This series of posts takes a closer look at the Agreement that was arrived at between the UK and the EU and signed on 24th December 2020. Editor's Note: The use of the expression, "TCA" in this series of posts refers to the "Trade and Cooperation Agreement" signed between the UK and the EU on December 24th 2020. This series of articles was first written in early 2021, so please bear in mind that some of the content may appear somewhat dated.
Philip Gegan
One moment before we examine the “Trade and Cooperation Agreement”. Note carefully the title. The ordinary Brexit supporter was expecting a withdrawal agreement. Those of us who followed the course of the long-drawn-out “negotiations” were expecting a trade agreement. But a Trade and Cooperation Agreement? Let’s see what is meant by “cooperation”.
Was such an Agreement desirable?
In 2016, when over 17 million people in the UK voted to leave the EU in the teeth of Operation Fear, these people just wanted their country to get out. Whether there should be an agreement or not was of little interest to them. Given the extensive artificial ties binding the UK to the EU, it is not surprising some kind of agreement should be deemed desirable by both sides.
An appropriate agreement would have been one that provided for an orderly and timely transfer of powers and sovereignty back to the UK from the EU. The UK would then treat the EU and its member states in a similar way to, for example, the United States or the Russian Federation. The EU would treat the UK in the same way as it does, for example, Japan or Australia.
An appropriate name would have been “Withdrawal Agreement”. But at an early stage it was termed a “Trade Agreement”, or even a “Free Trade Agreement”. Bi-lateral free trade agreements are very fashionable these days. Britain has recently signed such agreements with Japan, Canada, Cameroon, Jordan and Mexico, among others, and is on course to sign more with the United States (subject to the irregularities of the Biden regime), Australia and New Zealand.
Trade vs Cooperation
Remainers, as we know, were anxious to put as many obstacles and as much delay as possible in the way of the Brexit process. They latched onto the concept of a trade agreement being an essential component of Brexit in the hope that negotiations would flounder and the British people would eventually abandon the idea of leaving the EU.
So a trade agreement was acceptable in principle to most Leavers and most Remainers. But it took over four and a half years (a period longer than the duration of the First World War) before agreement was reached, and when it was published, it had become the “Trade and Cooperation Agreement”.
Trade between sovereign nations is, by its nature, mutually beneficial. But the concept of cooperation takes it a step further. Trade is something that takes place one unit at a time. Someone has something to sell. Someone else wants that item. A sale is agreed, and the goods or services and the money are exchanged. That is the end of it until next time.
But cooperation implies commitment. It assumes that the parties are going to have an on-going relationship, with ongoing rights and obligations. It impinges on national sovereignty and is something that was rejected in the referendum.
Moreover, cooperation is something that should come spontaneously, not as a result of contractual obligations.
As we shall see, this little, seemingly innocent, amendment to the name reflects a change in the nature of the document signed on 24th December 2020.
The Agreement Labyrinth
The Brexit process has given the EU a golden opportunity to spawn a whole new extension to its already bloated bureaucracy. And it gave the bloc a chance to produce a massive, intricate and tortuous document designed to make any meaningful interpretation impossible and to keep the UK tied to the EU into perpetuity.
The “Trade and Cooperation Agreement” (TCA) is 1,246 pages long and contains a Preamble and seven Parts. Part One contains three Titles; Part Two contains six Headings, the first four of which contain 18 Titles. The fifth contains four Chapters and the sixth ten Articles. Part Three contains 13 Titles, and Part 4 contains two. Part 5 contains two Articles and five Chapters.
Part Six contains three Titles, and Part Seven contains 10 Articles with rather strange names, in which sometimes the numbering is rather questionable, so that Article ‘FINPROV.3: Review’ is followed by ‘Article FINPROV.7: Integral parts of this Agreement’. One can well imagine the draftsmen drifting off to sleep whilst assembling this monumental work of verbiage and doublespeak, and losing track of the numbering.
There are 49 Annexes with names like ‘ANNEX ENER-3: NON-APPLICATION OF THIRD-PARTY ACCESS AND OWNERSHIP UNBUNDLING TO INFRASTRUCTURE’. All these Annexes have Chapters and many of those Chapters have Articles.
There are three Protocols (not including the Northern Irish Protocol, which is in a separate document). The first Protocol has five Titles. Title I has Articles 1 to 6, Title II has four Chapters, containing Articles 7 to 19, Title III has four Chapters containing Articles 20 to 38 (though Article 24 is, for some reason, not within any of those Chapters).
Title IV contains Article 39 and Title V Articles 40 and 41. Naturally, this Protocol has its own Annex, containing three Sections, the third of which contains six Articles plus a number of model forms, such as “Uniform notification form providing information about notified document(s) (to be transmitted to the addressee of the notification)” Quite so.
A Bureaucratic nightmare
It establishes, in Part One, Title III, an “institutional framework”, consisting, at the top, of a “Partnership Council”, whose job is to “oversee the attainment of the objectives of this Agreement and any supplementing agreement”. Rather strange, since the whole point of Brexit was for the UK to break free of EU bureaucracy and regain its sovereignty, not get entangled in new commitments.
Of course, I get it. We can have our independence, but naturally the EU has to make sure that our enjoyment of it doesn’t upset their Customs Union, Single Market, level playing field, and “Court of Justice”. And to ensure that, of course, we need an expansion of the existing EU bureaucracy.
Image: Harald Groven – Creative Commons Licence
At the top of the pecking order is the Partnership Council, supervising the operation of the TCA “at a political level”. The Partnership Council itself is run by the two-member Secretariat – one member from each side, naturally.
Under the Partnership Council are no less than nineteen committees, all of them “specialised” except for the “Trade Partnership Committee”, which seems to be regarded as the most important, being listed above all the others. Why do we need a “Trade Partnership Committee”? We’re supposed to be trading freely with each other, not going into partnership.
Below these committees are four “working groups”, each with the power to “set their own rules of procedure, meeting schedule and agenda by mutual consent”. These working groups, like the committees, consist of an equal number of members from the EU and from the UK, with co-chairmen, one from each side. They are the dogsbodies of the committees, who in turn are the gophers of the Partnership Council.
Then there is the “Parliamentary Partnership Assembly”, consisting of members from the European Parliament and from our own dear Parliament. It’s a forum to “exchange views on the partnership…..request relevant information regarding the implementation of this Agreement from the Partnership Council…….be informed of the decisions and recommendations of the Partnership Council, and make recommendations to the Partnership Council”. Pretty useless, then.
Next up are the “domestic advisory groups”. These comprise “a representation of independent civil society organisations including non-governmental organisations, business and employers’ organisations, as well as trade unions, active in economic, sustainable development, social, human rights, environmental and other matters.” Each party to the TCA has to consult with these groups at their annual get-together.
Each party also has to publish a list of the organisations comprising its own “domestic advisory groups”, with contact points, and also to “promote interaction between their respective domestic advisory groups, including by exchanging where possible the contact details of members of their domestic advisory groups“. So the pointless and corruption-ridden “twinning” schemes between towns in the UK and towns in the EU is set to continue.
We’re not done yet. The TCA sets up a new “Civil Society Forum” “to conduct a dialogue on the implementation of Part Two of this Agreement” (“Trade, Transport, Fisheries and Other Arrangements”). Isn’t that nice?
Oh, and just in case anything goes wrong (perish the thought!) we have the charmingly named COMPROV.13, which provides that, “For greater certainty, an interpretation of this Agreement or any supplementing agreement given by the courts of either party shall not be binding on the courts of the other party”. So each party can interpret the TCA in whatever way they like, regardless of how the other party does so. What could possibly go wrong?
Remember that all of this is in stark contrast to what happened ninety years ago, when Britain and the White Dominions got together, in the face of the Great Depression, and formed a trading system that was known as “Imperial Preferences”. It was this that saved Britain and its Empire from the worst excesses of the Great Depression that ruined whole countries elsewhere.
Did Britain and its White Dominion partners need to engage in a wrangle-fest that went on for four and a half years, and to form a Partnership Council (with Secretariat), numerous committees, a Parliamentary Partnership Assembly, “domestic advisory groups”, and so on? Did they need a series of agreements, the main one of which alone totals over 1,200 pages?
Of course not. It’s amazing what progress can be achieved when both sides are bound by a common purpose, common ancestry, the common law, and, above all else, common sense. And, on top of that, actually trust each other.
How can anyone trust the European Commission of failed and corrupt politicians?
In Part 3, we’ll be looking at the actual “trading” sections of the TCA.
Click here for Part 4 in this series, “Fisheries”.
Click here for Part 5 in this series, “What we face from the EU post-Brexit”.
