Legally and politically important
(a) Not cleared from scrutiny; further information requested; drawn to the attention of the Defence and Foreign Affairs Committees; (b) Cleared from scrutiny
(a) Council Decision on the conclusion of the Partnership and Cooperation Agreement between the EU and its Member States, of the one part, and the Republic of Iraq, of the other part; (b) Joint Communication to the European Parliament and the Council: Elements for an EU strategy for Iraq
(a) Articles 91, 100, 207, 209 TFEU in conjunction with Article 218(6)(a) TFEU; unanimity; (b)—
Foreign and Commonwealth Office
(a) (39481), 10209/12/REV1; (b) (39409), 5148/18, JOIN(18) 1
7.1The EU and its Member States signed a Partnership and Cooperation Agreement with Iraq in 2012. The objectives of this Partnership are:
7.2Certain elements of the PCA have been provisionally applied since August 2012:
7.3The Titles covering (a) political dialogue and cooperation in the field of foreign and security policy and (b) justice, freedom and security have not been provisionally applied.
7.4The full conclusion of the Agreement was ‘parked’ after it was signed in 2012, while the EU’s individual Member States ratified the treaty at national level. In the intervening period, the Foreign Affairs Council has endorsed two separate EU strategies for engagements with Iraq to reflect developments in the political and security situation in the country (in particular the annexation of parts of its territory by Da’esh, and their subsequent recapture by the Iraqi Government with western support). The latest Iraq Strategy was proposed by the European External Action Service in December 2017, and endorsed by the Foreign Affairs Council—including the UK—in January 2018 (see paragraphs 7.28 to 7.33).
7.5Separately, after Ireland became the last Member State to ratify the EU-Iraq PCA in summer 2017, the Council initiated the formal process to enable the EU to conclude (ratify) the PCA.
7.6The draft decisions enabling the EU to sign the PCA and earlier versions of the proposal enabling the EU to conclude it were embroiled in legal uncertainty as to whether the UK opt-in under Protocol 21 was engaged in respect of the provisions of the PCA relating to justice, freedom and security (for which EU competence is found in Part Three Title V TFEU relating to an area of freedom, security and justice). The Government consider that if an agreement covers subject matter falling within Title V (other than provisions which are merely aspirational or do not involve any concrete obligations), then the UK opt-in is engaged. Our predecessor Committee, ourselves, and the EU institutions consider that the UK opt-in is not engaged unless the EU Decisions, either authorising signature or conclusion, have a Title V TFEU legal base.
7.7In the event the Government secured a Title V legal base to the Decision authorising the EU to sign and provisionally apply the PCA insofar as the agreement concerned readmission, and so there was no doubt that the UK opt-in was engaged, at least to that extent. It does not appear to have been exercised. Subsequently case law of the Court of Justice has made the addition of a Title V legal base for this proposal untenable.
7.8Therefore, the current position is that the EU Council has submitted a revised draft of the Council Decision to the European Parliament for its consent for the adoption of the proposal. The text of the draft is not available, but the Explanatory Memorandum from the Minister (Sir Alan Duncan) indicates that the legal bases are different from the original 2010 Commission proposal.
7.9On 13 February the Minister wrote to us indicating that he would be overriding scrutiny at the Council on 15 February to approve a request for the consent of the European Parliament to conclusion of the Agreement, with no indication why this matter had become urgent, but indicating that the Explanatory Memorandum had passed scrutiny in the Lords.
7.10We note that the decision to seek the consent of the European Parliament on the EU-Iraq CPA was an override of scrutiny, and that this matter has been outstanding for several years. The consent of the European Parliament is not going to be obtained quickly as it normally takes several months.
7.11In his Explanatory Memorandum of 1 February, the Minister (Sir Alan Duncan) gave no indication of urgency and merely indicated that the draft Council Decision would be adopted by the EU once the UK lifts its scrutiny reserve. We consider the explanation for the override of scrutiny inadequate, particularly in the light of his Explanatory Memorandum. It does not give any explanation at all why it was necessary for the UK to suddenly lift its scrutiny reserve.
7.12We ask the Minister to provide an assessment of the success or otherwise of those parts of the PCA that have been provisionally applied since 2012.
7.13In relation to the opt-in we ask the Minister (Sir Alan Duncan) to confirm whether or not the UK still asserts that the UK opt-in is engaged despite the UK acceptance that there should be no legal base from Title V TFEU. If so, can he indicate the provisions of the PCA in respect of which the opt-in is asserted, how this is reflected in the legal text, and whether or not the UK intends to opt-in.
7.14This is a mixed agreement signed by both the EU and the Member States separately, each exercising competence over parts of the PCA. The 2012 Decision does not give any indication of the provisions of the PCA where the EU is exercising competence and the provisions where the Member States are exercising competence. This lack of transparency impacts adversely on the Government’s policy that normally the EU should only exercise competence in respect of provisions over which it has exclusive competence, leaving Member States to exercise provisions which are shared competence. We therefore ask the Minister to indicate whether the text submitted to the European Parliament indicates or delimits the extent to which the EU is exercising competence; and if not whether he intends to take any steps, such as a minute statement, to make it clear that the UK considers that the EU is only exercising exclusive competence.
7.15We also ask whether the UK has taken any steps to continue the PCA on a bilateral UK-Iraq basis after the UK’s exit from the EU or after the expiry of any transitional/implementing period. In the meantime the proposal for a Council Decision remains under scrutiny.
7.16We thank the Minister for his Explanatory Memorandum on the EU’s new Iraq Strategy. We note that it was endorsed by all EU countries at the Foreign Affairs Council on 22 January 2018. We are content to clear the document from scrutiny.
7.17The Iraq Strategy itself does not raise any immediate issues for the UK in the context of Brexit. However, the Strategy will need to be implemented—for example through the EU’s Development Cooperation Instrument and its successor programme from 2021 onwards—in the coming years. Despite the UK’s interest in ensuring these policies are implemented in a way that complements its own strategic objectives, it does not appear the UK will be represented—even in a non-voting capacity—in the EU’s foreign policy structures during the post-Brexit transitional position. This would mean there will be no UK voice on the Foreign Affairs Council; the Political and Security Committee; or the EU Military Committee, and the Government will be unable to veto new Common Foreign & Security Policy (CFSP) initiatives.
7.18Moreover, as we have stressed before, the exact implications of Brexit for the UK’s foreign policy cooperation with the EU beyond the transitional period also remain unclear. While the Government has called for an “unprecedented partnership” with “continuous, transparent and automatic access” to the EU’s foreign policy decision-making mechanisms, there is no detail yet about the institutional or legal mechanisms to make this a reality. The Foreign Office and the Department for International Development has expressed an interest in being able to participate in the EU’s external funding programmes and CFSP missions “on a case-by-case basis”. In this respect, the Committee will apply intensive scrutiny to the negotiations on the “Global Europe” heading in the post-2021 Multiannual Financial Framework, to assess the opportunities for continued UK participation after Brexit—and any requirements the EU may establish as regards, for example, a financial contribution.
7.19More generally, considering its remit, the Committee will keep a close eye on the negotiations on a new defence and security agreement with the EU, and the legal, policy and financial implications of any continued alignment with EU foreign policy.
7.20We also draw these developments to the attention of the Foreign Affairs Committee and, in light of the UK’s significant military presence in Iraq, the Defence Committee.
(a) Council Decision on the conclusion of the Partnership and Cooperation Agreement between the EU and its Member States, of the one part, and the Republic of Iraq, of the other part: (39481), 10209/12/REV1; (b) Joint Communication to the European Parliament and the Council: Elements for an EU strategy for Iraq: (39409), 5148/18, JOIN(18) 1.
7.21Following the formal withdrawal of US troops from Iraq in 2011, the security situation in the country deteriorated. Sectarian violence intensified between Shia and Sunni groups. In parallel, neighbouring Syria descended into civil war between various factions, among them the so-called Islamic State (known as ISIL or Da’esh) which aimed to establish a caliphate.
7.22In 2014, Da’esh’s activities spilled over from Syria into Iraq as they took control of Mosul, Tikrit and other cities in the country’s west and north-west. In response, the US sent troops to prevent any further encroachment into Iraqi territory, and conducted air strikes against the insurgents. Iraqi forces—with international support, including from the UK—have begun to retake territory from the insurgents in recent months.
7.23The Foreign Office recently summed up the current situation in Iraq as follows:
“The military campaign to defeat Daesh has gone as well as could be expected: the Caliphate no longer exists; Mosul (and Raqqa) are liberated; and the Iraqi Security Forces are increasingly capable and mature. But the underlying political and economic grievances which led to Daesh’s rise remain unaddressed and there is a risk of Daesh, al-Qaeda or something like it, re-emerging and again threatening the UK and our interests in the region. If we are to protect the UK we need to get Iraq on—and keep it on—a path towards stability.”
7.24The EU and its Member States take a strong interest in returning Iraq and the wider region to stability and promoting its economic and political development.
7.25The day-to-day bilateral EU-Iraq relationship is underpinned by a Partnership and Cooperation Agreement (PCA), which has been partially in force since August 2012 pending its formal conclusion (ratification) by all Member States and the EU itself. The PCA established the legal framework for improving cooperation in a range of areas, including trade relations and regulatory cooperation. In early 2018, the EU began taking the necessary procedural steps to conclude the Agreement on behalf of the EU following its ratification by the last EU Member State (Ireland) in summer 2017 (see paragraphs 7.34 to 7.35 below).
7.26The EU has also had a presence on the ground in Iraq in view of the political and security situation. An EU civilian mission to improve adherence to the rule of law in Iraq, called Just-Lex, operated from 2005 until 2013. In August 2014, the European Council said it was “determined to contribute” to countering Da’esh in Iraq and Syria. It did so in response to the deterioration of the security and humanitarian situation in Iraq as a result of the occupation of parts of their territory by the self-styled Islamic State in Iraq and the Levant (ISIL); the indiscriminate killings and human rights violations perpetrated by this and other terrorist organisations, by describing the creation of an Islamic Caliphate in Iraq and Syria; the Islamist-extremist export of terrorism on which it is based, as a direct threat to the European security.
7.27The Council subsequently adopted an EU Strategy towards Syria and Iraq in 2015, which focused on countering Da’esh; providing humanitarian assistance where necessary; and preventing spill-over of the conflict in the wider region. Following a request by the Iraqi authorities, in summer 2017 the EU established an Advisory Mission in support of Security Sector Reform in Iraq (EUAM Iraq), with the UK’s support. Its focus is on the provision of strategic advice to the Iraqi Ministry of Interior and Office of the Iraqi National Security Adviser, including supporting implementation of Iraq’s National Security Strategy. EUAM Iraq’s initial mandate is for one year, with a budget of €14 million (£12.6 million), with a review of its operations due by the end of 2018.
7.28Following the success of Iraqi forces in recapturing territory from Da’esh, EU Foreign Ministers at the Foreign Affairs Council on 19 June 2017 tasked the European External Action Service (EEAS) and the European Commission to produce a strategy which gives guidance on the next steps in the EU’s engagement with Iraq. A Joint Communication to that effect was published on 8 January 2018. The “ Elements for an EU strategy for Iraq” described three main purposes:
7.29The principal elements of the strategy are to address the challenges that Iraq faces in political, economic and security terms. It wants to do so by helping the Iraqi Government to protect its territorial integrity, strengthen its political and judicial systems, and promote sustainable economic growth. The EU also wants to establish a “migration dialogue” with Iraq, in view of the fact that one in ten of those seeking asylum in the European Union are Iraqi nationals.
7.30Specific policies the European Commission proposed to implement the Strategy include:
7.31The Joint Communication was endorsed unanimously by the EU’s Member States at the 22 January Foreign Affairs Council. The Minister for Europe (Sir Alan Duncan) submitted an Explanatory Memorandum on the proposed Strategy the following day. In it, he noted that the Government has three priorities in Iraq:
7.32The Minister added that the UK cannot achieve any of these objectives alone and must continue to work closely with its international partners in Iraq, such as the US, France and Germany, but also international organisations including NATO, the UN and the EU. With respect to the latter, the Minister states that the new EU Iraq Strategy “complements and supports” the UK’s own strategic objectives in Iraq. He singles out a number of areas where the Government believes the EU can “add significant value”, such as judicial reform, rule of law, and civilian security sector reform. He notes:
“[The Strategy] also underlines [– as the UK has done -] the need for enhancing coordination with other actors on the ground, such as the Global Coalition and NATO, while recognising that ultimately all solutions must be Iraqi owned and led. As a result, the Government supported the new strategy as the framework for the EU’s future engagement in Iraq [when it came before the Foreign Affairs Council in January 2018.]”
7.33The Minister added:
“The EU has an important role to play in enhancing the capacity of the Government of Iraq to ensure that all Iraqis have access to security, justice and government services. Under the EU-Iraq Partnership and Cooperation Agreement, the EU is already working to enhance the Rule of Law in Iraq and we expect the EU Iraq Strategy to open new opportunities for the EU to provide additional capacity building support to the executive, with a particular focus on the civilian security sector, political and economic reform, and the immediate stabilisation of liberated areas.”
7.34As part of the Strategy, the EU is also formalising the conclusion of the EU-Iraq Partnership and Cooperation Agreement (PCA) so that the remaining elements of the Agreement. This follows the ratification of the Agreement by the last Member State to do so (Ireland) in July 2017. In his Explanatory Memorandum on the conclusion of the Agreement, the Minister for Europe (Sir Alan Duncan) stated:
“The EU-Iraq PCA was signed on 11 May 2012. It provides a legal framework for the EU, its member States and Iraq covering issues such as regular political dialogue, trade relations, and development assistance. The PCA also provides for regulatory cooperation in the fields of energy, transport, investment, human rights, education, science and technology, justice, migration and asylum. Although ratified by all EU Member States except Ireland, the agreement is yet to be formally adopted by the EU Council.
“The PCA was laid before Parliament as a Command Paper on 22 November 2013 for 21 sitting days as required by the Constitutional Reform and Governance (CRaG) Act 2010. It cleared parliamentary scrutiny and no objections were raised. An Order specifying the PCA as an EU Treaty was laid before Parliament on 9 June 2014, and debated in the House of Lords on 1 July 2014 and the House of Commons on 7 July 2014. It passed both Houses, and was then considered and approved by the Privy Council at their meeting on 16 July 2014.
“The agreement is now ready for adoption by the EU. EU-Iraq cooperation in the agreement is underlined by different legal bases for each area of competence (for example transport, justice, home affairs etc). Since UK parliamentary approval was obtained, ruling by the European Court of Justice has set a precedent that a separate legal base is no longer needed for each individual area of competence if it falls under development cooperation policy.
“When applied to the Iraq PCA, this suggests that the legal bases covering environment, readmission and energy are no longer relevant as they are covered under Article 209 in the Treaty for the European Union.
“The remaining legal bases in the EU-Iraq PCA are therefore:
Articles 91 and 100 (Transport)
Article 207 (Common Commercial Policy)
Article 209 (Development)
Article 218.6 (Procedural Base)
“We support the EU position of omitting the Justice and Home Affairs legal base and maintaining the transport legal bases, since certain trade and transport related provisions in the EU-Iraq PCA (Article 23) contain significant obligations that go beyond an undertaking to cooperate or enter into dialogue.
“The proposed change in legal base would not have an impact on the UK transitioning the agreement when we leave the EU.”
7.35In a subsequent letter, dated 13 February, the Minister indicates that scrutiny will be overridden in the following terms:
“We submitted an Explanatory Memorandum to the committee on 1 February. I regret that I find myself in the position of having to agree to the adoption of this Council Decision before your Committee had an opportunity to scrutinise the document. The decision on sending the PCA to the European Parliament is now scheduled for adoption at Council on 15 February. This has left insufficient time for the committee to consider the Explanatory Memorandum ahead of the adoption date. The Explanatory Memorandum has, however, passed scrutiny in the Lords through the Chairman’s sift.”
58 See .
59 See our predecessors’ for more information.
60 Decision 2012/418.
61 The Foreign Affairs Committee has that the Government should “seek a status on the Political and Security Committee that allows the UK to have a representative in PSC meetings with speaking (if not voting) rights, except in circumstances agreed in advance by protocol”.
62 Foreign Affairs Committee, ““ (February 2018).
63 See our predecessors’ .
64 See our .
66 submitted by the Foreign and Commonwealth Office (23 January 2018). The Council conclusions were not subject to the scrutiny reserve, so this did not constitute a scrutiny override.
5 March 2018