Chapter 2: European Affairs scrutiny
Background
17.The EU Committee structure, which since the 1970s has involved a Select Committee and up to seven sub-committees (more recently six), was designed to undertake three core tasks:
(i)Scrutiny of EU documents, including policy proposals and draft legislation that would in due course apply in the United Kingdom, and on which UK Ministers, as members of the Council of the EU until 31 January 2020, had a vote. This scrutiny was supported by long-standing agreements with the Government, which deposited up to 900 documents annually, alongside Explanatory Memoranda, for consideration by the scrutiny committees of both Houses.
(ii)Thematic inquiries into policy areas with an EU dimension. Although the focus of EUC inquiry work since 2016 has been almost entirely on Brexit, it is worth recalling that in the 12 months leading up to the referendum the committee published substantial reports on issues as diverse as the resilience of the agricultural sector, regulation of online platforms, and the treatment of unaccompanied child migrants.
(iii)Development of interparliamentary dialogue within the EU. As well as attending formal interparliamentary conferences organised at EU level (up to 12 each year), the EUC has also actively developed close bilateral relationships with the European Parliament and with parliaments of other key Member States, such as France and Germany. These relationships have if anything intensified in the years since the referendum.
18.In March 2020 the EU Committee’s remit was updated, to reflect the reality both of the UK’s withdrawal from the EU on 31 January, and of the continuing negotiations on the UK–EU relationship. The second core task (inquiry into matters relating to the EU), was given a more specific focus, reflecting the current state of the evolving UK–EU relationship:
“To consider other matters relating to the UK’s relationship with the European Union, including the implementation of the UK/ EU Withdrawal Agreement, and the Government’s conduct of negotiations on the United Kingdom’s future relationship with the European Union.”11
A possible future model
19.It seems likely that the UK–EU relationship will be fluid for years to come: a ‘thin’ agreement on trade in goods would leave many areas (e.g. mobility, security, regulatory cooperation) for further negotiation. If the agreement takes the form (in EU law) of an ‘Association Agreement’, there will be an over-arching institutional structure, with appropriate governance, within which those negotiations will be conducted.
20.Association Agreements also typically include provision for interparliamentary dialogue, and the EU has proposed the establishment of a ‘Parliamentary Partnership Assembly’. While the shape of such an Assembly remains uncertain, the Chancellor of the Duchy of Lancaster confirmed in August, in a letter to the Speaker of the House of Commons,12 that the Government supported the inclusion of provisions on interparliamentary dialogue in any agreement.
21.We also know that the Withdrawal Agreement, ratified in January 2020, will have long-lasting legal effects (e.g. the citizens’ rights and financial settlement provisions). More specifically, we know that under the Protocol on Ireland/Northern Ireland, which comes into effect on 1 January 2021 regardless of whether agreement is reached on the UK–EU future relationship, Northern Ireland will remain within the EU Single Market for at least four years following the end of the transition period; extension of this arrangement will be subject to a democratic consent mechanism. Large parts of EU internal market legislation, including new or amended laws, will thus continue to apply in Northern Ireland, even though UK Ministers will no longer have any role in negotiating or agreeing those laws.
22.This overview suggests that a ‘European Affairs Committee’ could have a substantial remit, including:
- Consideration of matters relating to the UK–EU relationship;
- Scrutiny of ongoing UK–EU negotiations (thereby maintaining the current division of responsibility, whereby the EU Committee is responsible for scrutinising UK–EU negotiations, and the International Agreements Sub-Committee scrutinises negotiations and agreements with all other countries and organisations);
- Scrutiny of the implementation of agreements between the UK and the EU, including the Withdrawal Agreement and any future relationship agreement concluded before the end of 2020;
- Scrutiny of the operation of the Protocol on Ireland/Northern Ireland, and of new EU laws applying in Northern Ireland.
23.We recommend the appointment of a European Affairs Committee, with effect from April 2021.
A sub-committee for the new European Affairs Committee
24.The new European Affairs Committee is likely to have a very large remit, at least in the early years. We thus suggest that this Committee should have a sub-committee. The element of the remit that is likely to require a stand-alone sub-committee is scrutiny of the Protocol on Ireland/Northern Ireland. It is worth noting that since the 2016 referendum scrutiny of matters relating to Ireland and Northern Ireland has been a particularly demanding workstream for the EU Select Committee, taking up around half of the Committee’s time in the year since the Protocol itself was agreed. Because this work has been undertaken through an EU-directed lens, it has not cut across the more domestic-focused work of the Commons Northern Ireland Affairs Committee.
25.It is also significant that scrutiny of the Protocol is the only element of the proposed remit that would require continuing legislative scrutiny, and it makes sense to separate out this particular set of processes from the inter-linked strands of ‘big picture’ work that would fall to the parent Committee. The issues affecting Ireland and Northern Ireland also have a natural geopolitical limitation, albeit one that extends more widely than the remit of the Northern Ireland Affairs Committee.
26.There has been extensive internal discussion, involving officials of both Houses, regarding possible models for scrutiny. The Government has yet to engage in these discussions, given the continuing uncertainty over the future relationship negotiations, and its read-across to the implementation of the Withdrawal Agreement, including the Protocol. But at this early stage, it appears that a Protocol Sub-Committee would probably focus on the following broad areas:
(a)Document-based scrutiny of new or amended EU legislation within the scope of the Protocol. More than 300 EU directives or regulations will automatically continue to apply to Northern Ireland on a dynamic basis after the end of the transition period, and analysis by the Institute for Government suggests that an average of around 12 new legislative acts in areas covered by the Protocol, or amendments to existing acts, are likely each year.13 Such scrutiny would need to be coordinated with that of relevant committees of the Northern Ireland Assembly, given the overlap between reserved and devolved competences in this area.
(b)Scrutiny of the implications of relevant domestic UK legislation and policy for Northern Ireland. There is an inherent tension within the Protocol, between the continuing application of EU rules in Northern Ireland and the requirement that Northern Ireland should enjoy ‘unfettered access’ to the UK’s internal market. Domestic developments such as the development of common frameworks could have unpredictable consequences, and will need careful monitoring.
(c)Scrutiny of the Northern-Ireland related work of the governance bodies established under the UK–EU Withdrawal Agreement, including the Joint Committee, the Ireland-Northern Ireland Specialised Committee, and the Joint Consultative Working Group.
(d)Monitoring the Protocol’s political and socio-economic impact on Northern Ireland.
(e)Reviewing the ongoing impact of the Protocol (and of UK withdrawal from the EU more broadly) on the UK–Irish bilateral relationship.
(f)Developing interparliamentary dialogue in relation to the Protocol, including with the Northern Ireland Assembly, House of Commons, Irish Oireachtas and (where relevant to the Protocol) the Scottish Parliament, Welsh Parliament and the European Parliament.
27.We recommend that the new European Affairs Committee should be authorised to appoint a sub-committee on the Protocol on Ireland/Northern Ireland. The Sub-Committee should be appointed on a temporary basis, and the appointment should be reviewed in or before November 2022.
11 Procedure Committee, First Report (1st Report, Session 2019–21, HL Paper 29) para 23
12 Letter from Rt Hon Michael Gove MP, Chancellor of the Duchy of Lancaster, to Sir Lindsay Hoyle MP, Speaker of the House of Commons, ref interparliamentary relations between the UK Parliament and the European Parliament (14 August 2020): https://committees.parliament.uk/publications/2476/documents/24633/default/
13 Institute for Government, Implementing Brexit: The Northern Ireland protocol (May 2020): https://www.instituteforgovernment.org.uk/sites/default/files/publications/implementing-brexit-northern-ireland-protocol.pdf [accessed 8 December 2020]