15.One of the most striking features of the Decision is its resemblance to the Political Declaration (PD), which was agreed by the UK and EU negotiators in October 2019 and laid before Parliament on 19 October. The PD was adopted pursuant to Article 50 of the Treaty on European Union, under which any withdrawal agreement concluded by the EU with a departing Member State is required to take account of “the framework for [that state’s] future relationship with the Union”.
16.Thus the PD was a statement of intent, rather than a legally binding agreement. Article 184 of the Withdrawal Agreement, however, requires both Parties (the UK as well as the EU) to “use their best endeavours, in good faith and in full respect of their respective legal orders, to take the necessary steps to negotiate expeditiously the agreements governing their future relationship referred to in the Political Declaration”.
17.The Commission’s draft Decision accordingly cites Article 184 of the Withdrawal Agreement in the Preamble, thereby reaffirming the commitment of both sides to implementing the PD. Its negotiating directives adopt the same structure as the PD, using the same headings and sub-headings, and much of the text is copied and pasted verbatim. The Commission has of course elaborated the EU’s position in many areas, changing the emphasis, and prioritising the EU’s interests. There are also some omissions, which we highlight in Chapter 3, but taken as a whole the Decision is a development of, rather than a departure from, the PD.
18.The Government’s original intention seems to have been to give effect to Article 184 in domestic law by means of clause 31 of the October 2019 text of the European Union (Withdrawal Agreement) Bill. Clause 31, omitted from the text of the Bill that was ultimately enacted in January 2020, not only provided for parliamentary oversight of the negotiations on the future relationship, but stated, in clause 31(3), that any Government statement on objectives for the future relationship “must be consistent with the political declaration”.
19.Government statements during the passage of the revised EU (Withdrawal Agreement) Bill through Parliament in December and January also implied that even though clause 31(3) was no longer in the Bill, implementation of the PD remained the Government’s objective. Lord Keen of Elie, replying to the House of Lords second reading debate on 13 January 2020, said:
“The political declaration agreed by the Prime Minister as part of our exit negotiation sets out the framework for a comprehensive and ambitious free trade agreement with the EU. The general election result has clearly shown that the public support that vision and we consider that we have been given the mandate to begin negotiations on that basis.”
And Lord Callanan, during Report stage on 20 January 2020, said:
“The Government’s vision for the future relationship with the EU is already set out in detail in the political declaration.”
20.Against this backdrop, we note that Government’s WMS and Command Paper, setting out its negotiating objectives, are in structure and in some content markedly different from the PD. The headings (in particular, the division into ‘chapters’), rather than following the PD, appear to be based on those used in existing Free Trade Agreements, such as the EU-Canada and EU-Japan agreements. As a result, significant elements of the PD are omitted, including sections on overarching principles, on fundamental rights, and on potential cooperation in the international sphere. While we understand that the political context has changed, as a result of the general election, the Government’s approach makes it difficult either to conduct a line-by-line comparison with the PD, or to trace and explain the changes in Government policy since agreement was reached last October.
21.This has implications for transparency. The EU’s negotiating directives and the PD can be read side by side, and differences easily identified, which has in turn facilitated public debate on the EU side. On 11 February the European Parliament, following detailed consideration by committees, debated and adopted a substantial resolution on the EU’s negotiating mandate. No comparable debate has yet taken place at Westminster.
22.Finally, the difference of approach is also relevant to the forthcoming negotiations. While the Political Declaration, whatever its limitations and ambiguities, embodied a shared understanding of the future relationship, that shared understanding has now disappeared. This may in part reflect the adoption by the two sides of opening positions ahead of the negotiations, but it could also have implications for the likelihood that they will be able to reach agreement within the time available.
23.That time has already been reduced to just 10 months, by the Government’s decision not to seek an extension of the transition period. The Command Paper arguably reduces it still further, to just 4 months, stating the Government’s hope that by June “the broad outline of an agreement would be clear and be capable of being rapidly finalised by September”. It then states that if this is not the case in June, “the Government will need to decide whether the UK’s attention should move away from negotiations and focus solely on continuing domestic preparations to exit the transition period in an orderly fashion”.
24.In October 2019 the European Union and United Kingdom negotiators agreed a Political Declaration, setting out the framework for future UK-EU relations. Article 184 of the Withdrawal Agreement then placed a legal obligation upon both the EU and UK to “use their best endeavours, in good faith and in full respect of their respective legal orders, to take the necessary steps to negotiate expeditiously the agreements governing their future relationship referred to in the Political Declaration”.
26.The Written Ministerial Statement published by the Government on 3 February, and the Command Paper published on 27 February, differ substantially from the Political Declaration in structure and content. It would be helpful if the Government, without prejudicing its negotiating position, could publish a comparative analysis of the Political Declaration and the Command Paper, explaining the changes in its approach.
27.The Government has made it clear that it will not seek an extension to the transition period beyond 31 December 2020. That leaves just 10 months for the UK and EU to negotiate and conclude agreements on the future UK-EU relationship. The Government has now indicated, that if the “broad outline” of an agreement is not clear by June, it may “move away from the negotiations” and focus on domestic preparations for the end of the transition period.
28.The marked differences between how the EU and the UK Government envisage the future UK-EU relationship may in part reflect both sides’ adoption of opening negotiating positions. But the timetable for reaching agreement was always challenging, and the Government’s truncating of the timetable, taken alongside this divergence of approach, further reduces the chances of a comprehensive agreement.
29.We note that the European Parliament, on 11 February, following detailed consideration by committees, has adopted a substantial resolution on the Commission’s draft negotiating mandate. We regret that the United Kingdom Parliament has not been given an opportunity to play its proper role in debating, in Government time, matters of such vital national interest.
9 Political Declaration setting out the framework for the future relationship between the European union and the United Kingdom (19 October 2019): [accessed 19 February 2020]
10 (19 October 2019), Preamble, para 6
11 HL Deb, , [Lords Chamber]
12 HL Deb, , [Lords Chamber]
13 European Parliament resolution on the proposed mandate for negotiations for a new partnership with the United Kingdom of Great Britain and Northern Ireland, 11 February 2020: [accessed 20 February 2020]