LORDS

Brexit-related treaties

This page provides a brief explanation of how the EU Committee approaches the task of scrutinising Brexit-related treaties.

Treaties are international agreements entered into by the United Kingdom, either bilaterally (the UK enters into an agreement with another country) or multilaterally (the UK signs up to an agreement involving three or more countries).This page provides a brief explanation of how the EU Committee will scrutinise Brexit-related international agreements.

Under EU law, the Member States of the European Union have conferred upon the EU itself the power to negotiate and enter into certain international agreements on their behalf. These EU international agreements, to which the UK is party as a Member State (but not in its own right), could cease to apply to the UK from the moment at which it leaves the EU. They cover a range of important policy areas, such as trade, data exchange and transport.

To ensure continuity before and after Brexit – for instance, allowing UK businesses to benefit from similar terms of trade with countries that have concluded Free Trade Agreements with the EU – the UK will need to enter into agreements in its own name, replacing those EU agreements. If the UK leaves the EU without a transition period being in place, these agreements will need to be ratified by or as soon as possible after exit day, to avoid disruption.

The House of Lords Procedure Committee has decided that the European Union Committee should, until the end of the 2017-19 session of Parliament, be responsible for scrutinising Brexit-related treaties or international agreements.

Treaties are negotiated, signed and ratified by the Government, on behalf of the UK, under ‘prerogative powers’. But Parliament also has an important role.

Firstly, while a treaty, once ratified, is binding in international law, the domestic courts cannot enforce it directly, unless Parliament has legislated to give treaty provisions domestic legal effect.

Secondly, Parliament also has a role in scrutinising treaties before the Government ratifies them. This role is set out in Part 2 of the Constitutional Reform and Governance Act 2010.

Section 20 of the Constitutional Reform and Governance Act 2010 states that, with some exceptions, the Government may not ratify a treaty unless it has first laid a copy before Parliament, and, within 21 sitting days of this happening, neither House has passed a resolution that the treaty should not be ratified. A resolution passed by the Lords is advisory: the Government may decide to proceed regardless, but is required to publish a statement explaining its intention, and giving its reasons. A Commons resolution, on the other hand, would prevent the Government from proceeding for another 21 sitting days. The Commons could then pass further resolutions, indefinitely postponing ratification.

Section 22 provides that the Government may, exceptionally, disapply the procedure set out in section 20. But it cannot do so once either House has passed a resolution under section 20.

The EU Committee will do ‘due diligence’ on the legal and policy implications of all Brexit-related treaties and international agreements published between now and the end of the session. It will report on all these agreements, to help Members of the House in identifying those of particular interest, so that they can, where appropriate, table resolutions or motions to debate them.

The Committee will report treaties under one of two headings: treaties to which special attention is drawn; and treaties reported for information only. Treaties in the first category will be analysed in some detail, while brief factual summaries will be provided for treaties in the second category.

The Committee will use the following criteria in deciding whether to draw a treaty to the special attention of the House:

(a) that it is politically or legally important, or gives rise to issues of public policy that the House may wish to debate prior to ratification;

(b) that it may be inappropriate, in view of changed circumstances since the precursor agreement was concluded by the EU;

(c) that it differs significantly from the precursor agreement to which the UK is party as an EU member state;

(d) that it contains major defects, that may hinder the achievement of key policy objectives;

(e) that the explanatory material laid in support provides insufficient information on the agreement’s policy objective and on how it will be implemented;

(f) that further consultation would be appropriate, including with the devolved administrations.

The process for scrutinising treaties and other international agreements is modelled on the EU Committee’s longstanding scrutiny of European documents. After laying, treaties will be reviewed by the Committee’s legal advisers, and then sifted to one of the EU Committee’s six subject-based sub-committees. These sub-committees will submit a draft report to the EU Select Committee, analysing the treaty and recommending whether or not it should be drawn to the special attention of the House. The Select Committee will then review and publish the report the following week.

As indicated above, the Constitutional Reform and Governance Act 2010 allows Parliament 21 sitting days, within which either House may pass a motion calling for the Government not to ratify a treaty. The sitting days are defined as days on which both Houses of Parliament are sitting, starting from the day following that on which the agreement is laid.

The Committee’s target, to give Members of the House time to consider tabling motions for debate, is to report around 10-14 days before the deadline is reached. The progress of the Committee’s scrutiny of each treaty will be tracked on these pages.

Scrutiny of Brexit-related treaties flowchart

Find out about the timeline for scrutiny of Brexit-related treaties:

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