Professor Steve Peers, University of Essex
Speeches delivered last week by Theresa May and Boris Johnson regarding the UK’s future relationship with the EU present a study in contrasts. May’s approach was measured and pragmatic, advocating for close ties, while Johnson’s came across as dismissive and lacking depth, favoring distance from the EU.
While the EU27 has begun drafting treaty texts for Brexit, the UK has not. To illustrate potential outcomes, this post includes draft treaties based on Johnson’s and May’s security proposals.
Theresa May’s speech on the security relationship
May’s speech expands on earlier UK proposals for future police, criminal, defense, and foreign policy cooperation with the EU. Her suggestion to move beyond “rigid institutional restrictions or deep-seated ideology” is somewhat ironic considering her own past stances, highlighting a broader tendency to prioritize dogma over practicality on both sides.
Internal security
May emphasizes the value of existing internal security cooperation, citing UK participation in measures like the European Arrest Warrant and information sharing systems. She argues for maintaining “operational capabilities” through a new treaty that respects the legal systems of both the UK and the EU, with a “principled but pragmatic solution” regarding the ECJ’s role. This raises questions about what exactly “operational capabilities” entails and which EU measures the UK wants to participate in.
The EU Commission, however, has indicated a preference for existing cooperation models with non-EU countries like Norway or the US, neither of which aligns with May’s vision. While the EU often objects to “cherry-picking,” exceptions in areas like fisheries make this stance appear politically motivated.
May’s goal might be better served by proposing a model similar to the Schengen association agreement with Norway and Iceland, allowing participation in EU law without full ECJ jurisdiction. This approach would be politically and legally less complex and harder for the EU to reject.
However, May’s emphasis on UK “sovereignty” and a new dispute resolution mechanism clashes with ECJ case law prohibiting binding interpretations of EU law by external courts. Diverging legal interpretations could lead to challenges in national courts, as illustrated by recent cases in Ireland regarding the European Arrest Warrant and asylum-seekers.
Addressing this requires incorporating ECHR compliance as a treaty condition, reinforcing mutual trust. Data protection presents another challenge. May’s call for a “bespoke arrangement” contradicts existing case law requiring alignment with EU standards for data sharing. This presents a dilemma: prioritize data flow by adhering to EU law or face restrictions by diverging from it.
External security
May envisions an “independent foreign policy” while pursuing a security partnership respecting both UK and EU autonomy. She proposes diplomatic consultations, policy coordination, and continued participation in EU defense initiatives and capabilities. This aligns with the Commission’s openness to a bespoke security arrangement and faces fewer legal hurdles.
The primary obstacle lies in decision-making, as EU Treaties grant voting rights solely to member states. However, provisions for UK consultation and selective participation in EU missions could address this.
Conclusions
Achieving a security agreement requires flexibility from both the EU and the UK. May’s pragmatic approach stands in stark contrast to Johnson’s more ideological stance, setting the stage for a crucial debate about the UK’s future relationship with the EU.
Boris Johnson’s ‘liberal Brexit’ speech
Johnson’s attempt to address “Remainer” concerns falls short due to his association with misleading claims about the UK’s budget contribution and his inconsistent support for Brexit. His speech, devoid of compromise, seems designed to reinforce a “them versus us” narrative.
On security, Johnson’s brief mention of defense spending and cooperation pales compared to May’s detailed proposals, highlighting inconsistencies within the UK government’s stance.
Regarding cultural ties, Johnson emphasizes British internationalism while overlooking the concerns of EU citizens in the UK. He incorrectly assumes continued Erasmus participation and disregards the role of EU law in areas like aviation and the rights of retirees in Spain. His focus on sovereignty rehashes Leave campaign arguments without acknowledging the UK’s influence within the EU.
On economic issues, Johnson dismisses concerns about trade-offs. He repeats claims about increased public spending despite economic forecasts predicting slower growth. He downplays the significance of the single market while contradicting his previous support for it.
His argument relies on misleading statistics about trade growth, ignoring the EU’s position as the UK’s largest trading partner and the potential negative impact of Brexit on this relationship. While acknowledging the importance of global standards, he fails to recognize the EU’s role in shaping them and the potential impact of diverging regulations on UK exports, exemplified by his stance on organic food standards.
Conclusions
Johnson’s speech fails to address the core of “Remainer” concerns because it lacks a clear vision for the UK’s future relationship with the EU. He avoids crucial issues like EU citizens’ rights and the Irish border while glossing over potential problems with simplistic solutions.
In contrast to May’s detailed and practical approach, Johnson’s vision of the future is simplistic and detached from reality. It remains to be seen which perspective will shape the UK’s path.
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
This agreement establishes an association between the United Kingdom and the European Union in the areas of judicial cooperation in criminal matters and police cooperation, creating mutual rights and obligations.
Based on the Schengen association agreement with Norway and Iceland, this establishes a framework for cooperation.
Article 2
1. The United Kingdom agrees to implement and apply the provisions of EU legislative acts listed in the Annex to this Agreement as they pertain to EU Member States.
2. Without prejudice to Article 8, the United Kingdom will accept, implement, and apply acts and measures adopted by the European Union that amend or build upon the provisions outlined in the Annex.
3. The UK will implement and apply EU legislative acts in the area of judicial cooperation in criminal matters and police cooperation beyond those listed in paragraph 2, contingent upon a decision by the Mixed Committee.
4. The Mixed Committee retains the right to decide upon amendments to the legislation outlined in the Annex, specifically as they relate to the relationship between the European Union and the United Kingdom.
This section outlines the UK’s commitment to aligning with EU legislation, with the Annex detailing specific laws. It allows for future additions and adjustments through a collaborative process with the EU.
Article 3
1. This agreement establishes a Mixed Committee comprising representatives from the UK government, the Council of the European Union (hereafter “Council”), and the Commission of the European Communities (hereafter “Commission”).
2. Decision-making within the Mixed Committee will be achieved through consensus, and it will establish its own Rules of Procedure by consensus.
3. The Mixed Committee will convene upon the initiative of its President or when requested by any of its members.
4. Without prejudice to Article 4(2), meetings of the Mixed Committee will involve Ministers, senior officials, or experts, as deemed appropriate to the circumstances.
5. The role of President of the Mixed Committee will rotate between representatives of the European Union and the United Kingdom for six-month terms, with specific arrangements depending on the level of representation (experts, senior officials, or Ministers).
This establishes a joint governing body for overseeing the agreement, ensuring representation and decision-making power for both the UK and the EU.
Article 4
1. In accordance with this Agreement, the Mixed Committee will address all matters pertaining to Article 2, ensuring careful consideration of any concerns raised by the United Kingdom.
2. Within the Mixed Committee at the ministerial level, representatives of the United Kingdom will have the opportunity to:
- Articulate challenges encountered in relation to specific acts or measures, or to respond to challenges identified by other delegations.
- Express their perspectives on matters related to the development and implementation of provisions relevant to them.
3. Meetings of the Mixed Committee at the ministerial level will be prepared by the Mixed Committee at the level of senior officials.
4. Representatives of the UK government will have the right to put forward suggestions within the Mixed Committee regarding matters outlined in Article 1. Following discussion, the Commission or any Member State may consider these suggestions with a view to developing a proposal or initiative, in line with European Union regulations, for the adoption of an act or measure by the European Community or the European Union.
This section outlines the UK’s role in the decision-making process, ensuring their concerns are heard and providing a mechanism for proposing changes.
Article 5
Without prejudice to Article 4, the Mixed Committee will receive information about the Council’s preparation of any acts or measures that may be relevant to this Agreement.
This ensures transparency by requiring the EU to keep the UK informed about developments relevant to the agreement.
Article 6
When developing new legislation within the scope of this Agreement, the Commission will informally consult experts from the United Kingdom, similar to the process of seeking advice from experts within Member States during proposal drafting.
This reinforces collaboration by including UK experts in the EU’s legislative development process.
Article 7
1. The European Parliament, national parliaments of EU Member States, and the United Kingdom Parliament will establish an inter-parliamentary committee to engage in discussions regarding the subject matter of this Agreement. This committee will be responsible for defining its own rules of procedure.
2. In instances where topics under discussion by the committee fall, at least partially, within the purview of devolved parliaments and assemblies within the United Kingdom, the committee’s rules of procedure will ensure the inclusion and participation of representatives from these bodies.
This section establishes a platform for dialogue and engagement between the UK Parliament and its EU counterparts on matters related to the agreement, ensuring representation of devolved UK institutions where appropriate.
Article 8
1. The authority to adopt new acts or measures concerning matters addressed in Article 2 rests solely with the competent institutions of the European Union. Unless explicitly stated otherwise in those acts or measures, and subject to paragraph 2, such acts or measures will come into force concurrently for the European Union, its relevant Member States, and the United Kingdom. The timeframe indicated by the United Kingdom in the Mixed Committee to fulfill its constitutional requirements will be duly considered in this process.
2. (a) Following the adoption of acts or measures as outlined in paragraph 1, to which the procedures defined in this Agreement have been applied, the Council will promptly notify the United Kingdom. The United Kingdom will then independently decide whether to accept the content of these acts or measures and implement them into its domestic legal framework. These decisions will be communicated to both the Council and the Commission within thirty days of the acts or measures’ adoption.
(b) If the content of an act or measure can only become binding for the United Kingdom after fulfilling specific constitutional requirements, the United Kingdom will inform the Council and the Commission accordingly at the time of notification. The United Kingdom will promptly, and no later than six months from the date of notification by the Council, provide written confirmation to the Council and the Commission upon the fulfillment of all constitutional requirements. From the date stipulated for the act or measure to enter into force for the United Kingdom and until such confirmation of constitutional fulfillment is received, the United Kingdom will provisionally apply the content of the act or measure to the extent possible.
3. The acceptance by the United Kingdom of the content of acts and measures referred to in paragraph 2 shall establish corresponding rights and obligations between the United Kingdom, on the one hand, and the European Union and its Member States bound by those acts and measures, on the other.
4. This Agreement will be considered terminated if:
(a) The United Kingdom communicates its decision not to accept the content of an act or measure, as described in paragraph 2, to which the procedures set forth in this Agreement have been applied.
(b) The United Kingdom fails to provide notification within the thirty-day timeframe stipulated in paragraph 2(a).
(c) The United Kingdom fails to provide notification within the six-month timeframe stipulated in paragraph 2(b) or does not implement provisional application as envisioned in the same subparagraph, starting from the date determined for the act or measure to take effect for the UK.
This Agreement will be considered terminated under these circumstances unless, within ninety days, the Mixed Committee, following a thorough assessment of options for continuing the Agreement, reaches a different decision. The termination of this Agreement will take effect three months after the conclusion of the ninety-day period.
5. The Mixed Committee retains the option to resolve a dispute by temporarily suspending the reciprocal application of specific measures listed in the Annex between the involved parties. Should this occur, the suspension will become effective three months after the end of the ninety-day period defined in paragraph 4.
6. In situations where a new act or measure falls, at least partially, within the competence of devolved governments within the United Kingdom, the United Kingdom has the right to notify the European Union that the time limits outlined in this Article may vary for different parts of its territory.
Furthermore, the United Kingdom may notify the European Union that, in cases where a new act or measure falls under the purview of devolved governments within the UK, paragraph 4 may only apply to specific parts of its territory. If such a situation arises, the Mixed Committee will make a determination regarding the termination or continuation of this Agreement, adhering to the provisions outlined in paragraph 4, or regarding partial suspension in accordance with paragraph 5, while taking into account the specified territorial distinction.
This section defines the mechanism for implementing new EU legislation within the UK, allowing for acceptance or rejection while outlining a process for managing disagreements and potential termination of the agreement.
Article 9
1. To achieve the shared objective of ensuring the most consistent application and interpretation possible of the provisions outlined in Article 2, the Mixed Committee will maintain ongoing oversight of case law developments within both the Court of Justice of the European Communities (hereafter “Court of Justice”) and the competent courts of the United Kingdom concerning these provisions. A mechanism will be established to facilitate the regular exchange of case law between the parties for this purpose.
2. Conditional upon the necessary modifications to the Statute of the Court of Justice, the United Kingdom will have the right to submit statements of case or written observations to the Court of Justice in instances where a question has been referred to it by a court or tribunal of a Member State for a preliminary ruling. This right applies specifically to cases concerning the interpretation of any provision specified in Article 2.
This establishes a framework for ensuring legal consistency, allowing for the exchange of case law and UK input into the Court of Justice’s interpretation of relevant provisions.
Article 10
1. The United Kingdom will provide annual reports to the Mixed Committee detailing how its administrative authorities and courts have applied and interpreted the provisions outlined in Article 2, taking into consideration the interpretations provided by the Court of Justice where applicable.
2. If a substantial difference in case law between the Court of Justice and the courts of the United Kingdom, or a significant divergence in application between the authorities of the relevant Member States and those of the United Kingdom, arises with respect to the provisions outlined in Article 2, and the Mixed Committee fails to ensure the preservation of uniform application and interpretation within two months of the matter being brought before it, the procedure outlined in Article 11 shall be invoked.
This outlines reporting requirements for the UK to demonstrate consistent application of the agreement and establishes a process for managing significant differences in interpretation or application.
Article 11
1. Should a dispute occur regarding the application of this Agreement, or in circumstances where the situation described in Article 10(2) arises, the matter in question will be formally added to the Mixed Committee’s agenda at the ministerial level as a point of contention.
2. Upon formal inclusion of the dispute on the agenda, the Mixed Committee will be allocated ninety days to reach a resolution. The Mixed Committee retains the authority to settle the dispute by implementing a temporary suspension of the reciprocal application of specific measures outlined in the Annex between the parties involved.
3. If the Mixed Committee fails to resolve the dispute within the designated ninety-day period as defined in paragraph 2, an additional thirty-day period will be granted to seek a final resolution.
If a conclusive resolution remains unattained upon the conclusion of this additional period, this Agreement will be deemed terminated. This termination will take effect six months after the thirty-day period has elapsed.
This section details the dispute resolution process, establishing timelines and outlining the potential consequences of failing to reach a resolution.
Article 12
1. To address the administrative expenses incurred in the application of this Agreement, the United Kingdom will contribute an annual sum of: … to the general budget of the European Communities.
2. The United Kingdom will have the right to access and receive documents prepared by the Commission or within the Council that pertain to this Agreement.
This covers financial contributions from the UK to support the agreement’s implementation and ensures transparency by guaranteeing access to relevant documents.
Article 13
1. This Agreement does not impact or supersede any other existing or future agreements established 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 clarifies that the agreement does not affect other agreements and safeguards the Common Travel Area between the UK and Ireland.
Article 14
This Agreement [does] [does not] apply to…
This addresses the territorial scope of the agreement, requiring further negotiation.
Article 15
1. This Agreement will come into force one month from the date the Secretary General of the Council, acting as the depositary, confirms that all procedural requirements for expressing consent to be bound by this Agreement have been fulfilled by or on behalf of the Parties.
2. For any acts or measures adopted after the signing of this Agreement but before its official entry into force, the thirty-day period outlined in Article 8(2)(a), last sentence, will commence on the date this Agreement takes effect.
This section defines the process for the agreement’s entry into force, addressing transitional provisions for acts adopted before that date.
Article 16
1. Both the United Kingdom and the European Union retain the right to withdraw from this Agreement. Notification of such denunciation must be submitted to the depositary, and it will take effect six months after the notification date.
2. In the event that the United Kingdom denounces the European Convention on Human Rights, this treaty will terminate on the date such denunciation becomes legally effective.
Should a Member State of the European Union denounce the European Convention on Human Rights, this treaty will terminate between the United Kingdom and that specific Member State on the date the denunciation takes effect.
This section outlines the conditions for withdrawal from the agreement and incorporates a provision for automatic termination if either the UK or an EU Member State withdraws from the European Convention on Human Rights.
Article 17
The ramifications arising from the denunciation or termination of this Agreement will be addressed through a separate agreement between the Parties. Should the Parties be unable to reach an agreement, each Party will retain the right to determine and implement the appropriate measures to be taken.
This section acknowledges the need to address the consequences of termination and provides a mechanism for doing so.
Article 18
1. This Agreement supersedes and replaces the relevant provisions pertaining to judicial cooperation in criminal matters and police cooperation outlined in the Withdrawal Agreement, effective from the date of its entry into force as stipulated in Article 15.
This clarifies that the agreement takes precedence over relevant provisions in the Brexit withdrawal agreement.
This document omits the concluding boilerplate text, signatures, and the Annex listing specific EU laws and amendments, which require further negotiation.
Barnard & Peers: chapter 24, chapter 25, chapter 27
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