How might MPs scrutinise the new UK-EU relationship?

Adam Cygan

Now the Brexit transition period has ended, the way Parliament scrutinises UK-EU relations will significantly change.

This Insight explores how MPs might scrutinise the implementation of the Trade and Cooperation Agreement (TCA) and the UK-EU Withdrawal Agreement.

How did MPs scrutinise EU affairs when the UK was a member?

When the UK was a member of the EU, the Commons European Scrutiny Committee (ESC) scrutinised all EU legislative proposals to determine their legal and political impact on UK law and policy. UK ministers provided ‘Explanatory Memorandums’ which formed the starting point for scrutiny.

Those arrangements enabled MPs to influence the relevant government minister before they voted on legislation in the EU Council of Ministers.

MPs had no veto over EU legislation but could issue a ‘reasoned opinion’, to the EU Commission if they considered proposed legislation infringed the ‘principle of subsidiarity’. This is the principle that EU action should “add value” and happen only where the objectives cannot be delivered at local, national or regional level.

If one-third of all EU parliamentary chambers raise a reasoned opinion, the Commission must reconsider the proposed legislation. This has only happened three times. (It’s chambers not parliaments as some national parliaments are bicameral, and each chamber receives one vote.)

How should Parliament continue to scrutinise EU affairs?

As the transition period has ended, the UK no longer applies EU law.

However, the UK-EU relationship, based on the TCA and WA, doesn’t isolate the UK from the effects of EU law, especially in the context of the Northern Ireland Protocol. Under the Protocol, EU state aid rules continue to apply (where relevant) to trade between Northern Ireland and the EU.

In its final report, the Committee on the Future Relationship with the European Union said Parliament needs to ensure effective scrutiny of the UK-EU relationship, especially the TCA and WA. This scrutiny needs different arrangements from those in place when the UK was in the EU and during the transition period.

The Committee recommended Parliament shifts its focus from legislative scrutiny to oversight and accountability of how the TCA and WA are implemented.

This includes oversight of joint UK-EU bodies: the Partnership Council established under the TCA and the Withdrawal Agreement Joint Committee established under the WA. These bodies have important decision-making powers for implementing the new UK-EU relationship.

What should the Commons scrutinise?

Scrutiny of joint UK-EU bodies

The Committee’s Report said Parliament should arrange to be kept informed about the work of UK-EU joint bodies.” This would include scrutinising each meeting of the Partnership Council and of the Withdrawal Agreement Joint Committee.

The Committee said this scrutiny should take the form of a statement, outlining decisions reached and providing MPs with an opportunity to question government ministers. The Committee also suggested select committees may wish to conduct inquires before or after meetings of joint UK-EU bodies.

Scrutiny of EU legislative proposals

Obligations within the TCA to maintain a ‘level playing field’ mean the UK might be required to maintain regulatory alignment for access to the EU Single Market.

Compliance with the TCA will require monitoring of EU legislative proposals, identifying which ones might affect its operation, and what effect any regulatory divergence from these rules could have.

Regardless of whether there is UK-EU regulatory alignment, EU laws remain relevant to businesses operating in the UK that trade with the EU.

The Future Relationship Committee recognised therefore the need for a committee to scrutinise the legal and political effect of divergence from EU rules. Given its experience in EU legislative scrutiny this a task which the ESC could be asked to undertake.

Legislative obligations under the Northern Ireland Protocol

The ESC said in a scoping paper that effective oversight of the Protocol would include:

monitoring and scrutiny of changes to EU laws listed in the Protocol and of new laws within the scope of the Protocol; how they affect the UK internal market; what mitigations are proposed; the role of EU institutions, in particular the European Court of Justice; and liaison with (the?) Northern Ireland Assembly.

To ensure coherence, Parliament will need monitor whether new EU laws made under the Protocol, would lead to divergence from the rest of the UK and the effect of any divergence on the UK’s internal market.

Equally, should the UK Government seek to diverge from EU law, Parliament needs consider the impact on obligations under the Northern Ireland Protocol and on the UK internal market.

Given the continued application of aspects of EU law in Northern Ireland within the TCA and WA, the Future Relationship Committee said the Government should continue to present relevant draft EU legislation to Parliament, alongside EMs. These would be the starting point for effective scrutiny by an appropriate committee.

Future inter-parliamentary cooperation?

During EU membership the UK Parliament participated in COSAC, an inter-parliamentary forum for cooperation between EU scrutiny committees in national parliaments.

The UK no longer participates in COSAC, but the TCA allows for a UK-EU Parliamentary Partnership Assembly with representation from both UK and EU Parliaments.

No firm decisions have been taken on when, or if, the Partnership Assembly will be established but the Future Relationship Committee identified the body as part of the broader framework for oversight of UK-EU relations.

Next Steps?

The Future Relationship Committee ceased to exist on 16 January 2021, but the ESC continues to meet and conduct inquiries into UK-EU relations.

The Committee’s report called on the Government to present its views on how scrutiny of UK-EU relations should be organised.

The Committee said Parliament should have a central role in establishing these new scrutiny plans, drawn up in consultation with the Liaison, European Scrutiny and Procedure select committees, and chairs of departmental committees with an ongoing interest in European affairs.

About the author: Professor Adam Cygan of the University of Leicester is a Parliamentary Academic Fellow working with the House of Commons Library.