Analysis 5 of the revised Brexit withdrawal agreement: the political declaration on the EU/UK future relationship
Professor Steve Peers, University of Essex
In the event that Brexit goes ahead on the basis of the revised withdrawal agreement, what would the future post-Brexit relationship of the UK and the EU be? The issue is dealt with in a revised political declaration on the future relationship, which (like the main agreement) was altered in the recent renegotiations between the UK and the EU.
While it would not be binding as an international treaty (it refers throughout to future negotiations, and largely avoids imperative language), the political declaration is made more legally relevant on the domestic level by the recently proposed withdrawal agreement bill (discussed here), which provides that any attempt by Parliament to set the agenda for the future relationship would be bound by it. (If the bill goes forward, however, parliament might try to amend it). And in the event that an election before Brexit day returned a Labour government, that government would likely focus on seeking amendments to the political declaration, subsequently (according to Labour policy) putting a revised deal to the public in a further referendum with a choice between that deal and staying in the EU after all.
The revised political declaration strengthens the wording which refers to completing the process of negotiating the future relationship by the end of 2020. This deadline was never very realistic, and it has become ever more fantastic as the UK’s membership of the EU has been extended. Despite that, the government’s policy is to leave the transition period in the withdrawal agreement at the end of 2020, no matter what (the transition period could be extended by mutual agreement of the UK and EU by up to two years, although this would entail further budget contributions by the UK, to be negotiated). This would create another ‘no deal’ cliff-edge, although more accurately it would be a ‘no tradedeal’ cliff edge, since the other provisions of the withdrawal agreement (on citizens’ rights, Northern Ireland, the financial settlement and the separation provisions) would remain in force after the end of the transition period.
This is the fifth in a series of blog posts about the revised withdrawal agreement. The previous posts contained an overview of the agreement, examined the transition period, and looked at dispute settlement and the citizens’ rights provisions. This an update of a blog post published last year, concerning the earlier version of the political declaration.
This blog post annotates the text of the entire political declaration here, showing (by bold/underline and
strikeout) how the version negotiated under Boris Johnson’s government has changed compared to the version negotiated under Theresa May’s government. It also explains the declaration in light of the broader context of EU membership and EU relations with other non-EU countries. (I make no claim to be exhaustive, though). I have not changed the text (all my annotations are indented), but I have added a few hyperlinks to other things which the political declaration mentions.
In parts, I have also added suggestions for possible amendmentsthat would make the text more precise and strengthen the level of political commitment. (It’s odd, for instance, that the text uses ‘will’ in some places but not others). These amendments might give an indication of the sort of amendments that a Labour government might seek (although I have no inside information on this). Before the annotation itself, I have also summarised the structure of the political declaration, and compiled a list of deadlinesthat it refers to.
I have also made some comparisons of how the future relationship (coupled with the withdrawal agreement, where relevant) would compare to a no deal scenario between the UK and EU.
Structure of the political declaration
The first five paragraphs are an Introduction. Following that, Part I (paras 6-15) sets out Initial Provisions, including sections on the ‘basis for cooperation’ (core values and rights, data protection) and ‘areas of shared interest’ (participation in EU programmes, dialogues).
Part II is the Economic Partnership (paras 16-77). It has 14 sections, starting with ‘objectives and principles’, followed by ‘goods’ (objectives and principles, tariffs, regulation, customs, checks and controls), ‘services’ (objectives and principles, market access, regulation), ‘financial services’, ‘digital’, ‘capital movements and payments’, ‘intellectual property’, ‘public procurement’, ‘mobility’, ‘transport’ (aviation, road transport, rail transport), ‘energy’ (electricity and gas, civil nuclear). ‘fishing opportunities’, ‘global cooperation’ and ‘level playing field’. It has been amended to insert references to a free trade agreement instead of a customs union-based relationship, taking account of the ‘level playing field’ measures and the original version of the ‘backstop’ being removed from the withdrawal agreement. It now explicitly accepts that trade will not be ‘frictionless’, accepting that UK/EU trade will be subject to rules of origin.
Part III, the Security Partnership (paras 78-117) has four sections, starting with ‘objectives and principles’, followed by ‘law enforcement and judicial cooperation in criminal matters’ (including data exchange, operational cooperation, anti-money laundering and counter-terrorism financing) ‘foreign policy, security and defence’ (including consultation and cooperation, sanctions, operations and missions, defence capabilities development, intelligence exchanges, space, development cooperation), and ‘thematic cooperation’ (cyber-security, civil protection, health security, illegal migration, counter-terrorism and violent extremism, classified information). It has been amended to remove a reference to the EU courts, and to make it even clearer that the UK is not obliged to participate in all EU defence measures, possibly to address frequent false claims about this issue.
Part IV covers Institutional and Horizontal Arrangements(paras 118-134), and has sections on ‘structure’, ‘governance’ (‘strategic direction and dialogue’, ‘management, administration and supervision’, ‘interpretation’ and ‘dispute settlement’) and ‘exceptions and safeguards’. It has been amended to reduce the level of detail as regards future dispute settlement and institutional arrangements.
Finally, Part V covers Forward Process (paras 135-141). The revised text has simplified this section, removing the references to a preparatory phase of negotiations.
List of dates in the Political Declaration
Immediately after Brexit Day: work programme of talks agreed (para 138)
As soon as possible after Brexit Day: Commission starts assessments on adequacy of UK data protection law (para 9)
June 2020: high level conference to review and progress negotiations (para 141)
1 July 2020: target for concluding and ratifying new fisheries agreement (para 74), so that it can apply from the first year after the transition period
End of 2020: target date for future relationship agreements to come into force (para 135), for Commission decision on adequacy of UK data protection law (para 9), and for completing assessment of financial services equivalence (para 36)
Barnard & Peers: chapter 27
Photo credit: Paramount
Annex: Annotation of the Political Declaration
POLITICAL DECLARATION SETTING OUT THE FRAMEWORK FOR THE FUTURE RELATIONSHIP BETWEEN THE EUROPEAN UNION AND THE UNITED KINGDOM
1. The European Union, hereafter referred to as “the Union”, and the United Kingdom of Great Britain and Northern Ireland, hereafter referred to as “the United Kingdom”, ("the Parties”) have agreed this political declaration on their future relationship, on the basis that Article 50(2) of the Treaty on European Union (TEU) provides for the negotiation of an agreement setting out the arrangements for the withdrawal of a departing Member State, taking account of the framework for its future relationship with the Union. In that context, this declaration accompanies the Withdrawal Agreement that has been endorsed by the Parties, subject to ratification.
2. The Union and United Kingdom are determined to work together to safeguard the rules-based international order, the rule of law and promotion of democracy, and high standards of free and fair trade and workers’ rights, consumer and environmental protection, and cooperation against internal and external threats to their values and interests.
3. In that spirit, this declaration establishes the parameters of an ambitious, broad, deep and flexible partnership across trade and economic cooperation with a comprehensive and balanced Free Trade Agreement at its core, law enforcement and criminal justice, foreign policy, security and defence and wider areas of cooperation. Where the Parties consider it to be in their mutual interest during the negotiations, the future relationship may encompass areas of cooperation beyond those described in this political declaration. This relationship will be rooted in the values and interests that the Union and the United Kingdom share. These arise from their geography, history and ideals anchored in their common European heritage. The Union and the United Kingdom agree that prosperity and security are enhanced by embracing free and fair trade, defending individual rights and the rule of law, protecting workers, consumers and the environment, and standing together against threats to rights and values from without or within.
Comment: Note the stress which the revised political declaration places on an FTA.
4. The future relationship will be based on a balance of rights and obligations, taking into account the principles of each Party. This balance must ensure the autonomy of the Union’s decision making and be consistent with the Union’s principles, in particular with respect to the integrity of the Single Market and the Customs Union and the indivisibility of the four freedoms. It must also ensure the sovereignty of the United Kingdom and the protection of its internal market, while respecting the result of the 2016 referendum including with regard to the development of its independent trade policy and the ending of free movement of people between the Union and the United Kingdom.
Comment: a mutual restatement of ‘red lines’ here: note that the UK government chose to refer to sovereignty, the UK internal market, trade policy, and the end of free movement of people, which is referred to again later on.
5. The period of the United Kingdom’s membership of the Union has resulted in a high level of integration between the Union’s and the United Kingdom’s economies, and an interwoven past and future of the Union’s and the United Kingdom’s people and priorities. The future relationship will inevitably need to take account of this unique context. While it cannot amount to the rights or obligations of membership, the Parties are agreed that the future relationship should be approached with high ambition with regard to its scope and depth, and recognise that this might evolve over time. Above all, it should be a relationship that will work in the interests of citizens of the Union and the United Kingdom, now and in the future.
Comment: the parties agree that the UK’s prior membership of the EU is a ‘unique context’ for their relationship, yet there are still parts of this text where the EU treats the UK like any other non-Member State: as regards the single market (para 4) as well as security.
PART I: INITIAL PROVISIONS
I. BASIS FOR COOPERATION
A. Core values and rights
6. The Parties agree that the future relationship should be underpinned by shared values such as the respect for and safeguarding of human rights and fundamental freedoms, democratic principles, the rule of law and support for non-proliferation. The Parties agree that these values are an essential prerequisite for the cooperation envisaged in this framework. The Parties also reaffirm their commitment to promoting effective multilateralism.
7. The future relationship should incorporate the United Kingdom's continued commitment to respect the framework of the European Convention on Human Rights (ECHR), while the Union and its Member States will remain bound by the Charter of Fundamental Rights of the European Union, which reaffirms the rights as they result in particular from the ECHR.
Comment: It is not clear how exactly the UK’s commitment to the ECHR would be expressed in legal terms. There is no explicit reference here to a legal commitment for the UK to remain a signatory to the ECHR. However, there is stronger wording in para 81.
B. Data protection
8. In view of the importance of data flows and exchanges across the future relationship, the Parties are committed to ensuring a high level of personal data protection to facilitate such flows between them.
9. The Union's data protection rules provide for a framework allowing the European Commission to recognise a third country’s data protection standards as providing an adequate level of protection, thereby facilitating transfers of personal data to that third country. On the basis of this framework, the European Commission will start the assessments with respect to the United Kingdom as soon as possible after the United Kingdom's withdrawal, endeavouring to adopt decisions by the end of 2020, if the applicable conditions are met. Noting that the United Kingdom will be establishing its own international transfer regime, the United Kingdom will in the same timeframe take steps to ensure the comparable facilitation of transfers of personal data to the Union, if the applicable conditions are met. The future relationship will not affect the Parties' autonomy over their respective personal data protection rules.
Comment: the EU rules on data protection law provide for the possibility of ‘adequacy decisions’ on the transfer of personal data with non-EU countries. Without an adequacy decision the transfer of personal data is harder, but not impossible. This point is relevant not only to commercial transfers, but to security-related transfers. There’s a limit on how much the EU can waive its standards, due to CJEU case law enforcing the right to data protection in the EU Charter of Fundamental Rights, and the likelihood that privacy activists will litigate if they believe that standards have been compromised. I’ve discussed this issue in more detail here.
No deal comparison: The Commission communication says that in the event of no deal, it will notconsider drawing up an adequacy decision regarding the UK. This will complicate the transfer of data for both commercial and security-related reasons.
10. In this context, the Parties should also make arrangements for appropriate cooperation between regulators.
Comment: the possibility of international cooperation on data protection is provided for in Article 50 of the GDPR (the EU’s General Data Protection Regulation).
II. AREAS OF SHARED INTEREST
A. Participation in Union programmes
11. Noting the intended breadth and depth of the future relationship and the close bond between their citizens, the Parties will establish general principles, terms and conditions for the United Kingdom’s participation in Union programmes, subject to the conditions set out in the corresponding Union instruments, in areas such as science and innovation, youth, culture and education, overseas development and external action, defence capabilities, civil protection and space. These should include a fair and appropriate financial contribution, provisions allowing for sound financial management by both Parties, fair treatment of participants, and management and consultation appropriate to the nature of the cooperation between the Parties.
Comment: The UK will participate in current EU programmes until the end of the current EU budget cycle (end-2020) under the transition period clauses in the withdrawal agreement (if ratified). The EU’s financial programmes for the next EU budget cycle (2021-27) are currently being negotiated among the EU27, and they will subsequently be negotiated with the European Parliament. These programmes often allow for participation for non-EU countries, on the conditions set out in the legislation setting up the programmes; the details of those conditions are being discussed during the negotiations. For instance, see Article 16 of the latest draft of the proposed future Erasmus programme. Note that para 11 refers to the conditions for non-EU countries’ participation in the EU legislation, without suggesting that the UK and EU will negotiate amendments to those conditions.
The frequent assertion that ‘the UK will be cut out of EU research programmes/Erasmus/et al’ in future is not correct, as the declaration sets out a political commitment to agree terms on the UK’s participation in such programmes, if the UK meets the relevant conditions. It is true to say that the UK’s participation in those programmes is not absolutely certain, but there is no way it could be certain at this point given the EU’s unwillingness and perceived legal inability to negotiate a legally binding future relationship before Brexit day.
12. The Parties will also explore the participation of the United Kingdom to the European Research Infrastructure Consortiums (ERICs), subject to the conditions of the Union legal instruments and individual ERIC statutes, and taking into account the level of participation of the United Kingdom in Union programmes on science and innovation.
Comments: Non-EU countries can participate in ‘ERICs’. The conditions for their participation are set out in Article 9 of the Regulationsetting up the legal framework for ERICs.
13. The Parties recall their shared commitment to delivering a future PEACE PLUS programme to sustain work on reconciliation and a shared future in Northern Ireland, maintaining the current funding proportions for the future programme.
Comments: The Commission has already proposedthat this fund continue for the next EU budget cycle.
14. The Parties should engage in dialogue and exchanges in areas of shared interest, with the view to identifying opportunities to cooperate, share best practice and expertise, and act together, including in areas such as culture, education, science and innovation. In these areas, the Parties recognise the importance of mobility and temporary movement of objects and equipment in enabling cooperation. The Parties will also explore ongoing cooperation between culture and education related groups.
15. In addition, the Parties note the United Kingdom's intention to explore options for a future relationship with the European Investment Bank (EIB) Group.
Comment: notice there is no firm commitment to develop this relationship. The EIB has some links with non-EU countries (see the ‘Global Player’ section of its 2017 activity report), but its main focus is the EU.
PART II: ECONOMIC PARTNERSHIP
I. OBJECTIVES AND PRINCIPLES
16. The Parties recognise that they have a particularly important trading and investment relationship, reflecting more than 45 years of economic integration during the United Kingdom's membership of the Union, the sizes of the two economies and their geographic proximity, which have led to complex and integrated supply chains.
17. Against this backdrop, the Parties agree to develop an ambitious, wide-ranging and balanced economic partnership. This partnership will be comprehensive, encompassing a
free trade area Free Trade Agreement, as well as wider sectoral cooperation where it is in the mutual interest of both Parties. It will be underpinned by provisions ensuring a level playing field for open and fair competition, as set out in Section XIV of this Part. It should facilitate trade and investment between the Parties to the extent possible, while respecting the integrity of the Union's Single Market and the Customs Union as well as the United Kingdom's internal market, and recognising the development of an independent trade policy by the United Kingdom beyond this economic partnership.
Comment: note the second reference to UK trade policy here. Also note the revised political declaration again stressing a ‘Free Trade Agreement’, although it is not obvious that there is a change in meaning from ‘free trade area’.
18. The Parties will retain their autonomy and the ability to regulate economic activity according to the levels of protection each deems appropriate in order to achieve legitimate public policy objectives such as public health, animal health and welfare, social services, public education, safety, the environment including climate change, public morals, social or consumer protection, privacy and data protection, and promotion and protection of cultural diversity. The economic partnership will recognise that sustainable development is an overarching objective of the Parties. The economic partnership will also provide for appropriate general exceptions, including in relation to security.
Comment: the deletion of this provision reflects the change in the Northern Ireland protocol, which is no longer a temporary backstop but a permanent arrangement in the revised withdrawal agreement, although it is still possible to replace it.
A. Objectives and principles
Comment: another reference to an FTA in the revised political declaration; note no reference to the May government’s objective of ‘frictionless’, and the deletion of ‘as close as possible’.
Suggested amendment: to take account of those in the UK who would like a closer relationship, this commitment should be more open-ended in the event that UK ‘red lines’ change. Add an additional sentence: ‘In the event that the UK Parliament supports UK participation in the EU single market, the Parties will negotiate to that effect.’
Comment: this text reflects the definition of a free trade area in Article XXIV GATT, and the revised text refers explicitly to an FTA, but oddly there is no specific reference to the GATT. The revised text drops reference to a single customs territory and accepts that rules of origin will exist. This is likely to increase costs and checks.
Suggested amendment: to increase the level of ambition and to take account of possible changes in the ‘red lines’ (the Labour party position), the text could read: ‘The economic partnership will ensure no tariffs, fees, charges or quantitative restrictions….In the event that the UK Parliament supports the negotiation of a customs union between the EU and the UK, the Parties will negotiate one.’
No deal comparison: in the absence of the withdrawal agreement and a subsequent free trade agreement, UK exports to the EU (and the other way around) will be subject to tariffs and non-tariff barriers. Although some in the UK believe that EU non-tariff barriers would violate WTO law, the EU takes a different view and intends to apply such measures, according to the Commission’s no-deal preparedness notices. The UK could challenge this in the WTO, but the WTO dispute settlement system is currently not fully functioning.
C. Regulatory aspects
Comments: the WTO technical barriersand SPS agreements set out basic standards to reduce checks on products, but there is a commitment to go further. The commitment to consider UK involvement with EU agencies is weak: it refers to ‘cooperation’, not participation, and the parties have only agreed to ‘explore the possibility’. Note that the EMA Regulation has no provision for participation of non-EU countries; the ECHA Regulation provides generally for their participation (with no details) in its Article 106; and the EASA Regulationprovides either for limited technical cooperation with non-EU countries (Article 90) or for full participation in the Agency (Article 129) – but on condition that the non-EU country sign a treaty with the EU aligning to EU aviation law.
Suggested amendments: the second, third and fourth sentences are too weak: replace ‘should’ with ‘will’.
Comment: notice the deletion of a reference to alignment. Absence of alignment will make it difficult to join EASA, as the law stands.
Comment: note the addition of references to VAT in the revised political declaration.
Suggested amendments: the second and third sentences are too weak: replace ‘envisage making use’ with ‘will make use’ and ‘intend to consider’ with ‘will agree’.
Comment: the revisions here reflect the changes to the Northern Ireland protocol.
Suggested amendments: the text is weaker than the backstop provisions of the withdrawal agreement. Add to the end: ‘in order to replace the backstop in the withdrawal agreement as soon as possible’.
E. Implications for checks and controls
Comment: note the removal of a reference to alignment of law in the revised political declaration.
Suggested amendments: the possibility of considering a customs union should be referred to here as well.
III. SERVICES AND INVESTMENT
A. Objectives and principles
Comments: Some commentary on the future relationship suggests that ‘it says nothing on services’, a vital part of the UK economy, but this is false – even under the revised political declaration. The UK and EU intend to agree free trade in services, which will go beyond the basic provisions of the GATS (the services part of the WTO) – yet fall short of participation in the EU internal market for services. Oddly, the text of the political declaration does not refer explicitly to ‘free trade in services’, so this might explain some of the confusion.
Article V GATS is the provision providing for free-trade agreements in services. Unlike above, there is an explicit reference to the relevant WTO rule. The language here (‘substantial sectoral coverage’, ‘all modes of supply’, ‘absence of substantially all discrimination’) is taken from that GATS Article and its footnote.
The ‘modes of supply’ in GATS are: Mode 1 (cross-border supply), Mode 2 (the customer moves), Mode 3 (commercial presence, ie foreign investment and corporate service provision via a subsidiary), and Mode 4 (supply of services by natural persons). (See Article I:2 GATS). As for the list of services sectors, comparing the declaration to the list used for GATS classification, note that the declaration leaves out the audio-visual sub-sector (it’s part of the ‘communications services’ sector, along with telecoms, courier and postal services), the construction sector, the education and health sectors, and tourism and travel. These might ultimately be covered by ‘other services of mutual interest’, but it is notable that they are not referred to at the outset. For a more detailed discussion of future UK/EU services trade issues, see the reportby Sam Lowe.
Suggested amendments: the degree of commitment should be strengthened, and the free trade intention should be explicit. Replace ‘should aim at’ with ‘will negotiate a free trade agreement on services, comprising’; replace ‘should’ with ‘will’ in the second sentence.
Comparison with no deal: if there is no withdrawal agreement or free trade in services, the two sides will fall back onto the more limited GATS commitments, entailing less provision of services in either direction.
B. Market access and non-discrimination
Comment: Market access (ie removal of quotas, economic needs tests, caps on foreign investment et al) and national treatment (ie treating foreign services and service suppliers equally with their national equivalents) are concepts described in Article XVI and Article XVII GATS. The purpose of a free trade agreement in services is to remove some of the restrictions on market access and national treatment which WTO Members otherwise retain as regards some services.
Suggested amendments: the degree of commitment should be strengthened. Replace ‘should’ and ‘would’ with ‘will’.
Comment: this reflects Mode 4 of the GATS. It does not amount to free movement of workers in general, as confirmed by the GATS Annexon movement of natural persons supplying services. GATS Article V bis refers to the possibility of labour market integration agreements, but there is no suggestion of agreeing such an agreement between the UK and EU in the text of the political declaration. Para 48 indicates that the UK is not interested in an agreement on the free movement of persons in general.
Suggested amendments: the degree of commitment has to be strengthened, as a free trade agreement omitting Mode 4 in services will not be consistent with the GATS, as para 28 already points out. Amend to read: ‘In accordance with Article V GATS, the arrangements willallow for…’
C. Regulatory aspects
Suggested amendments: the degree of commitment in the previous three paras is weak. Replace ‘should’ with ‘will’ throughout.
Comment: There is no reference here to the concept of mutual recognition referred to in Article VII GATS, or as provided for in some free-trade agreements like the recent EU/Canada free trade agreement.
Suggested amendments: ‘The Parties will also negotiate appropriate arrangements for recognition of those professional qualifications which are necessary to the pursuit of regulated professions, where in the Parties' mutual interest.’
IV. FINANCIAL SERVICES
Suggested amendment: replace ‘should’ with ‘will’ in the first sentence.
Suggested amendments: replace ‘should’ with ‘will’ in the second and third sentences.
Suggested amendments: replace ‘should’ with ‘will’ in paras 38-40.
VI. CAPITAL MOVEMENTS AND PAYMENTS
Comments: EU free trade agreements usually provide for the free movement of payments related to liberalised transactions, ie to ensure that goods and services moving in accordance with the treaty can be paid for. Article XI GATS sets out the same rule for payments related to services movements covered by the GATS. It should be noted that Article 64 TFEU provides for the free movement of capital between the EU and non-EU countries, subject to exceptions.
Suggested amendment: replace ‘should’ with ‘will’.
VII. INTELLECTUAL PROPERTY
Comment: it is usual for free trade agreements to provide for intellectual property protection higher than the level of WTO and other international treaties referred to here, but this is sometimes controversial as some argue (for example) that this stifles innovation and keeps drug prices high.
Comment: This refers to some existing EU laws (on databasesand resale rights; the UK was not keen on the latter law), but not others. Notably there’s no reference to the Unified Patent Court linked to EU law, one part of which is to be located in the UK, although the UK’s withdrawal from the EU may arguably cause legal complications for this plan. Since the EU is very keen to ensure that all free trade agreements contain provisions for geographical indications, the UK should not agree to commit itself on this issue unless the EU makes a significant concession on an issue important to the UK.
Comment: This refers to the question of whether once a product has been legally sold on the market by the right holder, it can be sold again anywhere on the market by anyone. If it can, this increases competition but reduces the de facto protection for the rights holder. EU law currently has EU-wide exhaustion, but not international exhaustion (see the CJEU’s Silhouette International judgment).
Suggested amendments: replace ‘should’ with ‘will’ in all the paras in this section.
VIII. PUBLIC PROCUREMENT
Comment: It’s not unusual for free trade agreements to provide for additional access to public procurement. The UK’s accession to the GPA has already been agreedwithin the WTO.
Suggested amendments: replace ‘should provide’ and ‘should also commit to’ with ‘will negotiate’ in the previous two paras, and replace ‘should address’ with ‘will address’.
Comment: While the following provisions, as well as the section above on free trade in services, deal with the movement of people to some extent, this should not be confused with the free movement of persons with the EU, which is not UK government policy.
Suggested amendment: replace ‘should’ with ‘will’.
Comment: The EU has adopted a law on short-term visa-free travel for UK citizens visiting the EU after Brexit (discussed here), subject to reciprocity for all Member States by the UK (reflecting para 49). Note that the reference here is to reciprocal matching domestic laws, not to a treaty on visa-free travel. EU practice on this is mixed – it has treaties on visa-free travel with some countries (such as Brazil), but otherwise has matching reciprocity (with Japan, for instance).
Comment: The EU has not signed any treaties on this form of movement with non-EU countries, but there’s no explicit reference to a treaty here. It’s not clear what ‘agree to consider conditions’ means. The reference to these four issues is perhaps because the EU has a law partly harmonising admission of non-EU nationals for these four purposes, which applied from spring 2018, replacing and amending previous EU laws (see discussion of the newer law here). Since UK/EU relations are ‘unique’, there is a case for negotiating on this issue; and Brexit supporters may wish to consider whether they can offer something concrete (although falling short of full free movement) to young people who largely reject their project.
The previous Prime Minister appeared to suggest that the declaration could establish free movement for these groups of people. This is false, since the conditions are stricter. For instance, non-EU students do not have the right to equal treatment in access to education and tuition fees, or family reunion, or to stay to work after studies (the EU law on non-EU students says something on this possibility, but it falls short of free movement). The EU law also limits how much non-EU students can work while a student.
Suggested amendment: Amend to ‘…agree to consider negotiations on conditions…’
Comment: Again, there’s no explicit reference to a treaty here, but it’s hard to see how social security coordination can work without one. There are social security coordination provisions in several EU association agreements, although a stand-alone treaty on this issue should also be possible in theory. Notice the reference to future movement, not future free movement of persons. Presumably the reference to future movement is because social security coordination for those EU and UK citizens who moved before Brexit day (and before the end of the transition period provided for by the withdrawal agreement) is regulated by the withdrawal agreement.
Comment: This refers to issues such as the EU travel authorisation system, the EU entry-exit system (neither of which is operational yet) and the use of fast-track lanes at external border crossing posts. The commitment is to ‘explore the possibility’, not to ensure the outcome. EU policy (as set out in the relevant legislation) is to facilitate crossing only where the non-EU country concerned has agreed to free movement of people with the EU. (See more on the EU travel authorisation system here, and on EU immigration law implications for UK citizens post-Brexit here).
Comment: The continuation of the CTA has never been controversial. It is protected by the withdrawal agreement and also by Protocols to the EU Treaties.
Comment: The reference here is to international family law measures, not treaties between the UK and EU. However, the following paragraph suggests possible such treaties. (For the EU ratification of the Hague Convention, see here). Note that the UK can accede to the Hague Convention unilaterally, without needing approval of the EU or the other parties to that treaty (see Article 60 of the Convention).
Comment: The commitment to ‘explore options’ does not indicate an intended outcome. The existing EU law governing the two issues mentioned (which the UK has opted in to) is the Brussels II Regulation. It was recently amended. The UK also opted in to the EU’s maintenance Regulation, which goes beyond the Hague Convention mentioned in the previous paragraph. The EU has not previously signed treaties with non-EU countries on their participation in such EU laws.
Proposed amendments: the absence of measures on this issue will complicate the lives of many ordinary people in both the UK and EU, especially children. Suggest: ‘The Parties will negotiate continued UK participation in EU judicial cooperation measures on matrimonial, parental responsibility and maintenancematters’.
Comment: the ‘nullify or impair’ language comes from the GATS Annexon movement of natural persons supplying services.
Comment: the commitment falls short of UK participation in the European Common Aviation Area (which is open to non-EU countries in Europe), which would have entailed continuing to apply the status quo in terms of aviation market access and aviation law. A separate agreement is likely to entail less market access than at present.
Suggested amendment: replace ‘should’ with ‘will negotiate to ensure’; add sentence to the end: ‘If agreed by the UK Parliament, the UK shall seek instead to retain its membership of the ECAA, and the Parties will negotiate to ensure that continued membership’.
No deal comparison: the EU has adopted a short-term unilateral law on flights in the event of no deal. The preamble to this law refers to an intention to negotiate an aviation agreement with the UK after Brexit.
Comment: As noted above, full participation in the EASA is conditional on signing up to EU aviation law, implicitly as set out in the ECAA. Therefore it is unclear how far this cooperation between aviation regulators can go.
Suggested amendment: Add sentence to the end: ‘If agreed by the UK Parliament, the UK shall seek instead to be a full participant in EASA, pursuant to its membership of the ECAA.’
B. Road transport
Comment: The declaration contemplates arrangements for both commercial drivers and private motorists, but is not very clear about either.
Suggested amendment: replace ‘should’ with ‘will negotiate to ensure’ in both sentences.
No deal comparison: as with aviation, there is a short-term unilateral EU measure.
C. Rail transport
Suggested amendment: replace ‘should’ with ‘will’.
D. Maritime transport
Comments: the EMSA is open to the participation of non-EU countries which apply EU maritime safety law (see Article 17 of the EMSA Regulation), but the declaration appears to consider a more limited exchange of information instead. It might be questioned why the UK apparently does not wish to seek full participation.
A. Electricity and Gas
B. Civil Nuclear
Comment: Non-EU countries are associated with Euratom and its research programmes, as I discuss here(with further links).
Suggested amendments: replace ‘should’ with ‘will’ throughout para 66; para 67 to start ‘The Parties will negotiate the UK’s association with…’
C. Carbon pricing
XII. FISHING OPPORTUNITIES
Comment: note that the EU has exclusive external competence over fisheries conservation, meaning that as with trade, EU Member States will negotiate as a bloc, through the EU, with the UK.
Comment: the ‘best endeavours’ wording echoes Article 184 of the withdrawal agreement. Note that the transition period (as discussed here) preserves the current shares of fishing quotas.
XIII. GLOBAL COOPERATION
XIV. LEVEL PLAYING FIELD FOR OPEN AND FAIR COMPETITION
Comment: this was rewritten to move the binding annexes to the Protocol on the Irish border backstop to the non-binding political declaration. This move raised concern among those who believe it indicates a risk of lowering standards as regards labour and environmental law.
Suggested amendment: Add a final sentence: ‘In particular, the future relationship treaty will include binding rules to ensure that labour and environmental standards are not lowered’.
PART III: SECURITY PARTNERSHIP
I. OBJECTIVES AND PRINCIPLES
II. LAW ENFORCEMENT AND JUDICIAL COOPERATION IN CRIMINAL MATTERS
Comment: There’s no legal requirement on the EU to distinguish between non-EU countries which apply Schengen and free movement of persons and non-EU countries which don’t, but it reflects existing EU practice to have a closer cooperation on security with the former countries – namely Norway, Iceland, Switzerland and Liechtenstein.
Comment: the revised declaration drops explicit reference to the CJEU here. EU treaties with non-EU countries on internal security do not require any non-EU countries to agree jurisdiction for the CJEU, although in some cases there is a requirement to take account of relevant CJEU case law and/or to hold discussions as to how to deal with a divergence of case law if it happens. (For more details, see my blog post on the prospect of a post-Brexit UK/EU security treaty). There is no good reason to treat the UK any differently on this issue.
For more on this issue see the recent reportfrom the House of Commons Home Affairs Committee, and the earlier reportfrom the House of Lords EU Committee (note that I was a special adviser to the latter enquiry).
There is CJEU case law on human rights protection as a condition for the application of EU rules on criminal law cooperation – including as regards the UK in the run up to Brexit (see discussion here). Logically this must apply by analogy to non-EU countries. While the EU has signed criminal law treaties with countries that have not signed the ECHR simply because of geography (ie, the US and Japan), it is unlikely to be willing to sign or keep in force treaties with European countries that have denounced that Convention. There would be legal challenges if it did. Again, it is not clear if a future relationship security treaty would directly require the UK to remain a party to the ECHR, or rather provide for a review and/or denunciation by the EU side if it did not.
As for personal data, as noted above, see the comments on para 9 above.
A. Data exchange
Comment: the UK has signed up to the EU law on PNR data. However, the EU also has treaties with non-EU countries on this issue, which have different systems for exchanging data. It is not clear whether the idea is to retain UK participation in the EU law, or set up a separate arrangement. Note that the CJEU has ruled that one of the EU treaties on PNR failed to protect personal data rights sufficiently (see discussion here); that treaty is now being renegotiated as a result.
The exchange of national information on DNA, fingerprints and vehicle registration data within the EU takes place on the basis of the ‘Prüm’ Decision(which was named after the place where a previous treaty dealing with these issues was signed). Although the text of the political declaration is not explicit, presumably the idea is for the UK to keep applying this law as a non-EU country. The EU already has a treatywith Norway and Iceland which associates those countries with the relevant EU law (another such treaty is being negotiated with Switzerland and Liechtenstein). This treaty could easily be adapted to apply to the UK (taking account of the fact that the UK already applies the relevant EU law).
Comments: This paragraph describes – but does not name – two EU laws in which the UK currently participates – namely ‘SIS II’ (the second-generation Schengen Information System) and ECRIS (the European Criminal Records Information System). The UK has participated in SIS II since 2015 (see discussion here); it also opted in to an updated SIS II law, which was adoptedby the EU in 2018. The UK uses the SIS II system frequently in practice. To date, the only non-EU countries which the EU has agreed to participate in this system are the four Schengen associated countries.
ECRIS was initially set up on the basis of two EU laws: a Framework Decision and a Decision. These laws were amended and replaced by a Regulationand Directive. The EU has not previously agreed that any non-EU countries could be associated with this law.
No deal comparison: if there’s no deal, the UK will immediately lose any access to EU security databases and frameworks for exchange of information (SIS II, ECRIS, PNR, Prum and others) from Brexit Day.
B. Operational cooperation between law enforcement authorities and judicial cooperation in criminal matters
Comment: this is rather vague. The terms of non-EU country cooperation with each agency are set out in the Europol Regulation (Articles 22 and 25) and the Eurojust Regulation (Articles 52-54 and 56) respectively.
Proposed amendment: replace the second part with ‘…and will therefore negotiate the UK’s cooperation with Europol and Eurojust on the basis of the relevant EU legislation’.
Comment: this provides for a fast-track extradition treaty probably not with all the provisions of the European Arrest Warrant (EAW), but that would remain to be seen. The EU has agreed on a fast-track extradition treaty which is very similar to the EAW with Norway and Iceland, which comes into force on 1 November 2019.
Suggested amendment: The commitment here is too weak. Replace ‘should establish’ with ‘will negotiate’.
No deal comparison: if there’s no deal, the UK and the EU Member States will, from Brexit day, fall back upon the Council of Europe extradition Convention and its protocols, which provide for slower and more complicated procedures than the EAW.
Comment: this lacks mention of a number of measures, such as the European Investigation Order on the transfer of evidence, the EU law on the transfer of prisoners, and others. In some cases there is a Council of Europe fallback, which is less far-reaching than its EU counterparts.
Suggested amendment: The level of commitment and the content is too weak. Replace ‘should consider’ with ‘will negotiate’, and add specific references to the transfer of evidence, the transfer of sentenced persons and the freezing and confiscation of criminal assets.
C. Anti-money laundering and counter-terrorism financing
Comment: there’s no explicit reference to EU law on money laundering here, and it is not clear what legal form all this will take.
Suggested amendment: Add to the end: ‘They agree to negotiate any necessary measures to this end’.
III. FOREIGN POLICY, SECURITY AND DEFENCE
Comment: It should be recalled that Article 127(2) of the withdrawal agreement provides that a UK/EU foreign policy treaty could be drawn up early, before the end of the transition period. The declaration makes no specific reference to this possibility.
A. Consultation and cooperation
Comment: informal meetings are usually held once every six months. Consultation at an infrequent informal meeting is a marginal level of UK involvement. However, there is a less precise reference to other dialogue at different levels.
Comment: The EU mainly adopts financial ‘smart’ sanctions against companies or individuals linked to questionable regimes. Since much of the assets concerned (and therefore the necessary intelligence) are in the City of London, EU sanctions policy is weakened without close UK links. The declaration is quite vague when addressing this issue.
C. Operations and missions
Comment: the EU has such agreementswith several non-EU countries. The additional language added here in the revised political declaration addresses frequent false claims that the political declaration subordinates the UK military to EU defence cooperation, adding to the previous reference to case-by-case participation to make explicitly clear that the UK would be free not to participate in EU defence measures as a sovereign non-EU State.
D. Defence capabilities development
Comment: the EDA already has such Administrative Arrangements with several non-EU countries. The proposed EDF for the next budget cycle provides for involvement of non-EU countries, although only EEA States can participate without restrictions (the text is being negotiated). As for PESCO, the decisionsetting it up calls for general rules on limited participation by non-EU countries (Article 9), which are due to be adopted soon (see also this press story from October). Similarly with earlier paras on defence, the reference to autonomy and freedom of action rebuts frequent false claims that the UK is indefinitely subordinated to EU defence cooperation.
E. Intelligence exchanges
Comment: the Decisionsetting up the EUSC provides for cooperation with non-EU countries (Article 20).
Comment: this is an ironic masterpiece of content-free drafting. While the European Space Agency is an intergovernmental body separate from the EU, the EU has links with it and has a further space policy, explained here. This includes the ‘Galileo’ satellite project, which is the subject of a UK/EU dispute about further participation; that may explain the drafters’ sarcasm.
G. Development cooperation
Comment: for an overview of EU development policy, see here.
IV. THEMATIC COOPERATION
A. Cyber security
Comment: The Directiveon network information security provides for possible cooperation with non-EU countries (Article 13). ENISA has become a ‘Cybersecurity Agency’: see the vague provisions on cooperation with non-EU countries in the recently revised Regulationestablishing this agency (Articles 12 and 42).
B. Civil protection
Comments: the Civil Protection Mechanism is open to the participation of non-EU European States (besides EEA and EU applicant/candidate States) subject to negotiations on the terms (Article 28).
C. Health security
Comments: the EU has a Health Security Committee, which coordinates responses to health crises, including with non-EU countries.
D. Illegal migration
Comments: links between non-EU countries and Europol were discussed above. The legislation establishing the EU borders agency, better known as ‘Frontex’, has recently been renegotiated (see text here, and discussion hereand here).
E. Counter-terrorism and countering violent extremism
V. CLASSIFIED AND SENSITIVE NON-CLASSIFIED INFORMATION
Comment: the EU has a number of treaties with non-EU countries on the exchange of classified information. See a list of them here.
PART IV: INSTITUTIONAL AND OTHER HORIZONTAL ARRANGEMENTS
Comment: this provides for the possibility of different dispute settlement rules, rather than one common system.
Comment: by derogation from the ‘overarching’ framework referred to in the previous paragraph, this provides for the possibility of stand-alone agreements, which would also have different dispute settlement rules. This may be particularly relevant for foreign and defence policy, where (as noted already) the withdrawal agreement already provides for a separate treaty to be concluded even during the transition period.
Comment: Article 217 TFEU provides for association agreements with the EU. They must be approved by unanimous vote of the Member States and the consent of the European Parliament, and usually (but not always) have to be approved by national parliaments too. Their content varies widely; having an association agreement does not mean that a State is an ‘associate member’ of the EU (in fact, there’s no such concept). Implementing them does not necessarily require a unanimous vote, as CJEU case law (discussed here) has confirmed.
A. Strategic direction and dialogue
Comment: the ‘governance’ provisions are similar to those in other comparable EU agreements. For instance, see Articles 119-125 of the EU/Serbia association agreement. Note that the revised political declaration removes the detail regarding summits and ministerial meetings. (The civil society provision is not really new, just moved from another para.)
B. Management, administration and supervision
Comment: Joint Committees are common in international treaties, and indeed the withdrawal agreement provides for one (Article 164). For another example, see Article 119 of the EU/Serbia association agreement (in that case, known by the different title of ‘Stabilisation and Association Council’).
Comment: These are common provisions. See, for instances, Articles 120 and 123 of the EU/Serbia association agreement. The withdrawal agreement provides for a number of specialised sub-committees (Article 165).
D. Dispute settlement
Comment: In the withdrawal agreement, dispute settlement before the Joint Committee is the first recourse (Article 169), but the political declaration refers to informal bilateral discussions first. This has been strengthened in the revised political declaration, which attempts to draw a clearer distinction between the dispute settlement under the withdrawal agreement and under the future relationship.
Comment: Compare to Article 170 of the withdrawal agreement, which says that either side can send a dispute settlement to arbitration if the Joint Committee does not settle it within three months, and both sides could agree jointly to send the dispute to arbitration before that point. Article 175 of that agreement equally provides that arbitration decisions are binding.
Comment: Compare to Article 174 of the withdrawal agreement, which equally says (in a more elaborate form) that the arbitrators must ask the CJEU to rule on interpretation of EU law, with a review process if it does not. This is necessarily a legal ‘red line’ for the EU side, as the case law of the CJEU provides that only the EU courts can give an interpretation of EU law that binds the EU institutions or Member States (see, for instance, Opinion 1/92). However, such provisions may be less relevant under the future relationship than under the withdrawal agreement, as the future relationship treaties may make fewer references to EU law. The revised political declaration moves away from the CJEU somewhat, but a complete break as regards interpretation of EU law is not feasible.
Comment: This is less detailed than the withdrawal agreement, which provides for a process to determine what is a ‘reasonable period of time’ to comply (Article 176), then an arbitrators’ review of whether there was compliance (Article 177), then imposition of a lump sum or penalty payment by the arbitrators for non-compliance (Article 178(1)), then suspension of part of the withdrawal agreement or future relationship treaty due to non-payment of the financial penalty or non-compliance with an arbitration ruling (Article 178(2)). The revised text removes some of the detail here, although the added reference to Article 179 of the agreement covers review of retaliatory measures.
For anyone inclined to think that this process is outrageous as compared to ‘WTO rules’, note that it is in fact broadly similar to the way the WTO Dispute Settlement Understanding works, in case of non-compliance with a ruling finding breach of WTO law.
III. EXCEPTIONS AND SAFEGUARDS
Comment: there are national security exceptions in the EU Treaties, WTO law, and free trade agreements, so this is unexceptional (unless it is abused in practice, as Donald Trump is allegedly doing).
Comment: free trade agreements usually provide for economic safeguard exceptions; this is very similar to the wording of Articles 112 and 114 of the EEA treaty. There’s no mention of whether measures against dumping or subsidies will be agreed. These are usually possible under the WTO and free trade agreements; EU law and the EEA are notable exceptions, due to harmonisation of State aid and competition law.
PART V: FORWARD PROCESS
Comment: this reflects the wording of Article 184 of the withdrawal agreement, which provides that that UK and EU must use their ‘best endeavours, in good faith and in full respect of their respective legal orders, to take the necessary steps to negotiate expeditiously the agreements governing their future relationship referred to in the political declaration…and to conduct the relevant procedures for the ratification or conclusion of those agreements, with a view to ensuring that those agreements apply, to the extent possible, as from the end of the transition period.’ Note that the wording of the political declaration here assumes that the transition period will not be extended after the end of 2020.
Comment: this reflects the wording of the preamble to the Irish border protocol to the withdrawal agreement.
Comment: the revised political declaration cuts out the preparatory phase of future relationship negotiations, perhaps because a shorter gap is now foreseen between agreeing the withdrawal agreement and its entry into force. Some of this text is moved to the new para 140 below.
Comment: Article 218 TFEU sets out the rules (for the EU side) on the EU negotiating and approving treaties with non-EU countries. It’s significant that there’s a reference to multiple agreements, and to negotiations in parallel, here. The text is imprecise about when the EU will begin the formal process, and vague about the negotiations.
Suggested amendment: ‘Immediately after the UK’s withdrawal from the EU, the Union will take the steps necessary to begin formal negotiations under Article 218 of the Treaty on the Functioning of the European Union (TFEU), and
it is envisaged that the Parties will negotiate in parallel…’
Comment: provisional application of treaties with non-EU countries is allowed (and often used) under EU law, even where treaties have to be ratified by Member States. This added wording suggests greater haste giving effect to future relationship treaties.
140. With a view to providing a sound foundation for the talks on the future relationship between the United Kingdom and the Union, both Parties will expeditiously: a) identify those areas that are likely to require the greatest consideration and the associated legal and technical issues that will need to be addressed, in order that the necessary technical preparations can be made on both sides; b) draw-up a full schedule for the negotiations, taking into account relevant internal processes; and c) consider the logistical requirements of the formal negotiations.
Comment: this new para takes up some of the content in paras 141-3 of the previous version, which have been deleted (see above).
Comment: meetings every six months are no longer mentioned, but a high level meeting in June 2020 replaces them.