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The European Scrutiny Committee recently (08 March 2019) published a unanimously-agreed report setting out the interim findings of its inquiry examining the process and outcomes of the UK’s exit negotiations; together with an analysis of the draft Withdrawal Agreement negotiated by the Prime Minister’s team.

• Read the Committee's conclusions
• Read the full report: The draft EU/UK Withdrawal Agreement: key legal and political questions

As part of its routine scrutiny of EU legislative proposals, the Committee has been considering the draft Withdrawal Agreement. It has in parallel been conducting an inquiry into the Brexit negotiations, with testimony from witnesses including the former Brexit Secretaries David Davis and Dominic Raab, as well as Steve Baker and Suella Braverman.

The report highlights:

• Internal government divisions throughout the negotiating process;
• The extent to which EU law will continue to be imposed on the UK, having been passed by Qualified Majority Vote or consensus of the 27 Member States during at least the transitional period and potentially longer, and under the Northern Ireland ‘backstop’ protocol, should it enter into force. This would be without the UK being present when laws are passed and without a transcript of proceedings being available. This would inevitably put the UK under the constitutional and legal authority of laws passed by the EU;
• The need for the Government to confirm, in writing, the outcome of the Attorney General’s negotiations in Brussels, and publish its draft Withdrawal and Implementation Bill, at least 48 hours before a second ‘meaningful vote’;
• How the draft Withdrawal Agreement requires that EU law continues to have legal effect in the UK, which may lead to future disapplication by UK courts, including the Supreme Court, of conflicting domestic legislation and could, subject to the terms of the implementing Bill, undermine the full repeal of the European Communities Act 1972.

Chair's comments

Commenting on the launch of the report, Committee Chairman Sir William Cash recently said:

“Parliament is facing a series of momentous decisions in the coming days and weeks, which will shape the future of our nation. It is essential that we in this House, as individual representatives of our constituents, have all the information we need to inform these decisions. As a Select Committee, we have a duty to assist in this process – as does the Government.

“Our unanimously-agreed interim report is intended to inform Members across the House, as well as those following events throughout the country, ahead of the second ‘meaningful vote’ promised by the Prime Minister. It shines a light not just on the draft Withdrawal Agreement and Political Declaration that we will be voting on next week, but how internal Government divisions have hamstrung its ability to negotiate effectively with the European Union – a key theme of evidence gathered in our inquiry to date. We also highlight how Parliament’s future legislative freedom will be constrained.

“Given the time-critical nature of the questions raised by the report’s findings, the Committee is requesting an urgent response from the Government before the meeting of EU leaders on March 21-22.”

Key findings

Government divisions

The report concludes, based on evidence received so far, that the Government’s internal handling of the negotiating process has created divisions between Departments, which have in turn led to the Government’s own negotiating position being undermined. This has limited its ability to secure fundamental negotiating objectives.

Continued application of EU law

The report underlines the extent to which the UK will continue to be subject to EU law if the draft Withdrawal Agreement enters into force. The Committee highlights the possibility that UK courts could have to consider disapplying domestic laws passed by Parliament if they conflict with the Agreement itself or EU law made applicable to the UK under its provisions.

The Committee fails to see how this can be squared with repeated commitments made by the Prime Minister and Government Ministers that the UK will in the future control its own laws. The report questions whether the terms of the draft Withdrawal Agreement could in fact undermine the provisions contained in the European Union (Withdrawal) Act – passed by Parliament in 2018 – including those repealing the European Communities Act 1972.

Implications of the Northern Ireland ‘backstop’ Protocol

The current draft of the Withdrawal Agreement would cede to the EU the ability to make certain laws that would continue to apply to the UK during any transition period, or post-transition if the backstop enters into force. At the same time, the UK would have no formal say in the passing of these laws. The backstop means that EU law would apply across a range of areas, differentiating Northern Ireland from the rest of the UK.

The Committee is concerned about the potential indefinite duration of the backstop, and whether a decision on its termination could ultimately be subject to the jurisdiction of the EU Court of Justice.

Publication of key Government documents

Ahead of a second ‘meaningful vote’ expected to take place by Tuesday 12 March, the Committee calls on the Government to publish the results of the Attorney General’s negotiations in Brussels, as well as the draft Withdrawal and Implementation Bill, no less than 48 hours before any debate begins.

Extending Article 50, and the upcoming EU elections

The report notes the considerable speculation about a possible extension of the Article 50 process. The Committee calls on the Government to clarify what changes to the draft Withdrawal Agreement it considers would be necessary if there were such an extension.

It also urges the Government to clarify its position on UK participation in the May 2019 European Parliament election by explaining whether any EU legal obligations to hold elections could be amended to ensure that the UK is not compelled to organise them during a short extension.