What might have happened in an alternate universe: the EU (Withdrawal Agreement) Implementation Bill (‘WAB’)

Professor Tamara Hervey, University of Sheffield, and Professor Steve Peers, University of Essex

People who voted for a ‘coalition of chaos’ with Ed Miliband in 2015 sometimes imagine the goings-on in the ‘Miliverse’ – a parallel universe where Ed Miliband won the general election that year, and where the main debates in British politics are about bin collections and bus routes, rather than Brexit. With yesterday’s resignation of the Prime Minister, we can imagine the ‘Mayverse’ – a universe where Mrs May either held off calling an election, or held it and won the large majority she was hoping for, or had successfully pursued the art of compromise that she referred to in her resignation speech.

The latest big development in the ‘Mayverse’ would have been the Bill implementing the EU/UK Withdrawal Agreement. In our universe, on 15 May 2019, the UK government had announced that it would publish this Bill in ‘early June’.  This week the Prime Minister, before resigning, set out the main points of the Bill. Of course, her resignation, and the earlier news that the Conservative/Labour talks have failed, makes this much less likely.  However, in post-EU referendum politics, many futures are possible, including ones we might not foresee.  A lawyers’ job is to make sense of the legal texts that seek to express political agreements.

 

So this blog post considers some of the possibilities for one of the key elements of the EU (Withdrawal Agreement) Implementation Bill (or ‘WAB’ as it has come to be known) that would have been tabled in the Mayverse, and might yet be tabled in our universe: how is the UK going to render its obligations under the EU/UK Withdrawal Agreement into domestic law? (Other key elements are considered here.)

Available information at present

At this time, there is no text of the EU (Withdrawal Agreement) Implementation Bill in the public domain. What is available is the White Paper on Legislating for the Withdrawal Agreement, from July 2018, and the EU/UK Withdrawal Agreement itself, as well as the documents that surround it, such as the Preliminary Joint Report from the negotiating teams, from December 2017.

Only two paragraphs of the White Paper explicitly address the WAB.  One (para 148) simply says that if Parliament approves the Withdrawal Agreement, government will bring forward the WAB (see also para 4 which says government will only do this once the Withdrawal Agreement is approved by Parliament).  The other (para 149) states:

‘As set out in the preceding chapters of this paper, the Bill will be the primary means of implementing the Withdrawal Agreement in UK law, to ensure the Government meets its international obligations as set out in the treaty, …’

This makes it sound like the WAB would have treated the Withdrawal Agreement as ordinary international law.  This is not what the text of the Withdrawal Agreement suggests.  Its Article 4 provides:

‘(1) The provisions of this Agreement and the provisions of Union law made applicable by this Agreement shall produce in respect of and in the United Kingdom the same legal effects as they produce within the Union and its Member States. Accordingly, legal or natural persons shall in particular be able to rely directly on the provisions contained or referred to in this Agreement which meet the conditions for direct effect under Union law.

(2) The United Kingdom shall ensure compliance with paragraph 1, including as regards the required powers of its judicial and administrative authorities to disapply inconsistent or incompatible domestic provisions, through domestic primary legislation.

(3) The provisions of this Agreement referring to Union law, or to concepts or provisions thereof, shall be interpreted and applied in accordance with the methods and general principles of Union law.

(4) The provisions of this Agreement referring to Union law, or to concepts or provisions thereof shall in their interpretation and application be interpreted in accordance with the relevant case law of the Court of Justice of the European Union handed down before the end of the transition period.

(5) In the interpretation and application of this Agreement, the United Kingdom’s judicial and administrative authorities shall have due regard to relevant case law of the Court of Justice of the European Union handed down after the end of the transition period.

Article 4 WA thus embodies key principles of EU law: direct effect (enforceability of rights by individuals before domestic courts); primacy/supremacy (‘disapplication’ of inconsistent domestic law); and consistent interpretation with both the methods of EU law, and its ‘general principles’ (which of course include fundamental human rights, as (now) set out in the EU Charter and interpreted by the CJEU).  The WA sees itself as almost a species of EU law, and not as an ordinary EU international agreement.  At least the direct effect and supremacy aspects of that interpretation are reflected in the December 2017 Preliminary Joint Report (para 36), which states:

“Once this Bill has been adopted, the provisions of the citizens' rights Part will have effect in primary legislation and will prevail over inconsistent or incompatible legislation, unless Parliament expressly repeals this Act in future.”

It almost goes without saying that all of these obligations would have been political dynamite in the contemporary UK context.

How would the WAB have gone about the tricky task of implementing the UK’s obligations under the Withdrawal Agreement ‘in primary legislation’ (as required in Article 4 (2) of the Withdrawal Agreement)? The following is a summary of possible approaches and some of their implications.

Repeat the wording of the European Communities Act 1972

One possible approach would have been to use the wording of the European Communities Act (ECA) 1972.  To do so would have meant the continued supremacy and direct effect of law agreed between the UK and the EU (that is, the Withdrawal Agreement).  It would use a ‘tried and tested’ legal method, given that the ECA has in effect accommodated those concepts in the UK’s domestic constitutional system for over forty years, even if constitutional lawyers disagree on exactly how it does so.  In effect, this approach would create a new source of law in the UK’s constitution: that of ‘Withdrawal Agreement law’, in the same way that the European Communities Act 1972 is, in the words of the UK Supreme Court in Miller, para 65, the ‘conduit pipe’ by which EU law becomes ‘an independent and overriding source’ of UK law.  This new source of law would be in addition to the new source(s) of law (‘retained EU law’ of various types) which will be created by the EU (Withdrawal) Act 2018, when it comes fully into force.

The benefits of this approach are that it secures compliance with the provisions of Article 4 of the Withdrawal Agreement.  Further, there is significant jurisprudence, including from the House of Lords and Supreme Court, on the meaning and effect of the relevant parts of the European Communities Act 1972. In particular, the Factortame ruling confirms that domestic legislation, irrespective of its date, that cannot be consistently interpreted with directly effective, validly adopted EU law, must be ‘disapplied’. This approach thus entails significant legal certainty and clarity.

The detriments, however, include the complexities associated with yet another new source of law, a point made by Mark Elliott in 2017.  Further, as Elliott notes, this approach would appear inconsistent with the intention of the EU (Withdrawal) Act to expunge directly effective EU law per se from the UK’s legal systems.  Moreover, while the ECA might be able to work ‘constitutional magic’ with EU law, whether it can do so with an ‘ordinary treaty’ (if we think of the EU/UK Withdrawal Agreement as such) is far from certain.

EU/UK Withdrawal Agreement as ‘ordinary’ international law that gives human beings rights

An alternative model is to consider the EU/UK Withdrawal Agreement as ‘ordinary’ international law, or, perhaps better, as international law that gives human beings rights.  The key analogy here is with the European Convention on Human Rights and the Human Rights Act 1998.  Although in principle in the UK’s legal systems, domestic legislation takes precedence over conflicting international treaties, courts understand themselves to be under an obligation to interpret domestic legislation consistently with international treaties if possible, on the basis of a presumption that Parliament intends to comply with the UK’s obligations in international law.  

The obligation permits the UK’s courts – particularly its Supreme Court – to stray from the explicit language of a statute, and even from Parliament’s apparent intention when adopting that statute, as seen for instance in Ghaiden v Goden-Mendoza.  Of course, it is going to be far from easy for domestic courts to discern the intentions of Parliament when adopting the WAB, and so textual interpretation may well be more important in practice here.  The Human Rights Act 1998, sections 2 and 3, require that domestic courts must interpret domestic law ‘in a way which is compatible with’ ECHR rights and must ‘take into account’ decisions of the ECHR’s institutions whenever the domestic court considers it to be relevant to the instant proceedings.  Similar wording in the WAB could include decisions about the effects of the Withdrawal Agreement (for instance its direct effect or primacy) made by EU institutions.  But, unlike the ECA approach, such wording does not require ‘disapplication’ of domestic law if consistent interpretation turns out to be impossible.

 

This approach would also involve certainty and clarity.  However, it would potentially fail to fulfil the UK’s obligations under the Withdrawal Agreement in full.

Use the wording of the Withdrawal Agreement

A third approach would be to adopt a form of words that explicitly indicates intention to comply with both the letter and spirit of the Withdrawal Agreement, by using the words of its Article 4 (1):

‘shall produce in respect of and in the United Kingdom the same legal effects which they produce in the Union and its Member States. Accordingly, legal or natural persons shall in particular be able to rely directly on the provisions contained or referred to in this Agreement which meet the conditions for direct effect under Union law’.

This approach creates less certainty as there is, obviously, no jurisprudence on which provisions of the Withdrawal Agreement meet the conditions for direct effect.  There is no universal rule in EU law as to direct effect of provisions of treaties to which the EU is a party: it is dependent on the context, aims and objectives of the treaty concerned.  In the EU’s legal order, the threshold test for direct effect is higher for international agreements to which the EU is a party than it is for other sources of EU law: the nature of international law differs from other EU law in this respect.  However, in this instance, there is a strong argument to the effect that at least the part of the Withdrawal Agreement on citizens’ rights, which mirrors directly effective provisions of EU law, meets the conditions for direct effect.  Whether this is the case for other provisions, such as, for instance, those on data protection, is a different matter.

Alternatively, or in addition, the EU (Withdrawal Act) Implementation Bill could adopt the wording of WA Article 4 (2), by requiring ‘judicial and administrative authorities to disapply inconsistent or incompatible domestic provisions’.  This would have the benefit of compliance with the Withdrawal Agreement obligations.  Whether the UK courts would interpret the obligation as identical to that under the European Communities Act 1972, given that the UK would no longer be a Member State of the EU, would potentially be a moot point, and some have argued that it might be ‘constitutionally impossible’.  Thus this position offers less legal certainty than the wording of the European Communities Act would bring.

Problems with any approach

Mike Gordon is right to point out that any of these approaches is of course vulnerable to the WAB itself being repealed.  But equally, as he says, any of them, and especially the ECA or WA wording approaches would constitute a significant example of Parliament seeking to constrain its powers and in effect to bind its successors.

The Withdrawal Agreement seeks to secure the position of EU-27 citizens in the UK (and vice versa).  Its effects, particularly as regards those citizens, will last long beyond the transition period.  The WAB would somehow need to secure these rights from interference not only from future UK governments, but also from future legislation.  While the UK is a Member State of the EU, the ECA effectively does so.  The WAB would need to do so without the underpinnings of EU membership: whatever approach it takes will be unlikely to satisfy those who are sceptical about securing citizens’ rights in the post-Brexit future.  As Paul Daly has pointed out, it is not difficult to imagine UK legislation discriminating against EU citizens.  Outside of EU law, the UK’s constitution does not have a tried and tested formulation for withstanding the normal lex posteriori rule of statutory interpretation.

These concerns would equally be relevant if the Bill contained provisions on the future UK/EU relationship, or as regards any parallel legislation dealing with that relationship. The Prime Minister had planned to table both: rules on a parliamentary mandate for the negotiations, and a Workers’ Rights Bill. Either way, it’s not true to say, as is sometimes claimed, that Boris Johnson (or whoever is the next Prime Minister) could just “rip up” such guarantees: it would require a parliamentary majority to do so. A watered-down version of the employment and environmental law guarantees that the opposition was seeking would nevertheless be ensured by the withdrawal agreement backstop.  However, the uncertainty attached to the prospect nevertheless was surely a factor in dissuading the opposition parties from agreeing to Mrs May’s proposals.

Final thoughts: WAB applied in first instance courts and tribunals

Ultimately, it does not matter so much exactly what the WAB says, but more how it is interpreted.  Here, of course, the decisions of the UK’s appellate courts will be crucial, as has been the case with the ECA and Human Rights Act.

 

However, we should not lose sight of the first-instance decision-making that will precede any such rulings.  It is this first instance decision-making – in immigration contexts, primarily, but also in employment contexts and perhaps many others – which will determine the real-life position of the human beings affected by Brexit, whose position the EU/UK Withdrawal Agreement seeks to protect as much as possible. 

One final sobering thought.  First instance judges in the UK respect the doctrine of Parliamentary sovereignty, and regard themselves at the service of the will of Parliament, as expressed in legislative text.  Judicial training includes – obviously – regular updates as legislation changes.  If the WAB were ever tabled, it might be enacted in record time.  But the WAB text has not even been released.  No one – including those who train the UK judiciary – has had any time to consider its meaning or effects.

Barnard & Peers: chapter 27

Photo credit: Medium

Does the Prime Minister’s Unexpected Discussion of Competition Policy Signal a Softening of Brexit?

Andreas Stephan, Professor of Competition Law & Head of UEA Law School, University of East Anglia*

On Friday 2 March 2018, in a much-anticipated speech meant to give clarity to the UK Government’s Brexit objectives, the Prime Minister suggested that: (a) UK State Aid and Competition rules could remain aligned with those of the EU, and (b) UK courts could continue to have regard to judgments of the European Court of Justice (ECJ). Nevertheless, her speech also made it abundantly clear that the ECJ could not continue to have jurisdiction over the UK. While, on the face of it, this speech appears to reiterate Theresa May’s commitment to a ‘hard Brexit’, these significant concessions may signal a weakening of that resolve, as the Government acknowledges for the first time that – if the UK is to maintain a close trading relationship with the EU – the legal realities of Brexit will be complicated.  

Even before the PM delivered her speech, the Government confirmed it was targeting a border with the EU that was as ‘frictionless’ as possible. Yet it also maintained very hard lines on taking back control of immigration and denying the ECJ any continued jurisdiction over UK courts and laws. This appeared to make a trade agreement – i.e. something akin to the EU-Canada Comprehensive Economic and Trade Agreement (CETA) – the only viable option for the UK.

What has brought the realities of a hard Brexit into sharp focus are concerns over the border between the UK and the EU in Ireland. A return to customs checks (a ‘hard border’) could jeopardise the peace process in Northern Ireland. Yet the most sensible solution (giving NI a special semi-autonomous status of being part of the UK but also in regulatory alignment with the EU) risks bringing down the Conservative Government. They rely on the voting support of the Democratic Unionist Party, who want NI to have exactly the same Brexit settlement as Great Britain, so as to ensure the outcome does not increase the likelihood of an eventual Irish reunification.

So most commentators were expecting a softening in the Prime Minister’s stance last week, but few were expecting that softening to take the form of a discussion of competition policy. She began by making an important statement about the future influence of ECJ case law on UK law:

The second hard fact is that even after we have left the jurisdiction of the ECJ, EU law and the decisions of the ECJ will continue to affect us… When we leave the EU, the Withdrawal Bill will bring EU law into UK Law. That means cases will be determined in our courts. But, where appropriate, our courts will continue to look at the ECJ’s judgments, as they do for the appropriate jurisprudence of other countries’ courts. And if, as part of our future relationship, Parliament passes an identical law to the EU law, it may make sense for our courts to look at the appropriate ECJ judgments so that we both interpret those laws consistently.

She then went further, using competition policy to illustrate her point:

If we want good access to each other’s markets, it has to be on fair terms. As with any trade agreement, we must accept the need for binding commitments – for example, we may choose to commit some areas of our regulations like state aid and competition to remaining in step with the EU’s. The UK drove much of the policy in this area and we have much to gain from maintaining proper disciplines on the use of subsidies and on anti-competitive practices.

These statements are significant because they represent the Government’s first significant departure from its characterisation of Brexit as a simple ‘in/out’ choice. What the Prime Minister is suggesting above, goes well beyond what might be expected from WTO rules (which do not include competition provisions per se) or from a Canada-style trade agreement.

For example, CETA contains a recognition of the importance of Competition policy to trading relations and the responsibility of each party to apply its domestic competition law. There is no requirement of equivalence in rules – indeed, EU and Canadian competition laws are very different in a number of respects. In terms of State Aid, the agreement requires parties to report certain subsidies to each other every two years and a non-binding mechanism through which each party must try and minimise the adverse effects of the subsidy on the complaining party’s interests. There is no requirement of pre-authorisation rules similar to those under EU State Aid Law.

Continued Supremacy of EU Law by the Backdoor?

In the first academic paper to be published on Competition Policy after Brexit, we identified that there was a strong advantage in UK competition law remaining closely aligned to EU law, so as to minimise the regulatory burden on businesses operating in both jurisdictions.** We also noted that it was not unusual for UK courts to consider the jurisprudence of closely related jurisdictions (such as Australia and New Zealand) when dealing with novel questions of law, even though they were under no obligation to do so. This was echoed in the work of the Brexit Competition Law Working Group (Issues Paper (October 2016) and Conclusions and Recommendations (July 2017), as well as in Richard Whish’s recent contribution to the House of Lords European Union Committee report on ‘Brexit: Competition and State Aid’. Whish suggested that, at the very least, UK authorities should be required to ‘have regard to’ EU law and precedent.

The Prime Minister’s statement, in fact, goes even further. The idea that competition and state aid rules should ‘remain in step’ may suggest a de facto obligation on UK authorities to follow EU jurisprudence. Indeed, the suggestion that Parliament might have to ‘adopt identical law to the EU’ also implies that – after Brexit – EU law will have a far greater influence on the UK than had been anticipated. Yet all this will occur without the UK having a say in the creation of new EU rules or the decisions of the ECJ, except via the limited levers that will be available through the trading agreement itself. As the junior partner in the relationship, the UK will largely become a rule-taker, reminiscent of the role that other small jurisdictions are forced into when dealing with much larger trading partners.

Without the UK’s continued participation in European Union institutions, the UK’s designated competition authority, the CMA, may find itself having to replicate the European Commission’s work, while being simultaneously bound to produce the same outcomes – something that would clearly constitute a waste of administrative time and taxpayer’s money. The Prime Minister herself acknowledged that the UK ‘drove much of the policy’ in EU Competition Law. Yet, it is precisely for this reason that EU competition policy will not necessarily continue along the same path we expect it to. With the UK’s influence gone, it may become less free-market oriented and begin to depart from its effects-based approach. Similarly, the EU rules surrounding State Aid (which, as we point out in our paper, the UK is a clear net beneficiary of) may become more relaxed.

Conclusion: The beginning of a soft Brexit?

In conclusion, the Prime Minister’s discussion of competition policy is very sensible from a business perspective. A commitment to UK and EU competition and state aid rules remaining closely aligned will provide certainty and reduce the regulatory burden on firms wishing to invest in the UK. But, from a legal perspective, the speech raises more questions than it answers. What will the precise obligation be on UK authorities to stay closely aligned to EU rules? Under what circumstances will Parliament need to enact laws ‘identical’ to those of the EU? Will Competition Policy have a special status, or will this sort of arrangement extended to other areas? Will the UK accept being a ‘rule-taker’, or does the Government expect to have some leverage over European lawmaking through the wording of the final agreement?

Now the door to continued alignment with EU rules has been opened slightly, many of the questions we thought were resolved (about the autonomy of UK law after Brexit) are now open once more. Indeed, the Prime Minister’s speech came only a week after the opposition Labour Party said it would pursue a Customs Union arrangement if it was elected to Government. The prospect of a softer Brexit now looks more conceivable than it did a few months ago; and it may all have started with a few seemingly innocuous words about competition policy.

Barnard & Peers: chapter 27, chapter 17

Photo credit: hifi-forum.de

*Reblogged from Competition Policy Blog

**B Lyons, D Reader and A Stephan, ‘UK Competition Policy post-Brexit: taking back control while resisting the siren calls’ (2017) Journal of Antitrust Enforcement 5(1), pp. 347-374. An early draft is available as: ‘UK Competition Policy Post-Brexit: In the Public Interest?’ (2016) CCP Working Paper 16-12.

What “mutual recognition” really entails: analysis of the Prime Minister's Mansion House Brexit policy speech

Professor Stephen Weatherill, Somerville College, University of Oxford

Theresa May’s speech at Mansion House in London on 2 March 2018 has attracted a torrent of comment. It has been greeted as, on the one hand, shallow and unrealistic and, on the other, as the most thoughtful contribution to the debate offered so far by a member of this government. In truth both descriptions are accurate. I want here to focus on Mrs May’s aspiration to promote “mutual recognition” as a means to manage the future economic partnership she envisages between the EU and the UK.

In her portrayal of the treatment of goods after Brexit, Mrs May insists that “both the UK and the EU have a strong commercial interest in preserving integrated supply chains that have built up over forty years”, and she envisages “that trade at the UK-EU border should be as frictionless as possible”. Echoing David Davis’s speech in Vienna on 20 February she wants to “ensure that, as now, products only need to undergo one series of approvals, in one country, to show that they meet the required regulatory standards”. How to achieve these aims and visions? Mrs May declares that “we will need a comprehensive system of mutual recognition”.

Much of what passes for “negotiation” on the UK side since the despatch of the Article 50 letter of withdrawal in March 2017 has involved a desire to retain the benefits of EU membership while shrugging off the status and responsibilities of membership. But when Mrs May appeals for “a comprehensive system of mutual recognition” she is going still further. She is not asking for something that applies within the EU. She is asking for something that even EU Member States do not expect of each other. A “comprehensive system of mutual recognition” is not found within the EU. Mrs May is asking that the UK be treated better than a Member State of the EU.

Mutual recognition in primary EU law is most prominently found in the area of free movement of goods, persons and services, but it is not absolute mutual recognition. Instead it is conditional or non-absolute mutual recognition. That means that where something is good enough for the market of one Member State, it is to be treated as good enough for the market of all the other Member States – unless the target (or host) State can show a good reason why it should be entitled to rely on its stricter standards to exclude something that is acceptable elsewhere in the EU. The reservation unless is structurally crucial in the law of the EU’s internal market. A State is not inevitably obliged to open up its market to a product or service which does not conform with local laws. It may appeal to its tougher standards of health protection, its more assiduous concern for consumer protection or its particular fastidiousness in the area of environmental protection – and it will need to be judged, ultimately by a Court, whether the State has a strong enough justification of this type to place obstructions in the way of the impulse towards market integration. National rules, practices and standards that impede inter-state trade are in this way routinely put to the test.

Protectionism and reliance on anachronistic rules that have no place in an integrated European market will fail the test and such objectionable rules must then be disapplied. But there is room for sincerely and well-targeted measures to pass the test, and to remain in force as non-tariff barriers to trade which serve an interest that is shown to rank higher than trade liberalisation. This is plain from the Treaty on the Functioning of the European Union, which does not impose an unconditional rule of freed cross-border trade, and it is embedded too in the Court’s famous elaboration of the basic Treaty norms governing free movement, its Cassis de Dijon principle, which equally imposes only a conditional or non-absolute requirement of mutual recognition in the EU internal market.

So primary EU law imposes something less than the “comprehensive system of mutual recognition” to which Mrs May aspires. If she imagines that the EU will agree automatically to admit UK goods and services into its internal market simply because those goods and services comply with UK law, then she is imagining a model which is not even available within the EU. And it is utterly unrealistic to imagine it will be on offer to a third country.

Mutual recognition also deserves assessment at the level of EU secondary legislation – the vast number of measures, most of them Directives but some of them Regulations, which provide the legislative platform on which is built the EU’s internal market. The EU’s Treaty rules on free movement combine with the legislative acquis on harmonisation within the internal market and on the regulation of particular sectors to produce a dense and intricate network of rules which reflect the liberalisation of markets within the EU but also the regulation of those markets by the EU.

But there is no “comprehensive system of mutual recognition” here – at least not in the shallow description offered by Mrs May. The point of these rules is to establish EU rules, which are then implemented at national level. This generates a common system apt to release the advantages of an integrated trading space that transcends the limits of national political boundaries. On this model Member States regulate in order to achieve the same agreed common purposes – they do not show mutual recognition of each other’s different choices and techniques. Across the whole wide sweep of EU rule-making there is a common core of agreed EU standards, which all participants must meet. Moreover, the application of those rules is secured within tightly defined institutional and constitutional constraints. The EU is not simply a system of rules, it is a system too that involves the oversight of the Commission, the place of sector-specific agencies, the authority of the Court of Justice and the everyday involvement of national courts and administrative agencies. Rules – but also supervision, administrative co-operation, interpretation and enforcement too.

There is, of course, detailed sectoral variation, both in the particular intensity and shape of the rules adopted by the EU and in the scope permitted for State action even in areas where the EU has intervened. But the general picture is plain. Whether one is looking at the authorisation of medicines or the prohibition of unfair common commercial practices, the regulation of professional qualifications or the administration of the European Arrest Warrant, working time or environmental impact assessment, the model is visibly similar – there is a common foundation of EU rules on which all the Member States rely, and this is supported by a dense institutional network. This is not unconditional mutual recognition of difference. It is managed mutual recognition of carefully circumscribed difference.

It is remote from Mrs May’s “comprehensive system of mutual recognition”.

To be fair, awareness of this background is not wholly absent from Mrs May’s speech. She speaks of commitments that UK and EU regulatory standards would remain “substantially similar in the future”; she adds that the UK might “remain part of EU agencies such as those that are critical for the chemicals, medicines and aerospace industries”. This jars with the frustratingly glib slogan earlier in the speech according to which Mrs May claims that “the referendum … was a vote to take control of our borders, laws and money”, but it might be generously interpreted as an admission that taking back control will require a more sophisticated appreciation of the virtue of multilateral action than the remorselessly unilateral tone of much of the case for Brexit has been hitherto willing to concede. And indeed the speech was reported, perhaps with the impetus of a little behind-the-scenes spin, as mapping a route to a more realistic relationship with the EU than some go-it-alone Brexiters have urged – “May tells Eurospectics to face facts”, proclaimed the lead story on the front page of the Financial Times the day after the speech.

More realistic, perhaps – but the problem with the speech was that it was not realistic enough.

In part this is because of the persisting contagion of cherry-picking, but the deeper problem of a speech which includes an aspiration to a “comprehensive system of mutual recognition” is that this completely neglects the very nature of the EU. The EU is a rules-plus system. It is based on common rules but also common institutions and common constitutional principles. It is far more intricate than Mrs May allows.

Mrs May accepts “the need for binding commitments – for example, we may choose to commit some areas of our regulations like state aid and competition to remaining in step with the EU’s”. Elsewhere she is softer in her promises. The UK will need to make a “strong commitment” that its regulatory standards will remain as high as the EU’s. (Here too the media was evidently briefed on the gap between “binding” and “strong” commitments). In the matter of workers’ rights or the environment, “the EU should be confident that we will not engage in a race to the bottom in the standards and protections we set”.

But this is not good enough to generate the trust that constitutes the necessary underpinning of frictionless trade in the internal market! The EU’s model of mutual recognition demands much more, both in the binding character of the rules and in the supporting institutional and constitutional architecture. Failure to accept this necessary starting-point leads Mrs May to embrace unrealistic expectations. On services, she says that “given that UK qualifications are already recognised across the EU and vice versa – it would make sense to continue to recognise each other’s qualifications in the future.” In the matter of transfrontier broadcasting she aspires to “creative options … including mutual recognition”. On financial services “our goal should be to establish the ability to access each other’s markets, based on the UK and EU maintaining the same regulatory outcomes over time”. But the EU’s approach to mutual recognition goes far deeper than mere possession of the same rules.

Everything that Mrs May says – about agencies and regulators, about data protection and energy co-operation, about Euratom and transport, about judicial co-operation and science, and so on - assumes a UK that enjoys a high degree of independence from the EU’s rules and especially from its institutions, yet is able to dip in here and there as an associate member according to specially crafted arrangements. But although EU is built on rules and it is built on trust, it is also built on institutional and constitutional frameworks that underpin those rules and verify that trust is warranted. This is what the Commission has lately taken to describing as the EU’s “ecosystem”.

This is what the EU is determined to defend; this is what the UK has chosen to quit. Mrs May’s speech does not come close to recognising, still less to explaining, the magnitude of the changes that are looming in consequence. Her speech asserts that the UK “will not accept the rights of Canada and the obligations of Norway”, the shabby politician’s trick of rejecting a suggestion that absolutely no one has advanced, but she is perilously close to asking for the obligations of Canada and the rights of Norway.

One of the relatively few concrete observations in Mrs May’s speech which looks beyond mutual recognition of rules also to acknowledge the institutional consequences concerns financial services. She notes “the highly regulated nature of financial services, and our shared desire to manage financial stability risks” and so accepts that “we would need a collaborative, objective framework that is reciprocal, mutually agreed, and permanent and therefore reliable for businesses.” Quite so! And this invites the exasperated retort – but that is exactly what you have right now! How illuminating that when, directly after the speech, Mrs May was asked by a journalist whether Brexit is “worth it”, she laughed nervously and said “we won’t think again on Brexit”, and studiously avoided the question. “A collaborative, objective framework that is reciprocal, mutually agreed, and permanent and therefore reliable for businesses” is what the EU delivers. Appeal to the language of “mutual recognition” conceals the density and the intensity of the obligations that are required to generate trade integration on the truly deep and special scale that the EU’s internal market has achieved. Mrs May has belatedly embarked on a journey which accepts that leaving the EU entails difficult choices and unavoidable harm, but she has a long distance to travel yet to come fully to terms with the consequences.

Barnard & Peers: chapter 27

Art credit: facto-facts

Lions or Unicorns? Theresa May and Boris Johnson’s speeches on the UK’s future relationship with the EU

Professor Steve Peers, University of Essex

Last week’s speeches on the UK’s future relationship with the EU by Theresa May and Boris Johnson give us an opportunity to compare the tone, demeanour and content of these two senior politicians. May’s tone was that of a head girl, while Johnson’s was that of a giggling schoolboy. Her demeanour was that of a village headmistress straightening the buntings at a school fair; his resembled a colonial governor who couldn’t even be bothered to build a railway. And as for content, she argued articulately for the UK to stay close to the EU, while he argued inarticulately to get as far away as possible.

Unlike the EU27, the UK has not yet engaged in the Brexit process in the form of tabling draft treaty texts. I think it would be useful to do that, so in Annex 1 to this blog post I have suggested a treaty text based on the content of Johnson’s speech, and in Annex 2 a draft treaty based on the content of the internal security part of May’s speech.  But before delving into the legalese, let’s have a look at the content of each speech more broadly.

Theresa May’s speech on the security relationship

May’s speech builds on two previous UK government papers on the ‘future partnership’ as regards police and criminal cooperation and defence and foreign policy cooperation. I commented on those papers here. But she adds some additional points worth examining further.

As a starting point, both May and Johnson are the wrong people to give their respective speeches – although for different reasons. In May’s case, it’s because her starting point – to set aside “rigid institutional restrictions or deep-seated ideology” – appears hypocritical. Technically this initial point refers to both sides; but later on in her speech she criticises the “political doctrine and ideology” of the EU27 alone.

The tone here is “we are devoutly religious; you are idol-worshipping savages”. But while May – who was herself laying down the holy writ of interpreting Brexit scripture ex cathedra not so long ago – has rightly been criticised for hypocrisy here, she does have a point about the EU27 side too. This speech could more credibly have been delivered by someone non-partisan enough to point out that the plague of prioritising ideology over pragmatism has infected both these houses.

Internal security

Mrs May starts by referring to terrorist atrocities across the EU, including the UK – although of course EU measures in this field address many other crimes as well. She refers to the UK opting back in to some pre-2009 EU legislation in this field in December 2014 (a process I discuss further here), but not to opting in to some of the legislation adopted since 2009. But the very existence of the opt in process (pre-2009 laws were subject to a British veto and then the possibility of opt out in 2014) refutes the argument (frequently made by some Brexit supporters) that the EU laws in this field were somehow imposed upon the UK.

In more detail, she then refers to cooperation via means not only of the European Arrest Warrant (a fast-track extradition process) and the EU policing body Europol (as discussed in the press), but also the transfer of criminal evidence by means of the European Investigation Order (a 2014 law discussed here), the Schengen Information System (the UK’s 2014 opt in to the policing and criminal law aspects of this database are discussed here), and passenger name data. As she correctly notes, the UK is a “net contributor” of fugitives or police information under at least some of these laws – although both sides benefit from any increase in effectiveness of the criminal justice system in cross-border cases that results.

As she notes, there’s no precedent for a security relationship between the EU and a non-EU country that “captures the full depth and breadth” of the existing relationship of the UK as an EU Member State, although there were “comprehensive, strategic relationships” in areas such as trade. If the “priority” becomes “avoiding any kind of new cooperation” then security will be reduced.

So she proposes a new treaty that “will preserve our operational capabilities” but also “fulfill three further requirements”. First, it must respect “the sovereignty of both the UK’s and the EU’s legal orders”. (She does not refer to any possible role for the UK’s devolved governments here). While the UK will “respect the remit” of the ECJ when participating in EU agencies, there must also be a “principled but pragmatic solution” to respect the UK’s “unique status as a third country with our own sovereign legal order”. (This sentence is weirdly exceptionalist: surely all non-EU countries would consider themselves to have a sovereign legal order). There will need to be “independent dispute resolution” which both sides have “full confidence” in.

Secondly, there need to be data protection safeguards, including a “bespoke arrangement” in this field, involving a role for the UK’s data protection agency. Thirdly, the EU/UK relationship has to be adaptable over time.

Let’s examine this part of the speech more closely. As May says (and demonstrates by evidence), there’s certainly value to the internal security cooperation between the UK and the EU27. However, she doesn’t mention the human rights or sovereignty-based critiques that are sometimes made against that cooperation. Rather her objective appears to be keeping the content of that cooperation going, but with a different institutional framework.

This leads to the first question: what exactly does “preserve our operational capabilities” mean? I rather fear that Mrs May would answer: ““Preserve our operational capabilities” means “preserve our operational capabilities””. So let’s put the question another way. Actually, there are a series of questions. Does the UK simply seek to continue its participation in the EU measures it now takes part in? If so, does it seek to participate in all of them or just some? If just some, which ones? And does it seek amendment to any of them for the purposes of the future UK/EU relationship?

In any event, Mrs May has correctly identified a possible EU objection to her goals. So far the EU negotiation guidelines do not say much about the future relationship in this area, besides: “The EU stands ready to establish partnerships in areas unrelated to trade, in particular the fight against terrorism and international crime, as well as security, defence and foreign policy.” (para 22). However, the EU Commission has made suggestions on the issue to Member States’ officials, in the process of drawing up the EU’s position on this issue. In a series of slides, the Commission has suggested that for future cooperation in this area, the EU27 should only consider the more advanced model of cooperation (including application of a number of EU laws) offered to the states associated with the Schengen system (Norway, Iceland, Switzerland and Liechtenstein) or the very limited cooperation offered to other states like the US and Japan (such as modest improvements in extradition and transfer of evidence). Neither model goes as far as May’s “preserve our operational capabilities” model (probably: again, that depends on what that phrase means exactly).

Some readers might leap to the Commission’s defence at this point. After all, the EU27 has said “no ‘cherry-picking’”! Except…it hasn’t said that, in this area. The EU negotiation guidelines only state that position in relation to single market issues.  But shouldn’t that same rule apply here anyway, for the sake of consistency? You might think so, except in the area of external security (see below) the Commission is quite happy to contemplate a bespoke arrangement. And in the area of fisheries, it strongly endorses it. The “no cherry picking” rule is thus a political choice, which the Commission argues for in some areas, and argues against in others. So why argue for it here?

Having said that, it would likely have been easier for May to argue for building on an existing model than to ask for a brand new one. Indeed, the draft treaty I propose in Annex 2 does just that, adapting the text of the Schengen association agreement between the EU, Norway and Iceland in various ways which I explain further in the Annex. I chose this model (rather than, say, the extradition agreement between the EU, Norway and Iceland) because it’s the closest thing to what May is asking for – continued association with a large and evolving body of EU law, which does not directly subject the non-EU states concerned to the jurisdiction of the ECJ. (If you’re surprised by that last part, you have unfortunately fallen for the “Remainer Euromyth” that any close association with EU legislation by a non-EU country requires that non-EU country to be fully and directly subject to ECJ jurisdiction).

It’s less politically and legally complicated to ask for something based on existing model; such a treaty should also take less time to draft. It would therefore be harder for the EU to reject such a request. After all, the UK, like Norway and Iceland, applies the Schengen rules relating to criminal law and policing. Of course, unlike them, the UK does not apply the Schengen open border rules. But why should that matter? We are talking about a treaty on criminal law and policing, not on immigration law.

So why didn’t May request this? It may because any reference to Norway would panic those hardline Brexit supporters who would instantly think it referred to the EU/Norway trade relationship, which they are critical of – or rather, which they have recently become critical of. (“Don’t mention the Norway model!” I mentioned it once, but I think I got away with it). But there are a variety of Norway models available: for instance, unlike the EEA treaty, which applies to trade between the EU and Norway, in this field there’s no international court (the EFTA Court) which usually follows ECJ case law. (As you can see in the Annex, though, a divergence from ECJ case law could terminate the treaty with the  Schengen associates).  Another model – which the UK has already agreed to – is the Lugano Convention on civil litigation, which entails taking account of ECJ case law.

In this area, the “Norway model” could equally be called the “Swiss model”, which would at least presumably attract the support of the high-profile Brexiter Dan Hannan. But that would in turn lead to a knee jerk objection from the EU27, which dislikes the EU/Swiss model of many different treaties without a common institutional core, and is trying to renegotiate it.

While some thought the Prime Minister showed willingness to accept an ECJ role in her speech, her reference to protecting the UK’s “sovereign legal order” and to “independent dispute resolution” which both sides have “full confidence” in suggests otherwise. However, the problem with demanding a new approach to dispute settlement in the field is that it may violate an EU27 “red line” – in this case not a merely political objection to “cherry-picking”, but the long-standing case law of the EU Court of Justice.

Why is that? Well, let’s assume that May’s desire to “preserve our operational capabilities” is indeed an intention to apply EU legislation, or some large proportion of it, as such. One day, despite an obligation to “take account” of ECJ case law (if agreed), the courts in the UK decide not to follow a particular ECJ ruling – or a subsequent ECJ ruling conflicts with a prior UK court ruling. The EU and the UK discuss the divergence in case law, but can’t agree how to settle it. What next?

It might seem that the obvious way to settle disputes like that is to create a joint EU/UK court with jurisdiction to rule on them. But the Court of Justice has repeatedly said that having its judges “double-hat” and sit on other courts interpreting EU law will violate the Treaties (see Opinion 1/91).

OK, what about a court or arbitration body which does not have ECJ judges on it? In that case, the ECJ has said that such a court or body cannot interpret EU law with binding effect for the ECJ and the other EU institutions or EU Member States (see Opinion 1/92 and Opinion 1/00). You can call that “rigid institutional restrictions” or “deep-seated ideology” if you like; but if you think about it for a moment, the ECJ’s objection here is identical to Brexiters’ objection to the ECJ ruling on UK law.  (And note that this case law can only be overturned by Treaty amendment).

In any event, differences between the UK and EU27 approaches to applying EU law in this area will lead to legal challenges before national courts too. I can hear the cries of “scaremongering” already: but in fact such challenges have already been brought, just on the prospect of Brexit happening. The Irish Supreme Court just agreed to refer the O’Connor case to the ECJ, asking whether European Arrest Warrants issued by the UK still have to be enforced by Ireland given that the UK will not definitely be applying the EAW law after Brexit Day. The Supreme Court noted that there are twenty other cases in Ireland alone raising the same point. And the Irish courts referred a similar case to the ECJ on transferring asylum-seekers to the UK months ago.

One way to address issues like these (although it will not be sufficient by itself to address all divergence issues) is to require the UK’s (and EU Member States’) compliance with the ECHR as a condition of the future treaty. While states do extradite people to countries which don’t apply the ECHR, the ECHR limits such decisions if human rights will be breached (case law since Soering v UK; and see also the Petruhhin case from the ECJ). Any EU/UK treaty in this area would be based on a high degree of mutual trust, which the ECJ has ruled is founded upon ratification of the ECHR by the countries concerned, including non-EU countries (see para 78 of the NS judgment). It therefore makes sense for the treaty to spell out what would in any event be the nearly certain outcome (at the hands of national and EU courts, and the EU institutions) if the UK did want to denounce the ECHR.

Another aspect of human rights conditionality in the future treaty can’t be avoided, as it is hard-wired into the EU Charter of Rights as interpreted by the ECJ. That is the issue of data protection. Here there are two basic models for non-EU countries: a) simply agreeing to apply EU data protection law as such (as Norway and Iceland have done); or b) asking the EU Commission for an “adequacy decision”, on the basis that the non-EU state’s data protection law is broadly similar to EU law, to keep data flowing freely. There can still be data transfers in the absence of an adequacy decision, but they will likely be more complicated: see Articles 46 and 49 of the General Data Protection Regulation (GDPR), which will govern this issue by Brexit day.

Despite this, May’s speech refers to a “bespoke” arrangement here, with no specific mention of an adequacy decision. If this is only meant to refer to cooperation between UK and EU data protection bodies, that should not be too difficult to agree (see Article 50 of the GDPR on this point). But if she means that the EU should invent a brand new model of accepting the compatibility of UK data protection law, such “Cakeism” will not only be politically contested but also likely legally impossible.

Again, I hear distant cries of “scaremongering”. But on this point there’s even existing case law, in which the ECJ insists on a significant degree of similarity of a non-EU country’s data protection law before an adequacy decision can be adopted. Since this case law is based on the EU Charter of Rights, which has the “same legal value” as the EU Treaties (Article 6 TEU), it is impossible to negotiate a way around it – unless May thinks that a “bespoke” arrangement could involve the EU agreeing to amend the Charter at the behest of a departing former Member State. (!)

Anyway, since May inists that the UK matches the EU’s high standards on data protection, why should agreeing to either of these models cause a problem?  It may be that she is aware of the genuine difficulty that UK law has been found to breach EU law as regards mass surveillance.  Inevitably this forces a difficult choice between sticking close to EU law in the interests of preserving data flows, and diverging significantly from EU law with the consequences that those flows will be impeded. Again, though: in this field the EU’s “no cherry-picking” rule is not just a (supposedly) good idea; it’s the law. (On all these issues, see my discussion in The Conversation – supplemented by posts from this blog on the subsequent Watson/Tele2 and EU/Canada judgments).

External security

The foreign and defence policy part of May’s speech begins by stating that the UK’s role in these areas was never primarily focused on the EU, and that the UK will pursue “an independent foreign policy” after Brexit. Those two assertions are somewhat contradictory (if the UK’s foreign policy had little to do with the EU, wasn’t it “independent” already?), and overlook the UK’s capacity to veto foreign and defence policy measures as an EU Member State.

But May is nevertheless interested in a post-Brexit security partnership which “respects both the decision-making autonomy of the European Union and the sovereignty of the United Kingdom”. She believes this can be agreed in 2019 already, during the “implementation” (or transition) period, as the Commission has proposed (see the draft text of the withdrawal agreement clauses on the transition period, annotated here. As I point out in that annotation, the Council – but not the Commission – is also willing to consider an early treaty with the UK on internal security issues). In her view, the UK is willing to work with the EU’s deeper integration in this field, while strengthening NATO and other alliances.

The Prime Minister suggests a focus on three areas. First, there should be regular diplomatic consultation on joint challenges, as well as coordination of policy “where our interests align”. In particular, she supports close cooperation on sanctions, rolling over existing sanctions on Brexit and cooperating on future sanctions. Although May doesn’t mention it, cooperation in this field is important because the UK has a lot of the intelligence used to decide on sanctions, as well being the location of a lot of assets held by those subject to such measures.

Second, she supports operational coordination, with the UK possibly contributing to EU defence missions and operations (as a number of non-EU countries do) as well as possibly contributing to EU foreign aid programmes. However, in return the UK must “play an appropriate role in shaping” the actions in such areas.

Third, the UK has a continued interest in defence capabilities, particularly in staying in EU defence industry measures like the European Defence Fund and European Defence Agency. There also needs to be coordination in response to global cyber-attacks (May mentions Russian attacks specifically) and cooperation in the space industry.

While May’s suggestions here are inevitably less detailed (after all, she spent years as the Home Secretary, not the Foreign or Defence Secretary), they seek to continue the UK’s current role in the EU even more closely than her home affairs suggestions do. In principle, there are fewer political and legal difficulties here. As noted above, the Commission’s slides suggesting options for the future relationship contemplate a possible bespoke relationship between the UK and EU in this area already. Furthermore, there is not as much of a complication relating to the role of the ECJ, as in this field it essentially only has jurisdiction over sanctions issues (although since EU sanctions law is often litigated, the supply of intelligence from the UK to the EU on sanction ‘targets’ is likely to become a specific legal issue).

The biggest difficulties may arise from the decision-making issue. Unsurprisingly, the EU Treaties give a vote in EU decision-making institutions only to Member States. It should, however, be possible to agree that the UK is consulted on EU measures (as with the precedent of the Schengen association agreement) and in any event to provide that the UK only contributes to those specific EU missions and activities that it wants to contribute to.

The strongest reaction to this part of the speech has come from those who think it is outrageous that the UK retains any link to any EU defence measures. “This isn’t the Brexit Putin was looking for!” Have those people been objecting to NATO – a more advanced military alliance involving the UK and 22 of the same 27 EU countries – for the last seventy years? Or does the adjective “European” induce some sort of irrational phobia?

Conclusions

There’s a deal to be done on both these aspects of security – although it would require both the Commission to relinquish its self-appointed task as the keeper of the sacred flame of its invented orthodoxy on internal security, and Mrs May to accept that there are more constraints than she might like on her desire to remain closely aligned with the EU in these field. But could May sell such a deal to those in her party who might describe such an arrangement as suitable only for a “vassal state”?  

Well, she could tell them what she told the Munich conference: “We must do whatever is most practical and pragmatic in ensuring our collective security”. And she could go on to tell them to stick their “deep-seated ideology” where the sun don’t shine. In practice, of course, she won’t say that – because she fears that they would stick it between her shoulder blades instead.

And that brings us neatly to Boris Johnson.

Boris Johnson’s ‘liberal Brexit’ speech

The purported point of Johnson’s speech was to reach out to “Remainers”. But Johnson is manifestly the wrong person for that job. First of all, he is the minister most closely associated with the false statement about the amount of the UK’s budget contribution during the referendum – and he has even doubled down on this dishonesty since. You might as well send out an employee of the St Petersburg Internet Research Agency to warn everyone against Twitter bots.

Secondly, he is not even a consistent supporter of the Leave cause, having made contrary arguments on numerous occasions. Indeed, the only cause Johnson has consistently supported is himself.  

Thirdly, his speech does not suggest any form of compromise, but essentially just repeats “we are right, you should just agree with us”. But in that context, the speech serves the cynical purpose of claiming “we reached out to them, and they’ve rejected us”, so setting up a narrative of “bitter, angry Remainers” which has been duly played out in the press since – see this rant about “rabid” Remainers, for just one example. Of course, this ignores the endless angry comments spewed in the other direction for months (“enemies of the people”, “crush the saboteurs”, and so on). Johnson even starts that ball rolling himself, with sneers in his speech at “elites” – although Alexander Boris de Pfeffel Johnson, graduate of Eton and Balliol College Oxford, former London Mayor and now Foreign Secretary, is about as “salt of the earth” as Marie Antoinette. (“Let them eat cake – and I’ll have it too!”)

Now that we’ve seen that culture war wood, let’s examine Johnson’s anemic trees. (Note that I’m using that word “let’s” in the previous sentence to refer to a promise I will now keep, rather than to issue an “invitation” which completely lacks sincerity). He constructs three straw man arguments of Remainer concern – “strategic”, “spiritual” and “economic” – and duly knocks them down.

On security, Johnson refers to UK defence spending, and briefly refers to continued cooperation with EU foreign policy, particularly in the area of sanctions. This compares poorly with May’s subsequent detailed comments, which accept that treaties need to be negotiated, there are many other areas of foreign policy and defence cooperation, and there are important internal security issues as well. If Johnson were a comic book plot, he’d be a continuity error.

On the spiritual issues, Johnson is not referring to faith but to culture. He starts by reaffirming British internationalism; but this necessarily concedes that such internationalism was not constrained, but rather flourished, during the UK’s membership of the EU. His conception of international travel consists mainly of sex tourism, stag parties and Spanish retirement. There’s no mention of the many British families working in the EU – or the millions of EU27 citizens in the UK, who are one of Remainers’ key concerns.

He’s got the details wrong too. He refers to continued participation in Erasmus, but as I detailed here, under current EU law, the only non-EU countries fully participating in Erasmus are those who apply free movement rules or who are applying to join the EU. The UK will be in neither category. And on Planet Johnson, cheap flights will just continue as if they were a law of nature, not the consequence of thirty years of EU aviation industry legislation which is linked (for non-EU countries) to the continued application of EU law and partial jurisdiction of the ECJ (see the European Common Aviation Agreement).

His comments on retirees (“no sensible reason why we should not be able to retire to Spain”) is a classic example of what I call the “1973 reset” category of tropes. For many Western European countries, 1973 began as the latest of many years of nearly full employment, but ended with the first of many curbs on employment migration, as the oil price surge resulting from a Middle Eastern war unfortunately upset that pillar of post-war social democracy. Southern European countries were then countries of net emigration, but have long since become countries of net migration, and have changed their immigration laws to suit. For instance, for non-EU retirees, Spain has a higher financial threshold and lots of additional paperwork. (Of course, people with Johnson’s level of wealth will never face many difficulties moving to any country they might wish to go to).

Anyway, after a brief reverie discussing the “Boris Bridge” to France, the “spiritual” bit of the speech turns out mainly to consist of the Leave campaign’s sovereignty arguments. In short, EU law is a complicated thing devoted to further integration. On the “complications” point, I doubt many citizens are aware of the nuances of the process for approving Statutory Instruments, the various categories of the (awkwardly unelected) members of the House of Lords, or many other features of the British constitution. The further integration point is true, but misleading: the UK had an opt-out or a veto over many key aspects of EU integration (as discussed here), so had struck a balance between its transactional interests in EU membership and the more excitable visions of (some) Continental politicians.

Given that many argue that there’s a sovereignty/economic tradeoff inherent in the Brexit debate, that brings us to the economic issues in Johnson’s speech. Except Johnson does not see any trade-off at all. He repeats claims of extra spending available for public services, although economic forecasts suggest a slower rate of growth (and therefore government revenues). He vaguely hints that maybe low-skilled immigration cut wages, although economic analysis does not support that claim. Concerns about sovereignty, in his view, trump economics – although “bear in mind that the economic benefits of membership are nothing like as conspicuous or irrefutable as is sometimes claimed.”

This view is rather contradicted by the prominent Conservative who claimed five years ago that “I would vote to stay in the single market….I'm in favour of the single market. I want us to be able to trade freely with our European friends and partners." Awkwardly, the man making that statement was also Boris Johnson.

How to explain his change of view? Johnson quotes some estimates of the cost of EU regulation that he likes – while avoiding any mention of his own government’s negative economic forecasts of the consequences of leaving the single market. He states that the UK has increased its trade with non-EU countries faster than it has to the EU. Awkwardly, this simply contradicts the Leave trope that being an EU member prevents the UK from increasing trade with non-EU countries. 

There’s a broader misuse of statistics here. Three issues are relevant when comparing the growth rates of UK trade with the EU and non-EU countries: a) the relative share of the UK’s existing trade links; b) the growth rate of trade; and c) the likelihood that Brexit increases – or reduces – a) and b). Obviously the bigger the share of existing trade links, the more important an increase or reduction in the growth rate of trade with that partner (or indeed a fall in trade, ie negative growth) is.

Johnson’s comments ignore points a) and c) completely – except to the extent that they mislead about c): since the UK already participates in the EU’s free trade agreement with one country he mentions, South Korea, the likelihood of Brexit greatly increasing trade with that country is limited. (And awkwardly, UK exports to South Korea have shown the biggest increase of any country which he mentions).  The bottom line is that the EU is the UK’s largest trading partner – so ignoring points a) and c) as regards the EU means that Johnson fails to engage with Remainers’ main economic argument: that Brexit (and particularly leaving the single market) is liable to reduce trade with our largest trading partner.

Johnson argues that it doesn’t matter because global standards are important too, and the UK need only comply with EU rules if its companies export to the EU – which is no “Eden of uniformity” anyway. Let’s break this down further. In some areas global standards are significant; but then the EU plays a role in negotiating them too. But in some areas there is little or no global involvement, and the EU has the biggest role in setting the rules. Awkwardly, May’s subsequent speech “retconned” Johnson again by emphasising one such area: data protection.

Even more awkwardly, Johnson’s own response to a question following the speech gives a further example, suggesting excitement at the prospect of new UK regulations on organic carrots. How exciting is this exactly? There is EU legislation on organic food, but it makes no reference to international standards (except as regards animal welfare). So the EU rules are the only show in town for anyone exporting there. If UK farmers want to export organic carrots to the EU, they will have to comply with identical or equivalent standards to the EU’s (see Articles 32 and 33 of the law). It’s actually conceptually quite similar to the data protection rules.

So there’s no chance of increased sales to the EU as a result of changing UK rules. If anything, the reverse, if changes in UK law mean that UK produce can no longer be labelled as “organic” to justify a higher price for the EU’s supermarket shoppers. The UK could try to sell more to non-EU countries, but does the EU law prevent that anyway?

As for the lack of detailed EU rules in some areas, that’s true.  (It’s equally true that even such purely national laws can be challenged for breach of Treaty free movement rules – if you’re an exporter from a Member State). But hold on: Johnson just told us that we must leave the EU because of the goal of creating an “overarching European state”. So is the problem that the EU is drunk with power – or that it can’t organise a p*ss-up in a brewery? It can’t be both. The point is that for every dreamy Eurocrat dreaming Eurofederalist dreams, there a dozen more who are focussing on helping farmers sell more carrots.

Johnson refers to possible changes to national laws on fisheries, live animal exports, agricultural subsidies, VAT, planning, public procurement, environmental impact assessment, stem cell technology, and financial services. Does EU law hold the UK back in each of these areas? Only a specialist could answer (although the Commission has recently proposed to give Member States vastly more flexibility over VAT rates). What impact would any of these changes have on trade – given that financial services are a huge UK export? (Organic) crickets. 

Conclusions

Johnson’s speech fundamentally fails at its purported task because it does not really address the core of Remainers’ concerns about the post-Brexit UK: its relationship with the EU. His speech is an argument to leave the European Union, not for any particular future relationship with it. He ignores both specific issues (EU citizens in the UK, and most notably the Irish border issue) as well as the broader framework. He does mention Erasmus, flights and retirement; but he glides over any possible problems by attaining ever greater heights of glibness.

On the other hand, May’s speech makes a pragmatic, detailed case about the future relationship. Rather than reheat arguments about whether to leave, she presents a case for staying close afterward. In this far less exciting – but infinitely more realistic – future, the paradigm is not sexy time in Thailand, but turgid texts discussed by tired technocrats in airless rooms. In comparison, Johnson’s enthusiasm is boundless, yet it is equally aimless; and his conception of internationalism is in a world of his own.

We will see which of these visions dominates the UK’s future relationship with the EU.

Annex 1

The “Treaty of Boris”

[signed at Wiff-Waff, 1 April 2020]

[based on the content of Boris Johnson’s speech]

Article 1

Yada yada yada

Article 2

*this space intentionally blank

Annex 2

The “Treaty of Paris”

[signed at Bataclan Theatre, 13 November 2020]

[based on the content of Theresa May’s speech]

Article 1

The United Kingdom shall be associated with the activities of the European Union in the field of judicial cooperation in criminal matters and police cooperation.

This agreement creates reciprocal rights and obligations in accordance with the procedures set out herein.

Based on Article 1 of the Schengen association agreement with Norway and Iceland, but slightly more succinct (and not limited to Schengen-related issues). The treaty would likely have a preamble, but I have omitted one for the sake of brevity.

Article 2

1. The provisions of EU legislative acts as listed in the Annex to this Agreement as they apply to the Member States of the European Union, shall be implemented and applied by the United Kingdom.

2. The acts and the measures taken by the European Union amending or building upon the provisions referred to in the Annex, to which the provisions set out in this Agreement have been applied, shall, without prejudice to Article 8, be accepted, implemented and applied by the United Kingdom.

3. The United Kingdom shall implement and apply EU legislative acts in the field of judicial cooperation in criminal matters and police cooperation other than those referred to in paragraph 2, if the Mixed Committee so decides.

4. The Mixed Committee may decide upon [amendments to the legislation listed in the Annex, as it applies to relations between the European Union and the United Kindgom.

The first two paragraphs are based on Article 2 of the Schengen association agreement with Norway and Iceland, but again slightly more succinct. The Annex would consist or some or all of the EU laws in this field which already apply to the UK, depending on what the two sides agree. The obligation of the UK to sign up to amending measures in this area (Article 2(2)) would be qualified by the ‘sovereignty clause’ in Article 8.

Paragraph 3 would allow the UK and the EU to add UK participation in other EU laws in this field, subject to their joint agreement. Paragraph 4 would allow for amendments to EU legislation as it applies to the UK, if both sides agree (the EU/Norway and Iceland extradition treaty is the precedent here: it waives some of the rules in the EAW legislation). It would also be possible to agree some amendments to EU legislation at the outset as regards its application to the UK, and set those amendments out in the Annex too. In that case, paragraph 1 would include the phrase (“…as amended in the Annex, as regards their application to the UK”). It is presumed that EU data protection would be listed in the Annex; in that case there would be no disruption to data flows between the two sides. For technical reasons, the UK’s relationship with EU bodies like Europol might need a separate treaty.

Article 3

1. A Mixed Committee is hereby established, consisting of representatives of the government of the United Kingdom, the members of the Council of the European Union, hereinafter referred to as the "Council", and of the Commission of the European Communities, hereinafter referred to as the "Commission".

2. The Mixed Committee shall take decisions, as provided for in this Agreement, by consensus. It shall adopt its own Rules of Procedure by consensus.

3. The Mixed Committee shall meet at the initiative of its President or at the request of any of its members.

4. Subject to Article 4(2), the Mixed Committee meets at the level of Ministers, senior officials or experts, as circumstances require.

5. The office of President of the Mixed Committee shall be held:

- at the level of experts: by the representative of the European Union;

- at the level of senior officials and Ministers: alternately, for a period of six months by the representative of the European Union and by the representative of the government of the United Kingdom.

Based on Article 3 of the Schengen association agreement with Norway and Iceland, but with much wider powers for the Mixed Committee to act.

Article 4

1. The Mixed Committee shall address, in accordance with this Agreement, all matters covered by Article 2 and shall ensure that any concern entertained by the United Kingdom is duly considered.

2. In the Mixed Committee at the ministerial level, the representatives of the United Kingdom shall have the opportunity:

- to explain the problems they encounter in respect of a particular act or measure or to respond to the problems encountered by other delegations;

- to express themselves on any questions concerning the development of provisions of concern to them or the implementation thereof.

3. Meetings of the Mixed Committee at ministerial level shall be prepared by the Mixed Committee at the level of senior officials.

4. The representatives of the governments of the United Kingdom shall have the right to make suggestions in the Mixed Committee relating to the matters mentioned in Article 1. After discussion, the Commission or any Member State may consider such suggestions with a view to making a proposal or taking an initiative, in accordance with the rules of the European Union, for the adoption of an act or measure of the European Community or the European Union.

Essentially identical to Article 4 of the Schengen association agreement with Norway and Iceland. Note that this proposal re-uses the precedent of a non-EU country having a consultative role in EU discussions at ministerial level, although this does not entail the power to vote in the Council.

Article 5

Without prejudice to Article 4, the Mixed Committee shall be informed about the preparation within the Council of any acts or measures which may be relevant to this Agreement.

Essentially identical to Article 5 of the Schengen association agreement with Norway and Iceland. Note that this proposal re-uses the precedent of a non-EU country being informed of discussions in the Council.

Article 6

When drafting new legislation in a field which is covered by this Agreement, the Commission shall informally seek advice from experts of the United Kingdom in the same way as it seeks advice from experts of the Member States for drawing up its proposals.

Essentially identical to Article 6 of the Schengen association agreement with Norway and Iceland. Note that this proposal re-uses the precedent of the Commission consulting a non-EU country when drawing up proposals, although this would not entail the UK having an EU Commissioner.

Article 7

1. The European Parliament, national parliaments of EU Member States, and the United Kingdom Parliament shall establish an inter-parliamentary committee to discuss the subject-matter of this Agreement. This committee shall establish its own rules of procedure.

2. When the topics discussed by the committee fall at least partly within the competence of the devolved parliaments and assemblies of the United Kingdom, the committee’s rules of procedure shall provide for the participation of representatives of those devolved parliaments and assemblies.

This replaces Article 7 of the Schengen association agreement with Norway and Iceland, which referred to a separate treaty on asylum applications – an issue not mentioned in the Prime Minister’s speech. Given that the role of the European Parliament in this field is much greater since the Schengen association agreement was agreed in 1999, a specific clause on this issue seems desirable. It is useful to involve EU national parliaments too. The clause on UK devolved assemblies and parliaments takes account of the devolution of power in the UK.

Article 8

1. The adoption of new acts or measures related to matters reffered to in Article 2 shall be reserved to the competent institutions of the European Union. Subject to paragraph 2, such acts or measures shall enter into force simultaneously for the European Union and its Member States concerned and for the United Kingdom, unless those acts or measures explicitly state otherwise. In this context, due account shall be taken of the time indicated by the United Kingdom in the Mixed Committee as the time necessary to enable the United Kingdom to fulfil its constitutional requirements.

2. (a) The adoption of the acts or measures referred to in paragraph 1 to which the procedures set out in this Agreement have been applied, shall be notified immediately by the Council to the United Kingdom. The United Kingdom shall decide independently whether to accept their content and to implement it into its internal legal order. These decisions shall be notified to the Council and to the Commission within thirty days of the adoption of the acts or measures concerned.

(b) If the content of such an act or measure can become binding on the United Kingdom only after the fulfilment of constitutional requirements, the United Kingdom shall inform the Council and the Commission of this at the time of its notification. The United Kingdom shall promptly, and at the latest six months from notification by the Council, inform the Council and the Commission in writing upon fulfilment of all constitutional requirements. From the date laid down for the entry into force of the act or measure for the United Kingdom and until the information upon fulfilment of constitutional requirements, the United Kingdom shall provisionally apply, where possible, the content of such act or measure.

3. The acceptance by the United Kingdom of the content of acts and measures referred to in paragraph 2 shall create rights and obligations between the United Kingdom on the one hand, and the European Union and those of its Member States bound by those acts and measures, on the other hand.

4. In case:

(a) the United Kingdom notifies its decision not to accept the content of an act or measure referred to in paragraph 2 and to which the procedures set out in this Agreement have been applied; or

(b) the United Kingdom does not make a notification within the thirty days time limit set out in paragraph 2(a); or

(c) the United Kingdom does not make a notification within the six month time limit set out in paragraph 2(b) or does not provide for provisional application as envisaged in the same subparagraph from the date laid down for the entry into force of the act of measure concerned for it;

this Agreement shall be considered terminated, unless the Mixed Committee, after a careful examination of ways to continue the Agreement, decides otherwise within ninety days. Termination of this Agreement shall take effect three months after the expiry of the ninety days period.

5. The Mixed Committee may decide to settle the dispute by suspending the reciprocal application between the parties of only some of the measures listed in the Annex. In that case, such suspension shall take effect three months after the expiry of the ninety days period referred to in paragraph 4.

6. The United Kingdom may notify the European Union that where a new act or measure falls at least partly within the competence of the devolved governments of the United Kingdom, the time limits referred to in this Article may apply at different times for different parts of its territory. 

The United Kingdom may also notify the European Union that where a new act or measure falls at least partly within the competence of the devolved governments of the United Kingdom, paragraph 4 may apply only to parts of its territory. In that event, the Mixed Committee shall decide on the termination or continuation of this Agreement pursuant to paragraph 4, or partial suspension pursuant to paragraph 5, taking this territorial distinction into account.

Paragraphs 1 to 4 are based on Article 8 of the Schengen association agreement with Norway and Iceland, which includes a ‘guillotine clause’ for the entire agreement if those countries refuse to accept an amending measure. Note that as with the Schengen association agreement, it is open to the Mixed Committee to keep the treaty in force even in the event of the UK not accepting an amendment.

In light of the wider scope of this Agreement compared to the Schengen association agreement, I suggest a more measured approach to possible termination of the treaty, by explicitly providing for only partial termination of the treaty as a remedy (paragraph 5). This is similar to the approach taken to the EEA.

Paragraph 6 of the proposed clause takes account of the devolution of power in the UK.

Article 9

1. In order to achieve the objective of the Contracting Parties to arrive at as uniform an application and interpretation as possible of the provisions referred to in Article 2, the Mixed Committee shall keep under constant review the development of the case law of the Court of Justice of the European Communities, hereinafter referred to as the "Court of Justice", as well as the development of the case law of the competent courts of the United Kingdom relating to such provisions. To this end a mechanism shall be set up to ensure regular mutual transmission of such case law.

2. Subject to the adoption of the necessary modifications to the Statute of the Court of Justice, the United Kingdom shall be entitled to submit statements of case or written observations to the Court of Justice in cases where a question has been referred to it by a court or tribunal of a Member State for a preliminary ruling concerning the interpretation of any provision referred to in Article 2.

This is based on Article 9 of the Schengen association agreement with Norway and Iceland. See comments on Article 11.

Article 10

1. The United Kingdom shall submit reports annually to the Mixed Committee on the way in which its administrative authorities and courts have applied and interpreted the provisions referred to in Article 2, as interpreted by the Court of Justice, as the case may be.

2. If the Mixed Committee, within two months after a substantial difference in the case law of the Court of Justice and the courts of the United Kingdom or a substantial difference in application between the authorities of the Member States concerned and those of the United Kingdom in respect of the provisions referred to in Article 2 has been brought before it, has not been able to ensure the preservation of a uniform application and interpretation, the procedure in article 11 shall apply.

This is based on Article 10 of the Schengen association agreement with Norway and Iceland. See comments on Article 11.

Article 11

1. In the case of a dispute about the application of this Agreement or in a case where the situation provided for in Article 10(2) occurs, the matter shall be officially entered as a matter of dispute on the agenda of the Mixed Committee at ministerial level.

2. The Mixed Committee shall have ninety days from the date of the adoption of the agenda on which the dispute has been entered within which to settle the dispute. The Mixed Committee may decide to settle the dispute by suspending the reciprocal application between the parties of only some of the measures listed in the Annex.

3. In a case where the dispute cannot be settled by the Mixed Committee within the period of ninety days envisaged in paragraph 2, a further period of thirty days shall be observed for reaching a final settlement.

If no final settlement is reached, this Agreement shall be considered as terminated. Such termination shall take effect six months after the expiry of the thirty day period.

This is based on Article 11 of the Schengen association agreement with Norway and Iceland. Articles 9-11 strike a balance between judicial autonomy of the Contracting Parties and the need to ensure consistent application. Rather than Norway and Iceland being bound by ECJ jurisdiction as such, there is a dispute settlement process in the event of divergent case law. In the event that there is no political settlement to this dispute, the treaty is suspended. As with Article 8, I suggest a more measured approach here given the wider scope of the Agreement, providing for only partial termination as a remedy (Article 11(2), second sentence).  

Article 12

1. As far as administrative costs involved in the application of this Agreement are concerned, the United Kingdom shall contribute to the general budget of the European Communities an annual sum of: …

2. The United Kingdom shall have the right to receive documents drawn up by the Commission or within the Council pertaining to this Agreement.

This is based on Article 12 of the Schengen association agreement with Norway and Iceland. The exact amount of the UK contribution would have to be negotiated. 

Article 13

1. This Agreement shall not affect in any way any other agreement, or future agreement, concluded between the United Kingdom and the European Union.

2. In accordance with the Treaties establishing the European Union and the Withdrawal Agreement, this Agreement shall not affect the Common Travel Area between the United Kingdom and Ireland.

This is a more succinct version of Article 13 of the Schengen association agreement with Norway and Iceland. Paragraph 2 replaces a reference to the Nordic passport union in Article 13(3) of the other treaty by a reference to the Common Travel Area between the UK and Ireland, which is protected by Protocols attached to the EU Treaties. It is assumed that the Withdrawal Agreement will also contain provisions on this issue.

Article 14

This Agreement [does] [does not] apply to…

This is based on Article 14 of the Schengen association agreement with Norway and Iceland. The issue of territorial scope will likely be relevant to Gibraltar, the Channel Islands and the Isle of Man, and will have to be negotiated. 

Article 15

1. [same text for paras 1-3]

1. This Agreement shall enter into force one month following the day on which the Secretary General of the Council, who shall act as its depositary, has established that all formal requirements concerning the expression of the consent by or on behalf of the Parties to this Agreement to be bound by it have been fulfilled.

2. With respect to acts or measures adopted after the signature of this Agreement but before its entry into force, the period of thirty days referred to in Article 8(2)(a), last sentence shall start to run from the day of entry into force of this Agreement.

This is based on Article 15 of the Schengen association agreement with Norway and Iceland. Paragraphs 15(4) and (5) of that treaty are left out, as they are not relevant here.

Article 16

1. This Agreement may be denounced by the United Kingdom or the European Union. Such denunciation shall be notified to the depositary. It shall take effect six months after notification.

2. In the event that the United Kingdom denounces the European Convention on Human Rights, this treaty shall terminate on the date that such denunciation becomes effective.

In the event that a Member State of the European Union denounces the European Convention on Human Rights, this treaty shall terminate as between the United Kingdom and that Member State on the date that such denunciation becomes effective.

Paragraph 1 is based on Article 16 of the Schengen association agreement with Norway and Iceland. Paragraph 2 spells out the requirement that, given the depth of the cooperation, the UK (and EU Member States) must continue to apply the ECHR as a condition of the treaty staying in force. It is likely that the EU would anyway seek to terminate the treaty if that occurred by using the usual termination provision, but it is useful to spell this out.

Article 17

The consequences of denunciation of this Agreement, or its termination, shall be the subject of an agreement between the Parties. If no agreement can be reached, each Party will decide upon the measures to be taken.

This is based on Article 17 of the Schengen association agreement with Norway and Iceland. 

Article 18

1. This Agreement replaces the provisions of the Withdrawal Agreement relevant to judicial cooperation in criminal matters and police cooperation, as from its entry into force pursuant to Article 15.

This is based on Article 18 of the Schengen association agreement with Norway and Iceland, but refers to the Brexit withdrawal agreement rather than a previous treaty on association with Schengen which Norway and Iceland had agreed.

I have omitted the boilerplate text and the end and the signatures. The Annex listing which EU laws the UK is still associated with – and any possible amendments – would have to be negotiated.

Barnard & Peers: chapter 24, chapter 25, chapter 27

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