The UK’s new relationship with the EU will still require parliamentary scrutiny

The UK may have left the EU but it will continue to have a relationship with the bloc – shaped by the Trade and Cooperation Agreement (TCA) struck by Boris Johnson’s government in December and subsequent agreements reached in the coming months and years. There will also continue to be an important role for parliament in scrutinising both developments emerging from the EU and the way the government handles the UK’s future relationship with Europe.  

Areas for scrutiny will include, but not be limited to: new or amended EU rules that apply to Northern Ireland and will therefore have implications for trade between Great Britain and Northern Ireland; future negotiations over outstanding areas of agreement; decisions made by the numerous specialised committees and working groups overseeing the TCA; and the operation of the agreement including any disputes raised.

In theory, the House of Commons makes its own decisions about how to go about its scrutiny. But, after a period of minority government during which parliament exerted a strong influence over its own scrutiny capability – for example, forcing the government to concede a ‘meaningful vote’ on its EU exit deal and to establish a sifting committee to examine a deluge of Brexit-related secondary legislation – we are now seeing a reversion to the normal reality: a government with a significant majority with a decisive say over how the Commons can and cannot scrutinise the executive’s decisions.

The government is being unrealistic about the EU scrutiny task facing parliament

This is significant: now the UK has left the EU, decisions need to be made about how to equip the House of Commons to undertake future scrutiny of EU matters. The most pressing question surrounds the future of the Committee on the Future Relationship with the EU (CFREU). CFREU was the re-incarnation, during the Brexit transition period, of the Committee on Exiting the EU which was established in 2016 to scrutinise the Department for Exiting the European Union. The temporary standing order which set it up is due to expire on 16 January.

CFREU itself has argued for a six-month stay of execution because it still has a significant programme of work to complete – to examine the implementation of the TCA and the implications of the new relationship with the EU for businesses and individuals as well as the working of government. But Jacob Rees Mogg – the leader of the House – has indicated the government’s view that existing powers and structures will be sufficient to enable the Commons to scrutinise the future trading relationship with the EU.

The government’s view on this will be decisive as the standing order will expire unless it chooses to table a motion to extend the life of the committee. But it is a view that is both overly optimistic about the capacity of the Commons to undertake scrutiny of the EU, and unrealistic about the EU scrutiny task which now faces parliament.

The government is right that existing departmental committees will be free to examine aspects of the future relationship that relate to their areas of policy focus. But prior experience casts doubt on whether their attentions will be sufficiently expert, systematic or joined up. Before the 2016 referendum, one of the ‘core tasks’ of departmental committees was to undertake scrutiny of EU matters, but this was rarely seen as a priority by committees who preferred to focus on the government’s domestic agenda. EU scrutiny was patchy, and committees lacked the specialist expertise to do it well.

The abolition of the CFREU will significantly dilute the EU expertise available within the Commons committee system, which the committee has built up over the past five years. Although staff expertise has also been ramped up, individual committees may not have the required level of knowledge to understand, for example, the implications of proposed changes in domestic policy for the TCA, and whether these might trigger the rebalancing mechanism under the level playing field provisions and/or have implications for the GB–NI border.

The European Scrutiny Committee requires reform and a new remit

The European Scrutiny Committee (ESC) – which it seems will continue to exist – has the legal expertise to scrutinise future EU laws with relevance to the UK – among which those relating to the Northern Ireland protocol will be of particular significance. But it will require a significant change of remit because of the change in legal relationship between the EU institutions and the UK parliament: the ‘scrutiny reserve’ which previously restrained the UK government from acting on EU legislation until the committee had examined it will no longer apply. A change of remit will also be needed to equip the ESC to undertake the full range of EU scrutiny that will now be needed if the CFREU is abolished. It is optimistic to assume that any single committee will be able to cover this full range of tasks adequately. The ESC will certainly need to adjust its approach in order to anticipate and triage the most important issues upon which to focus its attention.

The inevitable change in the remit of the ESC will also provide an opportunity to enhance the effectiveness of a body which, in recent decades, has primarily been a forum for the Brexit debate in miniature, peopled by the strongest proponents on each side of the argument and chaired for over a decade by the prominent Eurosceptic Sir Bill Cash. It should be a priority for the committee to reach agreement with the government about the information to which it will have access and how its scrutiny will feed into the government’s approach to decision making. To make the ESC more focused and effective, its membership should be reduced from the current unwieldy 16 to the more streamlined 11 sitting on most other Commons committees. And its chair and members should be elected – bringing the ESC into line with best practice on most other Commons committees.

The government may be happy to wave farewell to CFREU – which has undertaken effective and at times uncomfortable scrutiny during the Brexit process – but it needs to ensure it remains accountable to parliament for its management of the TCA and wider relationship with the EU. Rather than simply reverting to the scrutiny status-quo pre-2016, the government must take steps to ensure effective scrutiny arrangements are in place so that parliament can play its proper role in shaping a successful future relationship between the UK and the EU.