Brexit: the revised Withdrawal Agreement and Political Declaration Contents

Summary of conclusions and recommendations

The Withdrawal Agreement

1.The Joint Committee structure for governance of the Withdrawal Agreement should allow a collaborative approach to the supervision of the Withdrawal Agreement, as well as the delegation of specific functions, such as citizens’ rights, financial provisions, Ireland/Northern Ireland and Gibraltar, to specialised committees. (Paragraph 34)

2.The Joint Committee also has significant responsibilities in relation to the Protocol on Ireland/Northern Ireland. (Paragraph 35)

3.The Joint Committee will thus be critical in ensuring the smooth working of the Withdrawal Agreement. It will be a uniquely powerful and influential body. Decisions adopted by the Joint Committee will be binding on the EU and the UK and will have the same legal effect as the Withdrawal Agreement. (Paragraph 36)

4.In particular, during the transition period and for four years thereafter, Article 164 of the Withdrawal Agreement provides that the Joint Committee will have power to amend aspects of the Agreement to take account of errors, omissions and deficiencies, and to address unforeseen situations. Even though changes that “amend the essential elements” of the Agreement are excluded, the extent of this widely drawn power is uncertain, and it is not subject to clear scrutiny procedures or parliamentary oversight. (Paragraph 37)

5.Nor does it appear that the Joint Committee will operate in an open and transparent way. The relevant rules suggest that meetings will be confidential, decisions might not be published, and even summary minutes might not be made publicly available. This is an unsatisfactory state of affairs. (Paragraph 38)

6.Against this backdrop, we note the Government’s statement, in the Explanatory Notes to the European Union (Withdrawal Agreement) Bill, that clause 35 of the Bill, prohibiting the use of written procedure, is intended to ensure “full ministerial accountability, including to Parliament”. It is unclear how this accountability will work in practice, and Members may wish to consider whether the Bill should in fact include provision both for appropriate parliamentary oversight of the Joint Committee, and for a proportionate level of transparency. (Paragraph 39)

7.The provisions relating to dispute resolution in the Withdrawal Agreement retain a limited role for the CJEU. (Paragraph 55)

8.The arbitration mechanism, with input from the CJEU only in circumstances where questions of Union law arise, moves toward the Government’s goal of ending the direct jurisdiction of the CJEU, while still respecting the autonomy of the European Union’s legal order and the role of the CJEU. (Paragraph 56)

9.We welcome the fact that the Agreement provides a longstop, or limitation period, for any claims that arise before, or during, the transition period. This will give parties involved in legal disputes greater certainty as to the legal regime which will apply to their case. (Paragraph 57)

10.One of the Government’s primary aims in negotiating Brexit has been a desire to end free movement of people. A necessary consequence has been that the citizens’ rights guaranteed under the Withdrawal Agreement fall short in some respects of those enjoyed during the UK’s EU membership. Most notably, for UK citizens in the EU, onward free movement rights are not guaranteed. EU nationals applying to remain in the UK under the EU Settled Status Scheme face automatic criminal records checks. (Paragraph 80)

11.Nonetheless, the agreement on citizens’ rights is fairly comprehensive and will allow individuals and families to continue with their lives and careers with a minimum of disruption. We therefore broadly welcome the citizens’ rights provisions. At the same time, given that over 40 percent of applicants thus far have been granted ‘pre-settled status’, we emphasise that the Government will face a continuing challenge in ensuring a smooth transition to settled status. (Paragraph 81)

12.The provisions on the financial settlement in Part Five of the Withdrawal Agreement set out not the amount of the UK’s financial obligation, but the agreed methodology for calculating it. The precise amounts paid will be contingent upon future events, including fluctuations in exchange rates. Moreover, with each extension to the Article 50 period the UK has made further payments as a Member State, which will be offset against the payments due under the terms of the financial settlement. (Paragraph 87)

13.Much of the sum payable relates to UK contributions to the 2020 EU budget, which will coincide with the transition period, during which the UK will continue to be subject to EU law and be part of the EU Single Market. (Paragraph 88)

14.The payment of these sums does not depend upon a successful outcome to negotiations on future UK-EU relations. Once the UK and the EU conclude the agreement under Article 50 TEU, the UK’s financial commitments will crystallise as legal obligations in international law, irrespective of the outcome of the future relationship negotiations. (Paragraph 89)

The transition or implementation period

15.The transition period embodied in the Agreement is intended to ensure stability, avoiding an abrupt change in the terms of UK-EU trade at the point of exit, while allowing the two sides time to negotiate, agree and implement the terms of their future relationship. The price the UK will pay for transition is that, save for a few minor exceptions, it will during the transition period carry all the responsibilities of EU membership without the institutional rights and privileges enjoyed by EU Member States. It will also remain subject to EU law and the EU institutions and agencies that oversee its application and operation, without any institutional say over the development, application and content of that law. (Paragraph 99)

16.Despite the possibility of invitations being extended to UK officials to attend relevant meetings in exceptional circumstances, we remain concerned about the sudden removal of the UK’s institutional privileges, particularly those relating to the EU’s many executive agencies. (Paragraph 100)

17.We broadly welcome Article 129, which leaves the UK free to pursue its own free trade agreements during the transition period, provided they do not enter into force before it expires. (Paragraph 105)

18.Questions remain about the detailed operation of this provision. For example, it is silent about the extent of the UK’s freedom to renegotiate during transition the myriad EU agreements dealing with matters where responsibilities are shared between the EU and the individual Member States. (Paragraph 106)

19.Furthermore, Article 129, which attempts to carry over the application to the UK of the suite of existing EU international agreements, is one-sided and unclear. While it expressly binds the UK to its obligations under these international agreements, and calls on the Government to refrain from any action in this context deemed “prejudicial” to the Union’s interests, the UK’s status as a party to these agreements after exit day is dealt with by a footnote. We are concerned that the solution to such a significant question remains even in the latest text subject to a footnote of questionable legal status. The attitude of third countries to continuing UK participation in agreements with the EU remains unclear. We call on the Government to clarify these points urgently. (Paragraph 107)

20.The previous Government described the option to extend the transition period as an “insurance policy” in case the negotiations on the future relationship are not completed by the end of 2020. The present Government, notwithstanding the fact that the transition period will now last only 11 months, has ruled out any extension. The timetable for achieving a satisfactory outcome is, as a result, extremely challenging. (Paragraph 113)

21.Any decision by the Joint Committee to extend the transition period will have to be taken before 1 July 2020. Should that deadline pass without an extension being granted, we can see no other legal mechanism, under the terms of the Withdrawal Agreement, whereby an extension could be achieved, even if the two sides so desired. (Paragraph 114)

22.We note that, were the Government to seek and be granted an extension ahead of the deadline, the cost to the United Kingdom is unclear and would be subject to negotiation. (Paragraph 115)

23.An extension of the transition period would also mean that the UK would remain subject to EU law (including new Regulations and Directives and the jurisdiction of the CJEU) for an extended period, without any representation in the European Parliament, the Council, or the CJEU. The risk that is inherent in the UK becoming a ‘rule taker’ (subject to new EU laws, without having had any say in their preparation or adoption) would become more acute, the longer the transition period lasted. (Paragraph 116)

Protocol on Ireland/Northern Ireland

24.We welcome Article 2 of the Protocol, on safeguarding the rights of individuals, as set out in the Belfast/Northern Ireland Agreement, and note that these provisions are unchanged from the November 2018 text. (Paragraph 125)

25.We have repeatedly emphasised the importance of the Common Travel Area as a basis for cooperation between the UK and Ireland. We therefore welcome the explicit commitment to its retention contained in the latest iteration of the Withdrawal Agreement. (Paragraph 128)

26.The precise rules governing the payment of customs duties on goods brought into Northern Ireland either from the rest of the UK or from outside both the UK and EU are yet to be determined by the Joint Committee. But the term “at risk” appears to cover a greater number and range of goods than would have been covered by terms such as “likely” or “potentially”. (Paragraph 134)

27.We call on the Government to publish its assessment of the proportion, value, type and volume of goods entering Northern Ireland from the UK and from outside the EU on which customs duty will be payable in accordance with Article 5 of the Protocol. (Paragraph 135)

28.Notwithstanding the statement in Article 4 of the Protocol that Northern Ireland is part of the customs territory of the UK, the practical implication of the Protocol’s provisions on customs will be the introduction of a regulatory border for goods travelling from Great Britain to Northern Ireland. The introduction of such a border within the UK will have financial and political consequences. (Paragraph 140)

29.There is tension at the heart of the customs provisions of the Protocol. On the one hand, Northern Ireland is obliged to apply the EU’s customs code to the movement of goods from Northern Ireland to Great Britain. On the other, the Protocol says that it does not prevent the UK from ensuring unfettered access for goods moving from Northern Ireland into Great Britain’s market. (Paragraph 149)

30.Given the Janus nature of these customs arrangements, and HMRC’s confirmation that much of the detail is yet to be settled or even fully understood by the two sides, it is perhaps not surprising that there have been conflicting statements from within Government. (Paragraph 150)

31.In our view, as part of Northern Ireland’s obligations under the Protocol to apply the EU’s customs code, exit summary declarations are likely to be required for goods moving from Northern Ireland to Great Britain, unless and until the parties agree alternative arrangements to facilitate the movement of such goods. Although this requirement will be far less onerous that the requirements applying to goods moving in the other direction, it will have an economic cost for Northern Ireland-based businesses. (Paragraph 151)

32.The agreement includes an undertaking by both parties to the Withdrawal Agreement to use their best endeavours to agree arrangements to facilitate the movement of goods from Northern Ireland to Great Britain. There remains, however, a risk that reaching agreement on the detailed operation of this aspect of the Withdrawal Agreement’s arrangements will be time-consuming and, given the Government’s insistence that there will be no extension of the transition period, particularly challenging. (Paragraph 152)

33.We note that the potentially contentious arrangements for dealing with the duties applicable to fisheries and aquaculture products brought into the Union by vessels flying the UK flag but registered in Northern Ireland have been passed to the Joint Committee for resolution. (Paragraph 153)

34.Notwithstanding these uncertainties, the proposed arrangements on the movement of goods contained in this iteration of the Protocol on Ireland/Northern Ireland will, when it comes into effect, achieve the key objective of avoiding a ‘hard border’ on the island of Ireland. (Paragraph 154)

35.To achieve this aim, these new arrangements effectively keep Northern Ireland in the EU’s single market for goods, with all that this implies for regulatory alignment, customs, institutional supervision and checks on the movement of goods between Great Britain and Northern Ireland. There is thus a price to be paid, in particular with regard to the integrity of the UK’s internal market. How high a price remains to be seen, since the responsibility for sorting out the detail of these contentious issues has been conferred upon the Joint Committee. (Paragraph 155)

36.The consequences, if the Joint Committee is unable to reach agreement on these issues, are not clearly spelled out in the Protocol. It is therefore critical that both the UK and the EU approach these issues with sensitivity, taking full account of the concerns of both unionist and nationalist communities in Northern Ireland. (Paragraph 156)

37.The VAT and excise rules proposed in the Protocol, in particular the rules dealing with excise reductions and/or VAT exemptions, are complex, and we note the concern of witnesses that businesses in Northern Ireland urgently need further explanation of how they will operate in practice. (Paragraph 161)

38.We acknowledge the Secretary of State’s statement that the specific practical arrangements governing this aspect of the Protocol on Ireland/Northern Ireland will be addressed by the Joint Committee, but are concerned that this key aspect of the post-Brexit arrangements for Northern Ireland’s interaction with both the EU and Great Britain will be left to the Joint Committee to resolve after the Withdrawal Agreement has been agreed and ratified. (Paragraph 162)

39.The Protocol will bind Northern Ireland closely to the EU. Northern Ireland’s compliance with EU rules will be policed and enforced by the European Commission, the EU’s executive agencies and the CJEU, without the additional institutional privileges inherent in EU membership, save for the UK’s right to participate in Northern Ireland-based CJEU proceedings. (Paragraph 168)

40.The introduction of different regulatory and technical rules on opposite sides of the Irish Sea would, like the proposed customs arrangements, carry risks for the UK’s internal market. (Paragraph 169)

41.We have previously recommended that Northern Ireland should, as part of the future UK-EU relationship, remain part of the Single Electricity Market on the island of Ireland. We welcome the fact that the UK and EU negotiators have remained aware of the importance of this issue, but reiterate that such an outcome might require the devolution of additional powers to the Northern Ireland Assembly once the devolved institutions are reinstated. (Paragraph 170)

42.In the event that the Northern Ireland Assembly does not consent to the continuation of the arrangements contained in the Protocol, Northern Ireland’s continued participation in the Single Electricity Market could be at risk. (Paragraph 171)

43.Article 11 of the Protocol covers North-South cooperation in a wide range of areas of EU competence, including some areas where the EU’s competence is merely to support action by the Member States. The breadth of this provision underlines the vital importance of cross-border cooperation to the lives of UK and EU citizens, particularly those living close to the Irish land border. (Paragraph 174)

44.The Joint Committee will play an important role in the operation and application of the Protocol on Ireland/Northern Ireland. This role has been substantially enhanced in the latest text of the Protocol, yet no corresponding changes have been made to the governance arrangements provided for elsewhere in the Withdrawal Agreement to accommodate this expanded role. (Paragraph 184)

45.Against this backdrop, the concerns we have expressed about the absence of any provision for democratic oversight of the Joint Committee, and over the lack of transparency in its working practices, acquire still greater force. (Paragraph 185)

46.Many contentious decisions relating to the Protocol’s application, for example, decisions on the practical operation of the trade rules governing the movement of goods between Northern Ireland and Great Britain; on the potential duties payable on fisheries and aquaculture products; and on the operation of the Protocol’s VAT and excise rules, have been referred to the Joint Committee, to resolve behind closed doors, after the parties have agreed and ratified the Withdrawal Agreement. (Paragraph 186)

47.This underlines the critical importance both of re-establishing the devolved institutions in Northern Ireland, and of ensuring that the Northern Ireland Assembly, like the UK Parliament, has the information and powers it needs to scrutinise the work of the Joint Committee effectively and hold ministers to account. We call on the Government to set out how it plans to achieve this outcome, as a matter of urgency. (Paragraph 187)

48.The inclusion of a mechanism enabling the Northern Ireland Assembly periodically to express its continued consent to the operation of the trade arrangements proposed in this iteration of the Withdrawal Agreement, is, as the Secretary of State suggested, a key difference between this Agreement and the one proposed in November 2018. (Paragraph 195)

49.We welcome the inclusion of a consent mechanism, but note that the political situation in Northern Ireland, where the Assembly has not met in full for more than a thousand days, remains unstable. We repeat the plea made in our 2016 report Brexit: UK-Irish relations, that political stability in Northern Ireland must not be allowed to become ‘collateral damage’ of Brexit. (Paragraph 196)

The revised Political Declaration on the future relationship

50.We welcome the Political Declaration’s acknowledgement of the shared heritage, values and interests of the UK and EU, and its recognition of the unique context of their future relationship given the UK’s post-withdrawal status as a former Member State. It is therefore important to acknowledge that the future relationship may evolve over time. (Paragraph 205)

51.The Political Declaration notes the need to strike a balance between the rights and obligations of both sides. It now also includes an explicit reference to the intended destination of a “comprehensive and balanced Free Trade Agreement”. While this provides greater definition of the likely shape of the future relationship, it also constrains the potential depth of that relationship. The scope and ambition of the Declaration must be judged in that light. (Paragraph 206)

52.We welcome the reference in paragraphs 6–7 of the Political Declaration to shared values and the maintenance of human rights and fundamental freedoms. (Paragraph 215)

53.We have reported on the critical importance of maintaining uninterrupted data flows during and after Brexit. We therefore welcome the provisions on data protection, which offer a pragmatic way forward. (Paragraph 216)

54.We also welcome the prospect of UK participation in EU programmes in areas such as research, science and innovation, youth, culture and education, overseas development and external action, defence capabilities, civil protection and space, and the possibility of UK participation in European Research Infrastructure Consortiums. We note, however, that such participation will come at a cost, which is yet to be determined, and that the Declaration sheds little light on how UK participation will be achieved, and what influence it will have over these programmes. (Paragraph 217)

55.We warmly welcome the shared commitment of the UK and the EU to delivering a future PEACE PLUS programme in Northern Ireland. (Paragraph 218)

56.We note the possibility of continuing cooperation in areas such as culture, education, science and innovation. We again call on the Government to explain the significance of the reference in paragraph 14 of the Declaration to “the importance of mobility” in enabling such cooperation. (Paragraph 219)

57.We note that most of the commitments in Part I of the Declaration remain undefined. Stakeholders in the various sectors affected still need clarification of how future UK-EU cooperation will work in practice, in particular in terms of UK participation in EU programmes and its relationship with the European Investment Bank. (Paragraph 220)

58.The Political Declaration’s commitment to tariff-free trade in goods is welcome. The change in objective from a free trade area to a free trade agreement is one of the most consequential in the revised Political Declaration, involving in particular the deletion of references to the single customs territory and alignment of rules. (Paragraph 230)

59.While these changes provide greater clarity, they also imply that there will be some new friction in trade in goods, notwithstanding that the Declaration holds out the possibility, without commitment, of the use of facilitative arrangements and technologies, and refers, without elaboration, to “facilitation” of customs processes, checks and controls. We call on the Government to specify what new facilitative arrangements and technologies are envisaged, when, at what cost, and to what effect. (Paragraph 231)

60.The revised Declaration also concedes, for the first time, that rules of origin, albeit “appropriate and modern”, will be necessary. We call on the Government urgently to confirm to Parliament, manufacturers, traders and all those affected, what rules of origin checks and processes will be required in the future. (Paragraph 232)

61.We welcome the commitment to consider cooperation and exchange of information in customs and, additionally, VAT matters, including to combat customs and VAT fraud and other illegal activity. (Paragraph 233)

62.We also call on the Government urgently to clarify the extent and means of UK cooperation with EU agencies, including the European Medicines Agency, the European Chemicals Agency and the European Aviation Safety Agency, and to confirm whether cooperation with other agencies is envisaged. (Paragraph 234)

63.We welcome the intention to conclude “ambitious, comprehensive and balanced” arrangements on trade in services across a range of sectors. However, given the significance of the sector to the UK economy, we are concerned by the lack of detail in the section on services and investment, and in particular that some key service sectors are not mentioned in the Declaration. We call on the Government to explain what agreement, if any, it expects to reach in respect of the health, creative and tourism sectors. (Paragraph 238)

64.We welcome the commitment to ensure services providers and investors are treated in a non-discriminatory manner, and to allow for the temporary entry and stay of natural persons for business purposes. We invite the Government to confirm whether the latter provision envisages preferential arrangements for UK and EU citizens moving between each other’s territories to provide services. (Paragraph 239)

65.More broadly, while the provisions on services and investment are helpful as far as they go, they will not provide the current level of access to the EU Single Market enjoyed by the UK’s services sectors. Further details are urgently required to provide service providers and customers with assurance and certainty. (Paragraph 240)

66.We acknowledge the intention of both sides to complete the equivalence assessment process in respect of financial services by June 2020, but note that time is now acutely short for such assessments to be completed. We also welcome the commitment to “close and structured” regulatory and supervisory cooperation, and to close cooperation in international bodies. But the agreement to keep respective equivalence frameworks under review falls short of the new economic and regulatory arrangement in financial services proposed by the UK. (Paragraph 244)

67.Given its growing importance to the UK’s economy, the specific emphasis on digital services in the Political Declaration is welcome. Nevertheless, the Declaration’s emphasis on the facilitation of data flows, rather than on the retention of free data flows, appears to mark a lowering of ambition when compared with the ongoing development of the EU’s Digital Single Market. (Paragraph 246)

68.We welcome the provisions to enable free movement of capital and payments, on intellectual property (including geographical indicators) and on public procurement, as far as they go. (Paragraph 251)

69.The provisions on mobility respect and reflect the UK’s decision that the principle of free movement of persons from the EU will no longer apply. The principle of full reciprocity means that UK nationals will therefore also cease to receive preferential treatment by the EU in the future. While the Political Declaration proposes some mitigations, they will not change this significant restriction upon the freedoms currently enjoyed by UK citizens. (Paragraph 256)

70.We are concerned at the omission of any reference to reciprocal healthcare, including the European Health Insurance Card, as a means of facilitating mobility. We call on the Government to set out, as a matter of urgency, its plans for maintaining reciprocal healthcare arrangements in the context of the future relationship. (Paragraph 257)

71.We are concerned that the Declaration contains so little detail on the impact of UK withdrawal on family law. We remind the Government of our earlier conclusion, that if the UK leaves the EU without alternative arrangements being in place, the UK’s family justice system, and the individuals seeking redress within it, could suffer profound damage. (Paragraph 258)

72.We welcome the commitment to cooperation in the aviation sector, and in particular the proposed Comprehensive Air Transport Agreement. We call on the Government to confirm whether the reference to market access in paragraph 58 of the Declaration is intended to include the fully liberalised market access currently enjoyed by UK and EU operators. (Paragraph 264)

73.We also note the high-level commitments to cooperation in the road, rail and maritime sectors. More detail is needed, particularly with respect to road transport, where the Government needs to explain whether the reference to “comparable market access” achieves its aim of “reciprocal access”; whether, in the absence of any reference to reciprocal cabotage rights, new permitting and licencing requirements will be required for transport operators and professional drivers; and whether any “complementary arrangements” in relation to travel by private motorists will negate the need for UK motorists to carry International Driving Permits and insurance Green Cards when travelling in the EU. (Paragraph 265)

74.We regret that the Declaration does not hold out the possibility of continued UK participation in the Internal Energy Market, but at the same time we welcome the high-level commitment to cooperation in the supply of electricity and gas to ensure as far as possible security of supply and trade over interconnectors. (Paragraph 269)

75.We welcome the commitment to a wide-ranging Nuclear Cooperation Agreement, including exchange of information, trade in nuclear materials and equipment, monitoring of levels of radioactivity, and exchange of information on medical radioisotopes. While the reference to the UK’s intention to be associated with the EURATOM research and training programmes is a positive step, we call on the Government to provide further clarification of its plans in this regard. (Paragraph 270)

76.The Political Declaration confirms that the UK will leave the Common Fisheries Policy and become an independent coastal state. Yet, as we warned in December 2016, the EU has also made clear that finalising a future fisheries agreement is a precondition for agreement of the overall economic partnership. While we reiterate our view that cooperation with the EU and other neighbouring states in fisheries management will be critical in the years to come, difficult negotiations lie ahead. We note also that the aspiration of both sides to conclude a fisheries agreement before 1 July 2020, in time to determine fishing opportunities for 2021, is now highly ambitious. (Paragraph 274)

77.We welcome the commitment to future UK-EU cooperation to address issues of shared economic, environmental and social interest. We particularly welcome the continued shared commitment to international agreements on climate change, where the UK has been a global leader, and where continuing cooperation with the EU will help to offset any potential loss of influence as a result of Brexit. (Paragraph 277)

78.The EU (and many of its Member States) have expressed concern that the UK may seek to undercut EU standards and competitiveness. These concerns were reflected in the November 2018 text of the Withdrawal Agreement, but are now reflected in the (non-binding) Political Declaration. The amended text, the Government argues, maintains the UK’s commitment to high international standards while protecting the UK’s sovereign right to pursue a bespoke approach. (Paragraph 285)

79.Early case studies in the practical implications of these level playing field provisions will be found in the UK’s post-Brexit approach to workers’ rights, environmental protection, consumers’ rights, and State aid. We await proposals from the Government, as well as the EU’s response. Statements by EU leaders suggest that clear level playing field commitments will be a pre-condition for the EU to conclude a free trade agreement with the UK. (Paragraph 286)

80.We note also that the elements that make up the ‘level playing field’ are split between reserved and devolved competence. There will, as a result, be an overlap between any future UK-EU level playing field and the internal UK level playing field. The early adoption of UK-wide common frameworks, agreed by central and devolved administrations, will be an important early indicator of the UK’s capacity to come to an agreement with the EU in these areas. (Paragraph 287)

81.The former Prime Minister, Rt Hon Theresa May MP, in her Florence speech on 22 September 2017, argued that the length of any transition or implementation period should “be determined simply by how long it will take to prepare and implement the new processes and new systems that will underpin [the] future partnership”. She concluded that the challenges of this task “point to an implementation period of around two years”. The end date for the transition period was accordingly set (in late 2018) as 31 December 2020. (Paragraph 290)

82.Despite the repeated delays in the Brexit process, that deadline has not changed. The time available to negotiate the terms of the future economic relationship has thus been reduced from over two years to under one year—yet the task ahead is no less complex. Other deadlines, including the need to adopt a financial services equivalence framework and conclude a fisheries agreement, fall even earlier, on 1 July 2020. (Paragraph 291)

83.The current Government has made clear that it will not request an extension to the transition period. Yet the Political Declaration contains, for the most part, only an overview of the terms of the economic relationship, and while the two sides start from a position of alignment, the prospect of future divergence could make reaching agreement more difficult, technically and politically, than the Government allows. If agreement is to be reached by the end of 2020, both sides will have to commit from the outset to intense, continuous negotiation. But success cannot be guaranteed, and it would in our view be prudent for the Government to keep open the option of seeking an extension to the transition period, should more time be required to conclude an agreement in the best interests of both sides. (Paragraph 292)

84.We welcome the ambition by both sides to strike a “broad, comprehensive and balanced security partnership”, but note that the depth of this partnership will depend on “an appropriate balance between rights and obligations”, and on the UK’s willingness to continue to follow EU rules and to accept that the CJEU, as the sole interpreter of EU law, will have continuing influence over the application of those rules. (Paragraph 301)

85.In some areas the UK will necessarily cease to be part of the EU’s law enforcement and security ecosystem. This is most evident in the case of databases and data exchange. While we welcome the commitment to establishing arrangements for the exchange of Passenger Name Record and Prüm data, we regret the lack of any reference to UK access to the Schengen Information System II (SIS II) and the European Criminal Records Information System (ECRIS) database. (Paragraph 302)

86.It is unclear whether UK cooperation with Europol and Eurojust will go beyond existing third-country-arrangements. Both agencies are vital tools for UK law enforcement. (Paragraph 303)

87.We note that the UK will cease to be party to the European Arrest Warrant, but welcome the commitment to establishing “effective arrangements based on streamlined procedures” on extradition. We urge the Government to bring forward detailed proposals as soon as possible, ahead of formal negotiations. (Paragraph 304)

88.We welcome the commitment to continued cooperation in the areas of foreign policy and defence. While we note that this includes the possibility of UK contributions to EU development programmes, we regret the lack of specific detail about how such cooperation will work in practice. (Paragraph 315)

89.We also endorse the commitment to UK-EU political and industrial collaboration in the area of defence, through UK collaboration with the European Defence Agency and projects in the PESCO framework, and the possibility of UK defence companies participating in projects by the European Defence Fund. (Paragraph 316)

90.The EU’s readiness to engage in sectoral dialogue with the UK, and to invite the UK to informal EU Ministerial meetings on an ad-hoc basis, reflects the crucial contribution by the UK to the EU’s foreign policy. Taken together with the possibility of the UK participating in the planning of CSDP missions to which it contributes, the Declaration allows greater UK engagement with and influence over EU foreign policy than is currently afforded to any third country. We also note that the UK retains full sovereignty in determining how to respond to any invitation or option to participate in operations and missions. (Paragraph 317)

91.The Political Declaration is vague in respect of space. Set alongside the confirmation that the UK will no longer have access to Galileo, this underlines that there will be serious consequences for UK companies operating in the sector and for their ability to tender for contracts. (Paragraph 318)

92.The UK and the EU’s wish to continue cooperation and dialogue on cyber-security, civil protection, illegal migration, and counter-terrorism, reflects shared concerns, priorities, and threats. While commitments are vague, and the mechanisms for future collaboration are not always described, the Political Declaration shows willingness to continue to exchange information and cooperate in international fora. This is to be welcomed. However, we regret the conspicuous lack of reference to future UK-EU asylum cooperation, and we are concerned more broadly at the impact of UK withdrawal from the Dublin system. (Paragraph 325)

93.The target of negotiating the full terms of a new security partnership dealing with Justice and Home Affairs cooperation by the end of the transition period in December 2020 is extremely challenging, given the legal and technical obstacles to third country participation in many of the relevant EU mechanisms. (Paragraph 327)

94.We welcome the proposed overarching institutional framework, and, while we note that the precise legal form of the future relationship remains to be determined, we welcome the suggestion that it could take the form of an Association Agreement. Association Agreements are by their nature dynamic and evolutionary, and such a model fits well with the commitment by both sides to keep the future relationship under review. (Paragraph 341)

95.Much of the detail of how the future UK-EU dialogue will function in practice, including the Joint Committee’s rules of procedure, the frequency of its meetings, its membership, and the appointment of specialist sub-committees, remains to be determined. We addressed these issues in detail in our March 2019 report Beyond Brexit: how to win friends and influence people. We again emphasise that the work of the Joint Committee on the future relationship, and the process by which it is established, will require close parliamentary scrutiny and accountability at both UK and EU level. (Paragraph 342)

96.In that context, we particularly welcome the recognition of the importance of interparliamentary cooperation, and the proposed establishment of a specific dialogue between the European Parliament and the UK Parliament. We stand ready to work with House of Commons and European Parliament colleagues in establishing this dialogue as swiftly as possible. (Paragraph 343)

97.As we set out in Chapter 2, the proposed arbitration model for the future relationship means that the CJEU would have a limited, but continuing, role in relation to questions of EU law arising in disputes with the UK, even after its obligations under the Withdrawal Agreement fell away. These provisions, like those on dispute settlement and on the Joint Committee, illustrate how the structure for interinstitutional dialogue in the Political Declaration echoes that established under the Withdrawal Agreement. This underlines the close relationship between the two parts of the Brexit agreement. (Paragraph 344)

98.The Political Declaration confirms that formal negotiations on the future UK-EU relationship will begin only after UK withdrawal on 31 January 2020. The Political Declaration is thus in many places little more than an agenda for a discussion that has barely begun. But despite its lack of detail and precision, the Declaration is an important signpost to the shape of the future relationship, and to the structure and scope of the forthcoming negotiations. (Paragraph 351)

99.While much of the text of Political Declaration is unaltered from the November 2018 iteration, significant changes have been made, reflecting the evolution of the UK Government’s negotiating position. (Paragraph 352)

100.We welcome the commitment of both sides to engage in preparatory organisational work ahead of the commencement of formal negotiations. We also note their commitment to develop agreements in good faith, so that the future relationship can come into force by the end of 2020. Nevertheless, given the range and complexity of the issues to be discussed, which the former Prime Minister judged would require a transition period of around two years, this timetable is extremely challenging. (Paragraph 353)

101.We endorse the recognition in paragraph 136 of the Declaration, in the context of the future relationship, of the need to safeguard the peace process in Northern Ireland, and to protect the Belfast/Good Friday Agreement in all its parts. (Paragraph 354)

102.The negotiations on the future relationship should be subject to full parliamentary scrutiny. At EU level the negotiations are likely to take place under Article 217 or 218 TFEU, and will be subject to detailed and transparent scrutiny by the European Parliament. The UK Parliament and the British people deserve the same transparency and accountability, and we urge the Government to engage proactively and constructively with Parliament, rather than repeating the mistakes of the last three years. (Paragraph 355)

103.We are therefore concerned by the omission of what was clause 31 of the October 2019 version of the European Union (Withdrawal Agreement) Bill. The result of this omission is that Parliament will have no formal statutory role in respect of the future relationship treaty, other than the limited role provided for in Part 2 the Constitutional Reform and Governance Act 2010—a role which under section 22 of the Act can itself be disapplied by a Minister of the Crown. (Paragraph 356)

104.Our March 2019 report on Beyond Brexit: how to win friends and influence people, set out our views on the role of committees in scrutinising these negotiations, and our intention is therefore to play a full, active and constructive part in scrutinising negotiations on the future relationship during 2020. We urge the Government to engage with Parliament, and with select committees, in the same spirit. (Paragraph 357)





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