How Parliament will scrutinise changes to Retained EU Law (REUL) has been a matter of concern since the Government announced it would introduce the ‘Brexit Freedoms’ Bill. The Minister for Brexit Opportunities has now suggested Legislative Reform Orders (LROs) as a possible solution. But what are LROs and what would this mean for scrutiny of REUL?
The recent rearrangement of responsibilities for the government’s handling of EU-related affairs raises questions about future parliamentary scrutiny of these issues. In some respects pre-2016 institutional arrangements are restored, but the post-Brexit landscape presents new scrutiny challenges which thus far MPs have not confronted.
Senior Researcher, Hansard Society
Dr Brigid Fowler
Senior Researcher, Hansard Society
Brigid joined the Hansard Society in December 2016 to lead its work on Parliament and Brexit, as well as contribute to its ongoing research on the legislative process, parliamentary procedure and scrutiny, and public political engagement. From 2007 to 2014 she was a Committee Specialist for the House of Commons Foreign Affairs Committee, where she led on the Committee’s EU-related work. In the first six months of 2016 she was on the research team of Britain Stronger in Europe. She has also worked as assistant to an MEP in Brussels and as an analyst and researcher on EU and European affairs in the private sector and at the University of Birmingham and King’s College London.
After completing BA and MPhil degrees at the University of Oxford in PPE and European Politics, respectively, she spent the first part of her career focusing on the politics of post-communist transition and EU accession in Central Europe, and completed her PhD at the University of Birmingham on the case of Hungary. She has given media comment, appeared before select committees and published several journal articles and book contributions.
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The transfer in December 2021 of responsibility for UK-EU relations from Lord Frost to Liz Truss MP, the Foreign Secretary, put the Cabinet Minister who leads on these issues back in the House of Commons. This is a gain in terms of democratic accountability.
After Brexit, Liz Truss – like Lord Frost and Michael Gove before her – is the only member of the Cabinet with routine institutionalised engagement with EU bodies, as Co-Chair of the Joint Committee and Partnership Council.
It is essential that there are rigorous provisions in place for MPs to scrutinise the EU-related aspects of the Foreign Secretary’s responsibilities.
However, in spotlighting the scrutiny arrangements for EU-related matters in the House of Commons, the Frost-Truss switch highlights the fact that, despite the fundamental change in the nature of the UK’s relationship with the EU, MPs have not explicitly confronted the question of how they wish to scrutinise it and hold Ministers to account.
The underlying institutional and procedural question for the House of Commons with respect to EU affairs is the same as it ever was: should EU-related matters have dedicated scrutiny processes, including a dedicated Select Committee, or be ‘mainstreamed’ through ‘normal’ ones – which, in the Commons, means ones which are primarily departmentally-based?
But, a year on from the new UK-EU relationship coming into being at the start of 2021, the Commons has not explicitly debated how it wishes to scrutinise it.
In January 2020, the House agreed that the ‘Brexit Committee’ should cease to exist a year later – but the relevant motion was not subject to debate.
With the time-limited creation and then disappearance of the ‘Brexit Committee’, the European Scrutiny Committee (ESC) and the document-based European scrutiny system which it leads have emerged as the most constant factor in the Commons’ EU-related scrutiny landscape – but these continue to exist by default, rather than any active post-Brexit decision, because they were established under non-time-limited Standing Orders in the 1970s after the UK joined the then-EEC.
The rearrangements surrounding the Frost-Truss switch make for a near-complete reversion, after four-and-a-half years of successive changes, to the basic institutional arrangements for handling EU matters that existed before the 2016 Brexit referendum, in both government and the House of Commons:
The Foreign Secretary is again the lead Cabinet Minister for EU relations; and the Foreign, Commonwealth and Development Office (FCDO) again has a Europe Minister, at Minister of State level, with an exclusively Europe-related brief, in the shape of Chris Heaton-Harris MP.
EU relations are again subject to scrutiny by a regular departmental Select Committee, in the shape of the Foreign Affairs Committee (FAC); and again fall directly within the remits of two Select Committees, the FAC and the European Scrutiny Committee (ESC).
As things stand, the transfer of ministerial and departmental responsibilities for EU relations back to the FCDO poses scrutiny challenges for the Commons.
This is because, in the elected House, two key mechanisms of scrutiny and accountability – oral questions and Select Committee work – are organised primarily on a departmental basis.
The handling of EU relations as part of a large, high-profile and unpredictable departmental brief increases the competition for parliamentary, ministerial and MPs’ time.
While the shift of ministerial responsibility for EU relations back to the Commons strengthens democratic accountability, paradoxically it might see the time spent on regular scrutiny reduced.
EU matters always faced such pressures when they were the responsibility of the then-FCO before 2016, and in some respects the scale of EU business has shrunk since then. However, the responsibilities of the FCDO have expanded, with the addition of international development; and the relative weight of the Foreign Secretary compared to other Ministers, in terms of exposure to and responsibility for EU relations, is greater.
In the House of Commons, each department (including the Cabinet Office) has its own question time. Each department’s question time takes place roughly every five sitting weeks, lasts for up to an hour (under Standing Order No. 21) and may cover the full range of the department’s responsibilities.
EU-related matters are thus likely to receive less scrutiny through regular oral questions when they are the responsibility of a department with a wider remit, such as the FCDO now or the Cabinet Office in 2020-21, than they did during the existence of the Department for Exiting the EU (DExEU) from July 2016 to January 2020.
As part of regular FCDO questions, EU-related matters will also receive less scrutiny through this mechanism in the Commons than they did in the Lords through regular questions during Lord Frost’s time in office.
In the House of Lords, regular question time is conducted on a cross-government rather than departmental basis. However, in response to Lord Frost’s appointment, the Lords re-activated and expanded its provision for a dedicated question time for Secretaries of State sitting in the Lords, to encompass any departmental Minister in the Lords who is a member of the Cabinet. When it is needed, this question time takes place roughly once every sitting month and comprises three balloted questions. During Lord Frost’s tenure, each question was allocated 10 minutes. As a result of this arrangement, during his 10 months in office from March to December 2021 Lord Frost spent four hours and 56 minutes answering dedicated oral questions in the Lords.
In the Commons during the same period, Cabinet Office Ministers spent 34 minutes of Cabinet Office question time answering on EU-related matters. This represented 12% of total Cabinet Office question time.
In the same March-December period of 2020, when the lead Cabinet Minister on Brexit-related matters was in the Commons (in the shape of Michael Gove), Cabinet Office ministers spent 1 hour and 40 minutes during Cabinet Office questions answering on EU-related matters, representing 32% of the total time.
If they want it, what could MPs do to secure greater scrutiny of EU-related affairs in the Chamber?
One possibility is that MPs might seek to make greater use of Urgent Questions (UQs) on EU matters, if there is now a prospect of forcing the directly-responsible Cabinet Minister or (in effect) her deputy to the Despatch Box. With the lead Minister now in the Commons, there could also be greater pressure from MPs for government reporting on Joint Committee and Partnership Council meetings to take place via oral rather than written statements, especially if the time available at FCDO questions is felt to be inadequate.
Before the 2016 referendum, the FAC and the ESC operated according to a fairly clear division of labour on EU matters: the FAC scrutinised policy, and the ESC focused on its mandated task of scrutinising EU documents.
Occasional minor tensions between the two Committees were most likely to arise when the ESC conducted a more normal select committee inquiry, with oral evidence sessions, and were often caused because of the difficulties that could arise with government when both Committees sought oral evidence from the same Minister. However, one or both of these committees tended to conduct such intensive inquiries only when the EU Treaties were being renegotiated.
Meanwhile, other Commons Select Committees rarely held inquiries into EU-related matters at all.
Since the Brexit referendum, at least one Commons Select Committee has been conducting inquiry work continuously into the core UK-EU relationship; and the overall number of Select Committees examining EU-related matters, at least periodically, has expanded significantly.
The foci of both the ESC and the FAC have also changed.
The disappearance of the ‘Brexit Committee’, and the fact that the Cabinet Office does not have its own departmental scrutiny committee, left the field open for the ESC to emerge as the main scrutiny committee for the core UK-EU relationship.
This has been accompanied by a shift in the nature of the ESC’s activity. The ESC continues to scrutinise EU documents, but now primarily only those that are relevant to the Withdrawal Agreement’s Northern Ireland Protocol. In tandem with the resulting fall in the volume of EU documents that are subject to scrutiny, inquiry work – and especially the taking of oral evidence – has become an increased element of the ESC’s operation. The House of Commons Library has reported that the ESC held 18 public evidence sessions in the 43 months between late June 2016 and the end of January 2020. It has held 12 in the 23 months since then.
Meanwhile, the FAC has developed a busy post-Brexit, post-Covid, post-COP26 agenda largely away from EU affairs – examining ‘Global Britain’, following up on the 2021 Integrated Review of Security, Defence, Development and Foreign Policy and addressing various relatively novel foreign policy issues like health security and technology, as well as now pursuing its inquiry into the 2021 Afghanistan debacle.
Following the Frost-Truss switch, this Select Committee scrutiny landscape raises several questions.
To what extent will the FAC conduct detailed ongoing scrutiny of the new UK-EU relationship, in the way that the ‘Brexit Committee’ did or the ESC has been? Scrutinising the UK-EU relationship with this kind of intensity would involve a significant increase or re-prioritisation of the FAC’s workload. And FAC Members might not feel that detailed ongoing scrutiny of the UK-EU relationship is what they signed up for.
On the other hand, if the FAC decides to conduct extensive work on UK-EU relations, is there a risk of duplication or tension between the FAC and the ESC, or will the two Committees settle into a new division of labour?
Ministers might wish to appear before both Committees but be unable to agree timely dates to do so, owing to diary pressures; or they might assert that they have an obligation to appear before only one scrutiny committee. While Lord Frost appeared before multiple Commons Select Committees, he stated consistently that he regarded his prime responsibility as being to the ESC, and that he appeared before others as a courtesy. If the ESC wishes to continue to scrutinise the UK-EU relationship in the way that it has been doing most recently, it will rely on FCDO Ministers agreeing to appear.
The availability of Chris Heaton-Harris is – presumably intentionally – likely to be a key mechanism for resolving or preventing any strains that might arise over ministerial Select Committee appearances, but difficulties seem most likely to arise if Select Committees which heard from Michael Gove or Lord Frost wish to continue to hear from the UK Co-Chair of the Joint Committee and Partnership Council – that is, the Foreign Secretary – and she is unable to fulfil all such requests.
Lord Frost’s previous role had a significant domestic element, which included a politically-charged review of the content and status of retained EU law. This work was expected to generate potentially significant regulatory change, plus a far-reaching and potentially complex government Bill in 2022 to amend the EU (Withdrawal) Act 2018.
The government has confirmed that this work is remaining in the Cabinet Office, but not yet which Minister will be leading it.
Given that the Cabinet Office does not have its own policy scrutiny committee, there is a question over how the review is to be scrutinised in Select Committee terms. But the output of the review will primarily appear as legislation (both primary and delegated) and so will fall outside the regular work of Select Committees.
In the post-Brexit environment, there is a stronger linkage between domestic regulation and its EU and international implications. Making this link is another scrutiny challenge that the House of Commons needs to address.
The long-term near-absence of Labour participation in the work of the House of Commons European Scrutiny Committee means that the Committee is not operating as a fully cross-party Committee. Especially given the way in which the Committee’s role is changing since Brexit, this needs fixing, fast.
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