On Flights, Rock Concerts and the Needle in a Haystack A report from the Court of Justice of the European Union’s oral hearing on the PNR directive

 

 

Christian Thönnes, research assistant at the Department of Public Law of the Max Planck Institute for the Study of Crime, Security and Law in Freiburg.

Christian Thönnes ist wissenschaftlicher Mitarbeiter in der Abteilung Öffentliches Recht des Freiburger Max-Planck-Instituts zur Erforschung von Kriminalität, Sicherheit und Recht.

 

13 July 2021 was a potentially fateful day for the balance of privacy and security in the European Union. The Court of Justice of the European Union (CJEU) held an oral hearing in its preliminary ruling procedure C-817/19. Following a legal challenge undertaken by the Belgian NGO Ligue des Droits Humains, the Constitutional Court of Belgium had submitted ten preliminary questions to the CJEU (arrêt n°135/2019 du 17 octobre 2019). These questions concern the interpretation of Directive (EU) 2016/681 of 27 April 2016 on the use of passenger name record (PNR) data for the prevention, detection, investigation and prosecution of terrorist offences and serious crime (in short: PNR Directive) and its compatibility with EU primary law. The hearing did offer important insights into the court’s thinking. Especially judge-rapporteur Mr. von Danwitz asked the EU Commission many critical questions which do not appear to portend good news for proponents of this unprecedented surveillance measure. After having worked on a similar case for the Berlin-based strategic litigation NGO Gesellschaft für Freiheitsrechte, I attended the oral hearing. I am providing this entry as a brief summary and analysis.

 

This report hopefully encapsulates the high stakes of the case in question: The PNR preliminary ruling procedure could result in a landmark decision, laying the doctrinal groundwork not only generally for the mass retention of travel data in the name of defending security, but more specifically for the deployment of self-learning algorithms in order to pre-emptively detect presumptively suspicious movement patterns. As such, the CJEU has to deal with one of the first EU-wide, large-scale use cases of predictive policing. If the court were to essentially approve of this paradigm shift, a radical expansion of technology-driven surveillance to all sorts of ordinary human behavior, regardless of individual prior suspicion or imminent threat, could ensue. In its national transposition law, the Belgian parliament, for instance, decided to expand the PNR’s scope of application beyond only aviation to international trains, busses and ferries (Doc. parl., Chambre, 20152016, DOC 54-2069/001, p.7). 

 

The PNR Directive: An unprecedented tool of technology-driven mass surveillance

 

The PNR Directives obliges EU Member States to require air carriers to transmit a set of data for each passenger to national security authorities, so-called “Passenger Information Units”. PNR (passenger name record) datasets contain unverified information provided by passengers to the airlines or to a travel agency in order to facilitate the processing of each flight. The exact content of these PNR datasets depends on the commercial needs of each airline. All necessary data categories to be transmitted are defined in the PNR Directive’s Annex I. They encompass clearly-defined data items, for example, date of birth, details of accompanying persons, travel itineraries, or baggage information, but also loosely-defined items such as “general remarks” made by the aviation staff.

 

After their reception by the PIUs, PNR datasets are then automatically compared against databases “relevant for the purposes of preventing, detecting, investigating and prosecuting terrorist offences and serious crime” (Art. 6 § 3 letter a), as well as against “pre-determined criteria” (Art. 6 § 3 letter b). The latter are used “to identify ‘unknown’ suspects” (EU Commission PNR Directive Proposal, SEC(2011) 132, p. 12). What exactly these pre-determined criteria are, is not really defined in the PNR Directive’s text. Art. 6 § 4 only lays out that they ought to be “targeted, proportionate and specific”, as well as not based on “a person's race or ethnic origin, political opinions, religion or philosophical beliefs, trade union membership, health, sexual life or sexual orientation”. Their general purpose, however, is to extrapolate suspicious patterns passengers’ flight behaviors. Research (Korff, Passenger Name Records,data mining & data protection:the need for strong safeguards, p. 4; Rademacher, Predictive Policing im deutschen Polizeirecht, AöR 2017, 366, 410-415; Sommerer, Personenbezogenes Predictive Policing, S. 96-98), policy papers and the GFF generally discuss “pre-determined criteria” as a likely product of self-learning algorithms

 

According to Art. 6 § 5, once a “hit” occurs – meaning an automatically generated match between a PNR dataset and either a database or pre-determined criteria – it is “reviewed by non-automated means”. Verified hits can then be transmitted to other national competent law enforcement authorities on a “case-by-case basis” (Art. 6 § 6), or to other Member States (Art. 9) or, under additional conditions, to third countries (Art. 11). These authorities can then decide to take further action under their respective national law. The PNR Directive itself only requires the collection of PNR data for all flights entering and exiting the EU but recognizes Member States’faculty to extend its scope to intra-EU flights. Almost all Member States proceeded to do just that. PNR data are stored for six months in raw form and, after that, for another four-and-a-half years in a (reversibly) pseudonymized form (Art. 12).

 

EU Member States scramble to defend the PNR Directive’s proportionality

 

As always, the hearing opened with opening statements by the parties, Member States and EU institutions. This turned out to be a rather one-sided affair, given the fact the plaintiff’s representative faced a united front of eleven delegations from Member States and EU institutions, all in favor of the PNR Directive. They all defended against the charge that the PNR Directive was a disproportionate affair mainly by providing anecdotal evidence of its usefulness and by characterizing the relevant interferences with fundamental rights as not particularly severe.

 

First of all, many Member States pointed to the CJEU’s recent Opinion 1/15 of 26 July 2017 on the Draft PNR Draft agreement between Canada and the European Union. In that opinion, they argued, the CJEU had not generally prohibited the mass retention of PNR data; neither did it, in principle, object to a five-year retention period. And, they asked, were PNR data not much safer within the realms of the PNR Directive than in Canada, they suggested, as data stored on European servers remain protected by the GDPR and other legal regimes? Member States’ representatives failed to mention, however, that the CJEU considered the Draft PNR Agreement to be incompatible with Articles 7, 8 , 21 and Article 52 § 1 CFR. It did so due to the Draft Agreement’s lack of clear and precise criteria, substantive and procedural, for the automated processing of PNR data. It also criticized the lack of a required link, such as new circumstances of threat, between the Agreement’s stated objective (averting terrorist threats) and the prolonged retention and processing of PNR data (n° 232). As pointed out above, the PNR Directive perpetuates this dissatisfying state of vagueness (see its Art. 6 § 4) and even extends it beyond the Draft Agreement’s scope of serious cross-border crimes to any crime of some (but not necessarily exceeding) gravity, such as fraud (Annex II, Number 7) or the facilitation of unauthorised entry and residence (Number 11).

 

Second, Member States pointed to evidence of the PNR Directive’s effectiveness in combatting crime. The Belgian government, for example, mentioned the interception of human trafficking victims on Belgian airports. The French government lauded the PNR Directive for enabling it to stop and arrest a person running an illegal prostitution ring who was en route to Bangkok, accompanied by several minors. The Polish government talked about detecting illegal imports of cigarettes from Poland to Germany, and about Ukrainian nationals attempting to use flights for illegal immigration. It was striking, however, that all this evidence remained purely anecdotal. Just like the EU Commission in its Evaluation Report, Member States never provided any detailed statistical evidence on the PNR Directive’s contribution to the prevention, detection, investigation or prosecution of terrorism or serious crime. It also remained unclear, throughout the hearing, whether and, if so, how many of the cases provided by Member States could have been detected by previously existing data processing methods.

 

Third, most Member States contended that the PNR Directive did not result in a particularly severe interference with the right to respect for private and family life (Article 7 CFR), and the right to the protection of personal data (Article 8 CFR). The PNR Directive, they opined, prohibited the processing of sensitive personal data (see Article 13 § 4 and Recital 37). Some Member States, like Germany, Ireland, Spain, and Cyprus, leaned into that claim by forcefully asserting that all pre-determined criteria in use were assembled by humans, not by self-learning algorithms. Their opening statements were characterized by emphatic renouncements of such algorithms as processing tools. The Dutch government even went so far as to claim that the PNR Directive prohibited the use of artificial intelligence or self-learning algorithms for the creation of pre-determined criteria. This assertion, however, appears rather implausible at the least. In academic literature, the PNR Directive was seen as a blueprint for the use of self-learning algorithms (see references above). The Directive contains no explicit prohibition of artificial intelligence. The European Parliamentary Research Service mentions the PNR Directive in its report on the use of “Artificial Intelligence at EU borders” (pages 18-19). Artificial intelligence only works when fed with gigantic amounts of data. That is why Article 6 § 2 letter c of the PNR Directive allows “analysing PNR data for the purpose of updating or creating new criteria to be used in the assessments carried out“ [through pre-determined criteria].

 

Judge von Danwitz’ questions

 

Much more interesting than the (quite repetitive) jubilant opening statements was the oral hearing’s second part: questions by the court. The majority of this part was characterized by an exchange between judge-rapporteur Professor von Danwitz and the EU Commission’s representative. Judge von Danwitz structured his questioning into four topics: The statistical reliability (or fallibility) of the PNR system (1), the severity of fundamental rights interferences produced by the PNR Directive (2), discriminatory effects of the PNR system (3), and the overall proportionality of the system (4).

 

(1) Judge von Danwitz began by referencing concerningly high false-positive rates mentioned in the Member States’ respective statements. In its Evaluation Report, the EU Commission writes on page 28 that, in 2019, “0.59% of all passengers whose data have been collected have been identified through automated processing as requiring further examination”. Only 0.11% of all data, however, were verified by humans and then transferred to law enforcement authorities. This suggests, as Judge von Danwitz emphasized, a false-positive rate of more than 81 %. Moreover, it remains uncertain whether the remaining 19 % of datasets were legitimately process, thus making a definitive assessment of the full false-positive rate impossible.  Referencing the COVID pandemic in questioning the PNR system’s suitability for its intended purpose, Judge von Danwitz quipped: “If a PCR test operated with a sensitivity of 19%, I doubt it would be welcomed with open arms” (The original words were spoken in French. Translations are my own). While these numbers may intuitively feel small, consider this: When the German transposition law was adopted, the German government expected roughly 170 million yearly affected flight passengers (Gesetzesbegründung, BT-Drs. 18/11501, S. 23). This would mean that, in Germany alone, 187,000 people could be subjected to false automated suspicion every year.

 

In fact, these EU numbers are no anomaly. Similar false-positive rates have been reported by Member States: In a GFF case before the Administrative Court of Wiesbaden (docket number 6 K 806/19.WI), the Bundeskriminalamt, which functions as the German PIU, reported that 31,617,068 processed PNR datasets yielded 237,643 automatic matches. After human review, only 910 matches remained, resulting in a false-positive rate of 99.6%. Out of these 910 matches, 396 investigations went dry because the affected flight passengers were not identical with the actual wanted persons –leading to even more serious false suspicions. This rate, mind you, only pertains to database matches – one is left to imagine the error rate of the much more volatile matching procedure against pre-determined criteria.

 

As Judge von Danwitz pointed out, there is a statistical reason for such high rates: Base rate fallacy. Base rate fallacy denotes the phenomenon that when you are looking for very rare incidents in very large datasets, even extremely sophisticated detection tools will likely yield more false-positives than true-positives. Out of all EU flight passengers, extremely few will be actual terrorists or serious offenders – European law enforcement is looking for the proverbial needle in a haystack. Adding more hay to the stack will not allow them to find more needles – needles remain just as rare and elusive.

 

Confronted with this criticism, the EU Commission pointed to the legislator’s limited responsibility for mathematical limits: "There are mathematical limits and errors, but the legislator is not required to conduct mathematical demonstrations.".

 

(2) Judge von Danwitz then proceeded to refute the Member States’ and EU institutions’ claim that, since the PNR Directive does not result in the processing of particularly sensitive data, it does not constitute particularly severe interferences with Articles 7 and 8 CFR. In so doing, he drew an explicit comparison with telecommunications data which were the subject of Digital Rights Ireland, another landmark CJEU decision on mass data retention. While acknowledging that telecommunications data may per se contain more sensitive information than passenger data, he pointed out that, when determining the severity of interferences, one must also take into account the scale and method of processing: Firstly, while Directive 2006/24/EC intended that the majority of telecommunications data be accessible but remain unscrutinized, the PNR Directive provides for the automated analysis of every single PNR dataset. Secondly, Judge von Danwitz emphasized that the deployment of data mining through self-learning algorithms intensified the severity of the interference (thus also casting aside the renouncements put forth by many Member States).

 

The EU Commission agreed with Judge von Danwitz’ analysis in principle (“Oui, certainement, la gravité de l’ingérence est déterminée dans la manière où le Data Mining se fait.") but contended that there were different degrees of Data Mining ("Il y a Data Mining et Data Mining."). They claimed that the safeguards included in the PNR Directive rendered the Data Mining at hand rather minor.

 

(3) Judge von Danwitz then turned to the lack of clear criteria for the individual review of automated matches by non-automated means, as per Article 6 § 5. He pointed out that this vagueness opened room for discrimination. When the EU Commission responded that discrimination was prohibited under Article 6 § 4, Judge von Danwiz replied that indirect discriminations certainly remained possible – which the EU Commission admitted (“un risque de discrimination indirecte existe toujours"). Judge von Danwitz then asked why the EU legislator did not include more provisions in the text in order to mitigate the risk of indirect discrimination – given the extremely high false-positive rate of over 80 %. The EU Commission responded that there were limits to the specificity that can reasonably be expected from any legislator (“tout législateur a des limites lorsque l’on doit réglementer une activité minutieuse et détaillée"). Responding to this, the European Data Protection Supervisor proposed a reversal of the burden of proof as a possible solution, but this was rejected by the EU Commission because, according to them, that would presuppose that “everyone is automatically a victim”. 

 

(4) Judge von Danwitz’ fourth line of questioning turned on the overall proportionality of the PNR system. His questions mainly focused on the (lack of a) link between the occasion for mass data retention – taking a flight – and the PNR Directive’s stated purpose – combatting terrorist offences and serious crime. The lack of clear criteria buttressing this link was one of the CJEU’s main sources of concern in its Opinion 1/15 (see n°217). The EU Commission responded that criminals specifically use the convenience of international air travel to orchestrate their crimes. Judge von Danwitz proceeded by pointing out that the notion that locations and behaviors suitable for crime should be subjected to mass surveillance was stretchable to an almost unlimited extent. “Why not rock concerts?”, he asked. “Why not museum visits?”. Surprisingly, the EU Commission basically agreed with him, saying that yes indeed, rock concerts could be prone to drug-related offenses (“I don’t have any police experience, but I could imagine that there could be much drug-related crime occurring at rock concerts.”).

 

Lingering doubts regarding the PNR system’s proportionality

 

By no means can this report paint a full picture of what was said during the oral hearing or what is to be considered when assessing the mass surveillance of flight passengers. For example, other questions raised by the Advocate General Pitruzzella concerned the vagueness around which databases would be “relevant” and could therefore be used for comparison (von Danwitz asked whether Facebook databases could be used), whether the unanimous extension of the PNR Directive’s scope to intra-EU flights was warranted or excessive, and whether the five-year-retention period was disproportionate. Advocate General Pitruzzella also inquired about external oversight of pre-determined criteria and whether false-positives were systematically used in order to improve algorithms (to which some Member States replied in the affirmative).

 

In my opinion though, the hearing shone a light on the PNR Directive’s manifold constitutional weaknesses. The EU Commission and Member States did not succeed in dispelling my lingering doubts about its underdeterminacy, its questionable suitability and effectiveness, its unchecked potential to produce large-scale discrimination. But chief among these weaknesses is the Directive’s sheer excessiveness: It is just disproportionate to take ordinary human behavior and use it as an opportunity to unleash an unprecedented degree of technology-fueled surveillance upon hundreds of millions of European flight passengers and to sift through mountains of useless, potentially discriminatory data, just to – maybe, kind of – detect a handful of criminals.

 

Photo credit: Juke Schweizer, via Wikimedia Commons

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

Professor Steve Peers, University of Essex

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

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

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

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

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

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

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

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

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

Civil cooperation

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

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

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

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

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

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

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

Immigration and asylum

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

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

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

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

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

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

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

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

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

58. The envisaged partnership should address social security coordination.

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

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

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

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

Police and criminal law: General

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

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

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

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

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

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

Police and criminal law: Red Lines

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

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

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

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

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

Police and criminal law: human rights and data protection

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

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

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

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

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

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

Data exchange

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Criminal justice cooperation

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

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

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

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

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

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

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

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

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

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

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

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

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

Green. Both sides agree in principle to exchange of criminal records on a similar basis to existing EU law (ECRIS was initially set up on the basis of two EU laws: a Framework Decision and a Decision. These laws were amended and replaced by a Regulation and Directive). The details remain to be worked out, however. Note that the EU has not previously agreed to such measures with any non-EU country – even the Schengen associates.

Other issues

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

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

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

Photo credit: Wikicommons

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

JHA4: all of it

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

Photo credit: Daily Express