(Urgent Question): To ask the Secretary of State for Exiting the European Union if he will outline what checks the House of Commons has over the powers of the “Joint Committee” contained in the proposed EU withdrawal agreement.
As is common in international agreements, the withdrawal agreement provides for a Joint Committee comprising representatives of the UK and the EU to govern the implementation and application of the withdrawal agreement. The Joint Committee will have the powers listed in article 164 of the agreement, to ensure that both parties are able to discuss any issues that may 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 UK does not agree. This is an important protection for the UK that Members should welcome.
Clearly Parliament will expect to 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 that 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: the Government’s approach at the Joint Committee will be underpinned by full ministerial accountability to Parliament.
Thank you, Mr Speaker, for granting this urgent question. The Prime Minister is due to attend the critical European Council tomorrow and Friday. However, despite the imminence of those crucial negotiations, very few Members of Parliament in this House are even aware of the extensive powers of the EU-UK Joint Committee contained within the withdrawal agreement. It is very important that those powers are brought to the attention of the House before the Prime Minister attends the Council tomorrow, hence my request this morning.
The Joint Committee is designed to oversee all aspects of the operation of the agreement and, crucially, managing and supervising the implementation and operation of the future relationship. Its potentially wide-ranging powers are contained in articles 164 to 166 of the withdrawal agreement and its rules of procedure, which are an integral part of the treaty found at annex VIII, almost literally at the back of the 585-page document; there is, in fairness, an annex IX.
The decisions of the Committee have full force in international law, equivalent to the treaty itself, as guaranteed in article 166. The Committee can meet in private. It does not have to publish its agenda, any minutes or even a summary of its minutes and can be chaired by two unelected civil servants, nominated by either side, rather than by Ministers. Under its rules of procedure, the two co-chairmen, acting outside normal meetings, can even make legally binding decisions in its name by an exchange of notes, without any recourse to or consent from Parliament. Rule 9 of the rules and procedures, on decisions and recommendations, clearly states on page 565 of the treaty:
“1. In the period between meetings, the Joint Committee may adopt decisions or recommendations by written procedure, if the co-chairs decide to use this procedure. The written procedure shall consist of an exchange of notes between the co-chairs.
2. Where the Joint Committee adopts decisions or recommendations, the words ‘Decision’ or ‘Recommendation’, respectively, shall be inserted in the title of such acts. The Secretariat shall record any decision or recommendation under a serial number and with a reference to the date of its adoption.”
That is almost exactly the same procedure that is used for notifying and recording EU regulations and directives. Despite all of that, this Committee has hardly ever been mentioned in Parliament, and few Ministers have ever referred to it directly throughout the extensive debates we have had during this Session on the whole issue of Brexit. Crucially, the Joint Committee is contained in the treaty, and therefore has the force of international law behind it, but it is outside the backstop, which is perhaps why it has received less attention than other aspects of the withdrawal agreement to date.
I believe that this has been extremely cleverly drafted to hand control of future elements of this country’s destiny deliberately to unelected civil servants, rather than to Ministers—civil servants who are unanswerable to this House of Commons in the way that Ministers are. Those involved have thought of everything, as rule 12 of annex VIII is entitled “Expenses”, and it even lays out how they can reclaim their expenses. At present, Parliament seems blissfully unaware of the ability of the Joint Committee to take legally binding decisions relating to any future aspect of the treaty or the future relationship, in effect, above Parliament’s head.
There are clear issues of accountability to Parliament that, as far as I am aware, have never really been debated in the House at all. I ask the Minister to confirm that everything I have said is true, and if any of it is not true, will he point out what and why? If it is true, which it is, will he explain what checks and balances this House has over the operation of the Joint Committee?
Thank you, Bishop.
In summary, the Joint Committee contained in the draft withdrawal agreement has hardly ever been discussed in the House of Commons or the media, despite the fact that it potentially gives two unelected civil servants the power to make decisions that are binding in international law by an exchange of notes, without the knowledge, let alone the consent, of this House. If we are to approve the withdrawal agreement, we will approve this procedure too, which is why it is so important we should know about it. I believe that these facts must be exposed for debate in this House before the Prime Minister departs for the European Council tomorrow. I thank you, Mr Speaker, for granting the urgent question, and I look forward to hearing—I will be intrigued to hear—the Minister’s reply.
My right hon. Friend asked me which bits of what he said I agree with, or which bits I thought were true or not true. Clearly, I agree with some of the things he said, and I think some of the things he said were slightly off the mark. The assumption underlying his question, as it seems to me, is that the Joint Committee is some subterranean plot with wire pullers attempting somehow to subvert the will of this House or to subvert our democracy.
My right hon. Friend will understand, as will the House, that the structure of the Joint Committee is very common in international agreements. An international agreement with two parties has to have a point of arbitration, and the Joint Committee, comprising representatives of the UK and the EU—[Interruption.] It is true that it is separate from the arbitration panel, but it will decide and govern the implementation and the application of the withdrawal agreement. This is entirely in keeping with what happens in international treaties. I would also suggest—
If my right hon. Friend would not insist on heckling me, I would also suggest the key part of all of this is paragraph 3 of article 166, which refers to “mutual consent”. The Joint Committee simply cannot act if the UK does not agree.
On the point about the UK Government’s relationship with this Parliament, there will be full and ample opportunity, as we have provided in the last four months, to debate the provisions or recommendations of the Joint Committee. In this final part of my answer to my right hon. Friend, I would like to stress that my right hon. Friend the Prime Minister herself has spent no fewer than 20 hours at this Dispatch Box in the last four months. There is a full and ample range of debate and discussion.
Thank you, Mr Speaker, for granting this urgent question. I congratulate the right hon. Member for Rayleigh and Wickford (Mr Francois) on securing it.
The Joint Committee has attracted a significant degree of attention over recent weeks in relation to its role in the operation of the Northern Ireland backstop, but as the right hon. Gentleman made clear, it is important to remember that the Joint Committee and its specialised sub-committees are also responsible for the application and implementation of the entire withdrawal agreement. Under Article 166, paragraph 2, any decisions made by the Joint Committee would have “the same legal effect” as the entire withdrawal agreement. The right hon. Gentleman has done this House a service in providing us with an opportunity to scrutinise more carefully this important part of the agreement and to seek reassurances about the role of Parliament in overseeing its operation.
To that end, may I ask the Minister the following questions relating to the role of this House in scrutinising the work of the Joint Committee, should the deal ever be approved? First, will the Government commit now to making a statement to this House before and after each and every meeting of the Joint Committee, and to make all of its documents available to Members? Secondly, what plans, if any, do the Government have to create a dedicated Committee of the House to oversee the withdrawal agreement, including the Joint Committee? Thirdly, the withdrawal agreement makes it clear that the Joint Committee will be made up of representatives of the United Kingdom and the European Union, so what role do the Government foresee Parliament having in the appointment of the UK representatives? Fourthly, is it the Government’s intention that the UK representatives include individuals from the main political parties, as well as those from the devolved Governments and Assemblies? Finally, specifically in relation to the Northern Ireland protocol, will the Minister confirm that it is the Government’s view that an indefinite application of the backstop would not constitute an unforeseen situation under article 164, paragraph 5(d) in such a way as might provide for amendment of the treaty itself?
On that list of questions, it would be absolutely customary and right for a Government Minister to make a statement when the Joint Committee had opined or made recommendations. That is absolutely in order. With regard to the hon. Gentleman’s request about a Committee, that is a matter for the House. It is not for the Executive to decide which Committees of this House can or cannot be formed.
We have ample and very full discussions with the devolved Administrations. They will of course be involved in aspects of the Joint Committee’s decisions, particular with regard to the question of Ireland and the backstop. There is no way, and this is carefully documented in the withdrawal agreement itself, that the Joint Committee would be making statements or recommendations about the backstop or any other matters relating to Ireland without, on our part, some representation and involvement of the Northern Ireland Government. On that question, I can assure the hon. Gentleman that there will be ample consultation and involvement of the Northern Ireland Assembly.
I congratulate my right hon. Friend the Member for Rayleigh and Wickford (Mr Francois) on securing this urgent question, and you, Mr Speaker, on granting it. May I simply ask my hon. Friend on the Front Bench about a particular point that was made by my right hon. Friend and the Opposition spokesman? With regard to “situations unforeseen” when this agreement was signed, who decides what is unforeseen?
On that specific question, the Joint Committee will have a role in suggesting what has not been foreseen. This is a very hypothetical question. What I find so extraordinary in this whole episode is that all of this is contingent on the withdrawal agreement being passed, yet my right hon. Friends who are asking these questions have consistently voted against the agreement. It seems very bizarre to me—[Interruption.] No, the point is that there is no way, as the question from my right hon. Friend the Member for Rayleigh and Wickford suggested or seemed to imply, that this is some sort of mystical plot, as I have said, to undermine the democratic processes of this House. The Joint Committee will not be doing that. The British Government will be in wide consultation with the House, there will be ample room for debate and everything will be done with the utmost transparency.
I commend the right hon. Member for Rayleigh and Wickford (Mr Francois) for submitting this question. I share some of his concerns, although after listening to his horror story about all the evils in the way this Joint Committee will operate, I have to say that 90% of it applies to the workings of the British Cabinet and 99% of it applies to the way international trade deals will be negotiated on our behalf without our knowledge or consent in the great new world that he seeks to achieve after Brexit.
On accountability and openness, I appreciate that parts of the agreement would insist on confidentiality in some circumstances, but will the Minister give an assurance that the UK Government will publish and lay before Parliament as much about the workings of the Committee as is permitted under the agreement as soon as possible?
Everyone now knows that it was a mistake to exclude the devolved Administrations and other people with potential skills from the Brexit negotiations. Everyone knows that it was a mistake not to ask for views and support from across the House much earlier in the process. Will the Minister therefore answer the question that he did not answer when the hon. Member for Greenwich and Woolwich (Matthew Pennycook) asked it, and give an undertaking that the UK delegation to this vital and exceptionally powerful Committee will properly reflect the political and social diversity of these nations? Will he also undertake that, particularly when it is looking at items within the devolved competences of Scotland, Wales and Northern Ireland, the Governments of those nations will be properly represented as part of the negotiating team and not simply left in a side meeting to be told what has been decided on our behalf afterwards?
I want to clarify that there is no scope within the Joint Committee for some form of delegation or negotiating team. Its sole function is to ensure that the terms of the withdrawal agreement are complied with.
As my right hon. Friend the Member for Rayleigh and Wickford (Mr Francois) so ably enunciated, all the workings of the Committee are to be found in annex VIII of the agreement. The annex is some 20 to 25 pages long and very carefully sets out how the Committee will work.
Why do the Government think it acceptable that any legal dispute about European law will be resolved by a decision of the European Court of Justice—a court for one of the two parties to the agreement—given that practically every legal dispute would be about a matter of European law, because both parties would still be under comprehensive European law?
There are two stages to the process. Clearly, there is the period after the end of the implementation period when the CJEU will decide matters of EU law. During the implementation period, as my right hon. Friend knows, it will be as if we were a member state—that is what the implementation period means. As my right hon. Friend suggested, within the implementation period, matters of EU law will be decided by the CJEU. After that, its powers are restricted only to matters of EU law, which we would be outside. That is the position as clearly set out in the withdrawal agreement.
I do not know about you, Mr Speaker, but it feels to me that this sorry saga proves that the Conservative party is now entirely run by the European Research Group. It puts me in mind of a limerick, which was much repeated in the 1930s:
“There was a young lady of Riga,
Who went for a ride on a tiger.
They came back from the ride
With the lady inside
And a smile on the face of the tiger.”
The Prime Minister has tried to ride the ERG tiger for all this time and frankly, she is now inside it, isn’t she?
I assure the hon. Gentleman that I have not been consumed by a tiger and I am still smiling. If we get the deal through the House—I look forward to his support in that—we will leave the EU and be able to move forward, I hope, in a progressive and measured way. However, I thank him for his poetic interjection.
I take the Minister’s points about this structure being used in several contexts in international treaties. Many of my constituents would say that it was still unacceptable, and that they would like more transparency. However, even assuming that the structure is acceptable in the context of some international treaties, what is my hon. Friend’s response to the comment that the treaty would be uniquely powerful, were it to be adopted, because it would involve this country and this House being subject to laws made for us by other people, over which we had no say?
I do not accept the premise of my right hon. Friend’s question. Clearly, our relationship with the EU over decades was complicated and involved and the withdrawal agreement is a capable way of getting out. Few of its provisions last beyond the end of the implementation period. It is a clear and orderly way of leaving the EU, and I urge hon. Members, including my right hon. Friends behind me, to support it.
As I have said to the House, there will be ample scope for debate and consultation. The Government fully understand that the House has to have an active role in shaping and deciding what our position as a country will be. I stress once again that paragraph 3 of article 166 says that no recommendations or decisions can be made without mutual consent. The mutual consent is between the UK and the EU, but as far as the Government are concerned, part of that mutual consent means engaging fully and transparently with the House.
I congratulate my right hon. Friend the Member for Rayleigh and Wickford (Mr Francois) on applying for this urgent question and I thank you, Mr Speaker, for granting it.
Ever since the very first Parliaments in Shropshire, the primary function of this House has been to control the manner in which money is levied from taxpayers and the way in which it is spent. I was astounded when I turned up on day one in the Department for Environment, Food and Rural Affairs, where I had the honour of being Secretary of State, to discover the level of disallowance—that is an EU expression for “fine”. For example, Amyas Morse, the Comptroller and Auditor General, said of the 2016 accounts that
“the total value of cumulative disallowance penalties incurred under CAP 2007-13 is £661 million”,
which amounts to more than £90 million a year. I therefore view with some horror article 171, which states:
“The Joint Committee shall, no later than by the end of the transition period, establish…an arbitration panel.”
Article 178 states that the arbitration panel
“may impose a lump sum or penalty payment to be paid to the complainant.”
What are the limits on the size of those payments? If the House of Commons objects, what can it do?
I am afraid that my right hon. Friend has too little faith in the UK Government. We have repeatedly said—and he knows this as well as anyone—that such payments or penalties would be imposed only by mutual consent. That is the key element. There is no way that the Joint Committee can unilaterally impose fines on us that we have not agreed to.
As has already been drawn to the Minister’s attention, under article 174, if the arbitration panel above the Joint Committee cannot agree on a matter of law, it has to be referred to the Court of Justice of the European Union. Does not that confirm that the Prime Minister has been prepared to relax at least one of her red lines to enable binding rulings from the CJEU to be accepted after we have left the EU? Does not that show that it is possible for her to relax other red lines to try to get us out of the mess that we are currently in?
I disagree with the hon. and learned Lady. The terms of the withdrawal agreement relate largely to the implementation period. I remind the House that during the implementation period, we will technically be a member state. [Interruption.] During the implementation period, that is the case. After that, the CJEU will have some role in interpreting EU law, but we will be outside its jurisdiction.
Further to the question asked by my right hon. Friend the Member for North Shropshire (Mr Paterson), and since we are treating of matters that are both controversial and complex, may I invite my hon. Friend to commit today—since he must, if he is going to do it—to lay letters and other papers in the House of Commons Library by the rise of the House tomorrow, setting out what the Government know the Committee shall be able to do and shall not be able to do, and the authority for that statement, so that we can all be perfectly clear on the scope and authority of the Committee, and the Government’s view?
I thank the right hon. Member for Rayleigh and Wickford (Mr Francois) for securing the question and for the concern that he shows for unelected bureaucrats because, of course, we sit in a Parliament where more than half of parliamentarians are unelected bureaucrats. Will the Minister possibly tell us what role the fully elected European Parliament will play in this Committee?
May I return to the question raised by my right hon. Friend the Member for Chipping Barnet (Theresa Villiers) to contest my hon. Friend the Minister’s rather doubtful assertion that this is normal for an international treaty? I do not know of any other international treaty where one of the signing parties is submitting to a law-making power by the other, the laws will be made in a Joint Committee that can sit in secret, and any matters of dispute will be referred to the court of the other party. Can he give any examples of an international treaty of this nature where those arrangements exist, and where the laws being made are directly applicable and have direct effect in the domestic law of only one of the states?
What I would say to my hon. Friend in respect of his question is that we were in the EU for 46 years. During that time we were absolutely and totally 100% under the jurisdiction of the EU. The withdrawal agreement essentially seeks to get a tunnel, or a pipe, away from that jurisdiction into a situation where we have left the EU absolutely. Now, my own understanding is that this is a wholly unique set of circumstances. In that respect, the withdrawal agreement seeks to be transitional—it is trying to get from state a to state b—so it is understandable that we will not be able to get immediate freedom, if that is how he would put it, but the withdrawal agreement substantially gets us from one state to another. If it is endorsed, I think we will be able to proceed in an orderly way out of the EU.
The Minister speaks about mutual consent, but where there is mutual consent there are never any problems. The problems come when that consent breaks down. With the Joint Committee, is it not correct that, surely, where mutuality of consent breaks down the final arbiter will be the European Court of Justice, irrespective of why the arguments arise?
There is nothing disorderly, but I must say that I am saddened to see the hon. Member for North East Somerset (Mr Rees-Mogg) holding, until he just put it away in his pocket, his mobile telephone. I have long been conscious that the hon. Member possesses, and indeed uses, such a mobile phone. However, it does conflict very, very, very heavily with my image of the hon. Gentleman as the embodiment of tradition and as someone who thinks that the 17th century is indecently recent.
Regrettably, I was explaining why I was delayed for a 2 o’clock appointment—so that I would have the pleasure of being in the Chamber to listen to this important urgent question. My apologies for being unduly modern. I hope, Mr Speaker, you will follow in my footsteps of antiquity as a general rule.
To come to the gist of the question, I wonder whether it is correct that the Joint Committee will be subject to article 4 of the treaty, which means that any rulings it provides are senior law in the United Kingdom and therefore could overwrite statute law—making Henry VIII powers, which have been a matter of some controversy in this House, seem relatively minor?
Obviously, this is a rather circular point. Article 4 is the conduit pipe, if you like, through which the provisions of the withdrawal agreement would come into UK law. The point of the Joint Committee is to look at the implementation of the withdrawal Act. There really should not be a conflict between article 4 and the Joint Committee. As I say, if there is a dispute, that would have to be resolved within the Joint Committee. As far as the British Government are concerned, there will be ample consultation, debate and questions in this House.
Scrutiny is always welcome, but I have to say that I believe this urgent question is driven less by urgency and more by a desire on behalf of the right hon. Member for Rayleigh and Wickford (Mr Francois) to continue his deeply unattractive and frankly tin pot tyrant-like attacks on civil servants. Will the Minister deprecate those attacks on civil servants? Will he clarify, in terms of the oversight of the Committee, what the enhanced role for the devolved nations, which the Prime Minister promised at the Dispatch Box just a few weeks ago, looks like?
On the hon. Gentleman’s first point, I would like to put it on the record that we have an extremely fine and professional body of civil servants. I think that that is undisputed in this House. On the second point, as I have said on a number of occasions, we hope and expect to have full involvement and engagement with the devolved Administrations.
Annex VIII of the withdrawal agreement provides that the Joint Committee will be co-chaired by a member of the European Commission and a Minister of the British Government or, alternately, a “high level official”. Given the hugely important role that this Committee will play in the governance of this country, does not my hon. Friend agree that, as far as the British side is concerned, the chairman or chairwoman should always be a Minister rather than an official, so that he or she is answerable to this House? Is he prepared to give an undertaking to this House today that that will always be the case—if, of course, the withdrawal agreement is ever concluded?
May I press my hon. Friend the Minister further on his earlier answer to my right hon. Friend the Member for Chingford and Woodford Green (Mr Duncan Smith)? The Joint Committee will make legal decisions in unforeseen circumstances. [Interruption.] Can he confirm that the Joint Committee will itself decide what circumstances are unforeseen? [Interruption.]
Once again I have to say that I think all my colleagues, all my right hon. and hon. Friends, have very full confidence in our civil service. With regard to my hon. Friend’s question, yes, the Joint Committee will decide, and will have a view on what circumstances are foreseen or unforeseen, but I have to address this point: the Joint Committee’s purpose is not to hoodwink or in any way subvert what we do as a democracy in this House. It is the Government’s full intention to engage extremely attentively to opinion in this House.
I am sure that the right hon. Member for New Forest West (Sir Desmond Swayne) will regard it as the encomium of all encomiums to have tribute paid to him by the junior Minister; he may well feel so uplifted by the tribute that he wishes to have it framed. However, I say gently to the Minister that his tribute suffers from one notable disadvantage: despite its generosity, it offered no answer to the question.
The Minister has referred several times to the devolved Administrations, but he will be aware that the Northern Ireland Assembly has not sat for over two years, so how does he think the Joint Committee will take note of the thoughts coming from the Province on what is, of course, one of the big issues of the whole agreement?
We fully anticipate and hope that the Assembly will be restored, but in the absence of its restoration we will engage, as we have done, with those of all shades of political opinion across Northern Ireland, to ensure that their representations, their feelings, are reflected in the decisions of the Joint Committee.
Can the Minister confirm what he said earlier—that any decision making of the Joint Committee will be subject to ministerial oversight unless it is democratically accountable in this place? Secondly, he mentioned engagement with the devolved nations; can he confirm that that engagement specifically on reserved matters will take place through the MPs who represent those constituencies in this place?
With regard to the Joint Committee, if we assume that the implementation period lasts until the end of 2020, as is set forth in the agreement, there will certainly be ministerial involvement—Ministers will be involved—in, I suspect, every meeting of the Joint Committee. With regard to devolved matters, I know that my hon. Friend, in another capacity, is an extremely active MP who represents the interests of his constituents, and he and other colleagues across the House will be fully engaged in devolved matters, as has already been the case.
Thank you, Mr Speaker, and very well done for granting this urgent question. I have been really concerned about this matter for a long time.
I want to talk about the mutual consent provision in article 166. Effectively, in certain circumstances, it gives the EU a hard veto over what the decisions are. The Minister said that no negotiation was planned, but we know that the customs procedure embedded in the plans for a backstop, should we be unable to agree a subsequent agreement, is admitted by the UK Government and the EU to be unworkable in its current form, is non-compliant with the Union customs code and is incomplete with respect to matters such as what happens to VAT at our borders or what happens with the export declarations. The customs procedure itself specifies that unilateral measures can be taken by the EU, should it not be satisfied with that procedure. The whole point is that these matters, and the rectification of these matters, are fundamental to the collection of taxes at our borders. There is no way in the world that we as a House should ever contemplate giving the EU power over how they are changed, as this provision does.
My hon. Friend is quite right to say that the EU may have a veto, but just as the mutual consent provision gives the EU a veto, it also gives us—the UK Government—a veto over such decisions. On VAT and other matters, much of what my hon. Friend said referred, in my understanding, to phase 2 of the negotiations, in which there will be, one hopes, a more comprehensive free trade agreement. That is the ultimate goal to which we are tending.
For five years from 2010, I was a member of the European Scrutiny Committee, which went through reams of directives from the European Union every week. One of the reasons why many of my constituents said that they voted by a majority to leave the EU was the lack of transparency and accountability of that bloc. To continue on the theme of big cats, which was introduced by the hon. Member for Rhondda (Chris Bryant): a leopard does not change its spots, and I do not think that the EU will either. Will the Minister therefore make a commitment that if the withdrawal agreement goes through and this Joint Committee is constituted, we will have a statement from a Minister at the Dispatch Box after every meeting of that Committee?
My understanding is that the Government’s engagement with this House will be full, and as transparent as possible, in respect of decisions and meetings of the Joint Committee. I look forward to my hon. Friend’s participation in further scrutiny Committees when we have got the agreement through the House and when the Joint Committee sits.