Does the UK-EU Joint Report essentially remove any leverage the UK has in further negotiations?

Question

This morning a joint report was issued from the Brexit negotiations which satisfied the Irish government and the DUP on border progress, and by extension the EU that discussion could now progress to a trade deal.

The critical part of the text is this:

49. The United Kingdom remains committed to protecting North-South cooperation and to its guarantee of avoiding a hard border. Any future arrangements must be compatible with these overarching requirements. The United Kingdom's intention is to achieve these objectives through the overall EU-UK relationship. Should this not be possible, the United Kingdom will propose specific solutions to address the unique circumstances of the island of Ireland. In the absence of agreed solutions, the United Kingdom will maintain full alignment with those rules of the Internal Market and the Customs Union which, now or in the future, support North-South cooperation, the allisland economy and the protection of the 1998 Agreement.

50. In the absence of agreed solutions, as set out in the previous paragraph, the United Kingdom will ensure that no new regulatory barriers develop between Northern Ireland and the rest of the United Kingdom, unless, consistent with the 1998 Agreement, the Northern Ireland Executive and Assembly agree that distinct arrangements are appropriate for Northern Ireland. In all circumstances, the United Kingdom will continue to ensure the same unfettered access for Northern Ireland's businesses to the whole of the United Kingdom internal market.

51. Both Parties will establish mechanisms to ensure the implementation and oversight of any specific arrangement to safeguard the integrity of the EU Internal Market and the Customs Union.

I am neither a lawyer or a politician, but to me this reads - quite clearly - that any deal will, for the most part, have to replicate the UK's current membership of the Single Market, the Customs Union and the European Court of Justice. If it fails to reach a deal, it will remain bound entirely by those agreements?

If this is the case, then surely the EU now has zero motivation to perform any further talks? It can take its £50bn divorce payment and simply force the UK to agree to all its other existing obligations?

Answer 1

This is indeed a logical conclusion that other observers reached based on what transpired earlier this week:

If the Irish Times report on the deal is accurate, the British have moved a huge distance, suggesting that they badly need a deal. This week’s drama, on the other hand, will make the EU even more reluctant to consider bespoke negotiations and even more determined to offer only off-the-shelf arrangements.

But the structure of the article 50 process, the sequencing of the talks, and the fact that the economic consequences of crashing out of the EU without any deal would be vastly more dire for the UK than for the EU itself meant that the UK did not have much leverage to begin with.

Brexit enthusiasts and parts of the British media oscillate between lamenting the EU's bullying and pretending they are themselves in a position to bully everybody else into reshaping the single market to their liking but nobody else believes that.

Answer 2

If it fails to reach a deal, it will remain bound entirely by those agreements?

At the beginning of the joint report it says:

4. The positions detailed in this report form a single and coherent package. Agreement in principle has been reached on the package as a whole, as opposed to individual elements

5. Under the caveat that nothing is agreed until everything is agreed, the joint commitments set out in this joint report shall be reflected in the Withdrawal Agreement in full detail.

(my emphasis)

I interpret that caveat as meaning that if everything is not agreed, then nothing in the joint report is binding.

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Lets break that down

Agreement in principle

That means this is a stepping stone to a contract, it is not a contract.

It shapes what can be in the Withdrawal Agreement. It only binds the negotiators in what the Withdrawal Agreement must contain, if those negotiators cease negotiating and no Withdrawal Agreement is signed, nothing in the Joint Report binds the UK or EU.

It is not a Withdrawal Agreement.

As a whole, as opposed to individual elements

That means you cannot take one part of this package and claim that it is binding even if none of the other parts are.

For example, it is the case that none of the parties involved want a "hard border" - but this report does not irrevocably bind all parties to that. It says that anything in this report on border arrangements is not binding unless the whole of it ends up in the Withdrawal Agreement.

Nothing is agreed until everything is agreed

That means nothing is agreed.

This is not an international treaty.

This means that they have only agreed broadly some items that must be detailed in the eventual agreement. Details are not yet formulated or agreed. Negotiations are ongoing.

If, and only if, all parties agree to an eventual Withdrawal Agreement, then everything in this package will appear in the Withdrawal Agreement.

If it fails to reach a deal

The question above asks "If it fails to reach a deal" - If there is no Withdrawal Agreement then none of the joint report is binding on the UK or EU governments.

AFAIK WTO rules would then apply.

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• Joint report from the negotiators of the European Union and the United Kingdom Government on progress during phase 1 of negotiations under Article 50 TEU on the United Kingdom's orderly withdrawal from the European Union.
• NOTE From: General Secretariat of the Council To: Permanent Representatives Committee (Art. 50) Subject: European Council (Art. 50) Draft guidelines