Documents considered by the Committee on 2 May 2018 Contents

11EU-Iraq Partnership and Cooperation Agreement

Committee’s assessment

Legally and politically important

Committee’s decision

Cleared from scrutiny

Document details

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

Legal base

Articles 91, 100, 207, 209 TFEU in conjunction with Article 218(6)(a) TFEU; unanimity


Foreign and Commonwealth Office

Document Number

(39481), 10209/12/REV1

Summary and Committee’s conclusions

11.1The EU and its Member States signed a Partnership and Cooperation Agreement with Iraq in 2012. The objectives of this Partnership are:

11.2Certain elements of the PCA have been provisionally applied since August 2012:

11.3The 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.

11.4When we first considered it we:

11.5In the light of the Minister’s response (set out below) we now clear this matter from scrutiny. In doing so we draw the attention of the House to the fact that the Minister is taking no steps to clarify the extent to which the EU or the Member States are exercising shared125 competence. This is the latest example of a fudge in the Government’s policy that normally the EU should only exercise competence which is exclusive to it, leaving Member States to exercise shared competence.

Full details of the documents

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.

The Minister’s letter of 16 March 2018

11.6In answer to a question (which was not asked by the Committee) the Minister provided further explanation as to the events leading immediately to the override of scrutiny:

“The Committee asked why an override of scrutiny was necessary. The PCA required the consent of the European Parliament before conclusion. Committee clerks advised the FCO that scrutiny would not be necessary as European Parliament consent is a procedural matter and would not trigger a scrutiny reserve. As a result, the European External Action Service set a date to adopt a Council Decision to obtain the consent of the European Parliament. However, on receiving the draft Council Decision, the Committee clerks corrected their advice, explaining that the request for consent would in fact be caught by the scrutiny reserve. Given the short timeframe, clerks recommended an override of scrutiny. In overriding scrutiny for the consent of the European Parliament, the conclusion of the Iraq PCA was also covered.”

11.7We note here that we did not specifically ask why an override was necessary and this response does not address the context of a proposal that had been on the table for a considerable period in respect of an Agreement that had been provisionally applied for years and which the European Parliament would not provide its necessary consent for months. Furthermore, the response overlooks previous FCO practice to treat referral to the European Parliament as an event giving rise to a scrutiny override.

11.8The Minister assesses the outcome of the provisional application of the PCA since 2012 without indicating whether it had been successful or otherwise:

“Pending the completion of the necessary procedures for its entry into force, Article 2, and Titles II, III, and V of the Agreement have been applied provisionally, in accordance with Article 117 of the Agreement only insofar as it concerns matters falling within the Union’s competence. The provisions of the PCA provide a comprehensive framework to develop and improve relations between EU member states and Iraq, in particular the measures which cover trade and investment and have the potential to support growth. As Iraq is not yet a member of the World Trade Organization, the PCA provides essential provisions for trade under World Trade Organization principles. Implementation of the PCA is ongoing, as Iraq emerges from a period of challenging economic and security constraints, which means that the country will need significant investment. Many parts of the PCA are relevant to this, such as provisions on public procurement, which can help British companies to do business in Iraq.”

11.9In relation to the UK opt-in he writes:

“The Committee asked whether 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; and how the provisions of the PCA in which the opt-in is asserted will be reflected in the legal text, and whether or not the UK intends to opt-in. In light of the Philippines CJEU judgment—which clarified that readmission provisions such as those in the Iraq PCA should not be considered to be JHA content—the Government does not consider that there are obligations in the text of the Iraq PCA that trigger the UK’s JHA opt-in Protocol.”

11.10In relation to transparency as to the exercise of competence he writes:

“The Committee asked whether the text submitted to the European Parliament indicates or delimits the extent to which the EU is exercising competence; I can confirm that the text does not delimit the extent to which the EU and member states are exercising competence. I do not judge that further action, such as a minute statement, is required on this occasion to confirm that the EU is exercising exclusive competence.”

11.11In relation to relations with Iraq after Brexit he writes:

“The Committee raised the issue of continuing 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. DExEU has led cross-government work to assess the international agreements that will need to be replaced, or amended, as a result of the UK’s exit from the EU. The priority is to avoid unintended changes in our relationships with third countries and international organisations. We are not seeking to re-open or renegotiate the substantive content of agreements.

“We are seeking to continue the effect of the PCA with Iraq as we withdraw from the EU. The FCO is responsible for this work and officials visited Baghdad in January this year for constructive discussions with the Government of Iraq on transitioning the PCA. The UK will continue to work with Iraq to ensure continuity in the effect of our current arrangements as we exit the EU, including as we move into any agreed implementation period.”

11.12Finally, the Minister addresses future UK-EU relations in foreign and security policy in the context of Iraq:126

“With regard to the Implementation Period of the EU Iraq Strategy, the precise nature of our institutional engagement with the EU in foreign and security policy remains subject to negotiation.

“The UK is committed to building an enhanced partnership with the EU on security, defence and foreign policy issues. However, we are leaving the European Union and will not seek participation at these meetings on the same basis as EU members. Nevertheless, given our historic ties and shared values, it is likely that the UK and the EU will continue to pursue the same goals and will therefore want to cooperate closely on common foreign policy challenges. This will include close consultation in a range of fora. Attending the Political and Security Committee and the Foreign Affairs Council, for example, is not the only means through which we can achieve this, nor is it the only way in which the UK can continue to have influence over EU foreign policy.

“It is worth underlining that there is no pre-existing model for cooperation between the EU and external partners which replicates the full scale and depth of the collaboration that currently exists between the UK and the EU. However, given that there is no legal or operational reason why such an agreement could not be reached, we want to establish an enhanced partnership that reflects the unique position of the UK.”

Previous Committee Reports

Sixteenth Report HC 301–xvi (2017–19) chapter 7 (28 February 2018).

125 Shared competence can be exercised by ether the EU or the Member States, the choice is political.

126 See our first Report (listed below) which also considered a Joint Communication by the European External Action service and the Commission on Elements for an EU strategy on Iraq.

Published: 8 May 2018