The TCA as an entanglement

The central narrative of the Leave case in the Brexit period as that of ‘taking back control’. By withdrawing from the European Union, the UK would liberate itself from the confines and strictures of What Other People Want, and instead become a free agent on the global stage.

While this has been an effective rhetorical strategy, it has not stood up to much inspection in practice, as the emerging disruptions to food and goods since 1 January might testify.

But it’s also not a reflection of the more legal content of the Trade & Cooperation Agreement.

In what can only be described as “a silly move”, I decided earlier this week to make note of any reference to other legal instruments in the TCA.

Very quickly, I had to abandon the back-of-envelope notes, to set up a spreadsheet (which you can find here) and establish some ground rules.

Firstly, I made a note of any multilateral obligation formalised within a specific legal instrument or organisation. That meant not including the following: EU legislation; bilateral or unilateral agreements (which mostly are found in the SERVIN annexes); or, the generic references to ‘other’ that appear from time to time.

Secondly, I recorded the approximate location of references, by noting the article number or the annex title only. This means where those make multiple references to an instrument/organisation, I have only recorded that once. That makes it easy enough to find, even if it means losing something of the relative importance of the reference (check out some of the annexes for examples of being driven almost entirely by another text).

Thirdly, a reference is a reference, even when it is to say that a particular provision of another text does not apply (since that implies the rest does).

Fourthly, searching was initially by keywords (‘treaty’, ‘agreement’, etc.), followed up by noticing other references, and by searching on organisation-specific terms (‘WTO’, ‘IPPC’, etc.). The list includes the titles of instruments and bodies as presented most fully in the text. To the best of my knowledge I’ve got everything, but I’m very happy to take corrections.

The result looks like this (PDF version here):

I’ve grouped by theme, as much as is reasonable – note that there’s some overlap in categories – while also illustrating the number of references.

Some observations emerge:

The overall level of linkage to other instruments and organisations is very high, with 113 such items noted. In the very large majority of cases, the references affirmed the intention of both sides to continue their membership of, and engagement with, the work of those bodies, suggesting that the degree of manoeuvre the UK has gained by withdrawal is relatively small.

Notably, references to EU treaties were relatively few (there’s only one reference to the Withdrawal Agreement, for instance), as the broad weight falls on sector-specific commitments. In several cases, the necessity has been to remind the parties that ‘EU rules’ have, in fact, been international ones that continue to bind the UK post-membership.

The spread across sectors is also revealing, with trade and related themes taking up the bulk of the references, as might be expected for a treaty that is so heavily focused in this area. However, for pretty much every area, references can be found, from human rights to food.

While dates are not noted for all of the referenced items, it is telling that most that are come since the UK joined the EEC in 1973. The world back into which the UK is stepping is very different from what it was: the density and scope of the international community’s obligations on itself are much greater than they were. How this might impact the ‘buccaneering’ image some have of the country’s future is yet to be fully appreciated.

The speed of putting together the text is also evident, with highly variable presentation of references at different points – the WTO was a particular joy to track down – indicating that the legal scrub of the text ‘as a whole’ was very much at the short end of things.

Overall, the exercise has been a good one in unpicking the context into which the EU-UK relations has been driven, both in substantive and rhetorical terms. ‘Taking back control’ was never as simple as it sounded, as we shall now discover.