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Treaty Between the UK and Northern Ireland and The European Union for Defence, Security and Intelligence Cooperation.

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TREATY BETWEEN THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND AND THE EUROPEAN UNION FOR DEFENCE, SECURITY AND INTELLIGENCE COOPERATION CONSEQUENT UPON THE UNITED KINGDOM’S DEPARTURE FROM MEMBERSHIP OF THE EUROPEAN UNION ON 29 MARCH 2019

Field Marshal the Lord Guthrie (former Chief of the Defence Staff)
Sir Richard Dearlove (former Chief of the Secret Intelligence Service)
Professor Gwythian Prins (Emeritus Research Professor, LSE and former member of CDS Strategy Advisory Panel)

Foreword

This proposal for a defence treaty between the United Kingdom and European Union has been written because of our profound concern about what the current Political Declaration and Withdrawal Agreement mean for the sovereignty of the United Kingdom, and for our freedoms.

We are promoting this treaty text because we share a passionate commitment to the institutions of a free society and because we recognise the absolute constitutional obligation to execute the People’s Will expressed in the Referendum instruction of 23 June 2016.

The armed forces and the intelligence services are the institutions which, above all others, defend the Realm. National security is, of course, the primary duty of Government. The condition and ultimate oversight of the national defence should be central questions for anyone who is interested in the maintenance of our fundamental freedoms.

In our view, for decades until 2018, the role and control of our armed forces was broadly settled. Under the British constitution, our armed forces receive their commissions from the Monarch and are answerable to the Queen in Parliament alone. That is how sovereign democratic control over our armed forces is maintained in this Realm. But the Government’s conduct of the process of leaving the EU has put all this in question.

The ‘project’ that is now the European Union has nurtured an ambition to expand into the area of defence for almost seventy years, since the failed ‘Pleven Plan’ of October 1950. This longstanding aspiration finally took wing after the UK vote to leave the EU, being fully launched in November 2016 and thereafter vigorously expanded into a ramified web of organisations that together form what EU officials now openly describe as the EU Defence Union.

Having successfully resisted efforts by the EU to push into the defence and intelligence areas for forty years, since May 2018 the UK Government has, bizarrely, agreed to instruments which would subordinate this country to the power of these emergent EU structures. Joining up the dots to reveal the elephant, as we have done, the Withdrawal Agreement, the Political Declaration and linked instruments that have already been agreed can now be seen to compromise United Kingdom control over our armed forces and intelligence agencies. This is a threat to the United Kingdom as a free society. It endangers the freedom of action of our forces in the world, places United Kingdom defence procurement and defence trade relationships under the power of an EU regime of protectionism, and, above all, endangers future Intelligence relationships with our most important Anglosphere allies, including the United States.

Despite the 2010 defence cuts, the United Kingdom remains the only Tier One military power in Europe and, by virtue of its central role in the “Five Eyes” intelligence alliance, by some margin Europe’s most competent and potent producer of all forms of intelligence. These are truly the crown jewels of national security.

The British people voted to leave the European Union in June 2016; but perversely, since May 2018, the Government has reversed its previous position that the United Kingdom would not be involved in EU defence harmonisation. This became clear in an obscure Technical Note of 24 May 2018, and latterly in the Political Declaration and Withdrawal Agreement which declare an ambition for a deep and special relationship with the EU in defence and security, closer than any other third party. Taken together, the government’s material commitments are clear: structural involvement with EU ambitions for an intelligence capability to challenge that of the USA and ‘Five Eyes’, with defence research and procurement across a broad front and with funding of EU military harmonisation. Furthermore, the Government has indicated an intention to bind these commitments into an international treaty very quickly after we leave the EU on 29 March 2019.

Therefore it is in face of this worrying and self-harming prospect that we have prepared and are now publishing the following text, which, unlike the Technical Note of 24 May 2018, the Withdrawal Agreement, and the Political Declaration, will genuinely protect the United Kingdom’s freedoms and national security, and conforms to the aims of the United Kingdom’s departure from the European Union.

We commend it to Government and Parliament and urge its immediate adoption as a safe re-statement of long established tenets that are essential to maintaining the defence of this Realm
6 March 2019.

TREATY BETWEEN THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND AND THE EUROPEAN UNION FOR DEFENCE, SECURITY AND INTELLIGENCE CO-OPERATION CONSEQUENT UPON THE UNITED KINGDOM’S DEPARTURE FROM MEMBERSHIP OF THE EUROPEAN UNION ON 29 MARCH 2019

The United Kingdom of Great Britain and Northern Ireland and the European Union, hereinafter referred to as “The United Kingdom”, “The Union”, and “The Parties”, Pursuant upon the decision of the British people on 23 June 2016 to instruct Her Majesty’s Government to leave the European Union on 29 March 2019, Recalling that their foreign and defence policies are founded on much shared history including the long standing contribution of the United Kingdom to the peace and security of Europe and to many common interests, values and responsibilities today

Determined that in future relationships concerning defence, security and intelligence the United Kingdom will only engage in any co-operation with the European Union in these fields on a case-by-case basis,
Emphasising specifically that in no area of defence, security or intelligence whatsoever will the United Kingdom remain in or become newly subject to any systemic, structural or superordinate structures controlled by the European Union in the emergent EU Defence Union animated by and consequent upon the European Defence Action Plan and the Security & Defence Implementation Plan of November 2016 or any of the EU agencies, plans or structures mandated in the five successive EU Council meetings

Mindful of the universal principle of the prior application by the United Kingdom and many of the remaining Member States of the European Union of the rights and obligations of the North Atlantic Treaty of 1947 (The Washington Treaty) to any arrangements that the Union’s Defence Union may now or from time to time promulgate,
Believing therefore that co-operation between its member states in the fields of security and defence strengthens the North Atlantic Treaty Organisation which remains the foundation of their collective defence and the primary forum for its implementation,

Convinced that bilateral defence and security co-operation between European nation states will reinforce those rights and obligations,
Determined to address strategic challenges, to promote international peace and security, to deter and to dissuade potential aggressors and to counter threats to either Party, including threats from terrorism, the proliferation of weapons of mass destruction, cyber and emergent new forms of attack, Recalling that at all times the design, procurement, command and control of Her Majesty’s armed forces, the decision to employ them and the use of force shall remain a matter of unencumbered national sovereignty for the United Kingdom, Convinced that independent but co-operative technological and industrial defence bases which are robust and competitive are both of strategic and economic benefit for the two Parties,

Have agreed as follows:

ARTICLE 1

Objectives
That the Parties shall undertake to build long-term mutually beneficial relationships in defence, security and intelligence-sharing on the principles established in the recital above:
1. That the Parties may pursue cooperation between the United Kingdom and individual member-states of the Union in external action to address agreed common external threats on a bilateral case-by-case basis under international arrangements, in order to project their common values, in particular the rule of law and representative democracy.
2. That any combined external action between the Parties arising from these ad hoc cooperations will utilise, where appropriate and in logical priority, the existing structures of the North Atlantic Treaty Organisation (NATO) and the United Nations.

ARTICLE 2

Cooperation between the Parties
1. That from 29 March 2019 the United Kingdom will cease to be a Party to the European Union’s Political Dialogue on Common Foreign and Security Policy (CFSP), Common Security and Defence Policy (CSDP), or any of Coordinated Annual Review on Defence (CARD), European Defence Action Plan (EDAP), European Defence Industrial Development Programme (EDIDP), European Defence Research Programme (EDRP), European Defence Technology Industrial Base (EDTIB), European External Action Service (EEAS), European Security and Defence Implementation Plan (ESDIP), the European Union Military Committee (EUMC), the European Security and Defence College (ESDC), European Union Military Staff (EUMS), the Foreign Affairs Council (FAC), Military Planning and Conduct Capability (MPCC), Preparatory Action on Defence Research (PADR), the Political and Security Committee (PSC).
2. That the Parties will shape and pursue their foreign policies according to their respective strategic and security interests, and their respective legal orders. When and where these interests are shared, the Parties may, if and when both Parties wish, cooperate as independent parties at the bilateral level within international organisations.
3. To this end, the future relationship should provide for appropriate dialogue, consultation, and exchange of information through existing international and bilateral fora to which the Parties belong, providing that any and all such cooperation does not in any way prejudice the United Kingdom’s primary and structural defence, security and intelligence relationships through NATO and the “Five Eyes” intelligence alliance.

ARTICLE 3

Sanctions
1. Pursuing independent sanctions policies driven by their respective foreign policies, the Parties recognise sanctions as a useful foreign policy tool and may, where appropriate, apprise each other of their respective positions on sanctions from time to time.
2. This may include the exchange of information on listings and their development, implementation, and enforcement.

ARTICLE 4

Operations and missions
Where interests converge, the United Kingdom may, when it wishes and on a case-by-case basis, aid a mission carried out by one or more Member States of the Union in its capacity as a member of NATO, in a manner that would also be permitted to any other independent NATO member. Such cooperation shall take place on a bilateral basis between the United Kingdom and the Member State or Member States of the Union, or through the shared agencies and standard operating procedures of NATO only.

ARTICLE 5

Defence capabilities development
The Parties agree that their independent capacity to promote research and development within their respective defence industrial sectors will help to promote a more competitive and innovative European and international marketplace. In this regard, both Parties will preserve their respective strategic autonomy and freedom of action, underpinned by their respective robust domestic defence industrial bases. In order to achieve this autonomy of action:
a) from 29 March 2019 the United Kingdom will cease to be a member, associate member, participant in or funder of the European Defence Agency (EDA);
b) from 29 March 2019 the United Kingdom will cease to be a member, associate member, participant in or funder of the European Defence Fund (EDF) or its associated collaborative defence projects;
c) from 29 March 2019 the United Kingdom will cease to fund or participate in any organisations or projects as outlined in Clause 2(1) under or associated with the framework of Permanent Structured Cooperation (PESCO), even if the United Kingdom decides on a bilateral basis to participate in a combined external action with a Member State or Member States of the Union.

ARTICLE 6

Intelligence exchanges
1. The Parties agree that intelligence and national security are reserved sovereign matters for the United Kingdom only on the one hand, and that between the Union and its Member States intelligence and national security rights and responsibilities are allocated in accordance with the Treaty on European Union and the Treaty on the Functioning of the European Union.
2. The Parties may, if and when they wish, agree on a case-by-case basis to exchange intelligence in a voluntary manner, to counter specific threats, in particular in the field of counter-terrorism, hybrid threats and cyber threats. The Parties will produce intelligence products autonomously and at no time will compromise the intelligence gathering and analytical capabilities of the United Kingdom residing in the “Five Eyes” intelligence alliance. Exchange of intelligence between the Parties may not at any time jeopardise the United Kingdom’s position in the “Five Eyes” intelligence alliance, the primary role of NATO in maintaining Europe’s security environment, or another other international defence or security relationship of the United Kingdom.
3. The recipient Party shall not use, or permit the use, of classified information for any purpose other than that for which it was provided, unless it has obtained the prior written approval of the releasing Party.
4. The determination by a Party on the provision of information shall be consistent with that Party’s security interests and shall be at the sovereign discretion of that Party based upon all available information.

ARTICLE 7

Space
1. The Parties may consider appropriate bilateral arrangements under and through international frameworks for cooperation on space, including cooperation between the European Union Satellite Centre (EUSC) and the United Kingdom. Any cooperation will be at the discretion of each Party and on a case-by-case basis.
2. On 29 March 2019, the United Kingdom shall cease to be a member, associate member, participant in or funder of the European Global Navigation Satellite Systems Agency (the “European GNSS Agency”), or the Galileo Global Navigation Satellite System (GNSS, or the “Galileo Programme”).

ARTICLE 8

Development cooperation
1. The Parties, whilst operating and funding independent development programmes, support ad hoc cooperation to achieve common development goals.
2. Where the Parties’ interests coincide, the United Kingdom may cooperate bilaterally on a case-by-case basis with the Union to achieve a common development goal.
3. Such cooperation shall be structured and coordinated under existing international frameworks and the United Kingdom shall not contribute directly to the Union’s development instruments and mechanisms nor permit Union authority in any manner over United Kingdom development funds or programmes.

ARTICLE 9

Cyber security
1. The Parties reaffirm their commitment to promote security and stability in cyberspace. The Parties agree to exchange information on a voluntary, timely and, when appropriate, reciprocal basis, including on cyber incidents, techniques and origin of the attackers, threat-analysis, and best practices to help protect the United Kingdom and the Union from common threats. Such exchanges will be subject to the legal requirements of the providing Party.
2. The United Kingdom may, on a bilateral basis only that respects the United Kingdom’s security interests and separate legal order, choose to cooperate with Union agencies including the Computer Emergency Response Team – European Union (CERT-EU) and the Cooperation Group established under the Union’s Directive on Security of Network and Information Systems and of the European Union Agency for Network and Information Security (ENISA).
3. The Parties may choose to cooperate on an ad hoc basis to promote effective global practices on cyber security in relevant international bodies. Such cooperation does not imply the pursuit of a common or single position.

ARTICLE 10

Civil protection
1. The Parties may cooperate on a case-by-case and time-limited basis in the field of civil protection in respect of natural or man-made disasters.
2. This cooperation shall not include participation by the United Kingdom in the Union’s Civil Protection Mechanism as a Participating State, associate member or third country, nor impose any obligations upon the United Kingdom other than those provided for in international agreements.

ARTICLE 11

Health security
The Parties may wish to cooperate in matters of health security on a case-by-case basis through international fora on prevention, detection, preparation for, and response to established and emerging threats to health security. Such cooperation does not imply the pursuit of a common or single position.

ARTICLE 12

Illegal migration
1. Whilst respecting the Parties’ full autonomy in matters of migration, both legal and illegal, the Parties agree to cooperate on a bilateral basis to tackle illegal migration, including its drivers and its consequences.
2. The Parties agree to place an emphasis on and increase sovereign funding for border security, and will endeavour to prevent all illegal migration and any action that may reward or incentivise people-smuggling or related activities.
3. The Parties shall not fund or otherwise support any non-governmental organisation (NGO), or other organisation which facilitates illegal migration.
4. The United Kingdom may wish to provide information to or involve itself in cooperation with Europol or the European Border and Coastguard Agency on an ad hoc and bilateral basis only.
5. Any cooperation between the Parties to prevent illegal migration shall not preclude independent bilateral cooperation between the United Kingdom and individual Member States on areas of mutual concern.

ARTICLE 13

Counter-terrorism and countering violent extremism
1. The Parties may cooperate on counter-terrorism measures to advance their common security. To this end they should maintain an appropriate and voluntary dialogue to share best practice and expertise on key issues, themes and emerging threats.
2. Any activity between the Parties intended to address violent extremism shall not infringe on rights to freedom of speech, the freedom of the press, democratic pluralism or legitimate and open political debate.

ARTICLE 14

Classified and Sensitive Non-Classified Information
As it deems fit, the UK may conclude bilateral Security of Information Agreements with individual Member States that would provide for reciprocal guarantees for the handling and protection of the signatories’ classified information. Any such agreements shall respect the signatories’ national security interests and separate legal orders.

ARTICLE 15

Related Agreements and Arrangements

The Parties may enter into written agreements or arrangements to implement specific aspects of their co-operation under this Treaty. Such agreements or arrangements shall be subject to the provisions of this Treaty.

ARTICLE 16

Duration, Withdrawal and Termination

This Treaty shall continue in force until such time as either Party decides to withdraw from it after having given the other Party at least six months’ notice of its intention to do so.

ARTICLE 17

Disputes

Any dispute regarding the interpretation or application of the provisions of this Treaty shall to the extent possible be resolved by consultations between the Parties. In the event of failure to resolve disputes, after six months from a mutually agreed failure the treaty shall lapse.

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