Refusing diplomatic status to the EU’s London delegation is a counterproductive insult

The Foreign Office’s refusal to grant full diplomatic privileges to the EU’s delegation in London has been sharply criticised by a number of expert commentators. Tobias Ellwood, a former foreign office minister and chair of the defence select committee, called it “petty”, while Michel Barnier said that the UK would be “wise” to resolve the issue expeditiously. Indeed, doing so would cost the UK nothing, while smoothing over what will, despite Brexit, be the UK’s most important international relationship.

Diplomats have fuller immunity than representatives of international organisations

Foreign embassies in London and the diplomats who work in them have enjoyed immunity from criminal charges and civil lawsuits for a long time. Their privileges were first put into statute in 1708, following an incident when the Russian ambassador was arrested and detained as he was preparing to leave the country without paying his debts. They are currently guaranteed by the Diplomatic Privileges Act 1964. This Act implements in UK law the Vienna Convention on Diplomatic Relations, one of the few treaties signed by essentially every country in the world.

Despite its uses for diplomats who don’t want to pay their debts – or their congestion charges – diplomatic immunity really exists for the sake of the governments that send them overseas. Allowing foreign governments to arrest, detain and interrogate diplomats, whether as part of genuine or bogus legal proceedings, would give those governments opportunities to apply illegitimate pressure to the countries from which they come. British diplomats around the world benefit from these protections.

The Vienna Convention applies, however, only to states. As international organisations (IOs) acquired more and more functions in the 20th century, the international community came to the view that they and their officials should also benefit from immunities similar to those enjoyed by embassies and diplomats. Similar, but not identical: IO officials are immune only in respect of what they do in their official capacity. While they might not have to pay a fine if they break the speed limit while driving to a meeting at the foreign office, they would if they do so while on a pleasure jaunt at the weekend.

The EU is not quite like other international organisations

These immunities extend to a surprisingly wide range of organisations: the representatives of the International Sugar Organisation, the Universal Postal Union, and the North Atlantic Salmon Conservation Organisation all enjoy this limited immunity. Almost 70 years ago, the European Coal and Steel Community Act 1955 gave limited immunity to the UK representative of the ECSC, the EU’s earliest incarnation.

The modern EU is clearly different both from its own precursor and from these other organisations. It has exclusive rights to represent the member states in wide areas of policy, from trade to aviation. It has important and growing functions in the field of security and defence. EU officials produce and have access to highly classified information. In this sense, they have similar needs for protection to ordinary diplomats.

For this reason, the EU’s quasi-foreign ministry, the European External Action Service, seeks not just IO-type immunity but full diplomatic immunity for its diplomats overseas through “establishment agreements”. It has signed such agreements, providing for full immunity, with over 140 countries around the world. Many of these agreements have been in place for many years: the United States gave diplomatic privileges to the EEC mission in Washington by act of Congress in 1972. While President Trump did move the EU ambassador down a few ranks in the table of precedence for official receptions in 2018, even he never threatened the delegation’s diplomatic status – and even that decision was quickly reversed after Brussels made its objections clear.

The UK’s reasoning for refusing immunity makes no sense

The UK’s refusal to grant the EU Delegation in London full immunity thus puts the UK out of step with almost all its partners. The Foreign Office argues that if it grants immunity to the EU, lots of other IOs will start asking for the same rights. But this is clearly unreasonable, since it has not occurred in the 140-odd states that have given diplomatic status to the EU delegations in their countries.

To the extent that it is not simple pettiness, the true reason would seem to be to underline the government’s view that it should maintain relations with leading EU member states, rather than the institutions. But if the UK tries to speak to the member states directly on issues where the EU has competence, it will find itself rebuffed. This includes issues of importance to the UK in the short run, like trading relations and the border in Ireland, but also in the longer term: the EU will negotiate as a bloc at the UN climate change conference in Glasgow this autumn.

That is, after all, why countries such as the US, Russia and China negotiate with the EU and treat its diplomats in the same way as those coming from a sovereign state. Those countries are no fans of pooled sovereignty. They would never dream of joining an organisation like the EU themselves. But they recognise that pretending the EU is no more than a Salmon Conservation Organisation with delusions of grandeur is not just insulting but counterproductive. So should the UK.