This question does not come from a Remainer’s fevered brain, but is raised by concessions reported last week in the government’s own negotiating documents.
There are newspaper articles now describing the EU as the soft regulator of the world, with data protection and the universal application of the GDPR for all data entering or leaving Europe as an example. More countries are coming under its sway just as we are leaving. We already know that we will continue to be subject to EU data protection laws. And so can we effectively leave in other areas?
Last week, our government published a series of position papers about future arrangements. For those who say ‘Of course we can leave, and there’s nothing wrong with no-deal’, the detail of the papers is eye-opening on what will be lost across a range of sectors if we just walk out.
For instance, even if you cannot wait to escape the tyranny of the Court of Justice of the European Union (CJEU), the government is ready to concede its jurisdiction in another area: science cooperation. The government wants the UK to remain part of Horizon Europe, the EU’s programme for scientific research and innovation. At the beginning of this month, the European Commission announced a proposed budget of €100 billion for the next Horizon Europe (2021-2027).
The UK government wants to discuss with the EU the option of full association with Horizon Europe around three areas: structure, influence and contribution. It also wants to continue to host and support European research infrastructures, two of which are already hosted in the UK - the European Research Infrastructure Consortium (Instruct-ERIC), and the European Social Survey (ESS). The government knows what this means, and openly says: ‘The UK will respect the remit of the CJEU, where relevant, where we participate in EU programmes.’
It is the same message on the European agencies, which set regulation across a broad swathe of sectors. One of the recent papers forms the government’s response to a House of Commons Health and Social Care Select Committee report on medicines and medical devices. Again, the government wants to remain part of some EU agencies, including the European Medicines Agency (EMA). This is one we currently host, but can no longer do so after Brexit. It is moving to Amsterdam.
But given that we want to continue membership, we should note that the prime minister conceded already in March: ‘If we agree that the UK should continue to participate in an EU agency the UK would have to respect the remit of the ECJ in that regard’. The exceptions are mounting.
For lawyers, the most relevant recent paper is the one on security, law enforcement and criminal justice. There is a 12-page annex listing the various laws and other forms of co-operation that will no longer be open to us after Brexit. The government essentially wants to continue with them, and a summary of the gist of the paper would be: we may be leaving, but we want an agreement which replicates EU membership in this sector.
The government gives good reasons. For instance, regarding criminal records exchanges with third countries under the European Criminal Records Information System (ECRIS) or other EU instrument, there is an imbalance in favour of the UK. In 2016, ACRO (the UK criminal records central authority) responded to over 13,000 requests for conviction information from other EU member states via ECRIS. In the same period, the UK sent over 35,000 notifications to EU member states regarding their nationals being convicted in the UK. There is currently no precedent for EU member states to conduct criminal records exchange with third countries, and so the UK wants a unique agreement to keep the current system going. You can see why the EU might want the same.
There are equivalent statistics and conclusions also on the SIS II (Schengen Information System) alert systems and the European arrest warrant, and other programmes.
In the last few days, we have also heard talk that the government could agree to remain temporarily inside the EU’s common external tariff for some years until a future customs arrangement is ready, since the wrangling over the future has not yet been settled, and the time set under Article 50 is steadily ticking away.
Once all these agreements will have been drawn up, will we have effectively left the EU, or will we have BRINO (Brexit In Name Only)? What is it called if you have a foot permanently in the room, and the rest is out of the door? Bre-twixt?
Or, to repeat the question at the top of this article: short of bringing chaos and unwanted consequences on the population, is it possible to leave the EU at all?