An internal UK government memo on the consequences of Boris Johnson’s Brexit deal renegotiation singles out the removal of the word “adequate” from the UK-EU Political Declaration to describe mechanisms for enforcing common social, environmental, and labour standards after Brexit.
The word “adequate” appears to have been replaced by the word “appropriate”.
Extracts of a note written for the government’s cross-Whitehall Economic Partnership Steering Group, and seen by the BBC, say the “parties will include “appropriate” (rather than “adequate”) mechanisms for dispute settlement” of key “level playing field commitments” in a future trade deal with the European Union.
The consequence of that change, the note says, is that it means that it is now possible to argue it is “inappropriate for the future UK-EU relationship” that disputes about these commitments on employment, environment, tax, state aid and other standards should be subject to binding arbitration.
Level playing field
The memo, first leaked to the Financial Times and marked “Official Sensitive”, contains a series of claimed negotiation wins from the Brexit deal renegotiation, weakening the scope and strength of Level Playing Field Commitments (LPF), a crucial element in a future UK-EU trade arrangement.
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“The previous Protocol applied wide-ranging LPF measures on a UK-wide bases as a response to UK access to the EU market through the single customs territory.
“UK negotiators successfully resisted the inclusion of all UK-wide LPF rules” says the memo, with the last four words put in bold for emphasis.
“The only level playing field provisions in the revised Protocol are those necessary to support the operation of the Single Electricity Market and state aid measures that affect trade between NI and the EU,” it says.
The title of the memo is “Update to EPSG (Economic Partnership Steering Group) on Level Playing Field Negotiations”.
This is the first acknowledgement that changing the Level Playing Field commitments agreed by Theresa May was a specific aim of the PM’s renegotiation.
In public, the PM focused on changing what he referred to as “the anti-democratic backstop”, which had been rejected by the government’s parliamentary allies, the Democratic Unionists.
In the end, the PM’s new solution, creating a new trade and regulatory border in the Irish Sea, further alienated the DUP. Backbench eurosceptic Conservative MPs have, however, been won over to the deal.
Theresa May’s original 2018 deal included a range of specific enforceable common standards for the UK and the EU within the legally binding Withdrawal Treaty.
Some of these standards were related to EU law, others referred to the OECD (Organisation for Economic Cooperation and Development), International Labour Organisation and the Council of Europe.
These were all removed, along with the backstop, and the only reference remaining in the overall deal was in the non-binding Political Declaration.
The memo shows that within Whitehall, weakening these provisions was a key part of the renegotiation.
Regarded as an internal success, their removal paves the way for a “much more open starting point for future relationship negotiations” that allow for “a range of landing zones” for a future deal.
“The Political Declaration text provides us with a framework for negotiating FTA-style commitments on Level Playing Field,” the memo concludes under the headline “Next Steps”.
That is a reference to the fact that, unlike the original Brexit deal agreed by Theresa May, dispute settlement mechanisms have not applied to existing standard EU Free Trade Agreements.
Sam Lowe, trade fellow at the Centre for European Reform, said: “The Level Playing Field commitments in the EU’s Free Trade Agreements with Canada and Japan are unenforceable, because they are specifically excluded from the dispute settlement mechanisms. The government appears to be aiming for the same treatment.”
The government has been approached for further comment. On Saturday, ministers said stories about the memo were “not correct” and “way exaggerated”.
The government also said: “The UK government has no intention of lowering the standards of workers’ rights or environmental protection after we leave the EU.
“UK level playing field commitments will be negotiated in the context of the future UK-EU free trade agreement, where we will achieve a balance of rights and obligations which reflect the scope and depth of the future relationship.”