Scrutinising Brexit: the role of Parliament Contents

Scrutinising Brexit: the role of Parliament

Chapter 1: Scrutiny of the negotiations on the UK’s withdrawal from, and new relationship with, the European Union

Introduction

1.On 4 May 2016 we published a report on The process of withdrawing from the European Union.1 In that report, to which we have yet to receive the Government response, we concluded:

“Should the UK decide to withdraw from the EU, the UK Parliament should have enhanced oversight of the negotiations on the withdrawal and the new relationship, beyond existing ratification procedures. We will consider how best to achieve that, should the need arise.”

2.The result of the referendum on 23 June 2016 means that what was in May a hypothetical scenario has become a reality: the Government must now negotiate the United Kingdom’s withdrawal from the European Union. At the time of writing, the timing and scope of the negotiations are still unclear, as are the objectives that will be sought by the two sides. Nevertheless, it is essential that thought should be given now to the key principles that will underpin parliamentary scrutiny of the negotiations.

Why is parliamentary scrutiny necessary?

3.The success or failure of the Government’s negotiation of the withdrawal from, and new relationship with, the EU will have profound and lasting implications for the United Kingdom. At stake are not only the economic prosperity of the nation, but our international standing and influence, our internal security, and the rights of the millions of EU citizens resident in the UK, and the more than one million UK citizens who live in EU Member States. The implications for the other 27 EU Member States, which have a shared interest in all these areas, are almost equally profound.

4.The Government’s renegotiation of the terms of the UK’s EU membership in late 2015 and early 2016, which led to the agreement of a ‘New Settlement’ by the European Council on 19 February 2016, was primarily an exercise of executive discretion, undertaken on the basis that the results would be put to the electorate. While we expressed a measure of disappointment at the level of engagement with Parliament in the course of the renegotiation, we understood the Government’s reluctance to offer a running commentary.

5.The forthcoming negotiations are both immeasurably more important and complex, and fundamentally different in nature. It is inconceivable that they should be conducted without effective parliamentary oversight. Indeed, in a parliamentary democracy we believe it is the right and duty of Parliament to ensure that the negotiations are scrutinised effectively at every stage.

6.Moreover, Parliament will have to approve the ratification of the treaties that emerge from the negotiations2 and to enact the domestic legislation that is necessary to give them effect. It follows that full parliamentary involvement throughout the negotiations will ultimately assist the Government itself, as well as being in the public interest.

7.Parliament’s role in the forthcoming negotiations on withdrawal from the EU will be critical to their success: ratification of any treaties arising out of the negotiations will require parliamentary approval, while national legislation giving effect to the withdrawal and new relationship will need to be enacted by both Houses.

8.Parliament has a duty to scrutinise and hold the Government to account for decisions that will profoundly affect the United Kingdom. It will also be a vital forum for public debate and challenge, on the many issues that will arise in the course of negotiations.

9.Finally, effective parliamentary scrutiny will help to ensure that there is an ‘audit trail’ for future generations.

The shape and timing of the negotiations

10.The process for withdrawing from the EU is described in Article 50 of the Treaty on European Union (TEU). Article 50(1) states that: “Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.” Article 50(2) states: “A Member State which decides to withdraw shall notify the European Council of its intention.”

11.In our report in May 2016 we analysed the two key elements of the ensuing negotiations. The first, and most essential, element will be the negotiation of a withdrawal agreement—the terms of the UK’s exit from the European Union. As part of the withdrawal agreement, the parties will have to determine the acquired rights of EU citizens resident in the UK, and of UK citizens resident in the EU.

12.The second element will be the negotiation of a new relationship between the United Kingdom and the EU. Article 50 primarily concerns withdrawal, but, as we noted in our previous report, Article 50(2) requires that the withdrawal agreement should “tak[e] account of the framework” for the withdrawing State’s “future relationship with the Union”.

13.We are aware that there has been considerable speculation about the relationship between these two negotiations, with some commentators arguing that decisions on a new agreement will be assigned to a separate and later negotiation. This was not the view of the expert witnesses who gave evidence to us. Indeed, Sir David Edward KCMG, QC, PC, FRSE, a former Judge of the Court of Justice of the European Union, told us that the German language version of Article 50 made plain that the “structure of future relations will already have been established at the point when withdrawal takes place.”3 Professor Derrick Wyatt QC agreed, suggesting that the two sets of negotiations could be conducted in parallel. We believe the view of our witnesses to be correct as a matter of law.

14.The wording in Article 50(2) places a legal obligation on those negotiating the withdrawal agreement to take account of the framework of the new relationship. In other words, the withdrawal negotiations should take place in the knowledge, at the very least, of the likely shape of the UK’s future relationship with the EU.

15.There can also be no doubt that the parties to the withdrawal negotiation will enjoy discretion, if they decide it is in their mutual interest, to negotiate a new relationship in considerable detail. In principle they could decide that the agreement on a new relationship should come into force immediately upon withdrawal. Such an approach would provide the greatest certainty for both sides.

Scrutiny of all stages of the negotiations

16.Before the referendum took place, the Prime Minister stated that, in the event of a vote to leave, he would make a formal notification under Article 50 more or less immediately. After the referendum result was announced, however, and at the same time as announcing his resignation, Mr Cameron stated that the decision on making such a notification would be for his successor.

17.The new Prime Minister, the Rt Hon Theresa May MP, in an interview given on 3 July, before her appointment, said that notification under Article 50 “shouldn’t be [given] before the end of the year”.4 This raises the prospect that informal ‘negotiations’ could take place before the Article 50 process is triggered. Although it currently seems unlikely that the European Commission (which is formally responsible under Article 50 for conducting negotiations on withdrawal) would contemplate participation, the Government may try to agree a common approach to a number of key issues in discussion with the other Member States (who, as the European Council, would be responsible for agreeing a negotiating mandate for the Commission).

18.We emphasise that the substance of what is under discussion, rather than the formal stage in the withdrawal process, should be reflected in an appropriate level of parliamentary scrutiny. Effective scrutiny, if it is to achieve the objectives we have described, will be essential at all stages, including:

Confidentiality and transparency

19.One of the key objectives of parliamentary scrutiny is to ensure transparency—to cast a light on the actions of the executive. It is, we suggest, essential that many elements of the forthcoming negotiations—for instance, negotiations affecting acquired rights, or future cooperation between UK and EU police forces—should be conducted transparently.

20.At the same time, some of the most important and complex aspects of the forthcoming negotiations on a new relationship will be sensitive, commercially and politically, and will require a high degree of confidentiality. As the European Commission itself has noted, in the context of trade negotiations, “When entering into a game, no-one starts by revealing his entire strategy to his counterpart from the outset”.5

21.It is clear, therefore, that parliamentary scrutiny of the negotiations will have to strike a balance between, on the one hand, the desire for transparency, and on the other, the need to avoid undermining the UK’s negotiating position. We note that parliamentary scrutiny has shown itself, in practice, to be highly flexible. The Intelligence and Security Committee of Parliament, though a statutory body rather than a Select Committee, conducts its hearings wholly in private; other Committees, such as the House of Commons Defence Committee, may receive confidential briefings, while private meetings are common across both Houses.

22.We acknowledge that certain elements of the forthcoming negotiations, particularly those relating to trade, may have to be conducted confidentially. We would expect parliamentary scrutiny of the negotiations to strike an appropriate balance between transparency and confidentiality, while achieving the overarching objective of holding the Government effectively to account.

A scrutiny model for Parliament

23.We have focused thus far on parliamentary scrutiny, without specifying a particular model for such scrutiny. Our expectation is that both Houses will be fully involved, with regular formal debates, ministerial statements (oral and written), as well as ministerial answers to questions. All of these will play a crucial part in ensuring that Members of both Houses play a full part in overseeing the negotiations.

24.There is also a vital role for committee oversight in both Houses. As we have suggested, some aspects of the negotiations may be confidential, and committees provide the flexibility needed to provide effective oversight. More generally, committees, meeting regularly, will provide the required level of detailed and informed scrutiny in more or less real time, also acting as a filter, dealing with matters of routine while bringing issues of greater importance to the attention of the House.

25.The House of Commons will of course make its own arrangements for appropriate committee scrutiny. In particular, we are conscious that, following the establishment, on 13 July 2016, of Departments for Exiting the European Union and for International Trade, some restructuring of House of Commons departmental Select Committees may follow.

26.We are also aware of suggestions that a Joint Committee might be established to scrutinise the withdrawal negotiations, though we do not believe that such a Joint Committee is necessary. In committee scrutiny, as in the scrutiny of primary legislation, there is a distinct role for the House of Lords as a revising chamber. The House of Lords could bring significant added value, not only through the expertise of many of its Members, but as a result of its long tradition of politically impartial, thoughtful committee scrutiny.

27.Our preference would therefore be for a House of Lords Select Committee to scrutinise the UK-EU negotiations as a whole—in other words, both the negotiations on withdrawal and those on a new relationship. We believe that the European Union Select Committee itself is best placed to perform such a role, drawing on input as necessary from its six sectoral sub-committees. In this way, the legal and policy expertise of existing staff, as well as the knowledge and experience of the Members of the European Union Committee, would be put to best use.

28.We acknowledge that the European Union Committee, if it were to take on responsibility for scrutinising the negotiations, would need revised terms of reference. At present the Committee is charged with considering European Union documents, along with “other matters relating to the European Union”. That emphasis needs to change: a more explicit responsibility for scrutinising the Government’s negotiations on withdrawal and on a new relationship, potentially underpinned by a new scrutiny reserve resolution, will be necessary to ensure effective and authoritative scrutiny.

29.We also acknowledge that the working practices of the European Union Committee, were it to be charged with this new responsibility, will also have to change. Coordination between sub-committees will need to be enhanced; detailed inquiries will be replaced by shorter, more focused and more reactive projects. These changes are already underway, as we describe below.

30.We are also conscious that the resource implications will need to be fully considered. Effecting the UK’s withdrawal from the European Union and the implementation of a new relationship will be arguably the most complex, demanding and important administrative and diplomatic task that the Government has undertaken since the Second World War. It is already clear that substantial investment will be needed to recruit and train the civil servants needed to complete this task successfully. It follows that ensuring effective scrutiny of the withdrawal negotiations is now also a strategic challenge for Parliament, including the House of Lords Administration. If the approach we recommend is adopted, the European Union Committee will need additional resources in order to fulfil its work effectively; additional burdens are likely also to fall upon other Departments, including the Library and the Legislation Office.

31.We believe that the House of Lords can best contribute to effective parliamentary oversight of the forthcoming negotiations by charging the European Union Committee with explicit responsibility for scrutinising the negotiations. This will require revised terms of reference for the European Union Committee, possibly underpinned by a new scrutiny reserve resolution. We look forward to engaging with the Leader of the House and with domestic committees in developing more detailed proposals in coming weeks.

32.Withdrawal from the EU is arguably the most complex, demanding and important administrative and diplomatic task that the Government has undertaken since the Second World War. Parliament, if it is to undertake its scrutiny role effectively, will need additional resources that are proportionate to the scale of the challenge. We invite the domestic committees of the House to address the question of resourcing as a matter of urgency.

European Union Committee work

33.Finally, we briefly outline, for information, the current work of the European Union Committee.

34.The Committee continues to scrutinise European Union documents, in accordance with its terms of reference, albeit with a particular focus on the significance of documents in the context of UK withdrawal. In so doing, we are responding in part to the fact that the UK will remain a full member of the EU until any withdrawal agreement comes into force, and that it also continues to be bound by EU law. We also acknowledge the Government’s assurance that it will continue to deposit all European Union documents, with explanatory memoranda, and that Ministers will continue to take part in discussions in the Council of Ministers, while respecting the Scrutiny Reserve Resolution.

35.In addition, the Committee has agreed, in response to the referendum result, a programme of cross-cutting inquiry work, intended to inform the forthcoming negotiations. We have identified a number of key themes:

36.Under these thematic headings the Select Committee and its sub-committees will in coming months, pending the formal commencement of negotiations, produce a series of short reports. We shall identify key UK national interests, and weigh up the options for protecting these interests post-withdrawal. Through this programme of work we aim to stimulate informed debate in the House and beyond, supplementing the analysis being undertaken by the new Department for Exiting the European Union, and thereby influencing the Government’s negotiating objectives.

37.Events are moving quickly. The European Union Committee will, over coming months, continue to respond rapidly and flexibly to such events, and to report issues of importance to the House in a timely fashion.

Conclusion

38.We make this report for information.


1 European Union Committee, The process of withdrawing from the European Union (11th Report, Session 2015–16, HL Paper 138)

2 Constitutional Reform and Governance Act 2010, Part 2 puts parliamentary scrutiny of treaty ratification on a statutory footing and gives legal effect to a resolution of the House of Commons or Lords that a treaty should not be ratified. If the House of Commons considers that the Government should not proceed to ratify a treaty, it can resolve against ratification and thus make it unlawful for the Government to ratify the treaty. The House of Lords is not able to prevent the Government from ratifying a treaty, but if it resolves against ratification the Government has to produce a further explanatory statement explaining why it considers the treaty should be ratified.

3 The process of withdrawing from the European Union, para 31. The German text of Article 50 states that the framework for the future relationship “berücksichtigt wird”—in English, “is considered”, or “is taken into account”.

4 The Spectator, ‘Full transcript: Theresa May, Peston on Sunday’ (3 July 2016): http://blogs.spectator.co.uk/2016/07/full-transcript-theresa-may-peston-sunday/ [accessed 20 July 2016]

5 European Commission, ‘Factsheet: Transparency in EU trade negotiations’: http://trade.ec.europa.eu/doclib/docs/2013/june/tradoc_151381.pdf [accessed 20 July 2016]




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