The new EU-UK Trade and Cooperation Agreement (the Agreement) came into provisional force on 1 January 2021. As the implications of the Agreement become clearer, one of the most important aspects are the underpinning governance arrangements. The new Agreement runs wider than a simple free trade agreement and is modelled on the EU’s Association Agreements (such as that with Ukraine), as a result, it includes a governance structure to oversee its operation. By “governance”, we mean oversight of the operation of the Agreement.
Experts have suggested that the nature of the deal means that the negotiations between the UK and the EU will continue long into the future, which places an onus on the governance structures to ensure the Agreement operates effectively.
Given the breadth of the Agreement and its impact on many devolved policy areas, this blog examines the likelihood of Scottish Government and Scottish Parliament involvement in the governance of the Agreement and why involvement could be important.
The Partnership Council
The Agreement is overseen by a Partnership Council which will be co-chaired by a Member of the European Commission (currently Vice-President Maroš Šefčovič) and a representative of the UK Government (currently Minister of State at the Cabinet Office Lord Frost). It will meet at least once a year, or more regularly at the request of either party.
Given the lesson of recent events surrounding operation of the Ireland and Northern Ireland Protocol, it is likely that the co-chairs will also engage in regular dialogue to address matters around the Agreement as they arise.
According to the Agreement, the role of the Partnership Council is to:
“oversee the attainment of the objectives of this Agreement and any supplementing agreement. It shall supervise and facilitate the implementation and application of this Agreement and of any supplementing agreement. Each Party may refer to the Partnership Council any issue relating to the implementation, application and interpretation of this Agreement or of any supplementing agreement.”
The Specialised Committees and working groups
Beneath the Partnership Council, a number of Specialised Committees and working groups will be established to oversee particular elements of the Agreement. There will be 18 specialised committees and 4 working groups that will sit beneath the Partnership Council. The policy areas covered by these committees include devolved competences such as fisheries, law enforcement and judicial cooperation and public procurement.
Why the governance arrangements are important for the devolved institutions
Oversight of the governance arrangements will be crucial for the devolved institutions, not least because the Partnership Council has the following powers:
- The power to adopt decisions in respect of all matters where the Agreement or any supplementing agreement so provides.
- The power to make recommendations to the Parties (the EU and the UK) regarding the implementation and application of the Agreement or of any supplementing agreement.
- The power to adopt, by decision, amendments to the Agreement or to any supplementing agreement in the cases provided for in the Agreement or in any supplementing agreement.
In addition, during the first four years of the Agreement, the Partnership Council will have the power to:
“adopt decisions amending this Agreement or any supplementing agreement, provided that such amendments are necessary to correct errors, or to address omissions or other deficiencies”.
As a result, significant decisions about the operation of the new Trade and Cooperation Agreement can be made by political agreement between the EU and the UK Government through the Partnership Council, or through the other specialised and expert committees. This includes the ability to amend some aspects of the TCA. The decisions made in the Partnership Council or other committees could impact on areas of devolved competence, for example by changes to the nature of the “level playing field” obligations in the Agreement. The Agreement bakes in an intergovernmental approach to its oversight and development through the governance arrangements. This is likely to make it difficult for the devolved administrations to influence and for all legislatures across the UK to scrutinise the effects of the governance decisions.
The impact of the governance arrangements and absence of a significant role for legislatures was recognised by former Prime Minister Theresa May MP who told the House of Commons:
“Of course, a whole structure is set up under the treaty. One thing it does not do is to excise the EU from our lives, because a whole structure of committees is set up, some of which, like the partnership council, will be able to amend the arrangement and make determinations on its operation and interpretation without, as far as I can see, any formal reference to this Parliament.”
Parliamentary Partnership Assembly
The only link between legislatures and the Partnership Council is provided by the Parliamentary Partnership Assembly which will be established under the Agreement. It will consist of Members of the European Parliament and Members of the UK Parliament. The Assembly will act as a forum to exchange views on the UK-EU partnership. In addition, the Assembly will be able to seek information from the Partnership Council, be informed about decisions and recommendations of the Partnership Council and make recommendations to the Partnership Council. This effectively gives the Parliamentary Partnership Assembly access to information but very little power to influence decision making under the Agreement.
Scottish Parliament European Committee view
The Scottish Parliament’s European and External Affairs Committee noted that some of the subject matter which will be considered within the governance framework deals with devolved competences, such as law enforcement, judicial cooperation and fisheries. As a result, the Committee recommended that:
“the Scottish Government, at Ministerial and official level as appropriate, should be present at meetings taking place under the governance framework that deal with devolved policy areas.”
The Committee also proposed that as the governance framework deals with devolved competences, representation from the Scottish Parliament should be included on the Parliamentary Partnership Assembly. On 4 March 2021, the Committee wrote to the House of Lords EU Select Committee, stating that:
“The evidence we have taken has further emphasised that the operation of the TCA has significant implications for devolved policy areas. Given the impact of the TCA upon policy areas that are the responsibility of the Scottish Parliament, the CTEEA Committee considers it imperative that Members of the Scottish Parliament are represented on the PPA. We further consider that Scottish Parliament representation on the PPA must be on the same terms as that afforded to other legislatures. I trust that the view of the Committee can be reflected in your deliberations regarding the PPA and wider governance framework for future EU-UK relations.”
Scottish Government view
In its Legislative Consent Memorandum for the European Union (Future Relationship) Bill, the Scottish Government also identified the need for “meaningful” Scottish representation in the Agreement’s governance structures.
UK Government approach
The UK Government has not expressed a view on how the devolved administrations or legislatures will be involved in the ongoing operation of the new Trade and Cooperation Agreement. However, the Scottish Government has expressed a view (in the Legislative Consent Memorandum for the European Union (Future Relationship) Bill) about the lack of involvement of the devolved administrations in the negotiation of the new Agreement. In addition, the content of the Agreement itself makes no reference to any of the devolved institutions. As a result, it seems unlikely that the UK Government will see any sort of direct role for the devolved administrations or legislatures in the ongoing operation of the Trade and Cooperation Agreement.
The EU-UK Trade and Cooperation Agreement’s governance arrangements provide wide-ranging powers for the European Commission and the UK Government in the management of the Agreement. It also provides a limited role for the UK Parliament in partnership with the European Parliament.
Despite the Agreement impacting on a number of devolved competences, no role is set out for the devolved administrations or legislatures. Given the importance of the governance arrangements and the example of the conduct of the Brexit negotiations, the devolved institutions may need to explore creative ways for overseeing and seeking to influence the operation of the Trade and Cooperation Agreement. These ways are likely to include the devolved institutions in Scotland, Wales and Northern Ireland working together when appropriate and also seeking to work with the appropriate committees in the UK Parliament.
Iain McIver, SPICe Research