If ever there was an argument for thorough parliamentary scrutiny over future agreements, Brexit is surely it. With repercussions ranging from headline-grabbing disruption to supply chains to serious, but less publicised, implications for law enforcement and citizens’ rights, it is becoming increasingly clear that the consequences of the Brexit deal would have benefited from further examination.
The news that the final ratification of the deal by the European Parliament could again be postponed is the latest twist in a fractious divorce, but behind it are serious concerns with the deal for which countless citizens and businesses are now paying the price.
Adopted after only a few hours of debate in the middle of the Christmas recess, the British Parliament’s examination of the Trade and Cooperation Agreement (TCA) was limited at best.
In a procedure that was described as ‘a farce’ by the Hansard Society, the imminent threat of no deal meant that the TCA was rushed through Parliament with little to no discussion of its ramifications, nor indeed of what the British Government would seek to negotiate in future agreements with the EU.
In contrast, rather than rush its assessment, the European Parliament has made use of the extra time provided by the TCA’s provisional application.
It would certainly have been preferable if time had been allowed for both parliaments to fully scrutinise the deal before it came into force.
However, given the exceptional circumstances, at least the European Parliament, not to mention civil society, trade unions and businesses, now has until the end of April to highlight key areas of concern and identify possibilities for future improvement.
Ahead of formal consent, the substance of the European Parliament’s position can already be seen in the fifteen opinions that have been tabled from its committees. These shed light on a wide range of issues which the TCA fails to address or where little or no provision has been made.
To take one of these opinions as an example, the civil liberties, justice and home affairs committee raises a number of issues where there will be major consequences after Brexit, many of which have gone largely unreported compared to headline issues affecting trade.
In terms of fundamental rights, while the TCA ensures the continued application of the European Convention on Human Rights, the weakness of the UK data protection regime is nevertheless a key area of concern.
Two examples include the UK’s Data Protection Bill, which does not grant the same rights to those subject to an immigration procedure, and the UK legal framework on data retention.
In addition to potentially violating the rights of citizens, these issues could create obstacles for data transfers to the UK.
While the Commission has initiated the procedure for an adequacy decision to enable data transfers, the more critical line taken by the European Parliament underscores the likelihood that such a decision would be challenged in the ECJ potentially leading to uncertainty and additional costs for businesses.
On the subject of law enforcement, the cooperation agreed includes provisions for the exchange of data on criminal suspects, anti-money laundering, countering terrorist financing, and a surrender procedure to provide limited extradition.
These arrangements are certainly superior to relying on Council of Europe instruments alone, but it is yet to be seen whether they will avoid delays and effectively replace what the UK had as an EU member.
Additionally, the UK loses access to the European Investigation Order and important criminal records databases like SIS II and ECRIS, and substitutes its membership of Europol and Eurojust for “cooperation” alone.
On asylum and migration, nothing has been agreed in the deal and this area of policy falls to bilateral agreements. Neither is there any clarity about how the UK Border Force and Frontex will coordinate in practice.
Out of the Dublin Regulation, the UK will no longer be able to return asylum seekers to the EU country where they first filed their asylum application, and it will be far more difficult to reunite the families of asylum seekers, which could have grave consequences for isolated and vulnerable children across Europe.
Finally, on citizens’ rights, the committee supports the calls of campaigning groups the 3million and British in Europe for residence schemes in the UK and EU to be user-friendly, transparent and free of charge.
This issue is now particularly urgent for those who fail to meet upcoming deadlines for residence schemes and EU citizens in the UK subject to new work visas, which have already been criticised for discriminating against those from Eastern European and Baltic countries.
The situation is also concerning for many British citizens, who, according to some legal experts, have suffered the ‘greatest loss of rights in history’ and would require bilateral agreements between the UK and member states to make up for the loss of EU citizenship.
These are only a few examples from the wide range of cross-cutting issues that are included in the European Parliament’s assessment. If nothing else, the plethora of issues generated by the TCA surely demonstrates the urgent need for comprehensive parliamentary scrutiny from both sides of the Brexit divide in any future agreement.
Barring serious reform in the UK to create a new and stronger role for Parliament in trade negotiation, or at the very least the implementation of the recommendations of the now defunct Committee on the Future Relationship with the EU, it is likely that scrutiny by the UK Parliament will continue to be limited.
Meanwhile, the European Parliament will push for greater access and influence in the institutions established by the TCA: the Partnership Council, which has powers to amend the TCA, the relevant Specialised Committees and Working Groups, which will oversee different aspects of the agreement, and the dispute settlement mechanism.
While this may indicate that the European Parliament has been able to carry out its scrutiny obligations more thoroughly than its British counterpart, there is certainly room for improvement on both sides.
A Parliamentary Partnership Assembly composed of members of both the British and European Parliaments was envisaged by the TCA and would be a welcome means of enabling further scrutiny and parliamentary oversight.
For the UK, its formation would be significant not just to give a voice to the growing number of citizens and businesses affected by the agreement, but to help to restore faith in a system that has failed to fulfil its obligation to provide scrutiny or to hold the Government to account.
By Adam Bowering, policy advisor in the European Parliament working on data protection and security issues.