A relationship as deep as the one that the UK envisages will require a broad range of cooperation between the UK and the EU in the future. In order to ensure that this cooperation can function properly, that the relationship is transparent and accountable and that the trust established through the commitments made by both parties is maintained, there will need to be a new set of institutional and governance arrangements.
These institutional arrangements should ensure that the relationship is:
- practical and flexible, so that it can support a wide range of economic and security cooperation;
- managed effectively through new forms of dialogue, so that it is sustainable;
- operational on a day-to-day basis, through administrative provisions and a proper parliamentary process;
- robust, with a mechanism for addressing disputes so they can be resolved fairly and quickly; and
- accountable at home, so that people and businesses in the UK and the EU can be confident that their rights will be protected.
These arrangements should reflect that the UK will no longer be a member of the EU. The EU institutions, including the Court of Justice of the European Union (CJEU), will no longer have the power to make laws for the UK and the principles of direct effect and of the supremacy of EU law will no longer apply in the UK. The new institutional arrangements should respect the UK’s sovereignty and the EU’s autonomy, and be sufficiently rigorous such that people across the UK and its wider family, and across the EU and its Member States can depend on them.
A practical and flexible partnership
To ensure that the future relationship between the UK and the EU is consistent and coherent, it should be structured around an overarching institutional framework. While the legal base that would need to be cited under the EU Treaties would be for the EU to determine and would depend on the content of the institutional framework, precedent suggests that the UK’s proposal would take the form of an Association Agreement between the UK and the EU.
The future relationship is likely to consist of a number of separate agreements, each covering different elements of economic, security and cross-cutting cooperation. The details of each individual agreement will be subject to negotiation with the EU, but some should be legally binding, for instance, components of the economic partnership such as a core Free Trade Agreement (FTA) and of the security partnership such as internal security, while others should be based on political commitments, for instance, components of external security cooperation. The majority of these individual agreements should sit within the overarching institutional framework.
This framework should also facilitate many of the different forms of dialogue that would manage and administer the relationship, with a Governing Body providing political direction and a Joint Committee to underpin its technical and administrative functions. These are discussed further in the next section.
To ensure that the relationship is sustainable, the UK and the EU should also build in two elements of flexibility. First, both parties should ensure that the relationship is adaptable and can change over time, with the option for additional agreements to be added to the framework where this would facilitate new cooperation. Second, specific agreements should be able to sit outside of the overarching framework if this meant that they would function better for legal or operational reasons, for instance, to bring them into force quickly, or because specific governance arrangements were required.
All international agreements are of course entered into voluntarily and either party should be able to withdraw if they decided to do so, with consideration given to the merits of a mechanism allowing the provisions of an agreement to be reviewed. There should also be specific provisions that ensure any termination of an agreement between the UK and the EU was managed in a smooth and orderly way.
The UK’s proposed structure draws on precedents from other international agreements, which all have some form of institutional architecture. For instance, the EU-Canada Comprehensive Economic and Trade Agreement (CETA) and the EU-Ukraine Association Agreement include an overarching institutional structure, while the North American Free Trade Agreement establishes a Free Trade Commission and provides for a system of international arbitration for disputes, and the Association of Southeast Asian Nations (ASEAN) trade in goods agreement is managed by an ASEAN Free Trade Area Council. The EU and Switzerland are also currently in negotiations over a new institutional framework agreement.
New forms of dialogue
The UK’s vision for how firms, individuals, and public authorities will cooperate with their EU counterparts in future, whether related to aviation, pharmaceutical products entering respective markets, or how authorities share data on criminal suspects, will require dialogue between the UK and the EU at a political and technical level. This will ensure that the cooperation that is agreed as part of the relationship is kept up to date, and works not just over the next five years, but beyond.
The dialogue between the UK and the EU will mean that the relationship itself can evolve and respond to changing circumstances. This could be a new technology, where agreement may be needed on how the product or service could be sold into each other’s markets, or a new shared threat, which requires joint working to exchange time-sensitive information or new capabilities.
This dialogue will need to take place at different levels, in different formats and cover a broad range of issues,
- through a Governing Body at leader and ministerial level;
- through a Joint Committee, including sub-committees where relevant, at a technical level;
- through formal consultation between experts on regulatory issues and legislative changes; and
- through exchanges between the UK Parliament and the European Parliament.
Setting direction through a Governing Body
To set the strategic direction for the future relationship and make decisions at the highest level, a new Governing Body should be established. This would be a political body that would give leaders and ministers a forum in which they would:
- set the direction for the future relationship;
- discuss and determine if, how and when changes to the relationship were necessary; and
- provide transparency and accountability.
In line with the breadth of the relationship and to ensure unforeseen challenges could be dealt with quickly, the Governing Body should meet biannually at leader level, including at least once between the UK Prime Minister and the heads of state and governments of the Member States of the EU as well as the presidents of the EU institutions, with additional ad hoc formal and informal ministerial dialogue as necessary.
This would enable the UK and the EU to coordinate responses to new global crises or to change approach in response to shifting objectives over time. It would also reflect the UK’s and the EU’s status as key global players, and ensure that where it is appropriate, the UK’s and the EU’s shared values could be projected on the world stage. This would include discussion of coordinated action beyond the UK-EU relationship. This could relate to foreign policy, defence or development objectives, or international standards, where the UK and the EU may choose to coordinate activity.
In line with the Memorandum of Understanding and Supplementary Agreements between the UK Government, the Scottish Ministers, the Welsh Ministers, and the Northern Ireland Executive, the UK Government will represent the interests of all parts of the UK in this forum, ensuring that the interests of the devolved administrations are taken into account.
Technical discussion through the Joint Committee
To ensure that relevant parts of the future relationship function effectively, officials from the UK and the EU should meet for detailed discussions through a Joint Committee, and sub-committees where appropriate. This is a common feature of international agreements in this respect and would:
- steer the development of the future relationship, as agreed by the Governing Body;
- manage and monitor the implementation of the future relationship;
- resolve disputes related to the future relationship; and
- provide additional administrative functions related to the future relationship.
The Joint Committee would be directed by the Governing Body and make recommendations to it on whether changes were needed to improve the functioning of the relationship. Where provided for under the future relationship, the Joint Committee would also be able to make decisions that would facilitate the implementation of the various components of the relationship, and manage issues that arise.
In order to manage and monitor the implementation of the future relationship, the Joint Committee would also provide a forum for the UK and the EU to share information and views. This could relate to legislative changes and the processes in place to ensure that commitments related to rules and regulations were managed effectively and implemented correctly in the respective domestic contexts in the UK and the EU.
Alongside this joint surveillance, the UK authorities would monitor the UK’s compliance, as they do now, to ensure that the UK is meeting its international obligations.
Through regular and structured dialogue, the Joint Committee would be designed to prevent disputes from arising, whether related to implementation, enforcement or compliance. However, in the unlikely event that such disputes did arise, the Joint Committee would facilitate their resolution. The process for how this should work is detailed later in this chapter.
Parliament to Parliament discussions
The relationships between the UK Parliament and the European Parliament and national parliaments in the Member States are of course for the two Houses to determine. Both Houses and their committees have existing networks and relationships in this respect, which are expected to continue. Given the importance of these relationships, the UK Government will play its part in supporting them.
Therefore, alongside the role that the UK legislatures will play in the implementation of the future relationship in the UK, a regular and formal dialogue between the UK Parliament and the European Parliament should be established. This would enable legislatures, where they saw fit, to share views and expertise on a wide range of issues, from the functioning of the future relationship and its development to specific legislative changes that might be relevant. It should also build on the existing precedents for cooperation, including between Parliamentary Committees and their European Parliament and Member State equivalent counterparts. This cooperation will be supplemented by arrangements for the formal role of the UK Parliament, proposals for which are set out in another section.
Consultation over legislative proposals
In areas where the UK commits to a common rulebook, where the UK makes an upfront choice to commit to ongoing harmonisation with the relevant EU rules and requirements, it will be important for the UK to be able to share its views with the EU as those EU rules are developed.
While the UK would not have a vote on relevant rule changes, its experts should be consulted on the same basis as the Member States in line with the existing arrangements the EU has with third countries. As part of that process, the UK Government could also seek the opinion of the relevant domestic UK legislatures. Proposed arrangements for this are covered in another section.
Accountability at home
A core objective of the institutional provisions set out in this section is to ensure that there is accountability. The role of the UK Parliament and the devolved legislatures is integral to this process. This section sets out how such accountability will be assured.
First, the agreements that the UK will conclude with the EU will require domestic legislation to give them effect in the UK. The UK Parliament will need therefore to consent to the proposals, including for a common rulebook in specific areas.
Second, where these proposals relate to ongoing cooperation between the UK and the EU, the UK Parliament would also have a role in overseeing and scrutinising any legislative proposals. In areas where the UK had committed to maintain a common rulebook with the EU, the UK Parliament’s role in the proposed system would work as follows.
Notification: if the EU proposed a change to the rules related to the agreements, the UK would be notified through the Joint Committee and the UK Government would inform the UK Parliament.
- Scope: in determining whether the rule change was in scope of the agreements in the Joint Committee, the UK Parliament would have the opportunity to provide the Government with its opinion.
- Consultation and adaptation: there would be a decision in the Joint Committee about whether to add a rule change to the relevant agreement, and whether technical adaptations were required for the UK context. There would be a process for the UK Parliament to be consulted.
- Legislation: following consultation and adaptation, if the Joint Committee had agreed to adopt a rule change into the relevant annex of the agreement, the UK Parliament would be notified with an explanatory memorandum ahead of any domestic legislative proposals coming forward. The UK Parliament would then scrutinise any legislation to bring the proposals into UK law. As would be its right, the UK Parliament could ultimately decide not to pass the legislation, but it would be in the knowledge that there would be consequences from breaking the UK’s international obligations, as there would be for any international treaty, potentially for market access, border frictions or security cooperation.
The UK Government will work with the UK Parliament to ensure that both Houses have the mechanisms they need to properly scrutinise proposed changes to UK law, whether to primary or secondary legislation. The Government has already demonstrated during the passage of the EU (Withdrawal) Bill that it will actively engage with suggestions from both Houses about the oversight of secondary legislation, adapting scrutiny arrangements as appropriate, and recognising the quality and expertise in the existing scrutiny structures in the Commons and the Lords.
Some changes to common rules will be within devolved competence. In those circumstances, there will also be a role for the devolved administrations and legislatures in shaping the UK Government’s position ahead of discussions in the Joint Committee, and in ensuring that changes to common rules are reflected in law across the UK. The UK Government will work with the devolved administrations to ensure that processes are put into place which reflect the devolution settlements and provide for appropriate input from all parts of the UK.
A similar process would take place in relation to areas where the UK and the EU had agreed that there was equivalence between respective rules.
This process should give confidence to people across the UK that wherever the UK had agreed that there should be cooperation with the EU, whether related to the trade or the economic relationship, or law enforcement and criminal justice, this decision would have been taken by elected representatives accountable to the people of the UK.
This also means that the future relationship would be consistent with the UK’s commitment to deliver for the whole UK family, including the devolved administrations, and the Governments of the Overseas Territories and the Crown Dependencies. The future relationship with the EU will have implications for the existing structures of Joint Ministerial Committees being discussed as part of the joint review of Intergovernmental Relations.
The UK Government will work with the devolved administrations to ensure that any modifications to the existing arrangements reflect the new relationship between the UK and the EU. The UK Government will continue to engage with the Governments of the Crown Dependencies and Overseas Territories through the Joint Ministerial Councils and the Chief Ministers’ Quarterly.
This Article draws on the White Paper The Future Relationship between the United Kingdom and the European Union Presented to Parliament by the Prime Minister July 2018 Cm 9593. UK public sector information is reproduced pursuant to the Open Government Licence The Legal Materials contain UK public sector information licensed under the Open Government Licence v3.0. The Licence is available at http://www.nationalarchives.gov.uk/doc/open-government-licence/version/3/ (the UK Licence).