27th February 2020
The Political Declaration is a formal, negotiated document agreed between the United Kingdom and the European Union.
It is a serious document, to be taken seriously.
The United Kingdom government says itself on its website:
“The new Political Declaration sets out the framework for the future relationship between the European Union and the United Kingdom and reflects the Government’s ambition to conclude an ambitious, broad, deep and flexible partnership across trade and economic cooperation with the EU, with a free trade agreement with the EU at its core, alongside agreements on security and other areas of cooperation.”
The Political Declaration, however, is not legally binding.
And there is now a suggestion that the United Kingdom government can and should disregard the commitments set out in the Political Declaration.
There have been, broadly, two responses to the United Kingdom government apparent desire to breach the terms of the Political Declaration.
The first is first is to say that as the Political Declaration is not binding then it does not matter if it is breached, casually or otherwise.
The second is to say that the Political Declaration is a formal and negotiated document, and that it does matter if it is breached.
These two views appear to be be in conflict to the point of contradiction.
And if they are in conflict then the question becomes which is the better view.
The two responses are not actually in conflict as they are dealing with different things: there is therefore no hard contradiction.
But the better view is that the Political Declaration should be taken seriously – even if it is not binding.
Indeed, that the Political Declaration is not binding makes it more important that the government takes it seriously.
What does it mean for a formal commitment to be “binding”?
Not all formally negotiated documents are (legally) “binding” – so what is it which gives them this quality.
In general terms “binding” means that there are formal sanctions available in the event of the breach.
These sanctions may not necessarily require the party in breach to specifically perform the commitment.
The sanction may be that the other party can terminate the agreement, or that there is some remedy or benefit for the other party.
But whatever the sanction, the notion is that the agreed commitment can be enforced against the party in breach so that the other party does not suffer the disadvantage of the breach.
Making a commitment (legally) binding is one way of showing that the party undertaking the commitment is being serious.
In foreign affairs and international politics, however, a preoccupation with whether a formal serious commitment is “binding” or not is in good part a legalistic red herring.
A serious formal commitment is intended to be taken seriously and formally: that is its very point.
And this is regardless of whether it is technically “binding”.
Resiling from an obligation on the technicality that it is not legally binding is not to take such a commitment seriously.
(A useful comparator are the United Kingdom’s pre-Brexit financial commitments to the European Union – there were question marks over whether they were legally binding – how could they be litigated? which court? – but this was not the point: the United Kingdom had made a commitment and was expected to stick to it.)
All this said, there may be a good reason for a country to depart from a formal serious undertaking.
And both the United Kingdom and the European Union knew that the Political Declaration was not (legally) enforceable.
Both sides accepted it could and would be departed from, in certain circumstances.
The crucial question would be: how and on what basis?
And in this way, the Political Declaration is, in effect, a test for a post-Brexit United Kingdom.
How seriously does the United Kingdom take non-binding commitments and assurances?
Do the words matter?
The less seriously the United Kingdom takes non-binding commitments, the stronger the signal to the European Union that anything important needs to be tied down in strict legal provisions.
This is why the daft posturing of the United Kingdom about casually breaking the the Political Declaration matters.
It matters as much, if not more, than if the Political Declaration was “binding”.
In effect: the Unite Kingdom is sending a signal of “don’t trust us, insist on strict legal obligations”.
And this signal is not just being sent to European Union – the signal is now being broadcast to every nation in world, to all the countries where, post-Brexit, United Kingdom may want to have “trade agreements”.
The United Kingdom may think it is saying to EU “screw you” but in fact it is telling the world “screw us”.
Brexit was an opportunity for the United Kingdom to show the world how serious it was about having an independent trade policy.
Instead, the United Kingdom keeps showing the world how lacking in seriousness it is in entering international commitments
One day this lesson of moral hazard will be learned – if not by current ministers then it will be understood by future ones.
But that may be too late, as something important will already have been lost, and it will be hard to regain.
The United Kingdom government is still not taking Brexit seriously.
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