Parliamentary scrutiny of the Brexit negotiations

27 Sep 2016

Christopher Muttukumaru CB writes: in circumstances where the successful “Leave” campaign provided little by way of a collective vision of a post-Brexit world, it is essential that the UK Parliament is provided with sufficient information about the Government’s negotiating strategy to enable Parliament to hold the UK executive to account.

This post is principally concerned with parliamentary scrutiny. One of the key responsibilities of the UK Parliament is that it should perform an in-depth  role in scrutinising the way in which the Government performs its functions. The Brexit negotiations and their emerging  outcome are no exception. The House of Lords EU Committee is currently conducting an inquiry into the role of Parliament in scrutinising the Brexit negotiations.

In that regard, the Prime Minister’s recent comments are highly instructive.  There is considerable force  in her assertion that the Government should neither give away its negotiating strategy nor provide a running commentary on the negotiations. But, sometimes, parliamentary select committees might need to test aspects of sweeping statements such as hers.

First, the starting point for any proposals for parliamentary scrutiny should be rooted in the reality of the referendum campaign. The successful Leave campaign failed to articulate a coherent, collective vision of a post-Brexit world for the United Kingdom. As a consequence, there was no in-depth scrutiny, as one would normally expect, say, at a General Election, of the differing policy arguments. Anneli Howard’s post on 12 July (“Brexit- not too late for proper impact assessment”) is also relevant in this connection.  The failure to provide such a vision  lends considerable weight to the need for effective parliamentary scrutiny of both the negotiations and the emerging outcome. The Brexit negotiations will be the single most important set of international  negotiations for the UK  in a lifetime.

Secondly, most commentators  would not suggest that the Government should disclose the detail of its negotiating strategy, such as its “bottom line” on any given subject. Equally, it would be in the national interest for the Government to disclose meaningful information about its aims , both in respect of vertical issues (sector by sector) and horizontal issues (cross-cutting issues).

By the same token, it is essential  that  the Government should keep parliament and the public properly informed of where the negotiations have got to. The Government needs to avoid tokenism. Specifically, a distinction ought to be drawn between (a) areas where there is  objective and persuasive evidence that advance disclosure would harm the national interest and (b) the cases where disclosure would not harm the national interest although it might conceivably be administratively inconvenient to provide disclosure. In the sectoral areas of policy making, for example, the outcome of the Balance of Competences Reviews might already provide the EU with a shrewd idea of what the UK might seek to achieve in negotiations in each sector.

In determining how the balance should be struck between the countervailing national interests, the Government should seek to avoid the traditional Whitehall power game where Ministers and officials hold all the cards and thus Parliament is at risk of being emasculated save where a select committee has the appetite doggedly to pursue an inquiry.  A failure to provide adequate information to Parliament and the public may even damage the interests of companies and individuals since they might otherwise be driven to make major decisions without any inkling of what the Government’s preferred outcomes might look like. To blindfold Parliament and the public could be very unfair.

The Coalition Government made a virtue of its commitment to genuine transparency. Surely  the present Government would want to do no less in relation to a subject of such significance?