MPs’ and MEPs’ scrutiny of negotiations

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Will MPs get as much information about negotiations as MEPs?

The Government has committed to giving MPs the same level of information about the Brexit negotiations as their counterparts in Brussels: David Davis, Secretary of State for Exiting the EU, is clear that the Government “would not want either House of Parliament to be disadvantaged with respect to the European Parliament”, and that ministers would “hopefully improve on what the European Parliament sees”.

Article 218 of the Treaty on the Functioning of the European Union defines the European Parliament’s role in negotiations with third parties. A more comprehensive blueprint is set out in the 2010 Framework Agreement on relations between the European Parliament and the European Commission.

As we have shown elsewhere, these documents say that the Commission must:

  • keep  the European Parliament “regularly and promptly informed about the conduct of negotiations until the agreement is initialled”
  • provide  the European Parliament with “all relevant information” that it provides to the European Council, including draft amendments to negotiating directives, draft negotiating texts, agreed articles, the agreed date for initialling the agreement, and the text of the agreement.

At the moment the UK is a member state, not a third party. Therefore, though these documents are likely to apply to negotiations on a future UK-EU relationship, it is less clear whether they will apply to negotiations that cover only withdrawal arrangements. In a joint statement in December, the political leaders of the other 27 member states did not guarantee the level of information set out in the 2010 Framework, instead saying that the EU “negotiator will be invited to keep the European Parliament closely and regularly informed throughout the negotiation”.

Will MPs have the same level of influence over negotiations as MEPs?

As well as access to information, MEPs can pass (non-binding) motions on the Commission’s position. The political leaders of the other 27 member states also promise that representatives of the European Parliament will be invited to preparatory meetings with the Council. The UK Government has as yet made no comparable commitment to MPs.

In addition, MEPs will have a vote on the UK’s exit deal, according to Article 50 of the Lisbon Treaty.

David Jones, former Minister of State for Exiting the EU, said that MPs will also vote on the final Brexit deal, which will take place before the European Parliament’s vote. MPs’ vote will not, however, be as forceful as MEPs’. If MEPs reject the proposed deal, they may be able to send EU representatives back to the negotiating table. This is unlikely to be the case for MPs. There has been debate over the nature and significance of the UK Parliament's vote on the Brexit deal, which we explain in greater detail here

Some legal experts believe that an Act of Parliament will also be necessary to authorise withdrawal. In light of the Supreme Court’s judgement on Article 50, others disagree.

How could the Government give MPs the same access to information as MEPs?

There are broadly three routes to achieving the Government’s pledge to give MPs the same level of information as MEPs, none of them mutually exclusive.

  • Emulate Transatlantic Trade and Investment Partnership (TTIP) procedure. The Government could emulate the process adopted for TTIP, the prospective trade deal between the EU and the United States. In December 2015, the EU and the United States agreed to give both MEPs and their American counterparts access to documents which consolidated information about the US and EU negotiation positions(the consolidation approach sidesteps the worry of mutually assured blabbing). Parliamentarians have been allowed to view these documents only in secure reading rooms – with no smartphones allowed. The Government could seek a similar agreement with the EU. By definition, an approach involving consolidated documents would achieve parity.
  • Hold secret viewings. Alternatively, the Government could simply introduce a confidential procedure for information sharing at Westminster. Some researchers suggest that parliamentarians on relevant committees, like the Commons Committee on Exiting the European Union, should be allowed to see the information “on privy council terms”. This means that they would see information on the condition they did not reveal it.
  • Use committee hearings. The Government could send representatives to regular sessions at relevant select committees to face questions on the progress of its negotiations. David Jones hinted that the Government intends to adopt this approach. However, this alone will not amount to genuine parity unless ministers go into significant detail at these hearings.

How could the Government give MPs the same level of involvement in decision making?

On decision making, the Government has not promised Parliament parity with MEPs. In one committee evidence session, David Davis committed only to what he called “accountability after the fact”, though he promised it would be “not very long after.” However, the Government could take measures to get closer to parity:

  • Allocate time for motions. The European Parliament is able to express its view on negotiations by voting on motions. To achieve the same in Westminster, the Government would have to allocate time for Parliament to vote on resolutions, after leaving time enough for parliamentarians to read relevant documents. These resolutions would be legally non-binding, so would not amount to Parliament “micromanaging the process”, which David Davis says he wishes to avoid.
  • Establish a scrutiny reserve. At present, ministers do not agree to any EU proposal in Brussels while it is still under scrutiny by the Commons European Scrutiny Committee and Lords European Union committee – though they may do so in exceptional cases. In principle, this practice could be applied to Brexit negotiations too. However, given the size and complexity of the negotiation, this approach may not be feasible.

On ratification and authorisation, the Government has not promised parity either. For the UK Parliament and the European Parliament to have equal legal status in this regard, UK law would have to change. The Government could, however, decide to provide additional opportunities for Parliament to vote on the outcome of negotiations, without providing a formal right for them to do so in law.