Back to the future? House of Commons scrutiny of EU affairs after Lord Frost's exit
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The recent rearrangement of responsibilities for the government’s handling of EU-related affairs raises questions about future parliamentary scrutiny of these issues. In some respects pre-2016 institutional arrangements are restored, but the post-Brexit landscape presents new scrutiny challenges which thus far MPs have not confronted.
After Brexit, Liz Truss – like Lord Frost and Michael Gove before her – is the only member of the Cabinet with routine institutionalised engagement with EU bodies, as Co-Chair of the Joint Committee and Partnership Council.
It is essential that there are rigorous provisions in place for MPs to scrutinise the EU-related aspects of the Foreign Secretary’s responsibilities.
However, in spotlighting the scrutiny arrangements for EU-related matters in the House of Commons, the Frost-Truss switch highlights the fact that, despite the fundamental change in the nature of the UK’s relationship with the EU, MPs have not explicitly confronted the question of how they wish to scrutinise it and hold Ministers to account.
How do MPs want to scrutinise EU-related matters?
The underlying institutional and procedural question for the House of Commons with respect to EU affairs is the same as it ever was: should EU-related matters have dedicated scrutiny processes, including a dedicated Select Committee, or be ‘mainstreamed’ through ‘normal’ ones – which, in the Commons, means ones which are primarily departmentally-based?
But, a year on from the new UK-EU relationship coming into being at the start of 2021, the Commons has not explicitly debated how it wishes to scrutinise it.
With the time-limited creation and then disappearance of the ‘Brexit Committee’, the European Scrutiny Committee (ESC) and the document-based European scrutiny system which it leads have emerged as the most constant factor in the Commons’ EU-related scrutiny landscape – but these continue to exist by default, rather than any active post-Brexit decision, because they were established under non-time-limited Standing Orders in the 1970s after the UK joined the then-EEC.
What are the implications of the Frost-Truss switch for scrutiny in the House of Commons?
The rearrangements surrounding the Frost-Truss switch make for a near-complete reversion, after four-and-a-half years of successive changes, to the basic institutional arrangements for handling EU matters that existed before the 2016 Brexit referendum, in both government and the House of Commons:
EU relations are again subject to scrutiny by a regular departmental Select Committee, in the shape of the Foreign Affairs Committee (FAC); and again fall directly within the remits of two Select Committees, the FAC and the European Scrutiny Committee (ESC).
As things stand, the transfer of ministerial and departmental responsibilities for EU relations back to the FCDO poses scrutiny challenges for the Commons.
This is because, in the elected House, two key mechanisms of scrutiny and accountability – oral questions and Select Committee work – are organised primarily on a departmental basis.
The handling of EU relations as part of a large, high-profile and unpredictable departmental brief increases the competition for parliamentary, ministerial and MPs’ time.
While the shift of ministerial responsibility for EU relations back to the Commons strengthens democratic accountability, paradoxically it might see the time spent on regular scrutiny reduced.
EU matters always faced such pressures when they were the responsibility of the then-FCO before 2016, and in some respects the scale of EU business has shrunk since then. However, the responsibilities of the FCDO have expanded, with the addition of international development; and the relative weight of the Foreign Secretary compared to other Ministers, in terms of exposure to and responsibility for EU relations, is greater.
Question time
In the House of Commons, each department (including the Cabinet Office) has its own question time. Each department’s question time takes place roughly every five sitting weeks, lasts for up to an hour (under Standing Order No. 21) and may cover the full range of the department’s responsibilities.
As part of regular FCDO questions, EU-related matters will also receive less scrutiny through this mechanism in the Commons than they did in the Lords through regular questions during Lord Frost’s time in office.
In the Commons during the same period, Cabinet Office Ministers spent 34 minutes of Cabinet Office question time answering on EU-related matters. This represented 12% of total Cabinet Office question time.
In the same March-December period of 2020, when the lead Cabinet Minister on Brexit-related matters was in the Commons (in the shape of Michael Gove), Cabinet Office ministers spent 1 hour and 40 minutes during Cabinet Office questions answering on EU-related matters, representing 32% of the total time.
If they want it, what could MPs do to secure greater scrutiny of EU-related affairs in the Chamber?
One possibility is that MPs might seek to make greater use of Urgent Questions (UQs) on EU matters, if there is now a prospect of forcing the directly-responsible Cabinet Minister or (in effect) her deputy to the Despatch Box. With the lead Minister now in the Commons, there could also be greater pressure from MPs for government reporting on Joint Committee and Partnership Council meetings to take place via oral rather than written statements, especially if the time available at FCDO questions is felt to be inadequate.
Select Committees
Before the 2016 referendum, the FAC and the ESC operated according to a fairly clear division of labour on EU matters: the FAC scrutinised policy, and the ESC focused on its mandated task of scrutinising EU documents.
Occasional minor tensions between the two Committees were most likely to arise when the ESC conducted a more normal select committee inquiry, with oral evidence sessions, and were often caused because of the difficulties that could arise with government when both Committees sought oral evidence from the same Minister. However, one or both of these committees tended to conduct such intensive inquiries only when the EU Treaties were being renegotiated.
Meanwhile, other Commons Select Committees rarely held inquiries into EU-related matters at all.
This has been accompanied by a shift in the nature of the ESC’s activity. The ESC continues to scrutinise EU documents, but now primarily only those that are relevant to the Withdrawal Agreement’s Northern Ireland Protocol. In tandem with the resulting fall in the volume of EU documents that are subject to scrutiny, inquiry work – and especially the taking of oral evidence – has become an increased element of the ESC’s operation. The House of Commons Library has reported that the ESC held 18 public evidence sessions in the 43 months between late June 2016 and the end of January 2020. It has held 12 in the 23 months since then.
Meanwhile, the FAC has developed a busy post-Brexit, post-Covid, post-COP26 agenda largely away from EU affairs – examining ‘Global Britain’, following up on the 2021 Integrated Review of Security, Defence, Development and Foreign Policy and addressing various relatively novel foreign policy issues like health security and technology, as well as now pursuing its inquiry into the 2021 Afghanistan debacle.
Following the Frost-Truss switch, this Select Committee scrutiny landscape raises several questions.
To what extent will the FAC conduct detailed ongoing scrutiny of the new UK-EU relationship, in the way that the ‘Brexit Committee’ did or the ESC has been? Scrutinising the UK-EU relationship with this kind of intensity would involve a significant increase or re-prioritisation of the FAC’s workload. And FAC Members might not feel that detailed ongoing scrutiny of the UK-EU relationship is what they signed up for.
On the other hand, if the FAC decides to conduct extensive work on UK-EU relations, is there a risk of duplication or tension between the FAC and the ESC, or will the two Committees settle into a new division of labour?
Ministers might wish to appear before both Committees but be unable to agree timely dates to do so, owing to diary pressures; or they might assert that they have an obligation to appear before only one scrutiny committee. While Lord Frost appeared before multiple Commons Select Committees, he stated consistently that he regarded his prime responsibility as being to the ESC, and that he appeared before others as a courtesy. If the ESC wishes to continue to scrutinise the UK-EU relationship in the way that it has been doing most recently, it will rely on FCDO Ministers agreeing to appear.
The availability of Chris Heaton-Harris is – presumably intentionally – likely to be a key mechanism for resolving or preventing any strains that might arise over ministerial Select Committee appearances, but difficulties seem most likely to arise if Select Committees which heard from Michael Gove or Lord Frost wish to continue to hear from the UK Co-Chair of the Joint Committee and Partnership Council – that is, the Foreign Secretary – and she is unable to fulfil all such requests.
What about scrutiny of domestic cross-government matters arising from the UK’s EU withdrawal?
Given that the Cabinet Office does not have its own policy scrutiny committee, there is a question over how the review is to be scrutinised in Select Committee terms. But the output of the review will primarily appear as legislation (both primary and delegated) and so will fall outside the regular work of Select Committees.
In the post-Brexit environment, there is a stronger linkage between domestic regulation and its EU and international implications. Making this link is another scrutiny challenge that the House of Commons needs to address.
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