House of Lords Committee says Parliament must scrutinise Brexit

22 Jul 2016 | by Philip Woolfe

The European Union Committee of the House of Lords has today published a report on the role of Parliament in scrutinising Brexit. The report also comments interestingly on the shape and timing of Article 50 negotiations on Britain’s exit from the EU and negotiations on Britain’s future relationship with Europe. Most importantly it gives some insight into how those negotiations could play out domestically.

As regards Parliamentary scrutiny, the Committee considers that Parliament’s role in the forthcoming negotiations on withdrawal from the EU will be critical to their success: ratification of any treaties arising out of the negotiations will require parliamentary approval, while national legislation giving effect to the withdrawal and new relationship will need to be enacted by both Houses. It also emphasises Parliament’s duty to carry out such scrutiny any to leave an “audit trail” for future generations. The Committee believes that such scrutiny is necessary at all stages of the process, including during any informal discussions which precede the Article 50 notification, as well as during the Article 50 process and during any subsequent negotiations on a new trading relationship.

The Committee does not comment on the legal challenges that have been brought concerning Parliament’s role in Brexit (as to which see here) and does not state whether a Parliamentary vote is necessary to trigger Article 50. However, it does state that Parliament will have to approve the ratification of the treaties that emerge from the negotiations under Part 2 of the Constitutional Reform and Governance Act 2010.

The report’s comments on the form of the scrutiny are interesting, as they throw into sharp relief the fact that the UK Government will not simply be conducting Article 50 negotiations with the Commission on the basis of its own agenda: rather the agenda itself may be the subject of vigorous domestic debate. The report insists that there should be regular formal debates, ministerial statements (oral and written), as well as ministerial answers to questions and a vital role for committee oversight in both the House of Lords and the House of Commons. The Committee is also authorising a programme of cross-cutting inquiry work, intended to inform the forthcoming negotiations. It identifies some 29 areas which may be relevant to negotiations, which gives a glimpse of the range of interests involved, including financial services, police and security cooperation, employment and non-discrimination law, agriculture, transport, energy security, UK-Irish relations and “Intra-UK relations”.

One obvious question is how such  public debate of a negotiating strategy can be conducted: as any lawyer who has conducted negotiations knows, you do not want to reveal your bottom line to the negotiating partner at the start and may well wish to be careful in revealing your priorities. On this, however, the Committee simply comments that it would be necessary to “strike an appropriate balance between transparency and confidentiality, while achieving the overarching objective of holding the Government effectively to account”.

The Committee’s comments on the shape of the negotiations are also worth noting. It rather dismisses the suggestion that negotiations on a future trading relationship could not start until the Article 50 process has ended, stating that  “The wording in Article 50(2) places a legal obligation on those negotiating the withdrawal agreement to take account of the framework of the new relationship. In other words, the withdrawal negotiations should take place in the knowledge, at the very least, of the likely shape of the UK’s future relationship with the EU”. It also comments that the negotiating parties could, if they wished negotiate a new relationship in considerable detail. If you’re interested in more detail on this, my colleague Peter Oliver has recently written on what may fall within the Article 50 negotiation process.

For the Committee’s full report please click here.

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