The effectiveness and influence of the select committee system Contents

3Select committees and the UK’s future relationship with the European Union

Introduction

52.The UK’s future relationship with the European Union has been a dominant theme in the work of select committees since the Government confirmed after the 2015 general election that a referendum on EU membership would be held, preceded by a renegotiation of membership.39 It has intensified since the referendum and will intensify further if negotiations on the UK’s long-term relationship with the EU begin in earnest, or indeed if the UK exits the EU without a deal (a “no-deal” exit).

53.In this chapter, we set out the impact that the evolving EU-UK relationship has already had on select committees and look to the future, noting that the relationship’s impact on select committees covers not only our work on EU-UK matters but also the UK’s domestic and international agendas. We identify the factors and the principles underpinning that work and, finally, what changes might be considered.

Current impact of the EU-UK relationship on select committees

54.Since the UK’s accession to the European Communities in 1973, EU law has had a unique status in the UK legal system. It can be automatically applicable and, in certain circumstances, takes precedence over UK domestic law.40 Commons oversight of EU-UK relations has largely been delegated to the European Scrutiny Committee (ESC).41 The ESC’s work is based on the scrutiny reserve resolution,42 which prevents any UK Minister giving agreement in the Council or European Council to any proposal for EU legislation where it is still under scrutiny by the ESC or awaiting debate—although the Government can ‘override’ this reserve if it considers doing so to be justified. Based on legal and policy analysis, the ESC reports politically or legally important EU documents to the House, through its weekly reports, and draws some of them to the attention of relevant departmental select committees, who may then incorporate those documents into their work. The ESC’s document scrutiny may include related matters, and so it has inquired into EU withdrawal matters such as dispute resolution, the transition/implementation period and the conduct of negotiations.

55.After the referendum on EU membership, the Exiting the European Union (ExEU) Committee was established to scrutinise the work of the respective department. The Committee set out initially to identify the steps that needed to be taken to plan for leaving the EU. It then proceeded to scrutinise the Article 50 negotiations, the Government’s vision for the future UK-EU relationship—including the implications of “no-deal”—and the department’s legislative responsibilities. Latterly, the Committee has spent time examining how the Government interacts with Parliament, and how the House of Commons ensures it is involved in important decisions at an appropriate time in the process.

56.Many other select committees have taken an interest in EU matters specific to their areas of competence since the referendum. A wide range of inquiries have been undertaken by departmental select committees, concerning ongoing EU policy as well as the future relationship, the withdrawal agreement, no-deal planning, international policy implications and new domestic policy.

57.Following the passing of the EU (Withdrawal) Act 2018, the European Statutory Instruments Committee was established to assess proposed negative statutory instruments (SIs) tabled under the Act in order to correct deficiencies in EU retained law.43

58.The UK’s prospective withdrawal from the EU has also already increased international treaty work. The Joint Committee on Human Rights assesses treaties with human rights implications and is expanding its role on treaties.44 The Commons International Trade Committee has asked for a specific role on future trade treaties.45 A number of committees are considering the operation of treaty scrutiny, but Parliament’s formal role in ratifying treaties remains limited.46

Future tasks for select committees

Future relationship negotiations

59.The then Prime Minister said in correspondence with us that she wanted to ensure that Parliament had an enhanced opportunity to scrutinise and provide input as the Government developed the negotiating mandate for the future UK-EU relationship. This could include, she said, the configuration and responsibilities of select committees.47 For select committees, the negotiation of the future relationship could provide substantial opportunities for wide-ranging inquiries into all aspects of the future relationship.

Scrutiny of the Joint Committee

60.As well as the future relationship negotiations, the Government has also recognised the need for scrutiny of the work of the Joint Committee (JC) and its Specialised Committees, which would be established under the draft Withdrawal Agreement to supervise the implementation and application of the Agreement.48 As presently conceived the JC’s wide-ranging powers would include the power to extend the transition/implementation period and the power to disapply the backstop, in whole or in part, as long as the conditions to do so had been fulfilled. The draft Withdrawal Agreement provides that not only are these and other decisions of the JC binding on the UK, but they must have the same legal effects as the Withdrawal Agreement itself.

61.Part of the importance of scrutiny of the JC, said the Institute for Government, was that any approach adopted may become the basis for scrutiny of a similar arrangement to govern the future relationship.49 A suggested approach was to apply a scrutiny reserve to the work of the JC, similar to that currently applicable to the scrutiny of EU legislation.50 It was also suggested in our evidence51—in line with a suggestion by the ESC52—that Parliament should establish similar processes to those established for the European Parliament’s oversight of the JC. This includes enhanced engagement where the JC might be invited to extend the transition/implementation period or disapply the backstop, in whole or in part.53 A further way of Parliament engaging with the JC would be to require the Government to place particular issues on the agenda of the JC subject to the EU’s consent.54

Monitoring EU law and policy

62.Another task for select committees will be that of monitoring EU law and policy.55 As set out in Annex 1, the impact of new EU law and policy in the UK will diminish over time in all foreseeable exit scenarios, unless the Government were to conclude a future relationship with the EU that involved continued acceptance of all EU laws and participation in all EU policies which the UK currently applies.56 The volume of material subject to EU legislative scrutiny is therefore likely to reduce. However, it was also accepted that EU law would continue to play a significant role in the UK. This role would vary depending on the phase of the exit process and the nature of the future relationship between the UK and the EU (see Annex 1).

63.Should the Withdrawal Agreement negotiated between the UK and the EU be ratified by both Parties, it would include a transition/implementation period lasting until December 2020, which could be extended for a further one or two years. During the transition/implementation period, EU law would with some exceptions continue to apply and have the same legal effects in the UK as at present, but as a matter of international law (see Annex 1). The ESC observed last year that the relevance of EU rules would remain extremely high during this period and therefore that some form of EU legislative scrutiny would still be necessary.57 This approach was reflected in the material submitted to our inquiry.58

64.In addition, Agata Gostyńska-Jakubowska contended that the EU and its laws would continue to have an impact on the UK under any EU exit scenario, including no-deal.59 This is because varying degrees of alignment between the UK and the EU can be foreseen under different models of the future relationship (see Annex 1).

The Scrutiny Reserve

65.In its publication, “Parliament after Brexit”, the Institute for Government highlighted the need to consider the purpose of, and arrangements for, EU legislative scrutiny post-Brexit.60 This is because the UK will not have a vote in the institutions of the EU and therefore the Scrutiny Reserve will no longer function in the same way. Consequently, a central purpose of EU legislative scrutiny—to hold the Government to account for its voting position on EU legislative proposals in Council—will fall away.61 This will also reduce the levels of activity associated with the exercise of the Scrutiny Reserve in relation to the Government’s votes in Council. It will no longer, for example, be necessary for the Committee to produce a report lifting, or waiving, the scrutiny reserve, or declining to do so, each time there is the possibility of a Minister voting for a proposal (or abstaining where voting takes place by unanimity) in the Council. Furthermore, Parliament will lose the ability to issue reasoned opinions to the EU institutions.62 The ESC is mindful of these changes and has therefore launched an inquiry on how EU legislative scrutiny might evolve, what its outputs might be and what any revised process might require in terms of input.63

UK-EU relations

66.Witnesses noted the important role of external engagement in relation to future UK-EU relations.64 This should involve: formal and informal links with the EU institutions; relationships with other EU-27 national parliaments; and relations with the devolved legislatures, as policy areas under discussion will intersect with policy areas which are currently devolved within the UK. On links with the EU institutions specifically, the current Political Declaration proposes dialogue between the European Parliament and the UK Parliament. The recent Report from the House of Lords EU Committee, Beyond Brexit: How to win friends and influence people, identified several practical issues for Parliament to consider, including: whether any formal mechanism for dialogue should be established; representation of the two Houses and linkages between the work of any delegation and the wider work of the two Houses and their committees.65

Scrutiny by departmental select committees

67.We heard that the UK’s future relationship with the EU will have an impact on the volume of policy developed from the UK rather than the EU and so potentially add to committees’ workloads.66 Scrutiny of the work of the Department for Environment, Food and Rural Affairs was identified as an example.67 It was observed too that committees may need to monitor how the EU’s regulatory oversight role is replaced domestically (through a variety of agencies).68 A further factor which is likely to affect committees’ work on domestic law and policy will be the complex interaction between international law, EU law, domestic law and the new category of retained EU law (see Annex 1). Assessing the continued impact of EU law on the UK is likely to be of political interest but will be legally challenging.

Scrutiny of the development of common frameworks

68.In light of support for the development of common frameworks in policy areas that are currently governed—in full or in part—by EU law, the Government has also recognised the desirability of UK-wide interparliamentary engagement. On 6 February 2019, Sir Bernard Jenkin MP asked whether the Government would provide this Parliament “with the necessary resources so we can institute proper interparliamentary machinery in the United Kingdom?”. The Rt Hon. David Lidington MP responded that the Government “was very open to proposals” and that “if Parliament will lead, the Government will support it”.69 We note that the development of Common Frameworks will necessitate more mechanisms for effective interparliamentary relations within the UK, and we discuss this issue further in chapter 8.

New treaties

69.The UK’s withdrawal from the EU would mean that the UK would need to negotiate and conclude a substantial number of new treaties.70 More UK policy would be set at the international level when responsibility for transnational topics—currently scrutinised by the ESC and by the European Parliament—such as international trade, security, data protection, the environment and fisheries largely returned to the UK.71 While the existence, extent and significance of those new treaties will largely depend on the nature of the future relationship between the UK and the EU, it is likely that departmental select committees will wish to scrutinise any that are required.

Future approaches

Factors and principles

70.As the Institute for Government noted, there is currently a lot of uncertainty about how, when, and perhaps even if, the UK will leave the EU.72 Under a negotiated exit based on the Withdrawal Agreement, the Political Declaration allows for significant flexibility in the type of relationship between the UK and the EU that could be negotiated, were the UK to revise its “red lines”. Equally, a “no-deal” exit would be unlikely to represent a permanent terminus for EU-UK relations, as the UK would wish to put in place new, preferential bilateral arrangements on a range of issues, and the EU has indicated that it would, before any such arrangements were concluded, insist on the settling of many of the issues which are currently reflected in the Withdrawal Agreement. There is thus the possibility of inertia on the one hand but, on the other, rapid shifts in the post-exit relationships between the UK and EU. This extremely uncertain outlook points to a need for departmental select committees to be flexible and able to adapt rapidly to different scenarios.

71.Our evidence identified several lessons to be learned from the experience of scrutinising the Article 50 negotiations. Uppermost among them was the lack of information provided by the Government to Parliament. Professor Cygan pointed out that select committees expended energy on seeking information “that really should have been presented to the public and put in the public domain more readily”.73 Jack Simson Caird drew attention to the commitment by the then Secretary of State for Exiting the EU, Rt Hon. David Davis MP, that the Government would “certainly match and, hopefully, improve on what the European Parliament sees”.74 This promise was not delivered on, he claimed, and many MPs complained that insufficient information was made available.75

72.We also heard concerns about a lack of coordination and therefore duplication of work by select committees.76 Dr Haddon of the IfG argued that Parliament as a whole needed to think about “how it can use its resources well, ensuring it is delivering as much [as possible] with the resources that it has got”.77

73.We anticipate that an important factor shaping the future work of select committees will be the range of matters covered in future negotiations. Based on the commitments set out in the Political Declaration, the scope of the negotiations on the future relationship will be much wider than the Article 50 negotiations, which were devoted to strictly separation issues, such as the financial settlement, citizens’ rights and the Irish border. As the Exiting the EU Committee concluded, the future negotiations will touch “a wide range of aspects of the political and economic future of this country” from data to fisheries to financial services to workers’ rights to security to trade in goods.78

74.Another factor that we foresee as relevant is the structure of any negotiations. This is not yet known, but it could be expected to be based on a number of distinct cross-cutting strands or clusters. These could cut across the remits of EU-specific and departmental select committees to an even greater extent than at present, and thus present a significant challenge for scrutiny.79

75.The high degree of uncertainty regarding the future relations between the UK and the EU points towards flexibility as a key principle for how select committees approach their future tasks. As events unfold, committees may have to adapt to ensure that scrutiny remains proportionate to the state of the UK’s relationship with the EU and the rest of the world. Any future relationship negotiations are likely to be wide-ranging and complex. As such, they are likely to engage the interest of most select committees, requiring expert support deployed as efficiently as possible.

Committee structures

76.There was a clear sense from the testimony of the experts from whom we heard that structural change among committees would help to address the challenges that we have identified. Dr Hestermeyer considered it critical that the institutional structure could work “fluently and flawlessly” in whatever scenario.80 In his assessment of the process, Jack Simson Caird told us:

… what we have learned is that Brexit is such a complex, multi-level problem—in terms of international law, domestic/constitutional law, delegated legislation, devolution—that it is actually very difficult for existing structures, which are not specifically designed to cope with that sort of problem, to be adapted to.81

77.A number of suggestions have been made as to how committee structures could adapt to support both scrutiny of UK-EU matters specifically and scrutiny of treaties more broadly. Concerning scrutiny of EU-UK matters, the UK in a Changing Europe observed that it would be necessary, during and after any transition/implementation period, both to continue to scrutinise EU legislative proposals and to scrutinise wider UK-EU relations. This could be done either by two separate committees (one being a specialist committee—which could be based on the European Scrutiny Committee—devoted to reviewing the technical legal effect of EU legislative proposals on UK law) or by a single committee undertaking both tasks. Agata Gostyńska-Jakubowska advocated the model of a single committee, noting in particular that this would avoid the current duplication between the work of the Exiting the EU Committee and of the European Scrutiny Committee.82

78.The need to involve—and to liaise between—departmental select committees has been recognised as fundamental. The UK in a Changing Europe conceived of a role for the Liaison Committee, suggesting that it could coordinate EU-related inquiries.83 Another way of achieving coordination, suggested Ms Gostyńska-Jakubowska, would be for each departmental select committee to appoint a “rapporteur” on European matters to liaise with the single European committee. Rapporteurs would update their committees on the work of the single European committee, and act as a channel of communication, both formal (for example, answering requests for information and participating in some of the committee’s inquiries) and informal. Such co-operation, argued Ms Gostyńska-Jakubowska, would ensure that departmental committee recommendations reflect the single European committee expertise and vice versa.

79.Turning to scrutiny of the UK’s international treaties beyond those reached with the EU, Arabella Lang noted that there have been consistent arguments in favour of a joint (House of Lords and House of Commons) committee on international treaties.84 The House of Lords Constitution Committee concluded in its recent report on Parliamentary Scrutiny of Treaties that “a dedicated treaty committee is required to provide effective parliamentary scrutiny of treaties”. It noted that there was a choice to be made—by the Liaison Committees of both Houses—between establishing a treaty committee in either or both Houses, or establishing a joint committee, and that there were advantages and disadvantages of each approach.85

80.Dr Haddon noted that there was a fundamental question about how a single treaty committee would work with departmental select committees.86 Dr Hestermeyer supported the concept of a joint committee, noting that the House of Commons currently has more power over the process but—counter-intuitively—undertakes less scrutiny of international treaties.87 He also, however, acknowledged the question of interaction with departmental select committees.

81.The need to coordinate between committees in relation to international treaties is similar to that identified for UK-EU matters. Dr Hestermeyer and Dr Simson Caird suggested that the Liaison Committee might also play a role in coordinating between committees, potentially by way of a Sub-Committee.88

82.We agree that there is scope to adapt committee structures in response to the challenges presented by the evolving UK-EU relationship. While acknowledging that committee structures are linked to decisions about the machinery of government, we also conclude that we must respond to the deep uncertainty which is—and will remain—a factor for some time.

83.One option which we believe requires further investigation is the creation of a single integrated European committee to provide oversight of EU-UK matters. Such a committee would need the flexibility to scale up or down aspects of all areas of its activity responsively as events unfolded, thus mitigating the risk of potentially disruptive reorganisations at different phases in the withdrawal process. This more integrated approach could also help to avoid gaps and overlaps, enabling deeper integration between the different elements of EU-UK oversight. Externally, it would also help to ensure consistent interparliamentary engagement on EU-UK matters both internationally and within the UK. Finally, it could assist with deployment of the existing EU legal and policy staff resource more efficiently, facilitating its availability for all committees.

84.Further work is also required to consider the appropriate model for future treaty scrutiny and the Liaison Committees of both Houses should hold internal discussions to take this forward. Options for consideration include the establishment of a joint “treaties” committee of both Houses. Such a committee would focus on treaties between the UK and non-EU partners, and adopt a largely sifting role, drawing significant documents/treaties to the attention of the relevant committees and thus allowing them to focus on the most contentious documents/treaties affecting their remit. It could also perform an important role in developing expertise in the parliamentary treaty scrutiny process and sharing best practice, and as a central point of contact on treaties in Parliament.

Resources

85.To tackle the identified issue about a failure to deploy specialist resources efficiently, Dr Simson Caird suggested a staff unit, bringing together those with Brexit-related expertise and ensuring that the expertise is available widely across select committees.89 Such a staff unit could help support—he said—external relations activity with the EU-27 parliaments and the European Parliament.

86.We recommend that the Committee Office give thought to the requirement for expertise and its consequences on models for staffing committees, considering the range and uncertainty of demands. This must reflect not only the demands of EU and international work, but also the expanded workload deriving from any potential return of policy competence from the EU level to the domestic level. To meet the needs of the committees as a whole, it is therefore imperative that any new arrangements are designed to make the most flexible and efficient use of existing resources, so that EU and international legal and policy expertise can be deployed to best effect.

Information provision

87.Whatever structures are in place, the Government should ensure Parliament has sufficient information to conduct its scrutiny effectively. As the Hansard Society told us, there needs to be a common understanding of the documentation and information that will be automatically provided to Parliament.90

88.To tackle the risk of information gaps, Dr Simson Caird suggested that a framework agreement be reached between Parliament and Government on information provision. This, he said, should set out the rules on which the Government and committees will interact for that period when information will be supplied.91 The Lords EU Committee has recently set out detailed recommendations on treaty information, including a presumption in favour of transparency during treaty negotiations.92

89.We recommend the development of a Framework Agreement between both Houses of Parliament and the Government on providing information on treaty negotiations and conclusion. We commend the model agreement which Arabella Lang from the House’s Parliaments and Treaties hub has submitted to this inquiry.93

Conclusion

90.Given the uncertain nature of the EU exit process, future parliamentary oversight of UK-EU matters across a wide range of issues will need to be dynamic, cohesive, collaborative and flexible. As far as possible, we should seek to avoid the duplication that has been an arguably inevitable feature of committee work during scrutiny of the Article 50 negotiations. Flexibility means that we should consider structures which allow committees to adapt rapidly to different scenarios and should seek to avoid the disruption which would occur if oversight arrangements had to be revisited at successive phases of the exit process. There are a variety of models available to achieve this, taking account too of how an increased volume of international treaties should be scrutinised. Discussions must now take place between the Liaison Committees of both Houses, with input from the Leaders of each House, to determine the next chapter in the House’s oversight of UK-EU relations, whatever form they take and at whatever pace of change.


39 Cabinet Office, Queen’s Speech 2015, 27 May 2015

40 Some forms of EU law such as the EU Treaties and Regulations are “directly applicable”. Unlike EU Directives, they do not require implementation in domestic law. EU law is also capable of having “direct effect” if it meets certain conditions. This means that directly effective rights must be directly recognised and enforced in the national courts, even in the absence of correct domestic implementation where this is required. In addition to this indirect enforcement of EU law at national level, EU institutions (principally the Commission and the Court of Justice) have powers to directly enforce EU law which can result in the imposition of fines and penalties. The case law of the Court of Justice must also take precedence over UK laws, including the common law.

41 For further information about this work see House of Commons, “The European Scrutiny System in the House of Commons: A short guide by the staff of the House of Commons European Scrutiny Committee” (May 2015).

42 Scrutiny Reserve Resolution, Appendix to the House of Commons Standing Orders relating to public business.

43 SIs may be laid under the negative or affirmative procedure. Those laid under the affirmative procedure must be actively approved by both Houses of Parliament while those laid under the negative procedure become law on the day the minister signs them and automatically remain law unless a motion—or ‘prayer’—to reject it is agreed by either House within 40 sitting days.

44 Joint Committee on Human Rights, Seventeenth Report of Session 2017–19, Human Rights Protections in International Agreements, HC 1833 HL Paper 310

45 International Trade Committee, Sixth Report of Session 2017–19, UK trade policy transparency and scrutiny, HC 1043

46 Parliament’s role in ratifying treaties, Commons Library Briefing Paper 5855, 17 February 2017

47 Letter from the Prime Minister to Dr Sarah Wollaston MP, dated 14 January 2019.

48 Letter from Rt Hon. Steve Barclay MP to Sir William Cash, dated 13 May 2019.

50 Dr Holger Hestermeyer (Q74)

51 Haddon (Q72)

52 European Scrutiny Committee, Sixty-seventh Report HC 301-lxv (2017–19), chapter 5 (5 June 2019).

53 Commission Declaration (to the European Parliament Plenary) on arrangements for European Parliamentary scrutiny of the Joint Committee, 16 April 2019.

54 Letter from Sir William Cash MP, Chair of the European Scrutiny Committee and Lord Boswell of Aynho, Chair of the House of Lords EU Committee to Rt Hon. Dominic Raab MP, Secretary of State for Exiting the European Union (24 July 2018).

55 Letter from Rt Hon. Steve Barclay MP to Sir William Cash, dated 13 May 2019.

56 Self-evidently, in a hypothetical scenario in which the Government revoked Article 50, and the Union accepted that decision, EU law and policy would continue to apply to the UK at present and there would be no reduction in its role in the UK.

57 European Scrutiny Committee, Nineteenth Report of Session 2017–19, EU Withdrawal: Transitional provisions and dispute resolution, HC 763

58 Q 74 [Cygan], Institute for Government (SCS0038), The Law Society of Scotland (SCA0054), Hansard Society (SCA0067)

60 Parliament after Brexit, Institute for Government, May 2019

61 See “the purpose of the European Scrutiny system” in “The European Scrutiny System in the House of Commons: A short guide by the staff of the House of Commons European Scrutiny Committee” (May 2015).

62 This is the formal power under the Lisbon Treaty for national parliaments and individual chambers to express their view that the objective of a particular initiative is best achieved by action at the national or local level rather than the EU level (the principle of “subsidiarity”).

63 European Scrutiny Committee inquiry into Post-Brexit Scrutiny of EU Law and Policy

64 Q74 [Cygan, Simson Caird]

65 House of Lords European Union Committee, 35th Report of Session 2017–19, Beyond Brexit: how to win friends and influence people, HL Paper 322

66 Institute for Government (SCS0038), The Law Society of Scotland (SCA0054), Hansard Society (SCA0067)

67 Institute for Government (SCS0038)

68 Q72 [Haddon], UK in a Changing Europe - Parties, Parliament and the Brexit Process Project (SCA0049), Institute for Government, Parliament after Brexit, May 2019

69 HC Deb, 6 February 2019, col 317

70 See for example House of Lords European Union Committee, Scrutiny of international agreements: lessons learned, HL Paper 387, para 17

71 Arabella Lang (SCS0004)

72 Institute for Government, Parliament after Brexit, May 2019

73 Q70 [Cygan]

74 Oral evidence taken by the House of Lords European Union Committee on 12 September 2016, Q14

76 Hestermeyer (Q70), The Bingham Centre for the Rule of Law (SCA0068)

77 Q72 [Haddon]

78 Exiting the European Union Committee, Sixth Report of session 2017–19, Parliamentary scrutiny and approval of the Withdrawal Agreement and negotiations on a future relationship, HC 1240

79 UK in a Changing Europe Research Hub (SCA0048)

83 UK in a Changing Europe (SCS 0049)

85 House of Lords Select Committee on the Constitution, 20th Report of Session 2017–19, Parliamentary Scrutiny of Treaties, HL Paper 345

88 Q74, The Bingham Centre for the Rule of Law (SCA0068)

90 Hansard Society SCA 0067

92 House of Lords European Union Committee, 42nd Report of Session 2017–19, Scrutiny of international agreements: lessons learned, HL Paper 387, para 30 ff

93 Parliament and Treaties Hub, House of Commons (SCA0083)




Published: 9 September 2019