The last formal update on the draft Withdrawal Agreement was in March, when EU Chief Negotiator for Brexit Michel Barnier and then-Secretary of State David Davis made much of the fact that important areas – such as citizens’ rights and financial settlement – had been agreed.
The protocol on Ireland had not been agreed, which everyone noted. But there were many issues outstanding. The passages on judicial co-operation were still white – meaning not yet agreed. Gibraltar, the UK’s sovereign bases in Cyprus, ‘geographic indications (GIs)’ (the rules that mean Parma ham can’t be made in Plymouth or feta in Cheddar) and ‘governance’ (how the implementation would be overseen and disputes resolved) all still remained.
[So if the Prime Minister’s latest statement that 95% of the Withdrawal Agreement is done is true, then she must have reached agreement on some particularly thorny issues – and not just the 5% that represents the Irish border. That would be quite an achievement by negotiators – but we need to know exactly what has been agreed or conceded in the process.]
There was always a risk that the Withdrawal Agreement could come apart on one of these other issues – that the Italians would go to the wall on GIs, or that Spain would use its veto to make unacceptable demands on the ever touchy issue of Gibraltar.
So it is welcome news that the UK and Spanish Governments seem to have reached an agreement that issues on Gibraltar can be dealt with later on – a sensibly pragmatic approach – and a way forward has been found on sovereign bases.
But the agreement on GIs has wider implications. The US in particular has a deep loathing of GIs as a form of European protectionism. Has the UK been forced to concede something that might hamper future trade options?
Governance of the agreement looked the most difficult issue to resolve. In March, the EU’s proposition was still that the European Court of Justice (ECJ) would be the final arbiter of disputes between the EU and the UK and any ECJ decision would be binding. As we have argued before, the ECJ could not be expected to be a reasonable arbiter of disputes between the UK and the EU27. We need to see whether the UK has conceded – or forced the EU to move.
Had a deal been done on Ireland at the October Council, the whole text of the final Withdrawal Agreement might have been unveiled by now. But a deal wasn’t done.
Yesterday, Parliament failed to press the Prime Minister on what the UK Government has agreed, because it was so preoccupied with the border in Ireland. Meanwhile, the EU is falling short of its promises on transparency by similarly not revealing what has been agreed.
The past pattern is that agreements have involved much more significant concessions by the UK than by the EU. If far more of the agreement has gone green, it’s time for both sides to publish the updated text.