Richard Ekins is Head of the Policy Exchange’s Judicial Power Project and Professor of Law and Constitutional Affairs at Oxford University.
In his foreword to the Government’s Declaration on the UK-EU Trade and Cooperation Agreement, the Prime Minister said: “The agreement provides for the UK to regain control of our laws, regardless of EU law the European Court of Justice has no jurisdiction to have justice. The only laws we have to obey are those of our elected parliament. “
Strictly speaking, an agreement with the EU has never been necessary for the UK to regain control of its laws. However, the Prime Minister points out that this new agreement does not oblige the UK to comply with EU law or otherwise come under the jurisdiction of the European Court of Justice (ECJ). The truth of this claim is obviously important. This also applies to the question of whether the agreement, even if the jurisdiction of the ECJ is terminated, could (inadvertently) exacerbate the problem of the European Court of Human Rights (ECHR) and strengthen its jurisdiction over the United Kingdom by binding it to freedom becomes trade with the EU.
Like the withdrawal agreement, the UK-EU Trade and Cooperation Agreement, when ratified, will be an international treaty between the UK and the EU. Both agreements provide for dispute settlement, and in neither agreement is the ECJ the arbitrator, for the obvious reason that the ECJ is the EU’s own court.
However, parts of the take-back agreement, in particular the protocol on Ireland / Northern Ireland, provide that EU law continues to apply, in relation to which the ECJ continues to play a role. By adopting the Withdrawal Agreement, the UK agreed to legislation to give domestic legal force to some of the terms of the Agreement, including priority over other laws.
The UK-EU Trade and Cooperation Agreement does not contain any such requirement, and the agreement does not contain concepts of EU law or otherwise provide that the UK is subject to ECJ regulation. The only limited exception concerns the UK’s continued participation in EU programs such as Horizon, in which the ECJ appears to have a role. However, this is very different from UK consent to comply with EU law and consent to the jurisdiction of the ECJ.
The agreement creates a complex network of institutions that manage UK-EU relations in various areas. In the event of a dispute, different options are available depending on the context, including third party arbitration. In some cases, the UK and EU may suspend compliance with obligations in retaliation for violations. The UK and EU will therefore enforce the agreement through arbitration and diplomacy. The EU cannot enforce the agreement against the UK through the ECJ, which has no relevant jurisdiction.
At various points during the negotiations, the EU asked the UK to commit to remain a member of the ECHR and to agree not to amend or repeal the 1998 Human Rights Act. This was an obviously inadequate negotiating goal. Fortunately, there is no such obligation in the agreement. The point may seem academic as it is UK government policy to remain a party to the ECHR. However, the UK’s right to leave the ECHR is an important safeguard. It would be open to a successive government led by a future Clement Attlee, for example, to decide to leave. While the agreement is to a certain extent dependent on mutual human rights insurances, they fall far short of the obligation not to denounce the ECHR and thus protect human rights by other (better) means.
In the opening words of the preamble to the agreement, the UK and the EU reaffirm their commitment to democratic principles, the rule of law, human rights, the fight against the proliferation of weapons of mass destruction and the fight against climate change. which represent the essential elements of this and supplementary agreements ”.
Part 6, on dispute resolution, reaffirms that these are “essential elements” of the agreement. The UK and EU agree to continue to uphold shared values and principles of democracy, the rule of law and respect for human rights and to reaffirm their respect for the Universal Declaration of Human Rights (UDHR) and the international human rights treaties to which they are party. The UK is, of course, a party to the ECHR, but the agreement does not currently mention the ECHR (the EU has a contractual obligation to accede to the ECHR but the ECJ has foiled its fulfillment; EU member states are parties to the ECHR). Compliance with contracts in which one is a party is consistent with maintaining the right to leave in the future.
Part 6 provides that either the UK or the EU may terminate or suspend the operation of the agreement if the other party has committed “a serious and material breach” of any of the obligations that are essential elements of the agreement. However, the agreement stipulates that any action taken must be proportionate and that a serious and substantial failure may be “of a serious and natural nature, threatening peace and security or having international implications”.
The agreement stipulates that defeating the subject matter and purpose of the Paris Agreement would count, but there is no mention of leaving the ECHR. The omission is justified because denouncing the ECHR itself would not be a failure of respect for human rights. On the contrary, it could well be a decision that human rights, democracy and the rule of law are better realized through a mature parliamentary democracy that is not under the jurisdiction of the ECHR. While the EU could try to argue that terminating the ECHR is in violation of the agreement, the argument would indeed be weak. It would also be superfluous since the EU, like the UK, can terminate the entire agreement with twelve months’ notice.
Part three of the agreement, which concerns law enforcement and judicial cooperation in criminal matters, is a little more specific. The agreement notes that the basis for cooperation is that the UK, EU and EU Member States have long been committed to democracy, the rule of law and the protection of human rights, including those set out in the UDHR and the ECHR respect the importance of giving the ECHR domestic effect.
The agreement rejects any intention to change existing obligations to respect fundamental rights, in particular those confirmed in the ECHR or on the part of the EU and its member states in the Charter of Fundamental Rights. Part three allows the UK or the EU to terminate this part of the agreement with nine months ‘notice (other parts of the agreement also provide for partial termination with nine months’ notice).
It also provides for earlier termination if the reason for termination is that the UK or an EU member state has denounced the ECHR and specifies that in that case this part will take effect from the date on which the termination takes effect (which the ECHR provides six months’ notice). Termination of the ECHR would not violate Part 3 or affect any condition on which continued application of Part 3 depends. Instead, the EU would have to exercise its right of termination.
In ratifying this agreement, the UK will not undertake not to withdraw from the ECHR, let alone change or repeal human rights law. When the United Kingdom later exercises its contractual right to withdraw from the ECHR, like Australia, Canada or New Zealand, it will choose to live without an international (regional) human rights court.
Whether or not that choice is made is an important foreign policy question, a question with significant constitutional implications. Leaving the ECHR would not be a violation of the agreement. This would not justify the suspension or termination of the agreed trading conditions. It could be a reason for the EU to end law enforcement and judicial cooperation, but that would be a choice for the EU and the EU, like the UK, can definitely terminate the agreement. If the UK left the ECHR, it would be wise to reassure the EU that the protection of freedom in national law would not change significantly. However, the UK is free to decide whether to leave the ECHR and how to protect human rights.
This is the sixth installment in a series of posts from Policy Exchange that address specific issues arising from the Brexit trade deal.