Monday, 19 February 2018

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

Thursday, 8 February 2018

The Running Commentary Begins: Annotation of the proposed Withdrawal Agreement




Professor Steve Peers, University of Essex

Yesterday, the EU Commission for the first time proposed the text of part of the Brexit withdrawal agreement. From the legal point of view, ultimately the withdrawal agreement (if it is successfully negotiated and comes into force) will be the key legal text governing the Brexit process as such (there will be post-Brexit treaties governing the future relationship between the EU and the UK).

Due to its importance, I will provide what the UK’s Prime Minister once disdainfully referred to as a ‘running commentary’ on the draft text of the agreement as it develops. Several caveats apply, however. First of all, this is a partial text, comprising the part of the treaty on the transitional period (which the UK government would prefer to call the ‘implementation period’) and some (probably not all) of the part on common provisions. So this is the first of perhaps many instalments of the commentary: there’s a lot of running ahead. The Articles in the final withdrawal agreement will be numbered properly, but I have used the Commission’s provisional numbering (where it suggested numbers) for now.

Secondly, this text has yet to be agreed with the other party to the talks (the UK), which has indicated its disagreement with at least some parts of this proposal.

Thirdly, to some extent this text is not even the EU27’s position, because only part of it reflects the EU27 negotiation directives on the transition period recently adopted by Member States in the EU Council, which I annotated here. I have indicated whether an issue in the proposed text was referred to in the negotiation directives or not. If it was not referred to in those directives, then the Commission is on a ‘frolic of its own’ on those points, and its suggestions may not necessarily represent the view of Member States. Some of these points will be more controversial with the Member States than others: I expect it’s unlikely that Member States will argue with the Commission’s proposal here on European Schools, for instance. But as I suggest below, one of the Commission’s suggestions is arguably a highly inappropriate breach of its position as EU negotiator.

Conversely, where the text does represent the view of Member States, the Commission’s negotiation position should not simply be dismissed (as some in the UK do) as its own institutional preference. Put simply, it might be harder for the UK to convince EU27 Member States to change their own negotiation position, than it would be for the UK to convince those States not to follow the Commission’s institutional preferences.

In addition to the parts of the withdrawal agreement on the transition period and common provisions proposed yesterday, there will be parts dealing with ‘governance and dispute settlement’ (referred to in a footnote in yesterday’s text) and the ‘financial settlement’ (referred to in the introductory section of yesterday’s text).  There will necessarily also be a part dealing with the rights of EU27 and UK citizens who moved before Brexit day: I recently made detailed suggestions as to what that text should include.  I assume there will also be parts on the Irish border and on ‘winding up’ the UK’s involvement with EU law, such as what happens to pending ECJ cases or pending European Arrest Warrants, although the proposal on the transitional period would in practice delay the application of such rules.

On the financial settlement in particular, yesterday’s proposal says:

It should be noted that the detailed provisions relating to the financial settlement aspects of the transition will be covered under the Financial Provisions of the Withdrawal Agreement. In addition to the elements contained in the Joint report of 8 December 2017, the Financial Provisions of the Withdrawal Agreement should also cover the financing, during the transition period, of the relevant Common Foreign and Security Policy and Common Security and Defence Policy agencies or operations on the basis of the same contribution key as before the withdrawal date.

There is, however, no reference in yesterday’s proposal to the EU27 position that acquired rights for EU27 citizens who moved to the UK, and for UK citizens who moved to the EU27, will still be obtained for those who move during the transition period. The UK government has contested this suggestion.

One can speculate why the Commission has begun to draw up legal texts as part of the negotiation process. In any event, the December joint report on ‘sufficient progress’ in the Brexit talks referred implicitly to the intention to draw up draft texts related to the partly agreed parts of the withdrawal agreement, so we might expect more of the draft soon.

On the judicial front, the practical effect of drawing up legal texts of the withdrawal agreement is that as the final shape of the agreement becomes clearer, it becomes possible to ask the EU’s Court of Justice to clarify any disputed legal issues relating to the withdrawal agreement in advance. (The Court will not give an advance ruling on a proposed international treaty if the intended text of the proposed treaty is too uncertain: see Opinion 2/94 where the Court ruled it could only clarify some aspects of the EC’s proposed accession to the ECHR). Time is running out to give this opinion before Brexit day if the Court were asked, although it could fast-track a case if need be (Opinion 1/94 on accession to the WTO was decided in seven months).

Barnard & Peers: chapter 27

Photo credit: Financial Tribune



Commentary on the draft Withdrawal Agreement

Version of 8 February 2018



PART [X] [of the Withdrawal Agreement]

COMMON PROVISIONS

[Article x

Definitions]

[1. ‘Union law’ shall mean:]

 (i) the Treaty on European Union ("TEU"), the Treaty on the Functioning of the European Union ("TFEU") and the Treaty establishing the European Atomic Energy Community ("Euratom Treaty"), together referred to as “the Treaties”, as amended or supplemented, as well as the successive Treaties of Accession;

(ii) the general principles of Union law;

(iii) the acts adopted by the institutions, bodies, offices or agencies of the Union;

(iv) the international agreements to which the Union and/or Euratom is party;

(v) the agreements between Member States entered into in their capacity as Member States of the Union and/or of Euratom;

(vi) decisions and agreements of the Representatives of the Governments of the Member States meeting within the European Council or the Council.

The text here is taken from footnote 1 to the proposal, which reads: “The Withdrawal Agreement will contain, in its Part on Common Provisions, an article defining Union law as meaning:…” I have suggested a title for the Article. Presumably there will be other definitions in the withdrawal agreement too.  If not, this Article might simply be titled ‘Definition of Union law’.

This text reflects (and fleshes out) the first sentence of para 13 of the negotiation directives, which say that the transition rules should cover “the whole of the Union acquis, including Euratom matters”. It could be compared a contrario to the text of an accession treaty to the EU.

Oddly, there is no explicit mention here of the EU Charter of Rights - although it is referred to in the Treaties and legislation, it is a separate legal text.

[Article X + 1

Interpretation]

1.       The provisions of this Agreement referring to concepts or provisions of Union law in their implementation and application are interpreted in conformity with the relevant decisions of the Court of Justice of the European Union given before the end of the transition period.



2.       Where a provision of Union law is amended, supplemented or replaced during the transition period, the reference to this provision of Union law is to be read as referring to the amended, supplemented or successor provision, provided that the change takes effect before the end of the transition period.

The text here is also taken from footnote 1 to the proposal, which reads: “The Part on Common Provisions will also contain an article to the effect that…” the text of paragraph 1, and “Furthermore, a specific article of the Part on Common Provisions will clarify that…” the text of paragraph 2. I have added a suggested heading for the title of the Article. It is possible that these will end up as separate Articles. There might be other rules added on interpreting the withdrawal agreement.

Since they will appear in the Common Provisions of the agreement, these cross-references to the development of case law or legislation during the transition period will presumably also apply to the citizens’ rights and financial settlement provisions of the agreement.

The UK government is particularly concerned about being bound by EU legislation adopted during the transition period without its involvement, although note that this rule only applies where existing law is amended and where that amendment "takes effect" before the end of the transition period. Possibly point (iii) in the previous Article is meant to cover cases of brand new legislation, but this is unimpressive drafting. Also, the term “takes effect” is unclear: Directives enter into force immediately, but only have full legal impact after the deadline to transpose them, which is usually two years later.

In any event, the proposals do not reflect para 59 of the December joint report on progress in the Brexit talks, which states that future changes to the basic EU funding and spending laws which affect the UK will not apply to it, which would for instance prevent any changes being made to the UK rebate after it loses its power to veto such changes. However, as noted above, the Commission states that issues relating to the financial settlement will be in a separate part of the withdrawal agreement, so this issue might be covered there.

[Article NN

References to Member States]

For the purposes of this Agreement, all references to Member States and competent authorities of Member States in provisions of Union law made applicable by this Agreement shall be read as including the United Kingdom and its competent authorities, except as regards:

(a) the nomination, appointment or election of members of the institutions, bodies, offices and agencies of the Union, as well as the participation in the decision-making of the institutions;

(b) the attendance in the meetings of the committees referred to in Article 3(2) of Regulation (EU) No 182/2011 of the European Parliament and of the Council, of Commission expert groups or of other similar entities, or in the meetings of expert groups or similar entities of bodies, offices and agencies of the Union, unless otherwise provided in this Agreement;

(c) the participation in the decision-making and governance of the bodies, offices and agencies of the Union; […].

The text here is taken from footnote 2 to the proposal, which reads: “The Withdrawal Agreement will contain, in its Part on Common Provisions, the following:” I have suggested a title for the Article. I refer to this as ‘Article NN’ because the proposed Article X+2(1), which refers to it, does so (see below). There will likely be other Articles in the ‘Common Provisions’ part of the agreement. It is not clear why there are deleted words in point (c). Note that the proposed Article X+2(4) includes a derogation from this Article, allowing some limited participation of the UK in EU bodies as an exception.

This text reflects the second sentence of para 13 of the negotiation directives, which states that “the Union acquis should apply to and in the United Kingdom as if it were a Member State”, as well as the final sentence of para 18 and the first sentence of para 19 on the exclusions from a UK role in the institutions.

While the Treaties only refer to Member States as having a full decision-making role within EU institutions, there is nothing to rule out consultation with non-Member States. Indeed, the Schengen association agreement with Norway and Iceland gives them consultation rights at ministerial level. The notion that the UK is expected to apply new EU law (see the previous Article) without even being informally consulted on the relevant proposals therefore has a vindictive tinge to it. In any event, the proposals do not reflect para 30 of the December joint report on progress in the Brexit talks, which states that there should be a system to decide jointly on the incorporation of future amendments to the social security rules in the withdrawal agreement.



PART [X] [of the Withdrawal Agreement]

TRANSITION PERIOD

Article X

Transition period

There shall be a transition period, which shall start on the date of entry into force of this Agreement and end on 31 December 2020.

This text reflects para 22 of the negotiation directives. The end date is convenient for the EU27 side as it corresponds with the end of the current multi-annual EU budget cycle. For its part, the UK has referred to a transition period of “around two years”.

As the text stands, the transition period could not be extended unless another clause is added in the withdrawal agreement to allow for this. If no such clause is added, extending the transition period after Brexit day would need a new treaty adopted on a different legal basis than Article 50 (which only applies to the withdrawal process) which would need to be adopted by unanimity and possibly also ratification by national parliaments (although some or all of the treaty could apply provisionally while national ratification was taking place).

Note that Article X+1(2), discussed below, provides conversely for part of the transition period to be curtailed as regards foreign policy issues.



Article X + 1

Scope of the transition

1. Unless otherwise provided in this Part, Union law shall be binding upon and applicable in the United Kingdom during the transition period.

However, the following provisions of the Treaties and acts adopted by the institutions, bodies, offices or agencies of the Union shall not be applicable to and in the United Kingdom during the transition period:

(a) provisions of the Treaties and acts which, pursuant to Protocol (No 15) on certain provisions relating to the United Kingdom of Great Britain and Northern Ireland, Protocol (No 19) on the Schengen acquis integrated into the framework of the European Union or Protocol (No 21) on the position of the United Kingdom an Ireland [sic] in respect of the area of freedom, security and justice, or pursuant to the provisions of the Treaties on enhanced cooperation, were not binding upon and applicable in the United Kingdom before the date of entry into force of this Agreement as well as acts amending such acts;

(b) Article 11(4) TEU, Articles 20(2)(b), 22 and the first paragraph of Article 24 TFEU and paragraph of Article 24 TFEU and acts adopted on the basis of those provisions;

There are rules about what is included in the scope of UK obligations, and what is excluded from the scope of those obligations. The rule about inclusion appears as a proposed Article in a footnote to this paragraph in the Commission proposal; I have adapted it and inserted it as the text of the ‘Common Provisions’ above.

As for exclusions, sub-paragraph 1(a) keeps the UK’s existing opt outs from the single currency, Schengen, Justice and Home Affairs (JHA) law and enhanced cooperation (a system where some Member States go ahead and adopt EU law without the others), except where the UK opted in to EU laws in these areas before Brexit day. The JHA exclusion reflects the final sentence of para 13 of the negotiation directives; the other exclusions are not mentioned in those directives.

There is no opt-out from Treaty amendments, although no such amendment is planned at present. It is odd that the text does not exclude the UK from ‘permanent structured cooperation’ in the area of defence, given that the UK decided to opt out when most Member States decided to trigger that process recently.

Sub-paragraph 1(a) excludes the Treaty rules and legislation related to the European citizens’ initiative (on that process, see the case law discussed here) and also voting and standing for office in the European Parliament and local government. There is a need for a transitional clause to deal with the situation of those EU27 citizens who were elected to local government in the UK (and vice versa) before Brexit day.

Conversely other EU citizenship provisions will logically still apply. This includes the “Ruiz Zambrano” case law on UK citizen children with non-EU parents, which I discussed here.

2. Should an agreement between the Union and the United Kingdom governing their future relationship in the area of the Common Foreign and Security Policy and the Common Security and Defence Policy become applicable during the transition period, Chapter 2 of Title V of the TEU and the acts adopted on the basis of those provisions shall cease to apply to the United Kingdom from the date of entry into force of that agreement.

This is the one field where the proposal contemplates an early end to the transitional period. By contrast, the UK Prime Minister’s Florence speech referred to the possibility of ending the transitional (or ‘implementation’) period early for a number of issues at different times. An early end to the transition period in this field would avoid the awkward situation where the UK becomes bound by foreign policy measures which it could have vetoed if it were a Member State. It would also end a possibility for linking defence issues to trade issues, although the policy in the Florence speech was not to insist upon such a link.

This proposed clause is partly consistent with a statement adopted by the Council when it adopted the negotiation directives. However, that statement also referred to the “fight against terrorism and international crime”, which are JHA issues. Legally it is questionable whether the UK and EU would actually be constrained by the withdrawal agreement if they wanted to sign a treaty replacing these rules in other fields of EU law during the transition period.

3. During the transition period, the Union law applicable pursuant to paragraph 1 shall deploy in respect of and in the United Kingdom the same legal effects as those which it deploys within the Union and shall be interpreted and applied in accordance with the same methods and general principles as those applicable within the Union.

This proposed para transposes para 14 of the Council negotiation directives, which refer explicitly to the direct effect and supremacy of EU law.

4. The United Kingdom shall not participate in any enhanced cooperation:

(a) in relation to which authorisation has been granted on or after the date of entry into force of this Agreement; or

(b) within the framework of which no acts have been adopted before the date of entry into force of this Agreement.

This paragraph is not reflected in the Council negotiation directives. It is particularly relevant to the proposal on the financial transaction tax, which is subject to the enhanced cooperation process (without UK participation) but where there is no agreement yet (see more on the background to the tax proposal here). If this para is agreed, the suggestion that the UK might somehow become bound as such by the tax during the transition period is therefore, as things stand, frankly scaremongering. There is a risk that the tax would have some extraterritorial effect upon the City of London, but that risk would equally exist if the UK were still a Member State, since it could not veto an enhanced cooperation measure that it was not participating in.

5. In relation to acts adopted pursuant to Title V of Part III of the TFEU by which the United Kingdom is bound before the date of entry into force of this Agreement, Article 5 of Protocol (No 19) on the Schengen acquis integrated into the framework of the European Union and Article 4a of Protocol (No 21) on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice shall continue to apply during the transition period. The United Kingdom shall, however, not have the right of opt-in provided for in those Protocols to measures other than those referred to in Article 4a of Protocol No 21.

This paragraph is reflected in the fourth sentence of para 13 of the Council negotiation directives. It means that the UK can opt in to new JHA laws amending JHA laws which it is already bound by. Note that the UK has already opted out of the ‘Dublin IV’ proposal on allocation of asylum seekers, so the suggestion that it could be bound by that law during the transitional period is pure scaremongering.

6. Unless otherwise provided in this Part, during the transition period, any reference to Member States in the Union law applicable pursuant to paragraph 1 shall be understood as including the United Kingdom.

However, where acts of the Union provide for the participation of Member States, nationals of Member States or natural or legal person residing or established in a Member State in an information exchange, procedure or programme and where such participation would grant access to sensitive information that a third country or natural or legal person residing or established in a third country is not to have knowledge of, these references to Member States shall be understood as not including the United Kingdom.

The first sub-paragraph reflects the second sentence of para 13 of the Council negotiation directives. However, the second sub-paragraph does not reflect those directives. It seems that the Commission is concerned that the UK might hand information over to non-EU countries without authorisation.



Article X+2

Institutional arrangements

1. Notwithstanding Article X+1, during the transition period [points (a), (b) and (c) of Article NN from the Common Provisions] shall apply.

See the text of ‘Article NN’, discussed above. As a reminder, this Article removes the UK from the EU institutions and other bodies.

2. For the purposes of the Treaties, during the transition period, the parliament of the United Kingdom shall not be considered to be a national parliament.

This sub-paragraph does not explicitly reflect anything in the Council negotiation directives. However, it arguably is implicit that if the UK is not part of the EU institutions, there is no requirement to consult the UK’s national parliament on proposed EU measures. But even if there is no longer a legal obligation to do so, it is hard to see what harm would be caused by consulting the UK parliament, or what legal rule would prevent the EU agreeing to do so outside the context of the formal role for national parliaments of Member States set out in the Treaties.

3. For the purposes of Articles 282 and 283 TFEU and of Protocol (No 4) on the Statute of the European system of central banks and of the European Central Bank, during the transition period, the Bank of England shall not be considered to be a national central bank.

This sub-paragraph does not explicitly reflect anything in the Council negotiation directives. However, it arguably is implicit that if the UK is not part of the EU institutions, it follows that the Bank of England does not have the status of a national central bank in its relations with the ECB.

4. By way of derogation from paragraph 1, during the transition period, representatives or experts of the United Kingdom, or experts designated by the United Kingdom, may, upon invitation and on an case-by-case basis, exceptionally attend meetings or parts of meetings of the committees referred to in Article 3(2) of Regulation (EU) No 182/2011 of the European Parliament and of the Council, of Commission expert groups, of other similar entities, or of bodies, offices or agencies where and when representatives or experts of the Member States or experts designated by Member States take part, provided that one the following conditions is fulfilled:

(a) the discussion concerns individual acts to be addressed during the transition period to the United Kingdom or to natural or legal persons residing or established in the United Kingdom;

(b) the presence of the United Kingdom is necessary and in the interest of the Union, in particular for the effective implementation of Union law during the transition period.

During such meetings or parts of meetings, the representatives or experts of the United Kingdom or experts designated by it shall have no voting rights and their presence shall be limited to the specific agenda points that fulfil the conditions set out in point (a) or (b). In the invitation to be sent to representatives or experts of the United Kingdom or to experts appointed or designated by it, the chair of the meeting concerned shall clearly identify the agenda points for which their attendance is allowed.

The first half of this sub-paragraph reflects para 19 of the Council negotiation directives, and the second half elaborates upon that rule. Note that a statement by the Commission commits itself to issue a guidance document on how to apply this rule consistently in practice.

A footnote refers to the official publication of Regulation 182/2011, which sets out general rules for Member States’ participation in committees which govern the Commission’s use of implementing powers.

As in the rest of this Article and Article NN, it is questionable whether it is really necessary to limit the UK’s purely consultative role to this extent. Certainly there is only a weak argument that it is legally required.

5. During the transition period, the United Kingdom shall not act as leading authority for risk assessments, examinations, approvals and authorisation procedures provided for in Union law.

This sub-paragraph does not explicitly reflect anything in the Council negotiation directives. It is not so obviously implicit that the UK’s exclusion from the EU institutions means that it cannot have a role as lead authority in risk assessment et al. Put another way, this is arguably an issue of EU substantive law – where the UK will in effect remain a Member State during the transition period – rather than EU institutional law, where it will not.

Article X+3

Specific arrangements relating to the Union's external action

1. Without prejudice to Article X+1(2), during the transition period, the United Kingdom shall be bound by the obligations stemming from the international agreements concluded by the Union, or by Member States acting on its behalf, or by the Union and its Member States acting jointly.

2. During the transition period, representatives of the United Kingdom shall not participate in the work of any bodies set up by international agreements concluded by the Union, or by Member States acting on its behalf, or by the Union and its Member States acting jointly.

These two paragraphs transpose para 17 of the Council negotiation directives. They entail the UK still being bound to the EU as regards treaties with non-EU states. Logically this applies vice versa and it would be preferable to spell that out directly. It should follow that individuals can still invoke the direct effect of such treaties (where it exists) in the UK during the transition period (for instance, Turkish citizens with rights under the EU/Turkey association agreement framework).

However, the UK is not bound to non-EU countries to apply such treaties; neither can non-EU countries directly invoke such treaties against the UK.  Since this could in particular affect UK exports, it makes sense for the UK to focus on replicating such treaties: see para 4 below.

3. In accordance with the principle of sincere cooperation, the United Kingdom shall abstain, during the transition period, from any action or initiative which is likely to be prejudicial to the Union's interests in the framework of any international organisation, agency, conference or forum of which the United Kingdom is a party in its own right.

This paragraph is not reflected in the Council negotiation directives. It explicitly sets out the obligation that would anyway arguably still apply implicitly, since other EU Treaty provisions on sincere cooperation would still be applicable to the UK. Note that the UK would presumably have more freedom to act once any early post-Brexit treaty on EU/UK security and defence cooperation came into force (see Article X+1(2) above).

4. During the transition period, the United Kingdom may not become bound by international agreements entered into in its own capacity in the areas of exclusive competence of the Union, unless authorised to do so by the Union.

This para transposes the wording of the final sentence of para 16 of the Council’s negotiation directives, with the important change that it only applies to ‘exclusive’ competence of the EU. This change narrows the limits on the UK’s external action. Note that the exact extent of exclusivity of EU competence is often disputed and even litigated.

Some discussion of the transition period suggests that the UK would be banned from signing treaties, but this is false: rather the UK could do so, but only with authorisation, and that limit would only apply within the area of exclusive EU competence. Also, note that the restriction is on the UK becoming ‘bound by’ international treaties during the transition period, not upon negotiation or signing such treaties. However, it might be argued that such negotiations would breach para 3 of this Article, although the obvious counter-argument from the UK would be that a treaty which does not apply until after the transition period could not affect the Union’s interests given that the UK will no longer be bound by EU law as such after that point.

There is no mention of the process of approval of the UK becoming bound by treaties. Note that one of the statements attached to the Council negotiation Directives says that the Council will approve the UK becoming bound by such treaties, in accordance with the usual Treaty rules. 

5. Without prejudice to Article X+1(2), whenever there is a requirement for coordination, including on sanctions policy, or representation in international organisations or conferences, the United Kingdom may be consulted by the Commission or the High Representative of the Union for Foreign Affairs and Security Policy, as the case may be, on a case-by-case basis.

This para is not reflected in the Council’s negotiation directives. It takes account of the UK’s significant foreign policy rule, in particular regarding sanctions. It’s conceivable, due to the loss of the UK veto over EU foreign policy during the transition period, that the UK could be legally bound to use (or not to use) its Security Council veto during the transition period.   As with para 3, in the foreign policy context the UK would presumably have more freedom to act once any early post-Brexit treaty on EU/UK security and defence cooperation came into force (see Article X+1(2) above).

6 During the transition period, the United Kingdom shall not provide commanders of civilian operations, heads of mission, operation commanders or force commanders for missions or operations conducted under Articles 42 to 44 TEU, nor shall it provide the operational headquarters for such missions or operations. During the transition period, the United Kingdom shall not provide the head of any operational actions under Article 28 TEU.

This para is not reflected in the Council’s negotiation directives, although it is consistent with the overall thrust of removing the UK from roles in EU bodies.

Article X+4

Specific arrangements relating to Fisheries Policy

As regards the fixing of fishing opportunities within the meaning of Article 43 TFEU for any period prior to the end of the transition period, the United Kingdom shall be consulted by the Commission during the decision-making process within the Council and during international negotiations in respect of the fishing opportunities related to the United Kingdom.

This reflects para 21 of the Council negotiation Directives, which states that “Specific consultations should also be foreseen with regard to the fixing of fishing opportunities (total allowable catches) during the transition period, in full respect of the Union acquis.”. If the transition period ends as proposed at the end of 2020, this would only be relevant for one year.

Article X+5

Supervision and enforcement

During the transition period, the institutions, bodies, offices and agencies of the Union shall have the powers conferred upon them by Union law also in relation to the United Kingdom and natural and legal persons residing or established in the United Kingdom. In particular, the Court of Justice of the European Union shall have jurisdiction as provided for in the Treaties.

This reflects the first sentence of para 18 of the Council negotiation Directives, but leaves out the second sentence, which reads: “In particular, Union institutions, bodies and agencies should conduct all supervision and control proceedings foreseen by Union law.”

That brings us to the most controversial part of this proposal: there is a footnote 4 here which states as follows: “In addition, the Governance and Dispute Settlement Part of the Withdrawal Agreement should provide for a mechanism allowing the Union to suspend certain benefits deriving for the United Kingdom from participation in the internal market where it considers that referring the matter to the Court of Justice of the European Union would not bring in appropriate time the necessary remedies.Since there is no suggested text of this clause, I have not inserted this point separately into this proposed draft of the agreement.

While sanctions in general are common remedies for breaches of treaties in international law, and the disapplication of some provisions of an agreement is common in EU treaties with non-EU states in particular, this specific suggestion in the context of the withdrawal agreement negotiations is highly legally and politically problematic.

As a matter of principle, this approach is contradictory: the Commission thinks that the UK should be a Member State fully covered by the Treaties, plus a special rule ought to apply which is similar to those in international treaties in which non-EU countries have a more distant relationship with the EU. On the contrary: substantive status quo membership should mean substantive status quo membership.

Moreover, this issue is not referred to in the Council negotiation directives; in fact, creating such a special rule contradicts the position in those directives that the EU institutions shall have their normal enforcement role. Arguably it also interferes with the ‘essential nature’ of the jurisdiction of the ECJ, contradicting the rule in ECJ case law on its jurisdiction in treaties with non-EU countries. The argument about timing of ECJ action is unconvincing, since the Commission can ask for interim measures in ECJ proceedings, and the deadlines to apply many of the laws concerned would fall after the end of the transition period. While the UK could presumably challenge the legality of any sanctions decision in the EU courts, as this proposal does not limit the UK’s standing to sue EU institutions during the transition period, the issue is whether such a power should exist in the first place.

Furthermore, the footnote makes no reference to the dispute settlement process that would usually precede such a sanction, or to the limits on the proportionality of such measures found in treaties such as the EEA. The suggestion ignores the careful balance found in the EEA, where partial disapplication of the Treaty could only follow a decision by Norway et al not to apply a new law within the scope of the EEA; but there is no such potential power to refuse to apply a new EU law foreseen for the UK.  It is not clear whether the proposed sanction would only apply to breaches of the transitional rules (and if so, which), or to other parts of the withdrawal agreement too.

The proposal is then not only legally and politically questionable, but poorly thought out and justified, not only breaching the Commission’s obligations as EU negotiator but also spreading ill will in the negotiations. The phrase “frolic of the Commission’s own” scarcely does justice to the problematic nature of this proposal.

Article X+6

European Schools

The United Kingdom shall be bound by the Convention defining the Statute of the European Schools until the end of the school year that is ongoing at the end of the transition period.

There is a footnote referring to the text of the Convention. This issue was not referred to in the Council negotiation Directives.