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December 7, 2020
The Committee has published a letter and accompanying scoping paper on future EU-related scrutiny, noting the urgency of developing robust mechanisms for future parliamentary scrutiny of EU law and policy that will impact the UK after the end of the transition period (31 December 2020).
While the precise mechanisms for scrutiny will depend on the outcome of the ongoing UK/EU future relationship negotiations, the paper is intended to inform discussions with the Government on:
- The scope of EU-related areas that Parliament will be interested in scrutinising post-transition, because of their implications for the UK; and
- The Government’s role in facilitating effective parliamentary scrutiny, including what information will need to be made available by the Government to Parliament to facilitate effective scrutiny.
The paper identifies the following main areas the Parliament may wish to scrutinise:
- new EU legislation and policy: this may be relevant to the UK because: (i) it has an effect/impact by virtue of the Withdrawal Agreement (WA) or future relationship agreement(s); or (ii) it applies to third countries, e.g. EU to UK personal data flows; or (iii) it has an effect/impact because the EU’s standards are de facto global standards owing to the size of the EU market and the EU’s regulatory power and enforcement tools;
- new EU case law: the WA retains a role for the CJEU in certain areas where an EU law concept is involved; under the EU (Withdrawal) Act 2018, UK courts may have regard to future CJEU case law if they consider it relevant and they must interpret retained EU law in accordance with CJEU case law made before the end of the transition period; future CJEU judgments may have an indirect effect on the UK, e.g. a judgment on data sharing that binds EU telecoms companies might affect data sharing with the UK even though it does not bind the UK companies;
- operation of, and disputes under, the WA: the way the WA is applied by the UK and the EU will have an ongoing impact, e.g. on UK and EU nationals whose residence rights depend on it; the WA will also “undoubtedly give rise to ongoing issues of public interest which merit dedicated parliamentary scrutiny”:
- Implementation and application of the Ireland/Northern Ireland Protocol: the Protocol is the most controversial, but also the least well-understood part of the WA; specific provisions of EU law apply in Northern Ireland in specific circumstances, but not to the rest of the UK, and the CJEU continues to have jurisdiction in areas covered by the Protocol, e.g. export summary declarations; the Protocol also applies goods-related EU law to Northern Ireland, but not to the rest of the UK, in a diverse range of areas;
- Implementation and operation of, and disputes under, the future relationship agreement(s): any ongoing negotiations after 31 December 2020 will require parliamentary scrutiny; both the implementation and ongoing operation of a future agreement will require scrutiny; and
- operation of retained EU law: retained EU law is EU law at it stands at the end of the transition period that is “frozen” as part of domestic law until amended or replaced; Government will have to take important policy decisions as to which elements of retained EU law should be amended or replaced; the courts will face tricky issues in the interpretation of EU law, as it is left to their discretion whether to have regard to CJEU case law that is decided after the end of the transition period.
The paper also includes a table setting out what information Parliament will require to conduct scrutiny effectively. To access the paper, click here.