The EU’s Delegation to the UK that opened on 1 February 2020 was a symbolic and practical diplomatic response to the UK’s departure from the EU. The Delegation replaced the European Commission Representation office which is hosted by each EU member state.
A dispute between the EU and the UK on the status of the EU’s Delegation in London has been rumbling for over 12 months, and was given extra impetus by the leak of a letter from the EU’s High Representative/Vice President (HR/VP) for Foreign Affairs and Security Policy Josep Borrell to the UK’s Foreign Secretary, Dominic Raab.
The ostensible issue at dispute are the terms of the recognition that the UK, as the host, extends to the EU Delegation, since different arrangements apply to representatives of international organisations. This is, however, a spat over post-Brexit perceptions of status.
As the UK-EU relationship moved to a third country relationship, there was also the replication of the standard third-country diplomatic representation arrangements in Brussels, with the UK’s permanent representation to the EU morphing into the UK Mission to the EU (UK Mis Brussels).
In the UK’s diplomatic language this is a mission to an international organisation with a designated Head of Mission – rather than the designation of ‘Ambassador’ (to another country) or ‘High Commissioner’ (the term used by Commonwealth countries to describe they exchange with one another).
In London the UK Government has so far taken the view that the EU Delegation is the representation of an international organisation, and is to be accorded a status different from embassies that represent other states – including those of the EU27.
The practical consequences for the diplomatic privileges and immunities of the EU Delegation of being designated in this way are relatively minor. The symbolism is, however, significant.
The UK is proposing a different arrangement for an EU delegation from that in place for all the other EU representations in third countries (excepting the EU Office covering the West Bank and Gaza).
Since the EU delegations replaced Commission delegations in third countries under the terms of the 2007 Treaty of Lisbon, the EU has worked hard to ensure that these representations and their staff operate and are treated as embassies.
The difference from those of the member states is that their function is to represent the collective interests of the EU and its foreign policy, which embraces trade and development issues as well as more traditional matters of foreign policy.
The Delegations are intended to be the symbolic and practical manifestation of a greater ambition and activism for the EU in foreign policy that accompanied the revamping of the HR/VP role and the creation of the European External Action Service (EEAS).
In the case of the UK, the Delegation will have an important role in monitoring the UK’s compliance with its obligations under the Withdrawal and the Trade and Cooperation Agreements, facilitating the work of the EU-UK Partnership Council and other committees, and where necessary finalising commitments reached under the agreements that need to be realised.
More generally, alongside the EU27 embassies, it will be the diplomatic eyes and ears of the EU in London, with a role in monitoring politics and policy making, reporting back to Brussels and representing the position of the UK on issues to the UK Government, Parliament and the public.
As an EU member state the UK was a party to the creation of the EEAS and the transformation of what were European Commission delegations in third countries into European Union Delegations.
Their functions were extended from trade and development issues to embrace political reporting and the representation of the EU’s foreign policy positions to third countries.
The UK, despite some reservations about the creation of the EEAS, accepted, for all intents and purposes, that the EU was a diplomatic actor in third counties.
Since June 2016, the UK Government view on the EU more generally, but more particularly on the EU’s role as a foreign policy actor, has undergone an evolution.
As the Brexit process unfolded the position of the UK Government shifted from the view, under Theresa May, of a close EU-UK relationship on foreign and security policy issues, to the position adopted by the Johnson-led Government, which was that there would be no negotiations on a future relationship in this area (despite the ambition to reach an agreement that was set out in the Political Declaration).
It is worth noting, however, that the UK did not break ranks with the other EU member states in early 2019 when they disputed the Trump Administration’s downgrading of the status of the EU Delegation in Washington.
The EU had gained an ‘upgrade’ from international organisation status after extensive negotiations with the Obama Administration in 2016, only for the Trump Administration to reverse the decision on the status of the delegation in March 2019.
Unlike the actions of the Trump Administration, the UK Government has not granted a status which it is now reversing. Rather, it has maintained an argument that the EU Delegation will be treated in the same manner as the representations of other international organisations in London.
The UK Government can, however, be said to be adopting a position on the status of the Delegation which is not consistent with the position that it adopted whist an EU member state.
With the EU-UK diplomatic disagreement now a more prominent public dispute it has already attracted commentary that, on one side, reinforce a narrative of the UK Government acting in bad faith in its relationship with the EU and, on another, that that in its new post-Brexit relationship with the EU it is appropriate for the UK to exercise its prerogatives, including those of diplomatic recognition, in a manner of its own choosing.
The recognition of status may become an issue of extended dispute, or it may be quietly resolved by the British Government adjusting its position.
But is it symptomatic of the future relationship that one of the first major post-transition disputes should be on the symbolic status of the relationship to which they have now transitioned?