This week saw the start of the first legal challenges to aspects of the Brexit process, the first in what will no doubt be a great deal of legal and parliamentary activity around Brexit. Parliamentarians in particular are keen to engage with the Brexit process and to hold government to account for the decisions it makes.
Both Houses already have existing structures established specifically for the purpose of scrutinising EU legislation, from select committees to parliamentary questions. But will this activity be co-ordinated and fed into government in a way that adds real value?
The work of select committees
The Lords has a committee structure devoted to EU issues (a central EU Select Committee and six policy-focused sub-committees), and the Commons has a single European Scrutiny Committee. These committees consider documents from the EU – which will continue to flow from Brussels for as long as the UK remains a member – and seek debates on those they think most significant. But when the UK leaves the EU, these structures will likely be dismantled, or at least reconfigured.
Each House also has select committees which will take an interest in the implications of Brexit. The Lords has a number of sessional committees (including Economic Affairs and Constitution) as well as the EU Select Committee, and sets up a series of ad hoc committees in each parliamentary session to look at particular topics. These committees will concern themselves with issues relating to policy and process around Brexit to varying extents.
The Commons, however, has a committee for each government department, so the machinery of government changes introduced by Theresa May will also be reflected here, with committees to scrutinise the new Department for Exiting the European Union (DEEU) and Department for International Trade (DIT). Other established committees will also take an interest of course – particularly Foreign Affairs; Environment, Food and Rural Affairs; Public Administration and Constitutional Affairs; and Treasury. And the overarching Liaison Committee (made up of the Chairs of all the other committees) will no doubt ensure that its tri-annual evidence sessions with the Prime Minister have a Brexit flavour.
In addition to the work of select committees, there should be plenty of opportunities for the two Houses as a whole to question the various ministers involved in delivering Brexit. In the Commons, ministers answer oral questions on a five-weekly cycle. This means that most weeks at least one of the three key Brexit ministers (David Davis, Liam Fox and Boris Johnson) will have to appear before the Houses to account for progress in negotiations. Ad hoc statements, Urgent Questions and written questions will provide further opportunities for scrutiny.
Challenges in engaging Parliament
But Parliament will face challenges in engaging with Brexit. The negotiations the Government will need to conduct will be multiple and overlapping. Inevitably, the Government will be unwilling to reveal in advance its entire negotiating strategy, including its red lines. It will need to give Parliament a clear statement of its negotiation aims and the progress made. Without a benchmark and regular updates, it will be difficult for Parliament to assess whether the Government is being successful. So there is a question about the extent to which meaningful scrutiny of a negotiating process is really possible.
A second challenge will be how to co-ordinate parliamentary work on Brexit. Commons committees tend to operate in silos, fighting to secure the most high-profile areas of work (despite some encouraging progress). Instances of deliberate co-operation between the Houses are usually confined to actual joint committees with membership from both the Commons and the Lords. But Brexit is too important to be the subject of parliamentary turf wars. The scrutiny process would be enhanced by active co-ordination within and between the Houses, and the Commons Liaison Committee could play an important role here.
Another idea is the establishment of a joint Commons and Lords Committee on Brexit. This would have limited value if it simply duplicated the work undertaken by other parliamentary actors. Where it could add real value would be if it acted as a co-ordinating mind for their efforts: highlighting linkages and identifying gaps.
A third challenge for Parliament will be ensuring that its efforts feed into government thinking in a meaningful way. Ministers and civil servants tasked with delivering Brexit won’t always have time to attend numerous evidence sessions or read long reports. Committees should consider alternative outputs – shorter briefing notes or oral briefings on their findings – to maximise the impact of their efforts.
Parliament is rightly proud of its ability to marshal its relatively limited scrutiny resources to respond to shifting circumstances, adapting to fulfil its roles of scrutinising government, passing legislation and providing a forum for debate. But Brexit is a challenge on a different scale to any seen for decades. Parliament must prioritise its relatively limited scrutiny resources carefully and deciding where best to focus its energies. It needs to rise to this challenge if it is to play its part in delivering a successful outcome for the UK outside of the EU.