The shape of future parliamentary scrutiny of UK-EU relations Contents

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1Current scrutiny mechanisms within the Commons committee system

Introduction

1.Parliament’s system for scrutiny of European affairs needs to change now that the UK is no longer a member of the European Union (EU) and the Transition Period provided for in the Withdrawal Agreement has ended. Since the referendum result in June 2016, various mechanisms within the House of Commons committee system have been either created or given additional powers and resources to facilitate effective scrutiny of the Government as it plotted our course out of the EU. The UK’s withdrawal from the EU has both created additional avenues for scrutiny (such as the creation of our Committee) and removed some of the House’s ability to influence (for example, through the loss of the scrutiny reserve). These scrutiny mechanisms should now be reformed. Our Committee—the Committee on the Future Relationship with the European Union—will cease to exist on 16 January 2021; potentially leaving a gap in the scrutiny of UK-EU relations. This Report examines why parliamentary scrutiny of UK-EU relations should continue beyond 2020 and makes recommendations on how that can be achieved.

Committee on the Future Relationship with the European Union

2.In the last Parliament our predecessor Committee was established under a temporary Order that lapsed at dissolution ahead of the December 2019 general election. The Government decided to re-establish the Committee in this Parliament and on 16 January 2020 the House passed a temporary Order creating the Exiting the European Union Committee1 to examine the work of the Department for Exiting the European Union. On 31 January 2020 the Government closed the Department for Exiting the European Union. On 2 March 2020 the House amended the 16 January temporary Order2 and renamed the Committee as the Committee on the Future Relationship with the European Union (CFREU).3 The Committee’s new role was “to examine matters relating to the negotiations on the future relationship with the European Union”.4 The temporary Order lapses on 16 January 2021.

3.The membership size of the Committee is 21, which is much larger than most other select committees. The party balance of the committee reflects the party balance in the House; we are made up of 12 Conservative MPs, seven Labour MPs and two Scottish National Party MPs. The party balance in the House meant it was not possible for parties representing Northern Ireland to be included in the Committee’s membership, which we regret. Our Chair, Hilary Benn, is a Labour MP, and was elected by the House of Commons.

4.We have agreed four Reports since March 2020 (in addition to this one):

• First Report—The need for progress in the negotiations.5 This Report focused on: the lead up to the negotiations; the impact of covid-19 on the negotiations; the current status of the negotiations at the time of publication; the involvement of the Devolved Administrations in the negotiations; and preparing for the end of the Transition Period.
• Second Report—Implementing the Withdrawal Agreement: citizens’ rights.6 This Report focussed on: citizens’ rights provisions in the Withdrawal Agreement; UK nationals in the EU; EU citizens in the UK; and arrangements for after the end of the Transition Period.
• Third Report—Preparing for the end of the Transition Period.7 With only two weeks remaining until the end of the Transition Period, this Report focused on the steps UK businesses and the Government still needed to take in order to be ready for 2021. It considered in particular border preparedness.
• Fourth Report—The UK-EU future relationship: the Trade and Cooperation Agreement.8 This Report was published to assist the House in its deliberations on the EU-UK Trade and Cooperation Agreement (as part of the passage of the European Union (Future Relationship) Bill).

To inform these Reports the Committee has held 24 oral evidence sessions and has received 163 submissions of written evidence. Our work would not have been possible without these contributions and we thank everyone involved. Our requests for written evidence coincided with the first wave of covid-19 and the first national lockdown and we know how difficult it will have been for some of our witnesses to provide submissions addressing our detailed questions; we are most grateful. We are also grateful for the way in which witnesses appearing before us by videoconference have adapted to virtual Committee meetings.

European Scrutiny Committee

5.Scrutiny of EU legislation and policy in the House of Commons has traditionally been done by the European Scrutiny Committee (ESC). The UK’s withdrawal from the EU has both created additional avenues for scrutiny (such as CFREU) and removed some of the ESC’s ability to influence (such as the scrutiny reserve). The ESC is composed of 16 MPs from the three largest parties. Unlike departmental select committees, the Chair is elected from within the Committee’s membership at its first meeting, rather than by the House.9

6.The ESC was tasked with conducting detailed scrutiny of proposed EU legislation and policy papers which were deposited by the Government.10 It sifted around 1,100 documents a year.11 For each EU document, the relevant Minister had to also provide an explanatory memorandum setting out the Government’s position on the document, the implications for the UK and anything arising from its consultation with the devolved administrations. The Committee then assessed each document for political and/or legal importance, alerting the House to its conclusions through its weekly reports and other EU Member State national parliaments through the IPEX database.12 Every document was eventually cleared or referred for debate in a ‘European Committee’.13 For those of particular importance, the Committee could request that the debate be held on the floor of the House; accepting this recommendation is at the Government’s discretion.

7.Until cleared, documents remained subject to a ‘scrutiny reserve’ resolution. When the UK was a member of the EU, the reserve prevented a Minister from giving agreement in the Council or the European Council on proposed “European Community legislation or for a common strategy, joint action or common position under Title V or a common position, framework decision, decision or convention under Title VI of the Treaty on European Union” unless and until the Committee had finished conducting its scrutiny, or a Resolution had been reached by the House on a document recommended for debate (para 1). Where a Minister breached the reserve, the decision had to be explained to the Committee (para 4), or where there was an outstanding debate referral, to the House, at the soonest possible opportunity.14 From 31 January 2020, the scrutiny reserve ceased to ‘bite’ as the UK no longer has a vote on EU legislation. With no UK role in the EU legislative process, the reserve has no impact on the progress of EU legislation.

8.As well as carrying out its traditional role, the ESC had an additional statutory role during the Transition Period in appraising proposed legislation. Under section 13A of the European Union (Withdrawal) Act 2018,15 if the Committee considers that EU legislation (or proposed EU legislation) “raises a matter of vital national interest”, it can require Ministers to arrange a debate and vote in the Commons within 14 sitting days of the publication of the Committee’s Report.16 It has done so once, triggering a debate on the floor of the House on the EU’s mandate for negotiating a new partnership with the UK, when it also sought the opinion of 24 select committees on the “vital” areas within their policy remits.17 The power to request an opinion of a departmental committee, and require a reply, is set out at Standing Order No. 143(11).18 This power was intended to allow the Committee to call on the expert opinion of a committee whose knowledge is more focused on the relevant policy area and has also prompted committees to conduct their own in-depth inquiries.

9.The ESC can also conduct inquiries into “related matters”, some of which have included the conduct of negotiations, effective scrutiny of the Joint Committee and application of the Northern Ireland Protocol.

Other mechanisms for scrutiny

10.In addition to the Committee on the Future Relationship with the EU and the European Scrutiny Committee, there are several other mechanisms that play a part in parliamentary scrutiny of European affairs. In addition to parliamentary questions and debates, these include:

• The Liaison Committee, comprising the Chairs of Commons select committees, has taken an active interest in Brexit and has repeatedly sought to scrutinise the UK’s withdrawal from the EU in its oral evidence sessions with the Prime Minister.
• Departmental and cross-cutting select committees have regularly conducted inquiries into aspects of the UK-EU relationship, indeed there is a long history of efforts to further promote EU scrutiny by policy committees.19 They have produced 122 reports (as at 7 January 2021) into a variety of EU-exit and future relationship related topics from the triggering of Article 50 through to future relationship negotiations.
• The European Statutory Instruments Committee (ESIC) was established under a Temporary Standing Order of 3 February 2020 to sift proposed negative instruments made under the EU (Withdrawal) Act 2018,20 where Ministers were exercising powers to make statutory instruments (SIs) in order to correct deficiencies in the body of retained EU law or to make some consequential provision.21
• The Joint Committee on Statutory Instruments considers SIs made “in exercise of powers granted by Act of Parliament” and is empowered to draw the attention of both Houses to SIs on the grounds specified in its Standing Order but not to consider the merits of the instrument or its underlying policy. The Select Committee on Statutory Instruments has a similar role in relation to SIs that are only subject to scrutiny by the House of Commons.
• The UK National Parliament Office (NPO), which represents both Houses of Parliament at EU level,22 is the principal means by which both Houses communicate with other European national parliaments through a network of representatives based in Brussels. It also provides support to delegations of MPs and Peers participating in inter-parliamentary meetings with other national parliaments, MEPs, EU institutions, the UK Mission to the EU and other third countries. Since the UK left the EU the NPO has increasingly focused on gathering information on developments from Brussels-based stakeholders.

11.The House of Lords has its own system for scrutiny of European affairs. It is in the process of reforming its arrangements following the UK’s departure from the EU. As a basis for comparison, these are set out in the Annex. On 15 December 2020 the House of Lords Liaison Committee published a review of House of Lords investigative and scrutiny committees.23 The review concluded, much like this Report, that various changes are needed to their systems of EU scrutiny following the end of the Transition Period.