David Frost will walk away if the EU asks the UK to give too much ground in ongoing talks, and will not be distracted by the ongoing coronavirus pandemic, an international legal expert has said.
David Collins, Professor of International Economic Law at The City Law School, said there was no chance of the transition period being extended beyond December 31 – and the red lines outlined by former Prime Minister Theresa May two years ago still applied. There has been widespread speculation about the impact COVID-19 may have on the Brexit process, with German politician and Angela Merkel ally Norbert Rottgen, chairman of the influential Bundestag’s foreign affairs committee, claiming a two-year delay was inevitable.
Such an extension would need to be requested by June 30 “to enable both sides to agree on a new and fair partnership for the future” according to the European Commission’s website.
However, Prof Collins suggested such an outcome was highly unlikely.
He said: “I believe very much that the June deadline holds true and that the UK should not, nor will they, seek an extension.
“Frost will likely walk away only at the very last moment in December when a path forward becomes impossible because with the EU they always seem to be willing to give ground and become more reasonable at the eleventh hour.”
Referring the circumstances in which Mr Frost and his team might deem it pointless to continue negotiations, Prof Collins said: “The UK would rightly walk away if the EU insisted on any one of: regulatory alignment, continued oversight of the ECJ, free movement or ongoing monetary contributions.
“These are the same red-lines that Theresa May outlined all those years ago in the Mansion House speech and they still apply.”
Striking an optimistic note, he explained: “I do believe that an agreement will be reached by December, but it will be a basic goods-focused one with tariff reductions but limited coverage for services.
“Services and other matters might end up being covered at a later stage, perhaps in a year or so, when the relationship is revisited.”
Prof Collins added: “It remains open to both parties to walk away but this decision should not be viewed as actionable in its own right in the sense of constituting an independent breach of international law.
“Both sides are free to propose things and free to turn them down.
Nevertheless, he said: “In my view the EU’s requirement that the UK retain regulatory alignment with the EU going forward and on a dynamic basis is wholly unreasonable for the simple reason that they have not asked this is any other country in recent FTA negotiations, notably either Canada or Japan, both of which are developed OECD countries.
“There could be some suggestion that the EU had, in the past, promised that they would not make such a requirement in exchange for a Canada-style FTA, in which case there could conceivably be an allegation of estoppel, essentially going back on one’s word, but I think such a claim is unlikely as this ‘offer’ had only ever been made in an off-handed way.”
Writing in The Observer on Sunday, Mr Rottgen said: “Before the current coronavirus crisis, I think it would have been possible to have a minimum agreement with the UK on the broad outlines to avoid a crash, with more detailed negotiations then taking place afterwards.
“I can’t imagine now that this is possible, given the fact that all the EU countries, Brussels and London are so absorbed by the pandemic – and this will go on.
“Given this situation, I don’t believe that there is a realistic possibility any longer to even achieve the necessary minimum. So you have to extend.”
With specific reference to the pandemic, he said: “The pandemic will cause more economic damage than we can now imagine.
“To think that you could then add to this extraordinary situation a very disorderly exit, to me is not imaginable.
“I think everyone will say that this is not in the British interest or in the interest of any of us.”