Brexit: parliamentary scrutiny Contents

Chapter 2: Parliamentary scrutiny of Brexit

Why is parliamentary scrutiny necessary?

7.On 22 July 2016 we published a report entitled Scrutinising Brexit: the role of Parliament.2 We underlined the critical importance of Parliament’s role throughout the forthcoming negotiations on withdrawal from, and a new relationship with, the EU. We concluded:

“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.”

8.We were pleased that Mr Davis, the recently appointed Secretary of State for Exiting the European Union, referred to and substantially endorsed our conclusions in evidence before us:

“I have read your report. As you know, my view on parliamentary accountability is very firm. It is a good in its own right and does not need justification by our saying that it will make this or that process better. The simple fact of parliamentary accountability is a good thing. Because of my stance, I want to engage with and consult Parliament as widely as possible, consistent with doing the job of delivering the national interest in the negotiation.”3

9.The Secretary of State’s broad welcome for the general principles underpinning parliamentary scrutiny of the negotiations was accompanied, though, by a significant difference of emphasis. Mr Davis saw parliamentary scrutiny as largely retrospective, and his commitment to support such scrutiny thus came with significant caveats:

“I can entirely see accountability after the event—that is very clear—and not very long after the event either; I am not talking about a year later. In advance, I do not think that it is possible for parliamentarians to micromanage the process. That would not give us an optimum outcome for the country.”

10.None of the evidence we have heard in this short follow-up inquiry challenges, either explicitly or implicitly, the Secretary of State’s proposition that parliamentarians should not ‘micromanage’ sensitive negotiations. Professor Wyatt stated in terms that Parliament “should not seek to micromanage the negotiations in a way that would deprive Government of room for manoeuvre”.4 We agree.

11.But there is a middle way, between micromanagement at one extreme, and accountability after the fact at the other. Jill Barrett argued that Parliament could proactively help the Government secure the best outcome:

“I heard the Secretary of State for Exiting the EU say yesterday that his aims were to make sure that the Government ‘take the time’ necessary ‘to get it right’ and ‘to build a national consensus’ for the terms of exit. It seems to me that those are quite good objectives for parliamentary scrutiny as well, not only to hold the Government to account for doing that, but to help to ensure that the Government get it right and build national consensus.”5

Professor Wyatt agreed: “This may sound paradoxical, but an overarching objective of scrutiny of the Brexit negotiations should be achievement of a successful outcome to the negotiations.”6 Again, we agree.

12.We understand the temptation for the Government, faced with the challenge of Brexit, to make life simpler by minimising Parliament’s role. But there is a risk that, in so doing, the Government may not only overlook the value that Parliament could add to the process, but could also inadvertently resurrect what Lord Kerr characterised as the spirit of ‘Sir Humphrey’:

“There is absolutely no doubt that the chief impediment [to giving Parliament an enhanced role] will be Her Majesty’s Government. They will move seamlessly from saying, ‘I am sorry. We cannot tell you what our position is, because we do not yet have a position’—the unripe time defence, very popular in Whitehall—to national security, ‘I am sorry. We cannot tell you what our position is because we are now in a negotiation. We cannot give our hand away’. The chief impediment will be Her Majesty’s Government.”7

13.There have already been worrying signs that the Government may be treading this path, notably the repeated refusal by ministers, including Mr Davis, to offer what they describe as a “running commentary” on Brexit.8 Such remarks fail to do justice to the unprecedented complexity and importance of the negotiations leading to Brexit. In the words of the Secretary of State, it is “likely to be the most complicated negotiation of modern times. It may be the most complicated negotiation of all times”.9 It will also have a profound impact upon almost all aspects of domestic policy. Professor Wyatt noted that it would “reach deep into the domestic policy-making sphere”—in written evidence, he illustrated his point by citing the Prime Minister’s comments on “the power of the Government to block unwelcome foreign take-over bids”. Lord Kerr similarly distinguished Brexit from the run-of-the-mill of international treaties:

“This is not the Montreux Convention or the Antarctic Treaty. We are talking about something that, as you have just said, will affect almost every area of public life in this country … Vast areas of domestic policy will be affected, and policy choices possibly foreclosed … by this negotiation. Therefore, it follows that this is a treaty where there absolutely needs to be very full parliamentary scrutiny.”10

14.Governments are normally subject to full parliamentary and democratic scrutiny in determining domestic policy. But one consequence of Brexit is that many key aspects of domestic policy could potentially be determined not by Parliament, nor by putting manifesto commitments to the electorate, but in negotiations conducted behind closed doors by Ministers and officials. This was in fact acknowledged in the speech made by the Prime Minister on 2 October 2016, in which her affirmation of Parliament’s new-found sovereignty was accompanied by a resounding caveat:

“Parliament will be free—subject to international agreements and treaties with other countries and the EU on matters such as trade—to amend, repeal and improve any law it chooses.”11

15.Reflecting on the complexity and long-term impact of the negotiations leading to Brexit, Lord Kerr, Professor Wyatt and Ms Barrett agreed that Parliament must play an active role in contributing to their success, rather than merely seeking to establish accountability after the fact. Professor Wyatt also outlined many of the elements that, we believe, must feature in parliamentary scrutiny of Brexit:

“Scrutiny should … have a procedural aspect and a substantive aspect. The procedural aspect is: who are the Government talking to? Are they consulting the right people? Are they consulting them in the right way? Are they keeping lobbyists in the right place? …

“Scrutiny should also be substantive. It should offer fact-based, constructive criticism of the Government’s conduct of the negotiations and invite the Government to think outside the box and to test their internal advice. Indeed, scrutiny should itself test the Government’s internal advice.

“Scrutiny should remind the Government that the referendum result has placed limits on their negotiating position. It should influence the negotiations in the way that reliable information and high-quality policy analysis will always influence a wise and prudent negotiator.”12


16.The forthcoming negotiations on Brexit will be unprecedented in their complexity and their impact upon domestic policy. The direction of many key areas of policy, affecting core national interests, will be heavily influenced, if not determined, by the outcome of the negotiations. While the Government has an obligation, following the referendum, to deliver Brexit, it seems to us inconceivable that it should take the many far-reaching policy decisions that will arise in the course of Brexit without active parliamentary scrutiny.

17.We agree with the Government, and all our witnesses, that Parliament should not seek to micromanage the negotiations. The Government will conduct the negotiations on behalf of the United Kingdom, and, like any negotiator, it will need room to manoeuvre if it is to secure a good outcome.

18.At the same time, we do not regard the principle of accountability after the fact, however important in itself, as a sufficient basis for parliamentary scrutiny of the Brexit negotiations. Instead, we call on the Government to recognise a middle ground between the extremes of micromanagement and mere accountability after the fact.

19.Within this middle ground, Parliament, while respecting the Government’s need to retain room for manoeuvre, should be able both to monitor the Government’s conduct of the negotiations, and to comment on the substance of the Government’s negotiating objectives as they develop. Only if these principles are accepted will Parliament be able to play a constructive part in helping the Government to secure the best outcome for the United Kingdom. Such scrutiny will also contribute to a greater sense of parliamentary ownership of the process, strengthening the Government’s negotiating position and increasing the likelihood that the final agreement will enjoy parliamentary and public support.

2 European Union Committee, Scrutinising Brexit: the role of Parliament, (1st Report, Session 2016–17 HL Paper 33)

11 Theresa May’s Conservative Party conference speech on Brexit (2 October 2016): [accessed 4 October 2016]

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