EU Withdrawal Joint Committee: Oversight

(Urgent Question): To ask the Secretary of State for Exiting the European Union if he will outline what checks the House of Commons has over the powers of the “Joint Committee” contained in the proposed EU withdrawal agreement.

As is common in international agreements, the withdrawal agreement provides for a Joint Committee comprising representatives of the UK and the EU to govern the implementation and application of the withdrawal agreement. The Joint Committee will have the powers listed in article 164 of the agreement, to ensure that both parties are able to discuss any issues that may arise concerning the management and operation of the withdrawal agreement. As set out in paragraph 3 of article 166, the Joint Committee will make all its decisions and recommendations “by mutual consent” of the parties. In other words, it cannot act if the UK does not agree. This is an important protection for the UK that Members should welcome.

Clearly Parliament will expect to be able to undertake scrutiny of the work of the Joint Committee, as indeed will the European Parliament. Quite how that will operate is something that the Government will discuss with Members of this House and the other place, should this House give its support to the withdrawal agreement. But this House should be in no doubt: the Government’s approach at the Joint Committee will be underpinned by full ministerial accountability to Parliament.

Thank you, Mr Speaker, for granting this urgent question. The Prime Minister is due to attend the critical European Council tomorrow and Friday. However, despite the imminence of those crucial negotiations, very few Members of Parliament in this House are even aware of the extensive powers of the EU-UK Joint Committee contained within the withdrawal agreement. It is very important that those powers are brought to the attention of the House before the Prime Minister attends the Council tomorrow, hence my request this morning.

The Joint Committee is designed to oversee all aspects of the operation of the agreement and, crucially, managing and supervising the implementation and operation of the future relationship. Its potentially wide-ranging powers are contained in articles 164 to 166 of the withdrawal agreement and its rules of procedure, which are an integral part of the treaty found at annex VIII, almost literally at the back of the 585-page document; there is, in fairness, an annex IX.

The decisions of the Committee have full force in international law, equivalent to the treaty itself, as guaranteed in article 166. The Committee can meet in private. It does not have to publish its agenda, any minutes or even a summary of its minutes and can be chaired by two unelected civil servants, nominated by either side, rather than by Ministers. Under its rules of procedure, the two co-chairmen, acting outside normal meetings, can even make legally binding decisions in its name by an exchange of notes, without any recourse to or consent from Parliament. Rule 9 of the rules and procedures, on decisions and recommendations, clearly states on page 565 of the treaty:

“1. In the period between meetings, the Joint Committee may adopt decisions or recommendations by written procedure, if the co-chairs decide to use this procedure. The written procedure shall consist of an exchange of notes between the co-chairs.

Take back control!

Thank you, Bishop.

In summary, the Joint Committee contained in the draft withdrawal agreement has hardly ever been discussed in the House of Commons or the media, despite the fact that it potentially gives two unelected civil servants the power to make decisions that are binding in international law by an exchange of notes, without the knowledge, let alone the consent, of this House. If we are to approve the withdrawal agreement, we will approve this procedure too, which is why it is so important we should know about it. I believe that these facts must be exposed for debate in this House before the Prime Minister departs for the European Council tomorrow. I thank you, Mr Speaker, for granting the urgent question, and I look forward to hearing—I will be intrigued to hear—the Minister’s reply.

My right hon. Friend asked me which bits of what he said I agree with, or which bits I thought were true or not true. Clearly, I agree with some of the things he said, and I think some of the things he said were slightly off the mark. The assumption underlying his question, as it seems to me, is that the Joint Committee is some subterranean plot with wire pullers attempting somehow to subvert the will of this House or to subvert our democracy.

My right hon. Friend will understand, as will the House, that the structure of the Joint Committee is very common in international agreements. An international agreement with two parties has to have a point of arbitration, and the Joint Committee, comprising representatives of the UK and the EU—[Interruption.] It is true that it is separate from the arbitration panel, but it will decide and govern the implementation and the application of the withdrawal agreement. This is entirely in keeping with what happens in international treaties. I would also suggest—

Is anything not true?

If my right hon. Friend would not insist on heckling me, I would also suggest the key part of all of this is paragraph 3 of article 166, which refers to “mutual consent”. The Joint Committee simply cannot act if the UK does not agree.

On the point about the UK Government’s relationship with this Parliament, there will be full and ample opportunity, as we have provided in the last four months, to debate the provisions or recommendations of the Joint Committee. In this final part of my answer to my right hon. Friend, I would like to stress that my right hon. Friend the Prime Minister herself has spent no fewer than 20 hours at this Dispatch Box in the last four months. There is a full and ample range of debate and discussion.

Thank you, Mr Speaker, for granting this urgent question. I congratulate the right hon. Member for Rayleigh and Wickford (Mr Francois) on securing it.

The Joint Committee has attracted a significant degree of attention over recent weeks in relation to its role in the operation of the Northern Ireland backstop, but as the right hon. Gentleman made clear, it is important to remember that the Joint Committee and its specialised sub-committees are also responsible for the application and implementation of the entire withdrawal agreement. Under Article 166, paragraph 2, any decisions made by the Joint Committee would have “the same legal effect” as the entire withdrawal agreement. The right hon. Gentleman has done this House a service in providing us with an opportunity to scrutinise more carefully this important part of the agreement and to seek reassurances about the role of Parliament in overseeing its operation.

To that end, may I ask the Minister the following questions relating to the role of this House in scrutinising the work of the Joint Committee, should the deal ever be approved? First, will the Government commit now to making a statement to this House before and after each and every meeting of the Joint Committee, and to make all of its documents available to Members? Secondly, what plans, if any, do the Government have to create a dedicated Committee of the House to oversee the withdrawal agreement, including the Joint Committee? Thirdly, the withdrawal agreement makes it clear that the Joint Committee will be made up of representatives of the United Kingdom and the European Union, so what role do the Government foresee Parliament having in the appointment of the UK representatives? Fourthly, is it the Government’s intention that the UK representatives include individuals from the main political parties, as well as those from the devolved Governments and Assemblies? Finally, specifically in relation to the Northern Ireland protocol, will the Minister confirm that it is the Government’s view that an indefinite application of the backstop would not constitute an unforeseen situation under article 164, paragraph 5(d) in such a way as might provide for amendment of the treaty itself?

On that list of questions, it would be absolutely customary and right for a Government Minister to make a statement when the Joint Committee had opined or made recommendations. That is absolutely in order. With regard to the hon. Gentleman’s request about a Committee, that is a matter for the House. It is not for the Executive to decide which Committees of this House can or cannot be formed.

We have ample and very full discussions with the devolved Administrations. They will of course be involved in aspects of the Joint Committee’s decisions, particular with regard to the question of Ireland and the backstop. There is no way, and this is carefully documented in the withdrawal agreement itself, that the Joint Committee would be making statements or recommendations about the backstop or any other matters relating to Ireland without, on our part, some representation and involvement of the Northern Ireland Government. On that question, I can assure the hon. Gentleman that there will be ample consultation and involvement of the Northern Ireland Assembly.

I congratulate my right hon. Friend the Member for Rayleigh and Wickford (Mr Francois) on securing this urgent question, and you, Mr Speaker, on granting it. May I simply ask my hon. Friend on the Front Bench about a particular point that was made by my right hon. Friend and the Opposition spokesman? With regard to “situations unforeseen” when this agreement was signed, who decides what is unforeseen?

On that specific question, the Joint Committee will have a role in suggesting what has not been foreseen. This is a very hypothetical question. What I find so extraordinary in this whole episode is that all of this is contingent on the withdrawal agreement being passed, yet my right hon. Friends who are asking these questions have consistently voted against the agreement. It seems very bizarre to me—[Interruption.] No, the point is that there is no way, as the question from my right hon. Friend the Member for Rayleigh and Wickford suggested or seemed to imply, that this is some sort of mystical plot, as I have said, to undermine the democratic processes of this House. The Joint Committee will not be doing that. The British Government will be in wide consultation with the House, there will be ample room for debate and everything will be done with the utmost transparency.

I commend the right hon. Member for Rayleigh and Wickford (Mr Francois) for submitting this question. I share some of his concerns, although after listening to his horror story about all the evils in the way this Joint Committee will operate, I have to say that 90% of it applies to the workings of the British Cabinet and 99% of it applies to the way international trade deals will be negotiated on our behalf without our knowledge or consent in the great new world that he seeks to achieve after Brexit.

On accountability and openness, I appreciate that parts of the agreement would insist on confidentiality in some circumstances, but will the Minister give an assurance that the UK Government will publish and lay before Parliament as much about the workings of the Committee as is permitted under the agreement as soon as possible?

Everyone now knows that it was a mistake to exclude the devolved Administrations and other people with potential skills from the Brexit negotiations. Everyone knows that it was a mistake not to ask for views and support from across the House much earlier in the process. Will the Minister therefore answer the question that he did not answer when the hon. Member for Greenwich and Woolwich (Matthew Pennycook) asked it, and give an undertaking that the UK delegation to this vital and exceptionally powerful Committee will properly reflect the political and social diversity of these nations? Will he also undertake that, particularly when it is looking at items within the devolved competences of Scotland, Wales and Northern Ireland, the Governments of those nations will be properly represented as part of the negotiating team and not simply left in a side meeting to be told what has been decided on our behalf afterwards?

I want to clarify that there is no scope within the Joint Committee for some form of delegation or negotiating team. Its sole function is to ensure that the terms of the withdrawal agreement are complied with.

As my right hon. Friend the Member for Rayleigh and Wickford (Mr Francois) so ably enunciated, all the workings of the Committee are to be found in annex VIII of the agreement. The annex is some 20 to 25 pages long and very carefully sets out how the Committee will work.

Why do the Government think it acceptable that any legal dispute about European law will be resolved by a decision of the European Court of Justice—a court for one of the two parties to the agreement—given that practically every legal dispute would be about a matter of European law, because both parties would still be under comprehensive European law?

There are two stages to the process. Clearly, there is the period after the end of the implementation period when the CJEU will decide matters of EU law. During the implementation period, as my right hon. Friend knows, it will be as if we were a member state—that is what the implementation period means. As my right hon. Friend suggested, within the implementation period, matters of EU law will be decided by the CJEU. After that, its powers are restricted only to matters of EU law, which we would be outside. That is the position as clearly set out in the withdrawal agreement.

I do not know about you, Mr Speaker, but it feels to me that this sorry saga proves that the Conservative party is now entirely run by the European Research Group. It puts me in mind of a limerick, which was much repeated in the 1930s:

“There was a young lady of Riga,

Who went for a ride on a tiger.

They came back from the ride

With the lady inside

And a smile on the face of the tiger.”

The Prime Minister has tried to ride the ERG tiger for all this time and frankly, she is now inside it, isn’t she?

I assure the hon. Gentleman that I have not been consumed by a tiger and I am still smiling. If we get the deal through the House—I look forward to his support in that—we will leave the EU and be able to move forward, I hope, in a progressive and measured way. However, I thank him for his poetic interjection.