Parliament’s role in scrutinising the UK-EU Trade and Cooperation Agreement is a farce

On 30 December 2020, both Houses of Parliament are being recalled to consider legislation that will implement in UK law the Trade and Cooperation Agreement (TCA) with the EU (the ‘future relationship treaty’) reached on 24 December. Passage of the legislation will allow the UK to apply and ratify the Agreement. The UK and EU will apply the agreement provisionally from 1 January 2021, with its ratification by the EU then subject to the consent of the European Parliament, which declined to complete its process in the time left before the end of 2020. The treaty will enter into force after both sides have ratified, and at the earliest on 1 February 2021.

Proceedings on the future relationship treaty are a constitutional failure

The UK Parliament’s proceedings on the TCA will be a farce:

• Parliament is considering implementation of the TCA less than 48 hours before it is to be applied – so late as to make ‘no-deal’ the only possible alternative, and to be of extremely limited use to those directly affected by it.
• Parliament will agree to pass the implementing Bill in a single parliamentary day. As things stand, this one day will constitute Parliament’s only formal scrutiny, before it is ratified by the UK and enters into force, of a 1,246-page treaty that will govern in international law the UK’s relationship with its nearest neighbour and largest trading partner for years. Parliament will agree to consider the Bill with insufficient time for the normal range of select committees – which the two Houses charge to assist with the consideration of legislation – to examine and report properly on the treaty before it is applied, or the Bill before it is debated.
• Proceedings on the implementing Bill will take place only six days after it was officially confirmed that there would be a treaty; six days after Parliament was recalled from recess to consider the Bill; four days after the treaty was published; and less than one day after the Bill was published.

Taken together, this process represents an abdication of Parliament’s constitutional responsibilities to deliver proper scrutiny of the executive and of the law.

These proceedings contrast starkly with those which took place on Bills to implement EU treaties when the UK was a Member State. For example, when the House of Commons considered the Bill to implement the Single European Act, which created the EU Single Market the UK is now leaving, it did so in five days over three months, starting two months after the treaty was signed and ending a year before it was to enter force.

The current process is a step backwards for scrutiny compared even with the Withdrawal Agreement, which some MPs have since complained has unsavoury details “buried in the fine print, unnoticed by many”. The Withdrawal Agreement had at least been published for two months when the new House of Commons agreed in December 2019 to consider its implementing Withdrawal Agreement Bill in four days over a three-week period, still leaving three weeks for Lords consideration and Royal Assent before the treaty was to enter into force.

It didn’t have to be this way

Several MPs have also complained about the speed, brevity and lateness of the proceedings that the government is offering them on the TCA-implementing Bill.

However, especially in light of its experience with the rushed proceedings on the Withdrawal Agreement, Parliament – primarily the House of Commons – could and should have asserted itself to ensure more satisfactory scrutiny conditions for any future relationship treaty, by amending the Withdrawal Agreement Bill in January to require them.

Given the shortness of the future relationship negotiating period and the hardness of the deadline at its end, there was always a risk of the talks going to the wire and Parliament being squeezed into a minimal space left up against it.

But, in proceedings on the Withdrawal Agreement Bill, MPs voted by 347 to 251 against a cross-party opposition amendment that would have required the government to secure House of Commons agreement to an approval motion for the treaty, leave time for select committee reporting, and wait at least 14 days after laying the treaty before ratifying (unless it was prepared to defy any House of Lords vote against).

Resisting this and other similar amendments on 8 January, the Minister, Robin Walker MP, indicated that the government already had a last-minute scenario in mind, well before the arrival of Covid-19. He told the House that such amendments would impose:

“unnecessary requirements that risk impeding and delaying negotiations … [and that] … would make it very challenging indeed to conclude negotiations by the end of 2020.”

MPs thus left themselves wide open to the kind of farcical scramble in which they are now obliged to take part.

Once the future relationship talks were underway and as the clock ticked down, MPs overall showed a startling lack of curiosity about when and how they would be involved in the final stages of the process.

If the Prime Minister had decided in the week before Christmas not to do the deal, the UK would have defaulted out of the Single Market and Customs Union, and onto WTO trading terms with the EU, with Parliament in recess and silent.

Parliament’s role on treaties is being brutally exposed

Having failed to insist on any more ambitious and satisfactory scrutiny process for the future relationship agreement, MPs find themselves left with the UK’s default system for Parliament’s engagement with treaties.

The current extraordinary circumstances expose especially brutally the longstanding shortcomings of this system.

Over-reliance on legislation

For one thing, Parliament is fortunate that the government decided the TCA required legislation before being even provisionally applied, as well as ratified.

(With the EU Council agreeing to apply the treaty provisionally without waiting for the European Parliament, from this perspective the Westminster Parliament has at least come off better than its EU counterpart.)

The government could have set aside the requirement in the 2010 Constitutional Reform and Governance Act (CRAG Act) that a treaty must lie before Parliament for 21 sitting days before being ratified (a deadline that was passed in mid-November), by declaring the TCA to be an “exceptional case”. As a consequence, if the TCA had not required legislation, the UK could, in law, have agreed, signed, provisionally applied and ratified the TCA by 1 January without Parliament being involved.

(As it is, given that the treaty will be being provisionally applied in any case pending the European Parliament’s consent process, it might be possible for parliamentarians to piggy-back on the fact that that process will take place only in January to suggest that the UK government refrains from ratifying the TCA until after some sort of further UK parliamentary scrutiny that month, although this suggestion raises legal questions beyond the scope of this post.)

The need for Parliament to pass implementing legislation is the conventional constitutional rationale for it having only a weak role in treaty scrutiny.

However, even assuming that legislation is needed in any particular case, the focus on legislating means that the House of Commons’ most powerful role with respect to treaties is subject to the government’s control of parliamentary time. And if the House of Commons wants more time to consider a treaty-implementing Bill than the government proposes, it must vote down a government programme motion or business motion, as the previous House of Commons did in October 2019 with respect to the original Withdrawal Agreement Bill.

Passing an implementing Bill does not in any case constitute proper scrutiny of a treaty. As critics of both the Single European Act and the Maastricht Treaty found at the time, for example, because Parliament’s engagement is limited to the implementing Bill there may be important elements of the treaty which Parliament cannot debate, because they do not require domestic legal change and so do not feature in the Bill.

Making domestic legislation to implement a treaty comes too late in the process for Parliament to use it to influence a treaty’s contents. By this stage, evidently, the treaty text is a done deal.

Furthermore, it may not be clear until well into the negotiating process whether any resulting treaty is going to require legislation. In the case of the future relationship treaty, the likelihood of primary legislation was only confirmed in October, in evidence from UK Chief Negotiator Lord Frost to the House of Lords EU Committee.

Lack of upstream scrutiny

As is normal in the UK’s default treaty-making arrangements, the future relationship process saw no formal parliamentary engagement further upstream than the reaching of an agreement.

The Prime Minister agreed the future relationship treaty for the UK without the House of Commons ever having held a formal debate on the substance of the UK’s negotiating position.

The Commons held a debate related to the talks in July, when the SNP used an Opposition Day to try to call for the post-Brexit transition period to be extended beyond 31 December. However, because the government controls the timing of Opposition Days, the debate took place after the end-June deadline for extending the transition had passed.

The closest the House of Commons came to a formal debate on the future relationship negotiations was on 4 June, when the government fulfilled the statutory requirement in the Withdrawal Agreement Act to hold a debate on any EU measure during the transition that the European Scrutiny Committee declared “raises a matter of vital national interest to the United Kingdom”. The resulting debate was formally occasioned by the ESC’s opinion on the EU’s mandate for the future relationship talks, but it produced the House of Commons’ only formally-expressed view on the negotiations, namely:

That this House, having regard to the constitutional and legal functions enshrined in the European Union (Withdrawal) Act 2018 and the European Union (Withdrawal Agreement) Act 2020, urges the Government to conduct its negotiations with the European Union with the fullest possible transparency to facilitate essential parliamentary scrutiny; also urges the Government to make regular progress reports on the negotiations, including on stakeholder contributions to the consultation on The Future Relationship with the EU: the UK’s Approach to Negotiations, and to address the issues identified by the European Scrutiny Committee in its Fifth Report of Session 2019–21, HC 333, as matters of vital national interest.

It seems indicative that, when it agreed the Withdrawal Agreement Act in January 2020, Parliament approved a potential requirement to debate a measure taken by the EU, but passed up the opportunity to include any equivalent requirement with respect to the UK side of the negotiations, including as concerns its own scrutiny role.

Plus ça change, plus c’est la même chose …

At the point at which the UK is supposed to gain greater opportunity to do things differently, the process around the future relationship treaty in the last week of 2020 will instead display some of the worst extremes of arrangements for Parliament’s role in treaty-making, and for its wider relationship with government, that long pre-date Brexit. One of the crowning moments in a process that is supposed to ensure that ‘Parliament will make our laws’ will only expose the deeply unsatisfactory way in which it does so. And, in the process, the hopelessly inadequate nature of parliamentary engagement on the TCA will increase the risk that this latest treaty with the EU will prove unstable and poorly understood.

After 1 January, the UK will be able to a greater extent to make treaties to a timetable it sets itself. But being ‘agile’ in this process, a quality the government prizes, must not mean ‘unscrutinised’. It is notable that the TCA will presumably go before Parliament without one of the additional government reports which are being supplied with the UK’s ‘continuity’ trade agreements comparing the UK-only deals with their predecessors, and also without the extra scrutiny time agreed between the government and select committees for ‘new’ free trade deals. Looking ahead, MPs must take much more responsibility than they have in the future relationship process to ensure that they have the conditions they need to properly discharge their scrutiny role with respect to the making of UK treaties.

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