Brexit presents parliament with daunting challenges but steps are being taken to help it meet them

Brexit presents parliament with daunting challenges, both politically and procedurally. In this post Arnold Ridout, Counsel for European Legislation at the House of Commons, highlights some of these and explains what steps are being taken to held ensure that parliament performs its role effectively. The post is adapted from a talk he gave at a Constitution Unit seminar on ‘Brexit at Westminster’, held on 13 March.

As Counsel for European Legislation in the House of Commons I can be called upon to assist the House or any of its select committees on EU law matters. I have a formal role with the European Scrutiny Committee and the Committee for Exiting the EU, both of which have standing orders explicitly providing for assistance to be given by Speaker’s Counsel. For this purpose I generally represent her.

Uncertainty

I do not know if it is fair to say that parliament as an institution was as ready for the referendum result as the government was. There was a good deal of uncertainty at that time as to the very basics, such as the Brexit process itself and even more as to what role parliament would play. In some ways that might be regarded as an advantage; by leaving a clear field on which parliament could put down its markers, and influence at an early stage the formulation of the process and the policy. On the other hand it created the risk of lack of focus or focus on the wrong issues. In particular, it was unclear what tools were available to parliament to exert its influence. This remains the case to a certain extent.

The government has now committed to putting ‘the final deal that is agreed between the UK and the EU to a vote in both Houses of Parliament’. This is important as having a final say on the outcome could give parliament a real handle on the negotiations. However, if the Article 50 notice is not revocable, or revoked, then the choice for parliament looks like ‘deal or no deal’. Five eminent lawyers disagree and have gone as far as suggesting not only that the Article 50 notice is revocable, but that a further act of parliament is required to either agree the deal or authorise the UK’s departure from the EU without any deal. If correct it means that parliament has a further, and unilateral, chance to decide whether the UK leaves the EU or not even after the Article 50 notice has been served.

The government has committed to ensuring ‘that the UK Parliament receives at least as much information as that received by members of the European Parliament.’ We do not yet know with certainty what that entails, and in particular whether it includes something similar to the arrangement in trade negotiations whereby the European Parliament receives ongoing explanations as to how its view has been put into effect during negotiations.

The role of the government 

Information is a key to effective scrutiny and vital information must come from the government itself. However, it is likely want to keep its cards closer to its chest than parliament would like, not wanting to give a public running commentary on the negotiations. Those of a more cynical disposition or avid followers of the European Scrutiny Committee (ESC) will not necessarily be encouraged by the Government’s track record on providing information for scrutiny of itself.

Whatever its inclination, the government faces a more understandable practical problem. Sir Ivan Rogers, in his evidence to the ESC indicated that day-to-day EU business had suffered under the strains of Brexit as early as the autumn of last year. That strain on government will only increase as negotiations get underway and information to parliament may well suffer as a result.

But it is not just a reluctance to provide information that impacts on parliament’s effectiveness, it is also the control the government exerts over parliamentary business. Again there is no room for complacency. The concession of having a vote in parliament on the deal looks like it was squeezed from the government.

There are also some disturbing precedents of the government not appearing to live up to its promises. A recent Commons Library Paper points to the government’s handling of the Comprehensive Economic and Trade Agreement with Canada. Worse, in my opinion, was the coalition government’s handling in 2014 of the UK opt-in to 30-odd EU JHA measures, including the European Arrest Warrant, on which it promised parliament a vote.

Co-ordination

Since the referendum, activity in parliament has proceeded apace, on the floor of the House, in Westminster Hall and in committees. Last month the Secretary of State calculated the number of inquiries undertaken or in train across both chambers as 36. My tally, based on the latest weekly guide to EU business produced by the National Parliament Office, is 27 Brexit related inquiries conducted by 19 different Commons committees. It is difficult to keep an exact track as it is very much a moving target. What can be said is that there is a wide range of inquiries, from energy and climate change to equalities legislation.

How co-ordinated is this work or indeed how co-ordinated should it be?

On the face of it there appears to be a significant amount of duplication both of subject matter and witnesses called. For example, Sir Ivan Rogers, giving evidence to the Committee for Exiting the EU, made frequent references to the earlier evidence he had given European Scrutiny Committee. However, I can see how some duplication may be a fair price for the benefit of a wider group of MPs hearing evidence first hand and for it to be considered by committees of different flavours and interests.

The Liaison Committee has the power, in its standing orders, to consider general matters relating to the work of select committees, which must include co-ordination.

Irrespective of that, my perception is that committees on the whole do take cognisance of the work of other committees both in the Commons and the Lords and are aware of the undesirability of unnecessary duplication. A good recent example is the Foreign Affairs Committee’s report on the implications of a ‘no deal’ outcome from Brexit negotiations.

I can also point to some examples of practical co-operation:

  • There have been several successful joint meetings of committees
  • The ESC has stepped up its use of its power to draw current Brussels documents to the attention of other select committees, having asked some Brexit related questions on them. A good example was a recent Commission paper on current EU data protection rules concerning third countries. The committee drew this important cross-cutting Brexit issue to the attention of three departmental select committees.

At the official level there is a lot of informal co-ordination, including the setting up of informal networks for specific subject areas which meet regularly and have a shared database resource.

The technicality of the subject matter

Effective scrutiny of Brexit requires parliament to get on top of some highly technical subject matter. For example, the inner workings of the WTO and the differences between the internal market, the single market and the customs union; terms which are not always used in the same way. And this is before we get to the thoroughly arcane matter of the financial divorce settlement. It is, of course, possible for committees to take expert evidence and employ specialist advisers, but this involves a good deal of time and effort to be absorbed and real difficulties arise if the technical experts do not agree on the technicalities.

Resources

To meet these challenges I simply note that the resources have been increased. It will not be clear whether this will be enough until Brexit gets into full swing.  Nevertheless, there are more committees and more technical expertise has been recruited to support them, including, I am happy to report, increased lawyer resources.

This post is adapted from a talk Arnold Ridout gave at a Constitution Unit seminar on ‘Brexit at Westminster’, held on 13 March. A full report on the seminar, including the speeches from Hilary Benn and Baroness (Kishwer) Falkner, will be published on this blog later this week.

About the author

Arnold Ridout was a lawyer in government from 1983 to 2008, dealing mostly with EU law matters; including spells at HMRC, the Attorney General’s Office, the Cabinet Office and a period of secondment to the European Commission. Since 2008 he has been an EU law adviser first in the House of Lords and latterly in the House of Commons.

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