19 February 2018

If the UK is going to win any ground for a bespoke deal with the EU it will be on security, argues Bronwen Maddox. 

The Prime Minister said two things above all at the Munich Security Conference: the UK and the European Union have a common interest in security, and we need a bespoke deal to preserve that after Brexit.

The first is indisputable, which makes this easier ground than other aspects of Brexit. But the detail of the new treaty for internal security, and the new framework for external security for which she called, will not be easy. Nor will the politics be straightforward.

In the UK, the Prime Minister may face opposition from her call to “respect” the European Court of Justice (ECJ) when working with European agencies – the exact meaning of this is yet to be determined. From the EU side, there may be complications from existing precedents of security partnerships (Denmark, Turkey), and the suspicion from those who suspect an attempt to set a precedent for a bespoke agreement on trade.

Key points

  • The most significant point of Theresa May’s speech was the phrase about “respecting” the ECJ. “When participating in EU agencies the UK will respect the remit of the ECJ”, she said. However, the Prime Minister also said that “as a country outside the European Union, we will have our own sovereign legal order, so the European Court of Justice will no longer have jurisdiction in the United Kingdom." Everything (particularly for the Brexiteers in her party) will depend on what exactly this means.

She said, for example, that the UK will want to keep the value of the current co-operation under the European Arrest Warrant (which she said was integral to the Northern Ireland peace settlement), the exchange of data through Europol, and the securing of evidence through the European Investigation Order. Does that mean participating in those programmes and agencies? She didn’t say. She also presented this as the UK’s choice to make, but European agreement cannot be presumed at all; what the Prime Minister proposes goes far beyond what any non-EU country has.

  • The speech made much of a distinction between internal and external security. The first includes policing, the second, defence; both include intelligence work. That distinction, as she acknowledged, gets blurred in a world of cyber and migration. The Government wants a new treaty to cover the former and a framework agreement to cover the latter.

She spelled out how much the UK had contributed to crafting existing internal EU security agreements. Even so, it is not clear whether she intends a treaty to replicate existing procedures for co-operation. On external security, she took some time listing the other alliances, including NATO, to which the UK contributed. The question is how a new framework that she proposes will dovetail with these.

  • Data exchange is the prime concern of intelligence agencies and of tech companies. They have expressed alarm that Brexit will bring an end to the existing agreements on exchange of data (whose rigour will ratchet up this summer). Theresa May said that “we want to go further and seek a bespoke arrangement to reflect the UK’s exceptionally high standards of data protection” as well as “an ongoing role for the UK’s Information Commissioner’s office”. She added: “we’re ready to start working with colleagues in the European Commission now.”

The UK last year gave more detail on how it would like this to work in the future partnership paper on data. But technical complexity, as well as internal EU politics, is unlikely to be simple. Even in the Cabinet there appear to be differences of opinion; last week Boris Johnson, Foreign Secretary, said: “There are some sectors, such as AI [Artificial Intelligence] or robotics, or bulk data, or bioscience where we excel and where we may want to do things differently.”

If the UK is going to win any ground for a bespoke deal, it will be here, in the case of security. The common interest is beyond dispute. Some European officials called the speech a Trojan horse (in advance of a call for a bespoke deal on trade). But that is to imply a deception which is not there: the UK request on its future relationship may so far lack much detail but the one undeniable constant has been the call for a bespoke deal. The Prime Minister took aim at those who object on principle, saying: “...if the priority in the negotiations becomes avoiding any kind of new co-operation with a country outside the EU, then this political doctrine and ideology will have damaging real-world consequences for the security of all our people.”

Nonetheless, the call for a bespoke deal will continue to arouse objections from within the EU. Denmark is one likely source; it has special security arrangements with the EU, having declined to sign on for the full roster, and will not want the UK to get something better. Turkey, as a neighbour with its own agreements, will also have a close eye on parity (although that is not a model of partnership the UK has found attractive, seeing it as bringing many of the obligations of collaboration without the close communication of current arrangements).

After the 2016 referendum, the Prime Minister provoked a storm of criticism from European capitals by implying that security would a bargaining chip in the Brexit talks. She has since been carefully diplomatic – in Florence and now in Munich – in invoking the common interest (“Europe’s security is our security”). But the message is still there.

For all the shared interests, which make the politics much simpler than on trade, the technical detail of what would be needed in the proposed treaties and frameworks is still formidable. There, the greatest threat is time.

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