Written evidence to the European Scrutiny Committee's inquiry on post-Brexit scrutiny of EU law and policy

Written evidence submitted by Agata Gostyńska-Jakubowska, a senior research fellow at the Centre for European Reform,to theEuropean Scrutiny Committee’s inquiry on post-Brexit scrutiny of EU law and policy. 

About the Centre for European Reform

The Centre for European Reform is independent think-tank devoted to making the European Union work better and strengthening its role in the world. The CER is pro-European but not uncritical. We regard European integration as largely beneficial but recognise that in many respects the European Union does not work well.The CER aims to promote an open, outward-looking and effective European Union.

About this written evidence

This written evidence draws among other sources on research conducted within the framework of the project “Towards a Citizens’ Union” (2CU) of theEuropean Policy Institutes Network (EPIN). The project is co-funded by the Erasmus+ Jean Monnet Programme of theEuropean Commission.

More detailed analysis of Westminster’s scrutiny of EU issues post-Brexit, and recommendations on how to improve it,is included inA.Gostyńska-Jakubowska (2019), ‘Not such a clean break: Westminster’s continuous oversight of EU affairs post-Brexit’, in S. Blockmans, S. Russack (eds) Representative democracy in the EU. Recovering legitimacy, CEPS, Brussels, Rowman & Littlefield International, London, 2019; https://www.ceps.eu/wp-content/uploads/2019/05/Representative-Democracy-in-the-EU.pdf

Executive summary

*At the time of submitting this evidence, how and when the UK will leave the EU remains unclear. This evidence therefore looks at parliamentary scrutiny of EU affairs in two scenarios:UK’s departure with no deal, or departure with a withdrawal agreement.

*Irrespective of whether the UK leaves the EU with a deal or without it, the EU’s laws and policies will probably continue to influence UK’s decision-making.In the event of orderly withdrawal,the UK will be bound to apply EU law at least until the end of the transition period. And in the event of nodeal, the UK government might decide to align with EU laws at least temporarily to mitigate regulatory chaos for British stakeholders.

*Westminster will have to adjust its scrutiny structures to the new-post Brexit reality in which the British government will no longer have a voice in shaping the EU legislation. If the UK leaves the EU with a withdrawal agreement, Parliament should retain the scrutiny reserve in some form. The withdrawal agreement agreed by the EU and UK negotiators in November 2018 (referred to in this evidence as “the EU/UK Withdrawal Agreement”)would introduce joint decision-making in matters concerning the implementation of the withdrawal agreement (eg. Joint committee).[1] Scrutiny reserve would help ‘incentivise’ ministers to engage in a discussion with MPs before agreeing on anything with the EU.

*In the short/medium term MPs may have more on their plates. If the EU/UK Withdrawal Agreement or something similar is ratified, MPs will have at least four EU-facing scrutiny tasks: (1) oversight of the application of the EU law in the UK in the transition period and beyond, (2) oversight of the implementation of the withdrawal agreement (in particular decisions taken in the joint committee), (3) oversight of the negotiations on the future EU-UK relationship and (4) scrutiny of government’s attempts to influence the EU decision-making informally. The Commons should develop scrutiny structures to enable MPs to perform several scrutiny tasks simultaneously and efficiently.

*In addition to scrutinising government actions and any future EU legislation with an impact on the UK, Parliament itself should try to liaise directly with the EU institutions and individual national parliaments, using the network it developed while the UK was an EU member-state. The appetitefor keeping Westminster plugged into EU inter-parliamentary co-operation might fall if the UK leaves the EU without a deal, however.

Whether and how EU laws and policies might continue to affect the UK?

1. If the UK leaves the EU on the basis of the current EU/UK Withdrawal Agreement or something like it, it will have to continue toapply current and future EU legislation at least until December 2020 –when the transition period, which is an integral part of the withdrawal agreement, will come to an end. The withdrawal agreement envisages thepossibility of extending this period for up to one or two years, however.
2. According to the then secretary of state for exiting the EU, Dominic Raab,much of thenew EU legislationthatentered into force in the transition period would probably have been scrutinised by Parliament whileBritain was still a member-state.[2]This is because the EU legislative process is lengthy, and it takes at least around 18 months to adopt an EU law.[3]But the UK’s own decision to leave the EU has illustrated the fact that the EU is capable of speeding up its legislative process when confronted with serious challenges. Since December 2017, the EU has adopted 19 EU legislative acts to prepare the EU-27 for a no-deal Brexit.[4]One can thus imagine a scenario in which the UK is bound by new EU laws, adoptedin the transition period, that it had no opportunity to influence before leaving the EU.
3. The UK might also apply some EU rules after the transition period is over – for example, if the backstop ever kicks in. The backstop envisages that the UK would have to apply new EU rules concerning goods in Northern Ireland. The government of Theresa Maycommitted to apply these rules across the whole UK to avoid any regulatory divergence between Northern Ireland and the rest of the UK.[5] But the new government has rejected the backstop in this or any other form.
4. In the event that the UK leaves the EU without a deal, and thus without the transition period the UK would not be legally bound to continue to apply EU law.But it is difficult to imagine that the UK would be able to make a clean break with the EU’s laws and policies. The UK has been a member of the EU for over four decades; EU law has thus been an integral part of the British legal ecosystem. Rejecting all new EU laws at once would create regulatory chaos, which would be harmful to the business and other stakeholders.
5. In order to mitigate the disruptive effects of a disorderly Brexit, the government might need therefore to remain alignedwith EU law, at least temporarily. According to the Institute for Government’s latest report (‘Preparing Brexit: No deal’), in the event of no deal,the UK might still need to update legislationregularly in some policy fields to keep up with (changing) EU standards.[6]

What should the purpose of scrutiny be in a post-exit world?

6. If the UK leaves the EU with awithdrawal agreement there will be at least four priority areas of parliamentary scrutiny of EU affairs:

a)      implementation of the withdrawal agreement,including deliberations of any EU-UK joint committee established to discuss among other things the possibility of extending any post-exit transition period;

b)      negotiations on the future EU-UK relationship and its evolution;

c)       the application of EU law during and after the transition period;

d)      attempts by the government to influence EU decision-making informally through closer bilateral contacts with EU capitals or an enhanced UK presence in Brussels;

7. If the UK leaves the EU without a withdrawal agreement, Westminster will have to scrutinise government actions to mitigate the economic and regulatory chaos – including any intention to align with some EU laws (as explained in point4above). Parliamentarians will also want to have oversight of any new negotiations with the EU-27 collectively or individually.
8. One objective for Parliament should be to ensure that the British government is more transparent in the future about relations with the EU-27, or how it plans to mitigate the economic, political and social fallout in the event of no deal. The public deserves to know what the implications of a no-deal scenario are, and MPs should ensure that this information reaches the British people in a timely manner.At the beginning of the Brexit negotiations, British stakeholders at times had to rely onthe EU rather than UK institutions for information about the state of play. This is because the EU-27 wasinitially more transparent about its negotiating objectives than the British government.
9. The government might sometimes be reluctant to reveal information about the talks with the EU-27 for fear of undermining its negotiating position.Relevant select committee chairs should be able to judge whether the government’s concerns are justified, in which case the government should be asked to brief MPs on Privy Council terms, or whether this is just an attempt to keep Parliament in the dark.
10. As well asscrutinising the actions of the British government,Parliament should attempt to learn directly from the UK’s European partners about the EU’s negotiating objectives and their rationale, and about other relevant EU legislative activities. Among other things, it could continue to invite EU officials to participate in evidence sessions, and visit Brussels and national parliaments. Such contacts would also enable to inform the EU’s thinking by communicating UK voters’concerns directly. Any comprehensive agreement on the future relations between the EU and the UK will require ratification in national (and some regional) parliaments of the EU-27; a Westminster charm offensive could increase mutual understanding.[7]

How will the UK’s exit from the EU affect the current system for scrutinising EU law and policy, and what changes might be needed?

11. The UK will not be able to participate directly in shaping future EU legislation in any of the scenarios analysed in this evidence. The moment the UK leaves the EU –deal or no deal – it becomes a third country. It will no longer be represented in the Council of the EU or the European Parliament, which are the EU’s co-legislators.
12. The UK Parliament will also lose the status of ‘national parliament’, as defined in the EU treaties. That means that it will no longer be able to influence EU decision-making either by means of reasoned opinions orthrough political dialogue (the first instrument enables national parliaments to object to Commission draft legislation on the basis that it undermines the principle of subsidiarity, and the second enables parliaments to provide feedback on draft laws). TheUK Parliament will also cease to be a permanent member of EU inter-parliamentary conferences.
13. The current system of scrutiny of EU law and policies will have to be adjusted to take account of these challenges.
14. Irrespective of whether the UK leaves the EU with or without a deal, Parliament should insist that the government continues to deposit draft EU legislation together with impact assessments.The government should also deposit Commission communications if they set out new areas of policy or indicate shifts in the existing EU policies so that any subsequent Commission legislative proposals do not take parliamentarians by surprise.
15. The impact assessments attached to relevant draft EU legislation might prove particularly helpful for Parliament if – in the event of nodeal – the UK government decides to mitigate the regulatory costs for British business by continuing to align with some EU laws. Such impact assessments should include a comparative analysis of the pros and cons of alignment versus divergence, and enable parliamentarians to form their own opinion of the balance of advantage.
16. If the UK leaves the EU on the basis of a withdrawal agreement,Westminster should also try to maintain somethingsimilar to the scrutiny reserve to exert pressure on the government to be more transparent.
17. Post-Brexit–subject to the ratification of a withdrawal agreement – the scrutiny reserve could continue to serve as a useful tool to ensure more government openness. But it would have to be modified to take account of the new post-Brexit institutional architecture. After Brexit,the British government will participateamong other thingsinmeetings of the joint committee. The government would also take part in the high-level conferenceenvisaged in the political declaration attached to the EU/UK Withdrawal Agreement.Theconference would meet every six months to take stock of progress in the negotiations onthe future relationship. The new scrutiny reserve could be expanded to cover any decisions to be taken either in the joint committee or the high-level conference.
18. Effective scrutiny can improve government’s own policy proposals and the government should consider supporting the above ideas.If the government worries that they could limit its room for manoeuvre it could agree with Parliament that in certain circumstances –such as when urgent action is needed – ministers could override scrutiny reserve.
19. If the UK leaves the EU without a deal, it would be very difficult to justify the continuedoperation of the scrutiny reserve, since there would be no joint EU-UK decision-making as envisaged in the current EU/UK Withdrawal Agreement.
20. As described in point 12above, Parliament should also try to maintain its own inter-parliamentary contacts in Brussels and in the member-states post-Brexit. This would help to keep British parliamentarians informed about developments in the EU and their impact on the UK. Westminster should follow the example of the Norwegian parliament, which hasparticipatedin EU inter-parliamentary meetings such as the Conference of parliamentary committees for Union affairs (COSAC).
21. Westminster should also consider keeping parliamentary representatives in Brussels. The work of these officials could prove particularly helpful if the government proves unwilling to discuss EU affairs regularly on the floor of the house or in committees.
22. If the UK leaves without a deal, however, the 27 EU national parliaments, as well as the European Parliament,are less likely to want to help British parliamentarians remain plugged intotheir structures for co-operation.

What form should scrutiny take to maximise its effectiveness?

23. Post-Brexit scrutiny of EU affairs will be more challenging than it was before the referendum. In the past, the European Scrutiny Committee (ESC) focused on sifting EU documents and sometimes recommending debates on the floor of the house. Post-Brexit, at least initially, parliamentarians will have to juggle between at least four EU-facing activities (as described in points6 and 7above).
24. Scrutiny structures post-Brexit should be flexible and make it easier for parliamentarians to shift their attention from one scrutiny task to another. This couldbe achieved by putting all post-Brexit EU scrutiny functions in the hands of one committee (referred to in this evidence as “the EU affairs committee”). It wouldbe up to the government and Parliament to decide whether any of the existing committees should take onthis role, or whether a new committee should be created. The government’s own deliberations on which departments should lead on which European dossiers might also influence Parliament’s decisions on committee arrangements.
25. The above-mentioned committee, like other select committees, should be able to delegate work to sub-committees created on an ad-hoc basis. It could, for example,ask a sub-committeeto conduct inquiries in these areas of the EU-UK future co-operation that have been subject to disagreements between the negotiating parties and that undermined the progress of the talks. The sub-committee could also take over one of the four EU-facing scrutiny tasks if the committee felt that it had too much on its plate.
26. Centralising scrutiny powers in the hands of one committeewould helpreduce the burden on other departmental select committees. In the course of the last three years, their members have tried to juggle between their core function of overseeing the normal work of government departments and analysing theimplications of Brexit for the work of these departments.
27. Focusing work in a single committee, however, also has potential drawbacks. It could discourage other committees from following European matters which – as this evidence indicates – will probably continue to influence the UK’s regulatory regime in a number of areas. Individual select committees should, therefore, appoint one of their members as a liaison officer who would look at how EU laws might affect policy fields which are dealt with by his/her committee. Liaison officers should also provide sectoral expertise to the EU affairs committee.
28. Any committee that has to deal with EU affairs after Brexit will need to be open with voters about its rationale and work, stressing that even outside the EU the UK will be affected by EU law and actions and that there is, therefore, a continued need for parliamentary scrutiny of the government’s responses to the EU.

August 2019