New year, new relationship—bespoke governance and tenuous ECHR conditionality in Part 3 of the EU-UK TCA
The clock is no longer ticking. As of 1 January 2021, the EU-UK Trade and Cooperation Agreement (TCA) is provisionally applied, heralding a new era for EU-UK relations. In addition to the widely reported provisions on tariffs, fair competition and fishing, Part 3 of the TCA contains crucial provisions on law enforcement and criminal justice cooperation, designed to assuage the impact of Brexit on the security of UK and EU nationals. Notably, it creates an extradition surrender mechanism, which has been described as ‘unprecedented for a non-Schengen third country.’ With the exception of its governance and human rights provisions, it is almost a carbon copy of the EU-Norway and Iceland Surrender Agreement.
It is no secret that governance and human rights were constant stumbling blocks to an agreement on law enforcement and criminal justice cooperation. In the following, I will consider the compromises revealed by Part 3 of the TCA on bespoke governance mechanisms and ECHR conditionality, and their implications for the new surrender mechanism.
1. Governance: the institutional structure of TCA and the role of the Partnership Council
a) The Partnership Council and the Specialised Committee on Law Enforcement and Judicial Cooperation
Article INST.1 of the TCA establishes a Partnership Council (PC), co-chaired at ministerial level by a member of the European Commission, and a member of the UK Government, with an annual meeting. The PC oversees the attainment of the objectives of the TCA, supervising and facilitating its interpretation and application. Either the UK or EU may refer to the PC ‘any’ issue relating to the implementation, application and interpretation of theTCA. Moreover, the PC has the power to make binding decisions where provided for in the TCA, as well as non-binding recommendations, and amendments to TCA itself. Article INST.2(1)(r) establishes a Specialised Committee on Law Enforcement and Judicial Cooperation (Specialised Committee) to ‘address matters’ covered by Part 3 of the TCA. The Specialised Committee has a key role in the governance of Part 3 of the TCA, with the power to recommend joint interpretations and actions to the PC in the event of the suspension of Part 3 of the TCA (Article LAW.OTHER.137(7)), as well as the power to take decisions to conclude cooperation, in the event of the termination of Part 3 of the TCA (Article LAW.OTHER.136(3)). It also has various discrete powers to receive notifications from the UK and EU in relation to the surrender mechanism.
b) Principles of interpretation in the TCA: the role of public international law
Notably, there is no role for the CJEU in the institutional structure of the TCA, and it has been argued that TCA is not EU law. Article COMPROV.13 of the TCA provides that it is to be interpreted in accordance with customary rules of public international law, such as those codified in the Vienna Convention on the Law of Treaties. Two revealing articles, each commencing with the words ‘for greater certainty,’ make clear that the TCA does not create an obligation to interpret its provisions in accordance with UK law or EU law (Article COMPROV.13(2)), and an interpretation of the TCA given by a UK court or the CJEU shall not be binding on each other (Article COMPROV. 13(3)).
This is in contrast to Article COMPROV.14 of the original EU draft treaty, which provided for concepts of EU law to be interpreted in accordance with CJEU case law. Although the fact that this clause did not make it into the TCA can be attributed to the UK’s ‘red line’ on the CJEU, the autonomy of the EU legal order is also jealously guarded, as demonstrated by Opinion 2/13. It is noteworthy that Article COMPROV.15 on taking into account WTO case law equally did not make it into the TCA.
2. Tenuous ECHR conditionality in Part 3 of the TCA
a) The contrasts between the EU-Norway and Iceland Surrender Agreement and Part 3 of the TCA
Although Part 3 of the TCA mirrors many of the provisions of the EU-Norway and Iceland Surrender Agreement, governance and human rights are notable exceptions.
Firstly, Article 37 of the EU-Norway and Iceland Surrender Agreement provides that the CJEU and the competent courts of Norway and Iceland ‘shall keep under constant review’ the development of each other’s case law in relation to the Surrender Agreement and ‘similar surrender instruments.’ The stated purpose of Article 37 is to ‘achieve the objective of arriving at as uniform an application and interpretation as possible.’ In the TCA, the closest equivalent to Article 37 is the PC’s role in the event of termination or suspension of Part 3 of the TCA.
Although the omission of an equivalent for Article 37 in the TCA can be explained by the UK’s ‘red line’ on the CJEU, it might have been reasonable to include such a provision in the TCA. ‘Constant review’ would not have made CJEU case law binding on UK courts, and vice versa. The result is a potential lacuna as to uniform interpretation, which on the face of the TCA can only be considered in extremis by the PC.
Secondly, the EU-Norway and Iceland Surrender Agreement does not tie its termination mechanism to continued adherence to the ECHR. Article 1 states that the Surrender Agreement ‘shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in the [ECHR].’ Whereas the TCA is, in my view, weak on governance compared to the Surrender Agreement, the counter-point is that the benefits of cooperation under Part 3 of the TCA are tenuously premised on continued adherence to ECHR by both the UK and the EU.
b) Tenuous ECHR conditionality in Part 3 of the TCA
In tandem with governance, the EU was particularly conscious during negotiations of ensuring continued UK adherence to the European Convention on Human Rights (ECHR) as a condition of close cooperation in law enforcement and criminal justice matters.
Article LAW.OTHER.136 of the original EU draft treaty made law enforcement and criminal justice cooperation conditional upon the UK’s continued adherence to the ECHR, as well as giving continued domestic effect to it, i.e. through the Human Rights Act 1998. In the original text, ‘denunciation’ of the ECHR by the UK would have led to disapplication of the cooperation provisions. ‘(A)brogation of the domestic law giving effect to [ECHR]’ (HRA 1998) or ‘amendments […] reducing the extent to which individuals can rely on them before domestic courts of the [UK]’ in turn would have led to the suspension of the cooperation provisions.
Part 3 of the TCA reveals a more nuanced approach to ensuring UK compliance with the ECHR. A new Article LAW.GEN. 3 states that cooperation in Part 3 of the TCA is ‘based on’ the UK’s and EU’s long-standing respect for democracy, the rule of law and the protection of fundamental rights and freedoms of individuals, including […] as set out in the [ECHR]’ and ‘the importance of giving effect to [ECHR] domestically.’ At first glance, this appears to a watering-down of the original draft; however, it must also be read with the bespoke provisions in Part 3 of the TCA.
Article LAW.OTHER.136 refers to the termination of Part 3 of the TCA ‘on account of the United Kingdom or a Member State having denounced the [ECHR].’ This is the only reference in the TCA to denunciation of the ECHR. Interestingly, the reference to denunciation by an EU Member State did not appear in the original draft. The mechanism for suspension (Art LAW.OTHER.137) is triggered by ‘serious and systemic deficiencies’ within either the UK or EU regarding the protection of fundamental rights or the rule of law, as opposed to ‘abrogation’ of HRA 1998.
The formula ‘serious and systemic deficiencies’ appears to be a transplant from the judgment of the European Court of Human Rights in Bosphoros, where the Grand Chamber stated that a ‘manifestly deficient’ protection of ECHR rights could rebut the presumption that a State has not departed from the requirements of the ECHR when implementing obligations flowing from membership of an international organisation (in Bosphoros, the EU). In the event the protection of ECHR rights is considered ‘manifestly deficient,’ the Grand Chamber reiterated that the ‘interest of international cooperation would be outweighed by the [ECHR’s] role as a “constitutional instrument of European public order” in the field of human rights.’ (para 156). In light of Part 3 of the TCA, Bosphoros provides a wider context to ECHR conditionality in respect of the UK, whilst highlighting the tensions rooted in Opinion 2/13, and the EU’s desire for the autonomy of its legal order vis-à-vis the ECHR.
Termination or suspension of Part 3 of the TCA is effected through ‘written notification through diplomatic channels,’ upon which the PC shall ‘immediately’ be seized of the matter. The PC has an obligation to explore ways of postponing the entry into effect, reduction in scope, or withdrawal of, termination or suspension of Part 3 of the TCA. In addition, the PC may agree on ‘joint interpretations’ of Part 3 of the TCA. It may also recommend ‘appropriate action,’ or adopt ‘appropriate adaptations’ to ‘address the reasons underlying the suspension.’
It remains to be seen how the PC could perform the interpretative functions usually expected of a judicial body when fundamental rights are at issue. For example, the CJEU in PPU (C-216/18 PPU) defined the principle of mutual trust, upon which EU criminal justice cooperation is founded. Without a concept of mutual trust in Part 3 of the TCA, the role of the ECHR as the ‘constitutional instrument of European public order’ is fundamental to law enforcement and judicial cooperation between the UK and EU. It would be ironic if the European Court of Human Rights one day found the UK or the EU in breach of the ECHR in respect of a mechanism intended to maintain the autonomy of the UK and EU legal orders.
As addressed by Lucy Moxham and Oliver Garner, the rationale for ECHR conditionality in negotiations resulting in Part 3 of the TCA was the question of whether the UK would renege on its ECHR obligations in HRA 1998. This is not a theoretical point. In December 2020, the UK Government launched an independent review into HRA 1998, and follows the 2015 Conservative Party manifesto commitment to abolishing the HRA 1998 and replacing it with a ‘British Bill of Rights.’ Moreover, the Overseas Operations (Service Personnel and Veterans) Bill would (if enacted) create a duty on the Secretary of State to consider derogation from the ECHR in respect of overseas military operations. A report of the UK Parliament’s Joint Committee on Human Rights is critical of this proposal.
Of course, the EU itself has not acceded to the ECHR. One might be tempted to suggest that the EU practise what it preaches and conclude accession negotiations. The European Arrest Warrant Framework Decision (EAW FD), upon which the Surrender Agreement is modelled, does not refer to the ECHR by name. Paradoxically, as a Member State, the UK built ECHR safeguards into section 21 of the Extradition Act 2003 implementing the EAW FD. Legge 69/2005, implementing the EAW FD in Italian law, likewise added ECHR safeguards in its article 2.
Although Part 3 of the TCA could never be the same as the criminal justice cooperation afforded by EU membership, the surrender mechanism is an example of the compromises reached on governance and human rights in order to achieve the closest possible cooperation. In place of mutual trust, the role of the ECHR becomes the cornerstone of UK-EU criminal justice cooperation. With the HRA 1998 imbedded in the UK’s constitutional order, but precariously subject to revision, and the EU negotiating accession to the ECHR, Part 3 of the TCA could be the petry dish for a new era of human rights in Europe.
In the spirit of the EU Surrender Agreement negotiated with Schengen members Norway and Iceland, the surrender mechanism in Part 3 of the TCA represents an unprecedented level of cooperation for a non-Schengen third country but creates what I argue is a weak governance mechanism, born out of an obvious desire to remove any role for the CJEU. The Partnership Council is clearly the result of compromise, yet it remains to be seen how a diplomatic forum could take on the interpretative functions expected of a judicial body in the area of criminal justice cooperation and fundamental rights. Part 3 of the TCA creates a mechanism of what I argue is tenuous ECHR conditionality. Although this goes further than the EU-Norway and Iceland Surrender Agreement, ECHR conditionality has been watered down since the EU draft treaty and is arguably only as good as the weak governance mechanism established to enforce it.
Whilst the respective approaches of UK courts, the CJEU, and courts of EU Member States in practice will reveal any lacunae in the operation of the surrender mechanism, it will be interesting to see what role is to be played by the Partnership Council and Specialised Committee in this new era for UK-EU criminal justice cooperation.