80 CLUB LECTURE
I’m aware of the honour of being invited to give such an important lecture, and grateful to have been thought worthy of joining the distinguished company of those who have gone before me in this role. Also a touch daunted, because I have had to rewrite the lecture I was intending to give, in order to give full value to the events of last week, and the result is rather rough-hewn, though it has the virtue of topicality.
My lecture is going to be in three unequal parts. I thought it would be useful to begin by sketching out and commenting on what I consider the most significant elements of the Prime Minister’s Article 50 letter, delivered to Mr Donald Tusk, the President of the European Council, on Wednesday last week, and of Mr Tusk’s draft European Council guidelines, which were published last Friday. I shall go on to make some points about the Article 50 process. And I shall then outline a “bespoke settlement” for the future relationship between the UK and the EU that seems to me to be consistent with the aims declared by the Prime Minister and acknowledged by Mr Tusk.
The Article 50 letter and the draft European Council guidelines
First, then, the Article 50 letter and the draft European Council guidelines.
In the light of the Prime Minister’s letter, and of the White Paper which was published at the beginning of February, we now have an idea, if only in broad outline, of what the Government’s negotiating objectives are likely to be. Two points stand out for me.
In the first place, while not excluding the possibility of exiting the Union with no agreement, the Government will be seeking to establish a new relationship with Union of real substance. I had gathered that from reading between the lines of the White Paper of 2 Febrary, especially what it has to say about forging “a new strategic partnership with the EU, including an ambitious and comprehensive Free Trade Agreement and a new customs agreement,” and also what it says about internal and external security. That impression – which I found cheering, though most of my academic and professional colleagues didn’t – was confirmed by the Prime Minister’s letter.
It’s explicitly stated in the letter that the UK will not be seeking membership of the single market. That’s presented as an expression of respect for the EU’s position that “the four freedoms are indivisible and there can be no ‘cherry picking’” – presumably, a reference to the UK’s wish to be able to control the free movement of people. It means that the Government has rejected the option of membership of the EEA, or a bespoke package inspired by the EEA, which would have been the most straightforward solution to the issue of our country’s future relationship with the Union. I have to say that I regret this. As I have argued on other occasions, it would have been perfectly possible to devise a muscular “emergency brake” mechanism, along the lines of Article 112 of the EEA Agreement, which allows appropriate safeguard measures to be taken unilaterally by a party, provided that they are time-limited; such a mechanism would, owing to its exceptionality, have been compatible with the principles of the single market. But it is not to be.
Nevertheless, the Article 50 letter proclaims the objective of creating what it calls “a deep and special partnership” with the EU – and mentions this no less than a remarkable seven times. The desired partnership is referred to four times as “taking in both economic and security cooperation”. In passing, I would say that I’m not at all shocked, as some others appear to have been, by the linking of economic with security considerations, both internal and external. These are the essential elements of the deal the UK is seeking; and, moreover, our intelligence capability and the quality of our security services and armed service are among the principal assets we can bring to the bargaining table.
The economic aspect of the hoped for cooperation is further described in the letter in terms of a proposal for “a bold and ambitious Free Trade Agreement”. This, it is said, “should be of greater scope and ambition than any such agreement before it so that it covers sectors crucial to our linked economies such as financial services and network industries”. The letter goes on to recall that “both sides have regulatory frameworks and standards that already match”, and calls for priority be given to the issue of managing the evolution of regulatory frameworks, in order to maintain a fair and open trading environment, as well as to how disputes should be resolved. And it promises detailed proposals for “deep, broad and dynamic cooperation”. This is a very long way from the so-called “hard Brexit”, that former Remainers like myself have feared.
The second striking point in the letter is the reiteration – four times – of the belief that it will be necessary to agree the terms of the future partnership between the UK and the EU “alongside” the terms of withdrawal. I shall be attempting presently to unpick the notion of what being “alongside” means in this context. This proposal of the Prime Minister’s for the organisation of the negotiations was received on the EU side with modified rapture, as indicated in Mr Tusk’s draft guidelines, to which I now turn.
Those guidelines are divided into four main sections.
Section I sets out a number of “core principles”. The Union’s wish, first expressed on 29 June 2016 in the immediate aftermath of the Referendum, to have the UK as “a close partner in the future” is reiterated. But the guidelines go on to assert, rather more forbiddingly, among other things: that a non-member of the Union cannot have the same rights and enjoy the same benefits as a member; that the principle that nothing is agreed until everything is agreed will apply in the negotiations; and that the Union will approach the negotiations with unified positions and there can be no separate negotiations between individual Member States and the UK relating to withdrawal.
Section II of the draft guidelines envisages a “phased approach to negotiations”. An initial phase would be concerned with settling the terms governing the disengagement of the UK from the EU. During a second phase of the negotiations, it is said, an overall understanding on the framework for the future relationship with the UK could be identified. But the Union and its Member States would only be ready to engage in what are described as “preliminary and preparatory discussions” to this end, once sufficient progress has been made towards reaching a satisfactory agreement on the arrangements for an orderly withdrawal. And it would be for the European Council to determine when that point was reached. This order of events clearly differs from the Prime Minister’s proposal for negotiations to take place “alongside” each other, and I shall come back to the issue in the next part of my lecture. However, the apparent snub is softened by an expression of willingness on the Union side to determine suitable transitional arrangements, and to provide for bridges towards the foreseeable framework for its future relationship with the UK.
Section IV of the draft guidelines will be perused with special care, as it sets out the view of the EC as to what the withdrawal agreement should cover. The nine contemplated items are important enough for me to set them out in turn, if only summarily. They are as follows:
First item: agreeing reciprocal guarantees to settle the status of individuals and their families who have exercised rights of free movement under the Treaties in one direction or the other.
This is mentioned in the draft guidelines as a priority for the EU, which it certainly is for the UK also, and shouldn’t prove contentious. Early success on this item of the negotiating agenda is needed to assuage the real anxieties of the people affected, and it may help to generate a positive atmosphere, though one that may not be long lived.
Second item: measures to ensure legal security for businesses that have similarly taken advantage of the possibilities of free movement offered by the single market.
It isn’t said, but may perhaps be hoped, that passporting could be continued for businesses that already qualify for it, unless regulation in the UK and the EU were to diverge significantly.
Third item: reaching a single financial settlement to honour obligations undertaken by the Union and by the UK prior to the date of withdrawal.
This is evidently likely to prove the hottest of potatoes.
Fourth item: addressing the implications of the UK’s withdrawal from the Union for the relationship between the two parts of Ireland, in a way that would continue to support and protect the achievements, benefits and commitments of the Peace Process.
It’s recognised that “flexible and imaginative solutions” will be called for, including with the aim of avoiding a hard border, while respecting the integrity of the EU legal order. Accepting also the need to recognise what are described as “existing bilateral agreements and arrangements between the UK and Ireland – presumably, a reference to the common travel area. Altogether, a difficult circle to square, but plenty of goodwill to attempt this.
Fifth item: agreeing arrangements regarding the UK’s Sovereign Base Areas in Cyprus, which respect agreements between the UK and Cuprus, in particular regarding the situation of EU citizens resident or working in the Sovereign Base Areas.
Sixth item: sorting out the legal position resulting from the UK’s withdrawal from the Union, in respect of the Union’s international obligations.
The UK is currently bound by agreements entered into by the Union, by Member States on behalf of the Union and by the Union and the Member States together. While the UK will cease to be covered by those agreements, the draft guidelines state that it will be “expected” to honour its share of international commitments contracted in the context of its EU membership. The word “expected” may be thought to imply something wider than obligations that are strictly legal. It is suggested that, in such instances “constructive dialogue” with the UK should be engaged, on a possible common approach towards third country partners.
Seventh item: facilitating the re-location of EU agencies currently based in the UK;
Eighth item: making provision to ensure legal certainty and equal treatment in all cases pending before the Court of Justice of the EU (“the CJEU”) at the date of withdrawal.
The proposal is that the Court remain competent to dispose of these proceedings, and that a similar solution be found for administrative proceedings pending before the Commission (most importantly in competition matters) and before other EU bodies. Moreover, arrangements should be foreseen for the possibility of administrative or court proceedings to be initiated post-exit, in respect of facts that occurred prior to the date of withdrawal – a prolongation of the jurisdiction of the Court and the Commission that would seem to overstep the Government’s red line on the restoration of legal sovereignty to the UK.
Ninth, and final, item: the inclusion in the agreement of appropriate dispute settlement mechanisms regarding its interpretation and application; and, in addition, what are described as “duly circumscribed institutional arrangements”, to enable measures to be adopted to deal with unforeseen situations.
It is interesting, and perhaps encouraging from the UK’s point of view, that the draft guidelines don’t insist that the Court of Justice be given exclusive power to interpret the agreement, which again would overstep the Government’s red line.
Various existing dispute resolution mechanisms are outlined in chapter 2 of the White Paper and more fully described in Annex A. These normally entail the establishment of a “joint committee” comprising representatives of the parties to the agreement in question, within which, initially at least, an effort must be made to resolve any dispute by means of political/diplomatic consultations. If such an approach fails, the more developed mechanisms provide for the dispute to be referred to an arbitration panel, the rulings of which may be binding. I can’t imagine that the EU side would agree to anything less than binding arbitration. Indeed, it may be thought necessary to set up a special judicial tribunal; this might, for instance, consist of two members of our Supreme Court and two members of the CJEU, with a President chosen, by agreement between them, from the highest court of a third country or from the International Court of Justice.
Section IV of the draft guidelines concerns what the draft insists can only be “preliminary and preparatory discussions on a framework for the Union-Union Kingdom future relationship”.
The section, which is relatively brief, begins by welcoming the UK’s desire to establish a close partnership, which it says the Union shares. The fact that the UK will not be seeking to remain in the single market is noted. The European Council is said to stand ready to initiate work towards an ambitious free trade agreement, to be finalised and concluded once the UK is no longer a Member State. As I have indicated, I’ll be returning shortly to the issue of timing.
The draft guidelines emphasise that any free trade agreement should be balanced, ambitious and wide ranging; but it couldn’t amount to participation in the single market, or to parts of the single market, because that would undermine its integrity and proper functioning. Those few words contain the crux of the dilemma the UK will face in negotiating the future relationship agreement. How to persuade the EU that trading arrangements sufficient to meet its need for access to the single market, especially for financial services, amount to something less than the forbidden participation?
More encouraging, perhaps, for the UK is the willingness expressed to consider establishing a partnership in areas beyond trade, notably the fight against terrorism and international crime as well as security and defence.
It is stated that the future partnership must include appropriate enforcement and dispute settlement mechanisms. This is clearly related to the requirement that the agreement ensure a level playing field in terms of competition and State aid, and that it encompass safeguards against unfair competitive advantages through, among other things, fiscal, social and environmental dumping. I shall presently be putting forward a possible solution to this demand.
And the sting in the tail of this section of the draft guidelines – the statement that, once the UK leaves the Union, no agreement with the EU can apply to Gibraltar without agreement between Spain and the UK. While this is deeply unhelpful, it can’t and surely won’t, be allowed to derail the negotiations on the future relationship. The sang froid displayed by the Chief Minister of Gibraltar puts to shame the hysterical reaction of some parts of the British press.
Section V of the draft guidelines is about the sincere cooperation that must be shown by the UK and by the EU 27 in carrying on the everyday business of the Union until the date of withdrawal.
Lastly, section VI endorses the procedural arrangements for carrying on the negotiations that were agreed at an informal meeting of the Heads of State or Government of the 27, held on 15 December 2016. I shall deal with this in the next part of my lecture, on the Article 50 process.
To sum up my reaction to the Prime Minister’s letter and Mr Tusk’s draft guidelines. I don’t share the view that the stance taken in the draft guidelines is uncompromising. Of course, I should be happier if there were no need for a new relationship with the EU and the UK were carrying on as one of its Member States. Since that no longer seems possible, my hope is that a close relationship can be forged that is capable of evolving into one that may become closer still in the future. The hope I draw from this opening exchange in what will undoubtedly be a long and difficult negotiation is that both sides seem intent on working towards such an end.
The Article 50 process
Moving on to the Article 50 process, I want to make some points, first, about the procedural steps that should follow the lodging of the UK’s notice of withdrawal and then about the proposal for a phased approach to the negotiations.
The next step in the procedure will be the adoption of Mr Tusk’s draft guidelines, possibly after amendment, at the European Council, in the formation of 27, which is scheduled for 29 April. Since Article 50 (2) mentions no voting rule, the European Council will act for this purpose under the default rule of Article 15 (4) TEU, which is consensus. This may explain why Mr Tusk felt constrained to accept that Spain be given an effective veto over the application to Gibraltar of any agreement on the relationship between the UK and the EU post-exit.
The negotiating procedure is the one prescribed by Article 218 (3) of the Treaty on the Functioning of the European Union, for agreements with third countries. Within the guidelines set by the European Council, the Commission will submit a recommendation to the Council for the opening of negotiations with the UK. Under the arrangements agreed on 15 December 2016, the General Affairs Council will be invited by the European Council to respond swiftly to the Commission’s initiative. The Council will adopt negotiating directives on substance as well as on the detailed arrangements governing the relationship between the Council and its preparatory bodies, on the one hand, and the Union negotiator, on the other. These may be amended from time to time.
As agreed on 15 December 2016, the European Council will invite the Council to nominate the Commission as the negotiator, and Mr Barnier’s appointment as chief negotiator is welcomed. The negotiating team will include a representative of the rotating Council Presidency and representatives of the President of the European Council will be present, and participate in a supporting role, at all negotiating sessions. The Union negotiator will systematically report to the European Council and the Council. And between European Councils, the Council, COREPER and a Council Working Party with a permanent Chair will ensure that the negotiations are conducted in accordance with the Guidelines and the negotiating directives. The Commission will, therefore, be in charge of the actual negotiations but will be kept on a fairly tight rein by the Member States.
An eventual agreement would be concluded by the Council acting by a qualified majority, after obtaining the consent of the European Parliament. The Parliament would, therefore, have a veto over any arrangements.
As you know, Article 50 (3) provides that the Treaties will cease to apply to the UK from the date of entry into force of the withdrawal agreement or, in any event, two years after the date of the delivery of the Prime Minister’s letter, that is to say on 29 March 2019; though the period can be extended, if the European Council, with the UK’s agreement, unanimously so decides. It’s explicitly provided that a State that wishes to rejoin the Union, after having withdrawn, must apply in accordance with the accession procedure laid down by Article 49 of the Treaty on European Union, like any other third country.
I’ve often been asked whether it would be possible, following some kind of political upheaval, for the UK to revoke its Article 50 notice. The text of Article 50 doesn’t supply an answer. An argument sometimes raised against a right of revocation would be that it would provide a way of circumventing the unanimity requirement for obtaining an extension of time. The withdrawing Member State could prolong the period of negotiation indefinitely by repeatedly revoking its notification and then re-notifying. That argument misunderstands the way in which international negotiations work. Because it takes two to tango, a State that behaved so inconsiderately would never be able to secure a satisfactory withdrawal settlement. In my opinion, it would make no sense, if the UK changed its mind and this were accepted, even if grudgingly, by the EU 27, to have to allow the two-year period to run its course and then require the UK to re-apply for membership. If there were a dispute, and it ended in litigation before the CJEU, I strongly suspect the Court would reach a political decision – for revocation, if at least a qualified majority among the 27 were in favour, otherwise against.
That brings me to the issue of a phased approach to the negotiations. How ought the UK to respond to Mr Tusk’s draft guideline that “preliminary and preparatory discussions” on the UK’s future relationship with the EU can only begin, once the European Council judges that sufficient progress has been made towards reaching a satisfactory agreement on the arrangements for an orderly withdrawal?
A first point is that the guidelines, even when formally adopted, will not be binding on the UK. In the context of the negotiations, the UK has the status of a third country, as the reference in Article 50 to Article 218 (3) TFEU makes clear. The adoption of a phased approach is, therefore, a matter to be agreed with the UK, not imposed by legal prescription.
Secondly, the UK can obtain some limited legal assistance from the wording of Article 50 (2), which refers to the negotiation and conclusion of an agreement with the departing State, “setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union”. I interpret that as meaning that negotiations regarding the post-withdrawal settlement must have reached the point at which such a framework has been clearly established. The requirement may be seen as a balancing factor in the procedure of Article 50, enabling the withdrawing State to insist that some guarantees, if only as to the general shape and character of its future relationship with the EU, be included in the withdrawal agreement negotiated under the constraint of the two-year time limit.
On the one hand, therefore, the UK would not be able to claim that it has a right that the negotiations on its future relationship with the EU begin at the same time and run in parallel with the negotiations on the withdrawal agreement. If that’s what the word “alongside” in the Prime Minister’s letter was intended to mean, it finds no support in Article 50. It would be a perfectly sensible way of running the negotiations, but the EU side would have to agree, and seemingly they won’t.
On the other hand, in my opinion, a good case can be made that the negotiations on the future relationship need to amount to a good deal more than “preliminary and preparatory discussions”, as they are described in the draft guidelines. They must have reached the stage of agreement on a framework sufficiently concrete to figure as an element of the withdrawal agreement. The right position for the UK to take, I believe, would be to insist on a discussion of the proposal for a phased approach; and, while accepting that the negotiations should initially focus on the withdrawal agreement, to ask for an undertaking that discussion of the future relationship begin soon enough to reach the point of establishing a firm framework within the two-year time limit and, in any event, no later than March 2018.
A further point is that the UK can turn to its own advantage the principle that nothing is agreed until everything is agreed by making clear that, without agreement on a framework for future relations that it considers satisfactory, elements of the withdrawal agreement that have already been settled in principle may be re-opened – in particular, any agreement on financial matters.
Finally on Article 50, it may be worth noting that the reference to Article 218 TFEU is limited to paragraph (3) of that Article, which is about the initial phase of negotiations. There is, therefore, no textual basis for possible recourse to the procedure provided for by Article 218 (11), under which the Court of Justice can be asked for an opinion on the compatibility with the Treaties of an international agreement which the EU is minded to enter into. It can’t be excluded that a Member State or group of Member States, dissatisfied by the outcome of the negotiations on the withdrawal agreement, and afraid of being outvoted if the agreement were concluded by a qualified majority (which it could be), or conceivably the Commission, if its wishes had been overridden by powerful Member States, might seek to question the legality of the text agreed with the UK in proceedings under Article 218 (11). Were that to happen, there would be strong legal grounds for contesting the admissibility of the proceedings. Though I have to say I wouldn’t bet on the Court’s declining jurisdiction in such a case.
A bespoke settlement on the future relationship
Turning now to the shape of a bespoke settlement for the future relationship between the UK and the EU.
My original idea was that this would entail full participation in the internal market, subject to some curbs on freedom of movement, and with “add-ons” in the form of a degree of continuing participation by the UK in certain other EU policy areas, where its past contribution has been especially significant, and its removal would diminish the prospects of continuing success. More specifically, I had in mind: research; the area of freedom, security and justice, especially its internal security aspect; and the common foreign and security policy (CFSP). You might call that “Norway plus”.
The main difference between that proposal, and what the Prime Minister’s letter and the draft guidelines suggest may represent a common set of objectives, is that the EEA model has been excluded. Since I’m conscious that time is passing I’m going to take a closer look at the economic element of the envisaged package, which is now expressed in terms of particularly far-reaching free trade arrangements, and then refer only briefly to the other two possible elements of the package, internal security and the CFSP.
(1) A bold and ambitious free trade agreement
First, as to what is described in the Prime Minister’s letter as a “bold and ambitious free trade agreement”.
I mentioned earlier that the letter refers to an agreement “of greater scope and ambition than any such agreement before it”, and also to its covering financial services and network industries. I suppose the implication is that this should go further than the recently signed Comprehensive Economic and Trade Agreement (or CETA) between the EU and Canada. CETA is certainly a very ambitious free trade agreement covering nearly all goods; its downside for UK is that the CETA model wouldn’t provide an adequate level of access to the EU market for financial services. Nor, would it enable UK businesses to qualify for “passporting”.
All that can be said at this stage is that the UK should ask for everything that it wants, without expecting to get it all; and it should prepare a narrative explaining why the package that is being sought wouldn’t amount to membership of the single market. As I indicated earlier, I don’t think there’s any clear technical answer to what exactly membership of the single market involves, though faithful shadowing of internal market legislation, in the style of the EEA, may be an important element of this.
There are two ways in which, I should like to suggest, the UK could improve its chances of selling the package that it is seeking, or most of it, to the EU side. I’ll call these “sweeteners”.
(i) A well crafted offer on the free movement of persons
My first sweetener would consist of a well crafted offer on the free movement of persons – though perhaps it shouldn’t be described in that way for domestic consumption.
The situation of UK nationals and EU citizens with established rights of residence would, of course, have been catered for under the withdrawal agreement.
Accepting that a system of work permits for the general run of EU citizens has become politically unavoidable, I can see an advantage in clearly identifying those who would be exempted from it in principle; and reciprocal treatment should be sought for UK nationals in the EU 27.
If freedom to provide services, especially financial services, is going to be high on the UK’s wish list, it seems to me that those working in the key service areas (such as banking, insurance and legal services) should not have limits imposed on their freedom of movement. Even under the WTO system, the General Agreement on trade in services (GATS) recognises that the movement of persons is one of the main modes of service provision.
There might also be a general exemption for the self-employed – in other words, freedom of establishment – provided that they have a viable business plan. Also for for those who are self-sufficient, especially retired people, which would probably benefit UK nationals more than EU citizens from sunnier climes.
Another category might be those engaged in teaching and research and, of course, students. Maintaining, between the UK and the other Member States, the free movement of teachers and researchers, as well as students’ rights of non-discriminatory access to higher education institutions, would preserve one of the great cultural and intellectual gains of EU membership, to the benefit of institutions and students not only in the UK but in all of the Member States.
(ii) A level playing field
My other sweetener would consist of offering, without waiting to be asked, solid-looking guarantees of a level playing field in terms both of regulation and matters such as competition and State aid.
As I noted earlier, the Prime Minister’s letter makes the telling point that the UK and the EU have regulatory frameworks and standards that already match, and calls for priority be given to the issue of managing the evolution of such frameworks. The UK should go into the negotiations with worked out proposals for a mechanism that would keep aspects of UK regulation in step with relevant developments in single market legislation and for a dispute resolution mechanism.
The best solution, in my view, and one that may appeal to the EU side in the negotiations, would be to draw inspiration from the dispute resolution mechanisms of the EEA Agreement, even if the Government has set its face against the UK’s joining the EEA.
The hallmark of the EEA’s institutional system is its so-called “two-pillar” structure. Compliance by the EU Member States with the EEA Agreement is ensured by EU institutions, the European Commission and the Court of Justice of the EU (CJEU); while compliance by the three EFTA States belonging to the EEA – Norway, Iceland and Liechtenstein – is ensured by parallel institutions, the EFTA Surveillance Authority (ESA) and the EFTA Court. Besides its jurisdiction in proceedings brought by the ESA against EFTA members to enforce their obligations under the Agreement, the EFTA Court can give preliminary rulings on the interpretation of EEA rules at the request of national courts (though even supreme courts are under no obligation to seek such guidance); and it has power to review the validity of decisions of the ESA on competition matters. There is, in addition, provision under Article 111 of the EEA Agreement for any matter in dispute concerning the interpretation or application of the Agreement to be brought before the EEA Joint Committee, which could eventually result in the taking of safeguard measures, or in the partial suspension of the Agreement, if a settlement cannot be reached. However, so successful has surveillance under the two-pillar system been in avoiding disputes, that the Article 111 mechanism has never had to be resorted to.
I believe consideration should be given to the possibility for the UK, without formally becoming a member of the EEA, to “borrow” the ESA and the EFTA Court for the purposes of its future economic partnership with the EU. This could be achieved quite simply (though the consent of the EFTA States concerned would, of course, be needed) by giving those institutions power to apply the agreement establishing the new EU/UK partnership, and adding a UK member to each of them in any case where such power fell to be exercised. The technical feasibility of such a solution has been recognised by no less an authority than Professor Dr Dr Carl Baudenbacher, the President of the EFTA Court, in a lecture that he gave under the auspices of King’s College, London in October 2016, and in other lectures and writings.
It’s important to be clear that the ESA and the EFTA Court are rather different institutions from their EU counterparts, the EU Commission and the CJEU. Their focus is economic, rather than political, and they are not driven by the same integrationist ideology. Nor, it can confidently be predicted, would the EFTA Court insist on the automatic direct effect and primacy of the rules contained in the EU/UK partnership agreement(s), any more than it has done with respect to the rules of the EEA Agreement. It would be for the UK to ensure the application of the rules, in order to comply with its international obligations.
A solution along the lines suggested here would, therefore, be consistent with the aims of respecting UK sovereignty and preserving the role of UK courts, while greatly strengthening legal certainty. It would also, I believe, improve the chances of securing from the EU the kind of ambitious partnership package which the Government seems committed to seeking.
(2) Internal security
I mentioned internal security as a second possible element of such a package. The UK and its neighbours in the EU face similar threats from terrorism, international crime and uncontrolled migration, which countries are unable to cope with individually nearly as well as they can collectively. It would be no less in the interest of the 27 than of the UK that the European Arrest Warrant, Europol and other internal security mechanisms such as the Schengen Information System, should continue to apply between us, and that we should go on playing an active role in strengthening the Union’s external frontier, especially in the Mediterranean.
Once again, there’s a helpful model to be found in the agreement on a surrender procedure similar to the system of the European Arrest Warrant between two EEA members, Ireland and Norway, and the EU. This has taken a very long time to finalise (all of 13 years) but we shouldn’t be too discouraged by that fact. After all, the UK is currently a participant in the various internal security systems with which it wishes to remain connected. Interestingly, the EEA’s enforcement and dispute resolution mechanisms have not been extended to this new field of cooperation – probably, I suspect, because their focus is reckoned to be too specifically economic. Instead, there’s provision for disputes to be referred to a meeting of representatives of the governments of the EU and of Iceland and Norway, which is charged with resolving them within six months. A more interesting feature of the agreement is designed to ensure uniform development of the case law on its interpretation and application, by keeping under constant review relevant decisions of the CJEU, on the one hand, and courts in Iceland and Norway, on the other. A mechanism is to be set up to ensure regular mutual transmission of the case law.
In my view, some variant of this machinery could be applied in the context of the new relationship between the UK and the EU.
(3) The CFSP
Turning finally to the CFSP, without the UK, the EU would be terribly diminished as an international player. But this need not happen. The CFSP is a field of Union activity in which full continued participation by the UK would meet no insuperable constitutional barrier. The Policy operates under its own set of institutional arrangements, rather than by the “Community method”, and this seems certain to continue. As Article 42 TEU explicitly acknowledges, military and civilian assets belonging to the Member States are needed to enable the Union to pursue an active foreign policy; that being so, it is unimaginable that a monopoly of the initiative should be handed to the Commission or even to the High Representative, or that the Council should cease to act by unanimity when adopting basic decisions establishing the Union’s position on a given issue. Moreover, the Court of Justice has a very limited role in the area of the CFSP, while the principles of direct effect and the primacy of EU law do not apply. So, with some legal tweaking (or perhaps by establishing a new “European Foreign, Security and Defence Community”), the UK should be able to retain a place at the Council table in a policy area where it has been a leader – to the immense advantage of the Union, as well as to its own advantage, and doubtless to the relief of those who must be fearful of losing the support of a doughty opponent of Russian adventurism.
To conclude. Of course I wish the Referendum result had gone the other way. Of course I understand, too, that there are going to be lots of pitfalls along the way in the course of the negotiations, and a bad Brexit remains a distinct risk. But, to return to the title of this lecture, I do discern a gleam of light at the end of the tunnel in the form of the settlement which both sides of the negotiations now seem willing to work towards.
Professor Sir Alan Dashwood QC
3 April 2017
3 April 2017