4Scrutinising negotiations on the future relationship
The powers of the European Parliament
87.The European Parliament took the opportunity in March 2018 to pass a resolution setting out its preferred framework for a future relationship based on an association agreement.103 This was in anticipation of the role the European Parliament will play in concluding the future relationship agreement. As explained in Chapter 1, Article 218 (6) TFEU sets out that all trade agreements negotiated by the EU require the consent of the European Parliament. The additional rights of access to information, documentation and meetings granted to MEPs under the 2010 Framework Agreement on relations between the European Parliament and the Commission,104 mean that the role the European Parliament has played in influencing the Article 50 negotiations can also be played in the negotiations on the future relationship. Agata Gostynska-Jakubowska has written that the “European Parliament has developed robust procedures for ex-ante scrutiny of the EU’s international negotiations, and MEPs might want to apply this practice to the exit talks with the UK.”105
88.We heard from Sir Jonathan Faull that, unless special arrangements were put in place, the future relationship negotiations would be conducted on the EU side by the Directorate General for Trade in the European Commission. However, Agata Gostynska-Jakubowska suggested that there might be some wrangling between the EU institutions:
I cannot totally exclude the situation where the European Parliament comes and says, “We have had such a good framework with the Article 50 negotiations that we would like to be similarly engaged”. As you know, the European Parliament has had quite a big role in those negotiations. You will perhaps have Member States saying, “We want to have a greater say as well”.106
89.The negotiations on the future relationship that continue into the transition / implementation period will be disrupted by EU institutional changes with the appointment of a new European Commission as well as European Parliament elections in 2019. Agata Gostynska-Jakubowska outlined the risks these changes may bring to those negotiations:
The UK will be dealing with a totally different European Parliament and European Commission. I could argue that it is plausible that the next European Parliament might be less economically liberal without the 73 British MEPs, who across the line were pushing for this economically liberal agenda. The European Parliament might be less willing to push this forward, particularly because some of the seats of the current MEPs will go to countries like France, Spain and Italy, which you could argue, as VoteWatch has suggested in its analysis, might be slightly more protectionist in their approach. That would have an impact on the negotiations between the UK and the EU when it comes to the future relationship.107
Ms Gostynska-Jakubowska also advised that it will take time for British officials to get acquainted with a new team in the European Commission and the European Parliament. She said that “it is much more difficult when you are outside the EU machinery rather than inside it.”108
90.When asked about these risks, DExEU Minister Robin Walker responded that rather than a risk, the EU institutional changes could act as an incentive to the Commission and MEPs to make real progress before the elections, so a “healthy agreement” with the UK could be part of their legacy and record:
the European institutions want to ensure that we are out in time, so as not to complicate the European elections for 2019 by having seats that need to be available for UK MEPs, which then go away. That is something we are all agreed on. When people have to go to their electorates, they will want to explain that the EU will have a successful future trading relationship with one of its closest allies and biggest trading partners. We should look to the opportunities in that institutional change you talk about, rather than assuming it will be a problem.109
We note the European Council decision of 13 April 2018 that if the UK remains a Member State at the beginning of the 2019–2024 parliamentary term, it will continue to have representatives in the European Parliament until its withdrawal from the EU becomes legally effective. At that point, the number of representatives in the European Parliament from each of the EU27 Member States would be reallocated according to the provisions in the Council’s decision.110
91.In a speech on 1 March 2018, Michel Barnier confirmed that the future relations agreement would be mixed, meaning it would “require not only the ratification of the Council and the Parliament, but each of the 27 national parliaments by unanimity.”111 Sir Jonathan Faull told us that the ratification process would be of “unpredictable duration, at the very least”, notwithstanding the risk that even one parliament’s failure to ratify the agreement could delay or even prevent entry into force.112 In October 2016, the Walloon Parliament in Belgium voted to reject the CETA trade agreement with Canada, delaying ratification by a number of weeks until agreement could be reached.
92.In evidence to the Lords European Union Select Committee, the Secretary of State noted the need to ratify the future relationship agreement with a new Parliament and Commission, as well as the EU27’s Member States individually, within the transition / implementation period. He said that we would “absolutely have to have ratification concluded before the implementation period is over, otherwise we will be in a sort of limbo.”113
93.However, we were told that the exclusion of a mechanism to extend the length of the transition / implementation period to ensure there is time to complete and ratify the future relationship agreement was a shortcoming of the Withdrawal Agreement. Agata Gostynska-Jakubowska told us:
The current text of the withdrawal agreement does not envisage any specific mechanism or any possibility to extend the transition period. We will probably agree—there are voices on both sides of the channel—that it might make sense to extend or at least leave such an option open.
To my legal mind, it seems that the withdrawal treaty would have to consist of such an instrument, allowing extension of the transition period. For the moment, as it stands, the EU 27 and the UK would not be able to extend this transition period after the treaty entered into force. As you probably notice, there is very little, if anything, when it comes to a revision clause. That is the question of the governance, which will have to be dealt with. I suspect that, in order to request an extension of the transition, you would need to have a special mechanism inside.114
A role for the UK Parliament
94.The UK Government has not yet set out how Parliament will be involved in the process of negotiating, approving and implementing the treaty or treaties on the future relationship. In his written statement of 13 December 2017, the Secretary of State said the following on Parliament’s role in relation to the agreement governing the UK’s future relationship with the EU:
In the UK, the Government will introduce further legislation where it is needed to implement the terms of the future relationship into UK law, providing yet another opportunity for proper parliamentary scrutiny.
The CRAG process is also likely to apply to agreements on our future relationship, depending on the final form they take.115
95.As we noted in the previous chapter, the opportunities for Parliament to consider treaties lies primarily in scrutinising legislation which implements the terms of treaties—scrutiny of the ‘how’, rather than the ‘why’ or the ‘what’ of the treaties themselves. We also noted the limited role for parliamentary scrutiny of treaties through the CRAG process. As the Secretary of State’s written statement suggests, not all the future relationship agreements will necessarily be subject to CRAG. Jill Barrett told us that the agreements could take different forms including non-binding arrangements such as a memorandum of understanding or a treaty which comes into force on signature, effectively removing a role for Parliament altogether.116
96.In written evidence to the House of Lords Liaison Committee on “Treaties, Brexit and the Constitution”, Arabella Lang from the House of Commons Library, Eirik Bjorge from Bristol University and Ewan Smith from Jesus College, Oxford, noted that the UK Parliament carefully scrutinises EU external agreements but non-EU treaties signed by the UK Government attract far less attention.117 At present, the UK Parliament has a ‘scrutiny reserve’ on EU laws which means that UK ministers in the EU Council cannot agree to the EU opening negotiations on, or signing, an international agreement unless the European scrutiny committees in both Houses have released the relevant documents from the scrutiny reserve. UK MEPs also take part in the scrutiny and approval functions of the European Parliament with regards the EU’s external agreements. They explain that for most non-EU treaties signed by the UK Government:
Parliament is notified only when treaties are signed, and then has the power only to object to the UK proceeding to be bound by them (ratification), and to pass any legislation needed to implement them. The Government has no obligation to inform Parliament or the public when it starts negotiations, or to provide updates, let alone take into account any views expressed by Parliament. And Parliament has few structures or processes for scrutinising the Government’s treaty actions. Yet the Government’s action in concluding a treaty results in binding international obligations for the UK, which may be applied by UK courts.118
97.Treaty making has traditionally been an executive power which, the House of Commons Library explains, was “once fairly infrequent, and usually concerned war and peace, territory and trade.”119 Now, the Government negotiates, signs and ratifies around 30 treaties a year, covering almost every area of government. This is done under the Royal Prerogative with only a limited role for Parliament. Under the Constitutional Reform and Governance Act (CRAG), there are no rights to a debate in Parliament on treaty provisions and the Government is not required to provide parliamentary time. As we heard from DExEU Minister Suella Braverman, there is no obligation for the Government to hold a vote even when a motion is tabled against ratification.120 Parliament can only oppose or accept ratification of a whole treaty and has no power to amend the agreement.
98.Leaving the EU has re-awakened the debate on Parliament’s involvement in scrutinising and approving treaties. The Government has so far committed to a parliamentary vote on the Withdrawal Agreement before it is signed. The Government has not said whether the UK Parliament will have a power of consent equivalent to that of the European Parliament on the subsequent agreement(s) on the future relationship. Withdrawal from the EU will also likely be followed by a number of treaties, for instance on trade with non-EU states, which could lead to calls for more parliamentary scrutiny of treaties.
99.It is not only the European Parliament which has carved out a role for itself in treaty negotiations. Other countries give their parliaments a greater role in relation to treaties than the UK does. For example, the Australian Parliament has a large all-party Joint Standing Committee on Treaties, while the New Zealand Government can refer treaties to the Foreign Affairs, Defence and Trade Committee prior to ratification. In the US, the Senate Committee on Foreign Relations can go so far as to propose amendments to a treaty. Lang, Bjorge and Smith suggest that the UK Parliament consider proposals for a dedicated committee to scrutinise treaties.121
The devolved legislatures
100.Since the UK joined the EU, it has devolved powers in a number of areas to Edinburgh, Cardiff and Belfast. The present treaty procedures do not require the UK Government to consult the devolved executives or legislatures, but it is recognised that the devolved administrations need to be involved where a treaty might have implications for devolved areas of responsibility. As we heard from DExEU Minister Robin Walker:
It has always been the case that trade negotiations are a reserved area where the UK acts as one. But I would expect every Government Department to take very seriously its responsibilities to the devolution settlement and to ensure that views of the devolved Administrations were taken into account, as currently is the case. Where the devolved Administrations and legislatures have powers to implement and to do things differently, there is no reason why that should not continue in the future.122
101.The rules governing cooperation between the UK Government and the devolved administrations are set out in a Concordat on International Relations, which supports a Memorandum of Understanding. The Concordat is politically rather than legally binding but provides for cooperation on exchanging information, formulating UK foreign policy, negotiating treaties and implementing treaty obligations. It also allows for ministers and officials from the devolved administrations to take part in UK treaty-negotiating teams.123 However, as Lang, Bjorge and Smith point out, the devolved legislatures, in addition to the devolved administrations, may have an interest but “there is no comparable institution which enables devolved legislatures to participate in treaty scrutiny, perhaps in cooperation with Westminster.”124
Scrutiny by parliamentary committees
102.Scrutiny of EU affairs by parliamentary committees will not end on the 29 March 2019. Dr Brigid Fowler of the Hansard Society has set out transition tasks for Parliament which include continued scrutiny of new EU law and policy which will apply to the UK despite Westminster’s loss of ‘national parliament’ status.125 In its Report of March 2018, the European Scrutiny Committee said that “if the transitional arrangement is implemented as described […] it would require continued intensive scrutiny of EU affairs by Parliament.”126 This would require maintaining a role for the European Scrutiny Committee in scrutinising the EU laws which will affect the UK.
103.Select Committee scrutiny of the ongoing negotiations on the future relationship will also be an essential but separate part of Parliament’s work during the transition / implementation period. It has been reported that the Department for Exiting the European Union may be dismantled after exit day with its responsibilities carved up among other Whitehall Departments.127 Our remit is set out in Standing Order No. 152 as a departmental select committee to examine the expenditure, administration and policy of the Department for Exiting the European Union, which has been the lead Department on the negotiations. Wherever the Whitehall responsibility for the negotiations on the future relationship ends up has implications for the remit and, indeed, the very existence of this Committee, as a departmental select committee, and our role in scrutinising progress of the UK’s negotiations on EU exit.
104.On the basis of the existing text of the Withdrawal Agreement the UK will leave the institutions of the EU on 29 March 2019 and continue in the transition / implementation period until no later than 31 December 2020. This leaves only 21 months to translate the Political Declaration accompanying the Withdrawal Agreement into the legal text for any agreement or agreements on the future relationship, and for the ratification process to be sufficiently completed for key provisions to enter into force. The European Parliament elections in May 2019 and the subsequent establishment of a new Commission will substantially reduce the time available for meaningful negotiations to around 15 to 16 months. There is a possibility that this will not prove sufficient. Therefore, the Government should seek to secure a simple mechanism in the Withdrawal Agreement for the extension of the transition / implementation period if required.
105.Once we leave the EU, the UK Parliament will lose the role it had in scrutinising EU external agreements, including trade agreements, through the European scrutiny processes in each House. Parliamentary scrutiny will be restricted instead to the provisions in the Constitutional Reform and Governance Act 2010 (CRAG) relating to ratification of treaties. CRAG provisions are inadequate, denying Parliament the right to information during negotiations, and not even guaranteeing a debate or vote on a treaty before it is ratified. The Government must ensure that the UK Parliament is given a meaningful vote on the final text of the agreements with the EU that will comprise the future UK-EU relationship. The Government must also commit to scheduling a vote in Parliament if a resolution is tabled against any of the future relationship agreements during the 21-day CRAG process.
106.It is also important to look beyond the treaties we conclude with the EU to the negotiating and signing of any new agreements with non-EU countries, including new trade deals. We recommend that Parliament has a role in the scrutiny of these agreements. The Liaison Committee should examine the role of parliamentary committees in scrutinising treaties after the UK leaves the EU and consider proposals for a dedicated committee on treaties or how existing select committees might best approach this work.
107.The UK’s future trade agreement with the EU and negotiations on trade with non-EU states will have significant impacts on devolved policy areas and interests. As we said in our First Report, there needs to be cooperative, participative mechanisms for joint working between the UK Government and the devolved administrations to ensure that devolved interests are properly considered when entering into and developing new international agreements. We also asked the Government to set out whether it is considering formal structures for inter-governmental relations, including any arbitration system for disputes, so that the views of the devolved governments can be heard. The Government should set out in detail the processes by which the views of the devolved governments and parliaments will be fed into the negotiations on the UK’s future relationship with the EU and on future trade agreements with non-EU states. The Government should also commit to seeking the views of the devolved parliaments as part of the process of seeking approval for the Withdrawal Agreement and Political Declaration.
108.The negotiations on our future relationship with the EU will be a monumental task, touching a wide range of aspects of the political and economic future of this country. It is not yet clear whether changes will be made to the machinery of Government to accomplish this task. However, were the Department for Exiting the European Union to be abolished and this Committee to lose its role, adding the scrutiny of these negotiations to the workload of another existing committee would not be adequate. To ensure the right level of scrutiny of these historic negotiations and an effective role for Parliament in seeking the best outcome for the UK, there must continue to be a dedicated select committee on EU exit during the transition / implementation period to scrutinise and hold the Government to account in negotiating the UK’s future relationship with the EU.
103 European Parliament resolution of 14 March 2018 on the framework of the future EU-UK relationship (2018/2573(RSP)). Association Agreements are envisaged by Article 217 TFEU.
104 Official Journal of the European Union, Interinstitutional Agreements: Framework Agreement on relations between the European Parliament and the European Commission, 20 November 2010
105 Centre for European Reform, Parliamentarians in Brexit Talks: Bulls in a China Shop, February 2017, p3
110 The European Council decision on the composition of the European Parliament, on 13 April 2018
111 Speech by Michel Barnier at Business Europe Day 2018, Brussels, 1 March 2018
113 Oral evidence taken before the House of Lords European Union Committee, Scrutiny of Brexit negotiations, 1 May 2018, Q3
115 Department for Exiting the European Union HCWS342, Procedures for the Approval and Implementation of EU Exit Agreements, 13 December 2017
117 Written evidence to the House of Lords’ Liaison Committee ‘Review of Investigative and Scrutiny Committees’ inquiry, Treaties, Brexit and the Constitution (RIS0034), para 6
118 Ibid, summary
119 Commons Library Briefing Paper 5855, Parliament’s role in ratifying treaties, 17 February 2017, p5
121 Written evidence to the House of Lords’ Liaison Committee ‘Review of Investigative and Scrutiny Committees’ inquiry, Treaties, Brexit and the Constitution (RIS0034), paras 31–2
123 Commons Library Briefing Paper 5855, Parliament’s role in ratifying treaties, 17 February 2017, p16
124 Written evidence to the House of Lords’ Liaison Committee ‘Review of Investigative and Scrutiny Committees’ inquiry, Treaties, Brexit and the Constitution (RIS0034), para 11
125 Hansard Society, Brexit: Parliament’s Five Transition Tasks, April 2018, p4
126 European Scrutiny Committee, Nineteenth Report of Session 2017–19, EU withdrawal: transitional provisions and dispute resolution, HC 763, 20 March 2018, para 46
127 See Financial Times, Whitehall begins talks on dismantling Brexit ministry, 22 March 2018 and Politico, Hello Brexit, goodbye Brexit department, 4 June 2018
Published: 28 June 2018