The Protocol on Ireland/Northern Ireland Contents

Chapter 14: Parliamentary scrutiny and inter-parliamentary engagement

Introduction

304.The Northern Ireland Assembly has an explicit role through Article 18 in expressing democratic consent for the continuation of Articles 5–10 of the Protocol. However, given the UK Government’s overarching responsibility for the Protocol under international law, it is incumbent not only on the Assembly but also on the UK Parliament to scrutinise its implementation and operation.

305.Professor David Phinnemore said that there were “clear gaps” in terms of scrutiny of the Protocol, and “we need appropriate institutions in place to ensure that there is effective oversight and scrutiny of what is going on”.247

306.We have already reflected on the mechanisms for scrutiny of domestic regulations necessary to implement the Protocol.248 There is also a particular requirement for parliamentary scrutiny of planned and adopted EU legislation within the scope of the Protocol;249 and the work of the Withdrawal Agreement Joint Committee, the Ireland/Northern Ireland Specialised Committee and the Joint Consultative Working Group.250

Scrutiny of planned and adopted EU legislation within the scope of the Protocol

307.During the years of the UK’s membership of the EU, this Committee’s primary function was to scrutinise draft EU legislation on behalf of the House. The European Scrutiny Committee performed an equivalent function in the House of Commons. Both Committees have stated that they will continue to exercise this scrutiny function for the duration of the transition period, given that EU law agreed during the transition period will continue to apply to the UK, and the EU Committee’s terms of reference were recently amended to reflect this. The Government has committed to continuing to provide Explanatory Memoranda on draft EU legislation during the transition period, and to setting out within them whether the draft legislation in question falls within the scope of the Protocol. Given the application of significant elements of EU law to Northern Ireland after the end of the transition period, there is also a question concerning the continued provision of information to Parliament about planned and adopted EU law within the scope of the Protocol.

308.A significant body of EU law will continue to apply on a dynamic basis to Northern Ireland after the end of the transition period. Parliament will thus need to reflect on the mechanisms for scrutiny of draft EU legislation within the scope of the Protocol, and in particular on the balance between scrutiny in Westminster, the Northern Ireland Assembly, or both. Given the provisions of Article 13(4), this scrutiny should cover any new draft legislation that falls within the scope of the Protocol, whether or not it amends or replaces EU law listed in the Annexes to the Protocol.

309.The Government in turn has an obligation to facilitate such scrutiny. We therefore call on the Government to establish formal mechanisms for prompt communication to Parliament of information received from the EU in the Joint Committee and Joint Consultative Working Group on planned or adopted EU legislation falling within the scope of the Protocol.

Scrutiny of the Joint Committee, Ireland/Northern Ireland Specialised Committee and Joint Consultative Working Group

310.The mechanisms for ensuring the transparency of the Joint Committee, the Ireland/Northern Ireland Specialised Committee and the Joint Consultative Working Group are limited. The Withdrawal Agreement states that meetings of the Joint Committee are confidential, unless otherwise decided by the co-chairs. The EU and UK will each be able to decide (individually) whether to publish the decisions and recommendations adopted by the Joint Committee, but there is no obligation to do so. Minutes will not be made publicly available, although the co-chairs can opt to make summaries public.251

311.In our March 2019 report Beyond Brexit: how to win friends and influence people, we expressed concern both over “the lack of transparency in the work of the … Joint Committee”, and over the lack of any provision for Parliament to oversee or influence its work. We called for meeting schedules, agendas, decisions and recommendations of the Joint Committee to be made available to Parliament in timely fashion.252

312.The Government’s intention is to publish a Written Ministerial Statement ahead of each meeting of the Joint Committee, including the agenda, and also afterwards, outlining the decisions taken. Mr Gove published a Written Ministerial Statement before the first meeting of the Joint Committee on 30 March,253 and wrote to Committee Chairs in both Houses after the meeting in lieu of a Written Ministerial Statement, as Parliament had adjourned for the Easter recess.254

313.In a letter to a number of Chairs of House of Commons Committees on 25 March, Mr Gove stated that “the work of the Specialised Committees will be undertaken by officials … Specialised Committees cannot take decisions, so it is appropriate for Parliamentary scrutiny to focus on the [Withdrawal Agreement Joint Committee].” As a result, the agenda of the first meeting of the Ireland/Northern Ireland Specialised Committee was not notified to Parliament, but instead appeared on social media.255 However, the Government did publish a statement after the first meeting.256 Mr Gove’s position appeared to have softened by 5 May, when he told us that “we will do everything we can to update” Parliament on the work of the Specialised Committee, “and allow it to interrogate the approach that we and the EU are taking”.257

314.Neither the Government nor the EU have indicated whether, and how, they will provide information about the work of the Joint Consultative Working Group.

315.The mechanisms to ensure transparency of the Withdrawal Agreement Joint Committee, the Ireland/Northern Ireland Specialised Committee and the Joint Consultative Working Group are extremely limited, and the Government’s commitments thus far do not go far enough. In particular, we repeat our call for meeting schedules, agendas, decisions and recommendations of the Ireland/Northern Ireland Specialised Committee and the Joint Consultative Working Group to be published. We also call for full and informative Written Ministerial Statements at appropriate points.

316.The provision of such information on the work of these bodies is not only necessary to provide transparency and accountability, but also to provide Parliament, the Northern Ireland Assembly, and other stakeholders in Northern Ireland, with a means to engage with their work.

Inter-parliamentary engagement

317.Westminster and the Northern Ireland Assembly have a common interest in such scrutiny. Dr Viviane Gravey noted that the Northern Ireland Assembly had a specific role to play in: scrutinising the contribution of Northern Ireland Executive Ministers and officials to the development of UK positions and to meetings of the Joint and Specialised Committees; scrutinising the Joint and Specialised Committees themselves; and engaging with the institutions established under the Belfast/Good Friday Agreement as regards their own input to the Protocol’s implementation.258 The New Decade, New Approach deal mandates the Executive to undertake an assessment of the impact of Brexit on the power-sharing institutions and on North-South and East-West relationships, and states that this work should be scrutinised by an Assembly Committee.259

318.Colin Murray called for the creation of mechanisms for coordinated scrutiny, between Westminster and the Northern Ireland Assembly, for instance the formation of joint committees.260 Dr Viviane Gravey also suggested that Westminster and Northern Ireland Assembly Committees could take joint evidence on both reserved and devolved matters.261 Professor Phinnemore suggested that parliamentary bodies should be brought together on a North-South and East-West basis to scrutinise the Protocol and hear evidence from UK and Irish Ministers as appropriate.262

319.During our visit to Belfast in February 2020 we met the Chairpersons and Deputy Chairpersons from the Assembly’s Committee for the Executive Office (which has overall responsibility for scrutinising Protocol-related issues) and from a number of the Assembly’s subject-specific committees to whose remits the Protocol is particularly relevant, representing parties across the political spectrum. We were able at that meeting to discuss the potential avenues for cooperation between our Committees in relation to the Protocol.

320.We also note that Committees in the House of Commons, including the Northern Ireland Affairs Committee, are conducting inquiries into the Protocol.263 Committees in the Scottish and Welsh Parliaments are also investigating the implications of the Protocol for Scotland and Wales.264 The Inter-parliamentary Forum on Brexit, comprising the Chairs and Conveners of Committees scrutinising Brexit-related issues in the legislatures of the UK, has met quarterly since October 2017, and has provided an invaluable opportunity for inter-parliamentary exchange.

321.On the EU side, the Irish Oireachtas and the European Parliament will have a particular interest in scrutinising the Protocol. Since 2016 we have enhanced our already intensive engagement with our equivalent committees in the Oireachtas, including through reciprocal visits to Dublin and London. This engagement has built on the important work of the British-Irish Parliamentary Assembly in facilitating interparliamentary engagement between Westminster, the Oireachtas and the devolved legislatures.

322.At the time of writing, the structure for future engagement between the UK and European Parliaments remains unclear. The EU has proposed a ‘Parliamentary Partnership Assembly’, which would review the implementation of the future relationship agreement, and “make recommendations” to the overarching governance body established under that Agreement. It can be assumed that, while any such Assembly would be established under the future relationship agreement, not the Protocol, it would be used by parliamentarians of both sides to discuss issues concerning Northern Ireland. The Government has yet to respond to the EU proposal.

323.In view of the UK Government’s overall legal responsibility, the UK Parliament has a vital role to play in scrutinising the implementation and operation of the Protocol, and in holding the Government to account for its actions. It is in that spirit that we make this report.

324.Given our mutual interest in effective scrutiny, there is also a need and an opportunity for enhanced inter-parliamentary engagement between Westminster and the Northern Ireland Assembly. We were pleased in the context of our visit to Belfast in February 2020 to meet the Chairpersons and Deputy Chairpersons of various Committees of the Northern Ireland Assembly, representing parties from across the political spectrum in Northern Ireland. We look forward to strengthening this dialogue and cooperation in the months ahead.

325.Scrutiny of the Protocol is also a high priority for Committees in the House of Commons, and, given the intensity of their trade, transport and cultural ties with Ireland and Northern Ireland, for the Scottish and Welsh Parliaments. We will seek to maintain our engagement with them, including through the work of the Inter-parliamentary Forum on Brexit.

326.On the EU side, the Irish Oireachtas and the European Parliament also have particular interests in scrutinising the Protocol’s operation. We will seek to intensify UK-Irish inter-parliamentary dialogue, including through our bilateral engagement with equivalent Committees in the Oireachtas, and building on the work of the British-Irish Parliamentary Assembly.

327.This Committee has consistently endorsed close and structured dialogue between the UK and European Parliaments. We note the EU’s proposal for a ‘Parliamentary Partnership Assembly’, and while we have not within the terms of this inquiry considered the detail of that proposal, we welcome the principle underlying it. We shall return to this issue in coming months.


248 See para 237.

249 See paras 225–232.

250 See Chapter 12.

251 Withdrawal Agreement (19 October 2019), Annex VIII. See European Union Committee, Brexit: the revised Withdrawal Agreement and Political Declaration (1st Report, Session 2019–21, HL Paper 4), para 26. Dr Sylvia de Mars stated that it “appears that the Commission, via [UK Task Force], appears to wish to treat the [Withdrawal Agreement] as any other international agreement concluded by the EU, which comes with information obligations to [the European Parliament] and the Council both. What is missing is the detail of a) what body in the [European Parliament] and Council is assuming responsibility for the relevant information, and b) if the information that the Commission will extend actually satisfies what the [European Parliament] wishes to see for the purposes of ‘scrutiny’, per its Resolution of January 2020.” See supplementary written evidence from Dr Sylvia de Mars (ZPI0001).

252 European Union Committee, Beyond Brexit: how to win friends and influence people (35th Report, Session 2017–19, HL Paper 322), paras 122–125

253 HC Deb, 25 March 2020, col HCWS190

254 Letter dated 5 April 2020 from the Rt Hon. Michael Gove MP, Chancellor of the Duchy of Lancaster, to Lord Kinnoull, Chair of the European Union Committee: https://committees.parliament.uk/publications/691/documents/3409/default/ [accessed 19 May 2020]

255 @JenniferMerode, Tweet on 16 April 2020: https://twitter.com/JenniferMerode/status/1250707746367905793 [accessed 27 May 2020]

256 Cabinet Office, Ireland/Northern Ireland Specialised Committee 30 April 2020: UK post-meeting statement (30 April 2020): https://www.gov.uk/government/news/irelandnorthern-ireland-specialised-committee-30-april-2020-uk-post-meeting-statement.[accessed [19 May 2020] See also European Commission, Statement following the first meeting of the Specialised Committee on the Protocol on Ireland/Northern Ireland, (30 April 2020): https://ec.europa.eu/commission/presscorner/detail/en/statement_20_787 [accessed 19 May 2020]

257 Oral evidence taken on 5 May 2020 (Session 2019–21), Q 11 (Rt Hon. Michael Gove MP)

263 Northern Ireland Affairs Committee, ‘Northern Ireland Affairs Committee to scrutinise “unfettered access”’ (5 March 2020): https://committees.parliament.uk/committee/120/northern-ireland-affairs-committee/news/145377/northern-ireland-affairs-committee-to-scrutinise-unfettered-access/ [accessed 19 May 2020]

264 Oral evidence taken before the Culture, Tourism, Europe and External Affairs Committee, Scottish Parliament, 16 January 2020 (Aodhán Connolly, Professor David Phinnemore, Mairi Spowage): http://www.parliament.scot/parliamentarybusiness/report.aspx?r=12464&mode=pdf [accessed 22 May 2020] and External Affairs and Additional Legislation Committee, National Assembly for Wales, The Withdrawal Agreement: Implications for Wales (January 2020): https://senedd.wales/laid%20documents/cr-ld12971/cr-ld12971-e.pdf [accessed 22 May 2020]




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