A range of new institutions have been established by the TCA, to govern what the text calls:
“…a broad relationship between the Parties, within an area of prosperity and good neighbourliness characterised by close and peaceful relations based on cooperation, respectful of the Parties’ autonomy and sovereignty.”[1]
At the top of the institutional structure will be the ‘Partnership Council’, made up of representatives of the EU and UK and with a European Commissioner and UK government minister acting as co-chairs. The Council “may meet in different configurations depending on the matters under discussion,” which the TCA stipulates must concern the TCA itself, or any supplementing agreement – although it remains to be seen whether it will stick to these limits. It will meet “at least once a year”, with the first meeting held in June 2021.[2]
The Partnership Council can:
The Partnership Council has been granted significant power with only weak parliamentary oversight and accountability mechanisms. At a seminar in London in March 2021, Claude Moraes, a former MEP and chair of the European Parliament’s civil liberties committee:
“…emphasised how the slogan of “taking back control” had materialised in the executive taking control, in the form of powers assigned to the Partnership Council established by the TCA.”[4]
The Commission notes in its factsheet on the TCA that the UK “no longer participates in or shapes rules of EU agencies for police and judicial cooperation.” However, while the UK may no longer sit at the table in the Council or on those agencies’ management boards, it has pulled up a chair at a different table. Time will tell how influential it proves to be.
The first meeting of the Partnership Council took place on 9 June, with some 90 officials in attendance – 45 from each side. Law enforcement issues were on the agenda, with the UK side stating that “in general, the arrangements on law enforcement are working well in practice, notably the progress made on the Europol working arrangements.” The EU:
“…called on the UK to ensure it would comply with the changes required under the TCA in respect of passenger name records as well as the evaluation mechanism on exchange of DNA and fingerprints which are part of the so-called Prüm-framework.”
The UK also raised concerns over extradition from the Netherlands and Portugal to the UK, and proposed the matter be “picked up in the Specialised Committee on Law Enforcement and Judicial Cooperation before the summer.” However, the first meeting of the Committee did not take place until mid-October.[5]
Amongst the many Committees sitting under the Partnership Council is the Specialised Committee on Law Enforcement and Judicial Cooperation. Like the other Specialised Committees set up under the agreement (covering, for example, trade, intellectual property and public procurement), this is to be co-chaired by the EU and the UK. It is granted the power to:
Along with these overarching roles, there are over 30 specific tasks designated to the Specialised Committee in the TCA. These include serving as a communication hub between the two sides (for example, to receive notifications on offences covered by the extradition provisions), and establishing standard forms and procedures to try to ensure smooth cooperation, for example on mutual legal assistance.
The Specialised Committee on Law Enforcement can also, like all the other Committees, “establish, supervise, coordinate and dissolve Working Groups.” These are to act under the supervision of the Committee and assist them in carrying out their work, “in particular” by preparing the Committee’s work and carrying out “any tasks assigned to them”. They can adopt their own rules of procedure.[7]
The Partnership Council and the Specialised Committee are bound by rules of procedure set out in an Annex to the TCA, although a Committee can “adopt and subsequently amend its own rules that govern its work,”[8] should it so desire. The rules of procedure provide for the establishment of a Secretariat for the Council and the Committees, set out how meetings should be convened and conducted, and include some (limited) transparency requirements.
Decisions adopted by the Partnership Council or Committees:
“…shall be binding on the Parties and on all the bodies set up under this Agreement and under any supplementing agreement, including the arbitration tribunal referred to in Title I [Dispute settlement] of Part Six.” [emphasis added]
Recommendations, on the other hand, “shall have no binding force,” but are a form of ‘soft law’ that can serve as a basis for cooperation or joint action. Both recommendations and decisions will be adopted by mutual consent, either at meetings or by a written procedure.[9]
The Agreement states that:
“The European Parliament and the Parliament of the United Kingdom may establish a Parliamentary Partnership Assembly consisting of Members of the European Parliament and of Members of the Parliament of the United Kingdom, as a forum to exchange views on the partnership.”[10] [emphasis added]
Discussions on establishing this Assembly are apparently ongoing. The TCA affords it a rather limited set of powers:
“…the Parliamentary Partnership Assembly:
(a) may request relevant information regarding the implementation of this Agreement and any supplementing agreement from the Partnership Council, which shall then supply that Assembly with the requested information;
(b) shall be informed of the decisions and recommendations of the Partnership Council; and
(c) may make recommendations to the Partnership Council.”[11] [emphasis added]
This is the only formal role that the TCA affords to either the Westminster or European parliament, leaving the exact nature of parliamentary oversight to each side’s constitutional arrangements. The European Commission issued a statement on this matter in April, saying that it would:
“…ensure that the European Parliament is immediately and fully informed of the activities of the Partnership Council, the Trade Partnership Committee, the Trade Specialised Committees and the other Specialised Committees established by the EU-UK Trade and Cooperation Agreement, subject to the necessary arrangements in order to preserve confidentiality.”[12]
Whether the Commission will stick to its word – and how meaningful the information it provides will be – remains to be seen, but its detailed statement stands in stark contrast to the pronouncements of the UK side.
In the House of Lords, government representatives have been vague as to how the UK parliament might achieve meaningful oversight of the new arrangements.[13] On 12 July 2021, speaking for the government, Earl Howe remarked that: “It is not in any way our desire to have a process that lacks transparency.” However, he also suggested that any member of the house who wanted more information on the activities of the new institutions should table a parliamentary question,[14] which suggests the government will not be taking a proactive approach.
This appears have been confirmed on 21 July, when Howe’s counterpart Lord True declared that while the government was “very appreciative” of the input it had received from both houses of parliament on the possible form of scrutiny arrangements, they should perhaps not expect too much:
“…arrangements for long-term scrutiny must be proportionate and focused on areas where the United Kingdom has direct legal obligations under the new relationship. However, the Government will facilitate transparencies of the withdrawal agreement and TCA governance structures to the extent that we are able.”[15]
Civil society is also granted a role in the new arrangements. The TCA obliges the UK and EU to:
“…consult civil society on the implementation of this Agreement and any supplementing agreement, in particular through interaction with the domestic advisory groups and the Civil Society Forum…”[16]
The “domestic advisory groups”, which can be newly-created or already in existence, should consist of:
“…a representation of independent civil society organisations including non-governmental organisations, business and employers' organisations, as well as trade unions, active in economic, sustainable development, social, human rights, environmental and other matters.”[17]
The UK and EU are obliged to “consider views or recommendations” put forward by these groups, and “shall aim to consult with their respective domestic advisory group or groups at least once a year.” To publicise their existence, the UK and EU “shall endeavour to publish the list of organisations participating”.[18]
The Civil Society Forum, meanwhile, is intended to promote dialogue between the domestic advisory groups from the UK and EU, and “to conduct a dialogue on the implementation of Part Two” of the TCA, dealing with trade, transport, fisheries and other largely economic matters.[19] As pointed out by the House of Lords, “it has no locus to discuss Part Three, on law enforcement and judicial cooperation in criminal matters.”[20] The Civil Society Forum “shall meet at least once a year, unless otherwise agreed by the Parties.” The Partnership Council has the power to adopt “operational guidelines for the conduct of the Forum.”[21]
Given the extensive powers granted to these new institutions and the implications for state powers and civil liberties entailed by the TCA, one might expect that the agreement would also provide for a substantial level of transparency as a means of ensuring democratic scrutiny and accountability. This is not the case.
There is no binding requirement for meetings to take place in public – rather, the co-chairs of the Partnership Council or Specialised Committee “may agree” upon that matter. It is also left to the UK and EU to decide whether to publish any decisions or recommendations that are adopted: “Each Party may decide on the publication of the decisions and recommendations of the Partnership Council in its respective official journal or online.”[22]
Agendas and minutes, on the other hand, must be made public, although there is no requirement for the publication of, or maintenance of a public register for, the documents discussed at the meetings. It is glaring that there is no specific commitment to implement the EU rules on access to documents[23] or the UK’s Freedom of Information Act,[24] although these do both apply to the agreement.
There is, however, an Agreement on classified information, which says:
“For the purposes of this Agreement, 'classified information' means any information or material, in any form, nature or method of transmission which is:
(a) determined by either Party to require protection against unauthorised disclosure or loss which could cause varying degrees of damage or harm to the interests of the United Kingdom, to the interests of the Union or to the interests of one or more of its Member States.
(b) marked accordingly with a security classification as set out in Article 7.”[25]
It should be noted that now the UK is out of the EU, documents and information concerning relations between the two sides can be classified as concerning international relations – thus providing another potential reason for refusing access to them under freedom of information and access to documents rules, precisely as has happened with requests made by Statewatch for documents discussed by the Specialised Committee.
It is essential that the work of the new Partnership Council, the Specialised Committees and their working groups are subject to democratic accountability. While the Parliamentary Partnership Assembly, domestic advisory groups and the Civil Society Forum may provide a degree of this, it seems that part of the job will be left to investigative journalists and independent organisations.
Article 7, EU-UK Agreement concerning security procedures for exchanging and protecting classified information
|
EU |
United Kingdom |
|
TRES SECRET UE/EU TOP SECRET |
UK TOP SECRET |
|
SECRET UE/EU SECRET |
UK SECRET |
|
CONFIDENTIEL UE/EU CONFIDENTIAL |
No equivalent – see paragraph 2 |
|
RESTREINT UE/EU RESTRICTED |
UK OFFICIAL-SENSITIVE |
Notes
[1] Article 1, ‘Purpose’, Trade and Cooperation Agreement, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:22021A0430(01)#d1e234-10-1
[2] European Commission, ‘First Meeting of the Partnership Council, 9 June 2021’, https://ec.europa.eu/info/publications/first-meeting-partnership-council-9-june-2021_en
[3] Article 7, ‘Partnership Council’, Trade and Cooperation Agreement, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:22021A0430(01)#d1e441-10-1
[4] Isabella Mancini, ‘Post-Brexit UK-EU Parliamentary Cooperation: Whose representation?’, City, University of London, 9 March 2021, https://blogs.city.ac.uk/citylawforum/2021/03/09/post-brexit-uk-eu-parliamentary-cooperation-whose-representation/
[5] European Commission, ‘First meeting of the Specialised Committee on Law Enforcement and Judicial Cooperation (LEJC)’, 18 October 2021, https://ec.europa.eu/info/publications/first-meeting-specialised-committee-law-enforcement-and-judicial-cooperation-lejc_en
[6] Article 8, ‘Committees’, Trade and Cooperation Agreement, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:22021A0430(01)#d1e521-10-1
[7] Article 9, ‘Working Groups’, Trade and Cooperation Agreement, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:22021A0430(01)#d1e840-10-1
[8] Article 8, ‘Committees’, Trade and Cooperation Agreement, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:22021A0430(01)#d1e521-10-1
[9] Rule 9, ‘Decisions and Recommendations’ in Annex I, ‘RULES OF PROCEDURE OF THE PARTNERSHIP COUNCIL AND COMMITTEES’, Trade and Cooperation Agreement, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:22021A0430(01)#d1e32-1005-1
[10] Article 11, ‘Parliamentary cooperation’, Trade and Cooperation Agreement, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:22021A0430(01)#d1e906-10-1
[11] Ibid.
[12] ‘Commission statement on the role of the European Parliament in the implementation of the EU-UK
Trade and Cooperation Agreement’, undated, published by Politico Europe on 27 April 2021, https://www.politico.eu/wp-content/uploads/2021/04/27/20210422-Statement-to-EP-renumbered.pdf
[13] In a January 2021 report, the House of Commons Committee on the Future Relationship with the European Union set out a number of recommendations on future scrutiny arrangements: ‘The shape of future parliamentary scrutiny of UK-EU relations’, 14 January 2021, https://committees.parliament.uk/publications/4370/documents/44329/default/
[14] ‘United Kingdom–European Union Parliamentary Partnership Assembly’, Hansard, 12 July 2021, https://hansard.parliament.uk/Lords/2021-07-12/debates/7A57A6E7-57F9-418C-AE7B-7B4ABF07E49F/UnitedKingdom%E2%80%93EuropeanUnionParliamentaryPartnershipAssembly
[15] ‘European Union (Future Relationship) Act 2020 (References to the Trade and Cooperation Agreement) Regulations 2021’, Hansard, 21 July 2021, https://hansard.parliament.uk/Lords/2021-07-21/debates/24300413-409C-424F-A8C6-C45C8DEA842C/EuropeanUnion(FutureRelationship)Act2020(ReferencesToTheTradeAndCooperationAgreement)Regulations2021
[16] Article 12, ‘Participation of civil society’, Trade and Cooperation Agreement, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:22021A0430(01)#d1e941-10-1
[17] Article 13, Domestic advisory groups’, Trade and Cooperation Agreement, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:22021A0430(01)#d1e948-10-1
[18] Ibid.
[19] Article 14, Civil Society Forum’, Trade and Cooperation Agreement, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:22021A0430(01)#d1e973-10-1
[20] Ibid.
[21] Ibid.
[22] Rule 10, ‘Transparency’ of Annex 1, ‘RULES OF PROCEDURE OF THE PARTNERSHIP COUNCIL AND COMMITTEES’, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:22021A0430(01)#d1e32-1005-1
[23] Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32001R1049
[24] Freedom of Information Act 2000, https://www.legislation.gov.uk/ukpga/2000/36/contents
[25] Agreement between the European Union and the United Kingdom of Great Britain and Northern Ireland concerning security procedures for exchanging and protecting classified information, OJ L 149/2450, 30 April 2021, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:22021A0430(02)
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