Little known before this week, the European nuclear co-ordination treaty, Euratom, has become the latest dividing line in Brexit negotiations. With consumer fears about life saving cancer treatments being threatened, a commons majority looks to be forming against one of Downing Street's red lines...

As official Brexit negotiations began – with David Davis showing his ‘commitment’ by being on the 11.30 Eurostar back to London on Monday morning – media and Parliamentarians alike have focused on the potential impact leaving European Atomic Energy Community (Euratom), one of the more obscure treaties binding the UK with the European Union (EU).

Crucially, remaining within Euratom would require us to continue to submit to the European Courts of Justice. Confused yet? It's as simple as knowing the difference between nuclear fission and fusion! Exiting Euratom (already awkwardly coined ‘Brexatom’) alongside the triggering of Article 50 was surprisingly announced back in February. Although not a part of the initial negotiations, it has become something of a rallying cry for “remoaners.”

So the Parliamentary battle over future Euratom membership, will become the next litmus test for Brexit negotiations. As the potential impact on our nuclear power and medical capacity is revealed, a weakened No. 10 hopes to retain its one “red-line” negotiating policy against an emboldened Parliament.


Euratom Explained

Euratom was created in 1957, before the creation of the EU. It is therefore a separate treaty to that of EU membership, or indeed an EU exit. It’s core aim is to create “the conditions necessary for the speedy establishment and growth of nuclear industries.” This includes: safeguards, trade, research funding and decommissioning. 

Although a separate Treaty, it is governed through the EU institutions: Council, Commission and most importantly, the ECJ. It is also funded through the European Budget, complicating matters in terms of Brexit as we seek to disentangle from EU financial commitments - the so called 'divorce payment'.

All member states belong to Euratom, even if they do not have a nuclear programme. Switzerland also has associated membership status, along with Ukraine to a lesser extent. In addition to this, the United States, Canada, Australia, Kazakhstan and South Korea have cooperation agreements to trade and help invest in research programmes.


Downing Street Red Line

“So we will take back control of our laws and bring an end to the jurisdiction of the European Court of Justice in Britain. Leaving the European Union will mean that our laws will be made in Westminster, Edinburgh, Cardiff and Belfast. And those laws will be interpreted by judges not in Luxembourg but in courts across this country. Because we will not have truly left the European Union if we are not in control of our own laws.”
Theresa May, Prime Minister of the UK, Lancaster House Speech (17.01.2017)

Leaving the ECJ is the one red-line which May has emphasised again and again since her January 2017 speech. As Euratom is governed and overseen by the ECJ, in the government's eyes it becomes politically essential that we exit Euratom.

This has been backed up on a legal stand-point by the European Commission and Brexit Task Force (led by Michel Barnier), which released its position paper on 13 July: “On the date of withdrawal, the Treaties, including the Treaty establishing the European Atomic Energy Community (the "Treaty" and the "Community"), cease to apply to the United Kingdom.”

However, this legal certainty surrounding Brexatom is under threat from awakening public concerns and a growing political opposition. Most recently in House of Commons debate tabled by Albert Owen MP.


Commons Majority

“We received hard evidence that there is contradictory legal advice on the matter. In fact, the advice is diametrically opposed. Many believe that just because we are a member of the same institution, we must have the same jurisdiction. That is in dispute, and I put it to the Government that there are ways forward that would mean there did not have to be a cliff edge when the article 50 negotiations are complete.”
Albert Owen MP, Euratom Membership Debate (12.07.2017)

Following June’s General Election and the subsequent “confidence and supply” agreement (read £1bn incentive) between the Conservatives and the DUP, parliamentary power has shifted back to those who seek a softer Brexit. The Euratom question has been grabbed as a key battle-ground to push back on the government and force a more collaborative approach to Brussels.

One key factor has been the media focus on the implications of leaving Euratom. Taking the argument out of arcane, constitutional and complex territory - into the consciousness of the general public - with concerns about the impact on radiology treatments for cancer. 

With such emotive headlines, the frailness of May’s government is suddenly in sharper focus. Both Labour and the Lib Dems have come out in support of remaining members of Euratom. Alongside this, nine Conservative MPs have indicated they would vote against 'Brexatom'. The Government's 13 strong Commons majority would be overturned by five, if this issue came to a vote.

Former remainers - or 'soft brexiteers' are starting to feel this is a battle they can win, which would serve as the thin end of the wedge in the wider battle to retain the rule of the ECJ.


Future Options

There are three main options for the UK with regards to Euratom:

1. Full membership

Desired by industry, but politically and legally unlikely. Full membership of Euratom hinges upon EU membership, and the Commission has already outlined (above) that the UK is leaving both the Lisbon Treaty, and Euratom. This echoes with the EU's principle assertion that the UK cannot gain a better deal with Europe outside the Union.

2. Associated Membership

A pragmatic option which means the UK – in essence – become co-signees of Euratom, similar to Switzerland. The challenges with this solution is that the ECJ rules supreme and financial contributions have to be made to the EU Budget. This status also relies on Single Market and Customs Union rules, both of which look likely to be ruled out.

3. Cooperation Agreement

Similar to the US, Canada and South Korea, this avenue would allow the UK to negotiate a bespoke cooperation agreement with the EU. For instance, taking more of an active role in R&D or innovation than the US agreement. This may involve payments into the EU budget – which could be acceptable to Brexiteers if it is ring-fenced for research. It also, of course, could avoid budget contributions and focus on safeguards and fissile trading.

The main challenge here is the timeframe to negotiate such an Agreement. The US-EU agreement took four years (between 1991-1995) … and actually lapsed whilst the Senate voted, meaning nuclear trade was illegal for four months. This could possibly bring the UK nuclear sector to a standstill, whilst negotiations are ongoing.


The Politics

This nuclear debate is just one example of the unforeseen implications of Brexit. The government has admitted that no formal Impact Assessment on 'Brexatom' had taken place prior to the triggering of article 50 in February. The nuclear industry employs over 100,000 people in the UK, has cross-party support, and is embarking on a new era of nuclear power plants. Even Dominic Cummings, former Campaign Director of Vote Leave, called plans to leave Euratom “moronic”.

Any back-tracking on the ECJ issue from No. 10 will be seen as “no Brexit at all”. It will be viewed by Brexiteers as a concession too hard to bear. With both David Davis and Steve Baker now in DexEU, the red-line issue is seen as sacrosanct. However, the parliamentary maths indicates that this is an issue where the government may be forced to be flexible.