Answer: MPs will NOT get a vote on the defence treaty. Many MPs don’t even know there’s a treaty looming.
The May Government and EU Commission will have known at an early stage, when they planned the defence part of the negotiations in 2016, that MPs might stop a transfer of defence powers, therefore the defence treaty was lined up after 29 March 2019. We’ve known since late 2017 that this treaty would be cleverly placed in the transition period. Why?
A treaty concluded after the start of the transition phase can be assured of bypassing the democratic process. Let us explain: After the UK has formally left EU membership, any new agreement between the UK and EU is an international treaty which is concluded by ministers using ministerial, or ‘prerogative’ powers delegated by the Crown. Up to 29 March, any such agreement would be a supranational agreement where UK ratification can be scrutinised and rejected by MPs.
We know exactly what will be in this treaty despite Government claiming for more than a year that it either does not know or will not commit to knowing because they claim it is yet to be negotiated. The reason the treaty detail is known is that the basics of UK participation are spelled out in detail in the Political Declaration and the Chequers Plan before that and the rest is found in the EU’s participation criteria for countries seeking the kind of participation the May Government has described. Parts of these participation criteria are found in the Withdrawal Agreement, such as the UK’s commitment to the EU Defence Procurement Directive, which harms UK industry by preventing government from keeping strategically important defence contracts in the UK.
Although Government has publicly denied the full sellout, officials from the Cabinet Office and MOD have privately revealed that the UK would in effect continue as a member state in defence and security, with all the continued amalgamation this entails. Meanwhile, personnel from the Foreign Office have publicly conceded that the participation criteria for UK involvement cannot be amended by negotiation and senior officials in the EU institutions have confirmed from the same.
The only way to stop the giveaway of defence powers via May’s forthcoming defence treaty is to completely block May’s deal or replace a significant mass of the ministers and crucially the officials who have been driving this through.
However, even if May’s deal is defeated, its defence parts could be taken up again by a determined remainer government acting for the EU Commission and placed into a treaty separate from any exit deal, though this would become a little more difficult as it would require an amendment to internal UK legislation which MPs could block.
What structures will be contained in the defence treaty?
It will contain associated status with the European Defence Agency via an agreement and commitment to EDA rules, programmes and benchmarks. It will contain ‘associated third-country’ status with the European Defence Fund and therefore European Defence Industrial Development Programme contained within it. As a result of EU participation requirements for these structures, the UK will need to make financial contributions and remain under Common Foreign and Security Policy and therefore Common Security and Defence Policy (CSDP) contained within it.
There would also be data and intelligence sharing agreements linked to the UK’s obligations under the authority of CSDP. In 2018, the UK is already in these structures which comprise the vast majority of EU military unification frameworks. They relate to all these linking parts: multiple funding streams, budgetary coordination, defence policy, defence industrial programmes, defence directives and the link between defence and foreign policy.
The only part the UK has not yet joined is the set of operational harmonisations known as Permanent Structured Cooperation. It seems odd that May would choose to join the rest of military unification, but not this part. After all, the rest is massive and May has even placed the UK into the costly trial programmes associated with the agreements and is openly preparing to lock us into permanent attachment.
Why therefore would she have kept us out of Permanent Structured Cooperation? The reason is that it was impossible for the May Government to have used the same false excuse it used for joining the rest.
That excuse went as follows: it would be inconvenient and bad faith for the UK to use its national veto at the EU Council and we don’t want to hold up ‘their progress’ in frameworks in which we would not play a part. The UK also wanted to ‘contribute to the conversation’ so that the resulting structures did not overlap with NATO or prevent the involvement of non-EU allies.
This excuse would never have worked because Permanent Structured Cooperation was not an EU Council decision and therefore the UK was not obliged to choose between joining it or using the veto. UK involvement would have been a voluntary step and therefore joining would have been far too brazen a step and would have revealed the Government’s intention for defence attachment too early and given the game away.
It was already clear to us in late 2017 that the May Government had no intention of allowing the UK to leave the design for EU authority in defence. However, throughout 2018 it was increasingly impossible for the Government to deny the individual components. When these became clear in Chequers and the exit arrangements they were still not understood by many MPs or the media. They had been satisfied a year earlier with the Government’s excuse that we would not be in an institutional attachment to the EU’s defence authority, yet here was the Government scrapping that commitment. Most MPs and media had been persuaded in 2017 that they didn’t need to understand the vast topic so were not prepared to react to the all-too-predictable change of tack in 2018.
In the last paragraph, we say the May Government ‘had no intention of allowing the UK to leave the design for EU authority in defence’. That is written in intentionally specific language, ‘the design for EU authority in defence’ because while EU political authority over defenceis a technical reality for its participants, it mostly has not yet been activated or empowered by finance. Serving officers from Aldershot to Athens would insist that the EU has little to no role in their daily lives in 2018, but this is simply because they have not yet seen the effects of what now exists at a political level.
May’s decision to avoid joining Permanent Structured Cooperation at its inception in November 2017 was a purely cosmetic exercise to avoid having to answer difficult questions and avoid revealing her true intentions. Sure enough, Chequers and the Political Declaration later gave the game away by committing the UK to a fantasyland ‘ad hoc’ involvement in Permanent Structured Cooperation. No such involvement can exist for a structure which the EU admits is integrative and is designed to allow member state armed forces to coalesce under new techniques, logistics hub, protocols, processes and pieces of equipment. Uniquely in the UK, Permanent Structured Cooperation has been sold as a kind of defence industrial ‘club’ where you turn up if you want to and play by the rules only when you feel like it.
In truth, while the EU might permit the UK to believe it is operating in Permanent Structured Cooperation on an ad hoc basis, the rule-book for involvement applies all the time. Because of the links between Permanent Structured Cooperation and the full range of other structures, policies, rules and payments, UK involvement would require attachment to the rest. This is the same principle as UK involvement in the European Defence Fund.
The principle of ‘ad hoc involvement’ will in any case be a simple veneer to create because it is barely any different to the way existing participant member states are involved in the structure. The projects of Permanent Structured Cooperation are led by one member states and several others fall in behind it. Each member state is involved in one or more but not all, yet the resulting technology or policy or field medical command unit will involve and be applicable to all through their CSDP and financial commitment. Permanent Structured Cooperation is defined in articles 42(6) and 46 of the Treaties on European Union (TEU) and Protocol 10 TEU.
It’s worthwhile to say that Theresa May’s agenda in pushing for UK involvement in defence integration does not appear to be entirely supported by the current Secretary of State Gavin Williamson, nor by serving senior officers. Instead it has been driven by Sir Alan Duncan who delivered information on the subject to Parliamentary committees in his role as a foreign minister under Boris Johnson, albeit this information was provided in an obscenely abbreviated and misrepresented fashion and so late that it breaches specific Parliamentary codes relating to ministers’ agreement to EU defence arrangements. He should have been hauled in front of Parliament on numerous occasions and told to desist. However MPs and Parliamentary staff had their eye off the ball and this didn’t happen. Most of the ‘joining phase’ of May’s defence giveaway was conducted by staff in Boris Johnson’s Foreign Office between September 2016 and September 2017.
