Taking back control?
The new treaty contains clauses that constrain Britain in key aspects of public policy
You would not know it from the effusive commentary that Boris Johnson’s trade treaty has received from most conservative commentators, but the deal that is intended to take back control will, in certain key respects, do the exact opposite. It will give those who will oversee and rule on the treaty a right to pass judgment on a raft of public policies from abortion to transgenderism and from climate change to weapons of mass destruction.
Boris Johnson’s Brexit deal should have been merely a trade treaty
Trade is about buying and selling goods. It is not about broader issues of public policy which, in a democracy, ought to be the sole domain of electors and their representatives. The central problem with Boris Johnson’s Brexit deal is that it should have been merely a trade treaty, but it has become a trade and cooperation treaty. Unsurprisingly, for a European Union premised on constraining democracy, the EU is only prepared to cooperate with the UK on the basis that it has influence over UK public policy. This objective is secured by one of the most important articles in the treaty that empowers the EU to “terminate or suspend the operation of this Agreement … in whole or in part”. (Article INST.35, p400)
Nobody should underestimate the significance of the power to terminate or suspend the treaty. It is a sword of Damocles provision. Those who advocate a policy that may invoke the termination provision will quickly encounter the argument that: “you can’t do that, because the EU will terminate the trade treaty”. In the years to come, few will have the appetite to return to the recent past when this trading relationship was uncertain.
The termination provision can be triggered if the EU “considers that there has been a serious and substantial failure” by the UK “to fulfil any of the obligations that are described as essential elements” in the treaty. (Article INST.35, p400) There are three essential elements that can trigger the treaty’s termination or suspension: not upholding democracy, rule of law and human rights; deviating from the fight against climate change; and not countering the proliferation of weapons of mass destruction. (Article COMPROV.12, p400)
It is often said of legally binding documents that the devil is in the detail but when it comes to EU treaties the devil is usually in the beguiling language. Who could be against upholding human rights, or for climate change or for the proliferation of WMD? Yet this triplet of essential elements that the treaty describes as the “basis for cooperation” is not as straightforward as the drafters would like us to believe.
On human rights, there is a body of rulings that regulate public policies on abortion, adoption, asylum, criminal sentencing, deportation, extradition, homosexuality, immigration, marriage, military discipline, policing, pollution, prison discipline, social security, suicide, transgenderism and much else besides. So, any public policy that challenges any of these human rights laws could, depending on the gravity of challenge, cause the sword of Damocles to fall.
For example, human rights laws on transgenderism have had a considerable impact on domestic policy. In 2002 the European Court of Human Rights ruled that there is a human right that requires the nation state to recognise when an individual changes gender. The UK passed the Gender Recognition Act 2004 in response, to allow acquired gender to be recorded on birth and marriage certificates. If the UK sought to repeal this Act it is almost certain that those seeking to preserve the status quo would use the sword of Damocles argument to claim that such a policy would jeopardise the EU-UK treaty.
On some policies it may not be clear that the termination provision could be triggered. The tripwire being whether a UK policy amounts to a “serious and substantial failure” to fulfil its obligation to abide by the triplet of essential elements with such gravity that, for example, the policy has “international repercussions”. But the sword of Damocles has influence whether it falls or not. The mere possibility that a policy might cause it to fall will be a powerful argument against the policy. The ever-present risk that certain policies might cause the trade agreement to end will ensure that many policies will never be raised and, if raised, they will quickly be silenced.
Withdrawing from the Paris climate agreement has been effectively outlawed by the EU-UK treaty
Other policy proposals will leave little doubt that the termination provision could be triggered. In 2005 the Tory Party manifesto promised to take the UK out of the Refugee Convention. That policy would probably breach human rights laws which establish that everyone has the right to seek and enjoy asylum (Universal Declaration of Human Rights, article 14). In recent years, some politicians have argued that the UK should withdraw from the European Convention on Human rights (ECHR). As recently as 2016, the then home secretary, Theresa May, advocated it. Yet such a policy would, when the trade treaty becomes law, almost inevitably give the EU cause to terminate the trade treaty. The EU-UK treaty will put a force field around the Refugee Convention, the ECHR, numerous UN treaties and the laws derived from them by judges – usually foreign judges with little understanding of the English common law (Article COMPROV.4, p397).
The climate change provision is quite specific about the policies that could trigger the termination provision. The treaty expressly requires the UK to “respect the Paris Agreement and the process set up by the United Nations Framework Convention on Climate Change”. In other words, the policy adopted recently by the largest democracy in the western world, withdrawing from the Paris climate agreement, one of Donald Trump’s policies, has been effectively outlawed by the EU-UK treaty. More generally, any challenge to the “fight against climate change” could put the UK on a collision course with the EU. Climate change activists will shortly be able to deploy the sword of Damocles argument to silence climate change sceptics (Article COMPROV.5, p397).
The WMD provision is possibly the most beguiling of the triplet of essential elements. But it makes the UK’s nuclear weapons an issue of concern to the EU. And since all but one of the 28 EU states (France) does not have nuclear weapons, it is not difficult to see how this provision could be used to put pressure on the UK to reduce or give up entirely its nuclear weapons. Once again, an issue of domestic public policy will become an issue of concern to the EU under a treaty that will enable it to intercede on the relationship between the electors and the elected (Article COMPROV.6, p397).
The EU has been in the forefront of redefining issues like human rights to suit the perspective of those who run it
The three essential elements serve the EU’s agenda and provide scope for clashes with the UK electorate. The EU, which is subject to far less democratic pressure than a national parliament, has been in the forefront of redefining issues like human rights to suit the perspective of those who run it. The same impetus applies to a notion like the rule of law as Boris Johnson discovered when he recently proposed to breach international law with an Internal Market Bill designed to preserve the UK’s territorial integrity. In the past, the rule of law was used to bolster sovereignty, yet it is now often used to bolster international law, at the expense of sovereignty. The EU is also more likely to be in tune with global developments on climate change and WMD than the UK electorate.
In recent years, international treaties have become a powerful weapon against democratic decision making. The Belfast Agreement of 1998, for example, was frequently weaponised against Brexiteers over the last five years. And it is regularly deployed against those who argue for the UK to withdraw from the ECHR. Neither of these anti-democratic implications was draw to the attention of the British people at the time.
Treaties that have a limited and specific focus should not constrain democracy. For example, the North Atlantic Treaty of 1949 that created NATO, is concerned to bolster collective security. It contains just 14 articles and covers three pages. There is no devil in any beguiling language: its signatory states – and their citizens – know clearly what it means. Signing the treaty is an expression of democratic will, a case of sovereignty being willingly pooled.
On the other hand, the EU-UK Trade and Cooperation Treaty covers 1,246 pages (plus numerous lengthy supporting documents). Its language is designedly opaque so that the internationalists who drafted it can hoodwink the UK’s citizens into believing that democratic decision making is preserved. But once signed, those who will rule on the true ambit of its provisions will ensure that democratic decision making is not preserved.
We have been hoodwinked by the EU before. In 2007, the EU Charter of Fundamental Rights was given legal force by the Lisbon Treaty. To allay domestic concern, the Labour government obtained a written assurance from the EU that Britain had opted out of the Charter. Tony Blair assured the Commons that, “it is absolutely clear that we have an opt-out from … the Charter.” The foreign secretary, David Miliband, claimed the Charter would not “extend the reach of European courts into British law”. In 2011, the Justice Secretary, Ken Clarke, said the Charter was of more presentational importance and did “not actually change anything”.
The treaty is a political compromise that was entered into to ensure an orderly exit from the EU
Subsequent case law decided that the three Europhiles (Blair, Miliband and Clarke) were wrong. In 2013, a British judge noted that the assertion “that no new rights are created seems to me to be a misleading product of political compromise because on any view the Charter enunciates a host of new rights”. And he noted that despite “the endeavours of our political representatives at Lisbon it would seem that the much wider Charter of Rights is now part of our domestic law”. It took six years for the truth to be unearthed about the EU’s Charter of Fundamental Rights. It ought to take just six minutes for the truth to be unearthed about the EU’s trade deal since it only requires the person with a nose for the truth to read pages 397 and 400 of the treaty before reaching the conclusions explained above.
As parliament assembles to debate the Trade and Cooperation Agreement, our representatives should face up to the fact that the treaty is a political compromise that was entered into to ensure an orderly exit from the EU. They should be honest about pages 397 and 400 and the problems that they pose. They should prepare the British people for the difficult task that lies ahead if Britain is to do more to take back control.
Britain will only be able to call itself a true democracy when it has a trade deal with the EU that deals solely with trade. Issues of broader public policy should be no concern of the EU whether under the Lisbon Treaty (as EU members) or under the new treaty (as non-EU members). A democracy that requires its people to decide in fear that a sword of Damocles may fall is a constrained democracy.
Jon Holbrook is a barrister. He can be followed on Twitter: @JonHolb
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