Article 50 (Constitution Committee Report)

Lord Boswell of Aynho Excerpts

Tuesday 22nd November 2016 Lords Chamber

[Lord Boswell of Aynho (Non-Afl)]

My Lords, I am grateful to the noble Lord, Lord Lang of Monkton, for his eloquent introduction to the debate, and to his committee for its authoritative analysis of the important questions of domestic, constitutional and political principle that arise in relation to the issue of a notification under Article 50. We also await the judgment of the Supreme Court, and I shall not dwell further on Article 50.

What my committee’s report seeks to do, in contrast, is to give an appreciation and a structured outline of the whole Brexit process, and to identify the points within that process where parliamentary involvement will be required. We have broken the process down into four phases: a preparatory phase, in which we now find ourselves; a phase of formal negotiations in accordance with Article 50 of the EU treaty; the ratification phase, when Parliament will be asked to approve whatever agreement has been reached; and finally the implementation phase, when Parliament gives effect to the agreement in domestic law.

This is a logical sequence, but not necessarily a chronological one. In reality, these phases will have to overlap. Indeed, I welcome the Government’s intention to proceed with implementing key elements of withdrawal, by means of its great repeal Bill, in tandem with the negotiations. It is of course vital that once any agreement is ratified and takes effect, there be as seamless a transition as possible to a new legislative framework.

But these are all points of process; what really matters is the substance. What will Brexit actually mean for the people of this country and of the European Union? Will they, for example, be able to move freely within Europe in search of jobs? Will existing rights, whether of employment, property or residence, be respected? And what will Brexit mean for businesses? Will they be able to trade freely across borders? Will United Kingdom airlines be able to fly between European cities? Will EU fishermen continue to fish in UK waters? Will police forces still be able to extradite criminals to and from the European Union? The list of questions is almost endless and covers the whole bandwidth of government.

The EU Committee and its six specialist sub-committees are currently considering these questions. I warn noble Lords that we will be publishing a series of short reports in coming months, possibly as many as 20, covering what we see as the key issues—the ones that will most affect the prosperity and security of our nation and people in the years ahead.

The Government, of course, are asking these same questions as they prepare their own negotiating position ahead of triggering Article 50. But that is the rub. They are exploring all these vital questions largely in secret, and we all know next to nothing about the process whereby they are finalising their approach to the negotiations, let alone the goals they have set. Our report is a plea for effective, structured parliamentary scrutiny of the substance of Brexit. Too much is at stake for Brexit to be left to government alone, and for Parliament, as the seat of our democracy, to be restricted to providing a rubber stamp.

We have all heard Ministers’ refusal to offer a running commentary and their rejection of parliamentary micromanagement of the negotiations. With respect, these are Aunt Sallies. Nobody imagines that Parliament can itself conduct tough negotiations that will take place behind closed doors. However, if the Government do not expose their strategic thinking to scrutiny early in the process and embrace the opportunity of genuine dialogue with stakeholders within Parliament and beyond, they risk alienating those whose support they will ultimately have to rely on if the final agreement is to be implemented successfully. That is why in Chapter 2 of our report we conclude that “accountability after the fact” is simply inadequate, and it is why, in paragraph 35, we recommend that both Houses of Parliament,

“be given an opportunity to debate and approve the negotiating guidelines, at least in outline”.

That is absolutely fundamental to the legitimacy of the whole process. Incidentally, in my experience it would also be the expectation in most, if not all, other European Parliaments, were they to find themselves in this position.

Ministers have said in response that they cannot go into the negotiations with all their cards face up—they need to keep something back. There is of course an element of truth in that, but it is not always wise to clutch all your cards close to your chest. Occasionally, you need to play one to draw other cards out. In my view, the whole process of negotiation is one of creating a favourable atmosphere by gradually exposing your hand, and if, in doing that, you have the express endorsement of a sovereign Parliament at your back, you will be much stronger in your negotiating position.

So the Government need to strike a balance. They need to offer enough information to secure parliamentary and public buy-in, but not so much as to undermine their ability to negotiate in detail and to make the trade-offs that will certainly ultimately be needed. That is the theme of Chapter 5 of our report, on scrutiny of the negotiations. We feel that the negotiations cannot be a black box out of which an agreement magically emerges after two years. Parliament must be actively engaged in scrutiny throughout the process. That, I suggest, is why it is imperative that the House designate a specific committee to take the lead in scrutinising the negotiations. Only such a committee can provide the consistency and continuity of membership and staff to engage in sustained, thoughtful scrutiny over a period of at least two years, building up, one would hope, a relationship of trust with government, while of course respecting the confidentiality of sensitive information.

Some noble Lords may say, “Yes, but look at the number of debates we have been having on Brexit and at the number of Questions being tabled; surely more than enough is going on without appointing a committee to scrutinise Brexit”. But that misses the point. This House performs three key functions. It scrutinises legislation—and there is more than enough legislation coming down the track to keep this House and its legislative scrutiny committees busy. It is also properly a forum of public debate on major issues, and our debates, as this afternoon in the Chamber, perform a vital function in that regard. However, the House’s third core function is to scrutinise the Executive, and that scrutiny function needs different and distinctive structures.

The European Union Committee, which I chair, has scrutinised successive Governments’ policies towards the European Union, formerly the European Community, for the more than 40 years of our membership. It is not glamorous work. It is done largely by means of correspondence, supplemented by public and private meetings with Ministers and officials, and draws on the skills of highly expert Members and staff. It has teeth, thanks to the scrutiny reserve resolution. It works and it is still needed. It holds Ministers to account and acts as a vital discipline for officials, exposing and interrogating sloppy thinking, and it ensures that there is an audit trail for the many decisions taken by Ministers on our behalf in Brussels. Of course, it always leaves open the possibility that, on issues of major importance, it can make a report to the House and initiate a wider debate. That is what the House should aim for as we go into these negotiations: effective and sustained scrutiny conducted by a properly resourced and expert committee, drawing on the skills of Members and staff of the House, respecting the confidentiality of sensitive information and making reports to the House as appropriate on the key issues of principle that will undoubtedly arise, but with our emphasis throughout on fleetness of foot and flexibility rather than on covert obstructionism.

For such a scrutiny model to work, the Government will need to make a positive commitment to engaging with Parliament and to providing a steady stream of information to committees. The Secretary of State for Exiting the EU has already been helpful in indicating that Parliament will have equality of arms with the European Parliament in access to information relating to the negotiations. The noble Lord, Lord Bridges of Headley, has also been enormously courteous and generous in talking to Members across the House and listening to their concerns, and I would like to take this opportunity to express my personal thanks to him. But I hope he will agree with me that it is time now to focus our efforts on how we can all, working together, make a success of Brexit.

In conclusion, effective, engaged parliamentary scrutiny is not a threat to Brexit or the national decision. It is, or should be, the Government’s candid friend, and the best way to ensure an outcome that commands parliamentary and public support and that works to our benefit. I look forward to the debate and to the Minister’s response.