In this post, Brendan McGurk of Monckton Chambers analyses the current state of the UK-EU negotiations and discusses a recent report by the House of Commons’ Committee on the Future Relationship with the European Union published on 19 June 2020.
On 15 June 2020, a further high-level meeting took place between Prime Minister Johnson and Commission President von der Leyen. The state of UK-EU negotiations following that meeting have been set out in a short report by the House of Commons’ Committee on the Future Relationship with the European Union published on 19 June 2020. The report makes for interesting reading, but this blog focusses on three aspects in particular: (i) its identification of the key sticking points that now exist in the negotiation of a comprehensive UK-EU Trade Agreement; (ii) the approach to state subsidies / aid under a full Trade Agreement; and (iii) the extent to which compliance with the ECHR is a condition of agreement in relation to law enforcement and judicial cooperation, and what the UK’s stance may indicate for the ECHR and the future of human rights at home.
(1) The sticking points
In essence, there are four big points of impasse between the UK and the EU: (i) governance; (ii) fisheries; (iii) ‘level playing field’ issues; and (iv) police and judicial co-operation in criminal matters.
In relation to governance, the UK position is that there should be a Comprehensive Free Trade Agreement (“CFTA”), supplemented by a range of other international agreements, and that each sub-agreement should have its own appropriate governance arrangements with no role for the CJEU, Moreover, each area the subject of a separate agreement would have its own dispute resolution mechanism. By contrast, the EU wishes to establish a single governing body to manage and supervise a single agreement, including in relation to dispute resolution which would operate across all aspects of that agreement.
In relation to fisheries, and consistent with their respective positions on governance, the UK is seeking a stand-alone agreement with its own dispute resolution mechanism, while the EU is seeking to envelop fisheries within a wider trade agreement (for further discussion see here). Whereas the UK sees the issue solely as one of access to UK fishing waters, the EU considers that access to wider markets for processing and sales must also be addressed. In that way, the EU considers that if there can be no agreement on fisheries, there can be no agreement on a wider free trade deal.
In relation to ensuring a level playing field between the UK and the EU, as per the Political Declaration (para. 77), the “future relationship must ensure open and fair competition, encompassing robust commitments to ensure a level playing field” and to that end, “the Parties should uphold the common high standards applicable in the Union and the United Kingdom at the end of the transition period in the areas of state aid, competition, social and employment standards, environment, climate change, and relevant tax matters.” Of particular concern is the two sides’ differing approaches to State aid which are considered in part 2 below.
In relation to law enforcement and judicial cooperation, both parties wish to continue to cooperate on such measures. The UK has asked to maintain cooperation in the areas of data exchange for law enforcement purposes (including asking for “capabilities similar to” those provided for by the EU databases on criminal records (“ECRIS”), DNA, fingerprints, vehicles, and “persons and objects of interest” (“SIS II”)), and has acknowledged that receiving a data adequacy decision from the EU is “extremely important” for such data exchange. It also wants operational cooperation with EU bodies such as Europol and Eurojust, and arrangements on extradition (and as to the latter, see this recent thread from RTE’s Tony Connelly in relation to the European Arrest Warrant here and here).The EU will seek to insist on arrangements that mirror those that it has put in place with third countries that are not members of Schengen. However, as noted above, the UK wants law enforcement and judicial co-operation to be the subject of a further stand-alone agreement, with no role for the CJEU and giving no commitments as to how the UK will protect and enforce human rights in the context of law enforcement. That is addressed further in Part 3 below.
(2) State aid and securing a level playing field
When asked about the UK’s approach to State aid in the recent round of negotiations, Michel Barnier noted that the EU had as yet “seen no British proposal regarding our proposals, apart from this reminder about the WTO framework, which is not sufficient. Nor do we know what national state aid regime will be implemented by the UK on 1 January next year.” Giving evidence to the Committee, George Peretz Q.C. indicated (report, para 18) that:
“The EU position is that the UK should continue to follow EU State aid rules, albeit applied by a domestic State aid authority… The EU is also proposing, however, that UK courts would continue to be able to—and at the supreme appellate level required to – refer questions of interpretation to the CJEU, a court on which the United Kingdom is no longer represented. That latter proposal has no equivalent in the EU’s agreements with Turkey or Ukraine [or any of the EFTA states].”
By contrast, the UK’s position is that there should be an agreement that each side keeps the other informed as to subsidies every two years, a commitment that one suspects will fall radically short of what the EU will accept. In this regard, one of the more positive recommendations made by the Committee as a means of breaking this particular impasse was stated as follows (at [24]):
“…progress in relation to the “level playing field” might be made if both parties considered an arrangement where the UK had the freedom to set its own level-playing field standards but, if those standards fell below the standards which were in place at the end of the transition period or if standards were changed in such a way that gave the UK an unfair competitive advantage, the EU could suspend parts of the trade agreement. An independent body would be needed to rule on whether the change gave rise to an unfair competitive advantage and whether the EU’s proposed action was reasonable..”
This is an interesting idea but would impose a form of mutual recognition of State aid rules from the outset, albeit rules that in substance would comply with some baseline standards that will be acceptable to the EU. The real devil lies in the detail of what suspension of parts of the UK-EU Trade Agreement would in practice entail if it were found by an independent body that state subsidies had been afforded to an undertaking that led to rival undertakings from the other side suffering a competitive disadvantage. Which parts of the deal would be suspended? For how long? How would renewed compliance be vouchsafed? There is some way to go in the negotiations if this circle is to be squared.
(3) Compliance with the ECHR abroad and at home
Finally, as noted above, the UK appears determined to give no commitments on how it will protect human rights in the context of the law enforcement arrangements to be entered into. In that regard, the report notes that the EU has indicated that entry into a CFTA is conditional on the UK’s adherence to the ECHR with its continued effect in domestic law (i.e. the Human Rights Act 1998), so that UK citizens can rely on it in UK courts and on adequate protection of their personal data. The UK has said that while cooperation will be “underpinned” by the importance attached by both the UK and the EU to human rights and data protection, the agreement “should not specify how the UK or the EU Member States should protect and enforce human rights and the rule of law within their own autonomous legal systems”. The report notes that Professor Catherine Barnard gave evidence to the effect that the UK was “doing its level best to ringfence or keep the European Convention on Human Rights out of the text”, and that this “clearly is a big issue for the UK and for the EU”. That calls to mind page 48 of the Conservative Party manifesto published in advance of the December 2019 general election which stated:
“After Brexit we… will update the Human Rights Act and administrative law to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government. We will ensure that judicial review is available to protect the rights of the individuals against an overbearing state, while ensuring that it is not abused to conduct politics by another means or to create needless delays….”
A proposed amendment to the Human Rights Act 1998 and new restrictions on judicial review was read by many UK public lawyers to mean that the UK’s withdrawal from the ECHR – albeit that some domestic replacement would be adopted – was very much on the cards. While no such steps have yet been taken, one suspects that they will not be taken until a CFTA is agreed first. But this aspect of the negotiation gives a very clear signal that the ECHR and the Human Rights Act 1998 appear still to be very much in the UK Government’s crosshairs.
In evidence to the Committee, Professor Barnard suggested that one possible way forward was for the agreement to state that if the UK decided to abrogate human rights protection, by deciding to withdraw from the ECHR and terminating the Human Rights Act “at the same time”, then the EU could terminate provisions in the agreement on law enforcement and surrender. Another approach would be to look at the UK’s human rights regime in the round rather than focusing solely on the ECHR, by taking into account protections in the common law for example. The UK might be more likely to accede to the latter. In many ways, the Common law provides equivalent levels of protection to those afforded by the ECHR. But that route would continue to enable the current Government to deliver on some of its election promises regarding the reform of rights-protection in the UK post Brexit, including, potentially, through the UK’s withdrawal from the ECHR. Where this aspect of the negotiation leads, therefore, will not only have ramifications for the content of cross-border law enforcement as part of any wider free trade deal, but the likely future course of human rights protection at home.
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As far as the UK leaving the ECHR and rewriting human rights for their own political ends, the present British government will have to rid themselves of ‘pesky’ Northern Ireland first.
As long as Northern Ireland remains held in the UK any moving away from the 1998 Human Rights Act is in direct contravention of the protection of Irish citizens in Northern Ireland as was internationally agreed in the Belfast Agreement of the same year.