The European Scrutiny Committee has recently published a report entitled “EU Withdrawal: Transitional provisions and dispute resolution.”
Bill Cash, Chairman of the Committee, said, “We believe that Article 50 has fundamentally changed the basis of the EU treaties. The Government must be more robust and emphatic in refuting the assertions made by the European Council and the European Commission relating to any future role of the European Court of Justice. We do not consider that the UK domestic courts should be given a power after the UK’s exit from the EU to disapply pre-exit primary legislation.
As to a dispute resolution mechanism we agree with a free standing court (an International Treaties court) to act as a central point providing guidance to non-specialist courts and tribunals throughout the UK on the interpretation of UK legislation which implements the Withdrawal Agreement. We remain concerned, as were our predecessor European Scrutiny Committee, about the way in which EU legislation in Brussels is made behind closed doors and by consensus in the Council of Ministers.”
Introduction
1.On 29 March 2017 the Prime Minister, the Rt Hon Theresa May MP, wrote to the President of the European Council to trigger Article 50 of the Treaty on European Union, giving notice of the intention of the United Kingdom to withdraw from the European Union. Article 50 provides a default of two years for negotiations in such circumstances before the intention to withdraw comes into effect, meaning that the Prime Minister signalled a leaving date of 29 March 2019.
2.Article 50 makes provision as follows: “in the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that state setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union”. Article 50 enables the United Kingdom to leave the European Union and two years are allowed for negotiations on the terms of withdrawal. It is to be noted that Article 50 imposes an obligation only on the EU to negotiate in accordance with the terms of the guidelines. It does not require the departing Member State to accept the provisions of the guidelines, nor does it empower the EU unilaterally to lay down the terms of withdrawal. The United Kingdom has the intrinsic constitutional right following the enactment of the European Union (Notification of Withdrawal) Act 2017 to trigger Article 50 and the right on its own terms to repeal the European Communities Act 1972, including sections 2 and 3 of that Act.
3.In terms of timing, the UK is therefore now midway through the negotiation process. In this Report we take account of some of the key developments since March 2017 and of the issues raised, ahead of the meeting of the European Council on 22/23 March where the EU’s guidelines for the opening of negotiations on the overall understanding of the framework for the future relationship between the UK and the EU will be decided and while negotiations on both the initial separation issues1 and the transitional arrangement for the immediate post-Brexit period are still ongoing. It is important to be clear that the Joint Report published on 8 December 2017 on the first phase of negotiations under Article 50 is (a) conditional on the principle that “nothing is agreed until everything is agreed” including the financial settlement and the measures relating to the border between Northern Ireland within the United Kingdom and Ireland and (b) that the Joint Report is not legally binding, nor is the draft legal text which the European Commission published unilaterally on 28 February 2018 and which contained many assertions which the Government has rejected.
4.It is important to be clear that the Prime Minister’s proposal for an implementation or transition period of up to two years following March 2019, also under discussion with the European Union, means that there are two distinct periods to be considered in analysing the issues at stake in the negotiations: the implementation period beginning immediately after March 2019 and the future relationship once that period has expired.
Role of this Committee
5.The European Scrutiny Committee considers the legal and political importance of EU documents and related issues. Since the referendum we have been focussing our attentions on the implications for the UK of new EU legislative proposals in the light of Brexit. We have raised questions with the Government on a wide range of issues, drawing attention to matters which need to be resolved as part of the withdrawal process. This experience and expertise gives us a clear role in monitoring the negotiations and exploring concerns as they arise, especially as regards legal and scrutiny issues which do not fall into the remit of any other committee. For this reason we have concentrated in our Report on legal concerns and on the implementation of EU legislation during the transitional arrangements to ensure that we make our distinctive contribution to analysis of the negotiations.
Evidence base
6.To inform our Report we have taken evidence from the Chancellor of the Exchequer (Philip Hammond MP), the Secretary of State for Exiting the European Union (David Davis MP), the Minister for Immigration at the Home Office (Caroline Nokes MP), the Parliamentary Under Secretary of State at DExEU (Robin Walker MP) and the UK Permanent Representative to the European Union (Sir Tim Barrow). We have also drawn upon the responses from Ministers to our questions on a wide range of documents. We commend the transcripts of our evidence sessions and the weekly scrutiny reports and correspondence with Ministers, published on our website, as a rich source of information on many aspects of Brexit beyond those covered in this Report.
The European Scrutiny Committee reached the following conclusion:
163.This Report highlights some of the key issues at this stage in the process. As is evident, we are in the midst of a fast-moving process. We will continue to take oral evidence and raise issues throughout Brexit negotiations.
164.We understand that the Government, in the light of the European guidelines, is faced with challenging issues. However, we believe that it is not in the national interest to accept the European Council’s proposals and the European Commission’s proposals, which are incompatible with the repeal of the European Communities Act 1972, including section 3 of that Act. Furthermore, we believe that Article 50 has fundamentally changed the basis of the EU treaties and we note that the United Kingdom, by Act of Parliament, has by a majority of 499 to 120 voted to give notification as to withdrawal from the European Union under Article 50. In addition, the House of Commons on its third reading of the European Union (Withdrawal) Bill approved the repeal of the European Communities Act 1972 itself. In these circumstances which are incontestable, we take the view that the Government must be more robust and emphatic in refuting the assertions made by the European Council and the European Commission relating to any future role of the European Court of Justice. Whilst we are glad that the Government has made it clear that they do not favour any dispute resolution mechanism which would give exclusive or sole jurisdiction in such matters to the European Court of Justice, we urge the Government in the negotiations to insist that Article 50 has changed the nature of the European Union, that the United Kingdom has lawfully followed provisions of Article 50, and that this is supported by a referendum of the electorate of the United Kingdom pursuant to a sovereign Act of Parliament. The European Council and the European Commission must accept that the United Kingdom in its negotiations will respect and accept these lawful, democratic and constitutional steps.
165.Among many uncertainties is the future shape of parliamentary scrutiny of EU legislation. However, it is clear that such legislation will continue to affect UK and so some form of parliamentary scrutiny will be vital. We look forward to exploring with others what form this should take.
