Matteo Bottero and Ian Cooper (DCU Brexit Institute)
On 4–5 March 2021, the DCU Brexit Institute hosted an event which constituted the book workshop anticipating the publication of Federico Fabbrini (ed), “The Law & Politics of Brexit. Volume 3. The Framework of Future EU-UK Relations” (forthcoming with Oxford University Press).
The Book Conference was opened with an introduction by Federico Fabbrini (Professor of European Law, DCU, and Founding Director DCU Brexit Institute), who than gave the floor to the panelists, most of whom are authors of the chapters of the forthcoming book.
Panel 1 on The Process & Context was chaired by Derek Hand (Dean of the DCU Faculty of Humanities and Social Sciences) and started with a presentation by Michael Cox (LSE) on ‘The Evolving Transatlantic Relationship’. In his interesting analysis, Professor Cox pointed out that Brexit was a major strategic defeat for the United States, while the election of Joe Biden could be considered as a setback for Boris Johnson. In his view, Donald Trump was an enemy of the EU and, therefore, a supporter of a destabilising event such as Brexit. When Dagmar Schiek (UCC and QUB (Hon)) took the floor, she presented her research entitled ‘Implementing the Withdrawal Agreement – A Permanent Struggle’. In particular, she analysed the implementation issues related to the Ireland/Northern Ireland Protocol, highlighting the different impact on the two markets concerned. Professor Schiek concluded by emphasising the need to find pragmatic solutions for trade in goods and expressed her concern for the current fragmentation of the EU internal market. The last speakers of the first panel, John Doyle and Eileen Connolly (DCU), gave a presentation on ‘Brexit and the Northern Ireland Peace Process’. After pointing out that the NI protocol was fundamentally chosen by the UK and that Brexit broke the Good Friday Agreement, he underlined the Unionist opposition to the NI protocol, even though the majority of them (66%) voted for Brexit. They noted that Northern Ireland is currently at the heart of EU-UK relationships and that the implementation of the related protocol will foreseeably remain a thorn in the side for a long time. In conclusion, they expressed their concern for the current political instability in the UK. The discussion was enriched by the intervention of the Former Taoiseach Bertie Ahern who pointed out the new problems arising from the withdrawal of loyalist paramilitary groups’ support for the Good Friday agreement as a result of the newly established Northern Ireland’s Irish Sea trade border with the rest of the UK.
Panel 2 on Economic Relations was chaired by Iain McMenamin (Head of DCU School of Law & Government) and involved a presentation by Giorgio Sacerdoti and Paola Mariani (Bocconi) on ‘Trade in Goods and the Level Playing Field’. At first, Professor Mariani underlined the main peculiarities of the trade and goods chapter of the Trade and Cooperation Agreement (TCA) and especially its uniqueness. Subsequently, Professor Sacerdoti focused on the ‘level playing field’ foreseen in the TCA, recognising the noticeable amount of trade envisaged between the EU and the UK and the commitment to keep high levels of competition, but also the lack of harmonisation and consequent freedom of regulation by both of the parties. The second speaker, Niamh Moloney (LSE), delivered a presentation on ‘Trade in Services’, where she emphasised how the TCA is a ‘No Deal’ Brexit for financial services, pointing out the negative implications on the part of the companies established in the UK. In substance, for both the EU and the UK, this is a struggle in defense of sovereignty. The last panelists of the day, Catherine Barnard and Emilija Leinarte (Cambridge) offered an interesting perspective on ‘Mobility of Persons’. In their view, immigration was one of the main reasons why people voted for Brexit and continuity was guaranteed for persons moving before 1 January 2021. In turn, the TCA entails extreme complexity with regard to mobility of persons, with a limited numbers of persons moving in the framework of the free provision of services, and also sectoral limitations. Dr. Leinarte concluded with a reflection on the negative impact of Brexit on the textile industry as well as on performing artists and musicians, whose activities and interests were not included in the TCA. As pointed out by Professor Barnard, when people will start travelling again after the COVID-19 crisis, they will realise that what is envisaged by the TCA is not free movement. Along the same lines, Professor Sacerdoti noticed that civil society in the UK, and even the major law firms in London, did not challenge the TCA for the damage caused to the free movement of services, and especially the financial service sector.
The discussion resumed on Friday 5 March with Panel 3 on Security Relations, which was chaired by Paddy Smyth (formerly Irish Times). The first speaker. Ben Tonra (UCD), provided a presentation on ‘Defense and Foreign Affairs’, where he underlined the central role of the UK is in EU security defence, noting that the Common Security Defence Policy was indeed created under the initiative of the UK together with France. Notwithstanding this, Professor Tonra noted that the area of foreign policy and defense cooperation had no public relevance during Brexit and it eventually was left out of the scope of the TCA. Afterwards, Edoardo Celeste (DCU) took the floor with a presentation on ‘Data Protection after Brexit’, which looked at the relevance of data protection during the Brexit negotiations, the relevant terms of the TCA, including the new transitional period and the emerging difficulties. In his view, Brexit would lead to increasing complexity, introducing new barriers, in that it failed to realise a consistent legal famework for data protection. Following the input of Professor Fabbrini, the discussion touched upon the latest EU political developments, where the European Parliament suspended the ratification of the TCA as a result of the UK’s action in relation to arrangements for Northern Ireland. Notably, it considered the related repercussions in the field of data protection and security defence.
Panel 4 on The Prospects was chaired by Bill Emmott (formerly the Economist) and started with a presentation by Nicolas Levrat (Global Studies Intitute) on ‘Governance: Managing Bilateral Relations’. The speaker noted that bilateral relations are a new approach for the EU, while from the governance perspective there is poor content for the EU/UK future relationship. He also stressed the need to take decisions at any level with mutual consent. The second speaker, Brigid Laffan (EUI), focused on ‘Sovereignty and Brexit: From Theory to Practice’ and on the interesting social science puzzle resulting from Brexit. She highlighted how Brexit was a clash of internal and external, political and popular sovereignty. Professor Laffan also emphasised the very thin nature of the TCA, which was motivated by the UK’s intention to preserve its full sovereignty. Finally, Federico Fabbrini (DCU) delivered a future-oriented presentation entitled ‘Brexit & Integration’, reflecting on the other side of the channel, i.e. from an European integration perspective. On the one hand, he emphasised the resilience of integration entailing an advancement of a more united EU27, proven by the strong EU response to the COVID-19 crisis with the approval of the Next Generation EU Recovery Plan. On the other hand, he stressed the contextual pressures to disintegration, with continuing challenges related to COVID-19, rule of law issues, the MFF, and the Schengen system. He also warned against the current institutional weaknesses of a too powerful European Council and a too unreliable Commission. With a view to the future, Professor Fabbrini looked at the positive outcomes of the Conference on the Future of Europe and the election of Mario Draghi as Italian Prime Minister.
The conference concluded with a Final High-Level Debate chaired by Federico Fabbrini (DCU Brexit Institute) and featuring the participation of Sir Ivan Rogers (former UK Permanent Representative to the EU) and Amb. Tom Hanney (Ireland Permanent Representative to the EU). To begin, Tom Hanney expressed his opinion that the measure of EU/UK future relationships will depend on the political will of commitment on both sides. He underlined the UK preference for bilateral relations in the area of defence security, as well as the UK aggressive approach aimed at preserving sovereignty during the negotiations of the TCA, which in turn were overshadowed by the pandemic in the EU. He concluded by ensuring the will of Ireland to make sure that the Ireland/Northern Ireland Protocol is fully implemented and to protect the integrity of the single market and of the Good Friday agreement. Afterwards, Ivan Rogers defined himself as more realist than pessimist in saying that it will take a long time for this situation to settle down. In his view, although being thin and inadequate, the TCA is not likely to change in 2021. The deal is fragile, but Rogers is glad that there is at least a deal. The risk of ending up with too many and complex trade regulations is still in place. With regard to the negotiations, he mentioned that Boris Johnson never wanted the NI problem to dictate the terms of Brexit. In conclusion, he warned about the current extremely delicate situation and the need to reflect on putting together different ‘mini packages’ which would accommodate both parties.