Summary of conclusions and recommendations
Governance of the Withdrawal Agreement and Political Declaration
1.In our report on Brexit: the Withdrawal Agreement and Political Declaration we expressed concern about the sudden removal of the UK’s institutional privileges during the transition period, in particular given that all EU law will apply to the UK during this period. These changes mean that the UK will inevitably have less influence over the EU institutions and their deliberations during the transition period. Nevertheless, it is incumbent on the Government to take advantage of those limited opportunities that remain to seek to maximise the UK’s influence with the EU institutions. (Paragraph 12)
2.The new governance mechanisms envisaged under the Protocol on Ireland/Northern Ireland would mark a significant development in the inter-institutional structure governing relations between Northern Ireland and Ireland. These structures are among the most well-defined of the inter-institutional mechanisms set out in the Withdrawal Agreement and Political Declaration. They will also be supported by particularly intensive dialogue, as shown by the fact that the Joint Consultative Working Group, itself an innovation, will meet monthly. (Paragraph 28)
3.There is a possibility within these mechanisms to give Northern Ireland institutions and stakeholders a voice in the development of UK-EU relations, in particular in the context of bilateral relations with Ireland. We welcome the Government’s commitment to ensure that the Northern Ireland Executive will have a role in relation to the Specialised Committee, Joint Consultative Working Group and relevant discussions in the Joint Committee, and urge it to go further and consider how large and small businesses, employee representatives and civic groups can contribute to the work of the new structures, and in particular the work of the Joint Consultative Working Group. (Paragraph 29)
4.In our 2017 report on Brexit: devolution we highlighted the “delicate equilibrium” established by the Belfast/Good Friday Agreement, and urged all sides not to weaken this equilibrium or the confidence of both unionist and nationalist communities in the political process. The history of the peace process demonstrates that new institutions will only succeed if both communities in Northern Ireland support and are willing to participate in them. In that context, we note with concern the perceptions of a lack of democratic accountability within the new inter-institutional structures envisaged under the Protocol on Ireland/Northern Ireland. (Paragraph 30)
5.We note the Government’s assurances set out in its January 2019 paper on UK Government commitments to Northern Ireland and its integral place in the United Kingdom, and urge all sides to engage in continued dialogue to ensure that the new institutions secure the democratic legitimacy that they will need if they are to function effectively. Their interaction with the institutional framework of the 1998 Agreement therefore requires careful examination and continuous review. This in turn underlines the urgent need to re-establish the power-sharing institutions of the Northern Ireland Assembly and Executive. (Paragraph 31)
6.We welcome the proposal to establish a Specialised Committee on the Sovereign Base Areas in Cyprus, and note that its success both depends on, and can help ensure, the continued maintenance of effective UK-Cypriot bilateral relations and communication. (Paragraph 34)
7.We call on the UK Government to confirm that the Government of Gibraltar will fully participate in (and where appropriate lead) the work of the Specialised Committee on Gibraltar and associated coordinating committees, and to explain the means by which it will do so. (Paragraph 38)
8.We await further details on the structure and governance of the negotiations on the future relationship, although we note that the Political Declaration proposes specific strands on an economic partnership, a security partnership, institutional and other horizontal arrangements. We also note the commitment to a specific negotiating track on alternative arrangements to the backstop solution in the Protocol on Ireland/Northern Ireland, and welcome the commitment by both sides within this track to engage with private sector experts, businesses, trade unions, the institutions established under the Belfast/Good Friday Agreement, and parliamentarians. (Paragraph 47)
9.We welcome the commitment to a high-level conference at least every six months to review the progress of negotiations on the future relationship. We call on the Government to confirm who will lead the UK delegation. We note that the EU’s Chief Brexit Negotiator, Michel Barnier, will lead the Commission’s future relationship negotiating team. In that context, we urge the Government urgently to seek clarification from the EU on who will represent it in this high-level conference, and who will have overall responsibility for the maintenance of future UK-EU relations. (Paragraph 48)
10.We welcome the proposals for intergovernmental dialogue at summit, ministerial, official and technical level as part of the governance of the future UK-EU relationship. In particular, we welcome the acknowledgement of the potential for evolution of the relationship, and for thematic dialogue in relation to its specific strands. The closer the dialogue, the more likely it is to fulfil the aspiration of both sides for “an ambitious, broad, deep and flexible partnership”. (Paragraph 50)
11.The effectiveness of the Joint Committees envisaged under the Withdrawal Agreement and Political Declaration, and the bodies that will report to them, will depend on:
- Frequency of meetings: the minimum requirement of annual meetings will be insufficient to give the Joint Committees (and Specialised Committees) any significant role in building effective bilateral relationships. The EEA/EU Joint Committee, in contrast, meets around eight times a year.
- Remit: the Joint Committee on the Withdrawal Agreement has an ostensibly narrow remit, yet it has the potential to lay strong foundations for governance of the future relationship, including the operation of the Joint Committee on the future relationship.
- Senior representation: the Joint Committee’s impact will be in direct correlation to the political seniority of the co-chairs and other participants. We urge the Government to consider and clarify which senior ministerial postholder will be the lead UK representative in the Joint Committee. To ensure an effective balance, a representative of equivalent stature needs to represent the EU. The same principle, by extension, will apply to the bodies that report to the Joint Committee: senior representation will be essential to forming effective bilateral relationships. There will also have to be effective interaction, both at ministerial and official level, between meetings. We therefore welcome the provision for decisions to be made in writing between meetings, which should help to streamline the work of the Joint Committee.
- Commitment to dialogue: a Joint Committee (or Specialised/Sub-Committee) that simply meets briefly and formally or acts as a rubber stamp is unlikely to help develop positive bilateral working relationships. There needs to be a mutual commitment to use the Joint Committee (and Specialised Committees) as a forum in which to discuss topical issues or concerns, and to strengthen bilateral contacts.
- Powers: it is proposed that the Joint Committee on the Withdrawal Agreement should have significant powers, to make necessary amendments to the Withdrawal Agreement, to engage in dispute resolution, to approve an extension to the transition period and to review the Protocol on Ireland/Northern Ireland. The Joint Committee on the future relationship could have similarly significant powers, as part of its responsibility for managing and supervising the implementation and operation of the future relationship, facilitating the resolution of disputes and making recommendations concerning the evolution of the future relationship.
- Accountability: the more powerful and effective the Joint Committee is, the more important effective scrutiny and transparency will be. (Paragraph 57)
Other inter-institutional mechanisms
12.The UK has made a significant, and in many areas leading, contribution to the work of EU agencies during the period of its EU membership. This contribution will necessarily be curtailed following Brexit. While we welcome the commitments to future UK participation in and cooperation with certain EU agencies, the terms of such engagement are ill-defined. It is questionable whether the extent of UK participation that is envisaged will be sufficient to ensure that UK interests are represented and fully taken into account. (Paragraph 63)
13.The Withdrawal Agreement and Political Declaration set out a complex, yet uneven and imprecise, picture of potential future UK-EU cooperation across a range of policy areas. The commitments and proposals set out vary considerably in terms of the level of cooperation; the extent to which commitments go beyond the rights and obligations of existing third countries; the extent to which either side is obliged to cooperate; the likely financial obligations; the criteria for deciding whether to proceed with potential cooperation; and the actors on either side who will be engaged. While we welcome the proposed mechanisms for cooperation as far as they go, given the lack of detail it is highly uncertain if they will be sufficient to serve the UK’s national interest. (Paragraph 71)
14.We welcome the commitment to continued UK-EU cooperation in international fora, including the G7, the G20, NATO and the United Nations, in relation to climate change, sustainable development, cross-border pollution, public health and consumer protection, financial stability, the fight against trade protectionism, and the promotion of international peace and security. The UK will continue to make a strong contribution to international dialogue in these arenas. (Paragraph 72)
15.The UK has, through the UK Representation to the EU (UKRep), sought to maximise the UK’s influence over the EU institutions and Member States. After Brexit UKRep will need to adjust to no longer being in the room, and losing the benefits of automatic access to information and the formal and informal dialogue with the EU institutions and Member States that membership brings. UKRep’s new status as a third country mission will present a different set of diplomatic challenges, in finding new ways to exert UK influence, gain access to information, and build relationships. The experience of other third countries suggests that the UK Government will, paradoxically, need to enhance its diplomatic presence in Brussels post-Brexit, and ensure that its officials are equipped with a different set of skills. We welcome the steps already taken to increase UKRep’s staffing, to train its officials, and to adapt its structure and focus: this must remain a top priority in coming months, and the Government must ensure that UKRep has sufficient staff and financial resources to undertake this crucial work. (Paragraph 79)
16.The ability to exert influence post-Brexit will not be limited to the UK Government. There is a wide range of expertise and participation in EU networks, thanks to the numerous Brussels-based offices and organisations representing various UK interests. All have a part to play in maintaining UK influence and access to information. (Paragraph 84)
17.We note in particular the important work undertaken by the offices of the devolved administrations in Brussels, and stress the role that they can play in contributing to and complementing the work of UKRep, including through effective engagement and exchange between officials. (Paragraph 85)
18.Brussels-based UK offices and organisations are active and influential members of a wide range of European sectoral networks. It is vital that they should be able to maintain membership of and cooperation with such networks post-Brexit. We urge the Government to work with sectoral representatives to ensure that such cooperation can continue after Brexit, in particular in those cases where their participation in these networks is formally dependent on UK membership of the EU. (Paragraph 86)
19.We welcome the establishment of an informal network of Brussels-based UK offices and organisations as a means of sharing expertise and seeking to coordinate the work of UK (or UK-linked) Brussels-based organisations. We look forward to seeing how the work of this group develops. (Paragraph 87)
20.We acknowledge that the UK Government should assume overall responsibility for formal inter-institutional dialogue with the EU institutions as set out under the Withdrawal Agreement. Nevertheless, there remains a case for the devolved administrations to be ‘in the room’, if only in an observer capacity, whenever their interests (as well as their competences) are engaged, or when their technical expertise could be brought to bear. We urge the Government, in dialogue with the devolved administrations, to give careful thought to how this might be facilitated. We also stress the importance of effective communication and exchange between UK and devolved administration officials. (Paragraph 92)
21.We welcome the Prime Minister’s commitment to enhancing the role of the devolved administrations in the negotiations on the future relationship. But actions speak louder than words. The Government needs to explain what it means by an “enhanced role”, and then implement this commitment, both in the context of the negotiations on the future relationship and in the oversight of the relationship itself. At the very least, this should involve a role for the devolved administrations in the dialogue at “summit, ministerial and technical level” envisaged in the Political Declaration, including the proposed Joint Committee on the future relationship. The devolved administrations need to reciprocate by playing a constructive role in the negotiations in the interests both of their own nations and regions, and of the UK as a whole. (Paragraph 96)
22.The Government must also ensure that it continues to take into account and represent the interests of Gibraltar, the other Overseas Territories and the Crown Dependencies in relation to the negotiations on the future UK-EU relationship. (Paragraph 97)
23.We welcome the Foreign and Commonwealth Office’s emphasis on revitalising bilateral links with EU Member States, and the increased resourcing of diplomatic missions across Member State capitals. Effective means for channelling information and knowledge between diplomatic missions and Whitehall will be equally important in years to come. (Paragraph 101)
24.In our December 2016 report on Brexit: UK-Irish relations, we concluded that closer UK-Irish relations were too important to be put at risk by Brexit. We therefore welcome the commitment of both the UK and Irish Governments to developing that relationship post-Brexit, and to considering proposals for regular ministerial and official-level exchanges, including regular inter-governmental meetings. We invite the Government to provide an update on the form this dialogue might take. (Paragraph 104)
25.Although the UK-Ireland bilateral relationship is uniquely close, there could be merit in applying aspects of this model to other key bilateral relationships with EU Member States, in particular those with whom the UK shares close geographical, economic, societal and security links. We urge the Government to engage with remaining EU Member States to seek to establish mechanisms for regular bilateral inter-governmental dialogue at both ministerial and official level. (Paragraph 105)
Inter-parliamentary relations and the role of Parliament
26.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. (Paragraph 113)
27.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. (Paragraph 114)
28.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. (Paragraph 115)
29.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. (Paragraph 122)
30.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”. (Paragraph 123)
31.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. (Paragraph 124)
32.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. (Paragraph 125)
33.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. (Paragraph 137)
34.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. (Paragraph 138)
35.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. (Paragraph 140)
36.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. (Paragraph 142)
37.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. (Paragraph 151)
38.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. (Paragraph 153)
39.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. (Paragraph 159)
40.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. (Paragraph 163)
41.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. (Paragraph 173)
42.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. (Paragraph 174)
43.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. (Paragraph 182)
44.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. (Paragraph 183)
45.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. (Paragraph 184)
46.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. (Paragraph 185)
47.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. (Paragraph 186)
48.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. (Paragraph 187)