Chapter 4: Inter-parliamentary relations and the role of Parliament
Introduction
106.Parliament has an important role to play, both in scrutinising UK-EU relations and their evolution, and in developing its own channels for effective inter-parliamentary engagement. We identify four key tasks for Parliament:
- Scrutiny of EU legislative proposals, at least during the transition period;
- Scrutiny of and dialogue on the governance and institutional mechanisms established under the Withdrawal Agreement and Political Declaration;
- Scrutiny of and dialogue on negotiations on the future relationship; and
- Enhanced inter-parliamentary liaison with the European Parliament, national parliaments of EU Member States (and third countries in the European neighbourhood), and the devolved legislatures.
Scrutiny of EU legislative proposals
Transition
107.The Withdrawal Agreement states that during the transition period, the UK Parliament will “not be considered to be a national Parliament of a Member State”, and will lose its privileges, for example to issue Reasoned Opinions.110 The UK Parliament will continue, however, to receive consultation documents (Green and White Papers and Communications) directly from the Commission,111 along with draft legislative acts placed in the public domain.112
108.In July 2018 our Chair, Lord Boswell of Aynho, along with the Chair of the House of Commons European Scrutiny Committee, Sir William Cash MP, wrote a joint letter to the then Secretary of State for Exiting the EU, Rt Hon Dominic Raab MP, to express their Committees’ resolve “to maintain a strong and effective scrutiny system during any post-exit transition or implementation period agreed as part of the withdrawal negotiations”.
109.The Chairs invited Mr Raab to confirm that the Government would a) continue to provide extensive access to information and documentation, as at present, and draw up guidance for Departments accordingly; and b) produce Explanatory Memoranda (EM), on a similar timescale to now, on all new EU documents published during the transition or implementation period that affect the UK.113
110.In his reply of 5 September 2018 the Secretary of State wrote:
“Where available, as per the terms of the Withdrawal Agreement, it is our intention to continue to be able to provide the committees with a wide range of proposals and other documents during the implementation period, subject to any changes we might agree on the scope of documents which will continue to be subject to scrutiny.
“It has been the Government’s working assumption that we would continue with the current model for providing written evidence to the committees through Explanatory Memoranda (EMs). Over the years the Government has worked with the committees to adapt the structure and content of EMs, and the criteria for the deposit of documents, to ensure that the process concentrates on what is important and relevant. That should be the principle which underpins any considerations of further streamlining …
“We will work closely with Parliament to agree upon a scrutiny system which, in the first instance, facilitates Parliament’s role in scrutinising EU proposals that may affect the UK during the implementation period. The Government has always been committed to the principle of effective scrutiny and I can reaffirm that the Government fully recognises the value of such scrutiny … the Government will continue to support and facilitate a strong parliamentary scrutiny process for as long as EU legislation will continue to affect the UK.”114
Post-transition
111.The extent to which it will be necessary to scrutinise EU legislation after the end of the transition period is difficult to predict, but the closer the UK’s relationship with the EU is, the more necessary parliamentary scrutiny of EU legislation will be. This is particularly so should the Protocol on Ireland/Northern Ireland come into force, given the obligations that would apply to the UK as a whole under the terms of the single customs territory, and the additional regulatory and technical responsibilities deriving from EU law that would apply to the UK in respect of Northern Ireland.
112.Furthermore, on 6 March 2019, the Government published a Command Paper on Protecting and Enhancing Worker Rights after the UK Withdrawal from the European Union. This stated: “Parliament should have the opportunity to consider any future changes to EU law after the Implementation Period which strengthen employment or workplace health and safety standards.” The paper set out draft clauses to “provide for a process to enable Parliament to consider whether the UK should align with EU employment and health and safety rules on a case-by-case basis”.115
Conclusions
113.During the transition period the UK will continue to be bound by EU laws, including new laws as they come into force. Even though UK Ministers will no longer be able to vote on new EU laws, some form of continuing parliamentary scrutiny of those laws will be essential to maintain transparency and to draw significant changes to the attention of Parliament and the wider public prior to their implementation in domestic law.
114.We therefore welcome the Government’s continued commitment to the principle of effective scrutiny of EU documents for as long as EU legislation affects the UK. We particularly welcome its commitment to provide the scrutiny Committees of both Houses with relevant documentation and Explanatory Memoranda on new EU legislative proposals during the transition period.
115.The terms of the future UK-EU relationship will determine whether or not, and the extent to which, it will be necessary to scrutinise EU legislation after the end of the transition period. The Government has already committed to providing Parliament with a mechanism to consider whether the UK should align with future EU employment and health and safety rules. We will engage in continued dialogue with the Government and with our House of Commons counterparts, with a view to reaching conclusions on any future scrutiny of EU legislation before the future relationship negotiations are completed.
Scrutiny of the formal inter-institutional governance mechanisms under the Withdrawal Agreement
116.Parliament will also wish to scrutinise the work of the institutional and governance mechanisms under the Withdrawal Agreement, namely the Joint Committee, Specialised Committees, and the Joint Consultative Working Group on the Protocol on Ireland/Northern Ireland.
117.In our report on Brexit: the Withdrawal Agreement and Political Declaration, we described the lack of transparency in these mechanisms as an “unsatisfactory state of affairs”. We called on members of both Houses to “consider the appropriate level of, and structure for, parliamentary oversight of the Joint Committee, and seek undertakings from the Government on this question”.116 In their joint letter to the then Secretary of State, the Chairs of the Lords and Commons Committees called on the Government to make meeting schedules and agendas available in sufficient time for Parliament to consider (and comment on) them; formally to deposit draft decisions, recommendations or proposed changes by the Joint Committee to the Withdrawal Agreement; and to undertake that a Minister would appear in person before the Scrutiny Committees in advance of Joint Committee meetings and report on the outcome afterwards.
118.The Chairs also stated:
“The Joint Committee provides a forum in which to raise concerns about the management and operation of the Withdrawal Agreement during the transition/implementation period. The possibility to raise concerns about the impact on the UK of specific new EU laws being negotiated or proposed during the transition/implementation period creates a direct link with the document scrutiny work of the European Scrutiny Committee in the Commons and the European Union Committee in the Lords.”
119.The Chairs envisaged “establishing a new mechanism to enable either House (acting on a recommendation from the relevant scrutiny committee) to require the Government, in good time, to: a) raise concerns about specific EU legislative proposals which may have a detrimental impact on the UK; and b) place a particular issue on the agenda of the Joint Committee (or a specialised committee) for discussion”. In effect, such a mechanism would replace the existing Reasoned Opinion procedure, whereby national parliaments are able formally to register concerns over new EU legislative proposals, concerns to which the European Commission are required to respond.117
120.In his reply, the then Secretary of State “noted with particular interest” the Chairs’ proposals:
“Mechanisms for scrutiny are a matter for Parliament but the Government agrees that any mechanism should enable Parliament to express views on laws that affect the UK and for those views to inform the representations made by the Government at EU level. In circumstances where the Government agrees with the concerns raised by Parliament, we agree that the Government should use appropriate channels to raise such concern with the EU. This could include discussion in the Joint Committee or a specialised sub-committee, if that is the appropriate mechanism to resolve the concerns. … I recognise that Parliament will rightfully expect that it will be able to undertake informed scrutiny of the Government’s approach and … this will naturally need to be underpinned by full and proper ministerial accountability to Parliament.”118
121.We note that the European Parliament has also sought a role in relation to scrutiny of the governance of the Withdrawal Agreement, including the Joint Committee. The proposal for a Council Decision on the conclusion of the Withdrawal Agreement (amended on 9 January 2019) states that “the European Parliament is to be immediately and fully informed, as provided for in Article 218(10) TFEU, on the basis of practical modalities of cooperation allowing it to exercise fully its prerogatives in accordance with the Treaties”, and that “the European Parliament shall be put in a position to exercise fully its institutional prerogatives throughout the process in accordance with the Treaties”.119
122.We remain concerned at the lack of transparency in the work of the governance mechanisms established in the Withdrawal Agreement, including the Joint Committee, Specialised Committees and Joint Consultative Working Group on the Protocol on Ireland/Northern Ireland.
123.While we welcome the then Secretary of State’s commitment to “full and proper ministerial accountability to Parliament”, the Government has not offered detail on how it will be accountable to Parliament for the work of the Joint Committee and Specialised Committees. We regret that the Government has thus far only committed to raising issues in the Joint Committee “where the Government agrees with the concerns raised by Parliament”.
124.We reiterate our view that a new mechanism should be adopted to enable either House (acting on a recommendation from the relevant scrutiny committee) to require the Government, in good time, to: a) raise concerns about specific EU legislative proposals which may have a detrimental impact on the UK; and b) place a particular issue on the agenda of the Joint Committee (or a Specialised Committee) for discussion. Such a formal mechanism is essential, given that the Houses will lose the power, guaranteed hitherto under EU law, to lodge formal concerns over new legislative proposals with the EU institutions by means of Reasoned Opinions.
125.We further recommend that, in order to facilitate effective scrutiny, the Government should: a) ensure that meeting schedules and agendas are made available in sufficient time for Parliament to consider (and comment on) the items to be discussed; b) formally deposit draft decisions, recommendations or proposed changes by the Joint Committee to the Withdrawal Agreement; and c) undertake that a Minister will appear in person before the Scrutiny Committees in advance of Joint Committee (and, when necessary, Specialised Committee and Joint Consultative Working Group) meetings and report on the outcome afterwards.
Scrutiny of the future relationship
126.Parliament will also need to scrutinise a) the negotiations on the future relationship, b) the working of the future relationship itself, and c) UK participation in and cooperation with EU agencies and programmes under the future relationship.
Scrutiny of the future relationship negotiations
127.There have been many complaints, both inside and outside Parliament, about the lack of transparency of the negotiations on the Brexit Withdrawal Agreement.
128.Our October 2016 report on Brexit: parliamentary scrutiny stressed the vital role to be played by Parliament
“in offering constructive and timely comment on both the process and the substance of the negotiations. Such scrutiny will 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.”120
129.Following a commitment made to us by the then Secretary of State for Exiting the EU, Rt Hon David Davis MP, to “certainly match and, hopefully, improve on what the European Parliament sees”, we invited the Government to provide relevant committees with access, if necessary in confidence, to a wide range of documents; to supply documents in sufficient time for committees to be able to express their views and for the Government to be able to take these views into account; to respond to any formal recommendations made by committees, and, if recommendations are rejected, explain why; and to work with Parliament to adopt procedures to safeguard confidential information.121
130.Mr Davis’ commitment was not fulfilled. Instead, the Committee faced repeated delays in arranging evidence sessions with both Mr Davis and Mr Raab, a succession of delayed and poor quality Government responses to Committee reports and correspondence, and a reluctance to share confidential information with the Committee until obliged to do so by motions passed in the House of Commons.
131.Following Mr Raab’s refusal in autumn 2018 to appear before the Committee until a deal with the EU had been finalised, our Chair wrote to him describing this as “unacceptable. Your response inhibits the Committee in fulfilling its obligations in scrutinising the progress of Brexit negotiations at this vital stage.”122 A further failure to respond to the Committee’s letter prompted the Chair to ask a Private Notice Question on 31 October 2018 seeking further undertakings from the Government regarding parliamentary scrutiny of the Brexit negotiations.123
132.Sir Ivan Rogers told us:
“Secrecy does not really work, either inside the Executive or with the legislature. It has been a serious mistake even in this process, and it would be an even more serious mistake in the [future relationship negotiations] … We need a more open, honest and serious debate about what form of Brexit we want, what trade-offs we face and what counts most for us and why.”124
133.In her statement to the House of Commons on 21 January 2019, the Prime Minister appeared to acknowledge this deficiency:
“Given the breadth of the negotiations, we will seek input from a wide range of voices from outside Government. That must include ensuring Parliament has a proper say, and fuller involvement, in these decisions. It is Government’s responsibility to negotiate, but it is also my responsibility to listen to the legitimate concerns of colleagues, both those who voted leave and those who voted remain, in shaping our negotiating mandate for our future partnership with the EU. So the Government will consult this House on their negotiating mandate, to ensure that Members have the chance to make their views known and that we harness the knowledge of all Select Committees across the full range of expertise needed for this next phase of negotiations, from security to trade. This will also strengthen the Government’s hand in the negotiations, giving the EU confidence about our position and avoiding leaving the bulk of parliamentary debate to a point when we are under huge time pressure to ratify …
“As the negotiations progress, we will also look to deliver confidential Committee sessions that can ensure Parliament has the most up-to-date information, while not undermining the negotiations. And we will regularly update the House, in particular before the six-monthly review points with the EU foreseen in the agreement.”125
134.The new Secretary of State for Exiting the EU, Rt Hon Stephen Barclay MP, subsequently confirmed that these commitments applied to committees of both Houses. He stressed that he was seeking a “step change” in the quality of the Government’s engagement, and that there was “a huge opportunity to work much more closely”.126 We also note that, in relation to free trade agreement negotiations between the UK and third countries, the Government has stated that parliamentary committees “could have access to sensitive information that is not suitable for wider publication and could receive private briefings from negotiating teams”.127
135.As we have seen, the 11 March Joint Statement supplementing the Political Declaration referred to “appropriate involvement of parliaments” in both sides’ consultations on alternative arrangements to the ‘backstop’. On 7 March, the Secretary of State wrote to the Committee setting out the Government’s intention to establish, alongside an expert advisory group of technical experts and a business and trade union engagement group, a “parliamentary engagement group to allow Government to consult with Members of Parliament from across both Houses with an interest in the work”. He wrote that the Government would discuss with parliamentarians how best to constitute this group, and stressed that it would not affect the Government’s ongoing engagement with existing parliamentary committees.128
136.As we have seen, the precise structure of the future relationship negotiations has yet to be outlined. While these are matters for decision by the Government and the EU, those decisions will also have implications for Parliament, as Sir Ivan Rogers told us:
“A trade negotiation all comes together as a single extremely complex bundle, which means that at political level, underneath the Prime Minister, you need a very effective machine that enables the Prime Minister and the immediate team around her to understand all the moving parts of the trade negotiation. There will be hundreds of moving parts, many of which are extremely technically complex. The House needs to develop its own conception of what matters most to it and why.”129
137.We are disappointed at the Government’s failure to honour its commitment at the outset of the Brexit negotiations to support parliamentary committees in their scrutiny of the Brexit negotiations. We therefore welcome the Prime Minister’s commitment to enhanced dialogue with Parliament, and with committees, during negotiations on the future UK-EU relationship. We also welcome her commitment to ensure more effective oversight of the Government’s negotiating position as it develops. In particular, committees must have access to a wide range of relevant documents and must receive documents in good time to be able to set out their views. The Government in turn must take those views into account and respond in a timely manner to any formal recommendations made by committees.
138.We note the Government’s proposals for a parliamentary engagement group on alternative arrangements to replace the backstop solution in the Protocol on Ireland/Northern Ireland. In light of the commitment of both the UK and the EU to “appropriate involvement of parliaments”, we stress the importance of inter-parliamentary dialogue with the House of Commons, Northern Ireland Assembly, Irish Oireachtas and European Parliament in relation to this strand of the future relationship negotiations.
Scrutiny of the future relationship
139.Parliament will also wish to scrutinise the future UK-EU relationship once it has been agreed and implemented. While it is too early to confirm how that relationship will be governed, as we set out in Chapter 2 it is likely that the Joint Committee on the Withdrawal Agreement will set a precedent for the Joint Committee on the future relationship. It is therefore important that the principles of accountability, transparency and access to information, as applied to governance of the Withdrawal Agreement, also apply to governance of the future relationship—not least, because that relationship is likely to be dynamic, not static.
140.The principles of parliamentary accountability, transparency and access to information that we have recommended in relation to the Joint Committee (and Specialised Committees) on the Withdrawal Agreement should equally be applied to parliamentary scrutiny of the governance mechanisms (including the Joint Committee on the future relationship) established to oversee the future UK-EU relationship.
Scrutiny of UK interaction with EU agencies and programmes
141.Parliament will also have a role to play in scrutinising the UK’s interaction with EU institutions, agencies and programmes, both during the transition period and in the future relationship. This is particularly important given:
- The number of new UK institutions (or institutional responsibilities) created as a result of Brexit;
- The terms of UK participation in EU programmes and agencies, which will either change markedly or have yet to be defined;
- The complex web of proposed inter-agency and inter-programme cooperation;
- The varying intensity of such relationships across different policy fields;
- The budgetary implications of such cooperation; and
- The prospect that many of these relationships and partnerships will evolve over time.
142.The Political Declaration proposes a complex web of future UK interaction with EU agencies and programmes. Effective and proportionate parliamentary scrutiny of these interactions will be vital.
Inter-parliamentary liaison
143.The UK Parliament will also contribute to inter-institutional relations in its own right, including through:
- Formal inter-parliamentary dialogue between the UK Parliament and the European Parliament;
- Informal inter-parliamentary liaison with MEPs;
- UK participation in inter-parliamentary conferences with EU Member State national parliaments;
- Bilateral inter-parliamentary dialogue with Member State national parliaments;
- Engagement with the devolved legislatures.
Formal inter-parliamentary dialogue
144.The Political Declaration proposes “the establishment of a dialogue between the European Parliament and the Parliament of the United Kingdom, where they see fit, in order for the legislatures to share views and expertise on issues related to the future relationship”.130
145.Rules 212 and 214 of the European Parliament Rules of Procedure cover the mechanisms for inter-parliamentary dialogue (see Box 4). These include a structure for inter-parliamentary delegations, and more intensive engagement for joint parliamentary committees.
Box 4: European Parliament Rules of Procedure on inter-parliamentary dialogue
Source: European Parliament, ‘Rules of Procedure of the European Parliament’ (July 2018): http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+RULES-EP+20180731+RULE-212+DOC+XML+V0//EN&language=EN&navigationBar=YES [accessed 7 March 2019]
146.On the European Parliament side, the Conference of Presidents decides on the number of delegations to third countries (there are currently 44). While the European Parliament and third country delegations are numerically equal, their size varies depending on the size and resources of the third country.
147.Joint Parliamentary Committees are co-chaired by a member of the European Parliament and of the national parliament of the third country. They typically meet twice a year (once in Brussels or Strasbourg, and once in the third country) to discuss the implementation of the Association Agreement (or accession negotiations) and other bilateral issues. Meetings usually take place over consecutive half-days, and result in the production of a joint text in the form of recommendations and reports, which are transmitted to the Commission and the government of the third country. Each side provides its own secretarial support. A Joint Parliamentary Committee agrees its own Rules of Procedure, and minutes of its meetings are normally published.
148.The key determinative distinction between the Joint Parliamentary Committee and inter-parliamentary delegation mechanisms is whether the third country in question has either concluded an Association Agreement with the EU or has commenced accession negotiations. The Political Declaration envisages “an overarching institutional framework covering chapters and linked to agreements relating to specific areas of cooperation”, which “could take the form of an Association Agreement”—so there is some prospect that future UK-EU inter-parliamentary dialogue could take place within a Joint Parliamentary Committee.131
149.This Committee has expressed support for a UK-EU Association Agreement, because such agreements “are by their nature dynamic and evolutionary, and such a model fits well with the commitment by both sides to keep the future relationship under review”.132 But it remains unclear what form parliamentary dialogue might take in the period immediately following UK withdrawal, during the transition period, and while the terms of the future relationship (and any Association Agreement) are under negotiation.
150.The UK Parliament will thus need to consider a number of practical issues:
- Whether it wishes to establish formal mechanisms for inter-parliamentary dialogue with the European Parliament a) during and b) after the conclusion of negotiations on the future relationship, and, if so, what form those mechanisms should take;
- How both Houses should be represented in the UK delegation, and how they should coordinate their work in relation to the delegation;
- How UK Parliament representatives to the delegation should be chosen, and whether its membership should comprise representatives of Committees of the two Houses with responsibility for scrutinising UK-EU relations, or be drawn from the wider membership of the Houses;
- How secretarial and administrative support to the UK delegation should be provided;
- The relationship between the work of the parliamentary delegation and the wider work of the two Houses and their committees, and any mechanisms that should be established to formalise this relationship;
- Whether and how far the devolved legislatures should be involved in the work of the parliamentary delegation.133
151.We welcome the support in the Political Declaration for the establishment of a dialogue between the European Parliament and the UK Parliament. The precise details of this dialogue are still to be determined, and are a matter for the two Houses and the European Parliament. We have identified the following principles:
- Of the two models set out under the European Parliament’s Rules of Procedure, a UK-EU Joint Parliamentary Committee would be preferable;
- Such a mechanism should be established as soon as possible after UK withdrawal, and assuming that both sides’ objective of concluding an Association Agreement is confirmed, the establishment of a Joint Parliamentary Committee should not wait for negotiations on the future UK-EU relationship to be completed;
- The UK delegation should include equal representation of the two Houses;
- In the case of the House of Lords delegation, we believe that there is a strong case for its membership to include representatives of any committee with responsibility for scrutiny of future UK-EU relations;
- The House should consider mechanisms to engage the devolved legislatures in the work of the delegation.
Informal liaison with MEPs
152.The European Parliament’s mechanisms for formal inter-parliamentary dialogue are typically complemented by informal contacts, including liaison between parliamentary committees and reciprocal visits to Brussels and third country national capitals. Equally important are interpersonal contacts between individual parliamentarians, including between members of affiliate party groups.
153.Alongside formal mechanisms for inter-parliamentary dialogue, informal contact between MEPs and UK parliamentarians will be important. This Committee has long benefited from such contacts, and we will seek to draw on them, and to prioritise continued exchanges with the European Parliament, in order to build the foundations for continuing bilateral Westminster-European Parliament dialogue in the years to come.
UK participation in inter-parliamentary conferences
154.The national parliament of the Member State holding the rotating presidency of the Council of the EU organises a series of inter-parliamentary conferences (normally in their national capital and/or seat of their Parliament) for representatives of Member State national parliaments, including Committees responsible for scrutiny of European affairs. These conferences, at which the European Parliament is also represented, include:
- The Conference of Parliamentary Committees for Union Affairs of Parliaments of the European Union (COSAC);
- The meeting of the Chairpersons of the Committees for Union Affairs (referred to as the COSAC Chairpersons Conference);
- The Inter-parliamentary Conference on Stability, Economic Coordination and Governance in the EU;
- The Inter-parliamentary Conference for the Common Foreign and Security Policy (CFSP) and the Common Security and Defence Policy (CSDP);
- The Joint Parliamentary Scrutiny Group on Europol;
- The meeting of the Secretaries General of EU Parliaments;
- The Conference of Speakers of the EU Parliaments.
155.These ‘permanent’ conferences are supplemented by ad hoc inter-parliamentary conferences organised by the Presidency Parliament or by European Parliament Committees.
156.The House of Lords has tasked this Committee with representing the House in inter-parliamentary conferences and events. We have always sought to prioritise attendance and participation in these events, and while the character of our participation has inevitably changed since the referendum, attendance at inter-parliamentary conferences has continued to form a vital aspect of our work, providing an invaluable forum for exchange of views on the Brexit negotiations and the future UK-EU relationship.
157.Representatives of third countries in the European neighbourhood, including Switzerland, Norway, Iceland, Turkey, the Western Balkan states, Ukraine and Georgia, attend some or all of these inter-parliamentary conferences. They do not have an automatic right to attend, but on request are invariably invited. While they formally participate as observers, without voting rights, in practice third country representatives are able to make regular oral contributions in the plenary sessions.
158.In autumn 2018, COSAC representatives were invited to respond to a questionnaire asking for their views on future UK participation in inter-parliamentary conferences. A clear majority of respondents were in favour of continued UK participation post-Brexit.134
159.We are grateful for the support other national parliaments have given to the suggestion of continued UK participation in COSAC and other inter-parliamentary conferences. We remain firmly committed to continuing House of Lords representation in these important fora for inter-parliamentary dialogue.
Bilateral relations with Member State national parliaments
160.In Chapter 3 we set out the importance of bilateral inter-governmental dialogue. Such dialogue needs to be complemented by effective bilateral inter-parliamentary liaison with Member State national parliaments.
161.Our dialogue with committees in other national parliaments has intensified during the Brexit negotiations. Since June 2016 we have sent delegations to several other national parliaments to discuss Brexit, and have welcomed parliamentary delegations to Westminster from a large number of EU Member States. We have also welcomed representatives of other third countries in the EU neighbourhood, including the EEA/EFTA States and Turkey, and of regional legislatures from across the EU.
162.There are also more formal means of bilateral inter-parliamentary engagement. Committee members participate in a biannual inter-parliamentary defence meeting with representatives of Committees in the House of Commons and the French Assemblée Nationale and Sénat. Parliamentarians from Westminster, the Irish Oireachtas, the Scottish Parliament, National Assembly for Wales, Northern Ireland Assembly and the legislatures of the Crown Dependencies, participate in the British-Irish Parliamentary Assembly (BIPA). There are also several active All Party Parliamentary Groups (APPGs) at Westminster, cultivating effective bilateral links with other countries, in the EU and beyond. Several EU national parliaments have their own active UK friendship groups, and we regularly meet delegations in the context of their visits to London.
163.We have long recognised the importance of effective formal and informal bilateral inter-parliamentary dialogue, to which the Brexit negotiations have provided an added impetus. Bilateral inter-parliamentary dialogue will become even more important post-Brexit, and we will continue to prioritise it.
Engagement with the devolved legislatures
164.In Chapter 3, we reflected on the importance of the UK Government’s post-Brexit engagement with the devolved administrations. This needs to be complemented by effective inter-parliamentary dialogue with the devolved legislatures in relation to future UK-EU relations.
165.In that context, we sought written evidence from Committees in the devolved legislatures (and from the political parties represented in the Northern Ireland Assembly). The Scottish Parliament Culture, Tourism, Europe and External Affairs Committee has also heard evidence on many of the issues considered in this report.135
166.The National Assembly for Wales External Affairs and Additional Legislation Committee stated:
“As a minimum, the existing lines of communication that have been developed between the committees of UK’s legislatures principally charged with scrutiny of European Affairs must be preserved to ensure a shared understanding of these issues wherever possible. Thought could also be given to removing any procedural barriers that might exist to these committees acting jointly should circumstances suggest that this would offer the best scrutiny outcome.”
167.The Committee also stressed the importance of the Assembly’s bilateral engagement with the European Parliament as a means of allowing it “to directly represent the interests of the people of Wales in the European legislative process and facilitate a dialogue between the European Parliament and Welsh stakeholders”. While the Committee acknowledged that the UK delegation to the European Parliament would comprise members of the House of Commons and House of Lords, it raised the possibility of either “a multilateral ‘sub delegation’ comprising … members of the devolved legislatures or three separate ‘sub delegations’ that provided bilateral engagement from each of the devolved legislatures with the European Parliament”.136
The Inter-parliamentary Forum on Brexit
168.Our July 2017 Brexit: devolution report concluded:
“We recommend that the structures for inter-parliamentary dialogue and cooperation be strengthened, and invite the House to consider how this might be achieved. In the short term, the priority is to engage in closer inter-parliamentary dialogue regarding the Brexit negotiations themselves and the accompanying domestic legislation. We will therefore seek to develop and broaden our well-established mechanisms for collaboration with our colleagues in the devolved legislatures. Working in conjunction with other Committees of the House, we will propose more regular joint meetings with members of cognate Committees with responsibility for Brexit-related issues in the Scottish Parliament, National Assembly for Wales and Northern Ireland Assembly, and in the House of Commons, for the duration of the Brexit negotiations. These joint meetings could provide an opportunity to hear informally from UK and devolved Government Ministers, and to discuss issues of mutual interest and concern.”137
169.This conclusion led directly to the formation of the ‘Inter-parliamentary Forum on Brexit’. The Forum comprises the Chairs/Conveners and/or other senior representatives of the Committees with responsibility for scrutinising Brexit-related issues in the House of Commons, House of Lords, Scottish Parliament and National Assembly for Wales. Because the Northern Ireland Assembly is currently suspended, Assembly officials attend in an observer capacity. The House of Lords has been represented by the Senior Deputy Speaker, and the Chairs or other representatives of the European Union, Constitution, Secondary Legislation Scrutiny, and Delegated Powers and Regulatory Reform Committees.
170.The Forum first met in October 2017, and has met six times in total. Each chamber or legislature takes it in turn to host. It provides an invaluable forum for an informal exchange of views on Brexit-related issues, and of information on the work and concerns of the various Committees and legislatures.138
171.The post-Brexit evolution of the Forum, and the possibilities for enhanced parliamentary dialogue more generally, are under active discussion both in the Forum and beyond. The National Assembly for Wales External Affairs and Additional Legislation Committee has argued that the Forum “has the potential to offer an overarching structure from which further inter-parliamentary engagement can develop”, while the National Assembly for Wales Constitutional and Legislative Affairs Committee has called for the establishment of a Speakers’ Conference to determine how best to develop UK inter-parliamentary working.139
172.While the arrangements for post-Brexit inter-governmental and inter-parliamentary dialogue within the UK fall in some respects beyond the scope of this report, we emphasise that such dialogue will, in at least the short to medium term, be heavily focused on Brexit and on the shape of future UK-EU relations.
173.Given the scope and complexity of the forthcoming negotiations on the future UK-EU relationship, dialogue between the UK Parliament and the devolved legislatures on the nature of that relationship should continue to be strengthened. The Inter-parliamentary Forum on Brexit has developed into a useful tool, and there is a case now to formalise this dialogue, define its remit more closely and to address issues such as membership and resourcing. We invite the House authorities, together with counterparts in the House of Commons and the devolved legislatures, to consider these questions as a matter of urgency.
174.We also see merit in engaging with the devolved legislatures in relation to the formal UK Parliament-European Parliament dialogue. We invite the House authorities, in reflecting on the structure for that dialogue, also to consider ways in which this can be achieved.
The future of the EU Committee
The Liaison Committee Review of the House of Lords’ investigative and scrutiny committees
175.In January 2018 the House of Lords Liaison Committee launched a review of the House’s investigative and scrutiny committees, the first full review for 25 years. The review is considering the strengths and weaknesses of the current Committee structure, and what should change. While not its sole focus, the review has sought to be mindful of the implications of Brexit for the future work of House of Lords Committees.140
176.In March 2018 we made an interim submission to the Liaison Committee Review. We concluded that, during the transition period, a Committee or Committees of the House would be required:
- To monitor and report on significant changes in EU law, and to make recommendations to Ministers on when to make representations on or object to such changes;
- To scrutinise the ongoing negotiations with the EU, and to report on any draft agreements that emerge from those negotiations, so as to inform debates or votes in the House;
- To scrutinise negotiations with third countries, and to report on any draft agreements that emerge from those negotiations;
- To represent the House in inter-parliamentary fora within the EU, with a particular view to developing the structures for ongoing UK-EU inter-parliamentary cooperation.141
177.We also stressed the need for effective parliamentary scrutiny of trade negotiations with third countries, which has hitherto been an exclusive EU competence. In that context, we note that in February 2019, the Department for International Trade published its proposals on Processes for making free trade agreements after the United Kingdom has left the European Union. The Department suggested that the Government should liaise with a specific parliamentary committee in each House to ensure effective scrutiny of future Free Trade Agreements.142
178.We expressed our intention to provide a further submission to the Liaison Committee when the outcome of Brexit negotiations became clearer, but the continued uncertainty has delayed this further submission. While significant uncertainties remain, we judge that the risk of further delay in clarifying arrangements for post-Brexit scrutiny of UK-EU relations now outweighs the risk of being overtaken by events.
179.This risk is demonstrated by the now urgent need to take decisions on the future of the UK National Parliament Office (NPO) in Brussels. The NPO currently comprises two House of Commons and one House of Lords official, supported by UKRep, and with office accommodation provided by the European Parliament, alongside representatives from other EU Member State national parliaments. The NPO acts as the Committee’s primary point of contact with the EU institutions (including distributing reports and arranging meetings); facilitates visits to Brussels; provides updates and briefings on topical discussions and developments in the EU institutions; monitors the progress of negotiations on particular legislative proposals; facilitates the Committee’s representation at inter-parliamentary conferences; and, via the network of national parliament representatives, provides a means for the exchange of information with other Member State national parliaments.
180.All these facets of the work of the NPO will be more important than ever as the UK enters into what is likely to be a long and complex negotiation on the future UK-EU relationship. Against this backdrop, it would be unfortunate if Parliament were, by failing to take timely decisions, prematurely to reduce its engagement in Brussels during this far-reaching negotiation.
181.The Parliament of Norway (the Storting) provides an important precedent: notwithstanding Norway’s status as a non-EU Member state, it employs a National Parliament Officer, who maintains an office in the European Parliament in Brussels, works closely with the other National Parliament Officers, and provides an important channel of communication with the EU institutions and Member States.
Conclusions
182.There will be an important role for House of Lords Committees in scrutinising future UK-EU relations, particularly in the following areas:
- Scrutiny of negotiations on the UK-EU future relationship;
- Scrutiny of EU legislative proposals during the transition period (and possibly beyond);
- Scrutiny of the formal UK-EU governance mechanisms set out in the Withdrawal Agreement and Political Declaration; and
- Enhanced inter-parliamentary dialogue within the EU with the European Parliament, EU national parliaments and (in the context of future UK-EU relations) the devolved legislatures.
183.We also reiterate our conclusion, in our evidence to the House of Lords Liaison Committee, that the House should, through a designated committee, scrutinise negotiations with third countries, and any agreements that emerge from those negotiations. We note the proposal of the Department for International Trade that committees in each House should undertake this task, in respect of trade agreements, a proposal that provides a good starting point for more detailed consideration of the scrutiny of international agreements generally.
184.At the same time, we believe that there is a strong case for the European Union Committee, or a successor committee, to be appointed in the new parliamentary session with a remit to undertake all the EU-related scrutiny tasks that we have identified in a coordinated manner.
185.The scale of the tasks we have identified means that there is a strong argument for any EU-focused committee to retain a sub-committee structure; this could be somewhat scaled back from the EU Committee’s current six sub-committees, but we emphasise that the negotiations on future UK-EU relations will extend across almost the entire breadth of government, and that committee scrutiny will need to be proportionately resourced, at both Member and staff level.
186.The intensity of this work, and the fact that the UK will have to work harder to obtain information and maintain relationships in the post-Brexit environment, leads us also to conclude that the National Parliament Office in Brussels should be maintained. We urge the House authorities to take this issue forward in dialogue with the European Parliament, the House of Commons and the Foreign and Commonwealth Office.
187.There are still major uncertainties about post-Brexit UK-EU inter-institutional relations. Many of the findings and conclusions of this report are made on the assumption of a deal being reached. Should the current uncertainty about the outcome of the Brexit process persist, then these assumptions may shift. Nevertheless, the risk of any further delay in determining and planning for the post-Brexit framework outweighs that of being overtaken by events. It is in that spirit that we make this report for debate.
110 Under Protocol (No 2) to the Treaty on the Functioning of the European Union on the Application of the Principles of Subsidiarity and Proportionality. See Withdrawal Agreement (11 March 2019), Article 128.
111 Article 1 of Protocol (No 1) to the Treaty on the Functioning of the European Union on the Role of National Parliaments in the European Union
112 Withdrawal Agreement (11 March 2019), Article 128(2)
113 Letter from Sir William Cash MP, Chair of the European Scrutiny Committee and Lord Boswell of Aynho, Chair of the European Union Committee to Rt Hon Dominic Raab MP, Secretary of State for Exiting the European Union (24 July 2018): https://www.parliament.uk/documents/lords-committees/eu-select/scrutiny-brexit-negotiations/joint-letter-eu-scrutiny.pdf [accessed 19 March 2019]
114 Letter from Rt Hon Dominic Raab MP, Secretary of State for Exiting the European Union, to Sir William Cash MP, Chair of the European Scrutiny Committee and Lord Boswell of Aynho, Chair of the European Union Committee (5 September 2018): https://www.parliament.uk/documents/lords-committees/eu-select/scrutiny%20work/dominic-raab-scrutiny-letter.pdf [accessed 7 March 2019]
115 Department for Business, Energy and Industrial Strategy, Protecting and Enhancing Worker Rights after the UK Withdrawal from the European Union, CP 66, 6 March 2019: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/783866/protecting-enhancing-worker-rights-after-uk-withdrawal-from-eu.pdf [accessed 7 March 2019]. The EU noted this commitment in the March 2019 Joint Statement supplementing the political declaration setting out the framework for the future relationship between the European Union and the United Kingdom of Great Britain and Northern Ireland: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/785120/2019–03-11_Statement.pdf [accessed 14 March 2019].
116 European Union Committee, Brexit: the Withdrawal Agreement and Political Declaration (24th Report, Session 2017–19, HL Paper 245), paras 37–8
117 Letter from Sir William Cash MP, Chair of the European Scrutiny Committee and Lord Boswell of Aynho, Chair of the European Union Committee to Rt Hon Dominic Raab MP, Secretary of State for Exiting the European Union (24 July 2018): https://www.parliament.uk/documents/lords-committees/eu-select/scrutiny-brexit-negotiations/joint-letter-eu-scrutiny.pdf [accessed 19 March 2019]
118 Letter from Rt Hon Dominic Raab MP, Secretary of State for Exiting the European Union, to Sir William Cash MP, Chair of the European Scrutiny Committee and Lord Boswell of Aynho, Chair of the European Union Committee (5 September 2018): https://www.parliament.uk/documents/lords-committees/eu-select/scrutiny%20work/dominic-raab-scrutiny-letter.pdf [accessed 7 March 2019]
119 Council Decision on the conclusion of the Agreement on the withdrawal of the United Kingdom of Great Britain of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, 2018/0427 (NLE)
120 European Union Committee, Brexit: parliamentary scrutiny (4th Report, Session 2016–17, HL Paper 50), Summary
121 Ibid.
122 Letter from Lord Boswell of Aynho, Chair of the European Union Committee, to Rt Hon Dominic Raab MP, Secretary of State for Exiting the European Union (23 October 2018): https://www.parliament.uk/documents/lords-committees/eu-select/scrutiny-brexit-negotiations/scrutiny-withdrawal-agreement-raab.pdf [accessed 19 March 2019]
123 HL Deb, 31 Oct 2018, cols 1359–1363
127 Department for International Trade, Processes for making free trade agreements after the United Kingdom has left the European Union, CP 63, February 2019: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/782176/command-paper-scrutiny-transparency-27012019.pdf [accessed 7 March 2019]. See further paras 177 and 183.
128 Letter from Rt Hon Stephen Barclay MP, Secretary of State for Exiting the European Union, to Lord Boswell of Aynho, 7 March 2019: https://www.parliament.uk/documents/lords-committees/eu-select/scrutiny-brexit-negotiations/eu-exit-letter-070319.pdf [accessed 19 March 2019]
130 Political Declaration (11 March 2019), para 128
131 Political Declaration (11 March 2019), paras 120–3
132 European Union Committee, Brexit: the Withdrawal Agreement and Political Declaration (24th Report, Session 2017–19, HL Paper 76), para 298
133 See paras 167 and 174.
134 COSAC, 30th Bi-annual report: Development in European Union Procedures and Practices relevant to Parliamentary Scrutiny (November 2018) available at: http://www.cosac.eu/60-austria-2018/lx-cosac-18-20-november-2018-vienna/ [accessed 14 March 2019]
135 See Scottish Parliament Culture, Tourism, Europe and External Affairs Committee, Official Report: http://www.parliament.scot/parliamentarybusiness/report.aspx?r=12004 [accessed 20 March 2019].
136 Letter from the National Assembly for Wales External Affairs and Additional Legislation Committee, (11 February 2019): https://www.parliament.uk/documents/lords-committees/eu-select/interinstitutional-relations-inquiry/welsh-external-affairs-response.pdf [accessed 19 March 2019]
137 European Union Committee, Brexit: devolution (4th Report, Session 2017–19, HL Paper 9), para 297
138 See for instance the statement published following the sixth meeting of the Forum on 17 January 2019: Interparliamentary Forum on Brexit, ‘6th Meeting 17 January 2019’ (17 January 2019): https://www.parliament.uk/documents/lords-committees/eu-select/interparliamentary-forum-on-brexit/ipd-sixth-statement-jan.pdf [accessed 7 March 2019].
139 Letter from the National Assembly for Wales External Affairs and Additional Legislation Committee to Lord Boswell of Aynho (11 February 2019): https://www.parliament.uk/documents/lords-committees/eu-select/interinstitutional-relations-inquiry/welsh-external-affairs-response.pdf [accessed 19 March 2019] and letter from the National Assembly for Wales Constitutional and Legislative Affairs Committee to Lord Boswell of Aynho (11 February 2019): https://www.parliament.uk/documents/lords-committees/eu-select/interinstitutional-relations-inquiry/mick-antoniw-response.pdf [accessed 19 March 2019]
140 Liaison Committee, ‘Select Committee review in the House of Lords launched’ (18 January 2019): https://www.parliament.uk/business/committees/committees-a-z/lords-select/liaison-committee/news-parliament-2017/lords-committee-review/ [accessed 7 March 2019]
141 Written evidence submitted to the Liaison Committee from European Union Committee (RIS0012). We note that in its own written evidence, the Hansard Society reached similar conclusions. See written evidence submitted to the Liaison Committee from the Hansard Society (RIS0048).
142 Department for International Trade, Processes for making free trade agreements after the United Kingdom has left the European Union, CP 63, February 2019: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/782176/command-paper-scrutiny-transparency-27012019.pdf [accessed 7 March 2019]