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European Union (Future Relationship) Bill Contents

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Introduction

1.The European Union (Future Relationship) Bill was published on 29 December 2020. It is expected to complete all its stages in both Houses and receive Royal Assent on 30 December.

2.The Bill gives effect to the Trade and Cooperation Agreement (TCA) between the United Kingdom and the European Union,1 finalised on 24 December. The Bill makes provision in a range of subject areas, including security and trade policy. It disapplies section 20 of the Constitution Reform and Governance Act 2010,2 which provides for the laying of treaties before Parliament prior to ratification, such that the passage of the Bill constitutes the consent of Parliament to the TCA.

Parliamentary scrutiny

3.A prominent argument for the UK leaving the European Union was to “take back control”3 of our laws—for laws to be determined by the UK Parliament rather than the EU’s law-making bodies.4 Asserting the sovereignty of the UK Parliament was considered of such importance that it was included in the European Union (Withdrawal Agreement) Act 2020.5

4.It is regrettable that this Bill, which determines how the UK’s future relationship with the EU will be implemented in UK law, was published less than 24 hours before parliamentary scrutiny was due to begin. This does not allow Parliament much in the way of ‘control’. At the very least, it leaves open the question as to where, or to whom, the control taken back rests.

Fast-track legislation

5.The Bill is being fast-tracked through both Houses. We have previously examined the issues with fast-tracking legislation and found that it constrains parliamentary scrutiny, limits the opportunity for parliamentarians to table and debate amendments, restricts input from stakeholders and the public, and potentially leads to poor legislation.6 These problems all apply to this Bill. The opportunities for parliamentarians and committees in either House to scrutinise its provisions are severely constrained. We have not been able to conduct our normal assessment of the constitutional implications of this Bill or examine the constitutional effects of the Agreement itself.

6.We have concluded previously that fast-tracking is acceptable “only in exceptional circumstances and with the agreement of the usual channels.”7 The end of the transition period on 31 December fulfils these criteria. However, the European Union is giving provisional effect to the TCA until 28 February 2021 such that European Parliament has time to scrutinise and consent to the agreement.8 The Government should explain its reasons for not seeking provisional application of the Trade and Cooperation Agreement in the UK, such that Parliament and the public would have had more time to scrutinise the agreement and the legislation giving effect to it.

7.The Government said in the Explanatory Notes that it will seek legislative consent from the devolved nations for the Bill’s provisions.9 It is regrettable that the timetable for the Bill precludes any realistic opportunity for negotiating and securing the consent of the devolved legislatures.

Sunset provisions and post-legislative review

8.We have recommended previously that when a bill is fast-tracked the Government should include sunset clauses and review provisions.10

9.A sunset clause on the Bill as a whole might not be appropriate if the expiry of the measures (without replacement provision) put the UK in breach of its international obligations. However, the House may wish to consider whether certain provisions of this Bill should have been subject to sunset provisions.

10.The TCA determines the new relationship between the UK and the EU. The structures and processes for managing the relationship raise constitutional issues which need to be scrutinised, alongside important policy decisions. Given the profound significance of the TCA, and the limited time available to scrutinise the legislation to give it effect, Parliament will need to satisfy itself that the Bill’s provisions and its delegated powers are appropriate.

11.In the Explanatory Notes the Government said: “The Bill is not suitable for post legislative scrutiny as it implements an international treaty”.11 We disagree. While the content of the TCA cannot be amended by Parliament, the form in which it is given effect is of considerable significance and warrants careful scrutiny. The mechanisms used by the Bill to rewrite UK domestic law to implement the Agreement have significant and potentially long-lasting constitutional implications, particularly for the role of Parliament and the operation of the devolution arrangements. We recommend the House considers how best to review the Trade and Cooperation Agreement, and conduct post-legislative scrutiny of the Bill to implement it, and to undertake such scrutiny at the earliest opportunity. The quality of such scrutiny will be an early and substantial test of a Parliament possessing a significant tranche of returned powers.

12.As we noted above, due to the lack of time we have not been able to scrutinise the details of this Bill. We will return to consider the constitutional implications of this Bill after it has received Royal Assent.

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