Professor Steve Peers,
University of Essex
Last week’s speeches on the UK’s
future relationship with the EU by Theresa
May and Boris
Johnson give us an opportunity to compare the tone, demeanour and content
of these two senior politicians. May’s tone was that of a head girl, while
Johnson’s was that of a giggling schoolboy. Her demeanour was that of a village
headmistress straightening the buntings at a school fair; his resembled a
colonial governor who couldn’t even be bothered to build a railway. And as for
content, she argued articulately for the UK to stay close to the EU, while he
argued inarticulately to get as far away as possible.
Unlike the EU27, the UK has not
yet engaged in the Brexit process in the form of tabling draft treaty texts. I
think it would be useful to do that, so in Annex 1 to this blog post I have
suggested a treaty text based on the content of Johnson’s speech, and in Annex
2 a draft treaty based on the content of the internal security part of May’s
speech. But before delving into the
legalese, let’s have a look at the content of each speech more broadly.
Theresa May’s speech on the security relationship
May’s speech builds on two previous
UK government papers on the ‘future partnership’ as regards police and criminal
cooperation and defence and foreign policy cooperation. I commented on those
papers here.
But she adds some additional points worth examining further.
As a starting point, both May and
Johnson are the wrong people to give their respective speeches – although for
different reasons. In May’s case, it’s because her starting point – to set
aside “rigid institutional restrictions or deep-seated ideology” – appears
hypocritical. Technically this initial point refers to both sides; but later on
in her speech she criticises the “political doctrine and ideology” of the EU27
alone.
The tone here is “we are devoutly
religious; you are idol-worshipping savages”. But while May – who was herself laying
down the holy writ of interpreting Brexit scripture ex cathedra not so long ago – has rightly been criticised for
hypocrisy here, she does have a point
about the EU27 side too. This speech could more credibly have been delivered by
someone non-partisan enough to point out that the plague of prioritising
ideology over pragmatism has infected both
these houses.
Internal security
Mrs May starts by referring to
terrorist atrocities across the EU, including the UK – although of course EU
measures in this field address many other crimes as well. She refers to the UK
opting back in to some pre-2009 EU legislation in this field in December 2014
(a process I discuss further here),
but not to opting in to some of the legislation adopted since 2009. But the
very existence of the opt in process (pre-2009 laws were subject to a British
veto and then the possibility of opt
out in 2014) refutes the argument (frequently made by some Brexit supporters)
that the EU laws in this field were somehow imposed upon the UK.
In more detail, she then refers
to cooperation via means not only of the European Arrest Warrant (a fast-track
extradition process) and the EU policing body Europol (as discussed in the
press), but also the transfer of criminal evidence by means of the European
Investigation Order (a 2014 law discussed here),
the Schengen Information System (the UK’s 2014 opt in to the policing and
criminal law aspects of this database are discussed here),
and passenger name data.
As she correctly notes, the UK is a “net contributor” of fugitives or police
information under at least some of these laws – although both sides benefit
from any increase in effectiveness of the criminal justice system in
cross-border cases that results.
As she notes, there’s no
precedent for a security relationship between the EU and a non-EU country that
“captures the full depth and breadth” of the existing relationship of the UK as
an EU Member State, although there were “comprehensive, strategic
relationships” in areas such as trade. If the “priority” becomes “avoiding any
kind of new cooperation” then security will be reduced.
So she proposes a new treaty that
“will preserve our operational capabilities” but also “fulfill three further
requirements”. First, it must respect “the sovereignty of both the UK’s and the
EU’s legal orders”. (She does not refer to any possible role for the UK’s
devolved governments here). While the UK will “respect the remit” of the ECJ
when participating in EU agencies, there must also be a “principled but
pragmatic solution” to respect the UK’s “unique status as a third country with
our own sovereign legal order”. (This sentence is weirdly exceptionalist:
surely all non-EU countries would
consider themselves to have a sovereign legal order). There will need to be
“independent dispute resolution” which both sides have “full confidence” in.
Secondly, there need to be data
protection safeguards, including a “bespoke arrangement” in this field,
involving a role for the UK’s data protection agency. Thirdly, the EU/UK
relationship has to be adaptable over time.
Let’s examine this part of the speech
more closely. As May says (and demonstrates by evidence), there’s certainly
value to the internal security cooperation between the UK and the EU27.
However, she doesn’t mention the human rights or sovereignty-based critiques
that are sometimes made against that cooperation. Rather her objective appears
to be keeping the content of that cooperation going, but with a different
institutional framework.
This leads to the first question:
what exactly does “preserve our operational capabilities” mean? I rather fear
that Mrs May would answer: ““Preserve our operational capabilities” means
“preserve our operational capabilities””. So let’s put the question another
way. Actually, there are a series of questions. Does the UK simply seek to
continue its participation in the EU measures it now takes part in? If so, does
it seek to participate in all of them or just some? If just some, which ones?
And does it seek amendment to any of them for the purposes of the future UK/EU
relationship?
In any event, Mrs May has correctly
identified a possible EU objection to her goals. So far the EU negotiation
guidelines do not say much about the future relationship in this area, besides:
“The EU stands ready to establish partnerships in areas unrelated to trade, in
particular the fight against terrorism and international crime, as well as
security, defence and foreign policy.” (para 22). However, the EU Commission
has made suggestions on the issue to Member States’ officials, in the process
of drawing up the EU’s position on this issue. In a series
of slides, the Commission has suggested that for future cooperation in this
area, the EU27 should only consider the more advanced model of cooperation
(including application of a number of EU laws) offered to the states associated
with the Schengen system (Norway, Iceland, Switzerland and Liechtenstein) or
the very limited cooperation offered to other states like the US and Japan
(such as modest improvements in extradition and transfer of evidence). Neither
model goes as far as May’s “preserve our operational capabilities” model (probably: again, that depends on what
that phrase means exactly).
Some readers might leap to the
Commission’s defence at this point. After all, the EU27 has said “no
‘cherry-picking’”! Except…it hasn’t
said that, in this area. The EU negotiation guidelines only state that position
in relation to single market issues. But
shouldn’t that same rule apply here anyway, for the sake of consistency? You
might think so, except in the area of external security (see below) the
Commission is quite happy to contemplate a bespoke arrangement. And in the area
of fisheries,
it strongly endorses it. The “no cherry picking” rule is thus a political
choice, which the Commission argues for in some areas, and argues against in
others. So why argue for it here?
Having said that, it would likely
have been easier for May to argue for building
on an existing model than to ask for a brand new one. Indeed, the draft
treaty I propose in Annex 2 does just that, adapting the text of the Schengen
association agreement between the EU, Norway and Iceland in various ways
which I explain further in the Annex. I chose this model (rather than, say, the
extradition
agreement between the EU, Norway and Iceland) because it’s the closest
thing to what May is asking for – continued association with a large and
evolving body of EU law, which does not
directly subject the non-EU states concerned to the jurisdiction of the ECJ. (If
you’re surprised by that last part, you have unfortunately fallen for the
“Remainer Euromyth” that any close association with EU legislation by a non-EU
country requires that non-EU country to be fully and directly subject to ECJ
jurisdiction).
It’s less politically and legally
complicated to ask for something based on existing model; such a treaty should
also take less time to draft. It would therefore be harder for the EU to reject
such a request. After all, the UK, like Norway and Iceland, applies the
Schengen rules relating to criminal law and policing. Of course, unlike them,
the UK does not apply the Schengen open border rules. But why should that
matter? We are talking about a treaty on criminal law and policing, not on
immigration law.
So why didn’t May request this?
It may because any reference to Norway would panic those hardline Brexit
supporters who would instantly think it referred to the EU/Norway trade
relationship, which they are critical of – or rather, which they have recently become critical of. (“Don’t
mention the Norway model!” I mentioned it once, but I think I got away with
it). But there are a variety of Norway models available: for instance, unlike
the EEA
treaty, which applies to trade between the EU and Norway, in this field there’s
no international court (the EFTA Court) which usually follows ECJ case law. (As
you can see in the Annex, though, a divergence from ECJ case law could
terminate the treaty with the Schengen
associates). Another model – which the
UK has already
agreed to – is the Lugano Convention on civil litigation, which entails
taking account of ECJ case law.
In this area, the “Norway model” could
equally be called the “Swiss model”, which would at least presumably attract
the support of the high-profile Brexiter Dan Hannan. But that would in turn
lead to a knee jerk objection from the EU27, which dislikes the EU/Swiss model
of many different treaties without a common institutional core, and is trying
to renegotiate it.
While some thought the Prime
Minister showed willingness to accept an ECJ role in her speech, her reference
to protecting the UK’s “sovereign legal order” and to “independent dispute
resolution” which both sides have “full confidence” in suggests otherwise.
However, the problem with demanding a new approach to dispute settlement in the
field is that it may violate an EU27 “red line” – in this case not a merely
political objection to “cherry-picking”, but the long-standing case law of the
EU Court of Justice.
Why is that? Well, let’s assume
that May’s desire to “preserve our operational capabilities” is indeed an
intention to apply EU legislation, or some large proportion of it, as such. One
day, despite an obligation to “take account” of ECJ case law (if agreed), the
courts in the UK decide not to follow a particular ECJ ruling – or a subsequent
ECJ ruling conflicts with a prior UK court ruling. The EU and the UK discuss
the divergence in case law, but can’t agree how to settle it. What next?
It might seem that the obvious way
to settle disputes like that is to create a joint EU/UK court with jurisdiction
to rule on them. But the Court of Justice has repeatedly said that having its
judges “double-hat” and sit on other courts interpreting EU law will violate
the Treaties (see Opinion
1/91).
OK, what about a court or
arbitration body which does not have
ECJ judges on it? In that case, the ECJ has said that such a court or body
cannot interpret EU law with binding effect for the ECJ and the other EU
institutions or EU Member States (see Opinion
1/92 and Opinion
1/00). You can call that “rigid institutional restrictions” or “deep-seated
ideology” if you like; but if you think about it for a moment, the ECJ’s
objection here is identical to Brexiters’ objection to the ECJ ruling on UK law. (And note that this case law can only be
overturned by Treaty amendment).
In any event, differences between
the UK and EU27 approaches to applying EU law in this area will lead to legal
challenges before national courts too. I can hear the cries of “scaremongering”
already: but in fact such challenges have already
been brought, just on the prospect
of Brexit happening. The Irish Supreme Court just agreed to refer the O’Connor
case to the ECJ, asking whether European Arrest Warrants issued by the UK still
have to be enforced by Ireland given that the UK will not definitely be
applying the EAW law after Brexit Day. The Supreme Court noted that there are
twenty other cases in Ireland alone raising the same point. And the Irish
courts referred a similar case to the ECJ on transferring
asylum-seekers to the UK months ago.
One way to address issues like
these (although it will not be sufficient by itself to address all divergence
issues) is to require the UK’s (and EU Member States’) compliance with the ECHR as a condition
of the future treaty. While states do extradite people to countries which
don’t apply the ECHR, the ECHR limits such decisions if human rights will be
breached (case law since Soering
v UK; and see also the Petruhhin
case from the ECJ). Any EU/UK treaty in this area would be based on a
high degree of mutual trust, which the ECJ has ruled is founded upon
ratification of the ECHR by the countries concerned, including non-EU countries
(see para 78 of the NS judgment). It therefore makes sense
for the treaty to spell out what would in any event be the nearly certain
outcome (at the hands of national and EU courts, and the EU institutions) if
the UK did want to denounce the ECHR.
Another aspect of human rights
conditionality in the future treaty can’t be avoided, as it is hard-wired into
the EU Charter of Rights as interpreted by the ECJ. That is the issue of data protection. Here there are two
basic models for non-EU countries: a) simply agreeing to apply EU data
protection law as such (as Norway and Iceland have done); or b) asking the EU
Commission for an “adequacy decision”, on the basis that the non-EU state’s
data protection law is broadly similar to EU law, to keep data flowing freely.
There can still be data transfers in the absence of an adequacy decision, but
they will likely be more complicated: see Articles 46 and 49 of the General
Data Protection Regulation (GDPR), which will govern this issue by Brexit
day.
Despite this, May’s speech refers
to a “bespoke” arrangement here, with no specific mention of an adequacy
decision. If this is only meant to refer to cooperation between UK and EU data
protection bodies, that should not be too difficult to agree (see Article 50 of
the GDPR on this point). But if she means that the EU should invent a brand new
model of accepting the compatibility of UK data protection law, such “Cakeism”
will not only be politically contested but also likely legally impossible.
Again, I hear distant cries of
“scaremongering”. But on this point there’s even existing case law, in which the ECJ insists on a significant degree
of similarity of a non-EU country’s data protection law before an adequacy
decision can be adopted. Since this case law is based on the EU Charter of
Rights, which has the “same legal value” as the EU Treaties (Article 6 TEU), it
is impossible to negotiate a way around it – unless May thinks that a “bespoke”
arrangement could involve the EU agreeing to amend the Charter at the behest of
a departing former Member State. (!)
Anyway, since May inists that the
UK matches the EU’s high standards on data protection, why should agreeing to
either of these models cause a problem?
It may be that she is aware of the genuine difficulty that UK law has
been found to breach EU law as regards mass surveillance. Inevitably this forces a difficult choice
between sticking close to EU law in the interests of preserving data flows, and
diverging significantly from EU law with the consequences that those flows will
be impeded. Again, though: in this field the EU’s “no cherry-picking” rule is
not just a (supposedly) good idea; it’s the law. (On all these issues, see my
discussion in The
Conversation – supplemented by posts from this blog on the subsequent Watson/Tele2
and EU/Canada
judgments).
External security
The foreign and defence policy
part of May’s speech begins by stating that the UK’s role in these areas was
never primarily focused on the EU, and that the UK will pursue “an independent
foreign policy” after Brexit. Those two assertions are somewhat contradictory
(if the UK’s foreign policy had little to do with the EU, wasn’t it
“independent” already?), and overlook the UK’s capacity to veto foreign and
defence policy measures as an EU Member State.
But May is nevertheless
interested in a post-Brexit security partnership which “respects both the
decision-making autonomy of the European Union and the sovereignty of the
United Kingdom”. She believes this can be agreed in 2019 already, during the
“implementation” (or transition) period, as the Commission has proposed (see
the draft text of the withdrawal agreement clauses on the transition period,
annotated here.
As I point out in that annotation, the Council – but not the Commission – is
also willing to consider an early treaty with the UK on internal security
issues). In her view, the UK is willing to work with the EU’s deeper
integration in this field, while strengthening NATO and other alliances.
The Prime Minister suggests a
focus on three areas. First, there should be regular diplomatic consultation on
joint challenges, as well as coordination of policy “where our interests
align”. In particular, she supports close cooperation on sanctions, rolling
over existing sanctions on Brexit and cooperating on future sanctions. Although
May doesn’t mention it, cooperation in this field is important because the UK
has a lot of the intelligence used to decide on sanctions, as well being the
location of a lot of assets held by those subject to such measures.
Second, she supports operational
coordination, with the UK possibly contributing to EU defence missions and
operations (as a number of non-EU countries do) as well as possibly
contributing to EU foreign aid programmes. However, in return the UK must “play
an appropriate role in shaping” the actions in such areas.
Third, the UK has a continued
interest in defence capabilities, particularly in staying in EU defence
industry measures like the European Defence Fund and European Defence Agency.
There also needs to be coordination in response to global cyber-attacks (May
mentions Russian attacks specifically) and cooperation in the space industry.
While May’s suggestions here are
inevitably less detailed (after all, she spent years as the Home Secretary, not
the Foreign or Defence Secretary), they seek to continue the UK’s current role
in the EU even more closely than her home affairs suggestions do. In principle,
there are fewer political and legal difficulties here. As noted above, the
Commission’s slides
suggesting options for the future relationship contemplate a possible bespoke
relationship between the UK and EU in this area already. Furthermore, there is
not as much of a complication relating to the role of the ECJ, as in this field
it essentially only has jurisdiction over sanctions issues (although since EU
sanctions law is often litigated, the supply of intelligence from the UK to the
EU on sanction ‘targets’ is likely to become a specific legal issue).
The biggest difficulties may
arise from the decision-making issue. Unsurprisingly, the EU Treaties give a
vote in EU decision-making institutions only to Member States. It should,
however, be possible to agree that the UK is consulted on EU measures (as with
the precedent of the Schengen association agreement) and in any event to
provide that the UK only contributes to those specific EU missions and
activities that it wants to contribute to.
The strongest reaction to this
part of the speech has come from those who think it is outrageous that the UK
retains any link to any EU defence measures. “This isn’t the
Brexit Putin was looking for!” Have those people been objecting to NATO – a
more advanced military alliance involving the UK and 22 of the same 27 EU
countries – for the last seventy years? Or does the adjective “European” induce
some sort of irrational phobia?
Conclusions
There’s a deal to be done on both
these aspects of security – although it would require both the Commission to
relinquish its self-appointed task as the keeper of the sacred flame of its invented
orthodoxy on internal security, and Mrs May to accept that there are more
constraints than she might like on her desire to remain closely aligned with
the EU in these field. But could May sell such a deal to those in her party who
might describe such an arrangement as suitable only for a “vassal state”?
Well, she could tell them what
she told the Munich conference: “We must do whatever is most practical and
pragmatic in ensuring our collective security”. And she could go on to tell
them to stick their “deep-seated ideology” where the sun don’t shine. In
practice, of course, she won’t say that – because she fears that they would
stick it between her shoulder blades instead.
And that brings us neatly to
Boris Johnson.
Boris Johnson’s ‘liberal Brexit’ speech
The purported point of Johnson’s
speech was to reach out to “Remainers”. But Johnson is manifestly the wrong
person for that job. First of all, he is the minister most closely associated
with the false statement about the amount of the UK’s budget contribution
during the referendum – and he has even doubled
down on this dishonesty since. You might as well send out an employee of
the St Petersburg Internet Research Agency to warn everyone against Twitter
bots.
Secondly, he is not even a
consistent supporter of the Leave cause, having made contrary
arguments on numerous occasions. Indeed, the only cause Johnson has
consistently supported is himself.
Thirdly, his speech does not
suggest any form of compromise, but essentially just repeats “we are right, you
should just agree with us”. But in that context, the speech serves the cynical
purpose of claiming “we reached out to them, and they’ve rejected us”, so setting
up a narrative of “bitter, angry Remainers” which has been duly played out in
the press since – see this rant about “rabid”
Remainers, for just one example. Of course, this ignores the endless angry
comments spewed in the other direction for months (“enemies of the people”, “crush
the saboteurs”, and so on). Johnson even starts that ball rolling himself, with
sneers in his speech at “elites” – although Alexander Boris de Pfeffel Johnson,
graduate of Eton and Balliol College Oxford, former London Mayor and now
Foreign Secretary, is about as “salt of the earth” as Marie Antoinette. (“Let
them eat cake – and I’ll have it too!”)
Now that we’ve seen that culture
war wood, let’s examine Johnson’s anemic trees. (Note that I’m using that word
“let’s” in the previous sentence to refer to a promise I will now keep, rather
than to issue an “invitation” which completely lacks sincerity). He constructs
three straw man arguments of Remainer concern – “strategic”, “spiritual” and
“economic” – and duly knocks them down.
On security, Johnson refers to UK defence spending, and briefly refers
to continued cooperation with EU foreign policy, particularly in the area of
sanctions. This compares poorly with May’s subsequent detailed comments, which
accept that treaties need to be negotiated, there are many other areas of
foreign policy and defence cooperation, and there are important internal
security issues as well. If Johnson were a comic book plot, he’d be a
continuity error.
On the spiritual issues, Johnson is not referring to faith but to culture.
He starts by reaffirming British internationalism; but this necessarily
concedes that such internationalism was not constrained, but rather flourished,
during the UK’s membership of the EU. His conception of international travel
consists mainly of sex tourism, stag parties and Spanish retirement. There’s no
mention of the many British families working in the EU – or the millions of
EU27 citizens in the UK, who are one of Remainers’ key concerns.
He’s got the details wrong too.
He refers to continued participation in Erasmus, but as I detailed here,
under current EU law, the only non-EU countries fully participating in Erasmus
are those who apply free movement rules or who are applying to join the EU. The
UK will be in neither category. And on Planet Johnson, cheap flights will just
continue as if they were a law of nature, not the consequence of thirty years
of EU aviation industry legislation which is linked (for non-EU countries) to
the continued application of EU law and partial jurisdiction of the ECJ (see
the European
Common Aviation Agreement).
His comments on retirees (“no
sensible reason why we should not be able to retire to Spain”) is a classic
example of what I call the “1973 reset” category of tropes. For many Western
European countries, 1973 began as the latest of many years of nearly full
employment, but ended with the first of many curbs on employment migration, as
the oil price surge resulting from a Middle Eastern war unfortunately upset
that pillar of post-war social democracy. Southern European countries were then
countries of net emigration, but have long since become countries of net
migration, and have changed their immigration laws to suit. For instance, for
non-EU retirees, Spain has a
higher financial threshold and lots of additional paperwork. (Of course, people
with Johnson’s level of wealth will never face many difficulties moving to any
country they might wish to go to).
Anyway, after a brief reverie
discussing the “Boris Bridge” to France, the “spiritual” bit of the speech
turns out mainly to consist of the Leave campaign’s sovereignty arguments. In
short, EU law is a complicated thing devoted to further integration. On the “complications”
point, I doubt many citizens are aware of the nuances of the process for
approving Statutory Instruments, the various categories of the (awkwardly
unelected) members of the House of Lords, or many other features of the British
constitution. The further integration point is true, but misleading: the UK had
an opt-out or a veto over many key aspects of EU integration (as discussed here),
so had struck a balance between its transactional interests in EU membership
and the more excitable visions of (some) Continental politicians.
Given that many argue that
there’s a sovereignty/economic tradeoff inherent in the Brexit debate, that
brings us to the economic issues in
Johnson’s speech. Except Johnson does not see any trade-off at all. He repeats
claims of extra spending available for public services, although economic
forecasts suggest a slower rate of growth (and therefore government revenues).
He vaguely hints that maybe low-skilled immigration cut wages, although
economic analysis does
not support that claim. Concerns about sovereignty, in his view, trump
economics – although “bear in mind that the economic benefits of membership are
nothing like as conspicuous or irrefutable as is sometimes claimed.”
This view is rather contradicted
by the prominent Conservative who claimed
five years ago that “I would vote to stay in the single market….I'm in favour
of the single market. I want us to be able to trade freely with our European
friends and partners." Awkwardly, the man making that statement was also
Boris Johnson.
How to explain his change of
view? Johnson quotes some estimates of the cost of EU regulation that he likes
– while avoiding any mention of his own government’s negative economic
forecasts of the consequences of leaving the single market. He states that the
UK has increased its trade with non-EU countries faster than it has to the EU.
Awkwardly, this simply contradicts the Leave trope that being an EU member
prevents the UK from increasing trade with non-EU countries.
There’s a broader misuse of
statistics here. Three issues are relevant when comparing the growth rates of
UK trade with the EU and non-EU countries: a) the relative share of the UK’s
existing trade links; b) the growth rate of trade; and c) the likelihood that
Brexit increases – or reduces – a) and b). Obviously the bigger the share of
existing trade links, the more important an increase or reduction in the growth
rate of trade with that partner (or indeed a fall in trade, ie negative growth)
is.
Johnson’s comments ignore points
a) and c) completely – except to the extent that they mislead about c): since the
UK already participates in the EU’s free
trade agreement with one country he mentions, South Korea, the likelihood
of Brexit greatly increasing trade with that country is limited. (And
awkwardly, UK exports to South Korea have shown the biggest increase of any
country which he mentions). The bottom
line is that the EU is the UK’s largest trading partner – so ignoring points a)
and c) as regards the EU means that Johnson fails to engage with Remainers’
main economic argument: that Brexit (and particularly leaving the single
market) is liable to reduce trade with our largest trading partner.
Johnson argues that it doesn’t
matter because global standards are important too, and the UK need only comply
with EU rules if its companies export to the EU – which is no “Eden of
uniformity” anyway. Let’s break this down further. In some areas global
standards are significant; but then the EU plays a role in negotiating them
too. But in some areas there is little or no global involvement, and the EU has
the biggest role in setting the rules. Awkwardly, May’s subsequent speech
“retconned” Johnson again by emphasising one such area: data protection.
Even more awkwardly, Johnson’s
own response to a question following the speech gives a further example,
suggesting excitement at the prospect of new UK regulations on organic carrots.
How exciting is this exactly? There is EU legislation
on organic food, but it makes no reference to international standards (except
as regards animal welfare). So the EU rules are the only show in town for
anyone exporting there. If UK farmers want to export organic carrots to the EU,
they will have to comply with identical or equivalent standards to the EU’s (see
Articles 32 and 33 of the law). It’s actually conceptually quite similar to the
data protection rules.
So there’s no chance of increased
sales to the EU as a result of changing UK rules. If anything, the reverse, if
changes in UK law mean that UK produce can no longer be labelled as “organic”
to justify a higher price for the EU’s supermarket shoppers. The UK could try
to sell more to non-EU countries, but does the EU law prevent that anyway?
As for the lack of detailed EU rules
in some areas, that’s true. (It’s
equally true that even such purely national laws can be challenged for breach
of Treaty free movement rules – if
you’re an exporter from a Member State).
But hold on: Johnson just told us that we must leave the EU because of the goal
of creating an “overarching European state”. So is the problem that the EU is
drunk with power – or that it can’t organise a p*ss-up in a brewery? It can’t
be both. The point is that for every dreamy Eurocrat dreaming Eurofederalist
dreams, there a dozen more who are focussing on helping farmers sell more
carrots.
Johnson refers to possible
changes to national laws on fisheries, live animal exports, agricultural
subsidies, VAT, planning, public procurement, environmental impact assessment, stem
cell technology, and financial services. Does EU law hold the UK back in each
of these areas? Only a specialist could answer (although the Commission has
recently proposed
to give Member States vastly more flexibility over VAT rates). What impact
would any of these changes have on trade – given that financial services are a
huge UK export? (Organic) crickets.
Conclusions
Johnson’s speech fundamentally fails
at its purported task because it does not really address the core of Remainers’
concerns about the post-Brexit UK: its relationship
with the EU. His speech is an argument to leave the European Union, not for
any particular future relationship with it. He ignores both specific issues (EU
citizens in the UK, and most notably the Irish border issue) as well as the
broader framework. He does mention Erasmus, flights and retirement; but he
glides over any possible problems by attaining ever greater heights of
glibness.
On the other hand, May’s speech
makes a pragmatic, detailed case about the future relationship. Rather than
reheat arguments about whether to leave, she presents a case for staying close
afterward. In this far less exciting – but infinitely more realistic – future,
the paradigm is not sexy time in Thailand, but turgid texts discussed by tired technocrats
in airless rooms. In comparison, Johnson’s enthusiasm is boundless, yet it is
equally aimless; and his conception of internationalism is in a world of his
own.
We will see which of these
visions dominates the UK’s future relationship with the EU.
Annex 1
The “Treaty of Boris”
[signed at Wiff-Waff, 1 April
2020]
[based on the content of Boris
Johnson’s speech]
Article 1
Yada yada yada
Article 2
*this space intentionally blank
Annex 2
The “Treaty of Paris”
[signed at Bataclan Theatre, 13
November 2020]
[based on the content of Theresa
May’s speech]
Article 1
The United Kingdom shall be
associated with the activities of the European Union in the field of judicial
cooperation in criminal matters and police cooperation.
This agreement creates reciprocal
rights and obligations in accordance with the procedures set out herein.
Based on Article 1 of the Schengen association agreement with Norway
and Iceland, but slightly more succinct (and not limited to Schengen-related
issues). The treaty would likely have a preamble, but I have omitted one for
the sake of brevity.
Article 2
1. The provisions of EU
legislative acts as listed in the Annex to this Agreement as they apply to the
Member States of the European Union, shall be implemented and applied by the
United Kingdom.
2. The acts and the measures
taken by the European Union amending or building upon the provisions referred
to in the Annex, to which the provisions set out in this Agreement have been
applied, shall, without prejudice to Article 8, be accepted, implemented and
applied by the United Kingdom.
3. The United Kingdom shall implement
and apply EU legislative acts in the field of judicial cooperation in criminal
matters and police cooperation other than those referred to in paragraph 2, if the
Mixed Committee so decides.
4. The Mixed Committee may decide
upon [amendments to the legislation listed in the Annex, as it applies to
relations between the European Union and the United Kindgom.
The first two paragraphs are based on Article 2 of the Schengen
association agreement with Norway and Iceland, but again slightly more succinct.
The Annex would consist or some or all of the EU laws in this field which
already apply to the UK, depending on what the two sides agree. The obligation
of the UK to sign up to amending measures in this area (Article 2(2)) would be
qualified by the ‘sovereignty clause’ in Article 8.
Paragraph 3 would allow the UK and the EU to add UK participation in
other EU laws in this field, subject to their joint agreement. Paragraph 4
would allow for amendments to EU legislation as it applies to the UK, if both
sides agree (the EU/Norway and Iceland extradition treaty is the precedent
here: it waives some of the rules in the EAW legislation). It would also be
possible to agree some amendments to EU legislation at the outset as regards
its application to the UK, and set those amendments out in the Annex too. In
that case, paragraph 1 would include the phrase (“…as amended in the Annex, as
regards their application to the UK”). It is presumed that EU data protection
would be listed in the Annex; in that case there would be no disruption to data
flows between the two sides. For technical reasons, the UK’s relationship with
EU bodies like Europol might need a separate treaty.
Article 3
1. A Mixed Committee is hereby
established, consisting of representatives of the government of the United
Kingdom, the members of the Council of the European Union, hereinafter referred
to as the "Council", and of the Commission of the European
Communities, hereinafter referred to as the "Commission".
2. The Mixed Committee shall take
decisions, as provided for in this Agreement, by consensus. It shall adopt its
own Rules of Procedure by consensus.
3. The Mixed Committee shall meet
at the initiative of its President or at the request of any of its members.
4. Subject to Article 4(2), the
Mixed Committee meets at the level of Ministers, senior officials or experts,
as circumstances require.
5. The office of President of the
Mixed Committee shall be held:
- at the level of experts: by the
representative of the European Union;
- at the level of senior
officials and Ministers: alternately, for a period of six months by the
representative of the European Union and by the representative of the
government of the United Kingdom.
Based on Article 3 of the Schengen association agreement with Norway
and Iceland, but with much wider powers for the Mixed Committee to act.
Article 4
1. The Mixed Committee shall
address, in accordance with this Agreement, all matters covered by Article 2
and shall ensure that any concern entertained by the United Kingdom is duly
considered.
2. In the Mixed Committee at the
ministerial level, the representatives of the United Kingdom shall have the
opportunity:
- to explain the problems they
encounter in respect of a particular act or measure or to respond to the
problems encountered by other delegations;
- to express themselves on any
questions concerning the development of provisions of concern to them or the
implementation thereof.
3. Meetings of the Mixed
Committee at ministerial level shall be prepared by the Mixed Committee at the
level of senior officials.
4. The representatives of the
governments of the United Kingdom shall have the right to make suggestions in
the Mixed Committee relating to the matters mentioned in Article 1. After
discussion, the Commission or any Member State may consider such suggestions
with a view to making a proposal or taking an initiative, in accordance with
the rules of the European Union, for the adoption of an act or measure of the
European Community or the European Union.
Essentially identical to Article 4 of the Schengen association
agreement with Norway and Iceland. Note that this proposal re-uses the
precedent of a non-EU country having a consultative role in EU discussions at
ministerial level, although this does not entail the power to vote in the
Council.
Article 5
Without prejudice to Article 4,
the Mixed Committee shall be informed about the preparation within the Council
of any acts or measures which may be relevant to this Agreement.
Essentially identical to Article 5 of the Schengen association
agreement with Norway and Iceland. Note that this proposal re-uses the
precedent of a non-EU country being informed of discussions in the Council.
Article 6
When drafting new legislation in
a field which is covered by this Agreement, the Commission shall informally
seek advice from experts of the United Kingdom in the same way as it seeks
advice from experts of the Member States for drawing up its proposals.
Essentially identical to Article 6 of the Schengen association
agreement with Norway and Iceland. Note that this proposal re-uses the
precedent of the Commission consulting a non-EU country when drawing up
proposals, although this would not entail the UK having an EU Commissioner.
Article 7
1. The European Parliament,
national parliaments of EU Member States, and the United Kingdom Parliament
shall establish an inter-parliamentary committee to discuss the subject-matter
of this Agreement. This committee shall establish its own rules of procedure.
2. When the topics discussed by
the committee fall at least partly within the competence of the devolved
parliaments and assemblies of the United Kingdom, the committee’s rules of
procedure shall provide for the participation of representatives of those
devolved parliaments and assemblies.
This replaces Article 7 of the Schengen association agreement with
Norway and Iceland, which referred to a separate treaty on asylum applications
– an issue not mentioned in the Prime Minister’s speech. Given that the role of
the European Parliament in this field is much greater since the Schengen
association agreement was agreed in 1999, a specific clause on this issue seems
desirable. It is useful to involve EU national parliaments too. The clause on
UK devolved assemblies and parliaments takes account of the devolution of power
in the UK.
Article 8
1. The adoption of new acts or
measures related to matters reffered to in Article 2 shall be reserved to the
competent institutions of the European Union. Subject to paragraph 2, such acts
or measures shall enter into force simultaneously for the European Union and
its Member States concerned and for the United Kingdom, unless those acts or
measures explicitly state otherwise. In this context, due account shall be
taken of the time indicated by the United Kingdom in the Mixed Committee as the
time necessary to enable the United Kingdom to fulfil its constitutional
requirements.
2. (a) The adoption of the acts
or measures referred to in paragraph 1 to which the procedures set out in this
Agreement have been applied, shall be notified immediately by the Council to the
United Kingdom. The United Kingdom shall decide independently whether to accept
their content and to implement it into its internal legal order. These
decisions shall be notified to the Council and to the Commission within thirty
days of the adoption of the acts or measures concerned.
(b) If the content of such an act
or measure can become binding on the United Kingdom only after the fulfilment
of constitutional requirements, the United Kingdom shall inform the Council and
the Commission of this at the time of its notification. The United Kingdom
shall promptly, and at the latest six months from notification by the Council,
inform the Council and the Commission in writing upon fulfilment of all
constitutional requirements. From the date laid down for the entry into force
of the act or measure for the United Kingdom and until the information upon
fulfilment of constitutional requirements, the United Kingdom shall
provisionally apply, where possible, the content of such act or measure.
3. The acceptance by the United
Kingdom of the content of acts and measures referred to in paragraph 2 shall
create rights and obligations between the United Kingdom on the one hand, and
the European Union and those of its Member States bound by those acts and
measures, on the other hand.
4. In case:
(a) the United Kingdom notifies
its decision not to accept the content of an act or measure referred to in
paragraph 2 and to which the procedures set out in this Agreement have been
applied; or
(b) the United Kingdom does not
make a notification within the thirty days time limit set out in paragraph
2(a); or
(c) the United Kingdom does not
make a notification within the six month time limit set out in paragraph 2(b)
or does not provide for provisional application as envisaged in the same
subparagraph from the date laid down for the entry into force of the act of
measure concerned for it;
this Agreement shall be
considered terminated, unless the Mixed Committee, after a careful examination
of ways to continue the Agreement, decides otherwise within ninety days.
Termination of this Agreement shall take effect three months after the expiry
of the ninety days period.
5. The Mixed Committee may decide
to settle the dispute by suspending the reciprocal application between the
parties of only some of the measures listed in the Annex. In that case, such
suspension shall take effect three months after the expiry of the ninety days
period referred to in paragraph 4.
6. The United Kingdom may notify
the European Union that where a new act or measure falls at least partly within
the competence of the devolved governments of the United Kingdom, the time
limits referred to in this Article may apply at different times for different
parts of its territory.
The United Kingdom may also
notify the European Union that where a new act or measure falls at least partly
within the competence of the devolved governments of the United Kingdom, paragraph
4 may apply only to parts of its territory. In that event, the Mixed Committee
shall decide on the termination or continuation of this Agreement pursuant to
paragraph 4, or partial suspension pursuant to paragraph 5, taking this
territorial distinction into account.
Paragraphs 1 to 4 are based on Article 8 of the Schengen association
agreement with Norway and Iceland, which includes a ‘guillotine clause’ for the
entire agreement if those countries refuse to accept an amending measure. Note
that as with the Schengen association agreement, it is open to the Mixed
Committee to keep the treaty in force even in the event of the UK not accepting
an amendment.
In light of the wider scope of this Agreement compared to the Schengen
association agreement, I suggest a more measured approach to possible
termination of the treaty, by explicitly providing for only partial termination
of the treaty as a remedy (paragraph 5). This is similar to the approach taken
to the EEA.
Paragraph 6 of the proposed clause takes account of the devolution of
power in the UK.
Article 9
1. In order to achieve the
objective of the Contracting Parties to arrive at as uniform an application and
interpretation as possible of the provisions referred to in Article 2, the
Mixed Committee shall keep under constant review the development of the case
law of the Court of Justice of the European Communities, hereinafter referred
to as the "Court of Justice", as well as the development of the case
law of the competent courts of the United Kingdom relating to such provisions.
To this end a mechanism shall be set up to ensure regular mutual transmission
of such case law.
2. Subject to the adoption of the
necessary modifications to the Statute of the Court of Justice, the United
Kingdom shall be entitled to submit statements of case or written observations
to the Court of Justice in cases where a question has been referred to it by a
court or tribunal of a Member State for a preliminary ruling concerning the
interpretation of any provision referred to in Article 2.
This is based on Article 9 of the Schengen association agreement with
Norway and Iceland. See comments on Article 11.
Article 10
1. The United Kingdom shall
submit reports annually to the Mixed Committee on the way in which its
administrative authorities and courts have applied and interpreted the
provisions referred to in Article 2, as interpreted by the Court of Justice, as
the case may be.
2. If the Mixed Committee, within
two months after a substantial difference in the case law of the Court of
Justice and the courts of the United Kingdom or a substantial difference in
application between the authorities of the Member States concerned and those of
the United Kingdom in respect of the provisions referred to in Article 2 has
been brought before it, has not been able to ensure the preservation of a
uniform application and interpretation, the procedure in article 11 shall
apply.
This is based on Article 10 of the Schengen association agreement with
Norway and Iceland. See comments on Article 11.
Article 11
1. In the case of a dispute about
the application of this Agreement or in a case where the situation provided for
in Article 10(2) occurs, the matter shall be officially entered as a matter of
dispute on the agenda of the Mixed Committee at ministerial level.
2. The Mixed Committee shall have
ninety days from the date of the adoption of the agenda on which the dispute
has been entered within which to settle the dispute. The Mixed Committee may
decide to settle the dispute by suspending the reciprocal application between
the parties of only some of the measures listed in the Annex.
3. In a case where the dispute
cannot be settled by the Mixed Committee within the period of ninety days
envisaged in paragraph 2, a further period of thirty days shall be observed for
reaching a final settlement.
If no final settlement is
reached, this Agreement shall be considered as terminated. Such termination
shall take effect six months after the expiry of the thirty day period.
This is based on Article 11 of the Schengen association agreement with
Norway and Iceland. Articles 9-11 strike a balance between judicial autonomy of
the Contracting Parties and the need to ensure consistent application. Rather
than Norway and Iceland being bound by ECJ jurisdiction as such, there is a
dispute settlement process in the event of divergent case law. In the event
that there is no political settlement to this dispute, the treaty is suspended.
As with Article 8, I suggest a more measured approach here given the wider
scope of the Agreement, providing for only partial termination as a remedy (Article
11(2), second sentence).
Article 12
1. As far as administrative costs
involved in the application of this Agreement are concerned, the United Kingdom
shall contribute to the general budget of the European Communities an annual
sum of: …
2. The United Kingdom shall have
the right to receive documents drawn up by the Commission or within the Council
pertaining to this Agreement.
This is based on Article 12 of the Schengen association agreement with
Norway and Iceland. The exact amount of the UK contribution would have to be
negotiated.
Article 13
1. This Agreement shall not
affect in any way any other agreement, or future agreement, concluded between
the United Kingdom and the European Union.
2. In accordance with the
Treaties establishing the European Union and the Withdrawal Agreement, this
Agreement shall not affect the Common Travel Area between the United Kingdom
and Ireland.
This is a more succinct version of Article 13 of the Schengen
association agreement with Norway and Iceland. Paragraph 2 replaces a reference
to the Nordic passport union in Article 13(3) of the other treaty by a
reference to the Common Travel Area between the UK and Ireland, which is
protected by Protocols attached to the EU Treaties. It is assumed that the
Withdrawal Agreement will also contain provisions on this issue.
Article 14
This Agreement [does] [does not]
apply to…
This is based on Article 14 of the Schengen association agreement with
Norway and Iceland. The issue of territorial scope will likely be relevant to
Gibraltar, the Channel Islands and the Isle of Man, and will have to be
negotiated.
Article 15
1. [same text for paras 1-3]
1. This Agreement shall enter
into force one month following the day on which the Secretary General of the
Council, who shall act as its depositary, has established that all formal
requirements concerning the expression of the consent by or on behalf of the
Parties to this Agreement to be bound by it have been fulfilled.
2. With respect to acts or
measures adopted after the signature of this Agreement but before its entry
into force, the period of thirty days referred to in Article 8(2)(a), last
sentence shall start to run from the day of entry into force of this Agreement.
This is based on Article 15 of the Schengen association agreement with
Norway and Iceland. Paragraphs 15(4) and (5) of that treaty are left out, as
they are not relevant here.
Article 16
1. This Agreement may be
denounced by the United Kingdom or the European Union. Such denunciation shall
be notified to the depositary. It shall take effect six months after
notification.
2. In the event that the United
Kingdom denounces the European Convention on Human Rights, this treaty shall
terminate on the date that such denunciation becomes effective.
In the event that a Member State
of the European Union denounces the European Convention on Human Rights, this
treaty shall terminate as between the United Kingdom and that Member State on
the date that such denunciation becomes effective.
Paragraph 1 is based on Article 16 of the Schengen association
agreement with Norway and Iceland. Paragraph 2 spells out the requirement that,
given the depth of the cooperation, the UK (and EU Member States) must continue
to apply the ECHR as a condition of the treaty staying in force. It is likely that
the EU would anyway seek to terminate the treaty if that occurred by using the
usual termination provision, but it is useful to spell this out.
Article 17
The consequences of denunciation
of this Agreement, or its termination, shall be the subject of an agreement
between the Parties. If no agreement can be reached, each Party will decide
upon the measures to be taken.
This is based on Article 17 of the Schengen association agreement with
Norway and Iceland.
Article 18
1. This Agreement replaces the provisions
of the Withdrawal Agreement relevant to judicial cooperation in criminal
matters and police cooperation, as from its entry into force pursuant to
Article 15.
This is based on Article 18 of the Schengen association agreement with
Norway and Iceland, but refers to the Brexit withdrawal agreement rather than a
previous treaty on association with Schengen which Norway and Iceland had
agreed.
I have omitted the boilerplate text and the end and the signatures. The
Annex listing which EU laws the UK is still associated with – and any possible
amendments – would have to be negotiated.
Barnard & Peers: chapter 24, chapter
25, chapter 27
Photo credit: Daily Express
