On 24 December 2020, the UK and EU reached an agreement on the Trade and Co-Operation Agreement (TCA) setting out their future relationship. This has now been provisionally applied by both parties from 1 January 2021. The provisional application is scheduled to remain in effect until 28 February 2021 or another date as decided by the Partnership Council; or the date on which the TCA enters into force.

UK Parliamentary Scrutiny

Unlike the EU, the UK Parliament has no requirement for it to hold an explicit consent vote on the TCA. However, the TCA has now implicitly been approved by Parliament through the passing of the European Union (Future Relationship) Act 2020 on 30 December 2020 allowing for the agreement to be implemented in domestic law. The passing of the Bill in just one day has come under some scrutiny from the House of Commons Future Relationship with the European Union Committee with it expressing its regret that “there is not enough time for our Committee to scrutinise the deal more fully”.

EU Parliamentary Scrutiny

In terms of the EU ratifying the agreement, the European Parliament must firstly provide consent to the agreement prior to the conclusion of the agreement by the European Council. The European Commission confirmed that it has chosen Art. 217 of the Treaty of the Functioning of the EU (TFEU) providing for the establishment of association agreements as the EU’s basis for concluding the agreement. Art. 218 of the TFEU further provides that such agreements are approved by the Council of the EU by unanimity.

Committee Discussions

Discussions have been ongoing in the various European Parliament Committees , scrutinising the TCA and its ramifications moving forward. Three such Committees held meetings to discuss these issues, namely the Committee on Legal Affairs (JURI) and a joint Committee meeting between the Committee on International Trade (INTA) and the Committee on Foreign Affairs (AFET).

Views of the EU Parliament Regarding the Implementation of the TCA

Perhaps the strongest concerns where voiced over the role of the European Parliament in scrutiny of the deal and in the implementation of the TCA moving forward. It was stated that the Withdrawal Agreement does not go far enough in securing the European Parliament’s role. In response, it was provided that there will be continued European Parliament involvement in the Joint Bodies and the Commission has suggested to apply the same modalities in the Withdrawal Agreement with the same channels and procedures to involve and consult the European Parliament. There was discussion of the European Commission providing a statement that they would not go against the interests of the European Parliament and that Parliament’s rights in relation to classified information would be preserved. The European Parliament was concerned in the ability to hold the UK to account on implementation and were assured that there were autonomous measures immediately available should the UK breach essential elements in the agreement such as human rights, climate etc. stemming from a regulatory provision having a material impact on trade.

Data Protection

Questions were asked as to the strength and resilience of data protection measures developed by the UK post-TCA. However, ultimately this area will be governed by the EU adequacy decisions. These adequacy decisions will ensure the UK are fully in line with requirements. The 6-months bridging procedure is in place to give time for the Commission and the EU adopt a decision on the data adequacy. It is also used to provide the UK with time to develop its future system of databases etc. However, it was noted that the UK does not need to raise standards, as it currently has the same standards as the EU. If the UK system is not deemed adequate, then the sensitive EU data cannot be shared unless the relevant safeguards are in place. (Please see the End of Transition Guidance relating to Data Flows produced by the Law Society of England and Wales for further information on this - https://www.lawsociety.org.uk/topics/brexit/end-of-transition-period-guidance-eu-data-flows).

Missing Clauses

MEPs noted that there were seemingly no agreements made in terms of asylum and migration, external policy, defence or Erasmus. Erasmus especially was seen by the MEPs as a major blow to EU citizens. In regard to asylum and migration it was noted that the EU, rather than the UK, did not want to negotiate this matter due to a clear split in the Council over its inclusion. In regard to the other matters, the UK would not agree to the inclusion of these elements.

Conclusion

Ultimately, the EU ratification process is decidedly longer than the UK’s process, however this does seem to allow a greater degree of scrutiny by the European Parliament. They are in the best position to determine the long-lasting ramifications of the deal and focus on provisions they deem to be crucial and enshrining their own position in the developing landscape.

It has been noted on 19 January 2020 by RTÉ that two sources have told them that MS will insist on extending the deadline for ratification until April. It is understood that this extension is for MS to get a greater understanding of the governance aspect of the treaty, especially retaliatory action if there is a breach of the level playing field provisions coupled with national capitals pressing to have a more assertive role in determining breaches. The delay can also be partly attributed to the length of time needed to translate the 1,200-page treaty into the EU’s official languages.

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