Beyond Brexit: Institutional Framework (EUC Report)

Earl of Kinnoull Excerpts

Monday 6th December 2021 Grand Committee

Moved by

[The Earl of Kinnoull]

That the Grand Committee takes note of the Report from the European Union Committee Beyond Brexit: the institutional framework (21st Report, Session 2019–21, HL Paper 246).

[The Earl of Kinnoull (CB)]

My Lords, on 24 December last year the EU–UK trade and co-operation agreement was concluded between the UK and the EU. Few of the 500 million people directly affected would not have been grateful for the clearing of this first great hurdle in establishing the new relationship between the UK and the European Union. The European Union Committee and the other members of our committee family set about analysing what had been agreed that day, which comprised not just the trade and co-operation agreement but two other agreements and 15 declarations. These were the final reports of the family of European Union committees of this House. Those committees—there were seven when I succeeded as chair the outstanding noble Lord, Lord Boswell of Aynho—have sought for almost five decades to scrutinise all matters and to inform the House and people more widely of every relevant issue through report, correspondence or debate.

The suite of five Beyond Brexit reports, three of which we are debating today, were the final reports of the European Union Committee after nearly 50 years of service to the House and just over 50 Brexit-related reports to the House. I hope that the committee today and, through it, the House will warmly thank the staff who have enabled matters. In the Brexit period of almost five years, these 25 or so officials were led by Chris Johnson. I know that all will want to recognise his outstanding service and to thank him. The clerk of the European Union Committee throughout the period was Stuart Stoner, and equal recognition and thanks are due to him and to all the staff concerned. I especially want to cite those who are in less frontline roles. The contributions of all were essential to our efforts in this long period of sustained activity. It is fitting that the noble Lord, Lord True, is today standing in for the noble Lord, Lord Frost. He has also been most helpful and generous with his time in public and privately, and I place on the record my thanks to him and to the noble Lord, Lord Frost, for his similar support.

I turn now to our report, Beyond Brexit: the institutional framework. Some 11 months or so on from the announcement of the trade and co-operation agreement, we have two associated agreements on nuclear matters and classified information, and 15 declarations, which I shall call the TCA package. This debate represents the first opportunity for the House to take general stock of the position and how it matches up to the various words and aspirations of the TCA package. In the interests of time, I will restrict myself to four areas, knowing that the speakers’ list for this afternoon’s debate will enable us to cover many others in this huge, varied and complex arena.

In particular, I will leave all mention of the Ireland/Northern Ireland protocol to my noble friend Lord Jay of Ewelme, the chair of the Protocol on Ireland/Northern Ireland Sub-Committee. I very much look forward to his contribution, as I do those of the noble Baroness, Lady Donaghy, the redoubtable chair of the EU Services Sub-Committee, and the noble Baroness, Lady Armstrong, an outstanding veteran of the European committee family, who is stepping in for the noble Baroness, Lady Verma, the equally strong chair of the EU Goods Sub-Committee.

The first of the four areas I want to consider is governance. The TCA governance apparatus comprises 24 committees and working groups of various types. I remind all that this is in addition to the eight set up under the withdrawal agreement. At the top of the tree is the Partnership Council, a very powerful entity that can itself agree changes to the TCA, in much the same way that the Joint Committee, at the top of the withdrawal agreement tree, can.

The speed with which the TCA was created inevitably and rightly left much detail to be agreed at a later stage. The logical fora for discussions on this quantitative detail were the committees, particularly the 18 specialist committees and four working groups of the TCA. These bodies are staffed by officials, not politicians, but I regret that they do not seem to be operating in a meaningful way. Recent Answers to Questions in the House have suggested that they have not even all yet met; and other disclosure has suggested that often, the ones that have met have not had agendas which would suggest that substantive discussions are going on. I therefore ask the Minister to update us on the position of these bodies. Have they now all met? Are they now operational as bodies that will tweak the TCA to the mutual benefit of the signatories?

The second area that I want to touch on is the 15 declarations. The first declaration is a joint one concerning financial services regulatory co-operation between the UK and the EU. The second paragraph states:

“Both Parties will, by March 2021, agree a Memorandum of Understanding establishing the framework for this cooperation.”


No such MoU has been signed, although technical negotiations were concluded back in March. This failure to sign the MoU means, in turn, that the EU will not assess the UK for equivalence, which was originally promised for the end of July. The curious result is that the People’s Republic of China has 14 financial services equivalence decisions with the EU, Mexico has 13 and the UK has just one, which relates to clearing and is time-limited.

A later joint declaration concerns the UK’s participation in EU programmes. This includes Horizon Europe. That declaration’s fourth paragraph states:

“It is the Parties’ firm intention that the Specialised Committee on Participation in Union Programmes will adopt the Protocols at the earliest opportunity to allow their implementation as soon as possible, in particular with the ambition that United Kingdom entities would be able to participate from the beginning of the programmes”.


As yet, however, the UK’s vast higher education and research community has no access to Horizon Europe, which is now nearly a year into its seven-year cycle. Could the Minister comment on the above examples and commit to providing the Committee with a full picture of the declarations a year on?

The third area concerns the dispute resolution provisions under the TCA. Chapter 4 of our report is devoted to explaining these complex arrangements. The conclusions set out in paragraphs 129 to 135 note, among other things, that the provisions are “novel”. We have seen in the disputes over fishing with France outstanding matters that need to be resolved. The two remaining disputes, one over UK waters and one over Jersey waters, have been rumbling on for some considerable time, with much work both being done on the megaphone by politicians and in offices by patient officials in the UK, the EU and France. These disputes represent in the TCA the first public test of a dispute, yet the resolution machinery is not being used. This is an active choice by both parties to the TCA, for either is able to engage the process.

I firmly believe that the parties need to use the dispute resolution procedures as part of the confidence-building process in the whole of the new TCA apparatus. Whatever the seemingly attractive reasons for dealing with these problems outwith the TCA apparatus, that reasoning is wrong when looked at in this wider view. Will the Minister explain why the current fishing disputes with France are not being dealt with using the TCA dispute resolution provisions within Part 2 of the TCA?

The fourth and final area concerns the scrutiny of the TCA, in particular parliamentary scrutiny. We dealt with this in paragraphs 76 to 91 of our report. I begin by thanking the Government for their part in the substantial efforts to bring into being the parliamentary partnership assembly. Indeed, I understand that the relevant Motion will be brought to this House later this week. I hope that it will allow the parliamentary partnership assembly to meet later, in the first quarter of 2022. The vital interparliamentary dimension of the new relationship between the UK and EU will then be immeasurably strengthened.

However, the scrutiny committees of both Houses have yet to conclude an agreement with the Government as to how to scrutinise the TCA and the withdrawal agreement. The European Union Committee and its sister committee in the House of Commons had the benefit of the scrutiny reserve resolution in a four decades old agreed process. The current interim and ad hoc arrangements for the TCA and withdrawal agreement serve no one well and are inconsistently applied, as they have not been set out in a clear and precise way.

The winning formula will include agreement on which documents—with, of course, appropriate Explanatory Memoranda—will be deposited with the scrutiny committees; how and when the contemplated textual changes to the TCA and withdrawal agreement will be scrutinised; how often and for how long Ministers will commit to appearing before the committees; and the way briefings will be given on meetings of the Partnership Council and the joint committee. Will the Minister comment on the necessity for proportionate scrutiny and on the wisdom of having these matters agreed in writing in advance?

In closing, I note once more what rare beasts liberal democracies are. We live in a world replete with far less attractive authoritarian regimes where basic freedoms such as free speech are withheld. The things that divide the UK and the EU currently are of a small nature compared with those that unite us. The DNA of the proud European Union Committee, and its torch, have been passed to the European Affairs Committee and several of the other new and vibrant committees of this House. Our work will continue. I therefore look forward very much to this afternoon’s debate. I beg to move.

--- Later in debate ---

[The Earl of Kinnoull (CB)]

My Lords, I thank everyone who has taken part in this utterly absorbing debate on three reports that remain very current despite being quite old. I thank the Minister for being on his feet for half an hour and batting back many of the balls in his typically agreeable way.

One of the most notable comments, to me, was made by the noble Baroness, Lady Chapman. She said how pleasant it was that this was a forward-looking debate. From here, as we look at European Union things, it will be important to be forward-looking. It is for historians to deal with the past; it is for us, I am afraid, to deal with the future. There are many issues to be addressed.

That takes me to something that I had forgotten today but that I think we should note: the centenary of the Anglo-Irish treaty. It is an incredibly important document and my relatives had something to do with it; I feel it is worth marking. In his excellent speech, the noble Lord, Lord Jay of Ewelme, listed the many issues that his committee is dealing with in Northern Ireland, in what is a very complicated and difficult environment all round. I am glad that his committee is able to shine its light on things and explain to people what is going on in a way that I feel is very clear. He gave a wonderful speech, which I am looking forward to reading. It showed just how many hard yards there are to go on that.

Outwith Northern Ireland, I felt that four themes came through this afternoon. The first was scrutiny. I am the person dealing with the noble Lord, Lord Frost, on scrutiny. We have not as yet been able to get to a satisfactory position on that. It is heartening to hear that so many others worry about it. I hope that message will be taken back by the noble Lord, Lord True, to say how much we care about finishing this off and getting to a settlement on it.

The other three issues have a common theme. The first was SPS and the wisdom of reaching some sort of agreement on it. I declare my interest as a small-scale farmer. We do not export anything, but the idea of being in the export business with the current SPS things is very frightening indeed. It stretches through to many other bits of our industry.

The second issue was performing artists. The noble Lord, Lord Hannay, was the first person to talk about this. I will back up a bit of what he said. Three different types of action need to take place. There is a certain amount of unilateral action that the Government can take to at least ease some of the issues. The Government have started to deal with the bilateral actions, although the bilateral deals done with the various European countries are wildly different and not done on a common basis, so it is very complicated for ordinary mortals to understand the situation in a given country. Then there are the things that need to be dealt with by the trade and co-operation agreement machinery. That is a very complicated task, and it needs a lot of co-ordination to get it right. We have started what I think will be a long line of correspondence on this, but I hope the Government will feel it well worth putting in the effort for this vast industry of more than £100 billion of turnover per year.

The last thing was the machinery of the trade and co-operation agreement, and it is not heartening to hear that one of the specialised committees has not met yet and many of the others have met only to agree their rules of procedure. I am afraid that is an indication of the common theme among those last three issues: the state of the relationship between the UK and the EU. I very much regret it. In culture, history and blood, these are our neighbours and friends—and we have fallen out with them.

We need to rebuild that trust and respect. A little bit of that will be in the parliamentary partnership assembly; a little bit will be everywhere. I know that people in this Room who have taken time to speak in this debate will all feel that very strongly. I do not think there is anything to ask the Government because I think they agree, but in the rebuilding of those it is important to realise that everything communicates—every newspaper article in the Daily Mail; everything. We need to rebuild them because, as I observed in the last bit of my speech, the real issue in life is the authoritarian regimes and the nasty way in which they deal with their populations. We are very lucky to live where we do.

Motion agreed.