House of Lords: Scrutiny of the new UK-EU relationship

Nicola Newson

New House of Lords committee structure

European Affairs Committee

A new House of Lords European Affairs Committee will be appointed with effect from April 2021. The appointment of the new committee was agreed by the House in January 2021. This followed the Liaison Committee’s review of committees, completed in December 2020. The remit of this new committee is expected to include:

Consideration of matters relating to the UK-EU relationship.
Scrutiny of ongoing UK-EU negotiations. At the time the Liaison Committee proposed this as part of the new committee’s remit, the future relationship negotiations were still in progress. These have since concluded, resulting in the UK-EU Trade and Cooperation Agreement (TCA), but responsibility for scrutinising any future UK-EU negotiations could sit with the new European Affairs Committee. It is envisaged scrutiny of negotiations and agreements with all other countries and organisations will sit with the International Agreements Committee. This became a standalone committee in January 2021, having started out as a sub-committee of the European Union Committee.
Scrutiny of the implementation of the Withdrawal Agreement and the TCA.
Scrutiny of the operation of the Protocol on Ireland/Northern Ireland and new EU laws applying in Northern Ireland through the protocol.

The European Affairs Committee will replace the existing House of Lords European Union Committee and its sub-committees, although these will continue to operate until the end of March. The European Union Committee was originally established in 1974, following the UK’s accession to the then European Economic Community. The committee’s remit has been to:

Scrutinise EU documents, including policy proposals and draft legislation that would in due course apply in the UK.
Conduct thematic inquiries into policy areas with an EU dimension.
Develop interparliamentary dialogue with the EU.
Since March 2020, consider the implementation of the Withdrawal Agreement and the Government’s conduct of the future relationship negotiations with the EU.

Sub-committee on the Ireland/Northern Ireland Protocol

The new European Affairs Committee will be able to appoint a sub-committee on the Ireland/Northern Ireland Protocol. The Lords agreed in January to the Liaison Committee’s recommendation that this sub-committee should be appointed on a temporary basis. The sub-committee will be reviewed in or before November 2022. The Liaison Committee has outlined areas the sub-committee will probably focus on:

Scrutiny of new or amended EU legislation within the scope of the protocol. Scrutiny will need to be coordinated with the Northern Ireland Assembly, as there is an overlap between reserved and devolved competences in the areas covered by the protocol.
Scrutiny of the Northern Ireland-related work of the governance bodies established under the Withdrawal Agreement, including the Joint Committee, the Ireland-Northern Ireland Specialised Committee and the Joint Consultative Working Group.
Monitoring the protocol’s political and socio-economic impact on Northern Ireland.
Reviewing the ongoing impact of the protocol (and of UK withdrawal from the EU more broadly) on the UK-Irish bilateral relationship.
Developing interparliamentary dialogue in relation to the protocol, including with the Northern Ireland Assembly, House of Commons, Irish Oirechtas and (where relevant to the protocol) the Scottish Parliament, Senedd Cymru/Welsh Parliament and European Parliament.

Scrutiny mechanisms

The Earl of Kinnoull, current chair of the European Union Committee, has pressed the Government for details of how Parliament will be able to scrutinise proposed changes to EU laws that will continue to apply to Northern Ireland under the protocol. Michael Gove, Minister for the Cabinet Office, confirmed in January that the Government will continue to deposit new proposals for EU legislation within scope of the protocol and to provide accompanying explanatory memoranda, in line with existing arrangements. He said this would apply “until such time that new permanent arrangements for future scrutiny are agreed”, noting that there was not yet “clarity on the final shape of committees in the House of Commons”.

In response, the Earl of Kinnoull pointed out the Lords had already agreed its new committee structure. He called on the Government to make a commitment to continue depositing EU legislative proposals and government explanatory memoranda on areas within scope of the protocol regardless of the outcome of wider discussions on a new system of EU scrutiny. He also called on the Government to facilitate complementary scrutiny of protocol-related legislation by committees in both Westminster and the Northern Ireland Assembly.

The Earl of Kinnoull also recently questioned the Government about how parliamentary committees will be able to scrutinise the way the Government formulates the positions it takes in the Partnership Council, the joint UK-EU body established to oversee implementation of the TCA. Michael Gove said ministers would continue to correspond with and appear before committees, including Lord Frost, Mr Gove’s successor as the UK co-chair of both the Partnership Council and the Joint Committee, the body that oversees the implementation of the Withdrawal Agreement.

Post-legislative scrutiny of the European Union (Future Relationship) Act 2020

The House of Lords Constitution Committee has recommended the Lords should conduct post-legislative scrutiny of the European Union (Future Relationship) Act 2020 at the earliest opportunity, and should consider how best to review the TCA. This legislation was passed to implement the TCA in domestic law. To ensure the UK could start implementing the TCA (albeit provisionally) directly after the transition period ended on 31 December 2020, the act went through Parliament very quickly. A bill was published on 29 December 2020, completed all its parliamentary stages in both Houses on 30 December 2020 and received royal assent in the early hours of the following morning. The Constitution Committee described this timetable as “regrettable”, affording “severely constrained” opportunities for scrutiny.

Back in 2009, the Constitution Committee recommended fast-tracked legislation should be reviewed within a year, or at most two years, of being passed. The Government has argued this act is not suitable for post-legislative scrutiny because it implements an international treaty. The Constitution Committee disagreed. While it acknowledged Parliament had no power to amend the actual agreement, the committee argued “the form in which it is given effect is of considerable significance and warrants careful scrutiny”. It said the legislative mechanisms used to implement the TCA “have significant and potentially long-lasting constitutional implications, particularly for the role of Parliament and the operation of the devolution agreements”.

Lord Frost’s ministerial appointment

The recent appointment of Lord Frost as Minister of State in the Cabinet Office may provide members of the Lords with the opportunity to question him on the floor of the House. Lord Frost is taking up his new role from 1 March 2021. He will be a full member of the Cabinet, with responsibility for the UK’s relationship with the EU. He will replace Michael Gove as the UK’s ministerial representative on both the Joint Committee and the Partnership Council. The Joint Committee is currently engaged on work to find “pragmatic solutions” to issues around implementing the Northern Ireland Protocol.

Lord Frost’s leave of absence from the House of Lords ended on 1 March 2021, making him eligible to attend the House. He had been on leave of absence since his introduction in September 2020.

Parliamentary questions in the House of Lords are normally addressed to “Her Majesty’s Government”, rather than to a particular department or minister. It is then for the Government to decide which department or minister should answer a particular question. However, the Lords has adapted these procedures in the past to enhance parliamentary scrutiny: in 2009 provision for a dedicated monthly question time for secretaries of state sitting in the House of Lords was introduced on a trial basis. This became permanent in 2011. The last occasion when such a question time took place was in January 2020, as Baroness Morgan of Cotes was Secretary of State for Digital, Culture, Media and Sport for the first month she sat in the Lords. While Lord Frost will serve in the Cabinet, he will not be a secretary of state, so a further procedural change might be needed if the House wished there to be a regular question session.

Parliamentary partnership assembly

Article INST.5 of the TCA creates the possibility for the European Parliament and the UK Parliament to establish a parliamentary partnership assembly. It would consist of members of the UK Parliament and MEPs and would be a forum to exchange views on the UK-EU partnership. It would have the ability to request information from, and make recommendations to, the Partnership Council. The Government has said the exact membership of this assembly would be for the two parliaments to decide.

During the Lords debate on the European Union (Future Relationship) Bill, Labour called on the Government to work with Parliament and the devolved assemblies to establish the parliamentary partnership assembly quickly. Baroness Hayter of Kentish Town, then Shadow Minister for Exiting the European Union, said this would allow parliamentarians across the EU and the UK to play a part in ensuring full transparency and oversight of the specialised committees and working groups established under the TCA. The Earl of Kinnoull, chair of the European Union Committee, also welcomed the idea of establishing an assembly.