Legally and politically important
(a)–(c) Not cleared from scrutiny; further information requested; recommended for debate on the floor of the House (decision reported on 7 September 2016); granted a conditional scrutiny waiver for (a) at the Foreign Affairs Council on 18 October (decision reported on 12 October 2016), but Government overrode scrutiny; (a)–(c) drawn to the attention of the International Trade Committee and the Committee for Exiting the EU
(a) Council Decision on the signing of the Comprehensive Economic Trade Agreement between Canada and the EU and its Member States (b) Council Decision on the provisional application of the Comprehensive Economic Trade Agreement between Canada and the EU and its Member States (c) Council Decision on the conclusion of the Comprehensive Economic Trade Agreement between Canada and the EU and its Member States
Articles 91, 100(2) and 207(4), in conjunction with Article 218(5) (on signing and provisional application) and Article 218(6)(a)(v) and Article 218(7) (on conclusion) TFEU, QMV
(a) (37921), 10968/16 + ADDs 1–16, COM(16) 444
(b) (37922), 10969/16 + ADDs 1–16, COM(16) 470
(c) (37923), 10970/16 + ADDs 1–16, COM(16) 443
1.1Given the fundamental legal and political importance of CETA to the UK, both while it is a Member of the EU and in view of Brexit, the Committee recommended the proposed EU-Canada trade deal (CETA) for an urgent debate on the floor of the House in early September.
1.2The Government overrode parliamentary scrutiny at the Foreign Affairs Council on 18 October as it endorsed the signature, provisional application and conclusion of this deal before MPs had had the opportunity to debate the deal. The Committee called the Secretary of State (Dr Liam Fox) in to give urgent oral evidence on the reasons for the override and its implications for parliamentary scrutiny of trade deals on 26 October.
1.3On 1 November, the Secretary of State provided an update on recent developments (following the oral evidence session) and stressed his commitment to a debate, which he expected to take place “sometime in November”.
1.4At its meeting on 16 November, the Committee:
1.5We thank the Minister for his latest update on CETA. We reiterate the urgency of scheduling the promised debate on the floor of the House as soon as possible, and in advance of the European Parliament giving its consent to the Agreement. While the European Parliament plenary vote has been pushed back from 14 December to 2 February, it is important that the debate is scheduled as soon as possible. We note the Minister’s undertaking that debate will take place before the EP Plenary. A debate scheduled by mid-January 2017 would be desirable and would still be over four months since the recommendation for an urgent debate was first made by the Committee.
1.6We draw the attention of the House to the points set out below, which cover the Government’s position on a range of policy and legal issues previously raised by the Committee, and highlight partial and/or incomplete responses from the Government. These will need to be addressed by the Government in further correspondence ahead of the debate and/or during the debate.
1.7In the meantime, we retain all documents under scrutiny and draw the Minster’s response and our conclusions to the attention of the Committee for International Trade and Committee for Exiting the EU.
(a) Council Decision on the signing of the Comprehensive Economic Trade Agreement between Canada and the EU and its Member States: (37921), + ADDs 1–16, COM(16) 444; (b) Council Decision on the provisional application of the Comprehensive Economic Trade Agreement between Canada and the EU and its Member States: (37922), + ADDs 1–16, COM(16) 470; (c) Council Decision on the conclusion of the Comprehensive Economic Trade Agreement between Canada and the EU and its Member States: (37923), + ADDs 1–16, COM(16) 443.
1.8The background to this trade deal and correspondence between the Government and this Committee, including information about the override and the evidence session with the Secretary of State, as well as detailed information on the legal aspects of CETA (competence for signing, provisional application and disputes about the legality of inclusion of ICS provisions), is covered in the Committee’s previous Report chapters listed at the end of this chapter.
1.9On the scheduling of the debate, the Minister says:
“I recognise that a debate on the floor of the House of Commons is of the utmost importance, and my officials are working with business managers in the House of Commons in order to arrange this at the earliest opportunity. As part of this process, my office provided the Whips Office with a number of dates in November and December. We have been advised this week by our Representation in Brussels that the plenary vote in the European Parliament is likely to be delayed from its originally scheduled date of 14th December, and will not take place until 2nd February next year. However, I’d like to reassure you that we are still making every effort to identify a date as soon as possible, and certainly before the plenary vote in the European Parliament.”
1.10The Minister also apologises for “not explicitly inform[ing] the House of Commons of the decision to override, as is set out in the Scrutiny Reserve Resolution”. He acknowledges that the Written Ministerial Statement by David Jones MP on the Government’s decision to endorse the relevant Council decisions on 18 October at the extraordinary Foreign Affairs Council (Trade) should have stated the override “more clearly”.
1.11The detail of the Minister’s responses to each of the questions raised by the Committee in its previous Report chapter on substantive policy, economic and legal issues are set out below for ease of reference.
1.12On the expected distribution of benefits to the UK of CETA, the Minister says:
“CETA is an important trade agreement for the UK, with potential economic benefits to the UK estimated at £1.3 billion a year while we remain in the EU. These benefits are spread across a wide variety of different sectors, including industrial products, machinery and equipment, financial services and insurance, life sciences, construction, and processed foods. Broader trade cost reductions are also expected from this agreement, which will benefit a broad range of UK businesses and consumers.”
1.13On competence issues and provisional application, the Minister states:
“The issue of EU competence with respect to free trade agreements is of particular relevance currently and there are on-going developments. The Committee will be aware that the Commission has sought an Opinion from the Court of Justice of the EU (CJEU) on where competence lies in the Singapore free trade agreement with a view to concluding future agreements as EU-only. We expect a ruling in the first half of 2017. In relation to CETA, the UK Government was robust in its approach, along with other Member States, to ensure that this agreement was treated as a mixed agreement. As a result, the Commission agreed to treat CETA as a mixed agreement in July this year.
“The UK’s areas of concern relating to competence involved investment (including portfolio investment and the Investment Court System), sustainable development and the environment. In the Council Decision on provisional application, a number of areas are exempted including a large part of the chapter on investment, with those provisions being provisionally applied relating only to foreign direct investment. In particular, the majority of the section on investment protection, including the ICS, is not being provisionally applied, including measures relating to dispute settlement and expropriation. Measures relating to investment protection and dispute settlement for financial services are also excluded. In addition, provisions relating to camcording are not being provisionally applied.
“The Decision also clearly states that provisional application of the measures relating to sustainable development, labour and environment will respect the allocation of competences between the Union and the Member States. It should also be noted that the right to regulate in these areas for Member States is stated in each section and thus protected by CETA. This right is also reinforced in the Joint Interpretative Instrument.
“Therefore, as a result of negotiations in Council, the Council Decision on provisional application does not seek to apply what the UK considers to be unexercised shared competence in these areas. The Council also agreed a statement confirming that only matters within the scope of EU competence will be subject to provisional application. CETA does include areas of exercised shared competence but the EU is not extending its exercise of shared competence into new areas.
“With regards to the triggering of provisional application, the UK is clear that the Council has now agreed to provisionally apply the agreement. Provisional application takes place from the first day of the month following the date on which the Parties have notified each other that their respective necessary internal requirements and procedures necessary for the provisional application of the Agreement have been completed.
“Regarding termination of provisional application, the Council agreed a clear statement that if the ratification of CETA fails permanently and definitively because of a ruling of a constitutional court, or following the completion of other constitutional processes and formal notification by the government of the concerned Member State, provisional application must be terminated. As such, it is clear that an individual Member State has the power to terminate provisional application of this agreement.”
1.14On the Belgian compromise deal, and the Government’s position on Belgian mutuelles (insurance markets) being excluded from market access provisions and on Belgium’s declaration on agricultural safeguards, the Minister states:
“The insurance aspects of the Commission Declaration mean that Belgium will be excluded from the commitments in this area. It will not affect UK access to Canadian markets. In practice this will mean that Canada will no longer have access to the Belgian mutual associations market. The declaration is a statement of the Commission’s interpretation and the way in which it intends to act in relation to this area. This interpretation could be challenged by interested parties in Canada, but it will not impact the UK’s commitments under CETA.
“The declaration from the Council and Commission on agricultural safeguards asserts the right of the EU to use all the safeguard instruments necessary to fully protect all sensitive agricultural products in the Union in accordance with WTO commitments. Though it is unusual to state this in a separate declaration, the content here isn’t exceptional. The CETA text already states that the parties reaffirm their rights and obligations concerning global safeguard measures under Article XIX of GATT 1994 and the Safeguards Agreement, which includes the ability to safeguard domestic industries in certain circumstances. There is no special deal for Belgium agreed here, as Canada and all other Member States would also have the same recourse to these kinds of safeguards. Though the Council or European Parliament may call on the Commission to act, the UK government is clear that it is the Commission that retains the ability to act in terms of applying safeguards.”
1.15On Belgium’s referral of ICS to the ECJ, the Minister states:
“This was a unilateral declaration by Belgium, which merely confirms the right a Member State has under Article 218(11) TFEU to refer an international agreement to the CJEU. The Declaration was not agreed or endorsed by the UK Government. Our view is that in principle it is not incompatible with the EU treaties for an agreement to contain a dispute resolution mechanism for matters arising under the treaty. The UK government has no plans currently to make submissions in this case but we will keep the Committee updated if this position changes. On 23 November, the European Parliament voted by a substantial majority to reject a resolution to refer the ICS to the CJEU.”
1.16On the continuation of mixed agreements, including CETA, beyond Brexit, the Minister says:
“Leaving the EU offers us an opportunity to forge a new role for ourselves in the world: to negotiate our own trade agreements and to be a positive and powerful force for free trade. It would be wrong to set out unilateral positions at this stage.”
1.17 On expected next steps, the Minister notes:
“The agreement is now with the European Parliament for approval. The European Parliament’s plenary vote on CETA was originally scheduled for 14th December, but advice from our Representation in Brussels is that it is now scheduled for 2nd February 2017. Provided that the European Parliament gives its consent within the required timeframe, the EU intends to notify Canada on 17th February 2017 that its requirements for provisional application are complete. Canada is also working towards parliamentary approval of their CETA implementing legislation (currently at second reading stage). This will likely be done early in the New Year, which will be followed by the introduction of relevant regulations. The agreement can then be provisionally applied from the first day of the month that follows this notification by both the EU and Canada. Those areas that are within Member State competence will not be applied until all Member States have ratified the agreement in line with their national procedures, which has to happen before CETA can come into force.”
Tenth Report HC 71-viii (2016–17),(7 September 2016); Thirteenth Report HC 71-xi (2016–17), (12 October 2016); Eighteenth Report HC 71-xvi (2016–17), (16 November 2016).
1 Shared competence can be exercised by either the EU or the Member States.
2 The Commission could, for example, have added the question of compatibility of ISDS in the EU-Singapore Free Trade Agreement to its request in Opinion 2/15, but limited the question to the division/exercise of competence.
9 December 2016