What role will parliament play in the Brexit negotiations and what does this show about the UK’s ever-changing constitution? On 15 September the Constitution Unit hosted Paul Evans and Christopher Johnson, two experienced clerks at the Commons and Lords respectively. Toby Shevlane reports.

Nothing in politics can be taken for granted in 2016, and perhaps our concept of democracy is no exception. It has always been the case that the democratic process requires compromises to be found between different law-makers, but have UK law-makers ever been forced to compromise so heavily with their electorate? Professor Bogdanor has recently suggested that the referendum introduced a new idea into the UK constitution: the sovereignty of the people. The suggestion is that the people have become a ‘third chamber’ of parliament, at least for constitutional issues. The constitutional division of labour is, therefore, in a state of flux, and it is worth pausing to ask: what role will these different chambers play in the Brexit process? This was the question that Paul Evans and Christopher Johnson sought to answer at a Constitution Unit seminar on 15 September.

Paul Evans

Paul Evans is currently Clerk of the Journals in the House of Commons, and will soon be the clerk in charge of the House’s select committees. He spoke expertly about the role that these committees could play in the Brexit process, especially one that is to be set up to scrutinise David Davis’ Department for Exiting the EU. A deal for such a committee has been agreed between the usual channels, which will involve a committee of 21 members with a Labour chair but a majority of Conservative members. Evans said that how this select committee will operate is yet to be decided. But he stressed the importance of collaboration and inclusiveness: it should form a collaborative relationship with the government and other committees, and the process of Brexit scrutiny should be inclusive of devolved governments and legislatures. Overall, Mr Evans also welcomed the recent high level of public interest in politics, and argued that parliament should find innovative ways of involving the public in the Brexit process as much as possible.

Christopher Johnson

Christopher Johnson is the Principal Clerk to the House of Lords EU Select Committee. He spoke first about the process that the negotiations could follow. Article 50, he said, is expected to be triggered in 2017. Then, formal negotiations will begin with the EU member states, who will be represented by the EU Commission. Mr Johnson explained that these negotiations will produce multiple treaties: a withdrawal treaty (dividing up assets, settling financial relationships, addressing EU research programmes, and deciding the ongoing rights of UK and EU citizens under EU law) as well as at least one treaty that sets out the new relationship between the EU and the UK. He envisaged one such treaty, agreed in preparation for the moment of withdrawal, covering areas where continuity would be important, such as security and fishing rights.

Mr Johnson stressed the breadth and complexity of the negotiations that will take place, and argued that no single committee would be able to scrutinise such a complex and cross-departmental series of negotiations. Mr Johnson also pointed out that the government will need to reinvent large swathes of policy currently covered by EU law, and warned that a legislative bottleneck could form in 2018/19. In response to questions from the audience, he gave his view that the current scrutiny reserve procedure would not be triggered by the negotiations, but noted that it would be open to the government to extend the scope of the current procedure.

The relationship between parliament and government: select committees

It was clear from both of these speakers that the government’s workload will continue to grow. On the other hand, at least currently, those sat in the Commons could be forgiven for feeling a little neglected. Evans pointed out that when the UK joined the European Community in the early 1970s there was a great deal of debate in the House of Commons chamber. This time around, the Brexit decision was taken directly by the voters, and now the government is keeping quiet about what it aims to achieve from the forthcoming negotiations. Further, as Johnson mentioned, the government does not even view parliamentary approval as necessary hurdle before the triggering of Article 50.

But these days, the Commons has a different channel through which to exert its power and expertise – one which has grown significantly since the 1970s. This is through the use of select committees, such as the anticipated Select Committee for Exiting the European Union. Committees like this, urged Evans, will have to be as nimble as possible. The two speakers agreed on this: there must be no pondering over reports, and the emphasis cannot be on accountability after the fact. Instead, to have maximum influence over the exit process, these committees must produce rapid and up-to-date guidance on how the government should proceed.

In order for this to be possible, the government cannot keep its lips so tightly sealed. In this regard, Mr Johnson drew attention to a commitment made to the Lords’ EU Select Committee by David Davis, that Westminster committees will be kept as in the loop as those in Brussels. This, said Johnson, is significant: the committees of the European Parliament are notoriously well-informed. On top of this, Evans would welcome the UK emulating another EU innovation: the EU has a body called ‘COSAC’ which allows the committees from the national parliaments of different member states to get together and discuss issues. An arrangement like this could allow collaboration between committees from the devolved legislatures and those at Westminster.

Opening up the process further

While the referendum allowed the UK public into politics like never before, the Commons and the Lords may have different roles to play when it comes to facilitating further public involvement. Johnson, while explaining the Lords’ EU Select Committee’s aversion to teaming up with committees from the Commons, spoke of concerns that any joint committee would become ‘mediatised’ (with MPs seeking headlines). Instead, he suggested that the best role for the Lords is in quietly offering detailed and high-quality scrutiny.

On the other hand, with respect to the work of the Commons’ select committees, Evans would like to see greater public access. At the moment, they are ‘structurally condescending’, taking evidence from the public rather than collaborating with it. Instead, said Evans, you could imagine some sort of ‘standing conference’ as a way of engaging the public and allowing them to hear the experts (‘those suspicious people’ he adds, tongue in cheek). To my mind, mechanisms like these – citizens’ assemblies included – could be a good way of bringing Bogdanor’s ‘third chamber’ to life. Because democracy, just like Brexit, can mean all sorts of things.

About the author

Toby Shevlane is a Research Volunteer at the Constitution Unit.