Spotlight on the process of scrutiny of Brexit-related treaties and implications for treaty negotiations involving the UK (September 2019)

30 September 2019

As explained in our previous posts, the UK is a party to over 1,000 agreements with third countries and international organisations by virtue of its EU membership.  These treaties and agreements will cease to apply to the UK from the moment it leaves the EU in a “no deal” scenario, or from the end of the implementation period provided for in the draft Withdrawal Agreement (as it was negotiated by former Prime Minister Theresa May) if the UK leaves the EU with a negotiated deal.  To prepare for a “no deal” scenario or for the end of the implementation period in the event the UK leaves with a deal, the UK Government has been working to identify which EU-third country international agreements need to be retained on exit, and to put in place arrangements with third countries to replicate the effects of the current agreements.

Since January 2019, the Government has put more than 50 Brexit-related treaties and international agreements before Parliament.  Under the Constitutional Reform and Governance Act 2010 (CRAG Act), a treaty must be laid before Parliament for 21 “sitting days” (i.e., a day on which both Houses of Parliament sit) to scrutinise the treaty before the treaty can be ratified.  Recent days on which Parliament was “prorogued” almost certainly do not count, notwithstanding that the Supreme Court declared the prorogation to be unlawful, void and of no effect (as we separately reported here).  Within the statutory framework of the CRAG Act, the EU Select Committee (EU Committee) has developed its own methodology for subjecting Brexit-related treaties (i.e., those replacing existing agreements to which the UK is a party by virtue of its EU membership) to the scrutiny of the Committee and ultimately of the House of Lords (see here for an overview of the process).  There is currently no equivalent in the House of Commons.

According to its website, the EU Committee’s mission is to “do ‘due diligence’ on the legal and policy implication of all Brexit-related treaties and international agreements published [until the end of the Parliament session]” and “report on all these agreements, to help Members of the House in identifying those of particular interest, so that they can, where appropriate, table resolutions or motion to debate them”.  In the current parliamentary session the Committee has so far issued 15 reports and scrutinised more than 50 Brexit-related treaties and international agreements (see here for a list of the reports).

The EU Committee divides the treaties and agreements into two types: (i) treaties to which special attention is drawn and; and (ii) treaties reported for information only.  The Committee uses six criteria to decide whether special attention is needed: (a) that the treaty is politically or legally important, or gives rise to issues of public policy that the House may wish to debate prior to ratification; (b) that it may be inappropriate, in view of changed circumstances since the precursor agreement was concluded by the EU; (c) that it differs significantly from the precursor agreement to which the UK is party as an EU member state; (d) that it contains major defects, that may hinder the achievement of key policy objectives; (e) that the explanatory material laid in support (the Explanatory Memorandum) provides insufficient information on the agreement’s policy objective and on how it will be implemented; or (f) that further consultation would be appropriate, including with the devolved administrations (i.e., Scotland, Wales and Northern Ireland).  So far, the EU Committee has drawn special attention to ten treaties and agreements and referred 41 for information to the House.  In most cases, criteria (a), (c) and (e) were key in the Committee’s decision to draw special attention to a treaty.

The EU Committee’s 15 reports highlight that the main objective of the UK Government is to ensure continuity of the effects of the EU’s international agreements after the UK’s withdrawal from the EU.  In the case of many multilateral agreements, the UK has sought to ensure continuity through the UK’s accession to existing agreements as an independent party.  The Committee reported these existing agreements for information only (see, for example, the Protocol amending the Marrakesh Agreement establishing the WTO considered in the EU Committee’s 27th Report).

In other cases, particularly in the bilateral context, the Government has adopted new agreements which replicate existing agreements or their effects with no or limited changes (for instance, to maintain the operability of the agreement (e.g., by replacing the EU bodies with UK-equivalent bodies in the text of the treaty or by adopting technical adjustments to make it operable in a bilateral context)).  Agreements of this nature have been reported to the House for information only.

The Government has also adopted the mechanism of “short form” agreements, which incorporate “by reference the relevant provisions of the underlying EU-third country agreement with relatively few modifications” (i.e., those necessary to tailor the agreement to the new circumstances).  The incorporation by reference is done through a “mutatis mutandis” clause.  This mechanism is regularly used in relation to specific provisions of treaties (examples include certain provisions of free trade agreements (FTAs) (where WTO provisions are incorporated mutatis mutandis) and in the Agreement for the Implementation of the Provision of the United Nations Convention on the Law of the Sea relating to the Conservation and Management of Straddling Fish Stock and Highly Migratory Fish Stocks of 4 August 1995 with regard to the settlement of disputes).  However, the mechanism has rarely been used for entire agreements (the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, which incorporates by reference the provisions from the Trans-Pacific Partnership, being a notable exception).  The EU Committee has taken the view that short form agreements can simplify scrutiny, but it also points out that the form may have some disadvantages.  It notes, for instance, that “those concluding as well as those scrutinising such agreements have to be sure that reliance on the mutatis mutandis clause will result in a well-defined outcome that will not lead to future disputes”.  Most of the treaties involving this mechanism were reported for information only, but special attention was drawn to some of them (see, for example, the UK-Denmark FTA in respect of the Faroe Islands considered in the EU Committee’s 31st Report).

In most cases, the new treaty or agreement rolled over a single prior agreement.  In some cases, however, it combined or incorporated mutatis mutandis multiple prior treaties or agreements.  Some of these new agreements were referred for information only but special attention was also drawn to some of them.  An example of the latter is the UK-Iceland-Norway Trade Agreement (considered in the EU Committee’s 40th Report) which brought together provisions of 22 agreements.  The EU Committee took the view that the UK-Iceland-Norway Trade Agreement significantly changes the nature of the UK’s trade relationship with Iceland and Norway.  In other cases, the new treaty or agreement does not roll over a prior EU international agreement but seeks instead to secure by means of a bilateral agreement rights currently enjoyed under EU law (see, for example, the UK-Spain Agreement on Participation in Certain Elections considered in the EU Committee’s 36th Report, which aims at securing certain voting rights currently enjoyed by UK and Spanish citizens under EU law); or to ensure alignment with EU law on various matters.  These agreements were reported for information only.

Drawing on its short but already quite significant experience of scrutinising the UK’s Brexit treaties, the EU Committee issued a report in June 2019 (“Scrutiny of international agreements: lessons learned”) setting out some recommendations to improve the process of scrutiny.  This report highlights, inter alia, that the 21 sitting days deadline could in some cases be too short to undertake proper scrutiny; that Parliament should be kept more informed of the negotiations; that Explanatory Memoranda should include mandatory headings to facilitate effective scrutiny; and that the Government should clarify the circumstances in which substantive amendments to treaties already scrutinised would be subject to further scrutiny.  The final point was raised in many of the EU Committee’s reports.  As the Committee explains in its June 2019 Report, “[c]urrently, it is not clear when amendments to agreements will engage the provisions of the CRAG Act, particularly where they are agreed by Joint Committees without the need for ratifications”.  The CRAG Act applies to “treaties” (which includes amendments to treaties) subject to “ratification” (as those terms are defined in section 25); it does not apply to a “regulation, rule, measure, decision or similar instrument made under a treaty” (section 25(2)).  The Committee further notes that “[i]t is also possible that some significant amendments may not need to be implemented in domestic legislation if the original implementing legislation is sufficiently widely drawn”.  In the Committee’s opinion, this could lead to a “scrutiny gap”.

These recommendations will likely influence both the way the Government conducts negotiations with its future treaty partners and that Parliament conducts its scrutiny of non-Brexit related treaties.  It is worth noting, for instance, that the Constitution Committee recently recommended the establishment of a new treaty scrutiny select committee which “should sift all treaties, to identify which require further scrutiny and draw them to the attention of both Houses” (on this topic, see our previous post on the Report of the Constitution Committee on “Parliamentary Scrutiny of Treaties”).

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