Chapter 9: Internal arrangements
The role of committees
91.Our short inquiry has underlined both the scale of the challenges ahead, and the critical role that Parliament will play in overcoming them—by helping to build consensus, by bringing an appropriate level of transparency, and by ensuring the accountability of decision-making. It is not surprising, therefore, that extensive parliamentary scrutiny of Brexit should have already begun. There have been debates, ministerial statements and questions in both Houses; committees have held hearings, undertaken inquiries, and published reports.
92.While such intense activity is welcome, it carries the risk that ministers and officials, particularly those in the nascent Department for Exiting the European Union, will be diverted from their core work of concluding a successful negotiation by the task of supporting parliamentary scrutiny. The Secretary of State was reflecting on this task, as well as on the negotiations themselves, when he commented that “One of the outcomes of the sheer complexity of this is that it will be quite onerous”.53
93.We have sought, in our analysis of the process leading up to withdrawal, to identify the different types of parliamentary scrutiny that will be appropriate at each stage. For example, at certain key points Parliament will be invited to take formal decisions, including approving the ratification of any treaty, and implementing that treaty by means of domestic legislation. The procedures for such formal stages of the process are already in place, and we have simply drawn attention to them, in some cases highlighting their resource implications.
94.At the heart of Brexit, however, will be negotiations on withdrawal, probably lasting two years, and further negotiations on future relations, potentially lasting much longer. As we stated in Chapter 2, we believe, as a point of principle, that Parliament has a duty actively to scrutinise both the process and the substance of these negotiations. No procedures currently exist in Parliament for such scrutiny, but in Chapter 5 we described the baseline level of scrutiny currently exercised by the European Parliament, and welcomed the Secretary of State’s undertaking that this level of scrutiny would at least be matched in Westminster.
95.Select Committees have, particularly since the 1970s, played a vital role in focusing parliamentary scrutiny of complex areas of policy, allowing Members of both Houses to build up expertise, relationships and lines of communication with Government. They also perform a ‘triage’ function, dealing with matters of detailed policy implementation and process themselves, while identifying the major issues that merit plenary debate. They have skilled and expert staff, established procedures for handling large amounts of information, and experience of dealing with confidential documents, such as draft reports. All these attributes will be needed if Parliament is to scrutinise the negotiations efficiently and effectively.
Conclusions
96.Parliamentary scrutiny of Brexit should, we believe, continue to be inclusive and broadly defined. Debates, statements, and questions will all play an important part, and committees will continue to look at issues affecting their particular remits.
97.At the same time, we are conscious of the risk that uncoordinated scrutiny across both Houses could place an excessive burden upon the Department for Exiting the European Union. We therefore consider that, if Government is to be scrutinised effectively and efficiently, both Houses should confer explicit responsibility for such scrutiny upon a designated Select Committee.
98.We understand that the House of Commons is to appoint a dedicated Select Committee to scrutinise the new Department. While close liaison between the two Houses will be vital in scrutinising the negotiations, we reiterate the recommendation in our July 2016 report, that the House of Lords can best contribute to effective parliamentary oversight of the negotiations by also charging a specific Select Committee with explicit responsibility for scrutinising the negotiations, and for publishing reports so as to inform debate in the wider House.
The European Union Committee
99.In our report in July 2016 we recommended that the European Union Committee should be tasked by the House to take the lead in scrutinising the negotiations on Brexit. We remain of this view, for four main reasons:
- It is already impossible to separate scrutiny of proposed EU legislation (any of which could potentially affect the UK’s future relationship with the EU) from consideration of the terms of withdrawal. This has been implicitly acknowledged in the recent restructuring within Whitehall, during which responsibility for coordinating scrutiny of proposed EU legislation was moved from the Foreign and Commonwealth Office to DExEU, where it will sit alongside responsibility for coordinating the negotiations on withdrawal. While scrutiny of EU proposals will remain necessary for as long as the UK remains part of the EU, it makes no sense to separate this function from scrutiny of the withdrawal negotiations.
- The negotiations will, as the Secretary of State told us, “be as broad as the entire governmental front”.54 More specifically, they will range across the entire spectrum of EU competence, and will be conducted in detail by officials based across Whitehall. Any committee scrutinising the negotiations will need to provide an equal breadth of engagement, and the European Union Committee possesses six sub-committees, whose remits have been devised with a view to covering the entire extent of EU competence.
- The European Union Committee, thanks to its unique structure, already reflects, in its 73 active members and its much larger number of former members, a wide spectrum of views across the House. Further thought would have to be given to membership—including to the representation on the Committee of smaller parties and of the Lords Spiritual. Consideration might also be given to waiving the rule that prevents Members from sitting on more than one sessional investigative Select Committee, in order to facilitate the involvement of Members of other Committees. With these provisos, the broad-based membership of the EU Committee will be an invaluable asset.
- Finally, the Committee and its 25 staff possess considerable policy and legal expertise, along with a well-established range of contacts domestically and across the EU. It will be vital for the House to make the best possible use of these skills in scrutinising Brexit.
100.Any Committee charged with scrutinising the Brexit negotiations will need appropriate terms of reference—if the European Union Committee were to be so charged, its current terms of reference would have to be substantially updated. Professor Wyatt suggested the following terms of reference: “To consider the negotiation and conclusion of agreements between the UK and the EU consequential upon the result of the referendum of 23rd June 2016, and other matters relating thereto”. He also suggested that a reference to “third countries” could be added if the House wished to empower the Committee to scrutinise any trade negotiations conducted post-withdrawal.
101.In developing Professor Wyatt’s helpful suggestions, we have sought to combine them with the European Union Committee’s existing terms of reference, while also giving expression to what will become an increasingly important diplomatic role. The resulting terms of reference are given in Box 3. We have not incorporated a reference to third countries, since such negotiations will not arise until after withdrawal has been completed, at which point a more far-reaching review of the terms of reference will in any case be required.
Box 3: Proposed terms of reference
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(1)To consider the negotiation and conclusion of any agreements between the United Kingdom and the European Union relating to the United Kingdom’s withdrawal from, and establishment of a new relationship with, the European Union; (2)To represent the House as appropriate in interparliamentary cooperation and dialogue within the European Union, and in particular to develop on behalf of the House an active interparliamentary dialogue relating to the United Kingdom’s withdrawal from and establishment of a new relationship with the European Union; (3)To consider, for as long as the United Kingdom remains part of the European Union, any European Union documents deposited in the House by a Minister, and other matters relating to the European Union; The expression ‘European Union document’ includes in particular: (a)a document submitted by an institution of the European Union to another institution and put by either into the public domain; (b)a draft legislative act or a proposal for amendment of such an act; and (c)a draft decision relating to the Common Foreign and Security Policy of the European Union under Title V of the Treaty on European Union; The Committee may waive the requirement to deposit a document, or class of documents, by agreement with the European Scrutiny Committee of the House of Commons; (4)To assist the House, for as long as the United Kingdom remains part of the European Union, in relation to the procedure for the submission of Reasoned Opinions under Article 5 of the Treaty on European Union and the Protocol on the application of the principles of subsidiarity and proportionality. |
102.These terms of reference, supported by the Government undertakings recommended in Chapter 5 of this report, would go a long way to ensuring effective and constructive scrutiny of the Brexit process. They would not, of course, be sufficient in and of themselves, and the new Committee, in partnership with DExEU, would need to develop more detailed terms of engagement, including robust arrangements for the handling of confidential information.
103.In effect, what we have proposed, though it incorporates the European Union Committee’s current terms of reference, would be a new Select Committee. The House might therefore wish to consider giving it a new name, such as the ‘European Union and EU Withdrawal Committee’. At the same time, we believe, for the reasons given in paragraph 99, that the existing sub-committee structure would serve the House well in scrutinising the negotiations, and should be retained, pending further consideration by the new Committee itself.
Conclusions
104.We recommend that the new Committee appointed to scrutinise Brexit should incorporate the existing scrutiny functions of the European Union Committee.
105.We propose the following terms of reference for the new Committee, for consideration by domestic committees of the House:
“(1) To consider the negotiation and conclusion of any agreements between the United Kingdom and the European Union relating to the United Kingdom’s withdrawal from, and establishment of a new relationship with, the European Union;
(2) To represent the House as appropriate in interparliamentary cooperation within the European Union, and in particular to develop on behalf of the House an active interparliamentary dialogue relating to the United Kingdom’s withdrawal from and establishment of a new relationship with the European Union;
(3) To consider, for as long as the United Kingdom remains part of the European Union, any European Union documents deposited in the House by a Minister, and other matters relating to the European Union;
The expression ‘European Union document’ includes in particular:
(a) a document submitted by an institution of the European Union to another institution and put by either into the public domain;
(b) a draft legislative act or a proposal for amendment of such an act; and
(c) a draft decision relating to the Common Foreign and Security Policy of the European Union under Title V of the Treaty on European Union;
The Committee may waive the requirement to deposit a document, or class of documents, by agreement with the European Scrutiny Committee of the House of Commons;
(4) To assist the House, for as long as the United Kingdom remains part of the European Union, in relation to the procedure for the submission of Reasoned Opinions under Article 5 of the Treaty on European Union and the Protocol on the application of the principles of subsidiarity and proportionality.”
106.We further recommend that the new Committee should retain the existing sub-committee structure of the European Union Committee, pending further consideration by the new Committee itself.