The seventh full round of negotiations concluded on Friday 21 August, with limited progress reported by both sides. Further briefing over the weekend highlighted an increase chance of no deal but talks continue this week, with the next full round of negotiations taking place in September:
- Meetings of the Chief Negotiators / their teams / specialised sessions (as necessary): w/c 24 and w/c 31 August (London and Brussels).
- Round 8: 7 – 11 September (London).
- Meetings of the Chief Negotiators / their teams / specialised sessions (as necessary): w/c 14 and w/c 21 September (Brussels and London).
- Round 9: 28 September – 2 October (Brussels).
The document below includes:
- Political analysis of ongoing negotiations, including the debate around a potential extension to the transition period;
- A summary of key outstanding issues and priority sectors, including an indicative summary of progress to date; and
- A summary of Brexit-related legislation currently progressing through
Nobody expected significant progress to be made during Round Seven of negotiations. However, the tone with which UK and EU negotiators David Frost and Michel Barnier summarised the latest round was more negative than expected. Frost argued that a deal would “not be easy to achieve” and Barnier said it felt like talks were “going backwards”. Reports over the weekend echoed this pessimism, particularly from the EU.
State aid rules, fisheries and governance remain key points of contention, with the EU frustrated by a lack of meaningful concessions, and the UK frustrated by an inability to progress other areas of negotiations, including the draft legal text of a free trade agreement (FTA) reportedly tabled by the UK earlier this week (see here). The EU reportedly rejected the draft FTA saying it advanced only the UK’s offensive interests. Some analysts are more optimistic than others, with The Times’ Bruno Waterfield describing the weekend’s theatrics as part of the “process”. He points out that a paper is due to be published on UK subsidies in the coming month which could help unlock talks, and that fisheries will only be resolved once member state leaders engage with negotiations. Tim Shipman memorably reports the new Whitehall joke that Brussels ‘wants to have our hake and eat it’. It is also worth recognising reported progress on technical issue such as energy cooperation.
Nevertheless, some fundamental issues will not be resolved at negotiator level, but will require high-level political input at a future ‘crunch’ summit.
Negotiators are therefore mapping out what a landing zone could look like (if there is one at all). The EU appears to believe that in the face of the pressures of Covid-19, Boris Johnson will eventually move towards its position on the level playing field in order to unlock a trade deal. However, the feeling amongst Conservative Brexiteers is increasingly that what little is on offer from the EU is not worth the price of commitments on the level playing field and fisheries access. Some are even publicly repudiating the Withdrawal Agreement. However, it’s also an article of faith for the EU that it will not allow access to its market to the UK without commitments on the level playing field. The chances of the two sides could simply fail to come to an accommodation – and an acrimonious blame game – remains real.
UK Negotiator David Frost maintains that a deal is possible and negotiations now continue into September. Progress is reliant on concessions and good will on the most difficult issues from both sides. While this is possible – even probable – as time pressures increase and member state governments turn their attention to the talks, the most recent round of negotiations shows that there is still some distance to go. There will almost certainly be some form of breakdown in the weeks ahead.
Cicero/AMO’s reasonable working assumption remains that the UK and EU agree a ‘stripped-back’ deal on essential issues by the end of the year, but talks on a more substantive future free trade agreement could continue beyond 2020.
See the respective official statements from the various negotiating rounds below:
|Round Two: 20-24 April 2020||· No.10 blog
· Statement from David Frost
· Written Ministerial Statement by Cabinet Office Minister Michael Gove
|· Statement from Michel Barnier|
|Round Three: 11-15 May 2020||· Statement from David Frost
· Written Ministerial Statement from Michael Gove
|· Statement from Michel Barnier|
|Round Four: 1-5 June 2020||· Statement from David Frost
· Written Ministerial Statement from Michael Gove
· Statement on the second meeting of the Joint Committee from Michael Gove
|· Statement from Michel Barnier|
|High level meeting: 15 June 2020 (Round Five)||· EU-UK joint statement
· Statement to Parliament from Michael Gove
|Negotiations: 29 June – 2 July 2020||· Statement from David Frost||· Statement from Michel Barnier
· Statement on financial services from Michel Barnier
|Round Six: 20 – 23 July 2020||· Statement from No.10||· Statement from Michel Barnier|
|Round Seven: 17 – 21 August 2020||· Statement from David Frost||· Statement from Michel Barnier|
The table below summarises the negotiations by comparing what both the UK and EU officially said on several core issues, and notes a ‘direction of travel’ from the previous round using the below key:
- Positive: Evidence of increased dialogue or suggestions of potential future
- No development: Differences remain between the two sides but the language is consistent and the positions have not drifted further
- Negative: The language used to describe differences in opinion has harshened or the two sides have drifted further apart between
Direction of travel
|Overview||Both the UK and EU broadly support the development of a comprehensive free trade agreement (FTA).
However, while the UK wants this to be supplemented with additional agreements on issues such as fisheries, aviation, energy and security, the EU favours a single broad agreement covering governance, the economic partnership, and
security co-operation –
|“Agreement is still possible, and it is still our goal, but it is clear that it will not be easy to achieve.”
“We are seeking a relationship which ensures we regain sovereign control of our own laws, borders, and waters, and centred upon a trading relationship based on an FTA like those the EU has concluded with a range of other international partners”.
|“Too often this week, it felt as if we were going backwards more than forwards. Today, at this stage, an agreement between the United Kingdom and the European Union seems unlikely.”
“Apart from the question of a Level Playing Field, there are still many other areas where progress is needed.”
|Negative; Despite signs of concessions in July, the language used to describe the prospect of a deal was far more pessimistic this month. Barnier reiterated that a deal was currently “unlikely” and that it felt like discussions were “going backwards”. Similarly, Frost said it would “not be easy” to achieve an agreement.|
|essentially an ‘association agreement’.
There are further disagreements on the nature of the agreement, with the EU looking to secure strict commitments to fair competition, reflecting the UK’s proximity and status as a former member. More detail on level playing field and governance concerns
can be found below.
|Progress||Both the UK and EU have been publicly pessimistic regarding the level of progress made during negotiations.||“We have had useful discussions this week but there has been little progress.”
|“Too often this week, it felt as if we were going backwards more than forwards.”
“I should add that, in some of the ten tables that convened this week, we were able to make progress on technical issues.”
|No development: Though progress was made across a number of technical issues, including energy cooperation and anti-money laundering, both sides reiterated that little progress had been made across key issues. The UK also expressed frustration this continued to hamper discussions across other areas.|
|Level Playing Field (LPF)||Significant differences remain on what LPF conditions should be included in any future agreement.||“The EU is still insisting not only that we must accept continuity with EU state aid.”
|“The need for a Level Playing Field is not going to go away. Even if the UK continues to insist on a low-quality agreement on goods and services only. It is a
non-negotiable pre-condition to
|No development: Frost remains clear that the EU’s demands around LPF are the major sticking point in negotiations. Further, the EU
has strongly criticised the UK
|The UK is looking to include minimal requirements on LPF provisions, previously rejecting the need for legal commitments and arguing that the UK has higher standards than various EU member states. It also argues that existing EU agreements with Canada and Japan do not include stringent LPF conditions.
The EU wants to ensure that future trade is ‘fair and competitive’, and has ongoing concerns over workers’ rights; state aid; taxation; and social and environmental protections. It favours dynamic alignment on certain issues – particularly state aid – and the continued supremacy of
|grant access to our market of 450 million citizens, given the United Kingdom’s geographic proximity and the intensity of our economic exchanges.”
|for failing to “engage” in such discussions. Reports suggested the UK had proposed a new solution towards the end of June and though the last two rounds have provided little update, LPF is still thought to be the most significant sticking point (see here).
Frost said that “considerable gaps” remained, and Barnier reiterated the need for “robust guarantees”. Reports in the FT suggest the PM’s Adviser Dominic Cummings had led calls for a “minimal, light-touch regime” for state aid.
|Governance||The UK originally sought separate governance arrangements for different agreements and sectors, whereas the EU wants a single governance
framework to manage future relationships and disputes.
|No comment in August negotiations.
“We have heard the EU’s concerns about a complex Switzerland-style set of agreements and we are ready to consider simpler
structures, provided satisfactory
|“Apart from the question of a Level Playing Field, there are still many other areas where progress is needed. For example: Governance, where we are still far from agreeing on the essential issue of dispute settlement.”||No development: Following the fifth round of negotiations, the UK conceded that it was ready to consider a “simpler structure”. However, Barnier highlighted that the two sides
remain “far from agreeing”
|terms can be found for dispute settlement and governance.”
|Michel Barnier, August 2020||on dispute settlement.|
|Fishing access||A politically charged issue, fisheries have been at the forefront of the Brexit debate since well before the referendum campaign.
The UK is looking for any agreement to reflect its status as an independent coastal state, with annual negotiations on quotas and access.
The EU is looking to uphold existing reciprocal access arrangements, including periodic total allowable catches and reflecting “continued responsible
fisheries’ in line with EU law.
|“The EU is still insisting not only that we must accept continuity with EU state aid and fisheries policy, but also that this must be agreed before any further substantive work can be done in any other area of the negotiation, including on legal texts.”
|“Apart from the question of a Level Playing Field, there are still many other areas where progress is needed. For example: Fisheries, where we have made no progress whatsoever on the issues that matter.”
|No development: Despite hints at progress on fisheries throughout May and June and suggestions of possible concessions from the EU, recent negotiations have highlighted the stark difference between the two sides. Alongside level playing field conditions, it remains a key sticking point.|
|Criminal cooperation||There is an ambition from both sides to agree a mechanism to allow for continued criminal justice and policing cooperation.
The UK is seeking a framework similar to that
|No comment in August negotiations.||“We had good discussions on police and judicial cooperation, even if divergences remain.”
“Apart from the question of a
Level Playing Field, there are still
|No development: The EU continues to take issue with “fundamental obstacles” to policy and judicial cooperation but recognises an overarching agreement with the UK. The UK has not
commented on such issues in
|currently in place that allows for the sharing of real time data, however it is clear that the European Court of Justice should not be able to constrain the autonomy of the UK’s legal system.
The EU maintains that the UK’s status in this area will be limited by becoming a non-Schengen third country.
|many other areas where progress is needed. For example: Law enforcement, where we still struggle to agree on the necessary guarantees to protect citizens’ fundamental rights and personal data.”
|official statements. Most recently, Barnier said discussions on judicial cooperation had been “good” but said they were struggling to agree on the necessary guarantees to protect citizens’ fundamental rights and personal data.|
|Northern Ireland||At the end of the transition period, Northern Ireland will remain within the EU’s single market for various agricultural and manufacturing goods, whereas the rest of the UK will not. Subsequently, there is disagreement over the continued EU presence in Northern Ireland post-Brexit in order to conduct the required customs and regulatory checks, as well as the level of checks required.||“We want to work with NI businesses and the executive to ensure new admin procedures are streamlined and efficient. The protocol puts legal obligations on both sides. We are committed to complying with ours, just as we expect the EU to comply with theirs.”
|“We remain concerned that the necessary measures will not be in place on 1 January.”
|No development: The UK’s publication of its approach to the Northern Ireland protocol at the beginning of the summer allayed EU concerns over withholding its end of the Withdrawal Agreement in relation to Northern Ireland. As such, it has not been the focus of official statements in recent weeks. That said, the EU has highlighted the need to discuss “technical details” further and expressed concern over the necessary measures being in place by the end of the transition
|Sector||Summary||Direction of travel|
|Financial services||Despite being a fundamental issue for the UK given its strategic importance, the Government has long since dropped its ambitions for an ambitious bespoke deal. It is looking for an ‘enhanced’ equivalence regime, with regulatory cooperation that includes “appropriate consultation and structured processes for the withdrawal of equivalence findings.” The UK argues that this largely mirrors the existing deal agreed between the EU and Japan. However, the EU has maintained that the decision to grant equivalence will remain unilaterally with the Commission, as seen in existing trade deals.||Negative: Technical equivalence assessments by both party’s regulators are ongoing despite a target to conclude such assessments by 30 June 2020.
A speech by Michel Barnier to EuroFi again rejected any kind of bespoke arrangement, saying the UK’s proposals limited the EU’s regulatory and decision-making autonomy.
Though a basic equivalence agreement is expected given the existing levels of alignment, such decisions can be overtly political, and reports suggest financial services could be ‘played off’ against other key issues, such as fishing access. See here.
Further, a communication from July 2020 suggested that equivalence will be granted to UK Central Counterparties but withheld across other articles, including those within MiFID and MiFIR. See here and here.
Executive Vice-President of the European Commission Valdis Dombrovskis said in August that the decision to award certain equivalence assessments could be delayed beyond 2020
given that the EU’s rules are currently in flux. See here.
|Data||The UK is looking to be granted ‘data adequacy’ by the European Commission, a status given to countries outside the European Economic Area (EEA) with comparable levels of data protection to the EU. As with financial services, the EU will look to reserve the right to take unilateral equivalence decisions on such ‘data adequacy’ decisions, which will be incumbent on the UK providing
an ongoing commitment to high levels of personal data protection.
|No development: The political declaration sets out an ambition to reach data adequacy decisions by the end of 2020. However, such decisions usually take far longer. The fastest adequacy assessment to date took place between the EU and Argentina at 18 months, and they have been known to take up to five years. Though the UK currently applies the
EU’s GDPR legislation, the EU has taken issue with how the
|UK Government handles data in the past, including the ‘Snoopers Charter’ and the waiving of data protection rights under certain immigration controls. While the UK has committed to allowing the free flow of data regardless of whether a deal is secured, the EU said it would not reciprocate.
More recently, concerns have been raised over the impact of a US trade deal on cross-border data flows, and whether this would impact a potential adequacy agreement (see here).
|Transport||The two core transport issues in negotiations are aviation and road transport (haulage).
Aviation: The UK has proposed two separate agreements: a Comprehensive Air Transport Agreement (CATA), and a Bilateral Aviation Safety Agreement (BASA). The EU is reticent to allow such a comprehensive agreement without commitments to level playing field conditions and continued ECJ oversight.
Haulage: The UK is looking to remove all quantitative restrictions from operators providing services to, from and through each other’s territories. The EU supports open market access but believes UK hauliers should not be granted the same level of rights and benefits by EU hauliers between and within member states.
The UK intends to pull out of all EU institutions across maritime and rail, striking bilateral agreements with individual member states where appropriate.
|No development: Discussions over haulage rights post-Brexit ended in disagreement last week after EU negotiators said the British request for continued access – reportedly asking for the ability to continue making pick-ups and drop offs both inside and between EU member states (cabotage) – was “unbalanced” and close to single market-like access. See here.
Both sides cited progress on transport issues during the sixth round of negotiations. While there was some progress at technical level on aviation traffic rights, disagreements remain on ownership and control of cross-border organisations. The EU is also maintaining its position that a deal on aviation must be included as part of the FTA and discussions continue over level playing field conditions, particularly regarding EU air space, environmental agreements and subsidy controls. On road transport, both sides clarified their positions and are in the process of discussing rights for UK and EU haulers to carry goods between the two jurisdictions.
Brexit legislation tracker
|Environment Bill (30.01.2020)||Department for Environment, Food and Rural Affairs (DEFRA)||Public Bill Committee report
|To make provision about targets, plans and policies for improving the natural environment; to make provision for the Office for Environmental Protection; to make provision about waste and resource efficiency; to make provision about air quality; to make provision for the recall of products that fail to meet environmental standards; to make provision about water; to make provision about nature and biodiversity; to make provision for conservation covenants; to make provision about the
regulation of chemicals; and for connected purposes.
|Agriculture Bill (16.01.2020)||Department for Environment, Food and Rural Affairs (DEFRA)||Report Stage (House of Lords) – TBC||Reform UK agriculture policy by replacing the current subsidy system, and support farmers and land managers to ensure a smooth and gradual transition away from the Common Agricultural Policy (CAP).|
|Immigration and Social Security Bill (05.03.2020)||Home Office||Committee Stage (House of Lords) – 07.09.2020||End free movement, and make EU citizens arriving after January 2021 subject to the same UK immigration controls as non-EU citizens. Clarify the immigration status of Irish citizens once the free movement migration framework is repealed. Enable the Government to deliver future
changes to social security co-ordination policy.
|Trade Bill (19.03.2020)||Department for International Trade (DIT)||Second Reading (House of Lords) – 08.09.2020||A Bill to make provision about the implementation of international trade agreements; to make provision establishing the Trade Remedies Authority and conferring functions on it; and to make provision about the collection
and disclosure of information relating to trade.