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Brexit: parliamentary scrutiny of UK replacement treaties

Published Friday, March 22, 2019

The UK is party to hundreds of international treaties with third states or organisations, many of them on trade, by virtue of its EU membership. To continue to benefit from the advantages of these agreements, the Government has been seeking to replace them in a UK bilateral context. The Government has prioritised trade agreements, but has also agreed replacement agreements covering aviation services and safety, and road transport, for example. But Parliament is not happy about the way the Government is carrying out this 'treaty continuity programme' and Committees in both Houses have called for a greater scrutiny role for Parliament in treaty-making processes. This paper looks at what has been going on and what Parliamentary Committees have asked for. It includes a table showing where we are with these treaties so far and what sort of scrutiny they have undergone.

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EU agreements with third countries or organisations

The UK is a party to around 800 bilateral or multilateral agreements negotiated and concluded by the EU with third states and organisations. These include many trade agreements: estimates vary from around 70 to over 100. Many others are trade-related, while several concern matters such as environmental protection or cooperation in science, research or security.

These will no longer cover the UK after Brexit. During the proposed transition period in the November 2018 Withdrawal Agreement, the third parties with which the EU has concluded agreements are encouraged to continue to regard the UK as a Member State. Legislation giving effect to these agreements would be retained in UK law under the European Union (Withdrawal) Act 2018 and made operational by secondary legislation under that Act and other UK primary legislation (e.g. the Trade Bill as and when it is passed, and the Taxation (Cross-border Trade) Act 2018.

UK ‘replacement’ agreements

To prepare for any exit scenario the UK Government is also trying to replace these EU treaties with new UK treaties with the third countries concerned. This means copying over as much as it can from the ‘precursor’ EU agreements. But in many cases there have to be new provisions for things, such as the Joint Committees that oversee these agreements, for tariff rate quotas and rules of origin, and for the extent to which they extend to the UK’s Overseas Territories and Crown Dependencies.

This has resulted in a large number of new UK treaties appearing at once – in a few weeks at the beginning of 2019 there were more than normally appear in a whole year. The Government has prioritised some of the treaties but admitted that many will not be completed before 29 March or possibly by 12 April if this is the UK’s Article 50 extension. Some treaties (e.g. the EU-Turkey Customs Agreement) cannot be replaced until questions about the UK’s future relationship with the EU have been resolved. Others will be replaced not by treaties but by agreements which may not be legally binding, such as Memorandums of Understanding (MoUs).

By 21 March 2019, 31 treaties had been signed and had completed their Parliamentary process under the Constitutional Reform and Governance Act 2010, with another 12 before Parliament and four due to begin the parliamentary process. This leaves a large number uncompleted, and little information on what else might be appearing in the next week or so.

Parliamentary scrutiny of the replacement agreements

Many of the agreements are subject to the provisions of the Constitutional Reform and Governance Act 2010 (CRAG Act), but this does not guarantee that Parliament can debate or vote on them. Moreover, any treaties laid before Parliament after 22 February will not have been able to have the full CRAG Act period for parliamentary scrutiny (21 days when both Houses are sitting) if they are to be ratified by 29 March or by the end of a short extension. For those, the Government has two main options: use the ‘exceptional cases’ provision in the CRAG Act to avoid the usual scrutiny period, by simply publishing the treaty and laying a Written Ministerial Statement setting out why the usual provisions are not being followed; or ‘provisional application’ of the treaty before it is ratified, which could in theory allow for the treaties to be applied indefinitely without any parliamentary involvement except in passing any implementing legislation required. It is not yet clear which it will choose for which treaties, although its preference is for provisional application.

Where the UK has signed replacement agreements, the accompanying Government Explanatory Memorandum (EM) indicates the Brexit background to the agreement. The Government is providing the text of the Agreement and the EM to Parliament (and in the case of replacement trade agreements, an additional report to Parliament) once it has been signed. The House of Lords EU Committee has since the beginning of 2019 taken on a temporary new role scrutinising the replacement agreements, and has issued several reports on the Brexit replacement treaties. The first of these to draw treaties to the special attention of the House raised a number of important issues: for example, the Government’s use of ‘short form’ agreements that largely just refer back to the precursor agreements as amended and interpreted; the arrangements for scrutinising future modifications of the agreements; and the adequacy of the Government’s consultation on these agreements, in particular with the Devolved Administrations (DAs). This prompted Lords motions seeking to extend the parliamentary scrutiny period for three treaties by 13 March) by a few more weeks.

The Commons response has been less structured – even though the Commons has slightly more power to oppose ratification than the Lords. Various Commons Committees have for some time been corresponding with and taking evidence from Government Departments about aspects of the Government’s ‘treaty continuity programme’. But there is little coordination between them and little experience of treaty scrutiny to draw on. Their main issues of concern at present appear to be the Government’s progress with concluding treaties before 29 March, the disruption caused if treaties are not replaced, and a lack of early and comprehensive engagement and information about the programme.

There have been calls from the International Trade Committee (ITC) and others for a greater role in scrutinising the replacement treaties, and, for example, to see these texts earlier – upon initialling – to give them an earlier opportunity for scrutiny.

Government promises a new role for Parliament for future Free Trade Agreements

In a document published at the end of February 2019, the Department for International Trade (DIT) published a White Paper setting out how it intends to be more transparent about post-Brexit trade negotiations and to give Parliament a greater role, including scrutiny by parliamentary committee(s), a new Strategic Trade Advisory Group and more stakeholder consultation. This elaborated on an earlier White Paper on preparing for the UK’s future trade policy. However, it covers only post-Brexit Free Trade Agreements, and neither the current replacement treaties nor any other category of post-Brexit treaty.

Several committees in both Houses have been looking at the issue of parliamentary scrutiny of treaties lately, and are beginning to call for things like new committee arrangements for treaty scrutiny, much more information from the Government, earlier Parliamentary engagement including when negotiating priorities are set, and possibly even a requirement for parliamentary approval of at least some types of treaty in future. It may be therefore that the balance between Parliament and Government on treaties is likely to shift further in favour of Parliament, whilst respecting that it is for the Government to do the actual negotiating.

The Government has also promised that the Devolved Administrations will be more involved in future treaty-making processes.

Appendices

Appendix I explains some treaty terminology. The tables in Appendix II shows bilateral agreements or ‘arrangements’ between the UK and other EU States, the state of play with bilateral and multilateral replacement agreements and scrutiny by the European Scrutiny Committee of the original precursor agreements.

 

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