Professor Steve Peers, University of Essex
Introduction
In the event that Brexit goes
ahead on the basis of the revised
withdrawal agreement, what would the future post-Brexit relationship of the
UK and the EU be? The issue is dealt with in a revised
political declaration on the future relationship, which (like the main
agreement) was altered in the recent renegotiations between the UK and the EU.
While it would not be binding as an
international treaty (it refers throughout to future negotiations, and largely avoids
imperative language), the political declaration is made more legally relevant
on the domestic level by the recently proposed withdrawal
agreement bill (discussed here),
which provides that any attempt by Parliament to set the agenda for the future
relationship would be bound by it. (If the bill goes forward, however,
parliament might try to amend it). And in the event that an election before
Brexit day returned a Labour government, that government would likely focus on
seeking amendments to the political declaration, subsequently (according to Labour
policy) putting a revised deal to the public in a further referendum with a
choice between that deal and staying in the EU after all.
The revised political declaration
strengthens the wording which refers to completing the process of negotiating
the future relationship by the end of 2020. This deadline was never very
realistic, and it has become ever more fantastic as the UK’s membership of the
EU has been extended. Despite that, the government’s policy is to leave the transition
period in the withdrawal agreement at the end of 2020, no matter what (the
transition period could be extended by mutual agreement of the UK and EU by up
to two years, although this would entail further budget contributions by the
UK, to be negotiated). This would create another ‘no deal’ cliff-edge, although
more accurately it would be a ‘no trade
deal’ cliff edge, since the other provisions of the withdrawal agreement (on citizens’
rights, Northern Ireland, the financial settlement and the separation
provisions) would remain in force after the end of the transition period.
This is the fifth in a series of
blog posts about the revised withdrawal agreement. The previous posts contained
an overview
of the agreement, examined the transition
period, and looked at dispute
settlement and the citizens’
rights provisions. This an update of a blog
post published last year, concerning the earlier
version of the political declaration.
This blog post annotates the text of the entire
political declaration here, showing (by bold/underline
and strikeout) how the version negotiated under Boris Johnson’s
government has changed compared to the version negotiated under Theresa May’s
government. It also explains the declaration in light of the broader context of
EU membership and EU relations with other non-EU countries. (I make no claim to
be exhaustive, though). I have not changed the text (all my annotations are
indented), but I have added a few hyperlinks to other things which the political
declaration mentions.
In parts, I have also added
suggestions for possible amendments
that would make the text more precise and strengthen the level of political
commitment. (It’s odd, for instance, that the text uses ‘will’ in some places
but not others). These amendments might give an indication of the sort of
amendments that a Labour government might seek (although I have no inside
information on this). Before the annotation itself, I have also summarised the structure of the political declaration,
and compiled a list of deadlines
that it refers to.
I have also made some comparisons
of how the future relationship (coupled with the withdrawal agreement, where
relevant) would compare to a no deal
scenario between the UK and EU.
Structure of the political declaration
The first five paragraphs are an Introduction. Following that, Part I
(paras 6-15) sets out Initial Provisions,
including sections on the ‘basis for cooperation’ (core values and rights, data
protection) and ‘areas of shared interest’ (participation in EU programmes,
dialogues).
Part II is the Economic Partnership (paras 16-77). It
has 14 sections, starting with ‘objectives and principles’, followed by ‘goods’
(objectives and principles, tariffs, regulation, customs, checks and controls),
‘services’ (objectives and principles, market access, regulation), ‘financial
services’, ‘digital’, ‘capital movements and payments’, ‘intellectual
property’, ‘public procurement’, ‘mobility’, ‘transport’ (aviation, road
transport, rail transport), ‘energy’ (electricity and gas, civil nuclear).
‘fishing opportunities’, ‘global cooperation’ and ‘level playing field’. It has been amended to insert references to a
free trade agreement instead of a customs union-based relationship, taking
account of the ‘level playing field’ measures and the original version of the ‘backstop’
being removed from the withdrawal agreement. It now explicitly accepts that
trade will not be ‘frictionless’, accepting that UK/EU trade will be subject to
rules of origin.
Part III, the Security Partnership (paras 78-117) has
four sections, starting with ‘objectives and principles’, followed by ‘law
enforcement and judicial cooperation in criminal matters’ (including data
exchange, operational cooperation, anti-money laundering and counter-terrorism
financing) ‘foreign policy, security and defence’ (including consultation and
cooperation, sanctions, operations and missions, defence capabilities
development, intelligence exchanges, space, development cooperation), and
‘thematic cooperation’ (cyber-security, civil protection, health security,
illegal migration, counter-terrorism and violent extremism, classified
information). It has been amended to remove a reference to the EU courts, and
to make it even clearer that the UK is not obliged to participate in all EU
defence measures, possibly to address frequent false claims about this issue.
Part IV covers Institutional and Horizontal Arrangements
(paras 118-134), and has sections on ‘structure’, ‘governance’ (‘strategic
direction and dialogue’, ‘management, administration and supervision’,
‘interpretation’ and ‘dispute settlement’) and ‘exceptions and safeguards’. It
has been amended to reduce the level of detail as regards future dispute
settlement and institutional arrangements.
Finally, Part V covers Forward Process (paras 135-141). The
revised text has simplified this section, removing the references to a
preparatory phase of negotiations.
List of dates in the Political Declaration
Immediately after Brexit Day:
work programme of talks agreed (para 138)
As soon as possible after Brexit
Day: Commission starts assessments on adequacy of UK data protection law (para
9)
June 2020: high level conference
to review and progress negotiations (para 141)
1 July 2020: target for
concluding and ratifying new fisheries agreement (para 74), so that it can
apply from the first year after the transition period
End of 2020: target date for
future relationship agreements to come into force (para 135), for Commission
decision on adequacy of UK data protection law (para 9), and for completing
assessment of financial services equivalence (para 36)
Barnard & Peers: chapter 27
Photo credit: Paramount
Annex: Annotation of the Political Declaration
POLITICAL DECLARATION SETTING OUT
THE FRAMEWORK FOR THE FUTURE RELATIONSHIP BETWEEN THE EUROPEAN UNION AND THE
UNITED KINGDOM
INTRODUCTION
1. The European Union, hereafter
referred to as “the Union”, and the United Kingdom of Great Britain and
Northern Ireland, hereafter referred to as “the United Kingdom”, ("the
Parties”) have agreed this political declaration on their future relationship,
on the basis that Article 50(2) of the Treaty on European Union (TEU) provides
for the negotiation of an agreement setting out the arrangements for the
withdrawal of a departing Member State, taking account of the framework for its
future relationship with the Union. In that context, this declaration
accompanies the Withdrawal Agreement that has been endorsed by the Parties,
subject to ratification.
2. The Union and United Kingdom
are determined to work together to safeguard the rules-based international
order, the rule of law and promotion of democracy, and high standards of free
and fair trade and workers’ rights, consumer and environmental protection, and
cooperation against internal and external threats to their values and
interests.
3. In that spirit, this
declaration establishes the parameters of an ambitious, broad, deep and
flexible partnership across trade and economic cooperation with a comprehensive and balanced Free Trade Agreement at its core,
law enforcement and criminal justice, foreign policy, security and defence and
wider areas of cooperation. Where the Parties consider it to be in their mutual
interest during the negotiations, the future relationship may encompass areas
of cooperation beyond those described in this political declaration. This
relationship will be rooted in the values and interests that the Union and the
United Kingdom share. These arise from their geography, history and ideals
anchored in their common European heritage. The Union and the United Kingdom
agree that prosperity and security are enhanced by embracing free and fair
trade, defending individual rights and the rule of law, protecting workers,
consumers and the environment, and standing together against threats to rights
and values from without or within.
Comment: Note the stress which
the revised political declaration places on an FTA.
4. The future relationship will
be based on a balance of rights and obligations, taking into account the
principles of each Party. This balance must ensure the autonomy of the Union’s
decision making and be consistent with the Union’s principles, in particular
with respect to the integrity of the Single Market and the Customs Union and
the indivisibility of the four freedoms. It must also ensure the sovereignty of
the United Kingdom and the protection of its internal market, while respecting
the result of the 2016 referendum including with regard to the development of
its independent trade policy and the ending of free movement of people between
the Union and the United Kingdom.
Comment: a mutual restatement of
‘red lines’ here: note that the UK government chose to refer to sovereignty,
the UK internal market, trade policy, and the end of free movement of people,
which is referred to again later on.
5. The period of the United
Kingdom’s membership of the Union has resulted in a high level of integration
between the Union’s and the United Kingdom’s economies, and an interwoven past
and future of the Union’s and the United Kingdom’s people and priorities. The
future relationship will inevitably need to take account of this unique
context. While it cannot amount to the rights or obligations of membership, the
Parties are agreed that the future relationship should be approached with high
ambition with regard to its scope and depth, and recognise that this might
evolve over time. Above all, it should be a relationship that will work in the
interests of citizens of the Union and the United Kingdom, now and in the
future.
Comment: the parties agree that
the UK’s prior membership of the EU is a ‘unique context’ for their relationship,
yet there are still parts of this text where the EU treats the UK like any
other non-Member State: as regards the single market (para 4) as well as security.
PART I: INITIAL PROVISIONS
I. BASIS FOR COOPERATION
A. Core values and rights
6. The Parties agree that the
future relationship should be underpinned by shared values such as the respect
for and safeguarding of human rights and fundamental freedoms, democratic
principles, the rule of law and support for non-proliferation. The Parties
agree that these values are an essential prerequisite for the cooperation
envisaged in this framework. The Parties also reaffirm their commitment to
promoting effective multilateralism.
7. The future relationship should
incorporate the United Kingdom's continued commitment to respect the framework
of the European Convention on Human Rights (ECHR), while the Union and its
Member States will remain bound by the Charter of Fundamental Rights of the
European Union, which reaffirms the rights as they result in particular from
the ECHR.
Comment: It is not clear how
exactly the UK’s commitment to the ECHR would be expressed in legal terms.
There is no explicit reference here to a legal commitment for the UK to remain
a signatory to the ECHR. However, there is stronger wording in para 81.
B. Data protection
8. In view of the importance of
data flows and exchanges across the future relationship, the Parties are
committed to ensuring a high level of personal data protection to facilitate
such flows between them.
9. The Union's data protection
rules provide for a framework allowing the European Commission to recognise a
third country’s data protection standards as providing an adequate level of
protection, thereby facilitating transfers of personal data to that third country.
On the basis of this framework, the European Commission will start the
assessments with respect to the United Kingdom as soon as possible after the
United Kingdom's withdrawal, endeavouring to adopt decisions by the end of
2020, if the applicable conditions are met. Noting that the United Kingdom will
be establishing its own international transfer regime, the United Kingdom will
in the same timeframe take steps to ensure the comparable facilitation of
transfers of personal data to the Union, if the applicable conditions are met.
The future relationship will not affect the Parties' autonomy over their
respective personal data protection rules.
Comment: the EU rules on data
protection law provide for the possibility of ‘adequacy decisions’ on the
transfer of personal data with non-EU countries. Without an adequacy decision
the transfer of personal data is harder, but not impossible. This point is
relevant not only to commercial transfers, but to security-related transfers.
There’s a limit on how much the EU can waive its standards, due to CJEU case
law enforcing the right to data protection in the EU Charter of Fundamental
Rights, and the likelihood that privacy activists will litigate if they believe
that standards have been compromised. I’ve discussed this issue in more detail here.
No deal comparison: The
Commission communication says that in the event of no deal, it will not
consider drawing up an adequacy decision regarding the UK. This will complicate
the transfer of data for both commercial and security-related reasons.
10. In this context, the Parties
should also make arrangements for appropriate cooperation between regulators.
Comment: the possibility of
international cooperation on data protection is provided for in Article 50 of
the GDPR (the EU’s General Data
Protection Regulation).
II. AREAS OF SHARED INTEREST
A. Participation in Union
programmes
11. Noting the intended breadth
and depth of the future relationship and the close bond between their citizens,
the Parties will establish general principles, terms and conditions for the
United Kingdom’s participation in Union programmes, subject to the conditions
set out in the corresponding Union instruments, in areas such as science and
innovation, youth, culture and education, overseas development and external
action, defence capabilities, civil protection and space. These should include
a fair and appropriate financial contribution, provisions allowing for sound
financial management by both Parties, fair treatment of participants, and
management and consultation appropriate to the nature of the cooperation
between the Parties.
Comment: The UK will participate
in current EU programmes until the end of the current EU budget cycle
(end-2020) under the transition period clauses in the withdrawal agreement (if
ratified). The EU’s financial programmes for the next EU budget cycle (2021-27)
are currently being negotiated among the EU27, and they will subsequently be
negotiated with the European Parliament. These programmes often allow for
participation for non-EU countries, on the conditions set out in the
legislation setting up the programmes; the details of those conditions are
being discussed during the negotiations. For instance, see Article 16 of the
latest draft of the proposed future
Erasmus programme. Note that para 11 refers to the conditions for non-EU
countries’ participation in the EU legislation, without suggesting that the UK
and EU will negotiate amendments to those conditions.
The frequent assertion
that ‘the UK will be cut out of EU research programmes/Erasmus/et al’
in future is not correct, as the declaration sets out a political commitment to
agree terms on the UK’s participation in such programmes, if the UK meets the
relevant conditions. It is true to
say that the UK’s participation in those programmes is not absolutely certain,
but there is no way it could be
certain at this point given the EU’s unwillingness and perceived legal
inability to negotiate a legally binding future relationship before Brexit day.
12. The Parties will also explore
the participation of the United Kingdom to the European Research Infrastructure
Consortiums (ERICs), subject to the conditions of the Union legal instruments
and individual ERIC statutes, and taking into account the level of participation
of the United Kingdom in Union programmes on science and innovation.
Comments: Non-EU countries can
participate in ‘ERICs’. The conditions for their participation are set out in
Article 9 of the Regulation
setting up the legal framework for ERICs.
13. The Parties recall their
shared commitment to delivering a future PEACE PLUS programme to sustain work
on reconciliation and a shared future in Northern Ireland, maintaining the
current funding proportions for the future programme.
Comments: The Commission has
already proposed
that this fund continue for the next EU budget cycle.
B. Dialogues
14. The Parties should engage in
dialogue and exchanges in areas of shared interest, with the view to
identifying opportunities to cooperate, share best practice and expertise, and
act together, including in areas such as culture, education, science and
innovation. In these areas, the Parties recognise the importance of mobility
and temporary movement of objects and equipment in enabling cooperation. The
Parties will also explore ongoing cooperation between culture and education
related groups.
15. In addition, the Parties note
the United Kingdom's intention to explore options for a future relationship
with the European Investment Bank (EIB) Group.
Comment: notice there is no firm
commitment to develop this relationship. The EIB has some links with non-EU
countries (see the ‘Global Player’ section of its 2017
activity report), but its main focus is the EU.
PART II: ECONOMIC PARTNERSHIP
I. OBJECTIVES AND PRINCIPLES
16. The Parties recognise that
they have a particularly important trading and investment relationship,
reflecting more than 45 years of economic integration during the United
Kingdom's membership of the Union, the sizes of the two economies and their
geographic proximity, which have led to complex and integrated supply chains.
17. Against this backdrop, the
Parties agree to develop an ambitious, wide-ranging and balanced economic
partnership. This partnership will be comprehensive, encompassing a free
trade area Free Trade Agreement,
as well as wider sectoral cooperation where it is in the mutual interest of
both Parties. It will be underpinned by provisions ensuring a level playing
field for open and fair competition, as set out in Section XIV of this Part. It
should facilitate trade and investment between the Parties to the extent
possible, while respecting the integrity of the Union's Single Market and the
Customs Union as well as the United Kingdom's internal market, and recognising
the development of an independent trade policy by the United Kingdom beyond
this economic partnership.
Comment: note the second
reference to UK trade policy here. Also note the revised political declaration
again stressing a ‘Free Trade Agreement’, although it is not obvious that there
is a change in meaning from ‘free trade area’.
18. The Parties will retain their
autonomy and the ability to regulate economic activity according to the levels
of protection each deems appropriate in order to achieve legitimate public
policy objectives such as public health, animal health and welfare, social
services, public education, safety, the environment including climate change,
public morals, social or consumer protection, privacy and data protection, and
promotion and protection of cultural diversity. The economic partnership will
recognise that sustainable development is an overarching objective of the
Parties. The economic partnership will also provide for appropriate general
exceptions, including in relation to security.
Comment: the deletion of this
provision reflects the change in the Northern Ireland protocol, which is no
longer a temporary backstop but a permanent arrangement in the revised
withdrawal agreement, although it is still possible to replace it.
II. GOODS
A. Objectives and principles
Comment: another reference to an
FTA in the revised political declaration; note no reference to the May
government’s objective of ‘frictionless’, and the deletion of ‘as close as
possible’.
Suggested amendment: to take
account of those in the UK who would like a closer relationship, this commitment
should be more open-ended in the event that UK ‘red lines’ change. Add an
additional sentence: ‘In the event that the UK Parliament
supports UK participation in the EU single market, the Parties will negotiate to
that effect.’
B. Tariffs
Comment: this text reflects the
definition of a free trade area in Article XXIV GATT, and the revised text
refers explicitly to an FTA, but oddly there is no specific reference to the
GATT. The revised text drops reference to a single customs territory and
accepts that rules of origin will exist. This is likely to increase costs and
checks.
Suggested amendment: to increase
the level of ambition and to take account of possible changes in the ‘red
lines’ (the Labour party position), the text could read: ‘The economic
partnership will ensure no tariffs, fees, charges or quantitative
restrictions….In the event that the UK Parliament supports the negotiation of a
customs union between the EU and the UK, the Parties will negotiate one.’
No deal comparison: in the
absence of the withdrawal agreement and a subsequent free trade agreement, UK
exports to the EU (and the other way around) will be subject to tariffs and
non-tariff barriers. Although some in the UK believe that EU non-tariff
barriers would violate WTO law, the EU takes a different view and intends to
apply such measures, according to the Commission’s no-deal
preparedness notices. The UK could challenge this in the WTO, but the WTO
dispute settlement system is currently not fully functioning.
C. Regulatory aspects
Comments: the WTO technical barriers
and SPS
agreements set out basic standards to reduce checks on products, but there
is a commitment to go further. The commitment to consider UK involvement with
EU agencies is weak: it refers to ‘cooperation’, not participation, and the
parties have only agreed to ‘explore the possibility’. Note that the EMA
Regulation has no provision for participation of non-EU countries; the ECHA
Regulation provides generally for their participation (with no details) in
its Article 106; and the EASA Regulation
provides either for limited technical cooperation with non-EU countries
(Article 90) or for full participation in the Agency (Article 129) – but on
condition that the non-EU country sign a treaty with the EU aligning to EU
aviation law.
Suggested amendments: the second,
third and fourth sentences are too weak: replace ‘should’ with ‘will’.
Comment: notice the deletion of
a reference to alignment. Absence of alignment will make it difficult to join
EASA, as the law stands.
D. Customs
Comment: note the addition of
references to VAT in the revised political declaration.
Suggested amendments: the second
and third sentences are too weak: replace ‘envisage making use’ with ‘will make
use’ and ‘intend to consider’ with ‘will agree’.
Comment: the revisions here
reflect the changes to the Northern Ireland protocol.
Suggested amendments: the text
is weaker than the backstop provisions of the withdrawal agreement. Add to the
end: ‘in order to replace the backstop in the withdrawal agreement as soon as
possible’.
E. Implications for checks and
controls
Comment: note the removal of a
reference to alignment of law in the revised political declaration.
Suggested amendments: the
possibility of considering a customs union should be referred to here as well.
III. SERVICES AND INVESTMENT
A. Objectives and principles
Comments: Some commentary on the
future relationship suggests that ‘it says nothing on services’, a vital part of
the UK economy, but this is false – even under the revised political
declaration. The UK and EU intend to agree free trade in services, which will
go beyond the basic provisions of the GATS (the services part of the WTO) – yet
fall short of participation in the EU internal market for services. Oddly, the
text of the political declaration does not refer explicitly to ‘free trade in
services’, so this might explain some of the confusion.
Article
V GATS is the provision providing for free-trade agreements in services. Unlike
above, there is an explicit reference to the relevant WTO rule. The language
here (‘substantial sectoral coverage’, ‘all modes of supply’, ‘absence of
substantially all discrimination’) is taken from that GATS Article and its
footnote.
The ‘modes of
supply’ in GATS are: Mode 1 (cross-border supply), Mode 2 (the customer moves),
Mode 3 (commercial presence, ie foreign investment and corporate service provision
via a subsidiary), and Mode 4 (supply of services by natural persons). (See Article
I:2 GATS). As for the list of services sectors, comparing the declaration
to the list used for GATS
classification, note that the declaration leaves out the audio-visual
sub-sector (it’s part of the ‘communications services’ sector, along with telecoms,
courier and postal services), the construction sector, the education and health
sectors, and tourism and travel. These might ultimately be covered by ‘other
services of mutual interest’, but it is notable that they are not referred to
at the outset. For a more detailed discussion of future UK/EU services trade
issues, see the report
by Sam Lowe.
Suggested amendments: the degree
of commitment should be strengthened, and the free trade intention should be
explicit. Replace ‘should aim at’ with ‘will negotiate a free trade agreement
on services, comprising’; replace ‘should’ with ‘will’ in the second sentence.
Comparison with no deal: if
there is no withdrawal agreement or free trade in services, the two sides will
fall back onto the more limited GATS commitments, entailing less provision of
services in either direction.
B. Market access and
non-discrimination
Comment: Market access (ie
removal of quotas, economic needs tests, caps on foreign investment et al) and
national treatment (ie treating foreign services and service suppliers equally
with their national equivalents) are concepts described in Article
XVI and Article
XVII GATS. The purpose of a free trade agreement in services is to remove
some of the restrictions on market access and national treatment which WTO
Members otherwise retain as regards some services.
Suggested amendments: the degree
of commitment should be strengthened. Replace ‘should’ and ‘would’ with ‘will’.
Comment: this reflects Mode 4 of
the GATS. It does not amount to free movement of workers in general, as
confirmed by the GATS Annex
on movement of natural persons supplying services. GATS
Article V bis refers to the possibility of labour market integration
agreements, but there is no suggestion of agreeing such an agreement between
the UK and EU in the text of the political declaration. Para 48 indicates that
the UK is not interested in an agreement on the free movement of persons in
general.
Suggested amendments: the degree
of commitment has to be strengthened,
as a free trade agreement omitting Mode 4 in services will not be consistent
with the GATS, as para 28 already points out. Amend to read: ‘In
accordance with Article V GATS, the arrangements will
allow for…’
C. Regulatory aspects
Suggested amendments: the degree
of commitment in the previous three paras is weak. Replace ‘should’ with ‘will’
throughout.
Comment: There is no reference
here to the concept of mutual recognition referred to in Article VII GATS, or
as provided for in some free-trade agreements like the recent EU/Canada
free trade agreement.
Suggested amendments: ‘The
Parties will also negotiate appropriate
arrangements for recognition of those professional qualifications
which are necessary to the pursuit of regulated professions, where in the
Parties' mutual interest.’
IV. FINANCIAL SERVICES
Suggested amendment: replace ‘should’
with ‘will’ in the first sentence.
Suggested amendments: replace ‘should’
with ‘will’ in the second and third sentences.
V. DIGITAL
Suggested amendments: replace ‘should’
with ‘will’ in paras 38-40.
VI. CAPITAL MOVEMENTS AND PAYMENTS
Comments: EU free trade
agreements usually provide for the free movement of payments related to
liberalised transactions, ie to ensure that goods and services moving in
accordance with the treaty can be paid for. Article
XI GATS sets out the same rule for payments related to services movements
covered by the GATS. It should be noted that Article
64 TFEU provides for the free movement of capital between the EU and non-EU
countries, subject to exceptions.
Suggested amendment: replace ‘should’
with ‘will’.
VII. INTELLECTUAL PROPERTY
Comment: it is usual for free
trade agreements to provide for intellectual property protection higher than
the level of WTO and other international treaties referred to here, but this is
sometimes controversial as some argue (for example) that this stifles
innovation and keeps drug prices high.
Comment: This refers to some
existing EU laws (on databases
and resale
rights; the UK was not keen on the latter law), but not others. Notably
there’s no reference to the Unified
Patent Court linked to EU law, one part of which is to be located in the
UK, although the UK’s withdrawal from the EU may arguably cause legal
complications for this plan. Since the EU is very keen to ensure that all free
trade agreements contain provisions for geographical indications, the UK should
not agree to commit itself on this issue unless the EU makes a significant
concession on an issue important to the UK.
Comment: This refers to the
question of whether once a product has been legally sold on the market by the
right holder, it can be sold again anywhere on the market by anyone. If it can,
this increases competition but reduces the de
facto protection for the rights holder. EU law currently has EU-wide
exhaustion, but not international exhaustion (see the CJEU’s Silhouette International judgment).
Suggested amendments: replace ‘should’
with ‘will’ in all the paras in this section.
VIII. PUBLIC PROCUREMENT
Comment: It’s not unusual for free
trade agreements to provide for additional access to public procurement. The
UK’s accession to the GPA has already been agreed
within the WTO.
Suggested amendments: replace ‘should
provide’ and ‘should also commit to’ with ‘will negotiate’ in the previous two
paras, and replace ‘should address’ with ‘will address’.
IX. MOBILITY
Comment: While the following
provisions, as well as the section above on free trade in services, deal with
the movement of people to some extent, this should not be confused with the free movement of persons with the EU,
which is not UK government policy.
Suggested amendment: replace ‘should’
with ‘will’.
Comment: The EU has adopted a
law on short-term visa-free travel for UK citizens visiting the EU after Brexit
(discussed here),
subject to reciprocity for all Member States by the UK (reflecting para 49).
Note that the reference here is to reciprocal matching domestic laws, not to a treaty on visa-free travel. EU practice
on this is mixed – it has treaties on visa-free travel with some countries
(such as Brazil),
but otherwise has matching reciprocity (with Japan, for instance).
Comment: The EU has not signed
any treaties on this form of movement with non-EU countries, but there’s no
explicit reference to a treaty here. It’s not clear what ‘agree to consider
conditions’ means. The reference to these four issues is perhaps because the EU
has a law partly harmonising admission of non-EU nationals for these four
purposes, which applied from spring 2018, replacing and amending previous EU laws
(see discussion of the newer law here). Since UK/EU relations are ‘unique’, there is
a case for negotiating on this issue; and Brexit supporters may wish to
consider whether they can offer something concrete (although falling short of
full free movement) to young people who largely reject their project.
The previous Prime
Minister appeared to suggest that the declaration could establish free movement
for these groups of people. This is false, since the conditions are stricter.
For instance, non-EU students do not have the right to equal treatment in
access to education and tuition fees, or family reunion, or to stay to work
after studies (the EU law on non-EU students says something on this
possibility, but it falls short of free movement). The EU law also limits how
much non-EU students can work while a student.
Suggested amendment: Amend to
‘…agree to consider negotiations on conditions…’
Comment: Again, there’s no
explicit reference to a treaty here, but it’s hard to see how social security
coordination can work without one. There are social security coordination
provisions in several EU association agreements, although a stand-alone treaty
on this issue should also be possible in theory. Notice the reference to future
movement, not future free movement of persons. Presumably the
reference to future movement is
because social security coordination for those EU and UK citizens who moved
before Brexit day (and before the end of the transition period provided for by
the withdrawal agreement) is regulated by the withdrawal agreement.
Comment: This refers to issues
such as the EU travel authorisation system, the EU entry-exit system (neither
of which is operational yet) and the use of fast-track lanes at external border
crossing posts. The commitment is to ‘explore the possibility’, not to ensure
the outcome. EU policy (as set out in the relevant legislation) is to
facilitate crossing only where the non-EU country concerned has agreed to free
movement of people with the EU. (See more on the EU travel authorisation system
here,
and on EU immigration law implications for UK citizens post-Brexit here).
Comment: The continuation of the
CTA has never been controversial. It is protected by the withdrawal agreement
and also by Protocols to the EU Treaties.
Comment: The reference here is
to international family law measures,
not treaties between the UK and EU.
However, the following paragraph suggests possible such treaties. (For
the EU ratification of the Hague Convention, see here).
Note that the UK can accede to the Hague Convention unilaterally, without
needing approval of the EU or the other parties to that treaty (see Article 60
of the Convention).
Comment: The commitment to
‘explore options’ does not indicate an intended outcome. The existing EU law
governing the two issues mentioned (which the UK has opted in to) is the Brussels
II Regulation. It was recently
amended. The UK also opted
in to the EU’s maintenance
Regulation, which goes beyond the Hague Convention mentioned in the
previous paragraph. The EU has not previously signed treaties with non-EU
countries on their participation in such EU laws.
Proposed amendments: the absence
of measures on this issue will complicate the lives of many ordinary people in
both the UK and EU, especially children. Suggest: ‘The Parties will
negotiate continued UK participation in EU judicial cooperation measures
on matrimonial, parental responsibility and maintenance
matters’.
Comment: the ‘nullify or impair’
language comes from the GATS Annex
on movement of natural persons supplying services.
X. TRANSPORT
A. Aviation
Comment: the commitment falls
short of UK participation in the European
Common Aviation Area (which is open to non-EU countries in Europe), which
would have entailed continuing to apply the status quo in terms of aviation
market access and aviation law. A separate agreement is likely to entail less
market access than at present.
Suggested amendment: replace
‘should’ with ‘will negotiate to ensure’; add sentence to the end: ‘If
agreed by the UK Parliament, the UK shall seek instead to retain its membership
of the ECAA, and the Parties will negotiate to ensure that continued membership’.
No deal comparison: the EU has
adopted a short-term
unilateral law on flights in the event of no deal. The preamble to this law refers to an intention to negotiate an aviation agreement with the UK after Brexit.
Comment: As noted above, full
participation in the EASA is conditional on signing up to EU aviation law,
implicitly as set out in the ECAA. Therefore it is unclear how far this
cooperation between aviation regulators can go.
Suggested amendment: Add
sentence to the end: ‘If agreed by the UK Parliament, the UK
shall seek instead to be a full participant in EASA, pursuant to its membership
of the ECAA.’
B. Road transport
Comment: The declaration
contemplates arrangements for both commercial drivers and private motorists,
but is not very clear about either.
Suggested amendment: replace
‘should’ with ‘will negotiate to ensure’ in both sentences.
No deal comparison: as with
aviation, there is a short-term
unilateral EU measure.
C. Rail transport
Suggested amendment: replace
‘should’ with ‘will’.
D. Maritime transport
Comments: the EMSA is open to
the participation of non-EU countries which apply EU maritime safety law (see
Article 17 of the EMSA
Regulation), but the declaration appears to consider a more limited
exchange of information instead. It might be questioned why the UK apparently
does not wish to seek full participation.
XI. ENERGY
A. Electricity and Gas
B. Civil Nuclear
Comment: Non-EU countries are
associated with Euratom and its research programmes, as I discuss here
(with further links).
Suggested amendments: replace
‘should’ with ‘will’ throughout para 66; para 67 to start ‘The Parties will
negotiate the UK’s association with…’
C. Carbon pricing
XII. FISHING OPPORTUNITIES
Comment: note that the EU has
exclusive external competence over fisheries conservation, meaning that as with
trade, EU Member States will negotiate as a bloc, through the EU, with the UK.
Comment: the ‘best endeavours’
wording echoes Article 184 of the withdrawal agreement. Note that the
transition period (as discussed here)
preserves the current shares of fishing quotas.
XIII. GLOBAL COOPERATION
XIV. LEVEL PLAYING FIELD FOR OPEN
AND FAIR COMPETITION
Comment: this was rewritten to
move the binding annexes to the Protocol on the Irish border backstop to the
non-binding political declaration. This move raised concern among those who
believe it indicates a risk of lowering standards as regards labour and
environmental law.
Suggested amendment: Add a final
sentence: ‘In particular, the future relationship treaty will include binding
rules to ensure that labour and environmental standards are not lowered’.
PART III: SECURITY PARTNERSHIP
I. OBJECTIVES AND PRINCIPLES
II. LAW ENFORCEMENT AND JUDICIAL
COOPERATION IN CRIMINAL MATTERS
Comment: There’s no legal
requirement on the EU to distinguish between non-EU countries which apply
Schengen and free movement of persons and non-EU countries which don’t, but it
reflects existing EU practice to have a closer cooperation on security with the
former countries – namely Norway, Iceland, Switzerland and Liechtenstein.
Comment: the revised declaration
drops explicit reference to the CJEU here. EU treaties with non-EU countries on
internal security do not require any non-EU countries to agree jurisdiction for
the CJEU, although in some cases there is a requirement to take account of
relevant CJEU case law and/or to hold discussions as to how to deal with a
divergence of case law if it happens. (For more details, see my blog
post on the prospect of a post-Brexit UK/EU security treaty). There is no
good reason to treat the UK any differently on this issue.
For more on
this issue see the recent report
from the House of Commons Home Affairs Committee, and the earlier report
from the House of Lords EU Committee (note that I was a special adviser to the
latter enquiry).
There is CJEU
case law on human rights protection as a condition for the application of EU
rules on criminal law cooperation – including as regards the UK in the run up
to Brexit (see discussion here).
Logically this must apply by analogy to non-EU countries. While the EU has
signed criminal law treaties with countries that have not signed the ECHR
simply because of geography (ie, the US and Japan), it is unlikely to be
willing to sign or keep in force treaties with European countries that have
denounced that Convention. There would be legal challenges if it did. Again, it
is not clear if a future relationship security treaty would directly require
the UK to remain a party to the ECHR, or rather provide for a review and/or
denunciation by the EU side if it did not.
As for
personal data, as noted above, see the comments on para 9 above.
A. Data exchange
Comment: the UK has signed up to
the EU law on PNR data.
However, the EU also has treaties with non-EU countries on this issue, which
have different systems for exchanging data. It is not clear whether the idea is
to retain UK participation in the EU law, or set up a separate arrangement.
Note that the CJEU has ruled that one of the EU treaties on PNR failed to
protect personal data rights sufficiently (see discussion here);
that treaty is now being renegotiated as a result.
The exchange
of national information on DNA, fingerprints and vehicle registration data within
the EU takes place on the basis of the ‘Prüm’ Decision
(which was named after the place where a previous treaty dealing with these
issues was signed). Although the text of the political declaration is not
explicit, presumably the idea is for the UK to keep applying this law as a
non-EU country. The EU already has a treaty
with Norway and Iceland which associates those countries with the relevant EU
law (another such treaty is being
negotiated with Switzerland and Liechtenstein). This treaty could easily be
adapted to apply to the UK (taking account of the fact that the UK already
applies the relevant EU law).
Comments: This paragraph
describes – but does not name – two EU laws in which the UK currently
participates – namely ‘SIS II’ (the second-generation Schengen Information
System) and ECRIS (the European Criminal Records Information System). The UK
has participated in SIS II since 2015 (see discussion here);
it also opted in to an updated
SIS II law, which was adopted
by the EU in 2018. The UK uses the SIS
II system frequently in
practice. To date, the only non-EU countries which the EU has agreed to
participate in this system are the four Schengen associated countries.
ECRIS was
initially set up on the basis of two EU laws: a Framework
Decision and a Decision.
These laws were amended and replaced by a Regulation
and Directive.
The EU has not previously agreed that any non-EU countries could be associated
with this law.
No deal comparison: if there’s
no deal, the UK will immediately lose any access to EU security databases and
frameworks for exchange of information (SIS II, ECRIS, PNR, Prum and others)
from Brexit Day.
B. Operational cooperation
between law enforcement authorities and judicial cooperation in criminal
matters
Comment: this is rather vague.
The terms of non-EU country cooperation with each agency are set out in the Europol
Regulation (Articles 22 and 25) and the Eurojust
Regulation (Articles 52-54 and 56) respectively.
Proposed amendment: replace the
second part with ‘…and will therefore negotiate the UK’s cooperation with
Europol and Eurojust on the basis of the relevant EU legislation’.
Comment: this provides for a
fast-track extradition treaty probably not with all the provisions of the European
Arrest Warrant (EAW), but that would remain to be seen. The EU has agreed
on a fast-track extradition
treaty which is very similar to the EAW with Norway and Iceland, which
comes into force on 1 November 2019.
Suggested amendment: The
commitment here is too weak. Replace ‘should establish’ with ‘will negotiate’.
No deal comparison: if there’s
no deal, the UK and the EU Member States will, from Brexit day, fall back upon
the Council
of Europe extradition Convention and its protocols, which provide for
slower and more complicated procedures than the EAW.
Comment: this lacks mention of a
number of measures, such as the European
Investigation Order on the transfer of evidence, the EU law on the transfer
of prisoners, and others. In some cases there is a Council of Europe
fallback, which is less far-reaching than its EU counterparts.
Suggested amendment: The level
of commitment and the content is too weak. Replace ‘should consider’ with ‘will
negotiate’, and add specific references to the transfer of evidence, the
transfer of sentenced persons and the freezing and confiscation of criminal
assets.
C. Anti-money laundering and
counter-terrorism financing
Comment: there’s no explicit reference
to EU
law on money laundering here, and it is not clear what legal form all this
will take.
Suggested amendment: Add to the
end: ‘They agree to negotiate any necessary measures to this end’.
III. FOREIGN POLICY, SECURITY AND
DEFENCE
Comment: It should be recalled
that Article 127(2) of the withdrawal agreement provides that a UK/EU foreign
policy treaty could be drawn up early, before the end of the transition period.
The declaration makes no specific reference to this possibility.
A. Consultation and cooperation
Comment: informal meetings are
usually held once every six months. Consultation at an infrequent informal
meeting is a marginal level of UK involvement. However, there is a less precise
reference to other dialogue at different levels.
B. Sanctions
Comment: The EU mainly adopts
financial ‘smart’ sanctions against companies or individuals linked to questionable
regimes. Since much of the assets concerned (and therefore the necessary
intelligence) are in the City of London, EU sanctions policy is weakened
without close UK links. The declaration is quite vague when addressing this
issue.
C. Operations and missions
Comment: the EU has such agreements
with several non-EU countries. The additional language added here in the
revised political declaration addresses frequent false claims that the
political declaration subordinates the UK military to EU defence cooperation, adding
to the previous reference to case-by-case participation to make explicitly clear
that the UK would be free not to participate in EU defence measures as a
sovereign non-EU State.
D. Defence capabilities
development
Comment: the EDA already has
such Administrative Arrangements with several non-EU countries.
The proposed
EDF for the next budget cycle provides for involvement of non-EU countries,
although only EEA States can participate without restrictions (the text is
being negotiated). As for PESCO, the decision
setting it up calls for general rules on limited participation by non-EU
countries (Article 9), which are due to be adopted soon (see also this press
story from October). Similarly with earlier paras on defence, the reference
to autonomy and freedom of action rebuts frequent false claims that the UK is
indefinitely subordinated to EU defence cooperation.
E. Intelligence exchanges
Comment: the Decision
setting up the EUSC provides for cooperation with non-EU countries (Article 20).
F. Space
Comment: this is an ironic
masterpiece of content-free drafting. While the European Space Agency is an intergovernmental
body separate from the EU, the EU has links with it and has a further space
policy, explained here.
This includes the ‘Galileo’ satellite project, which is the subject of a UK/EU
dispute about further participation; that may explain the drafters’ sarcasm.
G. Development cooperation
Comment: for an overview of EU
development policy, see here.
IV. THEMATIC COOPERATION
A. Cyber security
Comment: The Directive
on network information security provides for possible cooperation with non-EU
countries (Article 13). ENISA has become a ‘Cybersecurity Agency’: see the vague
provisions on cooperation with non-EU countries in the recently revised Regulation
establishing this agency (Articles 12 and 42).
B. Civil protection
Comments: the Civil
Protection Mechanism is open to the participation of non-EU European States
(besides EEA and EU applicant/candidate States) subject to negotiations on the
terms (Article 28).
C. Health security
Comments: the EU has a Health
Security Committee, which coordinates responses to health crises, including
with non-EU countries.
D. Illegal migration
Comments: links between non-EU
countries and Europol were discussed above. The legislation establishing the EU
borders agency, better known as ‘Frontex’, has recently been renegotiated (see text
here,
and discussion here
and here).
E. Counter-terrorism and
countering violent extremism
V. CLASSIFIED AND SENSITIVE
NON-CLASSIFIED INFORMATION
Comment: the EU has a number of
treaties with non-EU countries on the exchange of classified information. See a
list of them here.
PART IV: INSTITUTIONAL AND OTHER
HORIZONTAL ARRANGEMENTS
I. STRUCTURE
Comment: this provides for the
possibility of different dispute settlement rules, rather than one common
system.
Comment: by derogation from the
‘overarching’ framework referred to in the previous paragraph, this provides
for the possibility of stand-alone agreements, which would also have different
dispute settlement rules. This may be particularly relevant for foreign and
defence policy, where (as noted already) the withdrawal agreement already
provides for a separate treaty to be concluded even during the transition
period.
Comment: Article
217 TFEU provides for association agreements with the EU. They must be
approved by unanimous vote of the Member States and the consent of the European
Parliament, and usually (but not always) have to be approved by national
parliaments too. Their content varies widely; having an association agreement
does not mean that a State is an ‘associate member’ of the EU (in fact, there’s
no such concept). Implementing them does not necessarily require a unanimous
vote, as CJEU case law (discussed here)
has confirmed.
II. GOVERNANCE
A. Strategic direction and
dialogue
Comment: the ‘governance’
provisions are similar to those in other comparable EU agreements. For
instance, see Articles 119-125 of the EU/Serbia
association agreement. Note that the revised political declaration removes
the detail regarding summits and ministerial meetings. (The civil society
provision is not really new, just moved from another para.)
B. Management, administration and
supervision
Comment: Joint Committees are
common in international treaties, and indeed the withdrawal agreement provides
for one (Article 164). For another example, see Article 119 of the EU/Serbia
association agreement (in that case, known by the different title of
‘Stabilisation and Association Council’).
Comment: These are common provisions.
See, for instances, Articles 120 and 123 of the EU/Serbia association
agreement. The withdrawal agreement provides for a number of specialised
sub-committees (Article 165).
C. Interpretation
D. Dispute settlement
Comment: In the withdrawal
agreement, dispute settlement before the Joint Committee is the first recourse
(Article 169), but the political declaration refers to informal bilateral
discussions first. This has been strengthened in the revised political declaration,
which attempts to draw a clearer distinction between the dispute settlement
under the withdrawal agreement and under the future relationship.
Comment: Compare to Article 170
of the withdrawal agreement, which says that either side can send a dispute
settlement to arbitration if the Joint Committee does not settle it within
three months, and both sides could agree jointly to send the dispute to
arbitration before that point. Article 175 of that agreement equally provides
that arbitration decisions are binding.
Comment: Compare to Article 174
of the withdrawal agreement, which equally says (in a more elaborate form) that
the arbitrators must ask the CJEU to rule on interpretation of EU law, with a
review process if it does not. This is
necessarily a legal ‘red line’ for the EU side, as the case law of the CJEU
provides that only the EU courts can give an interpretation of EU law that
binds the EU institutions or Member States (see, for instance, Opinion 1/92). However, such
provisions may be less relevant under the future relationship than under the
withdrawal agreement, as the future relationship treaties may make fewer
references to EU law. The revised political declaration moves away from the
CJEU somewhat, but a complete break as regards interpretation of EU law is not
feasible.
Comment: This is less detailed
than the withdrawal agreement, which provides for a process to determine what
is a ‘reasonable period of time’ to comply (Article 176), then an arbitrators’
review of whether there was compliance (Article 177), then imposition of a lump
sum or penalty payment by the arbitrators for non-compliance (Article 178(1)),
then suspension of part of the withdrawal agreement or future relationship
treaty due to non-payment of the financial penalty or non-compliance with an
arbitration ruling (Article 178(2)). The revised text removes some of the
detail here, although the added reference to Article 179 of the agreement
covers review of retaliatory measures.
For anyone
inclined to think that this process is outrageous as compared to ‘WTO rules’,
note that it is in fact broadly similar to the way the WTO Dispute
Settlement Understanding works, in case of non-compliance with a ruling
finding breach of WTO law.
III. EXCEPTIONS AND SAFEGUARDS
Comment: there are national
security exceptions in the EU Treaties, WTO law, and free trade agreements, so
this is unexceptional (unless it is abused in practice, as Donald Trump is
allegedly doing).
Comment: free trade agreements
usually provide for economic safeguard exceptions; this is very similar to the
wording of Articles 112 and 114 of the EEA
treaty. There’s no mention of whether measures against dumping or subsidies
will be agreed. These are usually possible under the WTO and free trade
agreements; EU law and the EEA are notable exceptions, due to harmonisation of
State aid and competition law.
PART V: FORWARD PROCESS
Comment: this reflects the
wording of Article 184 of the withdrawal agreement, which provides that that UK
and EU must use their ‘best endeavours, in good faith and in full respect of
their respective legal orders, to take the necessary steps to negotiate
expeditiously the agreements governing their future relationship referred to in
the political declaration…and to conduct the relevant procedures for the
ratification or conclusion of those agreements, with a view to ensuring that
those agreements apply, to the extent possible, as from the end of the
transition period.’ Note that the wording of the political declaration here
assumes that the transition period will not be extended after the end of 2020.
Comment: this reflects the
wording of the preamble to the Irish border protocol to the withdrawal
agreement.
Comment: the revised political
declaration cuts out the preparatory phase of future relationship negotiations,
perhaps because a shorter gap is now foreseen between agreeing the withdrawal
agreement and its entry into force. Some of this text is moved to the new para
140 below.
Comment: Article
218 TFEU sets out the rules (for the EU side) on the EU negotiating and
approving treaties with non-EU countries. It’s significant that there’s a
reference to multiple agreements, and to negotiations in parallel, here. The text
is imprecise about when the EU will begin the formal process, and vague about
the negotiations.
Suggested amendment: ‘Immediately
after the UK’s withdrawal from the EU, the Union will
take the steps necessary to begin formal negotiations under Article
218 of the Treaty on the Functioning of the European Union (TFEU), and
it is envisaged that the Parties will negotiate in parallel…’
Comment: provisional application
of treaties with non-EU countries is allowed (and often used) under EU law,
even where treaties have to be ratified by Member States. This added wording
suggests greater haste giving effect to future relationship treaties.
140. With a view to providing a sound foundation for the talks on
the future relationship between the United Kingdom and the Union, both Parties
will expeditiously: a) identify those areas that are likely to require the
greatest consideration and the associated legal and technical issues that will
need to be addressed, in order that the necessary technical preparations can be
made on both sides; b) draw-up a full schedule for the negotiations, taking
into account relevant internal processes; and c) consider the logistical
requirements of the formal negotiations.
Comment: this new para takes up
some of the content in paras 141-3 of the previous version, which have been
deleted (see above).
Comment: meetings every six
months are no longer mentioned, but a high level meeting in June 2020 replaces
them.
If there is No Deal, could EU be sued for bad faith under WA Political declaration. UK Sovereignty,Parliament can legislate Bill like Int Market Bill and under "Miller" Act can further legislate to repeal Withdrawal Agreement. Studh57
ReplyDeleteThe UK could attempt to argue along those lines in a CJEU case (during the transition period) or an arbitration panel (after that point). Parliamentary sovereignty means that the UK Parliament can choose to breach international law, but the international treaty still remains legally binding - as the Miller judgment points out in para 55, treaties still bind the UK as a matter of international law https://www.supremecourt.uk/cases/docs/uksc-2016-0196-judgment.pdf
DeleteTo say that Parliament can 'repeal the Withdrawal Agreement' is therefore legal nonsense: it can vote to breach it as a matter of domestic law, but will still be bound under international law.
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