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Gove warns EU that UK sovereignty is non-negotiable on eve of trade deal talks

The UK and the EU have published their divergent mandates for trade talks due to start on Monday 2 March 2020, and digital may emerge as a long-term terrain of dispute

Michael Gove told the House of Commons today that the UK government will not trade away the country’s sovereignty in the forthcoming trade talks with the European Union (EU).

Gove, the minister for the Cabinet Office said: “We will not be seeking to dynamically align with EU rules on EU terms governed by EU laws and EU institutions.”

The UK government has published its mandate for trade agreement negotiations with the European Union, due to begin next week. David Frost is the civil servant who will lead the British side, as the prime minister’s Europe advisor.

For its part, the EU published its mandate for the negotiations on 27 February.

June 2020 has emerged as the time period when the talks will either continue or collapse, with both sides stepping up plans for a “no deal” scenario were that to occur. June 2020 was the time envisaged for a decisive high meeting in the Political Declaration that was agreed alongside the Withdrawal Agreement, in October 2019 between the UK government and the European Commission.

The UK left the EU on 31 January, and 31 December 2020 will mark the end of the transition period provided for in the Withdrawal Agreement concluded with the EU. The British government seems to be backing away from acceptance of a “level playing field” for environmental and labour standards as expressed, under the heading “Economic Partnership” in the Political Declaration. Or at least that seems to be the force of Gove’s statement in the Commons.

“The UK government seeks an FTA with robust protection for the environment and labour standards,” he said. “But we do not see why the test of suitability in these areas should be adherence to EU law and EU models of governance. The EU does not apply those principles to free trade agreements with other sovereign nations and they should not apply to a sovereign UK.”

Transition period

The government has also stated in its document that it will not extend the transition period provided for in the Withdrawal Agreement.

The British document states that the “UK will have its own regime of [economic] subsidy control”, while the EU document states that “the envisaged agreement should uphold common high standards, and corresponding high standards over time with Union standards as a reference point, in the areas of State aid, competition, state-owned enterprises, social and employment standards, environmental standards, climate change, relevant tax matters and other regulatory measures and practices in these areas”.

For its part, as the BBC’s Brussels correspondent Alan Fleming explained on The Daily Politics Show following the Gove statement, the EU favours the creation an overall framework for the governance of individual elements of a comprehensive trade deal. The UK is less keen on that, and wants a free trade agreement, alongside separate agreements for fishing, aviation, intelligence, and so on.

On the same BBC programme, host Andrew Neil commented: “When you speak to the government, they have almost zero interest in changing current labour or environmental standards or other things already regulated by the EU … but their concern is not about the current rules. Instead they believe the prudential principles embedded in EU rules and regulations are very bad for artificial intelligence, robotics, genetics, digital technology, and so on. And that’s where they want to make their own rules going forward, not to unravel the existing rules.”

Last week, the EU published its artificial intelligence, data, and digital strategies, and all were couched in terms that aim at a judicious, careful balance between the digital rights of citizens to privacy and enabling companies to commercially exploit data. These strategy documents could plausibly be said to make up an example of the cautious, “prudential” principle to which Neil referred, at odds with the more laissez faire approach of the Johnson government – at least as he relates it.

The UK’s document, The future relationship with the EU: The UK’s approach to negotiations declares that any Comprehensive Free Trade Agreement between the two parties should be similar to agreements concluded with “Canada and with other friendly countries”. And if the two parties fail to agree on the FTA, then “the trading relationship with the EU will rest on the 2019 Withdrawal Agreement and will look similar to Australia’s”.

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The UK mandate, as expressed in the government’s documents, wants the FTA to ensure the digital economy to be frictionless between the UK and the EU.

In relation to telecoms, the UK document states: “The agreement should provide commitments to ensure fair and equal access to telecommunications networks and services, preventing anti-competitive practices and delivering benefits for consumers. Telecommunications services provide key infrastructure for the digital economy and equitable access will provide mutual benefits for the parties, reinforcing the provisions of the digital chapter”.

And, under the heading of “digital”, it states: “The agreement should promote trade in digital services and facilitate modern forms of trade in both services and goods and in both new, technology-intensive businesses and traditional industries.

“The agreement should include commitments on market access and regulatory governance of digital trade. Commitments on market access should minimise barriers to the supply of digital services provided from the territory of a party into the territory of the other party and will provide a clear and predictable basis upon which business can invest. This should lock in regulatory certainty, while preserving the UK's regulatory autonomy.

“The Agreement should include provisions to promote an open, secure and trustworthy online environment; encourage regulatory cooperation and a strategic dialogue on emerging technologies; and stimulate e-commerce through measures that facilitate the cross-border flow of data.”

The European Union’s document puts the Political Declaration of 17 October more upfront and central than does the UK’s, and it is worthy of note that it talks throughout of a “partnership agreement” as opposed to the “Comprehensive Free Trade Agreement” expression that figures more prominently in the British document.

Good Friday Agreement

It also places an emphasis on the Good Friday Agreement absent in the UK document. “The envisaged partnership should continue to protect the Good Friday or Belfast Agreement reached on 10 April 1998 by the UK Government, the Government of Ireland and the other participants in the multiparty negotiations in all its parts, in recognition of the fact that the peace process in Northern Ireland will remain of paramount importance to the peace, stability and reconciliation on the island of Ireland. While preserving the integrity of the Single Market, the envisaged partnership should ensure that issues arising from Ireland's unique geographic situation are addressed.”

And it enunciates a stronger stress on data protection: “In view of the importance of data flows, the envisaged partnership should affirm the parties’ commitment to ensuring a high level of personal data protection, and fully respect the Union’s personal data protection rules, including the Union’s decision-making process as regards adequacy decisions. The adoption by the Union of adequacy decisions, if the applicable conditions are met, should be a factor for fostering cooperation and exchange of information.”

While the digital economy should be an area of convergence rather than divergence between the two parties, again, the EU’s stress falls on the data privacy of individual EU citizens:

“In the context of the increasing digitalisation of trade covering both services and goods the envisaged partnership should include provisions aiming at facilitating digital trade, addressing unjustified barriers to trade by electronic means, and ensuring an open, secure and trustworthy online environment for businesses and consumers, such as on electronic trust and authentication services or on not requiring prior authorisation solely on the grounds that the service is provided by electronic means.

“The envisaged partnership should be underpinned by commitments to respect fundamental rights including adequate protection of personal data, which is a necessary condition for the envisaged cooperation. In this context, the envisaged partnership should provide for automatic termination of the law enforcement cooperation and judicial cooperation in criminal matters if the UK was to denounce the European Convention of Human Rights.”

The UK document states: “The government intends to invite contributions about the economic implications of the future relationship from a wide range of stakeholders via a public consultation. That process will begin later this spring.”

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