Extradition from Ireland to the UK after Brexit: the scope of EU powers

 

Professor Steve Peers, University of Essex

What are the legal implications of Brexit? This is a huge issue, with many different elements, but for the first time, the CJEU will soon be ruling on it – at least as far as the EU side is concerned – subsequent to the UK leaving the EU.

A recent CJEU Advocate General’s opinion suggests answers to fast tracked questions referred from the Irish Supreme Court (on appeal from the Irish High Court’s judgment), concerning extradition from Ireland to the UK under both the withdrawal agreement and the EU/UK Trade and Cooperation Agreement (TCA). The former treaty provides that the internal EU legal framework for simplified extradition – the European Arrest Warrant (EAW) law – still applied between the UK and EU during the transition period set out in that agreement, which lasted from 1 February 2020 to the end of that year. (As an exception, three Member States refused to hand over their own citizens, but Ireland was not one of them).

After that point, the separation provisions of that treaty applied: the EAW law still applies if a person was arrested on the basis of that law before the end of the transition period. If the EAW was issued before that date, but the fugitive was not arrested in time on the basis of the EAW law, the subsequent TCA provides that its extradition rules – which are similar, but not identical, to the EAW law – apply. (The TCA rules also apply to extradition requests first sent after the transition period ended, and the judgment in this case would also be relevant by analogy to those requests too).

The new case concerns two fugitives arrested in Ireland on the basis of British EAWs, who are challenging their extradition to the UK. Both EAWs were issued during the transition period, but one of them led to an arrest before the end of that period, hence the separation provisions kicked in, and the EAW law applies to the case. In the other case, the arrest took place after the end of this period, and so the TCA rules apply. The fugitive in the former case has already been convicted and sentenced to eight years in prison, whereas the fugitive in the latter case is subject to a pending prosecution for fourteen alleged criminal offences.

What's the legal issue? The two fugitives argue that they cannot be subject to these rules because even though Ireland agreed to both treaties in the EU Council, that country did not exercise a formal opt in as set out in the Justice and Home Affairs protocol relating to Ireland (and previously also applying to the UK) attached to the EU Treaties. If successful, their challenge could complicate not only extradition but other forms of criminal law cooperation between Ireland and the UK set out in the withdrawal agreement and TCA, in both directions (ie Irish requests to the UK too). It could also impact on criminal law cooperation between the UK and Denmark, which has a similar (but not identical) opt in protocol. (Criminal law cooperation would not entirely end, however, because there are other international treaties that would apply as a default, although they do not simplify cooperation as much as the treaties with the EU do).

The Advocate General’s opinion argues against the fugitives’ attempts to limit the scope of the treaties. First of all, she notes that prior CJEU case law on the competence to adopt EU laws (which extends equally to the competence to conclude international treaties) looks at the ‘predominant purpose’ of the act being adopted to determine what the competence to adopt it should be.

Applying that test to this case, in her view both the power to conclude the withdrawal agreement (Article 50 TEU) and the power to conclude association agreements (Article 217 TFEU, the legal basis to conclude the TCA on the EU side) are broad.

First, the Article 50 competence necessarily includes a wide scope of power to wrap up the legal relationship with the departing Member State, in particular as regards the separation provisions at issue in this case – although she also refers to broad powers over a transition period, during which these EAWs were issued (para 46):

To that end, as the Commission in particular explains, Article 50(2) TEU provides for the competence to conclude a single, comprehensive agreement, based on a single specific procedure, which encompasses all areas covered by the Treaties that are relevant to the withdrawal. Such an agreement covers the bringing to a conclusion of procedures conducted on the basis of EU law, which are ongoing at the time of withdrawal, as regards the withdrawing State. That requires detailed rules and arrangements in a vast number of different areas falling within the EU acquis. In order to ensure an orderly withdrawal in the interests of the European Union, its Member States and indeed the withdrawing State, those rules and arrangements may include transition periods during which, for limited periods after the withdrawal takes effect, EU law continues to apply to the withdrawing State.

While the rules in the withdrawal agreement ‘cover many different policies, including, in particular, the surrender regime in criminal cases’, and ‘[o]rdinarily, to conduct those policies the European Union would act under specific powers and would be required to respect restrictions on those powers, such as Protocol No 21’ (paras 49-50, footnote omitted):

However, in the light of the aim of the Withdrawal Agreement all of those specific policies are necessarily ancillary to the predominant overarching objective of providing a comprehensive regime for the transition from membership of the European Union to third-country status. This is an extremely broad objective in the sense that it must be possible for the measures required for its pursuit to concern a very wide variety of specific matters. Indeed, the agreement must be able to deal with the full range of matters covered by EU law.

This would have caused particular complications where the withdrawal agreement provided for powers exercised by unanimous voting, given that Article 50 foresees instead qualified majority voting in the Council to conclude such an agreement. In her view, this could not ‘be resolved by excluding from a withdrawal agreement matters requiring incompatible procedures because Article 50(2) TEU does not provide for any exceptions to the arrangements for a withdrawal’. More broadly, she justifies this interpretation by referring to ‘the exceptional situation of a withdrawal’: the UK example ‘has demonstrated’ that ‘such broad arrangements have to be made under intense political pressure and within a very short time frame’, and ‘[r]equiring unanimity in the Council or excluding certain matters from the general procedure would add complexity to that process and increase the risk that no agreement is reached’.

So the inclusion of specific rules on a subject cannot alter the characterisation of the agreement as a whole. Here the Advocate-General refers back by analogy to case law on development policy treaties (see discussion here), which has taken a similarly broad approach to the EU’s development policy powers, which can cover a wide range of issues that might be relevant to the development of non-EU countries. That case law has carved out an exception if the development policy treaties set out a specific obligation in a specific field which is distinct from development policy cooperation; but the opinion argues that even if that exception also applies to the Article 50 competence, these provisions of the withdrawal agreement do not go beyond the objective of securing an orderly withdrawal process. The attempted comparison with another Advocate-General’s opinion on the Istanbul Convention on violence against women (on which, see the discussion here) is wide of the mark, as the withdrawal agreement is obviously quite different from that treaty.

As for association agreements, relying on prior case law (for instance, Demirel), she argues that the power to conclude association agreements is also broad, encompassing special links between a non-EU country and the EU. Although the CJEU has pointed to specific legal competences applying within the framework of an association agreement, the Advocate-General correctly points out that this applies to measures implementing association agreements (referring to the judgment on social security and the association agreement with Turkey). As with Article 50 and development policy, she suggests that the power to conclude association agreements is a broad power encompassing many policy areas; and even if there is an exception relating to further concrete obligations in a specific field, it would again be irrelevant here because the TCA essentially continues the EAW system that previously applied between Ireland and the UK.

Comments

In principle it is too late now to prevent the conclusion of the withdrawal agreement or the TCA – unless time travel is possible. Perhaps people living in 2019 should be (should have been?) braced for an influx of (ex)Tory MPs hoping to prevent their past selves from voting for the same withdrawal agreement that now disgusts them: Owen Paterson driving up in a Randox-branded De Lorean, or a nudus Jacob Rees-Mogg telling a startled plebeian “I need your clothes, your boots and your penny farthing bicycle”.

But in a legal sense it is possible for a court to rule that the conclusion of a treaty (or the adoption of another legal act) was invalid from the outset, or at least (as in this case) that aspects of it have never applied – although it should be noted that the CJEU has in some cases limited the past effect of its judgments in such cases (cf Test-Achats). So even if the fugitives in this case were successful, the Court might take the view that the extradition provisions of the treaties still apply to Ireland on a provisional basis until the formalities of the opt in process are completed – which would seem likely in light of Ireland’s prior agreement to these agreements.

Is the analysis of the Advocate-General rejecting such arguments here convincing? On association agreements, the case law has indeed taken a broad view of their scope, with the guarantee for Member States in such cases consisting of the requirement for unanimity of Member States in the Council to conclude them. As for Article 50, the Wightman judgment of the CJEU has already interpreted that Article to provide for the ‘orderly withdrawal’ of a Member State – and the Advocate-General’s interpretation best reflects that interpretation.

While it does not necessarily follow from her analysis that the potentially permanent system set up by the Northern Ireland protocol is covered by the scope of Article 50 – as it goes beyond purely transitional or ‘winding up’ rules – her opinion points in that direction, referring to an ‘extremely broad’ power to address ‘the full range of matters covered by EU law’ via a ‘comprehensive regime’. If all that is needed is that a provision of the withdrawal agreement have a link with orderly withdrawal from the European Union, it is more easily arguable that the protocol satisfies that test.

Barnard & Peers: chapter 26

JHA4: chapter II:2, chapter II:3

Photo credit: diego_cue, via Wikimedia commons

Judicial Independence and the European Arrest Warrant. Systemic Challenges and Ways Forward

 

 

Dr Leandro Mancano, Senior Lecturer in EU Law, Edinburgh Law School

 

This blogpost is based on Leandro Mancano, ‘You’ll never work alone: A systemic assessment of the European Arrest Warrant and judicial independence’, in Common Market Law Review, Volume 58, Issue 3 (2021) pp. 683 – 718

 

Introduction

 

The European Arrest Warrant Framework Decision (EAW FD) has changed the landscape of inter-state cooperation in criminal matters within the EU (for its ‘external’ impact, see the Court of Justice’s judgments in Petruhhin – see discussion here – and IN).

 

The EAW implements the principle of mutual recognition in criminal matters. An arrest warrant issued by Member State ‘A’ (issuing state) and addressed to Member State ‘B’ (executing state) against person ‘X’ should be recognised and executed by the latter – with subsequent surrender of ‘X’ from ‘B’ to ‘A’ - without further formalities unless grounds for refusal apply. Automaticity in judicial cooperation rests on the principle of mutual trust: in this context, the rebuttable presumption that member states, save in exceptional circumstances, comply with fundamental rights. Unlike extradition, the EAW – and mutual recognition in criminal matters more broadly - place cooperation entirely in the hands of the judiciary.

 

Against that background, judicial independence represents a pre-condition for the healthy functioning of the mechanism. In a system operating on the basis that trust and surrender are the rule, the identification of the exceptions and their modus operandi is key to its proper understanding. The relentless undermining of judicial independence in Poland, perpetrated by the national government, has led – directly or indirectly – to the creation of a body of law on judicial independence in the framework of the EAW which has broad systemic implications. This blogpost explores the role and meaning of judicial independence in the EAW.

 

The Concept of Judicial Authority: Between Independence and Effective Protection

 

The multifaceted relevance of judicial independence in judicial cooperation begins – logically and chronologically – with issuance of the EAW. Firstly, there is the independent judicial supervision that must be guaranteed throughout the EAWs procedures – from issuing to execution - to ensure effective judicial protection. Secondly, there are the requirements that the issuing judicial authority must possess to issue a valid EAW.

 

Since an EAW must be based on a national arrest warrant (Article 8(1)(c) EAW FD), the effective judicial protection must be guaranteed during procedures related to both the (1) national, and (2) European, arrest warrants. The judicial authority competent to issue an EAW must review observance of the conditions necessary for the issuing of the warrant - including its proportionality. Such a level of protection must be ensured even where the EAW is based on a national decision delivered by a judge or a court. Where the EAW was issued by a judicial authority that is not itself a court or tribunal, that decision must be capable of being the subject to judicial review.

Public prosecutor can be considered judicial authorities – even though they are not courts or tribunals - as long as there are statutory rules and an institutional framework capable of guaranteeing their independence, and preventing their exposure to external directions. Even if the public prosecutor was exposed to the risk of instructions from the executive in the specific case at the basis of the EAW, the warrant could be validly issued in the presence of effective judicial supervision (see, by contrast, the approach taken in the case of the European Investigation Order). Such oversight, which could take the form of e.g. judicial review of the EAW decision, must be in place in the issuing State and activated before execution of the EAW.

 

The Exceptional Circumstances Doctrine: The Level of Probability Required by the Two-Step Test

 

The EAW FD mandates (Article 3) or allows (Article 4) the executing judicial authorities to refuse execution of the arrest warrant and surrender in certain cases. Most of these exceptions do relate to fundamental rights (e.g. ne bis in idem), but their wording clearly points to, for example, possible issues of coordination between different States’ laws. They are not concerned with a Member State’s systemic failure of fundamental rights protection. The suspension of the EAW vis-à-vis a Member State by the European Council is mentioned in recital 10 (non-legally binding) of the Framework Decision, and requires a finding of serious and persistent breach of the EU values. This reveals, perhaps, the EU legislature’s confidence in the Member States’ capacity for maintaining the rule of law standards required by EU membership. No specific or general clause is provided for in the text of the FD, allowing a national court to refuse surrender due to concerns related to the person’s fundamental rights in the issuing State.

 

Relying on Article 1(3) EAW FD, the Court has introduced a two-step test to challenge the presumption of mutual trust. The test was firstly devised in the context of inhuman and degrading treatments (see the judgment in Aranyosi and Căldăraru) and then applied to cases where the independence of the judicial authority issuing the EAW was in doubt. The Court found that, as a first step, the executing judge must verify the existence of systemic deficiencies, in the issuing State, of the right to an independent tribunal. Secondly, precise and specific elements must show that systemic deficiencies are liable to have an impact at the level of the State’s courts with jurisdiction over the proceedings, and substantial grounds must emerge for believing that the person will run a real risk, having regard to their personal situation, the nature of the offence involved and the factual context at the basis of the EAW (see judgment in LM, discussed here).

 

The test has been criticised because of its allegedly insurmountable nature, compounded by the Court’s recent ruling where it stated that systemic deficiencies alone do not constitute sufficient ground to refuse execution. The present author submits that, while not easily met, the standard of proof of the real risk must not be understood as near certainty. Semantic accuracy and the Court’s wording suggest that these two levels of probability not be conflated. Relatedly, the features that the evidence must possess (precision and specificity) must be understood together with the milder level of probability of the consequences attached to them (liable to impact the competent court). Furthermore, the areas from whence the substantial grounds must emerge (personal situation, nature of the offence, factual context) are indicative and not cumulative. The test is not as constrictive as it might seem, and the executing authorities have certainly leeway when assessing the real risk to the person’s right to an independent tribunal.

 

Conclusion

 

Judicial independence is the cornerstone of the rule of law and judicial cooperation in criminal matters, including the EAW. At the very least, independence must be guaranteed to the judicial authority which: supervises the issuing and executing EAWs procedures; has jurisdiction over the proceedings in the issuing State after surrender. On the one hand, the Court requires that independence of the issuing authority be protected by statutory rule and institutional frameworks, failing which an EAW cannot be validly issued. On the other, the ECJ distinguishes the latter scenario from lack of independence caused by systemic deficiencies in the issuing State, in which case the EAW is valid in principle and the executing court must carry out the two-step test to refuse surrender. The two situations might indeed be different and are to do with two different bodies (issuing v trying authority).

 

The Court’s approach is – if not justified – explained by systemic considerations. The tenability of the statutory rules/systemic deficiencies distinction might prove hard to uphold for much longer, however, and especially in a context where the undermining of judicial independence in Poland shows no signs of receding. A related issue, not yet brought to the fore but with the potential to shake things up, concerns the scenario where the supervising body in the issuing State is not adequately protected by statutory and institutional safeguards. These questions, jointly with the proper interpretation of the level of probability of the two-step test mentioned above, lie at the core of the EAW mechanisms and might be the protagonists of this existential saga on judicial independence and EU cooperation in criminal matters.

 

Barnard & Peers: chapter 25

JHA4: chapter II:3

Photo credit: Jebulon, via Wikimedia Commons

Analysis 3 of the Brexit deal: Human Rights and EU/UK Trade and Cooperation Agreement

Professor Steve Peers, University of Essex

Introduction

While the UK has left the European Union, its participation in the European Convention on Human Rights (ECHR) lives on. Yet although ECHR participation is separate from EU membership, there are links between human rights and EU law. Although those particular links have now ended for the UK, there is now a different set of links between human rights and the newly applicable Trade and Cooperation Agreement (TCA) between the EU and the UK.

This blog post examines those links, looking in turn at: (a) human rights conditionality in the TCA as a whole; (b) human rights conditionality in the criminal law part of the TCA; (c) the protection of social rights in the TCA; (d) data protection issues in the TCA; (e) the role of the courts on the EU side. There’s also a possibility for disapplying the services rules to a particular company covered by sanctions, including sanctions on human rights grounds (Article SERVIN.1.3), but I don’t look further at that in this blog post (although note that unlike some other issues discussed in this blog post, the normal TCA dispute settlement rules would apply to any disputes about such sanctions). (Update April 28, 2021: this blog post has been updated to refer to the final numbering of TCA Articles. It has retained the old numbering too, for the convenience of anyone used to using it).

This blog post is the third in the series of analyses of the TCA – following on from my overview of the TCA, and Professor Tamara Hervey’s analysis of the social security provisions. (Update: later blog posts cover dispute settlement and environment and climate change).

As a reminder, the TCA is a separate treaty from the withdrawal agreement, which continues to apply between the UK and the EU. The rules on termination or suspension of the TCA are quite different from those applicable to the withdrawal agreement (which I discussed here) – and not only as regards human rights issues.

Summary of this blog post

The general rules on human rights conditionality of the whole TCA allow it to be terminated or suspended (perhaps in part) on human rights grounds, but this is not automatic and is subject to a fairly high threshold.  For criminal law, there is a special form of fast track termination (if the UK or a Member State denounces the ECHR or some of its Protocols, including on the death penalty) or suspension. Again, this is not automatic. For social/labour rights, there are general rules which may lead to a panel report, but not retaliation, as well as a non-regression obligation, which can result in retaliation, most likely in the area of trade. For data protection law, there’s a short transition period where in principle the UK is covered by data protection law, following which much will depend on whether it has obtained a valid adequacy decision from the EU. Finally, the role of the courts in human rights disputes may be important too – most obviously as regards data protection adequacy decisions, where prior case law sets out the possibility to argue that a non-EU country does not meet the standards which it needs to meet to get one, but potentially in some other EU/UK human rights disputes too.

 

Human rights conditionality in the TCA as a whole

The starting point for human rights conditionality of the TCA as a whole is the ‘common provisions’ of the TCA (in Title II of Part Six). This begins with a dedicated Article on human rights:

Article 763 (previously COMPROV.4): Democracy, rule of law and human rights

1. The Parties shall continue to uphold the shared values and principles of democracy, the rule of law, and respect for human rights, which underpin their domestic and international policies. In that regard, the Parties reaffirm their respect for the Universal Declaration of Human Rights and the international human rights treaties to which they are parties.

The ECHR is not mentioned specifically, although it is, of course, one of the international human rights treaties which the UK is party to. There are subsequent Articles on climate change, weapons of mass destruction (WMDs), serious crime, counter-terrorism, data protection, and global cooperation. However, only the provisions on human rights, climate change and WMDs are then described by Article 771 (previously COMPROV.12) as constituting ‘essential elements of the partnership established by this Agreement and any supplementing agreement’.

The consequence of defining an issue as an ‘essential element’ of the TCA is that it is then subject to a special procedure in Title III of Part Six, potentially leading to fast-track termination or suspension of the entire agreement, partly or wholly:

Article 772 (previously INST.35): Fulfilment of obligations described as essential elements

1. If either Party considers that there has been a serious and substantial failure by the other Party to fulfil any of the obligations that are described as essential elements in Article 771 (previously COMPROV.12 [Essential elements]), it may decide to terminate or suspend the operation of this Agreement or any supplementing agreement in whole or in part.

2. Before doing so, the Party invoking the application of this Article shall request that the Partnership Council meet immediately with a view to seeking a timely and mutually agreeable solution. If no mutually agreeable solution is found within 30 days from the date of the request to the Partnership Council, the Party may take the measures referred to in paragraph 1.

3. The measures referred to in paragraph 1 shall be in full respect of international law and shall be proportionate. Priority shall be given to the measures which least disturb the functioning of this Agreement and of any supplementing agreements.

4. The Parties consider that, for a situation to constitute a serious and substantial failure to fulfil any of the obligations described as essential elements in Article 771 (previously COMPROV.12 [Essential Elements]), its gravity and nature would have to be of an exceptional sort that threatens peace and security or that has international repercussions. For greater certainty, an act or omission which materially defeats the object and purpose of the Paris Agreement shall always be considered as a serious and substantial failure for the purposes of this Article.

Note, however, that: a) it must be a ‘serious and substantial failure’ to fulfil obligations described as an ‘essential element’, further defined as a failure whose ‘gravity and nature would have to be of an exceptional sort that threatens peace and security or that has international repercussions’; b) denouncing the ECHR, or any other human rights treaty, is not explicitly mentioned in this context; c) suspension or termination is not automatic (a party ‘may decide’); d) there are procedural requirements, entailing at least a 30-day delay in any measures being taken while discussions are held; and e) there is an obligation of proportionality – which may mean that the complaining party stops short of terminating the entire agreement.

Moreover, either party may terminate the entire treaty anyway with twelve months’ notice, without having to give any grounds or go through any discussion process (Article 779, previously FINPROV.8).  So the ‘essential elements’ clause should be seen in that context – it’s a fast-track to termination (or suspension), but then termination would be possible anyway after a relatively short period if the threshold for fast track termination is not met. It should also be noted that similar clauses exist in other EU treaties with non-EU countries – and the EU is notably reluctant to trigger them. 

A final point: the provisions of Title II of Part Six are excluded from the dispute settlement process (see Article 735(2)(h), previously INST.10(2)(h)). This means that the substantive definitions of ‘essential elements’ of the TCA cannot be subject to dispute settlement. However, there is no exclusion from dispute settlement for Title III of Part Six – ie the provision on the process of deciding on suspension or termination of the treaty. 

 

Human rights conditionality in the criminal law part of the TCA

Part Three of the TCA, which comprises the rules on law enforcement cooperation, contains its own variation on an ‘essential elements’ clause (Article 524, previously LAW.GEN.3):

1. The cooperation provided for in this Part is based on the Parties’ and Member States’ longstanding respect for democracy, the rule of law and the protection of fundamental rights and freedoms of individuals, including as set out in the Universal Declaration of Human Rights and in the European Convention on Human Rights, and on the importance of giving effect to the rights and freedoms in that Convention domestically.

2. Nothing in this Part modifies the obligation to respect fundamental rights and legal principles as reflected, in particular, in the European Convention on Human Rights and, in the case of the Union and its Member States, in the Charter of Fundamental Rights of the European Union.

This Article tells us that Part Three of the TCA is ‘based on…respect for’ human rights, including the ECHR, as well as the ‘importance’ of giving effect to it domestically. Unlike the general provisions in the TCA, here we have an explicit reference to the ECHR.

However, these provisions, by themselves, do nothing. To assess the practical importance of human rights protection to the criminal law Part of the treaty we have to look at Part Three’s own termination clause (Article 692, previously LAW.OTHER.136):

1. Without prejudice to Article 779 (previously FINPROV.8 [Termination]), each Party may at any moment terminate this Part by written notification through diplomatic channels. In that event, this Part shall cease to be in force on the first day of the ninth month following the date of notification. 

2. However, if this Part is terminated on account of the United Kingdom or a Member State having denounced the European Convention on Human Rights or Protocols 1, 6 or 13 thereto, this Part shall cease to be in force as of the date that such denunciation becomes effective or, if the notification of its termination is made after that date, on the fifteenth day following such notification.

3. If either Party gives notice of termination under this Article, the Specialised Committee on Law Enforcement and Judicial Cooperation shall meet to decide what measures are needed to ensure that any cooperation initiated under this Part is concluded in an appropriate manner. In any event, with regard to all personal data obtained through cooperation under this Part before it ceases to be in force, the Parties shall ensure that the level of protection under which the personal data were transferred is maintained after the termination takes effect.

As we can see, either side has a general power to terminate Part Three specifically (leaving in place the rest of the treaty) with nine months’ notice. This differs from the twelve months’ notice as regards the general power to terminate the entire treaty. As with the termination clause relating to the entire TCA, the power to terminate Part Three is not limited to any specific grounds. However, unlike the general TCA termination clause, the Part Three termination clause includes a requirement (in para 3) to discuss the process of wrapping up proceedings which are underway, as well as a safeguard for the protection of personal data which was already transferred. (Update, 28 April 2021: the EU institutions will adopt a statement declaring their intention to use this clause).

Furthermore, Part Three has its own specialist version of the whole TCA’s ‘essential elements’ clause, which similarly provides for a form of fast-track termination (para 2).  Here, the termination of Part Three ends the moment that denunciation of the ECHR or one of the three protocols referred to by the UK or an EU Member State becomes effective – or, if denunciation has already happened, fifteen days after the notice to terminate Part Three. (Note that two of these three protocols concern abolition of the death penalty).

As compared to the whole TCA’s ‘essential elements’ clause, the Part Three fast-track termination clause: that: a) is not subject to the ‘serious and substantial failure’ threshold (or any other threshold above and beyond denunciation of the ECHR or its listed protocols); b) termination is not automatic (a party ‘may’: para 1); c) there are no procedural requirements to discuss the issue, just the requirement to discuss wrapping up proceedings already underway (which, in this context, would likely be affected significantly by the denunciation of the ECHR or its protocols); d) there is no obligation of proportionality; and e) there is no reference in this context to amending or scrapping domestic law giving effect to the ECHR – although of course the general Part Three termination clause could still be invoked in that event.

This is not the end of the matter, though, because the criminal law part also includes its own clause on suspension, as distinct from termination. (You will recall that the ‘essential elements’ clause applying to the entire TCA, discussed above, could be used for termination or suspension, in whole or in part). This is Article 693 (previously LAW.OTHER.137), which provides as follows:

1. In the event of serious and systemic deficiencies within one Party as regards the protection of fundamental rights or the principle of the rule of law, the other Party may suspend this Part or Titles thereof, by written notification through diplomatic channels. Such notification shall specify the serious and systemic deficiencies on which the suspension is based.

5. The Titles concerned by the suspension shall provisionally cease to apply on the first day of the third month following the date of the notification referred to in paragraph 1 or 2, unless, no later than two weeks before the expiry of that period, as extended, as the case may be, in accordance with point (d) of paragraph 7, the Party which notified the suspension gives written notification to the other Party, through diplomatic channels, of its withdrawal of the first notification or of a reduction in scope of the suspension. In the latter case, only the Titles referred to in the second notification shall provisionally cease to apply.

6. If one Party notifies the suspension of one or several Titles of this Part pursuant to paragraph 1 or 2, the other Party may suspend all of the remaining Titles, by written notification through diplomatic channels, with three months’ notice.

7. Upon the notification of a suspension pursuant to paragraph 1 or 2, the Partnership Council shall immediately be seized of the matter. The Partnership Council shall explore possible ways of allowing the Party that notified the suspension to postpone its entry into effect, to reduce its scope or to withdraw it. To that end, upon a recommendation of the Specialised Committee on Law Enforcement and Judicial Cooperation, the Partnership Council may: (a) agree on joint interpretations of provisions of this Part; (b) recommend any appropriate action to the Parties; (c) adopt appropriate adaptations to this Part which are necessary to address the reasons underlying the suspension, with a maximum validity of 12 months; and (d) extend the period referred to in paragraph 5 by up to three months.

8. If either Party gives notification of suspension under this Article, the Specialised Committee on Law Enforcement and Judicial Cooperation shall meet to decide what measures are needed to ensure that any cooperation initiated under this Part and affected by the notification is concluded in an appropriate manner. In any event, with regard to all personal data obtained through cooperation under this Part before the Titles concerned by the suspension provisionally cease to apply, the Parties shall ensure that the level of protection under which the personal data were transferred is maintained after the suspension takes effect.

9. The suspended Titles shall be reinstated on the first day of the month following the day on which the Party having notified the suspension pursuant to paragraph 1 or 2 has given written notification to the other Party, through diplomatic channels, of its intention to reinstate the suspended Titles. The Party having notified the suspension pursuant to paragraph 1 or 2 shall do so immediately after the serious and systemic deficiencies on the part of the other Party on which the suspension was based have ceased to exist.

10. Upon the notification of the intention to reinstate the suspended Titles in accordance with paragraph 9, the remaining Titles suspended pursuant to paragraph 6 shall be reinstated at the same time as the Titles suspended pursuant to paragraph 1 or 2.

Paragraphs 2 to 4 concern data protection, and so are considered separately in a later part of this blog post. Note that: a) there is a threshold of ‘serious and systemic deficiencies’ – which is similar, but not identical, to the general TCA ‘essential elements’ clause; b) suspension is not automatic (a party ‘may’: para 1); c) there are procedural requirements to discuss the issue, which include a power to amend Part Three temporarily or delay the suspension process; d) there is again a requirement to discuss wrapping up proceedings already underway (which, in this context, would again likely be affected significantly by the concerns about human rights); e) there is no obligation of proportionality; f) there is again no explicit reference to amending or scrapping domestic law giving effect to the ECHR – although it is obviously possible that such a development could in practice trigger concerns about ‘serious and systemic deficiencies’; g) suspension takes about three months to take effect, so is slower than the general TCA ‘essential elements’ clause; h) if one party suspends some of Part Three, the other party can suspend the rest of it in return; and i) there is provision to end the suspension if the ‘serious and systemic deficiencies’ have ‘ceased to exist’.

As with the general ‘essential elements’ clause, Part Three has somewhat contradictory rules on dispute settlement, which apply in place of the main dispute settlement rules (or any other dispute settlement process: Article 697, previously LAW.DS.3). However, these special dispute settlement rules don’t apply to the suspension or termination clauses (Article 696, previously LAW.DS.2). On the other hand, the substantive human rights grounds in Part Three (Article 524, previously LAW.GEN.3) can be subject to dispute settlement. So while dispute settlement for the general ‘essential elements’ clause is confusing because the process can be subject to dispute settlement while the substantive clause cannot, the Part Three dispute settlement process is confusing for precisely the opposite reason: the substantive clause can be subject to dispute settlement, while the procedural clause cannot.

In any event, the application of the Part Three dispute settlement rules to the substantive human rights clauses gets us to essentially the same place in the end: in the event that the purely political Part Three dispute settlement process does not lead to a conclusion, one party can suspend some of Part Three in more or less the same way as it can under Article 693 (previously LAW.OTHER.137), discussed above (see Article 700, previously LAW.DS.6).

Finally, it should be noted that Part Three contains a number of specific provisions on human rights relating to specific forms of law enforcement cooperation. For fast-track extradition, Article  604(c) (previously LAW.SURR.84(c)) provides that ‘if there are substantial grounds for believing that there is a real risk to the protection of the fundamental rights of the requested person, the executing judicial authority may require, as appropriate, additional guarantees as to the treatment of the requested person after the person’s surrender before it decides whether to execute the arrest warrant’. Note that this is not explicitly a ground to refuse extradition as such, but rather a possibility to request additional guarantees.

For freezing and confiscation of assets, Article 671 (previously LAW.CONFISC.16) provides that ‘[w]here there are substantial grounds for believing that the execution of a freezing or confiscation order would entail a real risk for the protection of fundamental rights, the requested State shall, before it decides on the execution of the freezing or confiscation order, consult the requesting State and may require any necessary information to be provided.’ This is a similar approach to the extradition clause.

Finally, as regards Europol, Article 570 (previously LAW.EUROPOL.52(3)), concerning ‘restrictions on access to and further use of transferred personal data’, provides (among other things) that ‘Each Party shall ensure, as far as possible, that’ information transferred under the Title of the treaty relating to Europol ‘has not been obtained in violation of human rights. Nor shall such information be transferred if, to the extent reasonably foreseeable, it could be used to request, hand down or execute a death penalty or any form of cruel or inhuman treatment.’

None of these special human rights exceptions are excluded from the rules on dispute settlement regarding Part Three of the TCA.

 

Protection of social rights in the TCA

The protection of social rights has two facets. First of all, the ‘non-regression’ clause relating to existing employment law (Article 386, previously 6.1 of the ‘level playing field’ rules), which applies to ‘labour and social levels of protection’, defined as including ‘(a) fundamental rights at work’ (along with ‘(b) occupational health and safety standards; (c) fair working conditions and employment standards; (d) information and consultation rights at company level; or (e) restructuring of undertakings’). A footnote confirms that this does not apply to social security or pensions, and Article 386(2) clarifies that, on the EU side, ‘“labour and social levels of protection” means labour and social levels of protection that are applicable to and in, and are common to, all Member States’.

Article 387(2) (previously 6.2) sets out the non-regression rule which applies:

A Party shall not weaken or reduce, in a manner affecting trade or investment between the Parties, its labour and social levels of protection below the levels in place at the end of the transition period, including by failing to effectively enforce its law and standards.

To enforce this non-regression rule, there is a special rule on dispute settlement (Article 389, previously 6.4): in place of the general dispute settlement rules, Articles 408-410, previously 9.1 to 9.3, of the level playing field provisions apply. (More about them in a moment).

The second set of relevant rules is found in chapter 8 of the level playing field provisions, on ‘Other instruments for trade and sustainable development’. The term ‘sustainable development’ here does not only refer to environmental law, though. The point of this chapter, according to Article 397(2) (previously 8.1(2)) of the LPF provisions, is to ‘enhance the integration of sustainable development, notably its labour and environmental dimensions, in the Parties' trade and investment relationship and in this respect to complement the commitments of the Parties under Chapter 6 [Labour and social standards] and Chapter 7 [Environment and climate].’ To that end, the parties ‘recall’, among other things, ‘the International Labour Organization (ILO) Declaration on Social Justice for a Fair Globalization, adopted at Geneva on 10 June 2008 by the International Labour Conference at its 97th Session (the “2008 ILO Declaration on Social Justice for a Fair Globalization”)’ (Article 397(1), previously 8.1(1)).

The key provision on labour standards in this chapter (Article 399, previously 8.3) refers expressly to social rights:

1. The Parties affirm their commitment to promoting the development of international trade in a way that is conducive to decent work for all, as expressed in the 2008 ILO Declaration on Social Justice for a Fair Globalization.

2. In accordance with the ILO Constitution and the ILO Declaration on Fundamental Principles and Rights at Work and its Follow-up, adopted at Geneva on 18 June 1998 by the International Labour Conference at its 86th Session, each Party commits to respecting, promoting and effectively implementing the internationally recognised core labour standards, as defined in the fundamental ILO Conventions, which are: (a) freedom of association and the effective recognition of the right to collective bargaining; (b) the elimination of all forms of forced or compulsory labour; (c) the effective abolition of child labour; and (d) the elimination of discrimination in respect of employment and occupation.

3. Each Party shall make continued and sustained efforts to ratify the fundamental ILO Conventions if they have not yet done so.

4. The Parties shall exchange information, regularly and as appropriate, on the respective situations and progress of the Member States and of the United Kingdom with regard to the ratification of ILO Conventions or protocols classified as up-to-date by the ILO and of other relevant international instruments.

5. Each Party commits to implementing all the ILO Conventions that the United Kingdom and the Member States of the Union have respectively ratified and the different provisions of the European Social Charter that, as members of the Council of Europe, the Member States of the Union and the United Kingdom have respectively accepted.

6. Each Party shall continue to promote, through its laws and practices, the ILO Decent Work Agenda as set out in the 2008 ILO Declaration on Social Justice for a Fair Globalization (the “ILO Decent Work Agenda”) and in accordance with relevant ILO Conventions, and other international commitments, in particular with regard to: (a) decent working conditions for all, with regard to, inter alia, wages and earnings, working hours, maternity leave and other conditions of work; (b) health and safety at work, including the prevention of occupational injury or illness and compensation in cases of such injury or illness; and (c) non-discrimination in respect of working conditions, including for migrant workers.

7. Each Party shall protect and promote social dialogue on labour matters among workers and employers, and their respective organisations, and with relevant government authorities.

8. The Parties shall work together on trade-related aspects of labour policies and measures, including in multilateral fora, such as the ILO, as appropriate. Such cooperation may cover inter alia: (a) trade-related aspects of implementation of fundamental, priority and other up-to-date ILO Conventions; (b) trade-related aspects of the ILO Decent Work Agenda, including on the interlinkages between trade and full and productive employment, labour market adjustment, core labour standards, decent work in global supply chains, social protection and social inclusion, social dialogue and gender equality; (c) the impact of labour law and standards on trade and investment, or the impact of trade and investment law on labour; (d) dialogue and information-sharing on the labour provisions in the context of their respective trade agreements, and the implementation thereof; and (e) any other form of cooperation deemed appropriate.

9. The Parties shall consider any views provided by representatives of workers, employers, and civil society organisations when identifying areas of cooperation and when carrying out cooperative activities.

Note that a footnote to para 5 clarifies the reference to the ILO Conventions and the Council of Europe Social Charter:

Each Party maintains its right to determine its priorities, policies and the allocation of resources in the effective implementation of the ILO Conventions and the relevant provisions of the European Social Charter in a manner consistent with its international commitments, including those under this Title. The Council of Europe, established in 1949, adopted the European Social Charter in 1961, which was revised in 1996. All Member States have ratified the European Social Charter in its original or revised version. For the United Kingdom, the reference to the European Social Charter in paragraph 5 refers to the original 1961 version.

But again, how does all this (including the extensive environmental provisions that accompany the labour commitments) get enforced? Again, the main dispute settlement rules don’t apply: instead the parties are subject to Articles 408 and 409, previously 9.1 and 9.2, of the level playing field provisions, in place of the general dispute settlement rules (Article 407, previously 8.11). But notice that unlike the non-regression rules, Article 410, previously 9.3, does not apply.  Let’s now see what that means in practice.

Article 408 (previously 9.1) states that the parties must enter into consultation, which may involve information from ILO bodies. Article 409 (previously 9.2) then provides for a panel of experts to be set up, if the consultations are not successful. These experts should also seek guidance from ILO bodies (para 6). The panel is to deliver a report, but para 9 of Article 409 is at pains to point out that this process is toothless:

For greater certainty, the Parties share the understanding that if the Panel makes recommendations in its report, the responding Party does not need to follow these recommendations in ensuring conformity with the Agreement.

Article 409(19) moreover applies some parts of the dispute settlement rules to these panels, but crucially not the parts dealing with remedies. More precisely, it provides that:

Except as otherwise provided for in this Article, Article 739(1) (ex INST.14(1) [Arbitration procedure]), Article 740 (ex INST.29 [Arbitration tribunal decisions and rulings]), and Articles 753 to 758 (INST.30 [Suspension and termination of the arbitration proceedings], Article INST.31 [Mutually agreed solution], Article INST.32 [Time periods], Article INST.34 [Costs], Article INST.15 [Establishment of an arbitration tribunal], or Article INST.28 [Replacement of arbitrators]) as well as Annexes 48 and 49 (previously ANNEX INST [Rules of Procedure for Dispute Settlement] and ANNEX INST-X [Code of Conduct for Arbitrators]), shall apply mutatis mutandis.

Having said that, it is possible that the panel process could have a political impact, as it might be useful for those objecting that the UK (or EU) was not upholding social rights to have a panel report in their favour that they could wave around.

More importantly, there is a key distinction between arguments over the sustainable development provisions – where the dispute stops here – and disputes over non-regression, where, as noted above, Article 410 (ex-9.3) also applies. Article 410 applies the same rules on panels of experts set out in Article 409, but then adds that:

2. For the purposes of such disputes, in addition to the Articles listed in Article 409(19) (ex-9.2(19) [Panel of experts]), Articles 749 and 750 (ex-INST.24 [Temporary remedies] and Article INST.25 [Review of any measure taken to comply after the adoption of temporary remedies]) shall apply mutatis mutandis.

3. The Parties recognise that, where the responding Party chooses not to take any action to conform with the report of the panel of experts report and with this Agreement, any remedies authorised under Article 749 (ex-INST.24 [Temporary remedies]) continue to be available to the complaining Party.

What does this mean in practice? Article 749 states that: a) the losing party must offer compensation if the winning party requests it (para 1); b) the winning party can suspend parts of the TCA if either it decides not to request compensation, or if discussions about compensation do not result in agreement (para 2); c) there are some limits on which provisions can be suspended (para 3); d) suspension must not exceed ‘the level equivalent to the nullification or impairment caused by the violation’ (para 5); e) suspension can relate to any part of the trade heading of the treaty (para 6); f) suspension can also relate to any other part of the treaty subject to the general dispute settlement rules, ‘if the complaining party considers that it is not practicable or effective to suspend obligations’ relating to trade, ‘and that the circumstances are serious enough’ (para 8, presumably still subject to the limits in para 3); g) suspension takes effect 10 days after notifying it, unless the losing party argues that it is disproportionate or in breach of the rules against cross-retaliation (para 10); h) this request delays the suspension until the arbitrators rule on this issue, which must be within 30 days (para 11); and i) suspension is ‘temporary’, lasting until the parties negotiate a solution, agree that the losing party has complied with its obligations, or the losing party has amended its law in order to comply with them (para 13).

What if the losing party claims that it has complied with the ruling, but the winning party does not agree? This is covered by the reference to Article 750, which provides that the losing party must notify any compliance measure to the winning party, which must end its retaliation within 30 days (para 1). If the parties do not agree that the losing party is now complying with the ruling, the winning party may request the arbitration panel to rule on this; the panel must rule within 46 days, and the retaliation must end if it agrees that the losing party is now in compliance (para 2). It is also possible that the losing party is partly in compliance, in which case the level of retaliation must be reduced. 

I’ve left out a discussion of what happens in the event of divergence following future developments in labour law (which the TCA refers to as ‘rebalancing’, because there’s no express mention of human rights in that context. Note, however, that this process is also subject to possible suspension of obligations, subject to special rules on arbitration and a different (higher) threshold to show that this divergence affects trade or investment (‘material impacts on trade or investment…arising as a result of significant divergences’).

 

Data protection issues in the TCA

The immediate starting point of the TCA on data protection is the further transition period (which calls itself a ‘specified period’) during which the UK is still covered by EU data protection law (Article  782, previously FINPROV.10A: note this is excluded from the dispute settlement rules). This period lasts for four months, but is extended to six months unless one of the parties objects (para 4), but can end earlier if the EU Commission adopts ‘adequacy decisions’ simplifying transfer of personal data to the UK on the basis of the GDPR or the law enforcement directive. It is subject to the UK retaining EU data protection law in force during this period (para 1), and not making certain changes to its law (listed in para 3) without the EU’s agreement.  If the UK breaches those terms, the transition period ends (para 5). The process of the EU agreeing to amendments is further spelled out.  

UK are adopted by the European Commission under Article 36(3) of Directive (EU) 2016/680 and under Article 45(3) of Regulation (EU) 2016/679, or (b) on the date four months after

After that point, the data protection rules in the criminal law part of the TCA become more relevant. Article 525 (ex-LAW.GEN.4), which is similar to the general provision on human rights and criminal law cooperation discussed above, provides that criminal law cooperation ‘is based on the Parties’ long-standing commitment to ensuring a high level of protection of personal data. A number of basic data protection principles are then spelled out, but the mechanism to enforce this is the suspension clause for the criminal law part, discussed above. It states that in the event that a data protection adequacy decision ceases to apply, or ‘[i]n the event of serious and systemic deficiencies within one Party as regards the protection of personal data’, it is possible for some or all of the criminal law part of the TCA to be suspended (Article 693(2), ex-LAW.OTHER.137(2)). The rules on suspension of the criminal law part on human rights grounds, discussed above, apply. (Update, April 28, 2021: the EU institutions will adopt a declaration addressing this issue).

Note that there are special provisions on suspension of exchanges of passenger name records (Article LAW.PNR 38) but in this case, suspension can be for any grounds, not only human rights or data protection grounds. Article LAW.PRUM.19 provides for a special suspension rule regarding DNA, vehicle and fingerprint data exchanges only in cases of divergence of legislation. The criminal law dispute settlement rules don’t apply to these suspensions.

Finally, the TCA does not appear to include any express provision dealing with what happens if the Commission does not adopt an adequacy decision within the data protection transition period. (Update, 28 April 2021: the Commission has announced its intention to adopt a draft adequacy decision).

 

Role of the courts on the EU side

The EU courts (and Member States’ national courts) have long had significant roles as regards the protection of human rights within the EU legal order. What role would they have under the TCA?

The first thing to point out is that they would not have any jurisdiction directly as far as the UK was concerned. Any disputes about the application of the TCA within the UK are up to courts in the UK to decide (with the exception of disputes about UK participation in EU funding programmes, such as the research funding legislation). However, EU or Member States’ court rulings could have some indirect impact on the UK – for instance, a ruling that some or all persons subject to UK extradition requests cannot be sent to the UK obviously has an impact upon the UK. (Likewise, UK court rulings applying the treaty could have an equivalent indirect impact upon the EU or individual Member States).

The second thing to point out is that, as observed at the beginning of this blog, human rights issues arise as regards the TCA in a different way than they arise within the scope of EU law as between EU Member States.  In particular, Article 7 TEU – which provides for an essentially political process of determining whether a Member State has seriously and persistently breached EU law (or runs a risk of doing so) does not apply. While the general rules of TCA human rights conditionality are very broadly comparable to Article 7 TEU, they are far from identical. (On the details of Article 7, see further here; on its relationship with ‘ordinary’ EU law, see discussion here).

What if the EU decided to terminate or suspend the TCA on general human rights grounds (the ‘essential elements’ clause)? The starting point is Article 218(9) TFEU, which provides for the suspension of treaties with non-EU countries by the Council, on the basis of a proposal from the Commission.  The European Parliament has no role, and the Council implicitly votes by qualified majority, as it is the default rule for Council voting. (The Council must be unanimous when signing or concluding association agreements, according to Article 218(8); but the reference to the ‘procedure’ there does not apply to para 9). There is, however, no express rule for terminating a treaty.

As for the specific human rights provisions of the TCA, the Council decision on signing the TCA provides that the Commission can take decisions to retaliate as part of the dispute settlement process – which would be relevant to some social rights disputes. The proposal to conclude the TCA provides for the same rule. There is no specific rule on terminating or suspending the criminal law part treaty on human rights grounds, so presumably Article 218(9) TFEU applies, at least as regards suspension. For data protection, EU Commission adequacy decisions can be reviewed via the national courts asking the CJEU questions about their validity – see most recently Schrems II, discussed here.

This well-trodden route to challenging a data protection adequacy decision might well be used again if the Commission adopted an adequacy decision for the UK. But it is an open question how other decisions to suspend or terminate the TCA (or parts of it) on human rights grounds might be challenged in practice. While the CJEU judgment in Racke said that national courts can ask the CJEU if it was valid for the EU to decide to terminate a treaty in light of international law, that  judgment was based on the treaty in question conferring rights on individuals – but this is ruled out for the TCA, except for social security and (on the EU side) the criminal law provisions.

Challenging an implied decision not to trigger suspension or termination might be even more difficult – although this may depend on whether EU trade remedies law is amended to allow unions and environmental NGOs to request the Commission to begin a dispute settlement process, which might mean that its refusal to do so could be challenged in the EU courts. Issues might also arise if the EU decides to end a suspension or retaliation.

It is also possible that national courts might start to come to their own conclusions about the human rights record of the UK (or conversely, courts in the UK might start to do so as regards the EU, or at least some of its Member States). To some extent, this possibility is accommodated by the possibility of asking for human rights safeguards in extradition proceedings, noted above. More broadly the question might arise if the CJEU’s unwillingness to suspend application of the European Arrest Warrant system on human rights grounds pending an Article 7 decision against a Member State (see the 2018 judgment discussed here, as confirmed in December 2020) applies by analogy to the TCA – given that, as noted already, Article 7 does not apply. Of course, the constraints of Article 7 no longer apply to the UK either.

 

Barnard & Peers: chapter 27

Photo credit: www.coe.int

Justice and Home Affairs in the future UK/EU relationship: analysis of the negotiation positions

Professor Steve Peers, University of Essex

The EU has now adopted its negotiation mandate for future relationship talks with the UK (discussed here). The UK has now done the same. Lots of commentators have looked in detail at the two sides’ approach to the future relationship on economic issues: this blog post aims to do the same on justice and home affairs issues (immigration, asylum, civil cooperation, judicial and police cooperation).

I’ve reproduced the full text of both sides’ positions side-by-side, thematically, with detailed commentary – plus links to relevant treaties and legislation.

Warning: this blog post criticises both sides where warranted. Supporters of Brexit probably already have my photo pinned to a dartboard; cheerleaders for every position the EU takes might now wish to do the same. In particular, the latter group of people really need to stop claiming that the UK must accept the CJEU’s jurisdiction for any treaty in this field, given that the EU has never insisted on any such thing for any other non-EU country.

In particular, the EU negotiation position for these talks is that in the event of disputes between the parties relating to EU law, the CJEU has to be the final arbiter. The EU has taken that position because the CJEU requires it – but we can find ways to avoid the situations in which the CJEU requires it, in particular by not referring to EU law as such, and/or avoiding a dispute settlement system which includes arbitrators that might be called on to interpret it. Indeed, the EU and other non-EU countries have found ways to do just that many times before, in all the areas covered by this blog post. If the EU doesn’t trust the UK, it will have the possibility to terminate or suspend the treaty if its concerns are confirmed in practice.

In some ways, this is an update of a previous blog post I wrote on the possibility of a security treaty between the two sides post-Brexit – although obviously events have moved on since then, which I have fully taken account of. Another background source is the House of Lords committee report on a future UK/EU security treaty (which I was a special adviser to).

Note that the withdrawal agreement already provides for the details of winding up the UK’s participation in these issues at the end of the transition period. In the event of future treaties on these issues, arguably the agreement’s Joint Committee can amend these provisions to suit (see Article 164(5)(d), giving it the power to amend the agreement ‘to address situations unforeseen when this Agreement was signed’).

Since there is a significant possibility that the UK/EU negotiations on economic relations will be about as successful as the recent Cats movie, a lot turns on whether there will be a separate treaty on this issue. This is an explicit demand by the UK side, although the EU position is vague. We can only speculate at this point whether a collapse of the economic talks would anyway scupper other negotiations on separate treaties for political reasons.

To ease comparison, the EU position is in italics throughout. The UK position is underlined. My commentary is in ordinary text. I have marked each point by a traffic light system to indicate my assessment of the likelihood of agreement as things stands: Green is more likely than not; Amber is possible, but complicated; Red is unlikely.

In an alternate universe, there’s an alternative Professor Peers, who has the technical ability to do more exciting things with a text; but we are all stuck in this universe.  

Civil cooperation

59. In areas not covered by existing international family law instruments and taking into account the United Kingdom's intention to accede to the 2007 Hague Maintenance Convention, the Parties should explore options for enhanced judicial cooperation in matrimonial, parental responsibility and other related matters.

64. The UK proposes continuing to work together with the EU in the area of civil judicial cooperation through multilateral precedents set by the Hague Conference on Private International Law and through the UK’s accession as an independent contracting party to the Lugano Convention 2007.

Amber. The Hague Conference is an international process to draft treaties (among other things) facilitating civil judicial cooperation worldwide. The EU as such is a member alongside its Member States, and has signed up to some of the relevant treaties, including the 2007 Hague Maintenance Convention. (the UK’s ratification is planned for the end of the transition period: see these declarations).  The EU has gone further than the Hague Conference on some civil law issues, by adopting legislation going into more detail on civil jurisdiction (which country’s court has jurisdiction over a cross-border dispute), conflict of law (which country’s law applies in a cross-border dispute; this does not necessarily match the court with jurisdiction), and recognition of judgments as between countries (ie how an American judgment might be enforced in Japan). The Lugano Convention is a treaty copying the text of general EU law on civil jurisdiction and recognition of judgments as it stood in 2007 (it was amended in 2012) and extending it to Norway, Iceland, and Switzerland.

The EU refers specifically to family law, apparently contemplating specific arrangements, while the UK refers generally to the Hague Conference and more precisely to the Lugano Convention. There’s a specific process for signing up to that Convention, in Articles 70 and 72. For a country not part of the EU and EFTA, as the UK will be, it needs the unanimous consent of the existing Contracting Parties. The EFTA States have already supported the UK’s accession; it remains to be seen what view the EU will take. The existing parties ‘shall endeavour to consent’ to the request for accession within a year after they agree to it. As part of the accession request, the applicant country must, among other things, supply ‘information on the appointment and independence of judges’.

Note that although the Lugano Convention copies an EU law text, it does not give the CJEU jurisdiction over the treaty as regards non-EU signatories. Rather Protocol 2 to the Convention says that the parties shall give ‘due account’ to each other’s court’s judgments, including the judgments of the CJEU. There is a system for discussing divergences in interpretation of the Convention, but this does not include any binding dispute settlement – therefore no arbitrators who might be called upon to ask the CJEU how to interpret EU law. Note that the UK’s intention to sign up to the Convention indicates that this does not violate the UK’s ‘red line’ objections to CJEU jurisdiction, presumably because it does not involve jurisdiction for the CJEU or provide for arbitrators to refer questions to the CJEU in the event of a dispute. Equally we can deduce it doesn’t violate EU ‘red line’ objections either – given that the EU signed up to the Convention already.

There’s also no ‘dynamic alignment’, ie no obligation to keep up with changes in EU law. Indeed, the 2012 amendment of EU law did not affect the Convention, which still reflects the EU law on this issue adopted in 2001.

In order to move things forward, the UK would have to apply as soon as possible to sign up to the Lugano Convention. If the EU wants to continue cooperation on family law it should table a text soon. Copying the existing EU law texts into a separate treaty, following the format of the Lugano Convention, would be the easiest way forward. As explained above, the Lugano Convention does not breach the UK’s red lines. 

Immigration and asylum

145. The envisaged partnership should envisage cooperation to tackle irregular migration of nationals other than those of the Parties, including its drivers and consequences, whilst recognising both the need to protect the most vulnerable and the United Kingdom’s future status of a non-Schengen third country that does not provide for the free movement of persons. This cooperation should cover: a) cooperation with Europol to combat organised immigration crime in line with arrangements for the cooperation with third countries set out in the relevant Union legislation; b) a dialogue on shared objectives and on cooperation, including in third countries and international fora, to tackle irregular migration upstream.

54. The UK has made a specific commitment to seek to negotiate a reciprocal agreement for family reunion of unaccompanied children seeking asylum in either the EU or the UK, with specified family members in the UK or the EU, where this is in the child’s best interests.

55. Beyond this, the UK is open to an agreement regulating asylum and migrant returns between the UK and the EU, or alternatively with individual Member States, underpinned by data sharing, to help counter illegal migration and deter misuse of our asylum systems.

Red. The EU seems to be interested in operational cooperation in this area, while the UK wants to negotiate on unaccompanied children seeking asylum, and is also open to a broader arrangement on ‘asylum and migrant returns’ either with the whole EU or individual Member States. The CJEU has not clarified whether this is an issue within EU exclusive competence (ie Member States can’t sign treaties with non-EU countries) or not. The European Parliament also supported the idea of a treaty in this field (para 61 of its resolution on the future relationship), but it is not the negotiator.

In order to move this issue forward, the UK should table a text in this area as soon as possible. If the EU is not interested, the UK should adapt that text into a model treaty with individual Member States and table it to them. NGOs interested in asylum issues should do their best to encourage interest on the EU side.

It is sometimes suggested that the EU should only sign treaties on asylum responsibility with non-EU countries which have signed up to Schengen. But as discussed below, the ‘signed up to Schengen’ rule is not consistently applied by the EU in these negotiations. And frankly, it is not defensible to prioritise an arbitrary and incoherent ‘rule’ above the family unity of vulnerable unaccompanied children seeking asylum.

Note that the EU’s treaties in this field do not require the non-EU country to accept CJEU jurisdiction. For instance the treaty with Norway and Iceland refers to an exchange of case law, political dispute settlement, and the possible termination of the treaty.

56. Mobility arrangements, including on visa-free travel for short-term stays, in the envisaged partnership should be based on non-discrimination between the Union Member States and full reciprocity.

57. The envisaged partnership should aim at setting out conditions for entry and stay for purposes such as research, study, training and youth exchanges.

58. The envisaged partnership should address social security coordination.

60. Any provisions should be without prejudice to the Common Travel Area (CTA) arrangements as they apply between the United Kingdom and Ireland, as referred to in Article 38(2) of the Withdrawal Agreement and in Article 3 of the Protocol on Ireland/Northern Ireland.

17. Social security coordination can remove barriers and support mobility of labour between countries. Arrangements that provide healthcare cover for tourists, short-term business visitors and service providers, that allow workers to rely on contributions made in two or more countries for their state pension access, including uprating principles, and that prevent dual concurrent social security contribution liabilities, could be good for business and support trade. These arrangements could benefit UK nationals and EU citizens travelling or moving between the UK and the EU in future.

18. The UK is ready to work to establish practical, reciprocal provisions on social security coordination. Any agreement should be similar in kind to agreements the UK already has with countries outside the EU and respect the UK’s autonomy to set its own social security rules. These arrangements should support mobility by easing the process for those working across borders, including underpinning the reciprocal arrangements on the temporary entry and stay for business purposes (‘Mode 4’ provisions).

Green (social security, visas, CTA); Red (students etc). The two sides both seem interested in negotiating a social security treaty. The UK does not reply to the EU’s visa point, but the relevance of that is limited because the EU has already waived short-term visitor visa requirements for UK citizens unilaterally, as discussed here. The UK also does not reply to the EU’s points about researchers and students, although both sides have their own legislation on admission of these groups of people already (the EU law is discussed here). Nor does the UK refer to the Common Travel Area, but the withdrawal agreement refers to it already.

Police and criminal law: General

115. With a view to the Union’s security and the safety of its citizens, the Parties should establish a broad, comprehensive and balanced security partnership. This partnership will take into account geographic proximity and evolving threats, including serious international crime, organised crime, terrorism, cyber-attacks, disinformation campaigns, hybrid-threats, the erosion of the rules-based international order and the resurgence of state-based threats.

116. The envisaged partnership should reaffirm the Parties’ commitment to promoting global security, prosperity and effective multilateralism, underpinned by their shared principles, values and interests. The security partnership should comprise law enforcement and judicial cooperation in criminal matters, foreign policy, security and defence, as well as thematic cooperation in areas of common interest.

27. The safety and security of our citizens is the Government’s top priority. The UK already has world leading law enforcement capabilities. At the end of the transition period, we will fully recover our sovereign control over our borders and immigration system, which will further enhance our security capabilities.

28. Against this background, the UK stands ready to discuss an agreement on law enforcement and judicial cooperation in criminal matters, to the extent that this is in both parties’ interests. It should include: arrangements that support data exchange for law enforcement purposes; operational cooperation between law enforcement authorities; and judicial cooperation in criminal matters.

29. The agreement should facilitate police and judicial cooperation between the UK and EU Member States; equip operational partners on both sides with capabilities that help protect the public and bring criminals to justice; and promote the security of all our citizens.

Both sides support motherhood. And puppies. Lots of puppies. Other than the international criminal puppies.

Police and criminal law: Red Lines

117. The security partnership should provide for close law enforcement and judicial cooperation in relation to the prevention, investigation, detection and prosecution of criminal offences, taking into account the United Kingdom’s future status of a non-Schengen third country that does not provide for the free movement of persons. The security partnership should ensure reciprocity, preserve the autonomy of the Union’s decision-making and the integrity of its legal order and take account of the fact that a third country cannot enjoy the same rights and benefits as a Member State.

30. This should be a separate agreement with its own appropriate and proportionate governance mechanism. The agreement must not constrain the autonomy of the UK's legal system in any way. It should not provide any role for the CJEU in resolving UK-EU disputes, which is consistent with the EU’s approach to cooperation with third countries on law enforcement and judicial cooperation in criminal matters, including between the EU and neighbouring non-EU countries on tools such as the Second Generation Schengen Information System (SIS II) and Prüm.

Both sides emphasising the importance of the ‘autonomy’ of their own legal order here – but emphasising different examples of what their ‘red line’ is in that context. For the UK, it’s no ‘role for the CJEU in resolving UK-EU disputes’. (The UK doesn’t – and couldn’t seriously – object to a role for the CJEU in interpreting the treaty on the EU side; see, for instance, the CJEU judgment on the EU/US extradition treaty, discussed here).  The UK government correctly points out that in practice the EU has consistently agreed treaties with non-EU countries on these issues without requiring jurisdiction for the CJEU to settle disputes. For the treaties it refers to, see for instance the Schengen association agreement with Norway and Iceland (review of the case law; political dispute settlement; termination if dispute is not settled), and the Prüm agreement with the same countries (review of the case law; political dispute settlement).

Having said that, the EU has not made any specific demand on the CJEU issue – besides the general position that if arbitrators are called upon to settle a dispute involving interpretation of EU law, they must ask the CJEU. But the EU makes no mention of how it thinks dispute settlement should work in this specific area. There is no reason why arbitrators must always be involved in settling disputes about interpretation of a treaty, and the EU has never insisted on it before in this field.

The EU’s specific ‘red line’ is ‘taking into account the United Kingdom’s future status of a non-Schengen third country that does not provide for the free movement of persons.’ That correctly describes the UK’s future status; but as we will see, the EU applies this test inconsistently, objecting to the UK continuing to participate in the second-generation Schengen Information System (SIS II), but supporting the UK continuing to participate in some other EU measures only extended to non-EU Schengen associates, or not extended to non-EU countries at all.

Police and criminal law: human rights and data protection

118. The envisaged partnership should be underpinned by commitments to respect fundamental rights including adequate protection of personal data, which is a necessary condition for the envisaged cooperation. In this context, the envisaged partnership should provide for automatic termination of the law enforcement cooperation and judicial cooperation in criminal matters if the United Kingdom were to denounce the European Convention of Human Rights (ECHR). It should also provide for automatic suspension if the United Kingdom were to abrogate domestic law giving effect to the ECHR, thus making it impossible for individuals to invoke the rights under the ECHR before the United Kingdom’s courts. The level of ambition of the law enforcement and judicial cooperation envisaged in the security partnership will be dependent on the level of protection of personal data ensured in the United Kingdom. The Commission will work toward an adequacy decision to facilitate such cooperation, if applicable conditions are met. The envisaged partnership should provide for suspension of the law enforcement and judicial cooperation set out in the security partnership, if the adequacy decision is repealed or suspended by the Commission or declared invalid by the Court of Justice of the European Union (CJEU). The security partnership should also provide for judicial guarantees for a fair trial, including procedural rights, e.g. effective access to a lawyer. It should also lay down appropriate grounds for refusal of a request for cooperation, including where such request concerns a person who has been finally convicted or acquitted for the same facts in a Member State or the United Kingdom.

31. Cooperation will be underpinned by the importance attached by the UK and the EU to safeguarding human rights, the rule of law and high standards of data protection. The agreement should not specify how the UK or the EU Member States should protect and enforce human rights and the rule of law within their own autonomous legal systems.

32. The agreement should include a clause that allows either party to suspend or terminate some or all of the agreement. This should enable either the UK or the EU to decide to suspend – in whole or in part – the agreement where it is in the interests of the UK or the EU to do so.

33. In line with precedents for EU third country agreements on law enforcement and judicial cooperation in criminal matters, the agreement should not specify the reasons for invoking any suspension or termination mechanism.

Amber. Both sides express their concern about data protection and human rights, but diverge on what that might mean in practice – although that divergence is not so broad that compromise is impossible.  The EU wants to suspend or terminate the treaty for reasons related to human rights or data protection, while the UK accepts the possibility that the treaty could be suspended or terminated, but does not want the treaty to specify the reasons why it might be suspended or terminated. The obvious compromise is that the treaty provides for its suspension or termination if either party decides, without mentioning the grounds, while the EU provides in its own law that it will automatically trigger these clauses for specified human rights or data protection reasons. (This approach could apply equally to divergences from case law: the UK could hardly object to the EU terminating a treaty on those grounds, having accepted that either side should be able to terminate the treaty on grounds they may choose).

The UK refrains from responding to the EU’s implied concern about human rights protection in the UK, but a neutral observer concerned with this issue might well call for a plague on both their houses: the disturbing attacks on judicial independence in Poland being matched by British politicians and commentators who slaver to follow this example. Once the British establishment fantasised that it was Greece to America’s Rome; now it aspires to be Mini-Me to Poland’s Dr. Evil.  

Data exchange

119. The envisaged partnership should establish arrangements for timely, effective, efficient and reciprocal exchanges between Passenger Information Units of Passenger Name Record (PNR) data and of the results of processing such data stored in respective national PNR processing systems. It should also provide a basis for transfers of PNR data by air carriers to the United Kingdom for the flights between the United Kingdom and a Member State. Such arrangements should comply with the relevant requirements, including those set out in the Opinion 1/15 of the CJEU.

40. The agreement should provide for reciprocal transfers of PNR data to protect the public from serious crime and terrorism.

41. The transfer of Passenger Name Record data from airlines to the UK or EU Member State competent authorities is an important law enforcement capability. It enables law enforcement and security agencies to identify known and otherwise unknown individuals involved in terrorism related activity and serious crime, and track criminal networks from their patterns of travel.

42. The agreement should be based on, and in some respects go beyond, precedents for PNR Agreements between the EU and third countries – most recently, the mandate for the EU-Japan Agreement.

Green. Both sides agree to negotiate on passenger name data, with no big conflict between their positions – although it’s not clear what the UK seeks by ‘going beyond’ the usual EU treaties. On this issue, the EU has a record of agreeing treaties with non-EU countries (including non-Schengen countries), as the UK points out. There’s no CJEU jurisdiction required for the non-EU countries: see the EU/US PNR treaty, for instance (political dispute settlement).

The EU side refers to a 2017 CJEU judgment (discussed here), which criticised the EU/Canada PNR agreement on data protection grounds, but did not rule out the EU agreeing such treaties if there were stronger safeguards. Note that a further CJEU challenge is pending, on the EU’s own PNR legislation; this might have implications for the EU’s external treaties on this issue too. The EU cannot simply negotiate away these safeguards, as the CJEU rulings are based on EU primary law (the EU Charter of Fundamental Rights).

120. The envisaged partnership should provide for arrangements between the Parties ensuring reciprocal access to data available at the national level on DNA and fingerprints of suspected and convicted individuals as well as vehicle registration data (Prüm).

38. The agreement should provide for the fast and effective exchange of national DNA, fingerprint and vehicle registration data between the UK and individual EU Member States to aid law enforcement agencies in investigating crime and terrorism.

39. The agreement should provide similar capabilities to those currently delivered through the Prüm system, drawing on the precedent for such cooperation between the EU, Norway and Iceland as well as between the EU and Switzerland and Liechtenstein. These precedents include a political dispute resolution mechanism with no jurisdiction in those third countries for the CJEU.

Green. Both sides agree to negotiate on this particular form of exchange of data, with no conflict between their positions. The UK correctly points out that the EU has already signed agreements with Schengen associates linking them to the EU legislation on this exchange of information, with no CJEU jurisdiction for the non-EU countries and political dispute settlement.

121. Without prejudice to the exchange of law enforcement information through Interpol, Europol, bilateral and international agreements, the envisaged partnership should provide for alternatives for simplified, efficient and effective exchanges of existing information and intelligence between the United Kingdom and Member States law enforcement authorities, in so far as is technically and legally possible, and considered necessary and in the Union’s interest. This would include information on wanted and missing persons and objects.

43. The agreement should provide a mechanism for the UK and EU Member States to share and act on real-time data on persons and objects of interest including wanted persons and missing persons. This capability is currently provided by the Second Generation Schengen Information System II (SIS II), making alerts accessible to officers on the border as well as to front-line police officers in the UK.

44. SIS II is used by EU and non-EU Schengen members (Switzerland, Norway, Iceland and Liechtenstein). The UK will continue to use SIS II until the end of 2020.

45. The agreement should provide capabilities similar to those delivered by SIS II, recognising the arrangements established between the EU and non-EU Schengen countries (Switzerland, Norway, Iceland and Liechtenstein). The EU’s agreements with these non-EU Schengen countries include a political dispute resolution mechanism with no jurisdiction in those third countries for the CJEU.

Red. The UK seeks something ‘similar’ to SIS II, while the EU rules out the UK’s participation in SIS II as such. This is not explicit in the EU position, but is set out unambiguously in the Q and As published by the Commission. Currently the UK participates in the criminal and police information exchange in SIS II, not the immigration aspects of the database, as discussed here. There’s another law known informally as the ‘Swedish Framework Decision’, but it concerns exchange of information in specific cases, not a database. So while both sides are willing to negotiate something, it’s not clear what that might be.

122. The envisaged partnership should provide for cooperation between the United Kingdom and Europol and Eurojust in line with arrangements for the cooperation with third countries set out in relevant Union legislation.

46. The agreement should provide for cooperation between the UK and Europol to facilitate multilateral cooperation to tackle serious and organised crime and terrorism. The UK is not seeking membership of Europol. Europol already works closely with a number of non-EU countries, including the US, through dedicated third country arrangements.

47. The agreement could go beyond existing precedents given the scale and nature of cooperation between the UK and Europol. For example, the UK was the highest contributor of data to Europol for strategic, thematic and operational analysis in 2018.

49. The agreement should provide for cooperation between the UK and Eurojust. Eurojust is an EU agency which brings together prosecutors, magistrates and law enforcement officers to assist national authorities in investigating and prosecuting serious cross-border criminal cases. The UK is not seeking membership of Eurojust.

50. Eurojust already works closely with a number of non-EU countries, including the US, through dedicated third country arrangements. The agreement should follow these precedents to enable ongoing cooperation between the UK and Eurojust.

Green. Both sides are broadly in agreement here, and both correctly point out that there is a framework for Europol and Eurojust to cooperate with non-EU countries (already being applied, as the UK points out).  The UK’s goal of going beyond precedent as regards Europol might not be reciprocated by the EU side. Cooperation with non-EU countries does not go as far as being a Member State. Contrary to the popular belief that ‘cooperation with Europol means CJEU jurisdiction yada yada yada’, there’s no such requirement for non-EU states: see the Europol agreements with the USA, for instance.

Criminal justice cooperation

123. The envisaged partnership should establish effective arrangements based on streamlined procedures subject to judicial control and time limits enabling the United Kingdom and Union Member States to surrender suspected and convicted persons efficiently and expeditiously, with the possibilities to waive the requirement of double criminality for certain offences, and to determine the applicability of these arrangements for political offences and to own nationals, including the possibility for the Union to declare, on behalf of any of its Member States, that nationals will not be surrendered, as well as to allow for the possibility to ask for additional guarantees in particular cases.

51. The UK is not seeking to participate in the European Arrest Warrant as part of the future relationship. The agreement should instead provide for fast-track extradition arrangements, based on the EU’s Surrender Agreement with Norway and Iceland which came into force in 2019, but with appropriate further safeguards for individuals beyond those in the European Arrest Warrant.

Amber. Both sides agree on a fast-track extradition system in place of the European Arrest Warrant, which has only ever been applied between EU countries. The UK explicitly refers to the precedent with Norway and Iceland, which is very similar to the EAW with certain exceptions (from the ‘red line’ perspective, there’s no CJEU jurisdiction for the non-EU countries, exchange of case law and political dispute settlement). The only other EU extradition treaty is with the USA. The UK refers to ‘further safeguards’, while the EU refers to ‘additional guarantees’: similar in principle, but the devil will be in the details.

As for those details, the EU position that some Member States might refuse to extradite their own citizens already applies in the withdrawal agreement transition period and in the EU/Norway/Iceland agreement. It’s derived from long-standing national constitutional rules, not a vengeful tantrum by the EU: Barnier did not travel back in time to tell Member States’ constitution drafters and constitutional court judges to punish the UK for leaving the EU decades in the future.

I pointed out that this would happen before the referendum, and was told this was ‘Project Fear’; nobody has had the humility or integrity to apologise for their ignorance on this issue. It’s almost as if not everybody knew what they were voting for after all. And the sight of people who wanted the UK to become a non-EU country becoming upset because the UK is now being treated as a non-EU country is…unappealing.

The EU refers to the possibility of waiving ‘dual criminality’ – the usual rule of extradition law that an act or omission must be a crime in both the State requesting extradition and the State being requested to hand over a fugitive for extradition to apply. The European Arrest Warrant waives that rule as regards 32 crimes; the EU/Norway/Iceland treaty makes the waiver only optional. As a whole, the EU/Norway/Iceland treaty copies most of the EAW legislation, with several other exceptions.

124. To ensure effective and efficient practical cooperation between law enforcement and judicial authorities in criminal matters, the envisaged partnership should facilitate and supplement, where necessary, the application of relevant Council of Europe conventions, including by imposing time limits and providing for standard forms. It should also cover necessary supplementary forms of mutual legal assistance and arrangements appropriate for the United Kingdom future status, including on joint investigation teams and the latest technological advancements, with a view to delivering capabilities that, in so far as is technically and legally possible and considered necessary and in the Union’s interest, approximate those enabled by the Union instruments.

52. The agreement should provide for arrangements delivering fast and effective mutual legal assistance in criminal matters including asset freezing and confiscation. These arrangements should build and improve on those provided by relevant Council of Europe Conventions including the 1959 Council of Europe Convention on Mutual Legal Assistance and its Protocols, for example by providing for streamlined and time limited processes.

Amber. Both sides are willing to supplement the Council of Europe treaties on mutual assistance (the rules on transferring evidence cross-border). The EU has previously negotiated mutual assistance treaties with Norway and Iceland, the USA and Japan. Internal EU law (the European Investigation Order, discussed here), has aimed to replace the Council of Europe measures with a fast-track system too. The details of what is contemplated are not clear, however. The UK refers explicitly to freezing and confiscation (the subject of separate EU and Council of Europe measures), but the EU does not; the reverse is true for joint investigation teams.

125. Supplementing and facilitating the application of the European Convention on Mutual Legal Assistance in Criminal Matters of 20 April 1959 and its Additional Protocols, the envisaged partnership should put in place arrangements on exchange of information on criminal records appropriate to the United Kingdom’s future status with the view of delivering capabilities that, in so far as technically and legally possible and considered necessary and in the Union’s interest, approximate those enabled by the Union instrument.

35. The agreement should provide for the fast and effective exchange of criminal records data between the UK and individual EU Member States, recognising that this is an important tool for investigations, prosecutions and sentencing, as well as for wider community safety.

36. To that end, the agreement should provide for capabilities similar to those provided by the European Criminal Records Information System (ECRIS). ECRIS is a secure, automated, electronic system providing for exchange of criminal records information held on countries’ own national databases within specific deadlines.

37. These arrangements should draw on precedents for similar networks of national databases for law enforcement purposes between the EU and third countries (see Prüm below).

Green. Both sides agree in principle to exchange of criminal records on a similar basis to existing EU law (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 details remain to be worked out, however. Note that the EU has not previously agreed to such measures with any non-EU country – even the Schengen associates.

Other issues

126. The envisaged partnership should include commitments to support international efforts to prevent and fight against money laundering and terrorist financing, particularly through compliance with Financial Action Task Force (FATF) standards. The provisions in the envisaged partnership should go beyond the FATF standards on beneficial ownership information, among others by providing for the existence of public registers for beneficial ownership information for companies and semi-public registers of beneficial ownership information for trusts and other legal arrangements.

53. The agreement should establish effective and reciprocal arrangements to transfer prisoners between the UK and EU Member States, enabling prisoners to be moved closer to home and be rehabilitated in the community to which they will be released. These should build and improve on arrangements provided by the 1983 Council of Europe Convention on the Transfer of Sentenced Persons and its Protocols, and could include time limited processes.

Red. The UK wants to go beyond the Council of Europe rules on the transfer of prisoners, although it does not explicitly refer to the EU law on this issue. There is no matching interest in negotiating this from the EU. On the other hand, the UK does not match the EU interest in negotiating on money laundering (again, there’s no explicit reference to EU law on money laundering) – although in this case, the EU position is almost word for word what the UK agreed with the EU in the political declaration on the future relationship (para 89, discussed here). It’s fair to say, as noted above, that the UK refers to freezing and confiscation of assets, which are part of this issue – but the banking law aspects are part of it too.

Photo credit: Wikicommons

Barnard & Peers: chapter 25, chapter 26, chapter 27

JHA4: all of it