On March 13 the Constitution Unit hosted a seminar on Brexit at Westminster, exploring the role parliament has played in the lead up to the triggering of Article 50 and that it might play in the forthcoming negotiations. The panel consisted of Hilary Benn, Chair of the House of Commons Exiting the EU Committee; Arnold Ridout, Counsel for European Legislation at the House of Commons; and Baroness (Kishwer) Falkner, Liberal Democrat peer and Chair of the Financial Affairs Sub-Committee of the House of Lords EU Committee. Ascher Nathan reports.
Introducing this seminar on Brexit at Westminster, Constitution Unit Director Meg Russell remarked on the perfect timing: the Article 50 Bill would have its final votes that evening. Despite earlier concerns that parliament would be shut out from any influence over Brexit it has played a central role in the lead up to the triggering of Article 50 through debates, questions, the work of select committees and, following the judgement in the Miller case, the passage of the Article 50 Bill. The next big piece of legislation will be the ‘Great Repeal Bill’. Thus, the answer to the question of whether parliament can play a meaningful role in Brexit should be considered as a resounding ‘yes’ – it has already begun to do so. And yet if the Miller case and subsequent events have been a reminder about the role parliament can play, questions still remain about exactly how it will influence debates going forward.
The three speakers each brought a different perspective. Hilary Benn, Labour MP for Leeds Central, has served as a cabinet and shadow cabinet minister and is now Chair of the House of Commons Exiting the EU Committee. Arnold Ridout is Counsel for European Legislation at the House of Commons, and legal adviser on EU matters to the Commons select committees. Baroness (Kishwer) Falkner, a Liberal Democrat peer, sits on the Lords EU Committee and chairs its Financial Affairs Sub-Committee.
Hilary Benn explained that the Exiting the EU Committee was a mixed group of Leavers and Remainers and thus his role as chair was to establish consensus and direct their work in a constructive manner. In what he described as the most complex trade negotiations since the end of World War II, with the Great Repeal Bill to be an ‘enormously daunting task for any government,’ Benn pledged that parliament would ‘not be a bystander’ and intended instead to be a key participant in the policy process. Fundamentally, he challenged the government claim that persistent parliamentary involvement in the negotiations would undermine ministers’ position and lead to bad deals, noting Nick Clegg’s comment that the government’s position implied that only dictatorships were in a position to make treaties.
For Benn, the complexity of Brexit was a great challenge. He talked at length of numerous examples of areas where exiting the EU would prove difficult: passporting for financial services; regulation of medicines (where pharmaceutical companies will seek approval in the largest markets first) resulting in UK patients accessing them later; the regulation of data handling between states. Whilst this is a huge challenge for government, it is equally difficult for the Brexit select committee to address in the limited time available, as well as challenging for the EU. Benn agreed with the government’s position in favouring parallel negotiations for the divorce settlement and the new framework because the eighteen-month window given by Michel Barnier, chief EU negotiator, is so tight. Benn thinks it will be ‘impossible’ to agree a comprehensive trade negotiation in the time available and so called for a transitional agreement to be drafted.
Finally, he discussed the Great Repeal Bill, and the nature of the detail that should be scrutinised. He called for openness by government on both the negotiations regarding transitional arrangements, and the divorce settlement itself (whilst anticipating that much of this information may be gleaned through the ‘leakiness’ of Brussels). He wanted to see a white paper on the Great Repeal Bill, and information on how subsequent legislation will be formulated: will it largely be secondary legislation, authorised by Henry VIII clauses? Benn was concerned by the fact that so far government had had to be ‘pushed and cajoled’ into understanding that parliament would not be bystander: ‘We are not a string, we are very attached to our democracy … and we intend to do our job.’
Arnold Ridout, a lawyer whose expertise lies in EU legislation, laid out five challenges for parliament: uncertainty, the role of government, committees, the technicality of the subject matter and resources.
Firstly, he acknowledged the uncertainty over the basics of both the process of Brexit and the role of parliament. This could be both a benefit, and a hindrance: uncertainty could enable parliament to lay down markers, but on the other hand MPs and peers may not fully know where their focus should be. Lawyers equally require certainty, as further legislation will be required after Article 50 has been served.
Secondly, he asked what the role of government would be. The key to effective scrutiny was information. The government want to keep its cards close to its chest, certainly closer than parliament would want. Indeed, the concession of a vote on the bill to trigger Article 50 was ‘squeezed out of the government.’
Thirdly, clarification over the role of committees was essential. There are currently 27 ongoing Brexit related inquiries over 19 different Commons committees, covering a range of broad areas, from energy and climate change to equality. Due to this wide-ranging committee interest, there has been a duplication of information and witnesses. This can be beneficial, (for example, the Foreign Affairs Committee has made frequent reference to the other committees in its reports); however, there needs to be strong practical coordination through the Liaison Committee and more informal networks with shared databases and resources.
Fourthly, the technicality of the subject matter is particularly hampering; areas such as the Customs Union, and arcane matters of financial divorce can be assisted via specialist advisers, but it takes considerable time to absorb such technical knowledge.
And finally, resources. These have increased, but have they increased enough? Ridout called for a greater recruitment of technical expertise.
Baroness (Kishwer) Falkner
Baroness Falkner prefaced her remarks by noting that she had rebelled on the Liberal Democrat amendment to the Article 50 Bill calling for a second referendum and planned to abstain when the amendment calling for a ‘meaningful vote’ at the end of the negotiations returned to the Lords that evening. She thus presented an atypical Lib Dem perspective. She did not support the ‘meaningful vote’ amendment because she felt that it would tie the Prime Minister’s hands and create constitutional difficulties. The Vienna Convention on Treaties required diplomatic negotiations to be entered into with bona fides (good intentions); having the Prime Minister refer back and forth to parliament would in her view undermine the UK’s bona fides.
Falkner is a member of the EU Select Committee in the Lords, which has been producing reports at breakneck speed, to disseminate as much information to the public as possible. The EU Select Committee itself holds 73 members. She chairs the Economic and Financial Affairs Sub-Committee, with an impressive range of expertise in its membership, including several economics professors, Nigel Lawson, former Chancellor of the Exchequer, and other senior figures from the Treasury and civil service. Whilst across all 73 members there may have been varying degrees of expertise, overall the committee has a great deal of ‘heft’. Falkner called for three things moving forward: firstly, regular access to negotiation documents in private (as the European Parliament will have); secondly, an extension of the remit of the EU Select Committee to cover the ‘Great Repeal Bill’ and its sons and daughters; and finally a suspension of the Lords’ strict rules about three-year rotation on select committees. If the rotation rule applies it could mean that expertise would be lost at a crucial stage part way through the Brexit negotiations.
Questions and answers
Many interesting points were made in the ensuing question and answer session. The incentives of the EU 27 were described as much more diverse than purely economic self-interest; reflecting the British experience in the referendum itself, where voters were motivated as much by issues such as sovereignty and immigration, as economic. One question regarding an ‘inequality of arms’ between government and parliamentary legal advice highlighted that while the Government Legal Service has 3000 lawyers, parliament has just 20, only four of whom advise on EU matters. Also, on the legal front, questions emerged about the irrevocability of Article 50: can the UK return to the status quo ante, legally speaking? The dominant view was that this question is irrelevant; even if legally revocable, politically notification under Article 50 may be irrevocable. This highlights the tension that constitutional matters find themselves in between the logic of the law and the realism of political expediency. A final question asked about the role of the public in the Brexit process. This proved to be a tricky question. One speaker suggested that the public can lobby their MPs, but beyond that they essentially have no role to play. This raises wider questions about future relations between constituents and parliamentarians: beyond Article 50 and negotiations, does the impact of Brexit lead us towards a more direct form of democracy?
About the panel
Hilary Benn is the Labour MP for Leeds Central and Chair of the House of Commons Exiting the EU Committee.
Arnold Ridout is Counsel for European Legislation at the House of Commons.
Baroness (Kishwer) Falkner is a Liberal Democrat peer and chair of the Financial Affairs Sub-Committee of the House of Lords EU Committee.
About the author
Ascher Nathan is a Research Volunteer at the Constitution Unit.