Howe QC is a barrister in the fields of intellectual property and EU/post-EU law at 8 New Square, and chairman of Lawyers for Britain. His Politeia publications include The Cost of Transition: Few Gains, Much Pain? (2017), How to leave the EU: Legal and Trade Priorities for the New Britain (2016) and, with Thomas Grant and Richard Aikens, Avoiding the Trap – How to Move on from the Withdrawal Agreement (2019).
  • Barnabas Reynolds is an international financial services and regulatory lawyer who leads the global financial institutions practice of Shearman & Sterling LLP, specialising in UK and EU law and financial regulation. His Politeia publications include Blueprint for Brexit (2016), A Template for Enhanced Equivalence (2017), The Art of the No Deal (2017) and Restoring UK Law: Freeing the UK’s Global Financial Market (2020).
  • David Collins is Professor of International Economic Law at City, University of London. He previously practised commercial litigation in Toronto and was a prosecutor for the Attorney General in Ontario, Canada. His publications include Foundations of International Economic Law (2019), The Public International Law of Trade in Legal Services (Cambridge, 2018), and for Politeia, How to Level the EU’s Playing Field – Trade Remedies for a Trade Deal (2020) and Negotiating Brexit: The Legal Basis for EU & Global Trade (2018).
  • James Webber is a Partner at Shearman & Sterling LLP in the firm’s global anti-trust practice. His work focuses on EU competition and administrative law, representing companies and governments before the European Commission and European courts His Politeia publications include All Change? UK State Aid after Brexit: What Law? What Courts? (2020) and The Withdrawal Agreement, State Aid and UK Industry (2019).
  • Sheila Lawlor is Research Director of Politeia and was its Director until 2020. A historian by background, her working life began in Cambridge as a 20th century British political and constitutional historian. Her academic publications include Churchill and the Politics of War Her recent Politeia publications include Now or Never: Countering the Coup Against Britain’s Democracy (2019) and Ruling the Ruler: Parliament, the People and Britain’s Political Identity (2016).

Martin Howe QC

Martin Howe QC is a barrister in the fields of intellectual property and EU law at 8 New Square. The Chairman of Lawyers for Britain, his Politeia publications include Avoiding the Trap – How to Move on from the Withdrawal Agreement (2019) and How to leave the EU: Legal and Trade Priorities for the New Britain (2016).

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