Brexit: parliamentary scrutiny Contents

Chapter 4: Phase 1—preparation

Assessing the options

24.The forthcoming negotiations will range over all aspects of EU shared and exclusive competence—which means, as the Secretary of State emphasised, that they will cover “nearly the entire bandwidth of government”. Asked how the Government would formulate a negotiating strategy across such a wide front, he told us:

“Pretty much every department of government is tasked by my department to go out and talk to its stakeholders about, first, what the risks are, secondly, what the opportunities are, and, thirdly, what policies mitigate the risks and maximise the opportunities.”15

25.The Secretary of State was describing “a two-way process”: he was clear that it was “a bit more than consultation”. Instead, he repeatedly used the word “engagement”, in a range of contexts. He wanted to engage with Parliament, with political parties, with stakeholders representing business, with the Trade Unions, and more generally with a divided electorate: “to a very large extent, this vote was by the British industrial working class … outside the metropolitan south-east. It is very important to understand exactly what they want out of it.”16

26.Once departments had reported their findings to DExEU, there would be a “quantitative assessment of what we think the advantages and disadvantages are”. The Secretary of State emphasised that in undertaking this assessment the Government would adopt an “empirical” or “mathematical” approach to identifying the over-arching national interest. As well as empirical analysis, political choices would be made on certain key issues, such as the target level of inward migration: “The Cabinet will have to come to that conclusion.”17

27.The preparatory phase will also allow the Government, in the words of Professor Wyatt, “to engage in bilateral contacts with the Governments of member states. These are not negotiations, but they are talks about negotiations. One of the Government’s aims might be to influence friendly national Governments”.18 It appears that such ‘talks about negotiations’ may already be underway, to judge from the Prime Minister’s recent visits to Germany, France and other EU Member States.

28.The Secretary of State told us that there would be only a limited flow of information from Government to Parliament during this initial phase, while the Government is preparing its negotiating objectives:

“Before Article 50 is triggered, there will be a frustrating time, because we will not say an awful lot. We will say a bit; we will lay out guidelines but, as the Prime Minister said, we will not give a running commentary on it, because that would undermine our initial negotiating stance from the beginning.”19

29.At the same time, the preparatory phase represents an opportunity for Parliament to debate the issues that will arise in the course of the negotiations, and potentially to help build a national consensus. The breadth of the Government’s engagement with stakeholders, and the involvement of so many Departments of State, means that almost every Select Committee across Parliament has an opportunity to contribute. Many have done so, and we have ourselves launched a coordinated series of inquiries addressing some of the key issues that will arise in the course of Brexit. Our aim is to identify, under each issue, the main options open to the Government, and the key risks and opportunities, to inform and facilitate parliamentary and public debate, and thereby to influence the Government’s formulation of a negotiating strategy.

Agreeing the negotiating guidelines

30. At some point, probably in early 2017, the Government will complete its preparatory work and, as Mr Davis told us, “we will have some clear public negotiating guidelines”.20 He was not explicitly asked, and did not specify, how these guidelines would be published, what level of detail would be provided, or what role, if any, Parliament would have in debating and agreeing them. While he made it clear that he would be “astonished if there were not public debates about the rights and wrongs of various elements of the strategy that we pursue”, he did not appear to envisage that the Government’s negotiating guidelines would require formal parliamentary approval.21

Notification under Article 50 TEU

31.After deciding on its negotiating objectives, the Government will formally notify the European Council, in accordance with Article 50 TEU, of its intention to withdraw from the EU. Article 50 does not seek to dictate the internal process leading up to that notification: all it says is that the decision to withdraw will be reached by the withdrawing state “in accordance with its own constitutional requirements”.

32.We are aware of the recent report by the Constitution Committee, entitled The invoking of Article 50.22 We are also aware of the application in the High Court made by Gina Miller and Dier Tozetti Dos Santos, seeking a declaration that the Government should not issue a notification without an Act of Parliament, and of the Government’s insistence that no such parliamentary approval is required. We await the Government’s response to the Constitution Committee report, and the result of the litigation, with interest.


33.Across Whitehall, the Government is engaging with stakeholders, and analysing their views, with a view to drawing up guidelines for the forthcoming negotiations. We understand that during this period of intense activity the flow of information from Government to Parliament will be limited.

34.Parliament can, nevertheless, make a significant contribution to the development of the Government’s thinking, using conventional means such as debates and Select Committee inquiries. We are ourselves seeking to contribute to the process by undertaking a coordinated series of inquiries addressing many of the key issues that will arise in the course of Brexit.

35.The Government has not yet indicated how it will publish its negotiating guidelines, whether they will be debated in Parliament, or whether they will be subject to formal approval by one or both Houses. Given the requirement that Parliament should approve and ultimately implement any agreement that emerges from the negotiations, we believe it would be in the Government’s and the nation’s interest for both Houses to be given an opportunity to debate and approve the negotiating guidelines, at least in outline.

36.We note the recent report of the Constitution Committee on the role of Parliament in issuing a notification under Article 50 TEU, and await the decision of the courts on the application brought by Gina Miller and Dier Tozetti Dos Santos.

21 These issues were the subject of a debate in the House of Commons on 12 October 2016, Volume 615. There was insufficient time to take account of that debate before this report was sent to the press.

22 Constitution Committee, The invoking of Article 50 (4th Report, Session 2015–16 HL Paper 44)

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