It took over four years to negotiate an exit from the EU and a future EU/UK partnership. In less than a day, the EU/UK Trade and Cooperation Agreement (“TCA”) was implemented in UK law by virtue of the European Union (Future Relationship) Act 2020. It was highly significant legislation. Yet on 30 December, it was rushed through its parliamentary stages because the transition period ended on 31 December 2020. An extension could have been agreed and it would have allowed the UK Parliament properly to perform its duty to scrutinise legislation. The EU and the UK have agreed to apply the TCA provisionally to enable the European Parliament to signify its consent. It is therefore regrettable that the UK Parliament was marginalised. There is uncertainty about how well the Act will operate in practice.

   SUMMARY

• Under the UK’s dualist legal tradition, an international treaty has to be implemented in UK domestic law to enable rights to become available in domestic law.
• The European Union (Future Relationship) Act (“EUFRA”) is the UK primary legislation which gives effect to the EU/UK Trade and Cooperation Agreement. Derrick Wyatt QC [1] has recently written two articles for FIDE Fundacion about the TCA [2]. This article concerns EUFRA.
• Spanish entities will be reliant on EUFRA and other related domestic legislation for the protection of domestic law rights flowing from the TCA;
• EUFRA passed all its UK parliamentary stages on 30 December 2020. Importantly, EUFRA recognises that there are aspects of UK domestic Law which are relevant to the availability of TCA rights, which are already part of existing domestic law by virtue of the EU (Withdrawal) Act 2018[3] and otherwise.
• EUFRA states that existing UK domestic law” has effect …with such modifications as are required for the purposes of implementing in [domestic] law the [TCA] or the Security of Classified Information Agreement [“SCA”] ….”[4]
• The modification provisions are intrinsically uncertain in ambit and application. If a UK court is asked to interpret how modification is to work in a given context to ensure consistency with the TCA, the courts are required to apply principles of interpretation under Public International Law (the Vienna Convention on the Law of Treaties).
• In addition to modification, there are wide powers to make future secondary legislation to give effect to the TCA and other agreements [5].
• The UK Government has rejected post-legislative scrutiny as a way to ensure that EUFRA operates as it is intended to do, arguing that it is not possible to amend EUFRA since it implements an international agreement. That is based on a misreading of how the TCA works and of the value of post-legislative scrutiny.

DISCUSSION

1. Legislative Context and failure to provide adequate time to scrutinise the EU (Future Relationship) Bill.

The European Union (Future Relationship) Bill (“EUFRB”) was published on 29 December 2020. Because the UK Government was not prepared to seek to extend the date for termination of the transition period, the EUFRB had to be enacted immediately. Alternatively, since the TCA has provisional effect to enable the European Parliament (“EP”) to give its consent, EUFRA could (although the UK Government rejected the proposition [6]) have included a sunset clause, with a power to override it, to enable UK parliamentary scrutiny before the expiry of the period for EP consent. In the event, Members of the UK Parliament were offered a binary choice – accepting the draft TCA and a number of associated EU/UK agreements or leaving the EU without a future agreement to govern relations between the EU and the UK.

2. The Bill passed all its parliamentary stages on 30 December. Royal Assent by the Queen was granted on the same date. The failure by the UK Government to provide adequate parliamentary time for proper debate and adequate oversight of the Bill was regrettable.

3.  By way of illustration of lack of scrutiny, the Memorandum from the UK Government’s Cabinet Office to the Delegated Powers and Regulatory Reform Committee was submitted to the Committee on 30 December itself. This is the explanatory memorandum which the UK Government submits to the parliamentary committee which scrutinises the powers that are intended to be conferred on the executive to make secondary legislation. As will be seen below, those powers are very wide and would normally be tested and probed to ensure that they are constitutionally defensible and necessary. That did not happen.

4. The purpose of EUFRA.

The purpose of EUFRA is to give effect to the obligations which the UK has assumed under the Agreements. The UK has a dualist mode of implementing international obligations and, without EUFRA, the Agreements would not have effect in domestic law.

5. Preliminary observations on the interaction of the TCA and EUFRA.

The language of the TCA is, to a substantial extent, prescriptive and detailed. From an EU perspective, the detailed language is akin to the language of a directly applicable regulation. While a breach of the TCA is not justiciable against a Party in the domestic courts of either Party [7], prescriptive drafting may help to provide clarity as to its meaning in domestic litigation [8]. From a UK perspective, the principal political aim of the TCA is to reflect the possibility of legislative divergence, notwithstanding a common starting point, and to recognise that the UK legislature now controls its own lawmaking. Unlike most free trade agreements, the purpose is to avoid convergence.

6. Even so, the drafting of EUFRA has recognised that some existing UK domestic law is relevant to the availability of TCA rights. EUFRA also recognises that the TCA may be implemented by express provision in EUFRA itself or by other legislation. To avoid confusion, the obligation to give effect to modifications to existing UK domestic law required by the TCA is limited by section 29(2) of EUFRA to the extent that, where there are implementing provisions made by, or under, EUFRA or under other UK legislation, those implementation provisions will take precedence.

7.  Domestic laws may of course require differing degrees of modification to bring them into compliance with the TCA. For example, in some cases, the TCA provides a reasonably comprehensive code. The Road Transport (transport of goods by road) provisions of the TCA [9] are a case in point, even to the extent of providing for a prescribed model of UK license for the Community which UK carriers will have to obtain and carry when operating in the EU [10]; and vice versa for EU carriers. By way of further example, the TCA may be subject to suspension, resumption or termination and, if so, specific powers have been conferred on the UK Government to give domestic effect to such changes [11].

8. Part 1 of EUFRA

Part 1 provides for a criminal records database, both in respect of convictions of UK nationals in the EU and EU nationals in the UK. It also provides for the sharing of such personal data with the EU and for the retention and sharing of such data provided by the EU, including rules on sharing with third countries. Part 1 also provides for the disclosure of passenger name record data and for the disclosure of vehicle registration data.

9. Part 2 of EUFRA

Part 2 of the EUFRA makes provision to implement aspects of the agreements relating to trade and other matters. This includes the disclosure of non-food product safety information provided by the EU to the UK authorities for permitted purposes, as well as related criminal enforcement provision. Part 2 also makes provision for the disclosure of information to, and for cooperation with other customs authorities, as well as powers to make regulations about movement of goods; provision for international road haulage, as well as for social security coordination and for privileges and immunities of the international bodies in respect of which the UK will assume fresh obligations.

10. Part 3 of EUFRA – general implementation of the TCA

Part 3 of EUFRA makes provision for the general implementation of the agreements and, in particular, of the TCA. There are two sets of provisions of particular note, namely, sections 29 and 30: and sections 31-33.

11. Modification of existing domestic law

As set out in the Summary, section 29 (1) provides that existing domestic law, from 1 January 2021,”has effect …with such modifications as are required for the purposes of implementing in [UK domestic law] the [TCA] or the Security of Classified Information Agreement [“SCA”] ….”But section 29 (1) applies only insofar as the relevant agreement is not already implemented and only insofar as implementation is necessary for the purposes of complying with the international obligations of the UK under that agreement. Section 29 (2) underlines the point. It limits the use of the qualifying language of section 29 (1) (see paragraph 6 above).

12. The underlying intent is understandable in the light of the speed with which EUFRA was passed. While, in theory, section 29 creates a legal mechanism to get round the excessively short time in which the UK Government (by its own political choice) had to implement its obligations under the TCA, the result fails to provide a firm, clear and precise basis on which domestic law is to be modified to reflect the UK’s obligations under the TCA. Therefore it could mean extensive legal argument about exactly how an enactment is to be interpreted, applying the test of ”with such modifications as are required…”In its Explanatory Notes [12] to the Bill, the UK Government effectively concedes the inherent imprecision of its chosen method of implementation by implied modification. In paragraph 75, it says:” [T]his general implementation [clause 29] is subject to more detailed provision made under the general implementation power [section 31]”. This is going to create legislative instability.

13. Disputes

Disputes between the EU and the UK about whether a party has breached its obligations under the TCA are subject to the dispute resolution mechanism in the TCA [13].

14. Section 30 of EUFRA anticipates that there will also be challenges in the domestic courts. This may happen, for example, where the precise extent of modification of domestic law required by the TCA is uncertain or gives rise to ambiguity. By reference to COMPROV 13 of the TCA [14], section 30 of EUFRA impliedly recognises that, to the extent that the TCA needs to be interpreted in order to determine whether and, if so, how, domestic law needs to be modified under section 29, the applicable rules of interpretation of the TCA will be governed by Public International Law (specifically the Vienna Convention of the Law of Treaties). But could the complexities of interpretation in a domestic context be more far-reaching? If domestic law has been retained by virtue of EUWA, there may be circumstances where the case-law of the Court of Justice, if it predates Brexit day, might also be relevant and applicable [15].

15. Powers to make secondary legislation to give effect to the TCA

EUFRA also provides for a series of powers to make secondary legislation for different purposes. Given their sweeping extent, the absence of proper parliamentary scrutiny of these enabling powers [16] in advance of their enactment reflects poorly on the UK Government. 

• There is a general implementation power in section 31(1). A relevant national authority (the drafting takes account of the possibility that the regulations may be made by UK ministers or by UK ministers, acting with devolved administrations in Scotland, Wales or Northern Ireland) may make regulations to implement the TCA or the other agreements or otherwise to deal with matters arising from them. But under section 31 (4), regulations, in line with UK constitutional precedent, may not be used to impose or increase taxation; may not be made with retrospective effect; may not create a criminal offense; may not be used to repeal or amend the Human Rights Act 1998 [17]; and may not amend or repeal any of the UK’s devolution primary legislation.
• Most starkly, section 31(2) is a so-called Henry VIII power, allowing for any provision to be made that could be made by an Act of Parliament. In other words, secondary legislation may be used to amend primary legislation which, as a matter of UK constitutional propriety, is very unusual.
• Other implementing powers are similarly framed and are intended to provide for (a) the starting date of agreements (section 32); and to the functioning of agreements (primarily, it seems, where, under powers in the TCA or the other agreements, the relevant agreement is suspended, resumed or terminated) (section 33).

16. Schedule 5 contains rules about the procedures which apply to the making of regulations. Many, but not all, regulations will be subject to the affirmative resolution procedure under which the two Houses of the UK Parliament will need to approve the proposed secondary legislation. That is undoubtedly helpful in retaining a modicum of parliamentary scrutiny. But debates on affirmative resolution regulations are often formulaic and are no substitute for line by line scrutiny by a parliamentary bill committee, which did not occur. on 30 December.

17. Post legislative scrutiny.

In the absence of meaningful parliamentary scrutiny for EUFRA, it has been suggested that post-legislative scrutiny could be a partial solution. However, in the Explanatory Notes for the EUFRB, the Government has said that “the Bill is not suitable for post-legislative scrutiny as it implements an international treaty”. The UK Government should reconsider its somewhat superficial explanation [18].

18. There is no doubt that the UK Parliament cannot amend the TCA. But EUFRA now provides the basis for the implementation of obligations under the TCA and it is self-evident that, with an international agreement that has been concluded in haste and where the UK Parliament has had no meaningful opportunity to scrutinise the Bill, there should be an opportunity, supported by the UK Government, to review whether the TCA, EUFRA and the use of its enabling powers remain fit for purpose. In this connection, three relevant points arise from the TCA itself which ought, as necessary, to prompt reconsideration by the UK Government of its stance on post-legislative scrutiny as set out in its Explanatory Notes on the Bill:

• The TCA itself provides for the review of the implementation of the Agreement [19] five years after the entry into force of the TCA and every five years after that. It seems obvious that, if there is to be a rolling quinquennial review of the implementation of the TCA, there ought to be formal post-legislative scrutiny of the operation of EUFRA, if only to inform the UK Government’s future approach to the review.
• The Partnership Council is asked to oversee the attainment of the objectives of the TCA. In the first four years after the entry into force of the TCA, the Partnership Council has the power to amend the TCA if such amendments are necessary to correct errors or to address omissions or other deficiencies [20] What better way to provide evidence to the parties of the shortcomings of the TCA than to conduct post-legislative scrutiny to probe questions about whether the TCA, EUFRA, and legislation made under enabling powers are failing to fulfill their statutory purposes because of error, omissions or deficiencies?
• Moreover, in the TCA, the parties to the TCA have, in the title on Good Regulatory Practice [21], expressly supported the principle of post hoc evaluation of a regulatory framework:” Each Party shall ensure that its regulatory authority has in place processes or mechanisms for the purpose of carrying out periodic retrospective evaluations of regulatory measures in force, where appropriate”.
•  Ironically, it is the British Government itself which, in the period from 2011-2014, publicly promoted the use by the EU of post hoc evaluation of legislation [22]and frequently criticised the EU for not doing so.
• The UK Parliament’s Select Committee on the Constitution (House of Lords – a cross-party committee) has criticised [23] the Government’s approach to post-legislative scrutiny. They are right to challenge the Government, not only because it is the apt way to scrutinise the effectiveness and constitutional propriety of legislation but also because it is consistent with the TCA’s approach.

CPJ Muttukumaru CB DL

Chair, International Academic Council, FIDE Fundacion
Consultant, Eversheds-Sutherland (International) LLP

The views expressed in this article are the author’s personal views.

[1] Professor Emeritus at the University of Oxford

[2] “A hard Brexit and an ever closer non-Union ”

[3] Sections 2, 3 and 4 of the European Union (Withdrawal) Act 2018 (“EUWA”). EUWA was the primary legislation which took the UK out of the European Union. EUWA also retained many EU laws as UK domestic law. But, for the duration of the transition period, EU law continued to apply as required by the EU/UK Withdrawal Agreement, implemented through the UK’s EU (Withdrawal Agreement) Act 2020.

[4] Section 29(1) of EUFRA

[5] Sections 31-33 of EUFRA

[6] Explanatory Notes were, in this case, prepared by the UK Cabinet Office. They are the UK Government’s formal view of what is intended by each provision in the Bill. At paragraph 98 of the Government’s Explanatory Notes on EUFRB, it asserted that, because the Bill was required to implement and ratify an international treaty and to fulfill its international obligations, a sunset clause would not be appropriate. It is not obvious why the European Parliament should be afforded a reasonable time to examine the TCA with a view to granting its consent to it, but not the UK Parliament.

[7] Article COMPROV 16 states that ”A Party shall not provide for a right of action under its law against the other Party on the ground that the other Party has acted in breach of this Agreement”.

[8] See section 30 of EUFRA and Article COMPROV 13, discussed further in paragraph 14 of this article.

[9] Part Two: Heading Three: Title 1: Road Transport (transport of goods by road) and its related annex.

[10] Section 23 of EUFRA, which implements Part B of Appendix Road -1.A.1.3 to Annex Road-1 to the Trade and Cooperation Agreement (page 816 of the December draft).

[11] Section 33(1) of EUFRA. An example of Remedial measures is in Article Road 11 of the TCA, which is supplemented by the power, on nine months’ notice, to terminate the Road Transport title (Article Road 14).

[13] Part Six: Part 1: Title 1: Article Inst 11.[14] Part One: Common and Institutional Provisions: Title 1: COMPROV 13

[15] Section 6 of the EU (Withdrawal) Act 2018

[16] Enabling powers are a generic term to signify that UK ministers are enabled to make secondary legislation by primary legislation

[17] One of the essential elements of the TCA is to uphold the rule of law and respect for human rights (Part Six Dispute settlement and Horizontal Provisions): Title II: Basis for cooperation

[18] Paragraph 98 of the Explanatory Notes (ibid)

[19] Part Seven: Final Provisions: Article FINPROV 3: Review

[20] Part One: Common and Institutional Provisions: Title III: Institutional Framework: Article COMPROV 1.4

[21] Part Two: Title 1: Heading One (Trade): Title X: Good regulatory practices and regulatory cooperation

[22] The author, as General Counsel to the UK Department for Transport from 2010-2013, had board-level responsibility for general aspects of regulatory reform and better regulation in the transport sector.

[23] 21^st report of session 2019-21: 29 December 2021.