Chapter 1: Agreements reported for information
Agreement establishing an Association between the United Kingdom of Great Britain and Northern Ireland and Central America (CP 128, 2019)1
1.The UK-Central America Association Agreement was laid on 6 August 2019, and the scrutiny period is scheduled to end on 28 October.2 It was considered by the EU External Affairs Committee at its meeting on 3 October.
2.The precursor agreement to the UK-Central America Agreement is the EU-Central America Agreement.3 The trade pillar of the EU Agreement has been provisionally applied since 2013 with Honduras, Nicaragua, Panama, Costa Rica, El Salvador and Guatemala. The UK-Central America Agreement seeks to ensure continuity of effect with the EU Agreement by incorporating it mutatis mutandis,4 with only a small number of modifications. Consequently, the UK Agreement has been published in short form.
3.For the Agreement to enter into force, it must be ratified by both the UK and the Central American countries. It can, however, enter into force bilaterally, at different times, as an agreement between the UK and each signatory Central American country. The Agreement will come into force either on the day the EU Agreement ceases to apply to the UK, or when both the UK and the relevant Central American country have received notification confirming that the other party’s domestic ratification procedures have been completed. Article 10 of the Agreement also allows for provisional application. This is to ensure continuity should there be a gap if the UK ceases to be a party to EU Agreements before ratification processes can be completed.
4.The UK’s combined trade with the six Central American countries accounts for approximately 0.1% of UK trade. In 2018, UK services exports were worth £0.1 billion and UK goods exports accounted for £0.2 billion. Main UK goods exports include vehicles and goods falling under the ‘beverages, spirits and vinegar’ category of the Harmonised System—the international nomenclature for the classification of products. Main UK goods imports from the Central American countries include fruits and nuts, and goods in the ‘coffee, tea and spices’ category.
5.The Agreement—like other trade agreements previously considered by the Committee—introduces an extended cumulation of origin. This allows both parties to recognise content from the EU as originating in the UK or a Central American country in exports to one another. The Government notes that, without these provisions, products from the UK or a Central American country incorporating EU materials would no longer meet the origin requirements for preferential treatment by the other party.5 EU processing can, under certain conditions, also be recognised in UK exports to Central American countries (though not vice versa).6
6.The EU Agreement contains Origin Quotas. These allow a specified volume of listed product lines (for instance, certain garments and textiles) to be exported under more lenient rule of origin criteria, by lowering the percentage of originating content. Origin Quotas have been retained in the UK Agreement, although they have been resized to reflect the UK’s smaller market size compared to the EU28.
7.While tariff levels in the UK Agreement will remain the same as in the precursor EU Agreement, tariff rate quotas (TRQs) have been resized to reflect trade flows between the UK and the Central American countries. The UK Government based the resized TRQs on customs, trade flow and usage data. To maintain market access, both sides agreed to provide a minimum level of access by basing TRQs on a proxy measure where data showed historic trade as being very low or non-existent.
8.Protections afforded to the geographical indications (GIs) of all Parties under the EU Agreement have been retained. Additionally, UK-Irish cross-border GIs (such as for Irish Whisky and Irish Cream) have been included in the UK Agreement.
9.Both the Explanatory Memorandum (EM) and the Parliamentary Report accompanying the Agreement contain information about the process for making future amendments to the Agreement. Under Article 358 of the EU Agreement, as incorporated by the UK-Central America Agreement, the Parties may mutually agree to amend the text of the Agreement. According to the EM, amendments made via this Article are subject to “each Party’s internal legal procedures”. Officials at the Foreign and Commonwealth Office have confirmed that this means that an amendment under this Article would be subject to parliamentary scrutiny under the Constitutional Reform and Governance Act 2010 (CRAG) where the parties agree that the amendment should be subject to ratification (or an analogous procedure). Usually, this would include amendments that involved the enactment of implementing legislation before entry into force. This, however, risks leaving a scrutiny gap in those circumstances where amendments would not require changes to domestic law. In our report, Scrutiny of international agreements: lessons learned,7 we recommended that, to support appropriate scrutiny in future, the Government report regularly to Parliament on changes to international agreements.
10.The Association Council may also make modifications to certain parts of the Agreement. The EM explains that amendments that are subject only to internal procedures would not engage the parliamentary scrutiny process under the CRAG Act. To avoid a scrutiny gap, we recommend that when the Government reports on changes to international agreements, it should include changes made by bodies such as the Association Council of the UK-Central America Agreement.
11.We welcome the fact that the Government has provided detailed information on the geographical extent of agreements, clarifying which elements would apply to Gibraltar and to the Crown Dependencies. The EM also indicates that the Government has engaged with the devolved administrations, Gibraltar and the Crown Dependencies. However, while it confirms that it has shared the draft text of this specific Agreement with Gibraltar and the Crown Dependencies, it does not make clear whether the text was also shared with the devolved administrations prior to signature. This is disappointing, given in a previous report, we asked the Government “to ensure that, in future, where specific agreements have been shared with the DAs, this is explicitly stated in the consultation section of each EM”.8
12.Following an exchange with officials, we confirmed that the Agreement was shared with the DAs when it was initialled. We reiterate our recommendation that the Government ensure that, in future, where specific agreements have been shared with the devolved administrations, this should be explicitly stated in the EM.
13.We report the UK-Central America Association Agreement to the House for information.
Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (CP 174, 2019)9
Introduction
14.The Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (the Marrakesh Treaty) was laid on 20 September 2019, and the scrutiny period is scheduled to end on 4 November 2019.10 Exceptionally, it was not considered by a sub-committee, but by the EU Select Committee, at its meeting on 7 October 2019.
The Marrakesh Treaty
15.The Marrakesh Treaty was negotiated and agreed in June 2013 by the Member States of the UN’s World Intellectual Property Organization (WIPO), of which the United Kingdom is one. The Council had previously authorised the Commission to represent the EU in negotiations on the Treaty, and in 2014 authorised the signing of the Treaty on behalf of the EU.11
16.Although the UK signed the Treaty on 28 June 2013, the day after it was agreed, the Court of Justice of the European Union subsequently ruled that the Treaty fell within the exclusive competence of the EU.12 The EU ratified the Treaty in October 2018,13 and it came into force on 1 January 2019.
17.Thus the UK, though a signatory to the Treaty, has never ratified it, and were it to leave the EU without a Withdrawal Agreement being in place it would no longer be covered. The Government has now laid the Treaty before Parliament with a view to the UK now becoming a party to the Treaty in its own right, either in the event of a ‘no deal’ Brexit, or at the end of any transition period.
The objectives of the Treaty
18.The Treaty requires contracting parties to provide certain legal exceptions to copyright law, in order to improve access to copyright works for visually impaired people. For instance, it allows for the production, subject to certain conditions, of Braille versions of books without requiring the permission of the copyright owner.14 It also includes certain protections for copyright owners, to ensure that exceptions do not unreasonably harm their interests or the market for their works.
19.The Explanatory Memorandum affirms the UK’s long commitment “to improving access to copyright works for visually impaired people both within the UK and internationally”. The effect of ratifying the Treaty will be to ensure that UK organisations such as the Royal National Institute of Blind People can not only continue to create copies of copyright works for visually impaired people, but to send them to other countries without breaching copyright laws.
Implementation and consultation
20.The Government has ensured the retention of EU legislation in this field by means of the Intellectual Property (Copyright and Related Rights) (Amendment) (EU Exit) Regulations 2019,15 which comprehensively update the Copyright, Designs, and Patents Act 1988 to reflect current EU law in the fields of IP and copyright, including EU laws implementing Marrakesh Treaty. These Regulations are intended to come into force in the event of the UK leaving the EU without a deal or, in the event of a deal, at the end of any transition period.
21.The main change introduced by the 2019 Regulations is to replace references in the Marrakesh Regulation to exchange of accessible format copies between the EU and third countries with references to exchange between the UK and third countries (which will, post-Brexit, include the remaining 27 EU Member States). Exchanges between the UK and EU Member States will then continue under the aegis of the Marrakesh Treaty, once the UK has ratified that Treaty.16
22.The Government “does not anticipate any further legislative changes being necessary” when the UK ratifies the Marrakesh Treaty.
23.The EM states that the Agreement may be extended to Gibraltar (paragraph 28). There was no consultation with the Devolved Administrations because “the policy content of this agreement is considered to be a reserved matter”.
Conclusion
24.We report the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled for information.
1 Agreement establishing an Association between the United Kingdom of Great Britain and Northern Ireland and Central America, CP 128, 2019: https://www.gov.uk/government/publications/agreement-establishing-an-association-between-the-uk-and-central-america-ms-no322019 [accessed 3 October 2019]
2 This assumes that both Houses sit each week from Monday to Thursday inclusive, with effect from Monday 30 September, but that Parliament is prorogued on 9 and 10 October.
3 Council Decision of 25 June 2012 on the signing, on behalf of the European Union, of the Agreement establishing an Association between the European Union and its Member States, on the one hand, and Central America on the other, and the provisional application of Part IV thereof concerning trade matters, OJ L 346 (15 December 2012) [accessed 29 August 2019]
4 The Latin term mutatis mutandis is used when comparing two or more things to say that, although changes will be necessary in order to take account of different situations, the basic point remains the same. For more detail, see our report Scrutiny of international agreements: treaties considered on 26 February 2019 (31st Report, Session 2017–19, HL Paper 300).
5 Foreign and Commonwealth Office, Continuing the United Kingdom’s trade relationship with Central America (Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua and Panama (August 2019) para 77: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/823554/uk-central-america-trade-parliamentary-report.pdf [accessed 29 August 2019]
6 More detail on cumulation of origin is available in Box 2 of our report Scrutiny of international agreements: treaties considered on 26 February 2019 (31st Report, Session 2017–19, HL Paper 300)
7 European Union Committee, Scrutiny of international agreements: lessons learned (42nd report, Session 2017-19, HL Paper 387), para 68
8 European Union Committee, Scrutiny of international agreements: treaties considered on 9 July 2019 (44th Report, Session 2017–19, HL Paper 402) para 13
9 Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled, CP 174, 2019: https://www.gov.uk/government/publications/marrakesh-treaty-to-facilitate-access-to-published-works-for-persons-who-are-blind-visually-impaired-or-otherwise-print-disabled-ms-no252019 [accessed 25 September 2019]
10 This assumes that both Houses sit each week from Monday to Thursday inclusive, with effect from Monday 30 September, but that Parliament is prorogued on 9 and 10 October.
11 Council Decision 2014/221/EU of 14 April 2014 on the signing, on behalf of the European Union, of the Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired, or otherwise Print Disabled OJ L 115 (17 April 2014), p 1
12 Opinion of the Court of Justice of 14 February 2017, 3/15, ECLI:EU:C:2017:114: http://curia.europa.eu/juris/document/document.jsf?text=&docid=187841&pageIndex=0&doclang=EN. The UK Government was one of seven Member State Governments to make submissions to the Court arguing that the EU did not have exclusive competence to conclude the Treaty.
13 See Council Decision (EU) 2018/254 of 15 February 2018 on the conclusion on behalf of the European Union of the Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired, or otherwise Print Disabled OJ L 48 ( 21 February 2018), pp 1–2.
14 Article 2
15 The Intellectual Property (Copyright and Related Rights) (Amendment) (EU Exit) Regulations 2019 (SI 2019/605)
16 See the Explanatory Memorandum to the Intellectual Property (Copyright and Related Rights) (Amendment) (EU Exit) Regulations 2019, especially paragraph 7.21