The European Scrutiny Committee published today its report “Brexit and the European Scrutiny System in the House of Commons”.

 Sir Bill Cash, Chairman of the Committee, said,

“The Government should be more open about its attitude in negotiations.

“The Government should come to a clear view on where the national interest lies in relation to each dossier, and ensuring that view is communicated to UKREP and to our European counterparties. The Government may consider that there will be occasions when it feels it should vote against proposals it considers to be against the national interest, rather than allowing agreement by consensus. If it does vote against a proposal, it should make sure its reasons for doing so are put on record in a minute statement.”

The report states that it is imperative that debates on European Union Documents within the Commons are scheduled in good time, so that the House can make its views known in an effective way.

The process of exiting the EU should reaffirm the sovereignty of Parliament, not bypass it.”

The European Scrutiny Committee reached the following conclusions and recommendations

The Governments’ approach to current dossiers

1.We expect all departments working on dossiers to consider EU proposals both as they would affect the UK as an EU Member State and in terms of their Brexit implications. (Paragraph 18)

2.We recognise the pressures on Whitehall, but it is important to deal with existing dossiers competently in parallel with the Brexit negotiations. We also consider the Government should be more alert to the connection between the two, since looking at proposals for EU legislation from a Brexit perspective highlights the issues that will arise more generally in disentangling the UK from the EU. The machinery for establishing and co-ordinating the UK position needs to be fully worked out and engaged on both types of negotiation. Establishing the Department for Exiting the European Union, and transferring responsibility for the coordination and scrutiny of ongoing dossiers is a valuable step in providing this coordination. Nonetheless there will be points when decisions need to be made at the highest level, by the Prime Minister or Cabinet Committee; the centre of Government will also need dedicated resources to ensure that decision makers are equipped to make those decisions. (Paragraph 19)

3.Like the Government, we consider the scrutiny system, in which every European Document is subject to informed analysis and political oversight remains essential. In current circumstances, a key part of our role is to ensure that the Government is giving proper priority to negotiations on existing dossiers, and minimising the risk that changes to current EU law may disadvantage the UK after Brexit. (Paragraph 20)

Information provided to the Committee

4.We appreciate the Government’s desire for confidentiality in negotiations, but it would be wrong and counter-productive for it to refuse to share factual material and matters which are common knowledge in Brussels. We welcome the Leader of the House’s acceptance that the Committee will have legitimate questions about the interrelations between negotiations on existing dossiers, and on wider Brexit-related matters. (Paragraph 28)

5.Each Explanatory Memorandum should now contain a separate section dealing with Brexit issues, setting out any pertinent legal framework, UK participation in existing measures and possible future barriers to cooperation. (Paragraph 35)

6.If the Explanatory Memorandum is inadequate, we will ask the Government specific questions. In such cases, the Government should provide full answers or, if the Government considers that we have inadvertently asked for something which would impede negotiations if published, a clear and full explanation of the difficulty in producing the information. (Paragraph 36)

The negotiating process

7.The Committee expects to be given information about the progress on individual dossiers in advance of their discussion at COREPER. Some departments are already doing this as a matter of best practice: all should do so. (Paragraph 39)

8.The scrutiny reserve stipulates that Ministers should not agree to proposals which are still under scrutiny. The reserve loses its force if business is effectively completed in working groups or COREPER without reference to this Committee. Ministers must remain fully engaged in negotiations on current dossiers as well as on Brexit preparations. (Paragraph 44)

9.The Government will of course need to consider how its approach to negotiations on EU legislative proposals plays out in the wider exit negotiations. We would not want the UK to be seen as a wrecker. Nonetheless, Member States are entitled to oppose Commission proposals and to make their views known. We note that the UK on its own will not constitute a blocking minority. We consider that it may now be appropriate for the Government to be firm in its attitude to proposals it considers misguided, and to be readier to vote against such proposals if it does not manage to negotiate satisfactory changes. In such cases we also urge the Government to make minute statements so that its position is a matter of public record. (Paragraph 46)

The Committee’s general approach

10.While our central function of drawing matters of legal or political importance to the attention of the House remains, the assessment of what is, in particular, politically important has to take account of the referendum result. We will reshape our scrutiny to focus on proposals which:

  could come into force before UK withdrawal from the EU; and/or

  could be significant for the UK, even after withdrawal. (Paragraph 47)

11.We note that the Prime Minister and the Secretary of State for exiting the European Union have said there would be no “cliff edge”, and have spoken about a range of transitional periods. We consider it would be imprudent to assume that there will be a 2019 cut-off date after which EU legislation currently under negotiation will not have implications for the UK, whether or not it applies directly. (Paragraph 49)

Reasoned Opinions

12.On balance, we have decided to continue to take a case-by-case approach to Reasoned Opinions. In cases where other countries’ Parliaments share our concerns, failure to submit a Reasoned Opinion could allow proposals to go forward, even when a substantial number of other Member States wished to challenge them. It is possible that a proposal might not conform to the subsidiarity principle, but could benefit UK citizens post-Brexit. In such cases we may decide not to submit a formal Reasoned Opinion, but will set out the subsidiarity concerns in our Report. It will be for other Member States to decide whether or how to proceed. Our analysis will be publicly available. (Paragraph 56).

Departmental compliance with the scrutiny system

13.We put on record that we will in future be readier to call Ministers or Permanent Secretaries to give evidence to account for departmental scrutiny failings. (Paragraph 66)

Scrutiny overrides

14.A department’s record on scrutiny overrides will be a key consideration when we decide whether or not to call for evidence on scrutiny failings. A poor record in complying with conditions attached to scrutiny waivers will be taken into account in deciding whether to give the benefit of a scrutiny waiver in future. (Paragraph 68)

Scheduling debates on EU documents

15.The House is entitled to the opportunity to give a view on proposals of particular importance at an appropriate stage in negotiations; it does this through debates on European Documents. (Paragraph 69)

16.As the Leader of the House said, Government would need to think very carefully indeed if it were defeated on a motion relating to a European Union Document. It is imperative that debates on European Union Documents are scheduled in good time, and with adequate notice, so that the House can make its views known in an effective manner, on an amendable and meaningful motion.(Paragraph 77)

17.Unless we have indicated we are content, we do not consider general debates on matters relating EU policies should be regarded as a substitute for debates on documents we have referred. (Paragraph 78)

Please read the full report here.