Countdown to Brexit: 15 days – Eight indicative ‘noes’ and another ‘Meaningful Vote’ in Parliament – but preparations for a post-Brexit World must speed up
Whilst we wait for the Parliamentary merry-go-round to come to a stop, Brexit Partners continues its look at what the UK needs to do to prepare for the future – whether it leaves the EU with or without a deal – or whenever “exit day” arrives.
By virtue of its EU membership, the UK is party to hundreds of international Treaties with ‘third states’ and organisations - many of them on trade. If the UK is to continue to benefit from the advantages of these agreements, the Government must ‘seek to replace’ them in a UK bilateral context.
The Government has prioritised ‘trade agreements’ - but has also agreed, for example, replacement agreements covering aviation services and safety, and road transport.
Parliament is unhappy about the way the Government is carrying out this 'treaty continuity programme' - and Committees in both Houses of Parliament have called for a greater scrutiny role for Parliament in treaty-making processes.
What has been the approach and achievement to date – and what are the Parliamentary Committees asking for.
We have included a table showing progress made on treaties to date - and the level of scrutiny they have undergone.
This information is fundamental for citizens, business and commerce planning their future strategies – but has largely been lost from view in the frenzy and focus on the Withdrawal Agreement debates.
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 but it is generally accepted as over 100.
Others concern matters such as: environmental protection, or cooperation in science, research or security.
EU-Third Party Treaties will no longer cover the UK after Brexit.
If the Withdrawal Agreement deal is accepted, ‘third parties with which the EU has concluded agreements’ are encouraged to ‘continue to regard the UK as a Member State during the proposed transition period’. 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’. For instance, the Trade Bill - as and when it is passed into law, 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. In many cases, however, 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 were never going to be completed before 29 March – and in doubt for 12 April – or even 22 May.
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).
31 treaties have been signed and had completed their Parliamentary process under the Constitutional Reform and Governance Act 2010
12 are before Parliament
4 are due to begin the parliamentary process.
This leaves as many as 700 ‘uncompleted’ - and there is little information on what else might be appearing in the next week or so.
We list Treaty areas for guidance – and recommend business contact their MP to prioritise for action those Treaties that will impact them.
Parliamentary scrutiny of the replacement agreements
Once control of Treaties reverts to the UK from the EU, many become subject to the provisions of the Constitutional Reform and Governance Act 2010 (CRAG Act). This does not guarantee that Parliament can debate or vote on them.
Moreover, any treaties that were not laid before Parliament by 22 February are unable to complete the full CRAG Act period for Parliamentary scrutiny. This requires 21 days when both Houses are ‘sitting’ – typically 4 days per week, less holidays such as Easter.
To be ratified in time for Brexit, the Government has two main options:
use the ‘exceptional cases’ provision in the CRAG Act to avoid the usual scrutiny period. Simply publish the treaty and lay a ‘Written Ministerial Statement’ setting out why the usual provisions are not being followed; or
‘provisional application’ of the Treaty before it is ratified. This 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 the Government will choose for which treaties - although its preference seems to be for ‘provisional application’.
Where the UK has signed replacement agreements, an accompanying ‘Government Explanatory Memorandum’ (EM) indicates the Brexit background to the agreement. The Government has been 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.
Since the beginning of 2019 The House of Lords EU Committee has added a new and ‘temporary’ role in scrutinising the replacement agreements - and has issued several reports on the Brexit replacement treaties.
The first report draws the “special attention of the House” on treaties raising 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 - by ‘a few more weeks’ - the parliamentary scrutiny period for three treaties.
The Commons response has been less structured. The Commons has more power to oppose ratification than the Lords – and 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’.
There is little coordination between the Committees – and little experience in UK Government or the civil service of treaty scrutiny to draw on. Their main issues of concern at present appear to be the Government’s lack of progress with concluding treaties by Brexit - given the disruption caused if treaties are not replaced, and a lack of early and comprehensive engagement and information about the programme – especially in a no-deal scenario.
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 in order to give them an earlier opportunity for scrutiny.
Government promises a new role for Parliament for future Free Trade Agreements
In 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 not the current replacement treaties, nor any other category of post-Brexit treaty.
Committees in both Houses looking at the issue of parliamentary scrutiny of treaties are calling for: new committee arrangements for treaty scrutiny; much more information from the Government; earlier Parliamentary engagement including when negotiating priorities are set; and a requirement for parliamentary approval of some types of treaty in future.
Constitutionally, the UK must find the balance between Parliament and Government on treaties. It is likely to shift further in favour of Parliament - 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.
Appendix I: explains some treaty terminology.
Appendix II: lists 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.
Here is a summary of some of the areas of that will ultimately need to be addressed in a post-Brexit World by UK and third country bilateral Treaty or Agreement to replace the 800 EU Treaties that presently cover the UK. The list of countries with whom the UK has to complete this work is truly global:
Citizens’ rights (multiple Treaties needed)
Social security (multiple)
Reciprocal Healthcare (multiple)
Trade, customs and tax (multiple)
Financial Services (multiple)
Nuclear Cooperation (multiple)
Transport (dozens listed)
Justice & Home Affairs (multiple)
Mutual Recognition of conformity (dozens)
Civil Justice (multiple)
Environment and Animal Welfare (dozens)
Foreign Policy (multiple)