Countdown to Brexit: 48 days – Parliament begins looking ahead to International Treaties and Agreements post-Brexit
Parliament’s ‘European Union’ Committee has published its first report. It has recently been tasked with beginning scrutiny of Brexit-related treaties and-or international agreements. This is vital as the UK attempts to 'rollover' the plethora of international agreements that the EU has signed in the last 40 years – and that apply to the UK an integral member of the bloc.
Under the Prime Minister’s ‘Withdrawal Agreement’ - reached between the UK Government and the EU in November - the UK would have continued to be bound by EU international agreements for the duration of any transition period.:
In a no-deal Brexit, however, these agreements will cease to apply on exit day – and a: “large number of replacement UK treaties will have to be ratified by Parliament before, or as soon as possible after, 29 March 2019.”
Ministers must bring Brexit-related treaties to the Commons. The EU Committee will scrutinise all of them as they are brought forward and may: report them as needing further information; or draw them to the 'special attention' of the House.
This week’s report considers three international agreements - which are all reported for information.
The Committee also sent a letter to the Secretary of State for Exiting the EU, Stephen Barclay MP, seeking further information on the Government's programme of Brexit-related treaties.
In this first report, the Committee also spells out the constitutional requirements for debating, scrutinising and ratifying any Treaty – a procedure that has seldom been needed or used for 4 decades. Treaties need an absolute minimum of “21 Parliamentary Sitting Days” – or about 6 calendar weeks – and must follow a clearly defined process.
It is not good news in the event of a no-deal Brexit in less than 7 weeks’ time - when the UK would be stripped of all Treaties and Agreements. For instance, the recently negotiated comprehensive EU-Japan Trade Agreement. This took 6 years to negotiate and came into effect just a week ago. The UK will be excluded from it after 30 March – and has been rebuffed in its first move to attempt a rollover.
Three Agreements scrutinised – all reported for ‘information’
Protocol (2015) amending the Annex to the Agreement on Trade in Civil Aircraft
The UK is signatory to an Agreement on Trade in Civil Aircraft (ATCA), which eliminates import duties on aircraft (other than military aircraft) as well as other products such as civil aircraft engines, parts, components of civil aircraft and flight simulators. An Annex to the ATCA lists the products to be accorded duty-free or duty-exempt treatment. Products in the Annex are classified following the Harmonized Commodity Description and Coding System which allows participating countries to classify traded goods on a common basis.
The Government’s Explanatory Memorandum notes that the effects of the Protocol “are bound in our WTO goods schedule”. The Government proposes to lodge an instrument of continued acceptance at the WTO to ensure the UK’s ongoing adherence after leaving the EU.
Finding: “We report the Protocol amending the Annex to the Agreement on Trade in Civil Aircraft for information.”
Protocol amending the TRIPS Agreement
The Agreement on Trade-Related Aspects of Intellectual Property Rights - the “TRIPS” Agreement is a comprehensive multilateral agreement on intellectual property between all the members of the World Trade Organization (WTO). It sets down minimum standards for the regulation by national governments of many forms of intellectual property.
The UK is currently bound by the Amendment, and now proposes to lodge an instrument of continued acceptance at the WTO to confirm its membership after leaving the EU.
Finding: “We report the Protocol amending the TRIPS Agreement for information.”
Protocol amending the Marrakesh Agreement establishing the World Trade Organization
The General Council of the World Trade Organization (WTO) resolved to improve aspects of the 1994 General Agreement on Tariffs and Trade, to help reduce the administrative burden associated with moving goods across borders. The outcome of the negotiations that followed was the Agreement on Trade Facilitation, incorporated by the Protocol Amending the Marrakesh Agreement establishing the World Trade Organization.
The Agreement is divided into two sections. The first section is designed to expedite the movement of goods by streamlining customs procedures and removing red tape. The second section contains special and differential treatment provisions for developing and least-developed countries that allow them to either delay implementation of individual provisions, or make the implementation of specific provisions contingent on the receipt of technical assistance and capacity building support.
In summary, UK traders benefit from faster clearance times for their goods in other countries.
Finding: “Given the UK is simply seeking to accede to the existing Protocol, with all its benefits and no new obligations, we report the Protocol amending the Marrakesh Agreement establishing the World Trade Organization for information.”
Even though the UK is a Member of the World Trade Organization and also a signatory to the (plurilateral) Agreement on Trade in Civil Aircraft in its own right, it is currently bound by the three Protocols considered in this report only as a Member State of the European Union. The reason for this apparent discrepancy lies in the fact that both the content of international trade agreements and the scope of EU competences have evolved over time.
The EU has long held an exclusive competence with regard to the common commercial policy. Early trade agreements were, however, limited in scope, and when the WTO Agreements were negotiated in the early 1990s, the Commission and Member States disagreed about the extent to which the EU had the competence to conclude the new agreements. The Court of Justice was asked to issue an opinion on this question, and decided that the European Union (at that time still the Community) and its Member States were “jointly competent”, both with regard to the General Agreement on Trade in Services (GATS) and the TRIPS Agreement.
In response to the enlarged scope of international trade negotiations, Member States decided over time also to enlarge the EU’s competences in this area. The three Protocols at issue here fell into these enlarged exclusive competences of the EU. Thus, the EU accepted them and they became binding on the Member States without the Member States having to become parties in their own right.