Britain’s future relationship with the EU

This aspect of the shift in government policy since the 2019 general election has received the least attention, but in many respects is the most important.

Take the following examples:

British participation in the European Arrest Warrant (EAW) programme has been abandoned as an objective, almost tossed aside, without a Home Office ministerial statement, and without any debate or vote in Parliament. Yet in 2014 Theresa May as the then Home Secretary conducted a painstaking review of all the different Justice and Home affairs measures which Britain had automatically signed up for in the Lisbon Treaty in 2009, but after five years had the opportunity to exercise an opt-out. Eventually she came to the view that participation in the EAW was in the nation’s vital interest. This decision was taken on the advice of the nation’s leading security and police experts. Brexit does not prevent our continued participation in the EAW. Instead, the government has unilaterally decided that because such sensitive mutual cooperation can only take place under the rule of law, the UK cannot be part of it because we would have to remain under a legal regime which, in the final analysis, can be interpreted by the European Court of Justice.

On the rest of the security agenda, the government insists it supports pragmatic cooperation between national authorities. However, any agreement cannot ‘constrain the autonomy of the UK’s legal system in any way’. John Kerr in the Lords pointed to the fact that because the British government ‘robustly rejects the idea of any role for the Court of Justice’, this will have wide-ranging consequences.

This position of course has long been an article of faith among ideological Brexiteers. It has not however, until now, been explicit government policy. The Northern Ireland Protocol that Boris Johnson agreed as part of his Withdrawal Agreement is crystal clear that in any dispute about its interpretation, the ECJ remains the final arbiter on any point of Union law. In the Lords debate, Gavin Barwell pointedly read out a passage of Boris Johnson’s Political Declaration which stated that ‘should a dispute raise a question of the interpretation of provisions or concepts of Union law, the arbitration panel should refer the question to the ECJ as the sole arbiter of Union law for a binding ruling’.

What the British government signed up for in October, it casually overturned the following February – without any willingness on its part to subject such a crucial change of policy to Parliamentary scrutiny! These decisions have fundamental consequences. Police and security forces cannot exchange data, which is vital in the fight against terrorism, without there being commonly accepted rules for how and in what circumstances this can be done. Countries that have lived under fascism and communism within living memory will never accept anything otherwise. But because of its dogmatic definition of what counts as an unacceptable encroachment on British sovereignty, the government cannot accept that the rulings of British courts on these questions should be subject in the final analysis to the oversight of the ECJ.  This is not required of Brexit per se, only of a highly purist and sovereigntist definition of Brexit.

The government is even refusing to make a binding undertaking that Britain will continue to accede to the European Convention on Human Rights and the rulings of the Strasbourg Court, which are legally quite separate from the debate about the ECJ. As Gavin Barwell emphasised in the Lords debate, while the Political Declaration stated that the ‘future relationship should incorporate the government’s continued commitment to respect the framework of the ECHR’,….the British government is now insisting that ‘the agreement should not specify how the UK or EU member states should protect and enforce human rights’.

The government here appears to believe that a system of executive cooperation between police and intelligence agencies can be made to work without a binding framework of legal oversight. It seems their objection is nothing to do with the EU per se, but to the notion that the courts should exercise such oversight. This is in keeping with their wider preference for strengthening the executive at the expense of the judiciary and their scepticism about judicial activism in the field of human rights. The government is now replaying at European level unresolved arguments within the Conservative party regarding the status of human rights protections. As a consequence, the EU has, in my view, quite legitimately toughened-up its own stance to clarify that any UK departure from the ECHR status quo will lead to the automatic suspension of the provisions of the UK- EU agreement that depend on them. As Gavin Barwell put it in the Lords, ‘if we could resolve the issue of the ECHR, (on security issues) the two parties are not that far apart’. We shall soon see if that tone of qualified optimism is justified.

As for cooperation with the EU in foreign policy, the government’s new policy dismisses the prospect of a ‘joint institutional framework’. All it wants is ‘friendly dialogue and cooperation’. To this end, John Kerr recounted in the Lords debate that the British government had specifically ‘rejected the idea that one of the negotiating groups should cover external relations topics’. This ignores the view of most international relations experts that institutions matter to outcomes, by creating a framework of regular meetings at ministerial or senior diplomatic level. They bring officials together in way the develops close ties with their opposite numbers in other countries. They facilitate an instinctive mutual understanding of what underlies each government’s approach. They make common positions easier to forge and reforge as week by week, situations develop and change. As David Hannay put it in the Lords, the government should ask themselves a simple question: ‘will we have more or less influence on the formulation of EU policies if we refuse systematic cooperation?’.

Instead of opening the door to continued close European cooperation, the government wants to limit contact to ad hoc exchanges. Where is the government’s ambition for an equivalent of the Five Eyes intelligence partnership among our European friends, for strengthening European cooperation within NATO, or for establishing common European positions in vital international organisations such as the WHO and other UN bodies? Their attitude does not measure up to the need for ever closer cooperation with our neighbours who most closely share our values and interests.      

Most significantly, the government now rejects the notion of an overarching institutional framework for the UK-EU relationship. The possibility of a UK-EU Association Agreement was included in the Political Declaration but has now been ditched by the UK. As Charles Kinnoull put it in the Lords debate, the government seems to prefer ‘a suite of agreements’ to a single association, repeating what John Kerr described as the ‘the EU’s unhappy experience with Switzerland. We were one of the many member states to agree that the Swiss experiment should never be repeated. I expect the others still fell the same’. Gone is the notion of the ‘deep and special partnership’ with the EU that Mrs May looked forward to in her Lancaster House speech of January 2017. Cynics may question the value of such structures that the EU loves. Yet without a clear partnership framework, the EU-UK relationship runs the risk of being characterised, and always at risk of being poisoned, by interminable trade disputes.

There has to be something in place that keeps everyone’s eyes on the big picture – that is, our common defence of the values of democracy, human rights and the rule of law. As Gavin Barwell put it in an appeal to fellow Conservatives: ‘Let us not mislead ourselves that an association agreement (with the EU) is somehow inconsistent with the (Brexit) decision of the British people’.