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How can Parliament conduct effective Brexit scrutiny?

The Secretary of State for Exiting the EU, David Davis, says accountability to Parliament for Brexit negotiations will be retrospective

The Secretary of State for Exiting the EU, David Davis, says accountability to Parliament for Brexit negotiations will be retrospective – but parliamentarians have pushed back on this assertion. Hannah White examines their arguments.

At an Institute for Government event on Tuesday, the Chair of the Lords EU Committee, Lord Boswell, recalled a witness who had observed that in relation to Brexit, ‘the chief impediment to scrutiny is likely to be Her Majesty’s Government.’ David Davis has done nothing to refute this assumption. Echoing the Prime Minister’s statement that she would not be giving ‘a running commentary’ on the negotiations, he this week told the Lords: ‘Clearly there is a need for parliament to be informed without giving away our negotiating position… [But] I may not be able to tell you everything.’

Giving away our hand The Government’s position is not a surprise. It is consistent with the approach it has taken in the past on EU negotiations: resisting  pre-EU Council parliamentary accountability hearings (the norm in countries such as Denmark and Sweden) and arguing that ‘mandating’ sessions would reveal negotiating strategies and tie their hands in discussions. Obviously it would not be sensible for the Government to reveal its detailed negotiating strategy in public – as all the panellists at the IfG event acknowledged. But by focusing on what would be impossible, rather than what could be done, David Davis betrayed the lack of attention the Government has so far paid to the positive contribution that Parliament could and should make to the Brexit process.

Commons v Lords While the Lords has used its existing committee structures to look into the implications of the decision to leave the EU, the Commons has been busy arguing over who should be involved in scrutiny. The result is that details of the Commons committees set to scrutinise two new Brexit departments are only now starting to emerge and their Chairs will not be elected until 19 October – four months after the referendum. The committees to scrutinise the Department for Exiting the EU and the Department for International Trade look set to be chaired by Labour and SNP respectively. Potential high-profile names – such as Labour’s Hilary Benn – are already emerging for both roles. Given that Brexit negotiations will be of a completely different scale and significance to any previously undertaken ‘the most complicated negotiations of all time’, as Davis himself said the event panellists argued the case for a different approach to parliamentary involvement at various stages of the Brexit process.

What the experts think At our event, Tom Hickman, a barrister and expert in public law, argued for parliamentary involvement at the very start of the Brexit process, prior to the triggering of Article 50 of the Lisbon Treaty. But the Government has firmly rejected the need for this involvement, arguing that the UK’s departure is a matter on which the Government can exercise its royal prerogative. The courts will examine the legal arguments on 17 October. Former Conservative Foreign Office minister, Alistair Burt, thinks that the referendum provided a clear mandate for Brexit, but a blank sheet regarding the nature of that departure. In his view, it is now up to MPs to decide the manner of our departure and future relationship with the EU. One role for the future Commons Brexit committee should be to contribute to and scrutinise the evidence base used to answer those questions. Lord Boswell agreed that one aim of parliamentary scrutiny should be to contribute to the Government’s thinking about its negotiating aims prior to the start of negotiations. Seema Malhotra MP, the Labour MP and former frontbencher, believes politicians of all parties have a responsibility to move away from adversarial politics in the interests of achieving the best possible exit from the EU. The referendum campaigns have created a high degree of expectation amongst the public about what the UK’s departure could deliver, with the potential risk of further undermining trust in politicians if those expectations are not met. While it would be impossible for any Brexit deal to meet the wishes of every single voter, it is possible for the process of getting to that deal to be sufficiently transparent and inclusive, to start rebuilding public confidence in the political process. Parliament will be required to fulfil all three of its traditional roles in relation to Brexit: legislating, facilitating debate and scrutinising government. Both government and Parliament need to think imaginatively about ways of ensuring it makes the greatest possible contribution as it does so.

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