Scrutiny of international agreements; treaties considered on 5 February 2019 Contents

Scrutiny of international agreements; treaties considered on 5 February 2019

Chapter 1: Scrutiny of Brexit-related international agreements

Introduction: Brexit and international agreements

1.Under European Union law, the Member States have conferred upon the EU the power to negotiate and enter into certain treaties, or international agreements,1 on their behalf. These EU international agreements, by which the UK is bound and from which it benefits as a Member State (but not in its own right), could cease to apply to the UK from the moment at which it leaves the EU. They cover a range of important policy areas, such as trade, transport and the environment.2

2.To ensure continuity before and after Brexit—for instance, allowing UK businesses to benefit from similar terms of trade with countries that have concluded Free Trade Agreements with the EU—the UK will need to enter into agreements in its own name, thereby replacing these EU agreements.

3.When this process has to be completed depends on whether or not the UK and the EU agree the terms of UK withdrawal. If a deal is reached, Article 129 of the Withdrawal Agreement confirms that the UK “shall be bound” by all EU international agreements for the duration of any transition or implementation period. A footnote to Article 129 further states that the EU “will notify other parties to these agreements that during the transition period the United Kingdom is to be treated as a Member State for the purposes of these agreements”.3 In these circumstances, assuming that the other parties to the agreements judge that they can continue to treat the UK as an EU Member State, the Government would have until the end of the transition period (currently set at 31 December 2020, with the possibility of extension until 31 December 2022) to conclude replacement agreements.4

4.If the UK leaves the EU without a deal, and thus without a transition period, these international agreements will need to be ratified by or as soon as possible after 29 March 2019.5 The Government has not disclosed exactly how many such agreements it would seek to conclude by this date in the event of no deal, but the Secretary of State for Exiting the European Union wrote to us on 25 January 2019, annexing a helpful list of 61 agreements that either have been signed or are close to signature.6

5.Hitherto UK international agreements, as instruments subject to parliamentary procedures (for which see the next section) have been scrutinised by the Secondary Legislation Scrutiny Committee (SLSC). That Committee is, however, already scrutinising large numbers of statutory instruments laid under the European Union (Withdrawal) Act 2018, which form another key component of the Government’s preparations for a potential ‘no deal’ Brexit. In recognition of this increased workload, the Procedure Committee has therefore decided that the European Union Committee should, until the end of the 2017–19 session of Parliament, be responsible for scrutinising Brexit-related treaties or international agreements.7

6.In approaching this task, the EU Committee will draw on its long experience of scrutinising EU documents and activities, including documents directly relating to the negotiation and conclusion of the EU international agreements that are now being ‘rolled over’. The remainder of this chapter provides a brief explanation of how the EU Committee will approach its work.

How treaties are ratified: the Constitutional Reform and Governance Act 2010

7.Treaties are negotiated, signed and ratified by the Government, on behalf of the UK, under prerogative powers. Parliament is involved in two ways:

8.Section 20 of the CRAG Act states that, with some exceptions, the Government may not ratify a treaty unless it has first laid a copy before Parliament, and, within 21 sitting days of this happening, neither House has passed a resolution that the treaty should not be ratified. A resolution passed by the Lords is advisory: the Government may decide to proceed regardless, but is required to publish a statement explaining its intention, and giving its reasons. A Commons resolution, on the other hand, would prevent the Government from proceeding for another 21 sitting days. The Commons could then pass further resolutions, indefinitely postponing ratification.

9.Section 22 provides that the Government may, exceptionally, disapply the procedure set out in section 20. But it cannot do so once either House has passed a resolution under section 20.

The role of the European Union Committee

10.The SLSC retains responsibility for scrutinising any domestic secondary legislation that is required to give legal effect to Brexit-related international agreements. The EU Committee’s role is to support the second limb of parliamentary oversight, that governed by section 20 of the CRAG Act.

11.We will examine the legal and policy implications of all Brexit-related treaties and international agreements published between now and the end of the session. We will also report on all of them, to help Members of the House in identifying those of particular interest, so that they can, where appropriate, table resolutions or motions to debate them.

12.We will report treaties under one of two headings: treaties to which special attention is drawn; and treaties reported for information only. Treaties in the first category will be analysed in some detail, while brief factual summaries will be provided for treaties in the second category.

13.We will use the following criteria in deciding whether to draw a treaty to the special attention of the House:

(a)that it is politically or legally important, or gives rise to issues of public policy that the House may wish to debate prior to ratification;

(b)that it may be inappropriate, in view of changed circumstances since the precursor agreement was concluded by the EU;

(c)that it differs significantly from the precursor agreement to which the UK is party as an EU member state;

(d)that it contains major defects, that may hinder the achievement of key policy objectives;

(e)that the explanatory material laid in support provides insufficient information on the agreement’s policy objective and on how it will be implemented;

(f)that further consultation would be appropriate, including with the devolved administrations.

These criteria are modelled on those contained in the terms of reference of the Secondary Legislation Scrutiny Committee, in respect of statutory instruments, but have been adapted to reflect the different characteristics of international agreements.

Process and timetables

14.After laying, treaties will be reviewed by the EU Committee’s legal advisers, along with our specialist adviser, Dr Holger Hestermeyer, and then sifted to one of the EU Committee’s six subject-based sub-committees. These sub-committees will submit text to the EU Select Committee, analysing the treaty and recommending whether or not it should be drawn to the special attention of the House. The Select Committee will then review and publish a report combining contributions from sub-committees the following week. The process is summarised in Figure 1.

15.As indicated above, the CRAG Act allows Parliament 21 sitting days, within which either House may pass a motion calling for the Government not to ratify a treaty. The sitting days are defined as days on which both Houses of Parliament are sitting, starting from the day following that on which the agreement is laid.

16.The Committee’s target, to give Members of the House time to consider tabling motions for debate, is to report well before the deadline is reached. Where we have drawn special attention to an agreement, that agreement will be listed, with an italic reference to our report, in each day’s edition of House of Lords Business, until the expiry of the scrutiny period.

17.This is our first report on Brexit-related international agreements. We expect to publish further reports each week, and would be grateful for any feedback from Members of the House or from other stakeholders. Towards the end of the parliamentary session we will review our work, with a view to identifying any ‘lessons learned’ that could inform further consideration, including by the House of Lords Liaison Committee, of how best to conduct parliamentary scrutiny of treaties in the longer term.

Figure 1: Treaty Scrutiny Flowchart

Flow chart describing the process of House of Lords scrutiny of international agreements

1 The Constitutional Reform and Governance Act 2010 refers to ‘treaties’; the EU Treaties refer to ‘international agreements’. We use the terms interchangeably.

2 The policy areas in which the EU enjoys ‘exclusive competence’ to enter into international agreements on behalf of the Member States are listed in Article 3 of the Treaty on the Functioning of the European Union (TFEU), and include key components of trade policy, such as customs union and the common commercial policy. Areas in which the EU and its Member States enjoy ‘shared competence’ (and where the EU may, with the agreement of the Member States, negotiate agreements on their behalf) are listed in Article 4 TFEU. Areas of shared competence include transport, the environment and security. Where an agreement touches on both shared and exclusive competences the Council may decide that it should be concluded by the EU alone, or that it should be concluded as a ‘mixed’ agreement, meaning that each Member State, as well as the EU, must ratify it. Where exclusive Member State competences are touched as well as EU competences the agreement must be mixed.

4 See also European Union Committee, Brexit: the Withdrawal Agreement and Political Declaration, (24th Report, Session 2017–19, HL Paper 245), paragraphs 123–129.

5 A challenge in achieving this objective is that many of the agreements fall in areas of EU competence, including exclusive competence. As long as the UK remains a Member State, and bound by EU law, it is obliged to respect this EU competence.

6 Letter from Rt Hon Stephen Barclay to Lord Boswell of Aynho, 25 January 2019:[accessed 5 February 2019]

7 House of Lords Procedure Committee, Decision Note, 14 January 2019: [accessed 5 February 2019]

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