Parliamentary scrutiny of the Brexit process

The House of Lords European Union Committee has produced a report that is for information only about the necessary parliamentary scrutiny of the forthcoming Brexit process. In Scrutinising Brexit: the role of Parliament they refer back to their previous report, The Process of Withdrawing from the European Union, in which the committee had made two very important points. Firstly, the withdrawal negotiations should be conducted in parallel with the negotiations on the future relationship between the UK and the EU (once we are out, that phrase will become accurate) and, secondly, Parliament must be able to scrutinize every stage of the proceedings whether through Ministerial statements, debates or committee enquiries. The latest report, published on July 22 is the first of the reports dedicated to that task. It is for information only but there are several important proposals.

We emphasise that the substance of what is under discussion, rather than the formal stage in the withdrawal process, should be reflected in an appropriate level of parliamentary scrutiny. Effective scrutiny, if it is to achieve the objectives we have described, will be essential at all stages, including:

during informal discussions prior to notification under Article 50, should they take place;

during formal withdrawal negotiations conducted in accordance with Article 50; and

during any negotiations on a new relationship, whether these take place before or after the completion of UK withdrawal.

At the same time

We acknowledge that certain elements of the forthcoming negotiations, particularly those relating to trade, may have to be conducted confidentially. We would expect parliamentary scrutiny of the negotiations to strike an appropriate balance between transparency and confidentiality, while achieving the overarching objective of holding the Government effectively to account.

There will have to be some flexibility and some discretion and to that end the report suggests that scrutiny through committee enquiries and reports may well be the best way forward, though ministerial statements and debates will be essential. Committees are more flexible and more used to separating matters, which are necessarily confidential from those that the government simply wants to keep quiet.

The House of Commons departmental Select Committees will probably go through some rearrangements in the near future to allow for the new, vitally important Department for Exiting the European Union and for scrutinizing the process.

We are also aware of suggestions that a Joint Committee might be established to scrutinise the withdrawal negotiations, though we do not believe that such a Joint Committee is necessary. In committee scrutiny, as in the scrutiny of primary legislation, there is a distinct role for the House of Lords as a revising chamber. The House of Lords could bring significant added value, not only through the expertise of many of its Members, but as a result of its long tradition of politically impartial, thoughtful committee scrutiny.

This is eminently sensible and indicates quite clearly the difference between the two Chambers, their separate roles and their different approach.

We believe that the House of Lords can best contribute to effective parliamentary oversight of the forthcoming negotiations by charging the European Union Committee with explicit responsibility for scrutinising the negotiations. This will require revised terms of reference for the European Union Committee, possibly underpinned by a new scrutiny reserve resolution. We look forward to engaging with the Leader of the House and with domestic committees in developing more detailed proposals in coming weeks.

Withdrawal from the EU is arguably the most complex, demanding and important administrative and diplomatic task that the Government has undertaken since the Second World War. Parliament, if it is to undertake its scrutiny role effectively, will need additional resources that are proportionate to the scale of the challenge. We invite the domestic committees of the House to address the question of resourcing as a matter of urgency.

In the meantime, the Committee proposes to carry on with its work of scrutinizing EU documents though with attention to the withdrawal process and to produce a number of short reports on the various subjects that will be negotiated on. These are promised for the near future, even before the actual negotiations begin.