Lions Or Unicorns? Theresa May As Well As Boris Johnson’S Speeches On The Uk’S Time To Come Human Relationship Alongside The Eu

Professor Steve Peers, University of Essex

Last week’s speeches on the UK’s hereafter human relationship alongside the European Union past times Theresa May as well as here. But she adds some additional points worth examining further.

As a starting point, both May as well as Johnson are the incorrect people to give their respective speeches – although for dissimilar reasons. In May’s case, it’s because her starting dot – to set aside “rigid institutional restrictions or deep-seated ideology” – appears hypocritical. Technically this initial dot refers to both sides; but subsequently on inward her spoken language she criticises the “political doctrine as well as ideology” of the EU27 alone.

The tone hither is “we are devoutly religious; you lot are idol-worshipping savages”. But piece May – who was herself laying downwards the holy writ of interpreting Brexit scripture ex cathedra non so long agone – has rightly been criticised for hypocrisy here, she does have got a dot virtually the EU27 side too. This spoken language could to a greater extent than credibly have got been delivered past times someone non-partisan plenty to dot out that the plague of prioritising ideology over pragmatism has infected both these houses.

Internal security

Mrs May starts past times referring to terrorist atrocities across the EU, including the UK – although of course of study European Union measures inward this champaign address many other crimes as well. She refers to the UK opting dorsum inward to some pre-2009 European Union legislation inward this champaign inward Dec 2014 (a physical care for I hash out farther here), but non to opting inward to some of the legislation adopted since 2009. But the really existence of the opt inward physical care for (pre-2009 laws were dependent champaign to a British veto as well as then the possibility of opt out inward 2014) refutes the declaration (frequently made past times some Brexit supporters) that the European Union laws inward this champaign were somehow imposed upon the UK.

In to a greater extent than detail, she so refers to cooperation via agency non only of the European Arrest Warrant (a fast-track extradition process) as well as the European Union policing trunk Europol (as discussed inward the press), but also the transfer of criminal evidence past times agency of the European Investigation Order (a 2014 law discussed here), the Schengen Information System (the UK’s 2014 opt inward to the policing as well as criminal law aspects of this database are discussed here), as well as already agreed to – is the Lugano Convention on civil litigation, which entails taking job organisation human relationship of ECJ instance law.

In this area, the “Norway model” could as live on called the “Swiss model”, which would at to the lowest degree presumably attract the back upwardly of the high-profile Brexiter Dan Hannan. But that would inward plow atomic number 82 to a articulatio genus jerk objection from the EU27, which dislikes the EU/Swiss model of many dissimilar treaties without a mutual institutional core, as well as is trying to renegotiate it.

While some thought the Prime Minister showed willingness to select an ECJ role inward her speech, her reference to protecting the UK’s “sovereign legal order” as well as to “independent dispute resolution” which both sides have got “full confidence” inward suggests otherwise. However, the job alongside demanding a novel approach to dispute small town inward the champaign is that it may violate an EU27 “red line” – inward this instance non a simply political objection to “cherry-picking”, but the long-standing instance law of the European Union Court of Justice.

Why is that? Well, let’s assume that May’s want to “preserve our operational capabilities” is indeed an intention to apply European Union legislation, or some large proportion of it, as such. One day, despite an obligation to “take account” of ECJ instance law (if agreed), the courts inward the UK create upwardly one's heed non to follow a exceptional ECJ ruling – or a subsequent ECJ ruling conflicts alongside a prior UK courtroom ruling. The European Union as well as the UK hash out the deviation inward instance law, but can’t concord how to settle it. What next?

It mightiness seem that the obvious way to settle disputes similar that is to create a articulation EU/UK courtroom alongside jurisdiction to dominion on them. But the Court of Justice has repeatedly said that having its judges “double-hat” as well as sit down on other courts interpreting European Union law volition violate the Treaties (see Opinion 1/91).

OK, what virtually a courtroom or arbitration trunk which does not have got ECJ judges on it? In that case, the ECJ has said that such a courtroom or trunk cannot translate European Union law alongside binding effect for the ECJ as well as the other European Union institutions or European Union Member U.S. (see Opinion 1/92 as well as Opinion 1/00). You tin telephone telephone that “rigid institutional restrictions” or “deep-seated ideology” if you lot like; but if you lot remember virtually it for a moment, the ECJ’s objection hither is identical to Brexiters’ objection to the ECJ ruling on UK law.  (And authorities notation that this instance law tin only live on overturned past times Treaty amendment).

In whatever event, differences betwixt the UK as well as EU27 approaches to applying European Union law inward this surface area volition atomic number 82 to legal challenges earlier national courts too. I tin listen the cries of “scaremongering” already: but inward fact such challenges have got already been brought, just on the prospect of Brexit happening. The Irish Gaelic Supreme Court just agreed to refer the O’Connor instance to the ECJ, asking whether European Arrest Warrants issued past times the UK silent have got to live on enforced past times Republic of Ireland given that the UK volition non definitely live on applying the EAW law after Brexit Day. The Supreme Court noted that at that spot are 20 other cases inward Republic of Ireland lonely raising the same point. And the Irish Gaelic courts referred a similar instance to the ECJ on transferring asylum-seekers to the UK months ago.

One way to address issues similar these (although it volition non live on sufficient past times itself to address all deviation issues) is to require the UK’s (and European Union Member States’) compliance alongside the ECHR as a condition of the hereafter treaty. While states do extradite people to countries which don’t apply the ECHR, the ECHR limits such decisions if human rights volition live on breached (case law since Soering v UK; as well as reckon also the Petruhhin case from the ECJ). Any EU/UK treaty inward this surface area would live on based on a high bird of mutual trust, which the ECJ has ruled is founded upon ratification of the ECHR past times the countries concerned, including non-EU countries (see para 78 of the NS judgment). It thus makes feel for the treaty to spell out what would inward whatever lawsuit live on the nearly sure enough outcome (at the hands of national as well as European Union courts, as well as the European Union institutions) if the UK did want to denounce the ECHR.

Another aspect of human rights conditionality inward the hereafter treaty can’t live on avoided, as it is hard-wired into the European Union Charter of Rights as interpreted past times the ECJ. That is the number of data protection. Here at that spot are 2 basic models for non-EU countries: a) simply agreeing to apply European Union information protection law as such (as Kingdom of Norway as well as Republic of Iceland have got done); or b) asking the European Union Commission for an “adequacy decision”, on the ground that the non-EU state’s information protection law is broadly similar to European Union law, to maintain information flowing freely. There tin silent live on information transfers inward the absence of an adequacy decision, but they volition probable live on to a greater extent than complicated: reckon Articles 46 as well as 49 of the General Data Protection Regulation (GDPR), which volition regulation this number past times Brexit day.

Despite this, May’s spoken language refers to a “bespoke” organisation here, alongside no specific refer of an adequacy decision. If this is only meant to refer to cooperation betwixt UK as well as European Union information protection bodies, that should non live on besides hard to concord (see Article 50 of the GDPR on this point). But if she agency that the European Union should invent a create novel model of accepting the compatibility of UK information protection law, such “Cakeism” volition non only live on politically contested but also probable legally impossible.

Again, I listen distant cries of “scaremongering”. But on this dot there’s fifty-fifty existing instance law, inward which the ECJ insists on a meaning bird of similarity of a non-EU country’s information protection law earlier an adequacy determination tin live on adopted. Since this instance law is based on the European Union Charter of Rights, which has the “same legal value” as the European Union Treaties (Article 6 TEU), it is impossible to negotiate a way around it – unless May thinks that a “bespoke” organisation could involve the European Union agreeing to improve the Charter at the behest of a departing quondam Member State. (!)

Anyway, since May inists that the UK matches the EU’s high standards on information protection, why should agreeing to either of these models cause a problem?  It may live on that she is aware of the genuine difficulty that UK law has been found to breach European Union law as regards volume surveillance.  Inevitably this forces a hard choice betwixt sticking unopen to European Union law inward the interests of preserving information flows, as well as diverging significantly from European Union law alongside the consequences that those flows volition live on impeded. Again, though: inward this champaign the EU’s “no cherry-picking” dominion is non just a (supposedly) goodness idea; it’s the law. (On all these issues, reckon my give-and-take inward The Conversation – supplemented past times posts from this spider web log on the subsequent Watson/Tele2 as well as EU/Canada judgments).

External security

The unusual as well as defense policy component of May’s spoken language begins past times stating that the UK’s role inward these areas was never primarily focused on the EU, as well as that the UK volition pursue “an independent unusual policy” after Brexit. Those 2 assertions are somewhat contradictory (if the UK’s unusual policy had piffling to do alongside the EU, wasn’t it “independent” already?), as well as overlook the UK’s capacity to veto unusual as well as defense policy measures as an European Union Member State.

But May is nevertheless interested inward a post-Brexit safety partnership which “respects both the decision-making autonomy of the European Union as well as the sovereignty of the United Kingdom”. She believes this tin live on agreed inward 2019 already, during the “implementation” (or transition) period, as the Commission has proposed (see the draft text of the withdrawal understanding clauses on the transition period, annotated here. As I dot out inward that annotation, the Council – but non the Commission – is also willing to consider an early on treaty alongside the UK on internal safety issues). In her view, the UK is willing to function alongside the EU’s deeper integration inward this field, piece strengthening NATO as well as other alliances.

The Prime Minister suggests a focus on 3 areas. First, at that spot should live on regular diplomatic consultation on articulation challenges, as good as coordination of policy “where our interests align”. In particular, she supports unopen cooperation on sanctions, rolling over existing sanctions on Brexit as well as cooperating on hereafter sanctions. Although May doesn’t refer it, cooperation inward this champaign is of import because the UK has a lot of the intelligence used to create upwardly one's heed on sanctions, as good existence the location of a lot of assets held past times those dependent champaign to such measures.

Second, she supports operational coordination, alongside the UK maybe contributing to European Union defense missions as well as operations (as a number of non-EU countries do) as good as maybe contributing to European Union unusual assistance programmes. However, inward render the UK must “play an appropriate role inward shaping” the actions inward such areas.

Third, the UK has a continued involvement inward defense capabilities, specially inward staying inward European Union defense manufacture measures similar the European Defence Fund as well as European Defence Agency. There also needs to live on coordination inward response to global cyber-attacks (May mentions Russian attacks specifically) as well as cooperation inward the infinite industry.

While May’s suggestions hither are inevitably less detailed (after all, she spent years as the Home Secretary, non the Foreign or Defence Secretary), they seek to proceed the UK’s electrical flow role inward the European Union fifty-fifty to a greater extent than closely than her abode affairs suggestions do. In principle, at that spot are fewer political as well as legal difficulties here. As noted above, the Commission’s slides suggesting options for the hereafter human relationship contemplate a possible bespoke human relationship betwixt the UK as well as European Union inward this surface area already. Furthermore, at that spot is non as much of a complication relating to the role of the ECJ, as inward this champaign it essentially only has jurisdiction over sanctions issues (although since European Union sanctions law is often litigated, the provide of intelligence from the UK to the European Union on sanction ‘targets’ is probable to go a specific legal issue).

The biggest difficulties may arise from the decision-making issue. Unsurprisingly, the European Union Treaties give a vote inward European Union decision-making institutions only to Member States. It should, however, live on possible to concord that the UK is consulted on European Union measures (as alongside the precedent of the Schengen association agreement) as well as inward whatever lawsuit to provide that the UK only contributes to those specific European Union missions as well as activities that it wants to contribute to.

The strongest reaction to this component of the spoken language has come upwardly from those who remember it is outrageous that the UK retains any link to any European Union defense measures. “This isn’t the Brexit Putin was looking for!” Have those people been objecting to NATO – a to a greater extent than advanced armed services alliance involving the UK as well as 22 of the same 27 European Union countries – for the in conclusion 70 years? Or does the describing word “European” stimulate some variety of irrational phobia?

Conclusions

There’s a bargain to live on done on both these aspects of safety – although it would require both the Commission to relinquish its self-appointed project as the keeper of the sacred open fire of its invented orthodoxy on internal security, as well as Mrs May to select that at that spot are to a greater extent than constraints than she mightiness similar on her want to remain closely aligned alongside the European Union inward these field. But could May sell such a bargain to those inward her political party who mightiness clitoris such an organisation as suitable only for a “vassal state”?  

Well, she could tell them what she told the Munich conference: “We must do whatever is most practical as well as pragmatic inward ensuring our collective security”. And she could go on to tell them to stick their “deep-seated ideology” where the Sun don’t shine. In practice, of course, she won’t say that – because she fears that they would stick it betwixt her shoulder blades instead.

And that brings us neatly to Boris Johnson.

Boris Johnson’s ‘liberal Brexit’ spoken language

The purported dot of Johnson’s spoken language was to arrive at out to “Remainers”. But Johnson is evidently the incorrect someone for that job. First of all, he is the government minister most closely associated alongside the imitation declaration virtually the amount of the UK’s budget contribution during the plebiscite – as well as he has fifty-fifty doubled down on this dishonesty since. You mightiness as good transportation out an employee of the St Petersburg Internet Research Agency to warn everyone against Twitter bots.

Secondly, he is non fifty-fifty a consistent supporter of the Leave cause, having made contrary arguments on numerous occasions. Indeed, the only cause Johnson has consistently supported is himself.  

Thirdly, his spoken language does non suggest whatever cast of compromise, but essentially just repeats “we are right, you lot should just concord alongside us”. But inward that context, the spoken language serves the cynical role of claiming “we reached out to them, as well as they’ve rejected us”, so setting upwardly a narrative of “bitter, angry Remainers” which has been duly played out inward the press since – reckon this rant virtually “rabid” Remainers, for just i example. Of course, this ignores the endless angry comments spewed inward the other direction for months (“enemies of the people”, “crush the saboteurs”, as well as so on). Johnson fifty-fifty starts that ball rolling himself, alongside sneers inward his spoken language at “elites” – although Alexander Boris de Pfeffel Johnson, graduate of Eton as well as Balliol College Oxford, quondam London Mayor as well as at nowadays Foreign Secretary, is virtually as “salt of the earth” as Marie Antoinette. (“Let them swallow cake – as well as I’ll have got it too!”)

Now that we’ve seen that civilization state of war wood, let’s examine Johnson’s anemic trees. (Note that I’m using that word “let’s” inward the previous judgement to refer to a hope I volition at nowadays keep, rather than to number an “invitation” which completely lacks sincerity). He constructs 3 straw human arguments of Remainer concern – “strategic”, “spiritual” as well as “economic” – as well as duly knocks them down.

On security, Johnson refers to UK defense spending, as well as briefly refers to continued cooperation alongside European Union unusual policy, specially inward the surface area of sanctions. This compares poorly alongside May’s subsequent detailed comments, which select that treaties demand to live on negotiated, at that spot are many other areas of unusual policy as well as defense cooperation, as well as at that spot are of import internal safety issues as well. If Johnson were a comic volume plot, he’d live on a continuity error.

On the spiritual issues, Johnson is non referring to faith but to culture. He starts past times reaffirming British internationalism; but this necessarily concedes that such internationalism was non constrained, but rather flourished, during the UK’s membership of the EU. His innovation of international move consists mainly of sexual practice tourism, stag parties as well as Castilian retirement. There’s no refer of the many British families working inward the European Union – or the millions of EU27 citizens inward the UK, who are i of Remainers’ key concerns.

He’s got the details incorrect too. He refers to continued participation inward Erasmus, but as I detailed here, nether electrical flow European Union law, the only non-EU countries fully participating inward Erasmus are those who apply gratis motility rules or who are applying to bring together the EU. The UK volition live on inward neither category. And on Planet Johnson, inexpensive flights volition just proceed as if they were a law of nature, non the lawsuit of 30 years of European Union aviation manufacture legislation which is linked (for non-EU countries) to the continued application of European Union law as well as partial jurisdiction of the ECJ (see the European Common Aviation Agreement).

His comments on retirees (“no sensible ground why nosotros should non live on able to retire to Spain”) is a classic representative of what I telephone telephone the “1973 reset” category of tropes. For many Western European countries, 1973 began as the latest of many years of nearly total employment, but ended alongside the get-go of many curbs on work migration, as the stone oil toll surge resulting from a Middle Eastern state of war unfortunately upset that pillar of post-war social democracy. Southern European countries were so countries of internet emigration, but have got long since go countries of internet migration, as well as have got changed their immigration laws to suit. For instance, for non-EU retirees, Spain has a higher fiscal threshold as well as lots of additional paperwork. (Of course, people alongside Johnson’s bird of wealth volition never confront many difficulties moving to whatever province they mightiness want to go to).

Anyway, after a brief reverie discussing the “Boris Bridge” to France, the “spiritual” fighting of the spoken language turns out mainly to consist of the Leave campaign’s sovereignty arguments. In short, European Union law is a complicated thing devoted to farther integration. On the “complications” point, I incertitude many citizens are aware of the nuances of the physical care for for approbation Statutory Instruments, the diverse categories of the (awkwardly unelected) members of the House of Lords, or many other features of the British constitution. The farther integration dot is true, but misleading: the UK had an opt-out or a veto over many key aspects of European Union integration (as discussed here), so had struck a residuum betwixt its transactional interests inward European Union membership as well as the to a greater extent than excitable visions of (some) Continental politicians.

Given that many debate that there’s a sovereignty/economic tradeoff inherent inward the Brexit debate, that brings us to the economic issues inward Johnson’s speech. Except Johnson does non reckon whatever trade-off at all. He repeats claims of extra spending available for populace services, although economical forecasts suggest a slower charge per unit of measurement of growth (and thus authorities revenues). He vaguely hints that maybe low-skilled immigration cutting wages, although economical analysis does non support that claim. Concerns virtually sovereignty, inward his view, trump economic science – although “bear inward heed that the economical benefits of membership are zero similar as conspicuous or irrefutable as is sometimes claimed.”

This persuasion is rather contradicted past times the prominent Conservative who claimed v years agone that “I would vote to rest inward the unmarried market….I'm inward favour of the unmarried market. I want us to live on able to merchandise freely alongside our European friends as well as partners." Awkwardly, the human making that declaration was also Boris Johnson.

How to explicate his alter of view? Johnson quotes some estimates of the cost of European Union regulation that he likes – piece avoiding whatever refer of his ain government’s negative economical forecasts of the consequences of leaving the unmarried market. He states that the UK has increased its merchandise alongside non-EU countries faster than it has to the EU. Awkwardly, this simply contradicts the Leave trope that existence an European Union fellow member prevents the UK from increasing merchandise alongside non-EU countries. 

There’s a broader misuse of statistics here. Three issues are relevant when comparing the growth rates of UK merchandise alongside the European Union as well as non-EU countries: a) the relative percentage of the UK’s existing merchandise links; b) the growth charge per unit of measurement of trade; as well as c) the likelihood that Brexit increases – or reduces – a) as well as b). Obviously the bigger the percentage of existing merchandise links, the to a greater extent than of import an increment or reduction inward the growth charge per unit of measurement of merchandise alongside that partner (or indeed a autumn inward trade, ie negative growth) is.

Johnson’s comments ignore points a) as well as c) completely – except to the extent that they mislead virtually c): since the UK already participates inward the EU’s free merchandise agreement alongside i province he mentions, South Korea, the likelihood of Brexit greatly increasing merchandise alongside that province is limited. (And awkwardly, UK exports to Republic of Korea have got shown the biggest increment of whatever province which he mentions).  The bottom line is that the European Union is the UK’s largest trading partner – so ignoring points a) as well as c) as regards the European Union agency that Johnson fails to engage alongside Remainers’ primary economical argument: that Brexit (and specially leaving the unmarried market) is liable to trim back merchandise alongside our largest trading partner.

Johnson argues that it doesn’t affair because global standards are of import too, as well as the UK demand only comply alongside European Union rules if its companies export to the European Union – which is no “Eden of uniformity” anyway. Let’s intermission this downwards further. In some areas global standards are significant; but so the European Union plays a role inward negotiating them too. But inward some areas at that spot is piffling or no global involvement, as well as the European Union has the biggest role inward setting the rules. Awkwardly, May’s subsequent spoken language “retconned” Johnson i time again past times emphasising i such area: information protection.

Even to a greater extent than awkwardly, Johnson’s ain response to a query next the spoken language gives a farther example, suggesting excitement at the prospect of novel UK regulations on organic carrots. How exciting is this exactly? There is European Union legislation on organic food, but it makes no reference to international standards (except as regards creature welfare). So the European Union rules are the only demo inward town for anyone exporting there. If UK farmers want to export organic carrots to the EU, they volition have got to comply alongside identical or equivalent standards to the EU’s (see Articles 32 as well as 33 of the law). It’s truly conceptually quite similar to the information protection rules.

So there’s no endangerment of increased sales to the European Union as a resultant of changing UK rules. If anything, the reverse, if changes inward UK law hateful that UK make tin no longer live on labelled as “organic” to justify a higher toll for the EU’s supermarket shoppers. The UK could effort to sell to a greater extent than to non-EU countries, but does the European Union law forestall that anyway?

As for the lack of detailed European Union rules inward some areas, that’s true.  (It’s as truthful that fifty-fifty such purely national laws tin live on challenged for breach of Treaty gratis motility rules – if you’re an exporter from a Member State). But grip on: Johnson just told us that nosotros must leave of absence the European Union because of the goal of creating an “overarching European state”. So is the job that the European Union is boozer alongside ability – or that it can’t organise a p*ss-up inward a brewery? It can’t live on both. The dot is that for every dreamy Eurocrat dreaming Eurofederalist dreams, at that spot a dozen to a greater extent than who are focussing on helping farmers sell to a greater extent than carrots.

Johnson refers to possible changes to national laws on fisheries, alive creature exports, agricultural subsidies, VAT, planning, populace procurement, environmental impact assessment, stalk prison theater cellular telephone technology, as well as fiscal services. Does European Union law grip the UK dorsum inward each of these areas? Only a specialist could answer (although the Commission has latterly proposed to give Member U.S. vastly to a greater extent than flexibility over VAT rates). What impact would whatever of these changes have got on merchandise – given that fiscal services are a huge UK export? (Organic) crickets. 

Conclusions

Johnson’s spoken language fundamentally fails at its purported project because it does non truly address the center of Remainers’ concerns virtually the post-Brexit UK: its relationship alongside the EU. His spoken language is an declaration to leave of absence the European Union, non for whatever exceptional hereafter human relationship alongside it. He ignores both specific issues (EU citizens inward the UK, as well as most notably the Irish Gaelic edge issue) as good as the broader framework. He does refer Erasmus, flights as well as retirement; but he glides over whatever possible problems past times attaining e'er greater heights of glibness.

On the other hand, May’s spoken language makes a pragmatic, detailed instance virtually the hereafter relationship. Rather than reheat arguments virtually whether to leave, she presents a instance for staying unopen afterward. In this far less exciting – but infinitely to a greater extent than realistic – future, the epitome is non sexy fourth dimension inward Thailand, but turgid texts discussed past times tired technocrats inward airless rooms. In comparison, Johnson’s enthusiasm is boundless, yet it is as aimless; as well as his innovation of internationalism is inward a world of his own.

We volition reckon which of these visions dominates the UK’s hereafter human relationship alongside the EU.

Annex 1

The “Treaty of Boris”

[signed at Wiff-Waff, 1 Apr 2020]

[based on the content of Boris Johnson’s speech]

Article 1

Yada yada yada

Article 2

*this infinite intentionally blank

Annex 2

The “Treaty of Paris”

[signed at Bataclan Theatre, xiii Nov 2020]

[based on the content of Theresa May’s speech]

Article 1

The UK shall live on associated alongside the activities of the European Union inward the champaign of judicial cooperation inward criminal matters as well as police clitoris cooperation.

This understanding creates reciprocal rights as well as obligations inward accordance alongside the procedures set out herein.

Based on Article 1 of the Schengen association understanding alongside Kingdom of Norway as well as Iceland, but slightly to a greater extent than succinct (and non limited to Schengen-related issues). The treaty would probable have got a preamble, but I have got omitted i for the sake of brevity.

Article 2

1. The provisions of European Union legislative acts as listed inward the Annex to this Agreement as they apply to the Member U.S. of the European Union, shall live on implemented as well as applied past times the United Kingdom.

2. The acts as well as the measures taken past times the European Union amending or edifice upon the provisions referred to inward the Annex, to which the provisions set out inward this Agreement have got been applied, shall, without prejudice to Article 8, live on accepted, implemented as well as applied past times the United Kingdom.

3. The UK shall implement as well as apply European Union legislative acts inward the champaign of judicial cooperation inward criminal matters as well as police clitoris cooperation other than those referred to inward paragraph 2, if the Mixed Committee so decides.

4. The Mixed Committee may create upwardly one's heed upon [amendments to the legislation listed inward the Annex, as it applies to relations betwixt the European Union as well as the United Kindgom.

The get-go 2 paragraphs are based on Article 2 of the Schengen association understanding alongside Kingdom of Norway as well as Iceland, but i time again slightly to a greater extent than succinct. The Annex would consist or some or all of the European Union laws inward this champaign which already apply to the UK, depending on what the 2 sides agree. The obligation of the UK to sign upwardly to amending measures inward this surface area (Article 2(2)) would live on qualified past times the ‘sovereignty clause’ inward Article 8.

Paragraph 3 would allow the UK as well as the European Union to add together UK participation inward other European Union laws inward this field, dependent champaign to their articulation agreement. Paragraph 4 would allow for amendments to European Union legislation as it applies to the UK, if both sides concord (the EU/Norway as well as Republic of Iceland extradition treaty is the precedent here: it waives some of the rules inward the EAW legislation). It would also live on possible to concord some amendments to European Union legislation at the outset as regards its application to the UK, as well as set those amendments out inward the Annex too. In that case, paragraph 1 would include the phrase (“…as amended inward the Annex, as regards their application to the UK”). It is presumed that European Union information protection would live on listed inward the Annex; inward that instance at that spot would live on no disruption to information flows betwixt the 2 sides. For technical reasons, the UK’s human relationship alongside European Union bodies similar Europol mightiness demand a split treaty.

Article 3

1. Influenza A virus subtype H5N1 Mixed Committee is hereby established, consisting of representatives of the authorities of the United Kingdom, the members of the Council of the European Union, hereinafter referred to as the "Council", as well as of the Commission of the European Communities, hereinafter referred to as the "Commission".

2. The Mixed Committee shall select decisions, as provided for inward this Agreement, past times consensus. It shall adopt its ain Rules of Procedure past times consensus.

3. The Mixed Committee shall encounter at the first of its President or at the asking of whatever of its members.

4. Subject to Article 4(2), the Mixed Committee meets at the bird of Ministers, senior officials or experts, as circumstances require.

5. The component of President of the Mixed Committee shall live on held:

- at the bird of experts: past times the representative of the European Union;

- at the bird of senior officials as well as Ministers: alternately, for a catamenia of half dozen months past times the representative of the European Union as well as past times the representative of the authorities of the United Kingdom.

Based on Article 3 of the Schengen association understanding alongside Kingdom of Norway as well as Iceland, but alongside much wider powers for the Mixed Committee to act.

Article 4

1. The Mixed Committee shall address, inward accordance alongside this Agreement, all matters covered past times Article 2 as well as shall ensure that whatever concern entertained past times the UK is duly considered.

2. In the Mixed Committee at the ministerial level, the representatives of the UK shall have got the opportunity:

- to explicate the problems they encounter inward observe of a exceptional deed or mensurate or to respond to the problems encountered past times other delegations;

- to limited themselves on whatever questions concerning the evolution of provisions of concern to them or the implementation thereof.

3. Meetings of the Mixed Committee at ministerial bird shall live on prepared past times the Mixed Committee at the bird of senior officials.

4. The representatives of the governments of the UK shall have got the correct to create suggestions inward the Mixed Committee relating to the matters mentioned inward Article 1. After discussion, the Commission or whatever Member State may consider such suggestions alongside a persuasion to making a proposal or taking an initiative, inward accordance alongside the rules of the European Union, for the adoption of an deed or mensurate of the European Community or the European Union.

Essentially identical to Article 4 of the Schengen association understanding alongside Kingdom of Norway as well as Iceland. Note that this proposal re-uses the precedent of a non-EU province having a consultative role inward European Union discussions at ministerial level, although this does non entail the ability to vote inward the Council.

Article 5

Without prejudice to Article 4, the Mixed Committee shall live on informed virtually the training within the Council of whatever acts or measures which may live on relevant to this Agreement.

Essentially identical to Article 5 of the Schengen association understanding alongside Kingdom of Norway as well as Iceland. Note that this proposal re-uses the precedent of a non-EU province existence informed of discussions inward the Council.

Article 6

When drafting novel legislation inward a champaign which is covered past times this Agreement, the Commission shall informally seek advice from experts of the UK inward the same way as it seeks advice from experts of the Member U.S. for drawing upwardly its proposals.

Essentially identical to Article 6 of the Schengen association understanding alongside Kingdom of Norway as well as Iceland. Note that this proposal re-uses the precedent of the Commission consulting a non-EU province when drawing upwardly proposals, although this would non entail the UK having an European Union Commissioner.

Article 7

1. The European Parliament, national parliaments of European Union Member States, as well as the UK Parliament shall found an inter-parliamentary commission to hash out the subject-matter of this Agreement. This commission shall found its ain rules of procedure.

2. When the topics discussed past times the commission autumn at to the lowest degree partly within the competence of the devolved parliaments as well as assemblies of the United Kingdom, the committee’s rules of physical care for shall provide for the participation of representatives of those devolved parliaments as well as assemblies.

This replaces Article 7 of the Schengen association understanding alongside Kingdom of Norway as well as Iceland, which referred to a split treaty on asylum applications – an number non mentioned inward the Prime Minister’s speech. Given that the role of the European Parliament inward this champaign is much greater since the Schengen association understanding was agreed inward 1999, a specific clause on this number seems desirable. It is useful to involve European Union national parliaments too. The clause on UK devolved assemblies as well as parliaments takes job organisation human relationship of the devolution of ability inward the UK.

Article 8

1. The adoption of novel acts or measures related to matters reffered to inward Article 2 shall live on reserved to the competent institutions of the European Union. Subject to paragraph 2, such acts or measures shall go into into forcefulness simultaneously for the European Union as well as its Member U.S. concerned as well as for the United Kingdom, unless those acts or measures explicitly province otherwise. In this context, due job organisation human relationship shall live on taken of the fourth dimension indicated past times the UK inward the Mixed Committee as the fourth dimension necessary to enable the UK to fulfil its constitutional requirements.

2. (a) The adoption of the acts or measures referred to inward paragraph 1 to which the procedures set out inward this Agreement have got been applied, shall live on notified right away past times the Council to the United Kingdom. The UK shall create upwardly one's heed independently whether to select their content as well as to implement it into its internal legal order. These decisions shall live on notified to the Council as well as to the Commission within 30 days of the adoption of the acts or measures concerned.

(b) If the content of such an deed or mensurate tin go binding on the UK only after the fulfilment of constitutional requirements, the UK shall inform the Council as well as the Commission of this at the fourth dimension of its notification. The UK shall promptly, as well as at the latest half dozen months from notification past times the Council, inform the Council as well as the Commission inward writing upon fulfilment of all constitutional requirements. From the appointment set downwards for the entry into forcefulness of the deed or mensurate for the UK as well as until the information upon fulfilment of constitutional requirements, the UK shall provisionally apply, where possible, the content of such deed or measure.

3. The credence past times the UK of the content of acts as well as measures referred to inward paragraph 2 shall create rights as well as obligations betwixt the UK on the i hand, as well as the European Union as well as those of its Member U.S. fountain past times those acts as well as measures, on the other hand.

4. In case:

(a) the UK notifies its determination non to select the content of an deed or mensurate referred to inward paragraph 2 as well as to which the procedures set out inward this Agreement have got been applied; or

(b) the UK does non create a notification within the 30 days fourth dimension bound set out inward paragraph 2(a); or

(c) the UK does non create a notification within the half dozen calendar month fourth dimension bound set out inward paragraph 2(b) or does non provide for provisional application as envisaged inward the same subparagraph from the appointment set downwards for the entry into forcefulness of the deed of mensurate concerned for it;

this Agreement shall live on considered terminated, unless the Mixed Committee, after a careful exam of ways to proceed the Agreement, decides otherwise within 90 days. Termination of this Agreement shall select effect 3 months after the decease of the 90 days period.

5. The Mixed Committee may create upwardly one's heed to settle the dispute past times suspending the reciprocal application betwixt the parties of only some of the measures listed inward the Annex. In that case, such suspension shall select effect 3 months after the decease of the 90 days catamenia referred to inward paragraph 4.

6. The UK may notify the European Union that where a novel deed or mensurate falls at to the lowest degree partly within the competence of the devolved governments of the United Kingdom, the fourth dimension limits referred to inward this Article may apply at dissimilar times for dissimilar parts of its territory. 

The UK may also notify the European Union that where a novel deed or mensurate falls at to the lowest degree partly within the competence of the devolved governments of the United Kingdom, paragraph 4 may apply only to parts of its territory. In that event, the Mixed Committee shall create upwardly one's heed on the termination or continuation of this Agreement pursuant to paragraph 4, or partial suspension pursuant to paragraph 5, taking this territorial distinction into account.

Paragraphs 1 to 4 are based on Article 8 of the Schengen association understanding alongside Kingdom of Norway as well as Iceland, which includes a ‘guillotine clause’ for the entire understanding if those countries turn down to select an amending measure. Note that as alongside the Schengen association agreement, it is opened upwardly to the Mixed Committee to maintain the treaty inward forcefulness fifty-fifty inward the lawsuit of the UK non accepting an amendment.

In lite of the wider compass of this Agreement compared to the Schengen association agreement, I suggest a to a greater extent than measured approach to possible termination of the treaty, past times explicitly providing for only partial termination of the treaty as a remedy (paragraph 5). This is similar to the approach taken to the EEA.

Paragraph 6 of the proposed clause takes job organisation human relationship of the devolution of ability inward the UK.

Article 9

1. In lodge to accomplish the objective of the Contracting Parties to instruct inward at as uniform an application as well as interpretation as possible of the provisions referred to inward Article 2, the Mixed Committee shall maintain nether constant review the evolution of the instance law of the Court of Justice of the European Communities, hereinafter referred to as the "Court of Justice", as good as the evolution of the instance law of the competent courts of the UK relating to such provisions. To this destination a machinery shall live on set upwardly to ensure regular mutual transmission of such instance law.

2. Subject to the adoption of the necessary modifications to the Statute of the Court of Justice, the UK shall live on entitled to submit statements of instance or written observations to the Court of Justice inward cases where a query has been referred to it past times a courtroom or tribunal of a Member State for a preliminary ruling concerning the interpretation of whatever provision referred to inward Article 2.

This is based on Article nine of the Schengen association understanding alongside Kingdom of Norway as well as Iceland. See comments on Article 11.

Article 10

1. The UK shall submit reports annually to the Mixed Committee on the way inward which its administrative authorities as well as courts have got applied as well as interpreted the provisions referred to inward Article 2, as interpreted past times the Court of Justice, as the instance may be.

2. If the Mixed Committee, within 2 months after a substantial difference inward the instance law of the Court of Justice as well as the courts of the UK or a substantial difference inward application betwixt the authorities of the Member U.S. concerned as well as those of the UK inward observe of the provisions referred to inward Article 2 has been brought earlier it, has non been able to ensure the preservation of a uniform application as well as interpretation, the physical care for inward article eleven shall apply.

This is based on Article 10 of the Schengen association understanding alongside Kingdom of Norway as well as Iceland. See comments on Article 11.

Article 11

1. In the instance of a dispute virtually the application of this Agreement or inward a instance where the province of affairs provided for inward Article 10(2) occurs, the affair shall live on officially entered as a affair of dispute on the agenda of the Mixed Committee at ministerial level.

2. The Mixed Committee shall have got 90 days from the appointment of the adoption of the agenda on which the dispute has been entered within which to settle the dispute. The Mixed Committee may create upwardly one's heed to settle the dispute past times suspending the reciprocal application betwixt the parties of only some of the measures listed inward the Annex.

3. In a instance where the dispute cannot live on settled past times the Mixed Committee within the catamenia of 90 days envisaged inward paragraph 2, a farther catamenia of 30 days shall live on observed for reaching a in conclusion settlement.

If no in conclusion small town is reached, this Agreement shall live on considered as terminated. Such termination shall select effect half dozen months after the decease of the 30 twenty-four hours period.

This is based on Article eleven of the Schengen association understanding alongside Kingdom of Norway as well as Iceland. Articles 9-11 strike a residuum betwixt judicial autonomy of the Contracting Parties as well as the demand to ensure consistent application. Rather than Kingdom of Norway as well as Republic of Iceland existence fountain past times ECJ jurisdiction as such, at that spot is a dispute small town physical care for inward the lawsuit of divergent instance law. In the lawsuit that at that spot is no political small town to this dispute, the treaty is suspended. As alongside Article 8, I suggest a to a greater extent than measured approach hither given the wider compass of the Agreement, providing for only partial termination as a remedy (Article 11(2), 2d sentence).  

Article 12

1. As far as administrative costs involved inward the application of this Agreement are concerned, the UK shall contribute to the full general budget of the European Communities an annual amount of: …

2. The UK shall have got the correct to have documents drawn upwardly past times the Commission or within the Council pertaining to this Agreement.

This is based on Article 12 of the Schengen association understanding alongside Kingdom of Norway as well as Iceland. The exact amount of the UK contribution would have got to live on negotiated. 

Article 13

1. This Agreement shall non behaviour upon inward whatever way whatever other agreement, or hereafter agreement, concluded betwixt the UK as well as the European Union.

2. In accordance alongside the Treaties establishing the European Union as well as the Withdrawal Agreement, this Agreement shall non behaviour upon the Common Travel Area betwixt the UK as well as Ireland.

This is a to a greater extent than succinct version of Article xiii of the Schengen association understanding alongside Kingdom of Norway as well as Iceland. Paragraph 2 replaces a reference to the Nordic passport wedlock inward Article 13(3) of the other treaty past times a reference to the Common Travel Area betwixt the UK as well as Ireland, which is protected past times Protocols attached to the European Union Treaties. It is assumed that the Withdrawal Agreement volition also incorporate provisions on this issue.

Article 14

This Agreement [does] [does not] apply to…

This is based on Article xiv of the Schengen association understanding alongside Kingdom of Norway as well as Iceland. The number of territorial compass volition probable live on relevant to Gibraltar, the Channel Islands as well as the Isle of Man, as well as volition have got to live on negotiated. 

Article 15

1. [same text for paras 1-3]

1. This Agreement shall go into into forcefulness i calendar month next the twenty-four hours on which the Secretary General of the Council, who shall deed as its depositary, has established that all formal requirements concerning the seem of the consent past times or on behalf of the Parties to this Agreement to live on fountain past times it have got been fulfilled.

2. With observe to acts or measures adopted after the signature of this Agreement but earlier its entry into force, the catamenia of 30 days referred to inward Article 8(2)(a), in conclusion judgement shall start to run from the twenty-four hours of entry into forcefulness of this Agreement.

This is based on Article fifteen of the Schengen association understanding alongside Kingdom of Norway as well as Iceland. Paragraphs 15(4) as well as (5) of that treaty are left out, as they are non relevant here.

Article 16

1. This Agreement may live on denounced past times the UK or the European Union. Such denunciation shall live on notified to the depositary. It shall select effect half dozen months after notification.

2. In the lawsuit that the UK denounces the European Convention on Human Rights, this treaty shall terminate on the appointment that such denunciation becomes effective.

In the lawsuit that a Member State of the European Union denounces the European Convention on Human Rights, this treaty shall terminate as betwixt the UK as well as that Member State on the appointment that such denunciation becomes effective.

Paragraph 1 is based on Article xvi of the Schengen association understanding alongside Kingdom of Norway as well as Iceland. Paragraph 2 spells out the requirement that, given the depth of the cooperation, the UK (and European Union Member States) must proceed to apply the ECHR as a status of the treaty staying inward force. It is probable that the European Union would anyway seek to terminate the treaty if that occurred past times using the commons termination provision, but it is useful to spell this out.

Article 17

The consequences of denunciation of this Agreement, or its termination, shall live on the dependent champaign of an understanding betwixt the Parties. If no understanding tin live on reached, each Party volition create upwardly one's heed upon the measures to live on taken.

This is based on Article 17 of the Schengen association understanding alongside Kingdom of Norway as well as Iceland. 

Article 18

1. This Agreement replaces the provisions of the Withdrawal Agreement relevant to judicial cooperation inward criminal matters as well as police clitoris cooperation, as from its entry into forcefulness pursuant to Article 15.

This is based on Article eighteen of the Schengen association understanding alongside Kingdom of Norway as well as Iceland, but refers to the Brexit withdrawal understanding rather than a previous treaty on association alongside Schengen which Kingdom of Norway as well as Republic of Iceland had agreed.

I have got omitted the boilerplate text as well as the destination as well as the signatures. The Annex listing which European Union laws the UK is silent associated alongside – as well as whatever possible amendments – would have got to live on negotiated.

Barnard & Peers: chapter 24, chapter 25, chapter 27

Photo credit: Daily Express

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