The authoritative source for independent research on UK-EU relations

27 Nov 2019

A Changing EU

EU scrutiny

Political practice is very different from academic discourse.

Even among those with experience, emotions trump arguments, and a factor emerging in this general election campaign is that politicians are expected to be generalists able to engage on any issue, even if they would prefer not to.

In these terms, my recent experience is atypical. I came from a fairly conventional political background: an MP for 23 years, a frontbencher or minister for most of this, and then from 2010 a Life Peer.

I should perhaps also confess that I have qualifications in classics and agricultural economics, and spent time as a farmer and National Farmers Union County Chair, plus a spell in the then Ministry of Agriculture helping to ‘invent’ milk quotas.

In 2012, I was asked (as an ‘innocent’?) to take on an official role as Chair of the Lords EU Committee.

This obliged me to become politically non-affiliated, and defined my future parliamentary work as a specialist, although the (record) seven years I spent in the role until retiring this September convinced me that every day something cropped up which I did not know or had not thought of.

I have already published an article summarising my experiences, and this blog concentrates on issues in the scrutiny process highlighted by Brexit, and also looks forward to the very different situation when (or if?) we eventually leave the EU.

As I reach my ‘anecdotage’ (nearer 80 than 70) may I kick off with one of my favourites?

It is alleged that in the nineteenth century the Foreign Office classified parliament as a ‘medium sized power, not particularly friendly’, and this remark captures the tenor of the relationship between the executive and parliament.

There will of course always be tensions, as Select Committees in both Houses become more assertive, and are seen by participants as offering an alternative political career path to work in the debating Chamber.

This is not new: almost my first memory as a young researcher – before we joined the then EEC – was seeing the visible discomfort of a senior figure at what was to become the UK’s Permanent Representation at an intrusive line of questioning at a select committee hearing.

Ministers and senior officials have their own styles, but I would respectfully suggest that the art is to approach these exchanges without setting out to confront, while properly reserving their inner thoughts and secrets to themselves and their colleagues.

An invitation from select committees to inform or consult is usually well-received, and in turns pays dividends for active ministers – and, of course, the process of scrutiny contributes to better-informed debate.

To date, the conventional scrutiny work of the Lords EU Committee has worked remarkably smoothly.

The scrutiny reserve resolution binding ministers not to proceed (unless under exceptional circumstances) until scrutiny is completed provides the ‘teeth’, but it has been underpinned by the culture.

Exchanges between our Committee and specialist sub-committees and ministers are normally on the record, and represent a fascinating exercise in forensic skills drawing constructively on the wide experience of Committee Members, and with the assistance of excellent staff.

I learnt very soon of our EU-wide reputation as a ‘go-to think tank’ on a range of issues, both technical and strategic. The mutual respect of departmental officials and Committee clerks also helps smooth the process.

When government recently announced (defensibly) that it would prioritise its negotiating strategy over routine EU work we were able, through reference to the scrutiny reserve, to ensure continuity of government explanatory memoranda, and an explanation for their criteria for setting priorities.

Other areas remain sub-optimal.

Ministers sometimes delay responses to our reports, and the early assurances given about information on the conduct of negotiations have not been fulfilled, and compare badly with the working relationship between the Commission and European Parliament.

If secrecy is felt to be a problem, ministers have long been able to participate in private sessions with select committees, or even to brief their chairs confidentially, but this has rarely happened.

Of course, we are aware of the tension between frankness and accountability, but a bit of careful statecraft is a way of avoiding stakeholder backlash.

All this could get worse if Brexit eventually happens, as existing institutions will need considerable adaptation.

Parliamentary scrutiny of the operation of the Withdrawal Agreement and the joint and specialist committees will be essential, as will a thorough examination of any fresh EU legislation which will apply during the transition.

Later will come scrutiny of negotiations for a free trade agreement and matters raised in the political declaration, and of institutions established to further or maintain co-operation.

The UK’s Permanent Representation to the EU itself will have to morph into a relationship-centred role, and MPs will also have to do more of this by fostering links with their European counterparts.

Parliament must retain a formal scrutiny role and policy interest in these issues, and there is plenty to do (and for me to write about), but I am sure that the new relationships will work better through positive engagement and mutual respect, rather than trench warfare.

By Lord Boswell of Aynho. 

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