Continuity Agreement: Kingdom of Morocco

Lord Stevenson of Balmacara Excerpts

Monday 9th March 2020 Lords Chamber

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[Lord Stevenson of Balmacara]

That this House regrets that, in agreeing a continuity agreement between the United Kingdom of Great Britain and Northern Ireland and the Kingdom of Morocco, laid before the House on 20 December 2019, Her Majesty’s Government failed to consult adequately with the people of Western Sahara; and calls on the Government to ensure a trade agreement conforms to international law in relation to the people of Western Sahara.

Special attention drawn to the treaty by the European Union Committee, 4th Report

[Lord Stevenson of Balmacara (Lab)]

My Lords, I shall speak about the UK-Morocco association agreement. I also intend to make some remarks about the underlying issue here: Parliament’s continuing inability to scrutinise UK trade deals in a meaningful way. As your Lordships’ House will be aware, although there will be no direct parliamentary involvement in the UK, a UK-EU trade deal needs the approval of some 38 individual EU national parliaments and regional assemblies before it can come into force; and if we are able to negotiate a free trade deal with the USA, it will come into force only if it is approved by Congress—both the House of Representatives and the Senate. The UK-Morocco Association Agreement is a good example of why the current situation is, to my mind, untenable.

The UK-Morocco association agreement was laid before Parliament on 20 December 2019 and, as it is a treaty, it is subject to the Constitutional Reform and Governance Act 2010. However, it is a negative instrument, so the only meaningful debate possible is the “nuclear option” of a vote to strike down the instrument in either of the Houses of Parliament within the statutory period, which has now passed—a piece of Gilbertian nonsense if ever there was one. The UK-Morocco association agreement is one of the Government’s continuity agreements designed to replace EU trade treaties after Brexit. It replaces the EU-Morocco association agreement, as well as the accompanying EU-Morocco dispute settlement mechanism agreement. The Lords European Union Committee drew the agreement to the special attention of the House, with particular reference to Western Sahara as, in the view of the committee, the inclusion of that territory

“raises important questions, especially about how the UK should balance its commitment to Western Sahara’s ‘undetermined’ status.”

Western Sahara is categorised as a non-self-governing territory under chapter XI of the Charter of the United Nations. A 1975 International Court of Justice ruling recognised Western Sahara’s right to self-determination and, in 1991, the UN launched a mission to hold a referendum for the Sahrawi people to decide whether it should be an independent country or become part of Morocco. That referendum has still not been held. The EU signed a trade treaty with Morocco in 2012 which covered Western Sahara. The European Court of Justice has twice ruled, in 2016 and 2018, that Western Sahara is a “separate and distinct” territory from Morocco under international law, and that no agreement with Morocco can be applied to the territory of Western Sahara without the consent of the Sahrawi people.

The internationally recognised legitimate representative of the Sahrawi people has rejected every proposal that the EU’s trade agreement with Morocco should apply to them. A coalition of 93 Sahrawi civil society groups also stated that the people of Western Sahara reject the inclusion of their territory in any agreement concluded by Morocco. The EU amended the wording relating to Western Sahara in its agreement, so that it applies only to products from Western Sahara that are

“subject to controls by customs authorities of Morocco”,

and the UK agreement notably includes this phrase. However, the EU Committee report draws the attention of your Lordships’ House to the fact that the Sahrawi national liberation movement, the Polisario Front, does not consider the consultation which preceded this compromise to have been sufficient. A letter signed by the general secretaries of the major trade unions and NGOs, including the Trade Justice Movement, War on Want, Global Justice Now and Traidcraft Exchange, was sent to the Government in January this year. The Swedish Government have also made a formal objection.

Last year, the High Court ruled that the territory of Western Sahara is separate from Morocco under international law and that the UK Government are therefore acting unlawfully by failing to distinguish between Morocco and Western Sahara. From my argument so far, I hope it is clear that your Lordships’ House owes our EU Committee a considerable debt of gratitude for its work in flagging up this issue. There is, without doubt, a sensitive political decision hidden within this seemingly simple rollover agreement, but the committee’s report raises wider questions of how this House and Parliament should deal with ratification of treaties. If we do nothing, surely we are complicit in undermining UN-led efforts to achieve a political solution that provides for the self-determination of the people of Western Sahara. Yet if we raise this issue, as the committee suggests, we are constitutionally unable to do anything, short of the nuclear option of voting down the treaty as a whole. Am I alone in thinking that this situation is unsatisfactory? If we do feel that, what can we do?

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To conclude, the UK-Morocco association agreement replicates the effects of the EU-Morocco association agreement. We believe that it provides certainty and confidence to business and consumers, enabling them to continue to benefit from preferential terms. The UK-Morocco association agreement does not prejudice our policy towards Western Sahara. Its status remains undetermined, and we support the United Nations efforts towards a peaceful resolution to this dispute. I assure noble Lords that we will continue to encourage parties to engage with the United Nations political process, and we support the overall goal of a just, lasting and mutually acceptable solution, which will—I stress this point—allow for the self-determination of the people of Western Sahara.

[Lord Stevenson of Balmacara]

My Lords, I thank all who participated in this wide-ranging debate. I make no apology for that: we will inevitably have to confront the question of how Parliament and the Executive can get closer together and come to a proper arrangement for the review, scrutiny and justification of treaties. But this was never going to be the occasion on which that was settled, and I understand that the Minister was unwilling to get too deeply into the bigger issue. Riding towards us is the relaunched trade Bill, under which we will have the opportunity to do so, so I will hold back any further comments until that time.

A lot of ground was covered in the individual contributions. I am very grateful to my noble friend Lord Davies for his support. The noble Viscount, Lord Waverley, and the noble Lord, Lord Shipley, gave an interesting insight into the detailed politics of the region—not something I know that much about, but I have certainly learned a little in preparing for this debate—and their knowledge and experience have taken us further.

As my noble friend Lord Davies wanted us to say, it is good that there is an outcome to the rolling forward of the agreement. It is good that the Government have done that, and we should recognise that. Having said that, the noble Lord, Lord Patten, made a very good point: there is a much bigger context, including terrorism, of which this is only a part. However, as the Minister mentioned, the relationship we have through the trade agreement will help to cement things in that part of the world, and we should welcome that as well.

Nothing the Minister said led me to think that there will be a change in how the Government are hoping to roll forward other trade agreements. The Executive will rely on the royal prerogative and Parliament will be excluded, even though there will be a lot of consultation. Consultation is good, but it is no substitute—we will come back to that.

We are left with the narrow question of whether, in the words of the noble and learned Lord, Lord Mackay, the Government have drilled down and got to the bottom of the legal niceties of the point. These were raised in paragraph 20 of the document published by the European Union Committee.

I do not expect the Government to respond to this, but it seems to me that the only point the Government are holding on to is that they have rolled forward the existing arrangements made by the EU on Morocco, including on Western Sahara, and recognised in that the issues around the future of the area, support for the United Nations and the need to ensure that there is an eventual settlement to the benefit of the people there. I do not think that this quite does the trick.

The noble and learned Lord asked: are the Government sure that they have got the legal advice right in doing this? The report said that the Government have committed to

“consider carefully the implications of any future ruling from the CJEU.”

I understand that presumably that will not exist beyond 31 December 1920—December 2020; I must get the date right, although the Minister is nodding, so I am sure he has picked me up correctly anyway.

There is rather a strange point that I marked out when I first read the report. It said:

“They also explained that conducting any further consultation on the 2019 EU amendment”—


this was the one that reflected the worries of the Western Sahara region about the treatment of its goods in relation to being part of Morocco when it felt it should not be—

“was deemed inconsistent with the UK’s mandate to ensure only technical replication of EU agreements while still an EU Member State.”

I do not think there is time for further exploration of that but I would be grateful if the Minister might consider writing to us and to those participating in the debate to give us a better understanding of exactly where they get their confidence on this point.

If it is true that there is an emerging jurisprudence that suggests that the Western Sahara area is not part of Morocco and has independent rights and applications, and as no specific consultation was undertaken by the UK Government before achieving this agreement, it seems to me that we are underprepared for the reaction that may come back at us. However, particularly after so many fish, this is not the time of night to discuss that and I look forward to hearing from the noble Lord, if he wishes to write. I beg leave to withdraw the Motion.

Motion withdrawn.