Brexit: parliamentary scrutiny of UK replacement treaties

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.

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, with a view to them entering into force either at the end of the transition/implementation period or on a no-deal exit day. The Government calls this a ‘Treaty Continuity Programme’. It involves copying over as much as possible 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.

The ‘treaty continuity programme’ has resulted in a large number of new UK treaties appearing at once – in a few weeks at the beginning of 2019, for example, there were more than normally appear in a whole year (the Government normally negotiates around 30 new treaties a year). The Government has prioritised some of the treaties but admitted that many would not be completed before 29 March - when this was the UK’s exit day. Some might still not be completed by 31 October, the new exit date, but the extra time will help. 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).

In the case of some multilateral agreements, where the UK intended to accede to a treaty in its own right on the original exit day of 29 March 2019, the Government has suspended accession to take account of the exit day extension to 31 October.

Parliamentary scrutiny of 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. Any treaties laid before Parliament after 22 February would not have been able to have the full CRAG Act period for parliamentary scrutiny (21 days when both Houses are sitting) if they were to be ratified by 29 March or by 12 April (the first Article 50 extension). The second extension to 31 October gives Parliament more time for scrutiny, but the Government might still need to take action to accelerate the process. It 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 them, some for information only and others for debate. 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 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 the ‘treaty continuity programme’, but there is little coordination between them and little experience of treaty scrutiny to draw on. Their main concerns appear to have been the Government’s progress with concluding treaties before 29 March, the possible disruption that would be 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.

In a document published at the end of February 2019, the Department for International Trade (DIT) published a White Paper setting out how it will be more transparent about post-Brexit trade negotiations and how it will 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 or any other category of post-Brexit treaty.

Several committees in both Houses have been looking at the future parliamentary scrutiny of treaties and are beginning to call for things such as new committee arrangements for treaty scrutiny, more information from the Government, earlier parliamentary engagement, including when negotiating priorities are set, and possibly a requirement for parliamentary approval of at least some types of treaty. It may be, therefore, that the balance between Parliament and Government on treaties could shift further in favour of Parliament, while respecting that it is for the Government to do the actual negotiating. The House of Lords European Union Committee has published a “lessons learned” report as a contribution to the work of other committees on the post-Brexit parliamentary scrutiny of treaties.

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

Appendix I explains some treaty terminology. The tables in Appendix II show bilateral agreements or arrangements between the UK and other EU Member States, the state of play regarding bilateral and multilateral replacement agreements; where possible, links to the original scrutiny reports by the Commons European Scrutiny Committee of precursor EU agreements, and links to recent House of Lords scrutiny reports on the replacement agreements.