On 6 September 2016 Professor Derrick Wyatt QC presented evidence to the House of Lords EU Select Committee on Parliamentary Scrutiny of the Brexit negotiations. In this article, Professor Wyatt summarises his contribution. A video of the oral evidence session is included below the article.

When the uk triggers article 50, formal negotiations on a withdrawal agreement and a future trade agreement will begin

When I last wrote for this blog about Brexit and the Article 50 process, shortly after giving evidence to the House of Lords EU Select Committee, I was writing about something that might happen. Now, more than two months after the referendum decision to leave the EU, I am writing about something that will happen.  Once Article 50 is triggered, the UK will commence negotiations on two treaties, a withdrawal agreement, and a future trading agreement. Despite early indications from the Commission that negotiations on the trading agreement could not begin until the UK had exited the EU, there seems to be acceptance from national governments that negotiations on the withdrawal agreement and the future relations agreement will run in parallel. Taoiseach Enda Kenny said as much in the Dail very shortly after the UK referendum, and Chancellor Angela Merkel said much the same thing in July. Some parallelism in negotiations certainly seems to be the assumption of Article 50 of the Treaty on European Union, since it refers to the withdrawal agreement taking account of the “framework” of the future relationship between the departing Member State and the EU. There is also a strong economic and political argument for parallel negotiations – it opens the way for a smooth transition between UK withdrawal from the EU, and the onset of a new trading relationship between the UK and the EU. One of the issues which is increasingly being talked about within the UK Parliament is the extent to which Parliament will get a chance to scrutinise the ongoing negotiations of the UK with the EU on the terms of the Brexit agreements – a process likely to take several years.

The current requirement for parliamentary engagement with treaties negotiated by HMG is simply that the Government lay the final text, as agreed between the parties, before Parliament. This gives the House of Commons the opportunity to reject the treaty, and the House of Lords the opportunity to object to the treaty.[1] The House of Lords EU Select Committee published a short report after the referendum saying that in view of the importance of the Brexit agreements, there should be “enhanced parliamentary oversight” of the negotiations,[2] and it is currently examining how this can be achieved in practice. In this brief blog, I consider the following issues: whether it is practical for a parliament to oversee international trade negotiations, the case for scrutiny by the UK Parliament of UK negotiations of the Brexit agreements, the aims of parliamentary scrutiny, and how parliamentary scrutiny could cope with issues of confidentiality which arise in international negotiations. I have explored these issues in written and oral evidence to the House of Lords EU Committee, and I summarise some of that evidence in this blog.

Is it practical for a parliament to oversee international trade negotiations?

I address this question by considering the role of the European Parliament when the EU negotiates trade agreements with third countries. When the EU negotiates a trade agreement, the Council issues negotiating directives to the Commission, which carries out the negotiations, and the Council oversees the Commission through a committee which liaises with the Commission negotiators. Since the Lisbon Treaty, the European Parliament has had the power to reject trade agreements, which gives the Council and the Commission incentives to ensure that the final text is going to be one which the European Parliament is likely to approve. In practice, in recent years, the European Parliament, with the cooperation of the Commission, has increased the level of transparency and accountability which applies when the EU negotiates trade agreements with third countries.  It is this level of transparency and accountability which currently applies to protect the interests of the UK public when trade agreements are negotiated by the EU which bind the UK.  But quite apart from that, the role of the European Parliament in EU trade negotiations gives some indication of what sort of role is feasible for a parliamentary body vis-à-vis the executive authorities responsible for negotiating trade agreements.

Here are key points about the European Parliament’s role when the EU is negotiating a trade agreement.

• The European Parliament must be kept informed of the course of negotiations;
• To ensure this, the European Commission updates regularly the relevant European parliamentary committee on the state of play of negotiations;
• draft negotiating texts can be consulted by members of the European Parliament under conditions of confidentiality;
• the European Parliament can make recommendations to negotiators.

The European Parliament fulfils its responsibilities with the assistance of its International Trade Committee. This Committee prepares drafts for consideration by the Parliament as a whole.  The European Parliament, for example, on the basis of a text prepared by the International Trade Committee, submitted recommendations to the Commission on its negotiations with the US on the TTIP agreement, in a Resolution of 8 July 2015.^[3]

This Resolution of the European Parliament was sent to the Commission, and (for information) to the Council, and the governments and Parliaments of the Member States, as well as to the US Administration and Congress.

The role of the European Parliament in respect of EU negotiations with third countries has not been confined to overseeing the conduct of negotiations by the Commission. The European Parliament maintains a liaison office with the US Congress in Washington, and delegations from the EP and the US Congress meet twice a year, in Europe and the US.

Since the decision to open negotiations on the EU-US TTIP agreement in 2013, discussions on these negotiations have figured prominently in these twice yearly meetings.

This engagement by the European Parliament directly with the US Congress regarding ongoing negotiations is worthy of remark. It is activity which borders upon parliamentary diplomacy, aiming to promote the European Parliament’s perception of the aims and key provisions of a prospective EU-US agreement.

The case for uk parliamentary scrutiny of the brexit negotiations

There is a strong case for constitutional change. Under current arrangements, Parliament is presented with a fait accompli, a “done deal”. All that Parliament can do is to accept or reject (or object to the in the case of the House of Lords) the package. There is no opportunity for Parliament to review and seek to influence the process by which the treaty is negotiated, including the consultation of interested parties. There is no opportunity to review and seek to influence the content of the treaty in its successive stages of negotiation. This is the case no matter how important the content of the treaty for vital UK interests.

The case for increased parliamentary scrutiny of the Brexit treaties is that current arrangements will not provide a standard of scrutiny which is commensurate with the importance of the treaties. By important I mean important for individual rights, important for the economic and political interests of the population, and important for the governmental interests of the devolved administrations and other public authorities (including Gibraltar and the Channel Islands).

The withdrawal agreement will deal – for example – with the rights of residence of some three million nationals of EU countries living in the UK and in other Member States. It is not good enough for such rights to be determined behind closed doors, and then presented to the UK Parliament on a “take it or leave it” basis. That would not be open government, and it would not be accountable government.

The same can be said with equal force for the future relations agreement. Negotiating that agreement will raise large questions of policy, some of them overtly political, some of them not. It will be impossible to dissociate trade access rights from questions of domestic policy. Deciding the former might foreclose elements of the latter.  For example, some aspects of the single market have at times proved politically problematic in the UK. Whether the UK would seek to replicate these aspects in a future relations agreement would be a matter of public interest and debate.

One example was raised recently by the Prime Minister. She referred to the power of the Government to block unwelcome foreign take-over bids. This is not possible vis-à-vis EU companies within the EU framework. But that option could be reserved in a future agreement.

Choices made via the negotiating process could have long term effects for the management of the UK economy. It is difficult to accept that Parliament and public should have to await the conclusion of negotiations before having their say in some formal and structured way about the contents of the agreement.

There is a further consideration. I suggested to the HL EU Committee in my previous evidence that cross party consensus should be sought in negotiating the Brexit treaties. That is of course easier said than done. But if a cross party consensus is lacking there is a risk that the UK’s negotiating position could be undermined even before the treaties are concluded, and/or that the viability of the Brexit treaties could be called in question when there is a change of government. Whatever the difficulties, cross-party consensus is the ideal and should be sought. It is more likely to be achieved in the context of comprehensive parliamentary scrutiny of the negotiating process, than in a possibly heated “take it or leave it” debate on the final text.

What would be the aims of parliamentary scrutiny?

Parliamentary scrutiny of the Brexit negotiations would be conducted by a Committee charged with this responsibility in each House of Parliament.

Parliamentary scrutiny of the negotiations would aim to increase transparency and accountability, but would not aim to do so at the expense of securing the best possible agreements which could be secured. That being the case I shall start with what scrutiny should not aim to do, because any of my suggestions as to what it should do, are to be understood as being subject to this caveat. The caveat is that scrutiny should not aim to micro-manage negotiations in a way which would deprive the Government of room for manoeuvre. This “don’t do” caveat must be linked to what I think should be an over-arching objective of parliamentary scrutiny of the Brexit negotiations – to achieve a successful outcome to those negotiations, including an ambitious and comprehensive free trade agreement between the UK and the EU.

So, that said, back to transparency and accountability, and the nitty gritty of scrutiny in practice. I am talking now about scrutiny in general, in both Houses of Parliament, but will comment specifically on scrutiny in the House of Lords below.

Part of scrutiny would be about the process of the Brexit negotiations. It would aim to find out who the Government is consulting, what the government is finding out as a result, whether the Government is listening to the right people, and whether it is keeping the role of lobbyists in check. Scrutiny should also give a public voice to those seeking to be heard by the Government in the negotiations – businesses, trade unions, civil society generally, the devolved administrations, Gibraltar, and the Channel Islands.

But scrutiny would also be concerned with the substance of the negotiating process. It should offer fact-based constructive criticism of the Government’s conduct of the negotiations, invite the Government to think outside the box, invite the Government to test its own internal advice, and itself be willing to test that internal advice, based on evidence heard by the Houses of Parliament in the course of the scrutiny process.

Moving into more politically charged territory, scrutiny should remind the Government that the referendum result has placed limits on its negotiating options. Scrutiny should influence the negotiations, certainly in the way that reliable information, and high quality analysis and advice will always influence a prudent and receptive negotiator. If Parliament thinks that some outcomes could prejudice Parliament’s ultimate acceptance of the Brexit agreements, it should certainly warn the Government about that.

I also think that scrutiny could and should have an external aspect. I have referred above to what I call “parliamentary diplomacy” on the part of the European Parliament vis-s-vis the US Congress in respect of the TTIP negotiations. I think the UK Parliament could do this too, meeting the European Parliament and national parliaments, and discussing issues in the negotiations between the UK and the EU. The UK Parliament could and should promote a Europe-wide case for an ambitious and comprehensive trade agreement between the EU and the UK.

The approaches of commons and lords to scrutiny will not be the same

The approaches of the two Houses of Parliament to scrutiny of the Brexit negotiations would not be identical. Neither House should impede the ability of the Government to achieve the best possible results for the UK in the Brexit negotiations. Scrutiny must be adapted to that over-arching objective in the national interest.

But the House of Commons is entitled to make a political judgment on what the outcome of the negotiations should be, and to conduct its scrutiny accordingly. The House of Commons is entitled to say –  “if you are going to give this away, it is politically unacceptable”. Far better that such political warnings be given, than that the end result of negotiations fail to achieve support in the House of Commons.

I am not saying that most of the scrutiny of the House of Commons would take this stark form. Most, I think, would not. There would be much more in the way of constructive critical assessment, designed to persuade the Government of the right way forward, from a technical and policy point of view. But the bottom line is that the House of Commons is entitled to reject the final texts of the Brexit treaties, and that reality would be the context for scrutiny.

Scrutiny by the House of Lords would be conducted differently. The House of Lords does not serve democracy by the very fact of its scrutiny. It serves democracy by increasing the transparency of government, giving a voice to stakeholders, and by the quality of its scrutiny. The challenge for the House of Lords, is to strengthen the UK Government’s hand in the negotiations, by calling that Government to account. Constructive critical assessment would the means by which this could be achieved. But that does not mean that the House of Lords should be blind to political and practical realities. If the House of Lords is convinced that the Government is barking up the wrong tree, for whatever reason, I am sure it would say so.

It may be that the Committee of the House of Lords charged with responsibility for scrutiny of the Brexit negotiations could play a particularly valuable role in what I have described as “parliamentary diplomacy”.  During a period in which feelings about the UK on the EU side will be very mixed, and in which relations between HMG and the governments of other EU Member States may deteriorate at certain stages in the negotiations, there will be a need for some official organ or agency of the UK to be, and to be seen to be, unequivocally committed to a warm as well as close relationship with the EU, and to positive outcomes at the end of the day. The relevant Committee of the House of Lords would be well suited to that task.

Parliamentary scrutiny of international negotiations raises confidentiality issues but they could be surmounted

The Government might say that negotiating treaties is an intrinsically executive function, with features which militate against parliamentary scrutiny, in particular, the need to keep to keep the government’s negotiating position and strategy secret. The need for confidentiality does not in my view militate against parliamentary scrutiny, provided scrutiny is handled properly.

In the first place, Parliament manages to strike the right balance between scrutiny and secrecy in the fields of Defence, Intelligence and national security. It can surely do the same in the context of the negotiation of trade agreements.

I refer by way of information to the practice of the EU institutions in this context. The Council has on more than one occasion published its negotiating mandates. The Commission makes available negotiating texts to the European Parliament on a confidential basis. This is done subject to safeguards, such as confining documents in a secure reading room, and holding meetings in camera. It is likely that negotiating texts relating to the Brexit negotiations will be made available to MEPs in the same way as TTIP negotiating texts were made available to MEPs.

In practice, the EU negotiating process is a fairly “leaky” process. The Council declassified its negotiating mandate for the TTIP agreement. The Commission had pressed for this. But by that time the negotiating mandate had been leaked by an MEP in any event. Drafts of parts of the EU-Canada CETA agreement have been repeatedly leaked. But international negotiations are in general fairly leaky affairs. There is a website which specialises in covering international trade negotiations and publishing leaked negotiating texts and other leaked information.[4] UK negotiating positions will be vulnerable to leakage at the EU end, whatever the UK Government or Parliament does.

Overall, I would counsel maintaining a sense of proportion about the requirements confidentiality in this context. National governments around Europe, including HMG, will be briefing the press, European officials will be briefing the press, and Members of the European Parliament will be briefing the press, on and off the record.

In any pecking order of serious commitment to striking the right balance between transparency and confidentiality, it is likely that the UK Parliament would come out somewhere near the top. In referring to the reality of expectations of confidentiality concerning contemporary international trade negotiations, I am neither condoning nor counselling a cavalier approach. But I would argue for a balanced and realistic approach, which would not undermine the process of parliamentary scrutiny of the negotiation of the Brexit agreements, in the name of an exaggerated regard for the needs of confidentiality, while leaving the British public to be informed of the progress of negotiations by MEPs, or from browsing the internet. Throughout, the balance between confidentiality and transparency will be a question of judgment. There is no reason to doubt that members of the UK Parliament will have more than ample judgment for the job in hand. My conclusion, as regards confidentiality, is that any problems that might arise can be overcome. And my overall conclusion is that the negotiation of the Brexit agreements should be subject throughout to the most thorough parliamentary scrutiny possible.

 

Postscript – Brexit Minister accepts the  principle of parliamentary scrutiny of negotiations

On 12 September the House of Lords EU Committee heard evidence from the Rt Hon David Davis MP, Secretary of State for Exiting the EU. Mr Davis accepted that there would be parliamentary scrutiny of negotiations, and that Parliament would not have to await the conclusion of those negotiations. He said:

“It will not be a black box out of which a treaty drops at the end. Indeed, in many ways, the treaty will be the last piece.

Let me highlight it. First, there will be a whole series of negotiating rounds, out of which will come communiqués, prime ministerial Statements and your summoning me back here to talk about this again. A great deal of detail will come out of that. I guess that it will start at the point of triggering Article 50. At that point, we will have some clear public negotiating guidelines. There will be subtleties we will not talk about, but that will be where it starts.”

Referring to CRAG, he added: “Frankly, that will be just the end game.”

But Mr Davis drew a distinction between disclosing Government negotiating positions to Parliament in advance, and disclosing them once they had been disclosed to the EU side.

“I can entirely see accountability after the event—that is very clear—and not very long after the event either; I am not talking about a year later. In advance, I do not think that it is possible for parliamentarians to micromanage the process. That would not give us an optimum outcome for the country. Much of the confidentiality I was talking about will be time related. We can tell you something late, but we cannot tell you in advance.”

The use by Mr Davis of the word “micromanage” is interesting, since this was a word I used in my earlier evidence to describe what it was that Parliamentary scrutiny should not aim to achieve. In my evidence, however, avoidance of micromanagement by Parliament did not exclude scrutiny of Government negotiating positions in advance, on the contrary, I referred to the example of the European Parliament’s scrutiny of EU negotiations:

“I come to the earlier point about whether or not there should be ongoing scrutiny of positions that the Government are about to take. I refer to the current practice at the European Parliament and the Commission. The Commission undertakes, and, as far as I know, fulfils the undertaking, to let the European Parliament know what it is proposing and to give that information to the European Parliament in good time for the Parliament to come back to the Commission and for the Commission to act upon that comeback, should the Commission decide that it is appropriate. That is a kind of scrutiny reserve principle, and it is in paragraph 24 of the 2010 framework agreement between the Commission and the European Parliament.”

Mr Davis (who remarks in his evidence to the fact that he has read the transcript of the previous hearing) refers to practice on the EU side:

“The area we have looked at, which may be of particular interest to the Committee Chairman, is the extent to which the Commission notifies the European Parliament, for example, and when that is confidential and when it is not. We have not grounded it all yet, but that is one area where we might be more open than otherwise, because we would not want either House of Parliament to be disadvantaged with respect to the European Parliament.”

This is in response to a comment by a member of the Committee that the Government might find itself wrong-footed if it did not disclose to Parliament UK positions which had been leaked to the press from the EU side. What Mr Davis probably means here is that the UK Government will not let that happen, and that the UK Government will disclose to the UK Parliament UK negotiating positions once they have been disclosed to the EU, since those positions will then be disclosed by the Commission to the European Parliament. Mr Davis’ position is explained further in an exchange with Lord Teverson, in which Mr Davis says that “We will certainly match and, hopefully, improve on what the European Parliament sees.”

In all this the context  is the UK Government providing to the UK Parliament information about UK negotiating positions before the UK Parliament gets to hear of those positions via disclosures or leaks from the EU side. But the broader point which must surely be addressed by the UK Government is whether the European Parliament is to exercise more scrutiny over the EU side of the negotiations than the UK Parliament is to exercise over the UK side of the negotiations. It would be a sad irony if the first taste of the British people gaining control over their own affairs after the Brexit vote would be diminished parliamentary control over the negotiation of trade agreements which affect their lives. I retain the hope that that will not be the case.

 

References:

[1] Constitutional Reform and Governance act 2010.

[2] 1^st Report of Session 2016-2017, entitled Scrutinising Brexit, http://www.publications.parliament.uk/pa/ld201617/ldselect/ldeucom/33/33.pdf

[3] http://www.europarl.europa.eu/sides/getDoc.do?type=TA&language=EN&reference=P8-TA-2015-0252

[4] This information is from Christopher Hermann’s article “Transleakancy”, published in Trade Policy between Law, Diplomacy and Scholarship. Liber Amicorum in memoriam Horst G Krenzler, page 38, at page 45. The website referred to is bilaterals.org and is to be found at http://www.bilaterals.org/

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