Legislating for Brexit: EU external agreements

EU external agreements

The Europa Treaties database lists 890 bilateral and 259 multilateral international treaties and agreements which the EU or the EU and the Member States have signed and/or ratified.  Most have been concluded and signed by the EU and have not needed national ratification. But many are so-called “mixed agreements”, which both the EU and the individual Member States have ratified because they contain some policy provisions which are within the EU’s exclusive competence and others which are within the competence of the Member States. There are currently 745 exclusive EU agreements and 230 mixed competence agreements.

Commons Library Briefing Paper 7792, List of EU trade agreements, 21 November 2016, lists 63 EU trade agreements.

How the UK adopts EU agreements

Under the Constitutional Reform and Governance Act 2010, mixed agreements requiring ratification in the UK must be laid before Parliament for at least 21 sitting days once they are signed, along with an Explanatory Memorandum.  At this point they are published as a Command Paper in the European Union Treaty series. After ratification they are re-published in the UK Treaty Series.

A mixed agreement must be defined as an EU Treaty for the purposes of the European Communities Act 1972 (ECA). This is done by secondary legislation: a draft Order in Council is laid before Parliament and may be debated and/or approved by both Houses by the affirmative procedure.  There are to date 120 “definition of treaties” Orders. They are listed in Commons Briefing Paper, Legislating for Brexit: Statutory Instruments implementing EU law, January 2017.

Brexit and EU agreements

Opinions differ on the effects of Brexit on external agreements. On balance, most analysts believe that both exclusive and mixed agreements will fall on Brexit day, and will have to be renegotiated after Brexit, or possibly in parallel with negotiations on the withdrawal agreement (could this be achieved within the two-year negotiating period?).  There is a view, however, that where the UK has ratified a mixed agreement in its own right, aspects of the mixed agreement will remain in force.

This paper considers how Brexit might affect EU external agreements. Sections 2 and 3 list bilateral and multilateral EU agreements as at December 2016, noting whether they are exclusive or mixed competence, and the date of signature. Those marked with an asterisk have not yet entered into force.