On the 2nd of March the House of Lords EU Home Affairs Sub-Committee launched an inquiry into the “practical and legal challenges for negotiating a security treaty with the EU”. This comes off the back of Theresa May’s speech in February calling for a deep and comprehensive security treaty to be drawn up between the UK and the EU, covering all kinds of security issues. Such a treaty would require an arbitration mechanism and legal oversight, which would mean Britain will not have total control over its laws. The Sub-Committee, like this article, will try to find a way of squaring the circle of the EU and the UK signing this proposed treaty, ending the European Court of Justice’s jurisdiction over Britain and ensuring the full sovereignty of UK law.
First of all, it’s necessary to point out why a legal oversight mechanism would be required for such a treaty. After all, NATO does not have an invasive legal component, so why should this treaty?
Traditional security treaties, like NATO or the Anglo-Japanese Alliance, were agreements between states to protect each other from other states. There was no need for legal oversight or arbitration courts because they had no impact or interest in the domestic affairs of the signatories. Country A agrees to help country B if it is attacked, and vice versa.
The treaty Theresa May envisions is nothing like this. It covers a large number of subjects including cross border policing, information and intelligence sharing, terrorism and transnational crime amongst other issues. There is no foreign power to wage war with; these issues are, for the most part, domestic and dealt with by the police and in law courts rather than on the battlefield. As such, this requires some kind of legal oversight and UK-EU arbitration mechanism, since there will be huge implications for domestic law and policing, as well as a human rights dimension.
Currently, there are many EU-wide institutions, mechanisms and laws which cover most of these issues. Europol, the European Arrest Warrant, the European Defence Agency and the Common Foreign and Security Policy, among others, currently provide the EU with the security Theresa May wants to replicate after Brexit, with the ECJ providing the legal oversight to these organisations.
European Court of Justice in Luxembourg
Theresa May, and many others, have argued that the ECJ, which currently provides this kind of oversight, must not have any role in influencing British law after Brexit. After all, this is what taking back control is all about. If May only means that the ECJ’s influence must end, in a very literal sense, then there is no problem. A new court can be set up with British and European representatives, to provide the oversight that is needed. This would, in practice, not be very different from the current arrangements with European judges and EU law influencing British law.
However, if May means that the principal of EU judges and laws influencing British law must end then there is a problem. The treaty she has outlined requires legal oversight and arbitration; this is not a case of ideology it is simply a necessity. Theresa May does know this; she has called for a “strong and independent form of dispute resolution” which is “respectful of the sovereignty of both the UK and the EU’s legal orders”. It is however, as clear as mud how these two demands are to be reconciled.
I cannot predict the future, perhaps the Lords Sub-Committee can find a way out of this conundrum, or perhaps the UK and the EU can find a way to provide the necessary arbitration and legal oversight which both sides are happy with. Everyone will come away better off with a comprehensive security treaty than without one. However, if Theresa May wishes to end all influence of EU law and European judges ever British law, then she will end up with a damp squib of a treaty which covers nothing of substance. Both sides must be pragmatic and relinquish some control to a joint arbitration mechanism and an institution which can provide legal oversight. Taking back control is, in this instance, not the best course of action for either side.
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