Brexit: Powers of EU-UK Joint Committee

Lord Keen of Elie Excerpts

Wednesday 20th March 2019 Lords Chamber

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, with the leave of the House, I will repeat the Answer to an Urgent Question given by my honourable friend the Minister for Exiting the European Union in the other place. The Answer is as follows.

“As is common in international agreements, the withdrawal agreement provides for a joint committee, comprising representatives of the United Kingdom and the European Union, to govern the implementation and application of the withdrawal agreement. The joint committee will have the powers listed in Article 164 to ensure both parties are able to discuss any issues that might arise concerning the management and operation of the withdrawal agreement.

As set out in paragraph 3 of Article 166, the joint committee will make all its decisions and recommendations ‘by mutual consent’ of the parties. In other words, it cannot act if the United Kingdom does not agree. That is an important protection for the United Kingdom, which honourable and right honourable Members should welcome.

Clearly, Parliament will expect that it will be able to undertake scrutiny of the work of the Joint Committee, as indeed will the European Parliament. Quite how that will operate is something which the Government will discuss with Members of this House and the other place, should this House give its support to the withdrawal agreement. But this House should be in no doubt that the Government’s approach at the joint committee will be underpinned by full ministerial accountability to Parliament”.

[Baroness Hayter of Kentish Town (Lab)]

Given the Government’s appalling record—ignoring both this House and the Commons; failing to influence either the mandate for their negotiations or, indeed, the outcome; and ignoring twice the view of the Commons on the deal—can the Minister assure the House that the joint committee’s work will be more accountable to Parliament than what we have witnessed so far? While I am on my feet, we have heard that the Prime Minister’s letter possibly arrived in Brussels too late to be discussed by the Council tomorrow. Can the Minister confirm whether that is the case?

[Lord Keen of Elie]

My Lords, I am not in a position to confirm or deny the position with regard to the postal service. However, I can say that, as always, Ministers will be accountable to Parliament for matters undertaken by the joint committee under the withdrawal agreement.

[Lord Thomas of Gresford (LD)]

My Lords, the UK and the EU are obliged to implement the joint committee’s decisions, which will, under Article 166, have the same legal effect as the agreement itself—but there will be no ratification of any decisions taken by the joint committee, obviously. In the absence of any agreement on an issue by the joint committee, under Article 170, the issue will then be referred to the arbitration panel, whose decision will be final and binding. Again, it will not go back to Parliament for discussion. What control, if any, does the House of Commons have over the joint committee’s decisions?

[Lord Keen of Elie]

My Lords, there are two obvious controls. First, Ministers or others will attend the joint committee with a mandate from Parliament. Secondly, pursuant to Section 25(2) of the Constitutional Reform and Governance Act 2010, a decision that constitutes an amendment to part of the treaty or replaces part of the treaty made by the joint committee would require ratification.

[Baroness McIntosh of Pickering (Con)]

My Lords, can my noble friend explain the current legal position on consultation on international agreements that have been reached with the Faroes, Norway and Iceland, which have carried over, particularly for the Scottish Government?

[Lord Keen of Elie]

Of course, international affairs are a matter for the United Kingdom Government. We do not undertake such matters without consultation with the devolved Administrations, where it has an impact on their interests. It is, however, simply a matter for the United Kingdom Government, not the Scottish Government.

[Lord Pearson of Rannoch (UKIP)]

My Lords, have the Government seen the Daily Telegraph article revealing that nearly all the civil servants in the Foreign and Commonwealth Office are trying to frustrate the Government’s policy of leaving the European Union? How will the national interest be served in the joint committee?

[Lord Keen of Elie]

My Lords, the Government as an entity do not read—and do not read the Daily Telegraph.

[Lord Tomlinson (Lab)]

My Lords, the noble and learned Lord said earlier that the Government always seek to follow the mandate from Parliament. Can he explain what the Prime Minister meant in her letter to Donald Tusk when she said:

“However, it remains my intention to bring the deal back to the House”?

[Lord Keen of Elie]

It means that her intention is to bring the deal back to the other place.

[Lord Lilley (Con)]

My Lords, does the issue of the appalling committee of two civil servants that will be able to make law for this country not dwarf that of Henry VIII clauses and so on, which has caused this House so much concern in the past?

--- Later in debate ---

[Lord Keen of Elie]

My Lords, the joint committee will not be constituted of two civil servants. Its final constitution is yet to be agreed. Nevertheless, it will involve Ministers and others coming together. The size of the committee may vary from time to time, according to the task presented to it, but I do not accept the proposition that it will comprise two civil servants.

[Lord Christopher (Lab)]

My Lords, I am not clear on the spread of the committee’s responsibility. For example, who will deal with the problem of $3 trillion being put through the City every day to deal with various contracts? There is high competition over them between several European countries, and New York in particular. Who will deal with that?

[Lord Keen of Elie]

These will not be issues for the joint committee. Its powers are essentially embraced by Articles 164 and 166 of the withdrawal agreement. I shall not go through them in detail at this stage, but their general purpose will be to ensure that the withdrawal agreement remains operational in circumstances where, for example, there is an unintended consequence or an apparent error in the agreement when it comes to its application. Therefore it does not extend to the sort of area that the noble Lord raises.

[Viscount Waverley (CB)]

My Lords, a lot of reference is made to this arbitration committee. Could the Minister kindly remind us who makes up this arbitration committee? What are the criteria under which this arbitration panel is made up and the matters relating to it decided?

[Lord Keen of Elie]

My Lords, it is important to distinguish between two entities for the purposes of the withdrawal agreement. There is the joint committee, which will operate pursuant to Article 164. The final constitution of that joint committee has not yet been arrived at, but it will require representation from the EU and the United Kingdom after withdrawal and the consent of both parties before any decision is made. In the event of a dispute, matters can be referred on to arbitration and there will be an arbitration panel, which will be appointed from experts agreed on by the parties to the withdrawal agreement.

[Lord Cormack (Con)]

Can my noble friend assure me that United Kingdom Ministers on this joint committee will speak with one voice?

[Lord Keen of Elie]

My Lords, United Kingdom Ministers always speak with one voice.

[Lord Thomas of Gresford]

The Minister said that there will not be two civil servants and we hear that there might be Ministers. Who will be the UK’s representatives on the joint committee, and how will they attain a mandate from the House of Commons—one which those negotiating recently most clearly did not have?

[Lord Keen of Elie]

My Lords, the final constitution of the joint committee has not yet been agreed. It will be addressed once exit has taken place. However, those who represent the United Kingdom on the joint committee, be they Ministers or others, will carry with them a mandate. They will be answerable to Parliament for the decisions made by the joint committee and the joint committee cannot implement decisions unless they are agreed to by both parties.

[Lord Soley (Lab)]

Whether they are Ministers or not, will they answer to Select Committees of this House?

[Lord Keen of Elie]

My Lords, it is intended that in due course the existing European committee—I am sorry; I have not been given the precise terminology for the committee—will continue to receive information from those attending the joint committee. The final arrangements for that have not yet been made.

[Baroness Smith of Newnham (LD)]

My Lords, I understand that at least one government Minister seems reluctant to give evidence to your Lordships’ Economic Affairs Committee. If there is precedent for Ministers being reluctant to give evidence, there is a valid question about how we make sure that anyone representing the country on the joint ministerial committee can be made to give evidence.

[Lord Keen of Elie]

My Lords, our Ministers are always answerable to Parliament.

[Lord Anderson of Swansea (Lab)]

My Lords, the Minister has said that the committee is answerable to Parliament. Does that mean that Parliament, or both Houses, can overrule its decisions? What would happen if Parliament were to do that?

[Lord Keen of Elie]

My Lords, Parliament could not overrule a decision of the joint committee. However, those attending the joint committee on behalf of the United Kingdom will take with them the mandate from this Parliament.

[Lord Purvis of Tweed (LD)]

Will the Minister be clear about how that mandate will be secured? Is it the assumption that, before the position of the UK representatives on the committee is presented to the committee, it will have been passed by a resolution of both Houses? If that is not the case, how can the Minister say that there will be a mandate?

[Lord Keen of Elie]

First, membership of the joint committee will not necessarily be fixed. Its final constitution has not yet been agreed and may vary from time to time. Secondly, the manner in which members will carry their mandate from Parliament has yet to be agreed.