The Brexit saga concluded in a predictably dramatic manner. The Trade and Cooperation Agreement between the EU and the UK was completed at the 11th hour, just days before the end of the transition period. The preceding days bore the hallmarks of discourse that verged between the stage managed and the ad hoc. We were treated to pictures of an earnest Prime Minister looking pensively at the phone on which he was speaking to the Commission President in the attempt to break the negotiating deadlock. There was the late dash to Brussels for the two on two discussion between Johnson/Frost and von der Leyen/Barnier. Outstanding differences were not resolved and news outlets were replete with talk of the likely “no deal”, coupled with comment on the relative sartorial elegance and inelegance of the EU and UK negotiating teams respectively. Deadlines for finalization of the negotiations came and went; the two sides repeatedly pushed the clock back in the attempt to broker a deal; sentiment shifted. There was, we were told, a narrow, but perceptible, path towards a deal. The TCA was duly agreed in time to bring some festive cheer for the UK Prime Minister. He lost no time in declaring in the House of Commons that the brokered deal proved that the UK could have its cake and eat it, reinforcing his metaphor in discussion with the BBC’s Laura Kuenssberg by saying that it was the “cakeist” free trade agreement imaginable. We shall return to such subtle political metaphors in due course. Suffice it to say for the present that there is, as economists well know, no such thing as a free insult.The impulses that drove Brexit were eclectic, but the desire for the repatriation of sovereign control assumed centre-stage in the TCA negotiations. It is important to interrogate the sovereign control metaphor, more especially given its centrality in the discourse leading to the TCA. That is the purpose of this article, where the focus is on the TCA trade provisions, since space precludes consideration of other issues, such as criminal justice. It follows the same format as earlier articles. The Brexit story has been an unfolding drama, the contours of which are elaborated as acts in a play, enlivened by pertinent quotes from Shakespeare. The article follows on from three earlier publications, and picks up from the end of the third contribution, which dealt with the Withdrawal Agreement, and concluded with Act 12.Act 13 continues the story and deals with the negotiations that led to the TCA. The object is not to provide a detailed chronology or comprehensive coverage of discourse on each TCA provision, since that would require a lengthy article in itself. The objective is rather to explain the principal impulses that shaped the respective negotiating strategies of the UK and the EU. Act 14 provides a guide to the TCA. This is no easy task, given that it weighed in at a healthy 1246 pages. It is, nonetheless, possible to provide an “architectural overview” of its principal characteristics to inform subsequent discussion. This then sets the stage for Acts 15 and 16, which consider in depth the extent to which sovereignty and control have been repatriated through Brexit and the TCA. Act 15 considers this from an institutional perspective, examining how far the TCA delivers on giving sovereignty back to Parliament. This is analysed from three more particular perspectives: Parliamentary oversight of the TCA and trade treaties; the extent to which Parliament has input into decisions made pursuant to the TCA; and the extent to which executive power has been increased as a result of the European Union (Future Relationship) Act 2020. Act 16 complements this analysis through consideration of sovereignty and control from a substantive perspective, by examining the extent to which the TCA imposes constraints on the UK’s freedom of action post-Brexit. It is important to clarify at the outset the connotation accorded to sovereignty and control that inheres in the Brexit agenda. In conceptual terms, the decision to join the EU was an exercise of UK sovereign will, and so too was the acceptance of the rules of the game that pertained thereafter. The UK, while a Member State of the EU, benefited from such rules. They enabled it, for example, to ensure that Spain did not block UK access to its goods markets, or that France did not impede access to its services markets. Viewed from this standpoint, Brexit entailed a loss of control. However, for Brexiteers, the connection between sovereignty and control connoted the capacity to devise UK laws unilaterally as a result of leaving the EU, exemplified by the UK’s ability to control its own borders. This is not the place for exegesis as to the rival merits of the two conceptions of sovereignty adumbrated above. Act 16 takes the form of immanent interrogation, testing the substantive assumption underlying the Brexiteer vision from five more particular perspectives. Thus, there will be analysis of the extent to which the TCA imposes de jure constraints through: its multiple trade provisions; the articles on the level playing field; the requirements concerning “essential provisions”; and the obligation to use international standards. This is then complemented by analysis of the de facto constraints on UK control, by pointing to factors that will incline the UK not to deviate markedly from EU regulatory norms
