Analysis 1 of the Brexit deal: Healthcare entitlements in the EU-UK Trade and Cooperation Agreement

 

 

Professor Tamara Hervey, University of Sheffield

 

What – if any – entitlements to healthcare are covered by the EU-UK Trade and Cooperation Agreement, agreed in principle on 24 December 2020? (For an overview of the agreement as a whole, see Steve Peers’ Twitter thread and the overview on this blog). (Update: later blog posts cover human rights, dispute settlement and environment and climate change in the Brexit deal). (This blog post was updated April 28 2021 to refer also to the final Article numbers of the TCA; it also retains references to the original numbering for convenience).

 

Introduction

 

If there are any, they will be found in the provisions on social security coordination (Heading Four: Social security coordination and visas for short-term visits). This is the equivalent of – but, as we will see, in many respects a weak equivalent of – the provisions of EU law on social security coordination. On the other hand, these are not ‘ordinary trade agreement’ provisions: there’s nothing like this in CETA for instance.

 

Those provisions of EU law include access to healthcare for EU citizens, and their families (irrespective of citizenship), who are resident in a Member State other than the ‘competent state’ for the purposes of social security coverage, and also access to healthcare necessary during a ‘stay’ (a short-term visit, not establishing a new place of residence) in another Member State. It is this latter provision that is covered by the European Health Insurance Card (EHIC) scheme.

 

Many people want to know whether the EHIC scheme or a version of it will continue. For many people, especially elderly people, private health insurance for travel is unaffordable (health insurance companies take EHIC into account when calculating premiums) and in some cases not available. For people who have been accustomed to regularly visiting family or friends in the EU or UK, EHIC or not will make a significant difference to how they live their lives after end December 2020.

 

But in order to answer that question, I need to work through the legal text methodically, and that is what this blog does. There are multiple parts of the legal text that apply to the coordination of social security: a chapter in the main text, a Protocol, and several Annexes. I am setting out my reasoning step by step so that others can check it.

 

Interpretation and enforcement

 

The wording of the parts of the Agreement on social security coordination is complex, hard to follow, and likely to be subject to disagreement. The analysis that follows is my best-attempt on a first take: I may be wrong. In some respects, the wording of the Agreement is also opaque: in part this is because the relevant equivalent provisions of EU law and of the Withdrawal Agreement, on which this part of the Agreement draws, are also opaque. (Remember that the Withdrawal Agreement remains in force separately, including its provisions on EU citizens in the UK and UK citizens in the EU, discussed here).  That is why I’m starting this analysis with some words on interpretation and enforcement of the parts of the Agreement on social security coordination.

 

The Preamble to the Agreement recognises that social security coordination is important to human beings, not just those who are migrating as ‘economic entities’ (providing services, for example), but also their families. The Preamble also recognises that social security coordination applies not just to people who move between the UK and the EU to reside, but also to stay:

 

Preamble: “RECOGNISING the importance of the coordination of social security rights enjoyed by persons moving between the Parties to work, to stay or to reside, as well as the rights enjoyed by their family members and survivors,”

 

Provisions of the Preamble of an international agreement are an important reference point when it comes to interpretation of that agreement. Interpretation of the EU-UK Trade Agreement (‘the Agreement’) is to be in accordance with international law (not EU or UK law). This approach includes taking account of the context of the legal text, and the ‘object and purpose’ of the Agreement as a whole. It is possible – and perhaps in the context of the social security coordination rules, likely – that the interpretation of the provisions of the Agreement on social security coordination will differ between the UK and the EU Member States. In the context of this Agreement, there is nothing like the Court of Justice of the EU, or the EFTA Court, to seek to prevent such divergent interpretation:

 

TITLE II: PRINCIPLES OF INTERPRETATION AND DEFINITIONS

 

Article 4 (originally COMPROV.13): Public international law

 

1. The provisions of this Agreement and any supplementing agreement shall be interpreted in good faith in accordance with their ordinary meaning in their context and in light of the object and purpose of the agreement in accordance with customary rules of interpretation of public international law, including those codified in the Vienna Convention on the Law of Treaties, done at Vienna on 23 May 1969.

 

2. For greater certainty, neither this Agreement nor any supplementing agreement establishes an obligation to interpret their provisions in accordance with the domestic law of either Party.

 

3. For greater certainty, an interpretation of this Agreement or any supplementing agreement given by the courts of either Party shall not be binding on the courts of the other Party.

 

The agreement will, however, be interpreted by the courts in the UK and the EU separately, and is subject to the treaty’s dispute settlement process (as noted below).

 

The EU Member States and the UK are obliged to ‘coordinate’ their social security systems, in accordance with the Protocol on Social Security Coordination. The object and purpose of this coordination is ‘in order to secure the social security entitlements of the persons covered therein’ (Article 488, previously Ch.SSC.1).

 

This is one of the few parts of the Agreement that has individual human beings as its focus. In general, the Agreement does not confer rights or impose obligations on human beings or legal persons. There is no provision for directly invoking the Agreement in domestic law. The Agreement is an instrument of international law, conferring obligations on the Parties to the Agreement (the EU, its Member States and the UK). It is totally different to EU law in this regard. It is also totally different to the Withdrawal Agreement, which includes a significant number of citizens’ rights provisions, and special measures for its enforcement.

 

Article 5 (originally COMPROV.16): Private rights

 

1. Without prejudice to Article SSC.67 of the Protocol on social security coordination (originally MOBI.SSC.67) and with the exception, with regard to the Union, of Part Three of this Agreement, nothing in this Agreement or any supplementing agreement shall be construed as conferring rights or imposing obligations on persons other than those created between the Parties under public international law, nor as permitting this Agreement or any supplementing agreement to be directly invoked in the domestic legal systems of the Parties.

 

2. A Party shall not provide for a right of action under its law against the other Party on the ground that the other Party has acted in breach of this Agreement or any supplementing agreement.

 

The social security rights under the Agreement must be protected by each Party’s domestic legal order. The Parties have agreed that human beings (and companies) must be permitted, by domestic law (not by the Agreement itself) to invoke the provisions of the Agreement before domestic courts, tribunals and administrative authorities, and thus to seek ‘adequate and timely’ remedies for any breach. The word ‘and’ suggests that courts and tribunals must be included in the arrangements made for enforcing social security coordination rights under the Agreement, and that only providing for an administrative process, such as Ombudsman or other complaints process, would not be compliant with the Agreement.

 

TITLE V: FINAL PROVISIONS

 

Article SSC.67: Protection of individual rights

 

1. The Parties shall ensure in accordance with their domestic legal orders that the provisions of the Protocol on Social Security Coordination have the force of law, either directly or through domestic legislation giving effect to these provisions, so that legal or natural persons can invoke those provisions before domestic courts, tribunals and administrative authorities.

 

2. The Parties shall ensure the means for legal and natural persons to effectively protect their rights under this Protocol, such as the possibility to address complaints to administrative bodies or to bring legal action before a competent court or tribunal in an appropriate judicial procedure, in order to seek an adequate and timely remedy.

 

In the UK, such a process for protection of individual rights is likely to be through the Social Security and Child Support Tribunals, in the first instance, with appeal to the Upper Tribunal (Administrative Appeals Chamber). Note that the draft UK bill giving effect to the TCA simply copies its social security provisions into domestic law (clause 26).

 

Who is covered?

 

The Protocol on Social Security Coordination applies only to ‘situations arising between one or more Member States of the Union and the United Kingdom’ (Article 490(1), previously Ch.SSC.3 (1)). People whose situations are confined in all respects to either the UK or the EU Member States fall outside the scope of the Protocol (Article 490(2), previously Ch.SSC.3 (2)). There is no further definition of this scope rule. Do I fall within the scope of the Protocol if I visit the EU from the UK? If I’m providing a service under the Agreement’s provisions on services (eg Articles 140-143, previously SERVIN 4.1, 4.2, 4.3, 4.4, on performance of economic activities through the entry and temporary stay in the territory of the EU/UK of natural persons of the UK/EU, who are business visitors for establishment purposes, contractual service suppliers, independent professionals, intra-corporate transferees and short-term business visitors), then it would seem obvious that I fall within the scope of the Protocol. Equally, I would argue that if I am visiting the UK from the EU or the EU from the UK, as a tourist, or for other non-economic reason (eg to visit family or friends), on the basis of the visa-free travel provided for under the Agreement (Article 492, previously VSTV.1), I also fall within its scope.

 

But this looks suspiciously like a continuation of aspects of free movement of persons, an inseverable part of the disciplines of the internal market, according to the EU’s negotiating position. My counter-argument to that position is that the coordination of social security, while linked to the internal market as it supports free movement of persons in practice, is not an integral part of harmonised internal market law in the way that the EU law provisions on entry, residence or non-discrimination in employment or self-employment rights are. This interpretation is supported by the fact that the Agreement includes provisions on entitlement to social security benefits (healthcare under a national health system) during a stay in the UK/an EU Member State (see further below).

 

The definition of who is covered by the Protocol on Social Security Coordination is based on the EU law on coordination of social security: people who are ‘subject to’ the social security legislation of one or more States (the UK, EU Member States), their families and their survivors (Article SSC.2 of the Protocol). Curiously, ‘subject to’ is not further defined, either in this Agreement, or in the Withdrawal Agreement, or in EU Law. In many situations, being ‘subject to’ social security legislation will be obvious: if one is paying social security contributions (eg for a pension), or receiving benefits (eg for invalidity or unemployment), then one is obviously ‘subject to’ the legislation. But in other situations, it is less obvious. Is someone who contends that they fall within the scope of the relevant social security rules ‘subject to’ those rules? The Agreement includes some provision on what happens if there is disagreement about whether someone falls within its scope (see below).

 

The Agreement further specifies that, in principle, the Protocol on Social Security Coordination applies only to people who are lawful residents of the UK or an EU Member State (Article 489, previously Ch.SSC.2 in the main Agreement). But this rule does not affect ‘entitlements to cash benefits which relate to previous periods of legal residence of persons covered by Article SSC.2’). So someone might no longer be lawfully resident in the EU or UK, but still fall within the scope of who is covered by this part of the Agreement, for example if they are entitled to pension benefits under the Agreement, but live outside of the EU and UK.

 

What is covered?: General rules

 

The Protocol on Social Security Coordination covers all the main branches of social security that are covered by EU law and by the Withdrawal Agreement. These include ‘sickness benefits’ (Article SSC.3 (1) (a)) (in cash or in kind) – that is, medical treatment. Like in EU law and the Withdrawal Agreement, medical assistance is not covered (Article SSC.2 (4) (b)). Neither is voluntary social insurance, unless it is the only social insurance scheme for the particular branch of social security in the relevant State (Article SSC.13). Neither are ‘assisted conception services’ (Article SSC.3 (4) (e)), defined as ‘any medical, surgical or obstetric services provided for the purpose of assisting a person to carry a child’ (Article SSC.1 (c)). Just to be clear, Article SSC.5 explicitly excludes the matters listed in Article SSC.3 (4) from the general non-discrimination principle (Article SSC.5).

 

EU Member States and the UK may charge a health fee as part of an application to enter, stay, work or reside in that State (Ch.SSC.4). But given that, at least until due notification is given, and if possible at least 3 months before a requirement for visa for a a short-term visit take effect, visa-free travel for short term visits applies between the UK and EU Member States (Article VSTV.1), I think that this provision must apply in practice, at least in the short term, only to applications for residence or work permits, not for visitor entry or short-term visits.

 

The general rules (and there are exceptions) for the Protocol are that (Article SSC.4) social security coordination rules are on the basis of non-discrimination between Member States of the EU. However, this rule is without prejudice to the Common Travel Area arrangements between the United Kingdom and the Republic of Ireland. To access Irish state healthcare, UK nationals need show either an EHIC, or proof of their UK residence. This continuation of the existing rules from 1 January 2021 is confirmed in the UK government’s website.

 

In general (again there are exceptions), the people who are covered by the Protocol enjoy the same benefits (and are subject to the same obligations) as the nationals of the relevant State (Article SSC.5). In general, the Protocol applies a principle of ‘equal treatment of benefits, income, facts or events’ (Article SSC.6).

 

There are two key aspects to this. First, if receipt of social security benefits (or income) has certain legal effects in one State, that State must also recognise equivalent benefits (or income) acquired under the legislation of another state. Second, where legal effects flow from facts or events taking place in one State, that State must take into account ‘like facts or events’ taking place in another State, as if they had taken place on the territory of the first State (Article SSC.6 (a) and (b)). In general, the Protocol requires the aggregation of periods of social insurance, employment, self-employment or residence, completed in any of the States Parties to the Agreement (Article SSC.7). There is a whole section of ANNEX SSC-7: Implementing part on specifics of the aggregation rules (Article SSCI.11 and 12). In general, receipt of cash benefits under the Protocol must not be made conditional on residence (Article SSC.8). All of these provisions are similar to those in the Withdrawal Agreement (Article 31 WA) and in EU law (Regulation 883/2004/EC, Articles 4,5,6,7).

 

Again, as in the Withdrawal Agreement and in EU law, the ‘single state rule’ applies. In general, ‘persons to whom this Protocol applies shall be subject to the legislation of a single State only’ (Article SSC.10). The starting point here is employment or self-employment, and only if neither applies does residence become relevant. If someone is employed or self-employed in a State, that State is the State whose social security legislation they are ‘subject to’ (Article SSC.10 (3) (a) (b)). There are rules for people who normally are employed in both the UK and one or more EU Member States (Article SSC.12): basically if someone is resident where they perform a substantial part of their work, that is the relevant state; if not, the place in which the employer is registered; or the ‘centre of interest’ of the activities of a self-employed person is the relevant state. There is, obviously, lots of room for interpretation of these rules in specific situations.

 

If someone is neither employed nor self-employed, the general rule is that their residence (which means ‘where the person habitually resides’ Article SCC.1 (aa)) determines the relevant State. There is a whole section of the ANNEX SSC-7: Implementing part on the elements for determining residence (Article SSCI.10). There are special rules for people who work on ships and aircraft (Article SSC.10 (4) and (5)).  

 

Like many international agreements, the Protocol on Social Security Coordination allows for States Parties to derogate from its general terms in some respects. The Protocol allows Member States to derogate from the single state rule for ‘detached workers’ (Article SSC.11). ‘Detached workers’ are either employed by an employer in a State which normally carries out its activities there, and sent by their employer to another State to work on the behalf of that employer; or self-employed and normally pursuing a self-employed activity in one State, and who go to another State to pursue a similar activity (Article SSC.11 (1) (a) and (b)). There is no list of these Member States yet in the text (see p 1246). Article SSC.11 obliges the European Union to notify the UK, by the time the Agreement enters into force, whether each Member State falls into one of three categories: A: the Member State wishes to derogate from the general rules of the Protocol on which state is the state responsible for social security (Article SSC.10); B: the Member State does not wish to so derogate; or C: the Member State has not indicated either A or B. That list of three categories of Member States will become Annex SSC-8, when the Agreement enters into force. One month later, categories B and C will cease to exist. Member States in category C will be deemed to be in category A for one month. After that, such a Member State can join category A by the Union notifying the new Specialised Committee on Social Security Coordination (see below) to that effect. A Member State can leave category A in the future by the same mechanism. For Member States in category A, transitional rules for ‘detached workers’ will apply for a 24 month transitional period.

 

This is one of a myriad of examples of Brexit not being ‘done’.

 

What is covered? ‘Sickness benefits’

 

Title III of the Protocol sets out special provisions for each category of benefits (pensions, unemployment benefit and so on). Chapter 1 concerns sickness benefits. Like in EU law, there is a set of rules for ‘insured persons’ (people ‘subject to’ social security legislation of the ‘competent state’, and members of their families) and a separate set of rules for pensioners and members of their families.

 

‘Insured persons’ and their families who are resident in a State other than the competent state, are entitled to receive in the State of residence ‘sickness benefits in kind’ provided by the ‘institution of the place of residence’, as though those people were insured under the legislation of the place of residence (Article SSC.15; Article SSC.21 (pensioners)). People in this category include frontier workers (who live in one state and work in another – special rules apply to them (Article SSC.16)); posted workers (who are sent by their employer to work in another state); and also people who return home for intervals longer than a week (the frontier worker definition).

 

So, if someone is ‘subject to’ UK social security legislation for the purposes of receiving healthcare in the UK, because under the UK legislation they are deemed ‘resident’ in the UK (that being the national rule determining access to the NHS), and they are employed or self-employed in the UK (see the single state rules above), but they are also deemed ‘resident’ in Spain by Spanish legislation, because they are in Spain sufficiently to count as ‘resident’ under Spanish legislation, this provision of the Protocol entitles them to access Spanish healthcare as if they were insured under the Spanish legislation. These provisions are almost identical to the equivalent provisions of EU law (Regulation 883/2004, Articles 17 and 18, 23-26).

 

Articles SSC.17 and SSC.25 (pensioners) cover ‘stay’ outside the competent State. This is the equivalent of the EHIC provision in EU law. It entitles an insured person, and members of their family, who are staying in a state other than the competent state, to healthcare which becomes necessary on medical grounds during their stay. The determination of necessity must take account of the nature of the healthcare or medical treatment and the length of the stay. It is the healthcare provider in the state providing the healthcare that determines necessity. The entitlement under Article SSC.17 or SSC.25 does not cover someone who travelled with the purpose of receiving the healthcare or medical treatment. (There is an exception for a passenger or someone working on a ship or aircraft, who became ill during the voyage or flight). These provisions are almost identical to the equivalent provisions of EU law (Regulation 883/2004, Articles 19 and 20, 27).

 

Healthcare provided under these provisions must be fully reimbursed by the competent State (Article SSC.30).

 

What is different from EU law is that a person seeking to receive healthcare or medical treatment during a stay outside the competent state must present a ‘valid entitlement document’. The entitlement document is covered in Appendix SSCI-2. For EU Member States, the valid document is essentially the EHIC: it has to comply with the technical specifications of the relevant EU law determining EHIC cards (Decision No S2 of 12 June 2009 of the Administrative Commission concerning the technical specifications of the European Health Insurance Card) (Appendix SSCI-2 1). For the UK, the entitlement document has to contain the following information (Appendix SSCI-2 2):

 

(a) surname and forename of the document holder;

(b) personal identification number of the document holder;

(c) date of birth of the document holder;

(d) expiry date of the document;

(e) the code “UK” in lieu of the ISO code of the United Kingdom;

(f) identification number and acronym of the United Kingdom institution issuing the document;

(g) logical number of the document;

(h) in the case of a provisional document, the date of issue and date of delivery of the document, and the signature and stamp of the United Kingdom institution.

 

The UK must notify the Specialised Committee on Social Security Coordination ‘without delay’ of the technical specifications of the UK document (Appendix SSCI-2 3).

 

The UK government’s website explains that people who have valid EHICs will be able to continue to use them from 1 January 2021, to access necessary healthcare on a visit to an EU country. For Norway, Iceland, Liechtenstein and Switzerland, a new GHIC (UK Global Health Insurance Card) is available. When someone’s EHIC expires, they will be able to apply for a GHIC for free.

 

Appendix SSCI-2 confirms that the entitlements under Article SSC.17 of the Protocol on Social Security Coordination include medical treatment for pre-existing illnesses and chronic conditions, as well as medical treatment in conjunction with pregnancy and childbirth, unless the purpose of the trip is to receive these treatments. But for vital medical treatment that is only available through a specialised medical unit, authorisation in advance is required before the trip. This includes (but is not limited to)

 

(a) kidney dialysis;

(b) oxygen therapy;

(c) special asthma treatment;

(d) echocardiography in case of chronic autoimmune diseases;

(e) chemotherapy.

 

So some medical treatments that used to be available under the EHIC scheme will after 31 December 2020 only be available if the relevant State (the UK or EU Member State) gives prior authorisation. This will be the case, for instance, for UK patients accessing kidney dialysis in EU Member States. As far as I am aware, the UK has not yet indicated whether it will authorise such treatments, or under what conditions.

 

As in EU law, there is scope for authorisation of medical treatment in another State under the Agreement. The UK used this provision infrequently when it was an EU Member State. Some Member States, eg Malta, rely on it significantly. If authorised, there is an obligation on the healthcare institution of the place to which the person authorised travels to provide the medical treatment authorised as if the person was insured in that State (Article SSC.18). There is also, as in EU law, in effect an obligation to grant authorisation ‘where the treatment in question is among the benefits provided for by the legislation in the State where the person concerned resides and where that person cannot be given such treatment within a time limit which is medically justifiable, taking into account their current state of health and the probable course of their illness’ (Article SSC.18). This provision also gives entitlements to family members of the ‘insured person’. There is provision for if the family members and the insured person reside in different States.

 

This provision (the ‘S2’ in EU law, Regulation 883/2004, Article 20) is used relatively infrequently between Great Britain and the EU, but several hundred people a year do rely on it to receive health care across the border between Northern Ireland and the Republic of Ireland. The question of whether a time limit before which someone receives treatment is ‘medically justifiable’ is obviously contentious. When the UK was an EU Member State, EU law was used to seek judicial review of this question, and a number of English NHS Hospital Trusts reduced waiting times for elective procedures such as hip replacements in response. Apparently there is ongoing litigation in Northern Ireland which seeks judicial review of the NHS there for breaching waiting time limits, in part relying on EU law. Given the COVID-19 context, we might see further attempts to use litigation before domestic courts in a similar way in the future – reliant on the domestic legislation implementing the Agreement, rather than the Agreement itself.

 

Article SSC.19 makes provision for those States which provide cash benefits for healthcare, rather than benefits in kind. This is the direct equivalent to the relevant provision of EU law (Regulation 883/2004, Article 21).

 

Implementation, Administrative Arrangements and Dispute Settlement

 

Annex SSC-7: Implementing Part sets out significant detail on the practicalities of implementing the parts of the Agreement on Coordination of Social Security. There is an obligation on the UK and the EU Member States to ‘provide or exchange all data necessary for establishing and determining the rights and obligations of persons to whom the Protocol applies’ and to do so ‘without delay’ (Article SSCI.2). A Specialised Committee on Social Security Coordination is empowered to authorize – if it so decides – the use of the EU’s Electronic Exchange of Social Security Information for exchange of information. If this decision is taken, the rules applying to that system (which are rules of EU law) will apply (Article SSCI.4 (2)).

 

There is an obligation to make sure necessary information is made available, so that people concerned are able to assert their rights under the Protocol and Annex (Article SSCI.3 (1). Information must be forwarded, and documents issued, ‘without delay’ and in accordance with any time limits specified in national legislation (Article SSCI.3 (3)).

 

If a decision is made to refuse benefits, reasons must be given, and information communicated about remedies and time periods for appeals (Article SSCI.3 (3)).

 

Where there is a difference of views between States on what is the applicable legislation or on which is the competent state which is responsible for providing cash benefits or benefits in kind (eg medical treatment), there is an obligation under the Agreement to provisionally apply the legislation of one State (Article SSCI.6 (1) and (2)). For determining applicable legislation, this State is the state where the person actually pursues employment or self-employment, if there is such a state; or the state of residence if the person concerned pursues employment or self-employment in two or more States and performs part of their activity or activities in the State of residence, or if the person concerned is neither employed nor self-employed. In all other cases, it is the State to which a claim was first made, if the person pursues an activity, or activities, in two or more States.  For determining the competent state, the legislation of the person’s place of residence applies or, if that person does not reside on the territory of one of the States concerned, that person is provisionally entitled to the benefits provided for by the legislation applied by the institution to which the request was first submitted.

 

These provisions mean that people should not be left in limbo while complex cases are decided.

 

There is provision for bilateral procedures between States to depart from those in the Annex, provided that they do not have an adverse effect on people’s rights (Article SSCI.8). The bilateral procedures have to be notified to the Specialised Committee on Social Security Coordination and listed in the Appendix SSCI-1, thus securing (at least some) transparency. Any pre-existing bilaterals serving the same or similar purposes to the social security provisions in the Agreement will continue to apply, but they must also be listed in Appendix SSCI-1.

 

Finally, the Agreement includes provisions for a Specialised Committee on Social Security Coordination, which addresses matters covered by Heading Four of Part Two and the Protocol on Social Security Coordination (Article 8(1)(p), previously INST.2 (p)); and for Parliamentary Cooperation and participation of civil society (Articles 11-14, previously INST.5 to INST.7).  These will be important sites for scrutiny of compliance with the Agreement, any future divergence in interpretation of obligations, and (given that the role for an over-seeing court is non-existent) for legal contestation. It will be important to ensure that the UK Parliament, and, where appropriate the Parliaments in Northern Ireland, Scotland and Wales exercise oversight over executive powers; and to ensure that relevant NGOs are represented in the civil society processes.

 

Article 8(4) (previously INST.2 (2)) provides that Specialised Committees shall have the power to: (a) monitor and review the implementation and ensure the proper functioning of this Agreement or any supplementing agreement; … (c) adopt decisions, including amendments, and recommendations in respect of all matters where this Agreement or any supplementing agreement so provides or for which the Partnership Council has delegated its powers to a Specialised Committee in accordance with point (f) of Article 7(4) (previously INST.1(4) [Partnership Council]); (d) discuss technical issues arising from the implementation of this Agreement or any supplementing agreement; (e) provide a forum for the Parties to exchange information, discuss best practices and share implementation experience; (f) establish, supervise, coordinate and dissolve Working Groups; and (g) provide a forum for consultation pursuant to Article 738(7) (previously INST.13(7) [Consultations], in the Dispute Settlement provisions of Part Six).

 

The Specialised Committee on Social Security Coordination will have power to make recommendations (which have no binding force) and decisions, by mutual consent: Article 10 (previously INST.4). Decisions adopted by the Specialised Committee on Social Security Coordination will have binding force on the Parties to the Agreement. The Committee will make decisions, for instance, on ‘the structure, content and format of forms and documents issued on behalf of the States for the purposes of implementing the Protocol’ (Annex SSC-7, Article SSCI.4 (1)). The Committee is tasked with reconciling differing points of view on ‘information provided by the persons concerned, the validity of a document or supporting evidence or the accuracy of the facts on which the particulars contained therein are based’ (Article SSCI.5 (4).

 

The Agreement’s general provisions on dispute settlement also apply to the social security coordination provisions (Article 735, previously INST.10: Scope), although not in individual cases (Article 735(5), previously INST.10(5)). Note that it's not possible, in the event of a successful complaint by one party about breach of the treaty, to retaliate by suspending the social security provisions (Article 749(3)(a), previously INST.24(3)(b)). This also applies to successful complaints about breaches of the withdrawal agreement (Article 749(4), previously INST.24(4)).  Other people will already have written about this – but the basic message here is that this is international law, not anything like EU law.

 

Conclusion

 

In summary, this is a significantly better settlement than No Deal at the end of transition would have been, from the point of view of people who relied on EU law to receive healthcare and medical treatment in the UK or an EU Member State.

 

For UK/EU residents, in the EU/UK access to healthcare continues on the same basis as national residents, as before. For visitors, a form of EHIC entitlements are preserved going forward.

 

What is different is the legal basis on which these rights are enjoyed, with corresponding implications for how rights are enjoyed and enforced. All will be well so long as the parties to the Agreement comply with their obligations under it.

 

* This post was amended on January 1, 2021, to add details about the absence of a power to suspend the social security provisions pursuant to the dispute settlement rules, on January 2, 2021 to add a link to the overview of the trade and cooperation agreement published on this blog, and on April 28, 2021 to refer to the revised Article numbers of the final TCA.   

Barnard & Peers: chapter 27

Photo credit: Health Europa

Brexit and Labour Standards at the time of COVID-19 – To Converge or to Diverge, that is the Question

Jeff Kenner, Professor of European Law, University of Nottingham*

As the COVID-19 pandemic engulfs the world, requiring an unprecedented and, as of yet, unforthcoming global response, the idea of Brexit, the sheer self-indulgence and chicanery of Brexit, has quickly become remote from the minds of policy makers and peoples alike. Nevertheless, with negotiations on ‘forging a new partnership’ between the EU and the UK barely off the ground by mid-March 2020, as Europe went into lockdown, the UK Government has continued to insist that there will be no extension of the standstill post-Brexit transition period beyond the deadline of 31 December 2020 set by the EU-UK Withdrawal Agreement of October 2019. Any mutually agreed decision to extend that deadline must, under the Agreement, be made in matter of days, by 1 July 2020, almost certainly before the pandemic is over and there is any return to whatever will count for normal. With world GDP hurtling downwards,  businesses shuttered and ever spiralling worker lay-offs and redundancies, Brexiter ideologues seem prepared to test chaos theory to its limit by taking the UK out of the EU’s regulatory orbit and into a new age of borders, divergence and economic shock therapy from the beginning of 2021.  

In attempting to understand the rationale for this approach, the issue of social and labour standards quickly comes to the fore. If we assume that the UK means what it says, and there is no mutually agreed one-off extension of the transition period for ‘up to one or two years’ (Article 132 of the Withdrawal Agreement), then there will be less than six months in which to establish whether the UK is prepared to shift its stance and agree to non-retrogression, or what might be described as static alignment, of social and labour standards pertaining in the EU and UK at the end of the transition period. If the UK commits to static alignment to preserve a ‘level playing field’ (LPF) to prevent undercutting or social dumping, and to similarly maintain common standards in the areas of environment, climate change, tax and state aids, it may yet confound sceptics and facilitate an agreement with the EU within the timeframe.

Alternatively, if, notwithstanding its geographical proximity and interdependence with the EU, the UK chooses a path of labour market and social deregulation and divergence, pursuing a Singapore-type economic model, through a combination of ideology and a desire to secure a trade agreement with the United States, it could be hugely disruptive to the Single Market and, potentially, to the future of the European Social Model. Such a ‘no deal’ scenario, or ‘disorderly Brexit’ would require the EU to impose its Common Customs Tariff on UK goods under the rules of the World Trade Organisation. This would lead to immense short to medium-term economic problems for the UK - which exports 45% of its goods to the EU (House of Commons Library, 2018) - with a predicted fall of 5.5% in the country’s GDP and a doubling of unemployment to 7% (Bank of England, September 2019). Such problems will be magnified by COVID-19 and its aftermath. EU Member States, struggling to recover from the pandemic, would face a second debilitating wave of disruption as the UK, which imports 53% of its goods from the Union, would impose its own tariffs. The EU’s response to such a scenario would be a supreme test of its commitment to uphold Social Europe and its unity in a period when European solidarity is likely to be in short supply following the failure to burden share in response to the socio-economic crisis caused by COVID-19.

The UK left the EU on 31 January 2020. It was a unique moment. For the first time a Member State had departed from the Union and become a ‘third country’. Three and a half years had elapsed from the tightly fought referendum and, at the second attempt, the parties had settled the bare bones of their divorce with a revised version of the Protocol on Ireland and Northern Ireland annexed to the Withdrawal Agreement. Northern Ireland, territorially part of the UK but with its land border with the EU and its history of conflict, is tied by the Protocol, potentially indefinitely, to EU rules on customs and related areas of regulation considered necessary to avoid a border on the island of Ireland and preserve peace. The revised Protocol does not, however, address the issue of labour standards, unlike the original version which contained an Annex committing the parties, inter alia, to non-retrogression of the labour standards pertaining at the end of the transition period. Instead the issue is now left to the future relationship negotiations discussed below.

Under Article 50 of the Treaty on European Union the parties were required, almost as an afterthought, to take account of the ‘framework’ of their future relationship during the Brexit negotiations. This loose requirement was met by the issuance of a joint non-binding Political Declaration accompanying the Withdrawal Agreement. The Political Declaration loosely commits the parties to establish ‘the parameters of an ambitious, broad, deep and flexible partnership across trade and economic cooperation with a comprehensive and balanced Free Trade Agreement at its core’ (para. 3). It is perhaps reassuring that the Political Declaration states that the parties are determined to safeguard ‘high standards of free and fair trade and workers’ rights’ (para. 2). It must be understood, however, that back in October 2019 the parties were so focused on finding a solution to avoiding a regulatory border on the island of Ireland that there was little time spent on the Political Declaration and much of it, including this worker-friendly language, remained untouched from the previous version negotiated between the European Commission and the Government of the UK’s former Prime Minister, Theresa May, in November 2018.  

With the ascendancy of Boris Johnson to the position of Leader of the Conservative Party and UK Prime Minister in July 2019, followed by a resounding election victory five months later, the picture now looks very different.  On the one hand, May had trumpeted close alignment with EU labour standards, promising that workers’ rights would be ‘fully protected and maintained’ post-Brexit at least at EU levels or even building on them (Lancaster House speech, January 2017). In March 2019, following the adoption of the first version of the Withdrawal Agreement, May introduced proposals to safeguard EU-derived labour rights and require a report to the UK Parliament on any new workers’ rights introduced by the EU, raising the remote prospect of dynamic alignment with EU labour standards to close off the prospect of social dumping.  However, May ultimately failed to navigate the Withdrawal Agreement through the UK Parliament and consequentially resigned from the Conservative Party leadership. Following his General Election victory, Johnson, on the other hand, now with a majority in Parliament, promptly withdrew May’s proposals on labour rights from the legislation to implement the Withdrawal Agreement. Instead the Government announced that there would be a new Employment Bill but, to date, it has not been published and its ambitions are unclear (House of Commons Library, 20 December 2019).

Looking forward, the Political Declaration declares that the proposed Free Trade Agreement (FTA) ‘will be underpinned by provisions ensuring a level playing field for open and fair competition’ (para. 17). More bluntly, European Commission President, Ursula von der Leyen, has made clear that an FTA is contingent upon an LPF guarantee of ‘zero tariffs, zero quotas, zero dumping’ (London School of Economics speech, 8 January 2020). As regards labour standards, the Political Declaration enunciated that LPF provisions must encompass ‘robust commitments’ to ‘uphold the common high standards applicable in the Union and the United Kingdom at the end of the transition period in … social and employment standards … and include appropriate mechanisms to ensure effective implementation domestically, enforcement and dispute settlement’ (para. 77, emphasis added). Although the ILO is not mentioned, Union and international standards are the reference point for the LPF and, moreover, the parties are committed to ‘promote adherence to and effective implementation of internationally agreed principles and rules’ (para. 77).

There has, however, been much water flowing under the bridge since the Political Declaration was issued.  When the ink was barely dry on the document, a leaked UK Government paper revealed its view that the ‘interpretation of these [LPF] commitments will be very different’ and binding arbitration was ‘inappropriate’ (Financial Times, 25 October 2019). In response, the UK stated that it had ‘no intention of lowering the standards of workers’ rights’. Following the election, however, Johnson’s Government has indicated that it regards such commitments as merely rhetorical and not conditional for an FTA.  This was borne out in February 2020 when the UK published its approach to the negotiations (Command Paper 211). Its bottom line is that it will not negotiate any arrangement ‘in which the UK does not have control of its own laws and political life’ (para. 5). The UK Government has seized on the suggestion by the EU’s chief negotiator, Michel Barnier, that the UK’s desire post-referendum to leave the EU Customs Union and Single Market would mean that the EU would look to an FTA similar to the agreement between the EU and Canada (CETA). Barnier presented an illustrative single slide pointing to the Canada option at a very different stage of the process in December 2017.

For the UK, the reference to CETA presents an opportunity to suggest that labour standards should merely be promotional. In its negotiating strategy document, the UK notes that: ‘In line with precedent, such as CETA, the Agreement should recognise the right of each party to set its own labour priorities and adopt or modify its labour laws’ (para. 76). No reference is made to an LPF. At most the UK is prepared to agree to ‘reciprocal commitments not to weaken or reduce the level of protection afforded by labour law and standards in order to encourage trade and investment’ but these provisions ‘should not be subject to the Agreement’s dispute resolution mechanism’ (paras. 76-77). From this it can be discerned that the UK wishes to self-regulate its labour standards and could determine that any prospective domestic diminution of labour law might be unconnected with trade relations with the EU. In return, the EU would be expected to accept the UK’s commitment to reaffirm existing ILO principles and rights, which is a rather limited assurance given that the UK has ratified only 88 ILO Conventions, which includes the eight ‘core’ conventions but is significantly lower than several EU Member States including Spain, 133, France, 127 and Italy, 113 (ILO, NORMLEX, April 2020).

Not surprisingly, key Member States, notably France and Belgium, have demanded stricter LPF provisions in response to the UK’s negative messaging in order to prevent undercutting of labour standards even if it means that no agreement is concluded in 2020 (Financial Times, 23 February 2020). The EU’s ‘Negotiating Directives’ (Council of the EU, 25 February 2020), known as the ‘negotiating mandate’, set out the parameters for the Commission to negotiate with the UK. There has been a degree of internal compromise but, nonetheless, a marked toughening of the language used in the Political Declaration. Part 15 of the Negotiating Directives sets out a series of LPF conditions, specifically that ‘the envisaged agreement should uphold common high standards, and corresponding high standards over time with Union standards as a reference point, in the areas of [inter alia] social and employment standards’ (para. 94, emphasis added). Thus, the position of the EU has shifted from static alignment at the end of transition to a form of dynamic alignment without necessarily requiring full convergence. Turning to enforcement mechanisms, the document repeats the language in the Political Declaration on effective domestic implementation, enforcement and dispute settlement but adds a reference to the need for ‘appropriate remedies’ and seeks to reserve a power for the Union ‘to apply autonomous, including interim, measures to react quickly to disruptions of the equal conditions of competition in relevant areas, with Union standards as a reference point’ (para. 94). Such Union intervention would be anathema to the UK which makes clear in its negotiating document that there should be ‘no role for the Court of Justice’ in the governance arrangements (para. 6).

The EU’s LPF proposals identify the following areas of labour and social protection for alignment to the common standards applicable within the EU and the UK at the end of the transition period: ‘fundamental rights at work; occupational health and safety, including the precautionary principle; fair working conditions and employment standards; and information, consultation and rights at company level and restructuring’ and to ‘protect and promote social dialogue’ (para. 101). In a further sting in the tail for the UK, and possibly also to prevent backsliding within the EU, the mandate suggests that if the parties increase their respective levels of social and labour protection beyond these commitments the partnership ‘should prevent them from lowering those additional levels in order to encourage trade and investment’ (para. 110).

Moreover, building on the parties’ commitment to ensure sustainable development in the Political Declaration, the EU proposes that  the partnership ‘should include provisions on adherence to and effective implementation of relevant internationally agreed principles and rules’ including ILO conventions and the European Social Charter (ESC) of the Council of Europe (para. 109). The UK remains a member of the Council of Europe and has ratified the ESC. Finally, there would be a system of monitoring the implementation of commitments and the ‘social and environmental impacts’ of the partnership (para. 113).

On the face of it the differences between the parties are widening and could soon be irreconcilable. During the hiatus before negotiations resumed on 20 April, the Commission published a 440-page ‘Draft Treaty’ putting its negotiating directives into concrete form (UKTF (2020) 14). As the parties adapt to Zoom, Teams or other newly learned technologies, or even face to face, there will have to be compromises on both sides to reach agreement and an extraordinary amount of goodwill. Moreover, labour standards to ensure an LPF is only one of several issues, including fishing, Gibraltar and State aids, that threaten to wreck the negotiations. The position has been further complicated by a statement by the key UK’s ministerial negotiator, Michael Gove, that the UK is prepared to give up on tariff free and quota free access to the Single Market if it means committing to the EU’s demands for an LPF (The Independent, 5 May 2020).

A crunch point will be reached in the autumn of 2020 if not earlier. It is possible that there will be a fudged commitment to an LPF based on static alignment with enforcement only by the UK authorities subject to limited mechanisms for independent dispute settlement. For the EU this may be enough to move on from Brexit and concentrate fully on how to recover from the disaster of COVID-19. The toughened-up provisions having been presented in the negotiating mandate can be climbed down from assuming that this can be levelled with all Member States and the European Parliament. For the UK it may be much more difficult. It would have to accept the social acquis and be indefinitely tied to converged labour standards with, at most, gradual divergence over time if, somewhat optimistically, it is assumed that workers’ rights are considerably enhanced at EU-level in the next decade or, perhaps more likely, developed through the case law of the Court of Justice. The problem with concluding that there will inevitably be a fudged convergence is that the UK is temperamentally inclined towards having the sovereign right to diverge its labour standards even if it chooses not to exercise this divergence in practice for domestic political reasons. It wants to be ‘an economic competitor on [the EU’s] own doorstep’ as Chancellor Angela Merkel has warned the German Parliament (Politico, 11 September 2019). For Boris Johnson, at the zenith of his political power, the whole point of Brexit is to ‘take advantage’ of the ‘freedoms’ including what he euphemistically describes as ‘better regulation’ for the sectors in which the UK has a commercial advantage (The Guardian, 23 September 2019).

The EU is faced with a difficult choice. It can negotiate a ‘partnership’ which gives the UK enough latitude to accept the status quo in the interim but slowly diverge from common labour standards without effective EU oversight or remedial powers, or it can accept the likelihood that the UK will go its own way towards potentially more rapid divergence which, even if it does not create a ‘Singapore on the Thames’, will mean that there will almost certainly be no negotiable FTA in the short to medium-term. The economic and social pain that this choice will entail, on both sides of the English Channel, may be delayed by an extension of the transition period but it probably cannot be avoided.  For the EU, the choice to accept divergence may be the lesser evil in the longer run. It would provide an opportunity to show that more advanced social and labour standards offer a better path to economic prosperity and social cohesion in a more fragmented world. For the UK, it may advance the realisation of the stark reality of its isolation and the high economic and social price to be paid for alternative ‘deals’ with any of the United States, China or Russia. Over time the negative effects of divergence from EU standards could bring about the change in British mindset that is needed to return to the regulatory orbit of Social Europe, a move which could still fall short of re-joining the Union. For the time being, for both sides, whether to maintain convergence, be it static or dynamic, or embrace divergence, is an urgent question that must be answered soon.

*This is the English version of an editorial in Dirriti Lavore Mercati, 2-2020, ‘Brexit e tutele del lavoro al tempo del Covid-19: convergenza o divergenza, questo è il problema’. It was first published in English in the Regulating for Globalization Blog (Wouters Kluwer) – the author is grateful to the publishers for agreeing for this contribution to be published in this blog.

Barnard and Peers: chapter 27

Photo credit: Roger Blackwell, via Wikimedia commons

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