Brexit: parliamentary scrutiny Contents

Summary of conclusions and recommendations

Why is parliamentary scrutiny necessary?

1.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. (Paragraph 16)

2.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. (Paragraph 17)

3.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. (Paragraph 18)

4.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. (Paragraph 19)

Phase 1—preparation

5.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. (Paragraph 33)

6.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. (Paragraph 34)

7.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. (Paragraph 35)

8.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. (Paragraph 36)

Phase 2—formal negotiations

9.The current level of scrutiny of trade and other international negotiations by the European Parliament, as set out in the 2010 Framework Agreement between the European Parliament and the European Commission, provides a baseline against which any arrangements agreed in the United Kingdom Parliament must be measured: it would be unacceptable for the European Parliament to have greater rights of scrutiny over the negotiations on Brexit than Westminster. We are therefore grateful for the Secretary of State’s assurance that the level of scrutiny in Westminster will at least match that in Brussels. (Paragraph 58)

10.The key principles underpinning European Parliament scrutiny of trade and other international negotiations are that:

11.The same general principles should be applied to scrutiny by the Westminster Parliament of the forthcoming negotiations on Brexit. Too much is at stake for scrutiny to be limited to establishing accountability after the event. While it is not for Parliament to manage the negotiations themselves, Parliament must be able to monitor them actively, and to make its views known in timely fashion, potentially against the backdrop of fast-moving negotiations, so that the Government can consider these views and decide whether not to act on them. (Paragraph 60)

12.We have considered whether these principles should be embodied in a formal scrutiny reserve resolution. On balance, however, we are persuaded that a formal and prescriptive scrutiny reserve could restrict the Government’s room for manoeuvre, thereby acting against the national interest. We are also conscious that scrutiny of treaty negotiations will be a new departure for the UK Parliament: it will take time for mutual trust to develop and for optimum working practices to be identified. We therefore do not recommend the adoption of a formal scrutiny reserve at this stage. (Paragraph 61)

13.Instead, we invite the Government to undertake that the principles outlined in paragraph 59, should be applied to in its relations with Parliament during the forthcoming negotiations. It is essential that the Government should work with the two Houses to give effect to these principles, if there is to be parity between the Parliaments in Westminster and Brussels in scrutinising Brexit. (Paragraph 62)

Phase 3—ratification

14.Any treaties arising out of the Brexit negotiations will engage the provisions of Part 2 of the Constitutional Reform and Governance Act 2010. Thus the two Houses will have an opportunity to pass resolutions that the treaties should not be ratified. (Paragraph 67)

15. We would expect the Government, as well as laying the treaties before Parliament, to publish comprehensive explanatory material to inform public and parliamentary debate. It would be in the Government’s interest, should time allow, to give Select Committees scrutinising Brexit in both Houses an opportunity to set out their views before any debates and votes take place. (Paragraph 68)

16.If, after two years of formal negotiations under Article 50 TEU, no agreement is reached either on the arrangements for withdrawal or on extending the deadline for negotiations, the UK will simply cease to be a member of the EU. Such an outcome cannot be ruled out, but would be highly damaging both to the UK and the EU. (Paragraph 69)

Phase 4—implementation

17.The ‘Great Repeal Bill’ announced by the Prime Minister on 2 October 2016 would formalise the UK’s withdrawal from the EU in domestic law, by repealing the European Communities Act 1972, with effect from whatever date is specified in the withdrawal agreement. We support the Government’s aim of maintaining the body of existing EU law in force, pending further review, but note that giving effect to this aim may be more complex than the Government has yet acknowledged. (Paragraph 79)

18.The Government has yet to set out its strategy for conducting a full review of EU law post-withdrawal. While we welcome the Prime Minister’s commitment to full parliamentary scrutiny, we note that the legislation resulting from the review will have a profound impact upon Parliament, potentially dominating the domestic legislative agenda for an extended period. We therefore recommend that the Government publish an outline strategy for the post-withdrawal review of EU law as soon as possible, in order to inform consideration by the two Houses of how to deliver an appropriate and manageable level of parliamentary scrutiny. (Paragraph 80)

19.Negotiations on trade agreements, with the EU and with third countries, may continue for several years post-withdrawal. Like the negotiations on withdrawal, these will reach deeply into domestic policy-making, and the same considerations in relation to parliamentary scrutiny apply. (Paragraph 81)

‘Parliamentary diplomacy’

20.Parliament should play an active diplomatic role throughout the Brexit process, and beyond. Dialogue with the European Parliament, and with other national parliaments, will be important in maintaining cordial relations during what will be, at the intergovernmental level, difficult negotiations. (Paragraph 89)

21.The European Union Committee is already tasked with representing the House in interparliamentary relations within the EU, and will accordingly seek in coming weeks to begin a dialogue with the European Parliament, and to agree arrangements for formalising such a dialogue for the duration of the negotiations. (Paragraph 90)

Internal arrangements

22.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. (Paragraph 96)

23.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. (Paragraph 97)

24.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. (Paragraph 98)

25.We recommend that the new Committee appointed to scrutinise Brexit should incorporate the existing scrutiny functions of the European Union Committee. (Paragraph 104)

26.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.” (Paragraph 105)

27.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. (Paragraph 106)

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