5The draft EU-UK Withdrawal Agreement
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Committee’s assessment |
Legally and politically important |
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(c) and (d): Not cleared from scrutiny; (a) and (b): Cleared from scrutiny; further information requested; drawn to the attention of the Committee for Exiting EU |
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Document details |
Proposed Council Decisions on (a) the signing on behalf of the European Union and of the European Atomic Energy Community, of the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (the Withdrawal Agreement); (b) the conclusion on behalf of the EU of the Withdrawal Agreement; (c) Proposal for a Council Decision amending Decision (EU) 2019/274 on the signing of the Withdrawal Agreement; (d) Revised proposal for a Council Decision on the conclusion of the Withdrawal Agreement. |
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Legal base |
Article 50(2) TEU and Article 106a of the Euratom Treaty; enhanced qualified majority of the continuing EU27 Member States pursuant to Article 238(3)(b) TFEU; for (b) and (d) only, EP consent |
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Department |
Exiting the European Union |
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Document Numbers |
(a) (40401),—, COM(18) 833; (b) (40402),—, COM(18) 834; (c) (40534),—, COM(19) 194; (d) (40589),— |
Summary and Committee’s conclusions
5.1Following the agreement of the draft EU-UK Withdrawal Agreement19 in November, proposed Council Decisions for the EU to sign and conclude the Withdrawal Agreement were deposited at our request in Parliament (documents (a) and (b) respectively). We scrutinised those Decisions in our Report of 8 March 2019 “The draft EU/UK Withdrawal Agreement: key legal and political questions”.20 We noted in that Report that the proposed Decision to sign had already been adopted as Decision (EU) 2019/274 on 11 January 2019. A full account of the documents and our questions to the Government on those documents are set out in that Report.
5.2Since the publication of our Report, the Article 50 period has been extended twice. On 22 March 2019 and then on 11 April 2019. The second extension provides that the UK will exit the EU on 1 November 2019 unless both sides ratify the draft Withdrawal Agreement before then, in which case the UK shall exit on the first day of the following month. As the UK has now held elections to the European Parliament,21 the earlier 1 June exit date for failure to hold those elections is no longer relevant. We understand that there is the prospect of legal challenges22 in the UK23 courts to the Article 50 extensions but limit our comments to noting those developments.
5.3As a consequence of the first extension and also in line with the second, the EU has now had to propose technical amendments to the draft Withdrawal Agreement. This is to change the “entry into force” date in Article 185 from 29 March 2019 to one of the following dates, whichever is the earliest:
a)the day after the end of the extended Article 50 period,24 subject to prior confirmation of completion of internal procedures for ratification of the Withdrawal Agreement on both EU and UK sides; or
b)the first day of the month following the receipt of confirmation of completion of the same procedures as (a), in default of which the Agreement would not enter into force.
5.4Changes were also made to Article 2 of the Protocol of Gibraltar, where the date of 30 March 2019 has been replaced by “the date of entry into force of the Withdrawal Agreement”.
5.5These changes appear in the new version of the draft Withdrawal Agreement as published in the Official Journal of the EU, 25 April 2019.
5.6As a result of these changes, the adopted Council Decision for signature needed to be amended by the EU to reflect the new version of the draft Agreement which is annexed to the signature decision and referred to in the conclusion decision. The EU also needed to propose a new Council Decision to conclude the Withdrawal Agreement, to replace the existing proposal. The proposal to amend the adopted Council Decision for signature was itself adopted by the Council on 13 April 2019 and the new proposal to conclude was approved. However, this proposal cannot be adopted until the consent of the European Parliament has been obtained. The Presidents of the European Council and the Commission clarified in their joint letter to the Prime Minister of 14 January 2019 that they are “prepared to sign the withdrawal agreement as soon as the meaningful vote has passed in the UK Parliament”.
The Government’s view
5.7The Government has now provided us with its view of these proposals ((c) and (d)) and/or the preceding proposals ((a) and (b)) in the following two documents:
a)An Explanatory Memorandum (EM) on documents (c) and (d) signed by the Parliamentary Under Secretary of State for Exiting the EU (Mr Robin Walker MP) on 10 May 2019; and
b)The Government’s response to our Report of 8 March 2019,25 now published on the Government’s Cabinet Office website. It consists of a letter from the Secretary of State for Exiting the EU (Rt Hon. Steve Barclay MP) to our Chairman (Sir William Cash MP) dated 13 May. The response also touches on other matters raised by our Report of 8 March which were of wider scope than our technical scrutiny of documents (a)-(d) so we do not report on those here.
The Government’s EM on documents (c) and (d)
5.8We commence by setting out any additional information that the Government provides in the EM of the Permanent Secretary of State for Exiting the EU on documents (c) and (d). The Government notes the amendments to the Withdrawal Agreement we have outlined in paragraphs 0.3–0.4 above and says that they are “technical amendments to the text of the Withdrawal Agreement… required to take account of the revised timetable for the UK’s departure agreed at the meeting of the European Council of 10–11 April”. The Government then simply reproduces “all other information” provided in its EM of 21 February 2019 on documents (a) and (b). As noted in our Report of 8 March, this information just consists of a summary of key provisions in the Withdrawal Agreement. There is no detail on the provisions of the proposed Council Decision to amend Decision (EU) 2019/274 on signature of the Withdrawal Agreement (document (c)) nor the revised Council Decision to conclude the Withdrawal Agreement. The Government reiterates that the Council Decisions will only be adopted “after Parliament has signalled it is content with the Withdrawal Agreement, as required under Section 13 of the European Union (Withdrawal) Act 2018”.
The Government’s response to our 8 March report
5.9As the Government’s response has now been published, we only summarise here the most pertinent aspects which are relevant to our scrutiny of documents (a)-(d).
Signature of the draft Withdrawal Agreement
5.10In response to questions we asked about when the draft Withdrawal Agreement would be formally signed and what the legal effect would be in international law of signature, the Brexit Secretary says:
The steps that must be followed before the UK is able to ratify the draft Withdrawal Agreement are governed by UK domestic law. The Government agrees that the relevant provisions are those set out in section 13 of the European Union (Withdrawal) Act 2018 and in Part II of the Constitutional Reform and Governance Act 2010. However, as the Prime Minister made clear to Parliament on 12 February this year, to complete the process, the Government will make provision in the Withdrawal Agreement Bill to ensure that we are able to ratify on time to guarantee our exit in an orderly way. Clearly, any such legislative provision will require Parliament’s consent.
The Committee is also correct in saying that the draft Withdrawal Agreement has been endorsed by both the UK and the European Council but has not been signed. We agree that signature subject to ratification only creates an obligation to refrain from acting in a way which would frustrate the purpose of the treaty.
At this stage, as the Committee notes, the Withdrawal Agreement represents a version of the text which has been agreed but has not yet been formally signed. The Government’s intention is to sign the agreement after it is approved by the House of Commons.
The original decision on signature was adopted on 11 January 2019. However, the decision on adoption [we assume this is a typo and the Government means “conclusion” instead of “adoption”] has not yet been formally adopted.
Changes to the proposed Council Decision on conclusion between publication and approval
5.11We asked about any changes to the proposed Council Decision on conclusion before its adoption, which seemed to concern various prerogatives of the European Parliament. We asked more generally about the role of the European Parliament in relation to the Joint Committee and how that might argue for some oversight for the UK Parliament with respect to decisions taken in the Joint Committee. The Brexit Secretary’s response is:
On points (a) and (b), internal discussions within the EU are ongoing, but ultimately the role of the European Parliament in this respect is a matter for the EU27 to determine. Similarly, changes made to the proposed Council Decisions are a matter for the EU27. All updated versions are available on the Consilium Website.
On point (c), we have noted that the proposed Council Decisions state that, with regards to the Joint Committee, “the European Parliament shall be put in a position to exercise fully its institutional prerogatives throughout the process in accordance with the Treaties”. The UK Parliament and the EU Parliament will rightfully expect that they will be able to undertake oversight of the work of the Joint Committee. As the exact arrangements for the Joint Committee develop between the UK and the EU, the UK and the EU will need to have further conversations about how best to provide for the necessary parliamentary scrutiny of its operation.
The Government is keen to engage with the Committee, and with Parliament more broadly, on how we can best facilitate proper scrutiny of the activity of the Joint Committee. When we work with the EU institutions to bring the Joint Committee into operation, we should therefore likewise take forward discussions on the appropriate mechanism for ensuring that scrutiny.
Roll-over of EU international agreements during transition (Article 3 of the proposed Council Decisions on conclusion (b) and (d))
5.12We asked the Government whether it agreed with our legal view that third countries needed to acquiesce to the UK receiving the benefits of EU international agreement during the transition/implementation period and that mere notification was insufficient in this respect. The Brexit Secretary responds as follows:
The EU’s notification will cover international agreements entered into by the EU and by which the United Kingdom is covered by virtue of its membership of the European Union, and international agreements entered into by the United Kingdom in its capacity as an EU Member State.
The third countries with whom we have engaged on this agree with the objectives of the notification, and we understand that some intend to make a formal response. In our view, whilst it is open to treaty partners to make a formal response to the notification in writing, so as to evidence the shared intention of the parties that the UK continues to be covered by the agreements, such a response is not a prerequisite for the UK to continue to enjoy rights under such agreements provided that the relevant third country intends the UK to be covered. The shared intention of the parties may be evidenced by other means, including subsequent state practice.
As we continue to work with the EU and third countries on the transition of international agreements, we are happy to inform the Committee, and Parliament more broadly, at the point at which the notification is issued.
The European Arrest Warrant during transition/implementation period (Article 4 of the proposed Council Decision on conclusion)
5.13We asked some questions about the administrative procedures in Article 4 concerning the ability of the continuing 27 Member States to give notification under Article 185 of the draft Withdrawal Agreement that they do not wish to extradite their nationals to the UK as a third country for reasons of fundamental principles of national law. The Brexit Secretary responded:
As set out in your letter, [we assume that the Minister means to refer to our Report here] Article 185 of the Withdrawal Agreement allows the EU, on behalf of any of its Member States (for reasons related to fundamental principles of national law) to declare, at the point of ratification, that those Member States will not extradite their own nationals to the UK under the European Arrest Warrant (EAW) during the implementation period.
Any notifications made under this article would be made privately between an EU Member State, the European Commission and the General Secretariat of the Council as set out in the draft Council Decision of 5 December 2018. Although that Decision initially contained a deadline for declarations of 15 February 2019, a deadline was not included in the final Council Decision.
It is not appropriate for the Government to comment on matters between EU Member States and Institutions. However, Germany has stated publicly that they intend to make a notification under Article 185 because their constitutional law does not permit the extradition of its own nationals to countries outside of the European Union.
We believe it is in the interests of both the UK and EU Member States that important operational capabilities, which are currently provided for by the EAW, are preserved during the implementation period.
UK international agreements within the exclusive competence of the EU during the transition/implementation period (Articles 3(2) and 3(3) of the proposed Council Decision on conclusion)
5.14We asked the Government questions about the EU’s conditions for authorising the UK to bring into force international agreements during the transition/implementation period falling within EU exclusive competence. The Brexit Secretary says in response:
Our view is that the authorisation procedure set out in the Council Decisions will only apply to a limited range of agreements. The Withdrawal Agreement (Article 129 (4)) confirms the UK’s right to negotiate, sign and ratify new international agreements which come into force after the implementation period, even where the subject matter of those agreements would ordinarily be within the exclusive competence of the Union. The authorisation process described in the Council Decisions on conclusion is limited to the agreements which are both in exclusive competence of the Union and which the UK wishes to bring into force during the implementation period.
We are clear that the international agreements we are putting in place as we leave the EU would only come into force when the UK ceases to be a Member State and is no longer bound by EU law at the end of the implementation period, since the notification to third countries provides the basis for continuity for EU international agreements for the duration of the implementation period. There are a limited set of circumstances in which international agreements in Union competence may need to enter into force during the implementation period—and therefore would be submitted for authorisation in advance. We do not currently have plans to use this mechanism, but we cannot rule out the possibility of doing so should circumstances change. We would be happy to update the Committee should those circumstances arise.
5.15He adds in relation to Article 3(3):
The United Kingdom is bound by the terms of the Withdrawal Agreement. It follows that, under article 129(4), the United Kingdom is obliged to seek authorisation from the European Union to enter into agreements which fall within exclusive competence during the implementation period. The Council Decision sets out the procedure that the United Kingdom must follow to seek such authorisation under Article 129(4).
Consequential changes to the draft Withdrawal Agreement and proposed Council Decisions in the light of the Article 50 extension
5.16We asked the Government about what changes would need to be made to the draft Withdrawal Agreement should the Article 50 period be extended, including the “coming into force” provisions. We also asked about whether changes to the duration of the transition/implementation period would be made, given that it would diminish in length with each extension. The Brexit Secretary says that the Government:
…has agreed with the European Commission the limited technical changes necessary to the draft Withdrawal Agreement to reflect the extension of the Article 50 period (as agreed between the United Kingdom and the European Council on 11 April 2019). As well as Article 185, it was agreed that changes were also required in the last recital of the Agreement and in Article 2 of the Protocol on Gibraltar.
Full details are set out in an exchange of letters between Michel Barnier and myself on 11 April 2019, which was separately provided to the Committee on that day.
Articles 126 and 132 have not been amended. Changes to these articles are not necessary in order for the agreement to be able to operate in light of the extension.
Our Conclusions
5.17We thank the Ministers for the new Explanatory Memorandum (EM) on documents (c) and (d) and the letter in response to our Report of 8 March. The letter has provided some of the detail which is lacking in both this current and previous EM26 (on documents (a) and (b)). However, we reiterate the point that this detail should have been provided without prompting. There are matters set out in the proposed Decisions of clear interest to Parliament and should have been addressed in sufficient depth in the EMs.
5.18We note with interest that the new “coming into force” provisions of the draft Withdrawal Agreement are flexibly drafted. This means that they would work not only with the terms of the latest Article 50 extension decision of the European Council, but with possible further extensions in the future. We contrast this with the fixed date and time approach taken in the case of the current “exit day” Statutory Instrument.27 This adopts 31 October 2019 (11pm) as exit day mirroring the end-date to the second extension to the Article 50 period.
5.19We turn to the Government’s concession that the UK “has to follow” some of the administrative procedures set out in the revised Council Decision on conclusion (see paragraph 5.15 above, in relation to Article 3(3)). In the light of this concession, we return to an area of questioning in our last Report which remains unanswered. What is the nature of this obligation? Does the Government accept that the proposed Council Decisions are legally binding on the UK? If they are legally-binding, is this as a matter of EU or international law or both?
5.20On the question of whether the UK can enjoy the benefits of EU-third country international agreements during the proposed transition/implementation period without specific third country agreement, we note the Government’s relaxed position that “subsequent state practice” can suffice under international law as evidence of a third country’s intention the agreement should continue to cover the UK. We ask the Government for a more detailed legal explanation of this position so that we can be convinced that this approach is legally robust.28 What would happen in the event that a third country refused to continue to apply the terms of the agreement to the UK?
5.21We refer to the Government’s response to questions we asked in our last Report about the role envisaged for the European Parliament (EP) in relation to the Joint Committee (see paragraph 5.11 above). As a further development we note the announcement on 16 April of the President of the Commission of a Commission Declaration on practical arrangements for involving the EP in the operation of a ratified Withdrawal Agreement, including decision-making in the Joint Committee. In particular, it addresses the role of the EP concerning key decisions in the Withdrawal Agreement relating to:
- the extension of the transition period and the determination of the UK’s corresponding financial contribution (Article 132);
- the abolition of the independent authority supervising the UK’s compliance with its obligations on Citizens’ Rights (Part 2); and
- the decision to terminate the backstop (Article 20 of the Ireland/Northern Ireland Protocol).
In relation to those agreements, the declaration commits the Commission to informing “sufficiently in advance the European Parliament of its intention to present a proposal for a decision on the position to take in the Joint Committee and of the gist of its envisaged proposal”. It further commits to taking “utmost account of possible comments of the European Parliament in that respects”. If it does not follow the EP position, it undertakes “to explain the reasons for which it did not”.
This appears to go beyond the usual role of the European Parliament as determined by the combined effect of Articles 218(9) TFEU29 and Article 218(10)30 TFEU in terms of the EU’s participation in the governance body of international agreement between the EU and a third country (usually a Joint Committee). We ask the Government whether it considers this Declaration to be in accordance with the strict legal position concerning the EP’s role in relation to a ratified Withdrawal Agreement and what they will do to ensure that the UK Parliament has at least an equally influential role relating to the UK’s participation in the Joint Committee.
5.22Documents (a) and (b) are no longer relevant to our scrutiny since they have, in practice, been superseded by documents (c) and (d) in the wake of the two Article 50 extensions. We therefore clear documents (a) and (b) but retain documents (c) and (d) under scrutiny pending the Government’s further response. We draw the documents and this chapter to the attention of the Committee for Exiting the EU.
Full details of the documents
(a) Proposal for a Council Decision on the signing on behalf of the European Union and of the European Atomic Energy Community, of the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community: (40401),—, COM(18) 833; (b) Proposal for a Council Decision on the conclusion of the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community: (40402),—, COM(2018) 834; (c) Proposal for a Council Decision amending Decision (EU) 2019/274 on the signing, on behalf of the European Union and of the European Atomic Energy Community, of the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community: (40534),—, COM(19) 194; (d) Revised proposal for a Council Decision on the conclusion of the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community: (40589),—.
Previous Committee Reports
(a) and (b): Fifty-eighth Report, HC 1798 (2017–19), 8 March 2019: (c) and (d):—
19 The draft Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Committee, 14 November, accessible from the website of the Department for Exiting the EU. After legal scrubbing, it was subsequently published in the Official Journal of the EU on 19 February 2019.
21 The European Parliamentary Elections (Appointed Day of Poll) Order 2019 was laid in Parliament on 8 April and came into force on 10 April. This provides for European elections to be held on 23 May in the UK. Although the Explanatory Memorandum to the order states that it is not inevitable that the elections will be held, the Government has now conceded that the draft Withdrawal Agreement will not now be ratified in time. This was confirmed by David Lidington MP on 7 May on BBC news.
22 We are aware of one set of active proceedings: Claim No: CO/1322/2019: The Queen (on the application of English Democrats) and The Prime Minister and the Secretary of State for Exiting the EU. There is no public information yet about the progress of the challenge referred to by Sir William Cash MP in his article for the Telegraph dated 20 April 2019.
23 Strictly speaking, the Administrative Court of England and Wales.
24 The precise wording of the text for this possible date of entry into force reads “the day following the end of the period provided for in Article 50(3) TEU, as extended by the European Council in agreement with the United Kingdom, provided that, prior to that date, the depositary of this Agreement has received the written notifications by the Union and the United Kingdom regarding the completion of the necessary internal procedures”.
25 Fifty-Eighth Report, HC 1798 (2017–19), 8 March 2019 “The draft EU/UK Withdrawal Agreement: key legal and political questions”.
26 Explanatory Memorandum of the Secretary of State for Exiting the EU (Steve Barclay) of 21 February 2019.
27 The European Union (Withdrawal) Act 2018 (Exit Day) (Amendment) (No. 2) Regulations 2019.
28 We note page 386 of Brownlie’s Principles of Public International Law on the modification of Treaties. Referring to the first draft Articles of the International Law Commission which led up to the Conference at which the Vienna Convention on the Law of Treaties1969 was agreed, it states “The ILC’s Final Draft provided that a “treaty may be amended by subsequent practice in the application of the treaty establishing the agreement of the parties to modify its provisions. This was rejected at the Vienna Conference on the ground that such a rule would create instability. This result is unsatisfactory. First, Article 39 provides that a treaty may be amended by agreement without requiring any formality for the expression of agreement. Secondly, a consistent practice may provide cogent evidence of common consent to a change. Thirdly, modification of this type occurs in practice. The process of interpretation through subsequent practice is legally distinct from modification, though the distinction is often rather fine”.
29 Article 218(9) TFEU sets out a power for the Council to establish “positions to be adopted on the Union’s behalf in a body set up by an agreement when that body is called up to adopt acts having legal effects with the exception of acts supplementing or amending the institutional framework of the agreement”.
30 Article 218(10) TFEU provides that “The European Parliament shall be immediately and fully informed at all stages of the procedure”.
Published: 11 June 2019