16
Examination of witnesses
Dr Ruth Fox, Matthew England and Professor Holger Hestermeyer.
Q92 The Chair: Good morning, and welcome to this session of the House of Lords Select Committee on European Affairs where we continue our inquiry into the issue of dynamic alignment, focusing today particularly on the issue of parliamentary scrutiny. For our first session, we are delighted to welcome as witnesses Dr Ruth Fox, who is director of the Hansard Society, Matthew England, who is a researcher for the Hansard Society, and, joining us online, Professor Holger Hestermeyer, professor of international and EU law and head of department of international and EU law at the Diplomatic Academy of Vienna. Welcome to you all. It is a great pleasure to see you and we are very grateful to you for giving us so much of your valuable time.
This is a public session. It is being broadcast. There will be a transcript provided. It will be sent to you in draft for the correction of any errors and omissions you may notice. We are aiming to get this session done by noon, so we need to be as succinct as we can be with the questions and the answers. Very helpfully, Dr Fox and Matthew England have divvied up the Hansard Society responses between them, so that will be an enormous help. Thank you very much for that.
Perhaps I can get us started with a general question to all of you. I will ask Professor Hestermeyer to respond first. How important is it, if at all, that the prospective dynamic alignment arrangements with the EU are subject to the scrutiny procedure under the CRaG Act as it currently stands?
Professor Holger Hestermeyer: Thank you very much for the question. I have to disclose a bias. I am a strong fan of parliamentary scrutiny procedures and, accordingly, hope for them to be very strong. I have long said that the procedures are currently insufficient. That is true not just for scrutinising EU documents but also for scrutinising international documents. The US-UK pharma deal that you have heard so much about, for example, also includes raising the NICE threshold, which is unusual in such an agreement that has been implemented through statutory instruments. Without parliamentary scrutiny, I do not think that that is the right approach.
I take the question to be a bit ambiguous. There has to be some understanding of how we scrutinise first, so I will answer the question in two steps. First, I will say what is subject to CRaG scrutiny and, secondly, I will quickly run you through how dynamic alignment would work and which acts would be scrutinisable under CRaG.
CRaG lays down, in Section 20, what is subject to scrutiny. Subject to scrutiny are only treaties subject to ratification. There are also treaties that enter into force upon signature, and those are not CRaG-able. Importantly, decisions of joint bodies under agreements are also not subject to scrutiny, and that has an effect for amendments. The status of amendments is a bit unclear. The wording is, unfortunately, not as clear as one would have wanted, but the Government replied to a Lords IAC report on treaty scrutiny in the following words last year: that the CRaG Act covers treaties that are subject to ratification and amendments that are also in the form of treaties subject to ratification. That means amendments that are done through joint procedures in a treaty will not be CRaG-able. Those are the CRaG-able acts. They are treaties subject to ratification, and amendment in the form of treaties subject to ratification.
What, then, would be CRaG-able in our inquiry with regard to dynamic alignment? There are four relevant acts we have to look at. First, there will be a treaty. That treaty will provide, as things stand at the moment, because of the common understanding, the sectors that are subject to dynamic alignment, and define them. There might be sectoral agreements such as the Swiss have done, or there might be one agreement, similar to the EEA. The treaty or the treaties will then provide how alignment works, including constitutional safeguards, and decision-shaping procedures.
These agreements or the agreement, in itself—take, for example, the SPS dynamic alignment agreement—is very likely an agreement subject to ratification and, accordingly, subject to CRaG. I do not see powers in the TCA to do such an agreement on the basis of the TCA alone. The Trade Specialised Committee does not have the power; the Partnership Council does not have it either. The agreement will be subject to CRaG. Will it be subject to enhanced procedures?[1] No, because none of these agreements will be a free trade agreement. They will be an SPS agreement. They will be an agreement with regard to electricity or one with regard to emissions trading. None of them will be a full FTA.
Importantly, they will also not be subject to scrutiny under Section 42 of the Agriculture Act, because that also envisages scrutiny only for trade agreements, which these are not, and they do not envisage scrutiny for agreements with EU member states.
The second act will be legislation implementing the treaty. That is the so-called European Partnership Bill that provides for the powers to then do the dynamic alignment under national law. That is national legislation, so CRaG is not relevant.
The third act will then be the decision on new alignment. The way this will work technically is that any new EU Act will likely be introduced in an annex to the alignment agreement. That will be done by a decision of the joint committee. As I said before, such decisions are not subject to CRaG. Here, there is a huge problem. These decisions will be vital. This is where scrutiny really should attach, because this is where the obligation arises for the UK to implement this particular Act. If the Act is included in the annex, there is an obligation to follow it and, to some extent, it is already a bit late for scrutiny.
Then the final act will be national implementation. I guess we will discuss that a bit later on, so I will leave it at that.
The Chair: Thank you very much. That very helpfully lays the groundwork. Who would want to speak for the Hansard Society on this one?
Dr Ruth Fox: Holger has laid that out very comprehensively, so I have only a little bit to add. In terms of the importance of it, insofar as there is a dedicated, bespoke scrutiny process for international agreements, CRaG is it. Therefore, if we do not use it, that seems to me to be problematic, but we should be realistic. It is a very weak procedure. In terms of influencing anything, it is too late in the process.
It is important to distinguish between the approach taken in the Commons and the Lords. If your House wants a debate, through the usual channels you will almost certainly get one, in terms of your ability to table a motion and so on. That is not the case in the House of Commons, because the Government control the order paper.
Certainly in previous sessions, even where there have been requests by a relevant select committee for a debate on an agreement, if the Government have not wanted to make time for that, they have not, and there is really no alternative option for MPs to pursue in order to secure a debate.
Only through extensive, high-level political pressure would they be able to put the Government under pressure to provide that time. If you read the Foreign Affairs Committee report in the last session, and the response that was received from the Government to that in the House of Commons, it is fair to say they are fairly non-committal about whether they will make time for a debate.
The Chair: Is there an argument, then, for having a process similar to the scrutiny of free trade agreements applying to the dynamic alignment process?
Matthew England: It might be helpful to explain a bit about what the enhanced scrutiny procedures for free trade agreements are. Essentially, they are divided into three stages. There is a pre-negotiation stage, where there are certain commitments that the Government have made before negotiations have commenced. The Government would publish their negotiating objectives and facilitate a debate on those objectives where one is requested by the relevant committee.
Similarly, during the negotiation stage, the Government are also committed to providing updates on the progress of negotiations on free trade agreements, and some private briefings with the International Agreements Committee, with, for example, the chief negotiator.
The opportunity to have enhanced scrutiny at those stages has effectively been missed. If we are going to have enhanced scrutiny of the kind that applies to free trade agreements for dynamic alignment agreements, it can only come at the final, third stage, which is between signature and ratification. With free trade agreements, in part because they are much more complex, and often much more politically contentious, the Government have committed to not only publish those agreements as soon as possible after they are signed, but to leave a substantial period between the publication of the treaty and its formal laying under the CRaG Act, because the CRaG Act only provides Parliament with 21 sitting days to scrutinise an agreement and, because free trade agreements are much more complicated, 21 days is not really enough.
Whether that should apply to dynamic alignment agreements is a question that could be best answered by considering why we apply these to free trade agreements in the first place. We apply them to free trade agreements because they are more complex and politically and legally significant. No one would doubt that dynamic alignment agreements will have those same qualities, and should probably, therefore, be subject to at least some degree of enhanced scrutiny.
It is worth noting that these enhanced scrutiny arrangements for free trade agreements are not statutory, so they are not in the CRaG Act. They are in exchanges of letters between the Government a few years ago and the International Agreements Committee and the then International Trade Committee, so they are flexible in how they can apply, and it would be worthwhile for the Government to apply that flexibility in these cases.
Q93 Lord Tugendhat: How might Parliament engage most effectively with the United Kingdom’s prospective participation in EU decision-making?
Dr Ruth Fox: In terms of decision-shaping, you need that upstream as early as possible in terms of participation by Parliament engaging with Government about their negotiations at the earliest stages of the process, and the opportunities there are to secure adaptations and exemptions, however limited those may be.
Clearly, it will be principally Ministers doing the actual negotiations, and Parliament outside that, but Parliament, therefore, has to decide who is going to receive and how they are going to receive the material that emerges from those negotiations, whether that is entirely through a pipeline provided by the UK Government or whether it wants, in effect, its own eyes and ears on the process, which may require a presence in Brussels.
It will have to think about what scrutiny body or bodies are then going to consider that information and at what stage, and whether you want existing bodies such as this committee, or separate, new, dedicated, bespoke bodies. There are arguments for both, and there are questions about whether you would want some kind of joint initiative with the House of Commons, bearing in mind the capacity and resource issues that would arise.
Lord Tugendhat: Do you have a view at all?
Dr Ruth Fox: We would take the view that there is a capacity issue that both Houses are going to have to confront when you are facing a savings and investment programme in terms of how much resource can be dedicated to this. You also have to consider what the volume of documentation is that is going to be coming through.
One of the things that, for example, affects other Parliaments is that it is potentially a huge volume, and you can get overwhelmed. The question is around how you separate the wheat from the chaff, as it were. Do you want to scrutinise everything, or do you want to scrutinise or focus on particular areas where you think you can have most influence? This committee could do that, but, again, there is always a risk that, at certain times of the parliamentary timetable, you could find that overwhelming your other work.
The concern, for example, in the House of Commons would be that they have departmental select committees and, if we have a dynamic alignment agreement in respect of SPS and energy issues, they will have a particularly high level of additional work to do compared to other departmental committees, which, again, could overwhelm them. Therefore, it might be better to have a bespoke committee to do it.
Lord Tugendhat: We are talking about prospective participation in the decision-shaping. I find it difficult to understand that what you have just said would have a very effective impact, but I wonder whether there might be any scope for any form of link between the Westminster Parliament and the European Parliament. We are talking about decision-making, not the decision-implementing, if you follow me, and I am not sure that I follow your argument about what you just said leading to great influence. I wonder whether there would be scope for any connection between the Westminster Parliament and the European Parliament.
Dr Ruth Fox: Yes, of course. The Westminster Parliament will need to be informed of and know what it wants to influence, the choices that it wants to make, what issues it wants to engage with the European Parliament on, and how it is going to do that on the ground. Is that going to be visits by your committee or another committee to the European Parliament? Is that going to be, as I said, having eyes and ears on the grounds in Brussels on a permanent basis, so a beefed-up parliamentary office there?
There are different ways in which you could do it, but you have to know what it is that you want to influence. We have to be realistic about this. We are not going to be able to influence everything all across the board. We are going to have to be quite strategic about the key things that we must or want to get above all. Only by focusing on them, really, are we going to hope to have the kind of influence that, presumably, you would like.
Q94 Baroness Smith of Newnham: I want to follow up on the idea of having eyes and ears on the ground. Other members who might be members of the EP-Westminster parliamentary assembly might have other views, but at the moment I am not sure there is sufficient engagement between the European Parliament and Westminster. To what extent is there the ability for a third country to influence and shape decisions in Brussels? To what extent will having people based in—whatever we now call it; it was the permanent representation—our embassy in Brussels and on the ground enable them to be part of the decision-shaping upstream?
Matthew England: It is more or less inevitable that officials and Ministers will be the ones engaging in the formal decision-shaping processes. Where the European Commission has working groups, or some of its implementing legislation committees, it will more or less have to be officials and Ministers participating in those. The question is twofold: how can Parliament have a direct influence on European Union policy-making, and how can it have an influence on the positions that the Government take in those formal processes?
The most important benefit of having representation and engagement with the European Parliament and with European institutions directly would be that Parliament would have greater access to information about upcoming policy proposals and could conduct inquiries, collect information and engage with departmental and policy committees within Parliament to try to formulate a position as to how it is going to influence the Government when the formal processes of decision-shaping start to take place.
The Chair: The thing that concerns us, of course, is how Parliament scrutinises whatever our Government seek to do in the decision-shaping process to the extent that they are able to do it, but that is perhaps something that matches quite nicely to Lord Jackson’s question.
Q95 Lord Jackson of Peterborough: Perhaps I can direct my question to Dr Fox. Listening to your podcast, I know that you are a self-confessed procedural nerd, Dr Fox. That is a compliment. You will be aware that, as of 23 April, our House has decided to restrict SIs to one hour, and that what was before a free-for-all is now going to be subject to a speakers list, which some of us believe is a very significant circumscribing and undermining of parliamentary scrutiny.
With that in mind, how and through what parliamentary body or bodies should Parliament scrutinise the EU law to which the UK will be committed to dynamically align? What changes might this require to the European scrutiny system as it operates at present? As you will know, there is no European Scrutiny Committee in the Commons any longer. I am delighted to see the former Chair, Sir Bill Cash, here today. How can we most efficiently scrutinise, for instance, the European Partnership Bill’s secondary legislation?
Dr Ruth Fox: I am going to leave it to my colleague Matthew because he has done more on this than I have, and he is even more of a nerd than I am.
Matthew England: The first point I would make is that in other countries where there are dynamic alignment arrangements in place, such as Norway, Iceland or Switzerland, there tend to be some clearly codified rules for how parliamentary scrutiny is going to take place. In some cases, that is in statute; in some cases, that is in standing orders of the relevant Parliaments.
Ideally, those rules would be quite codified and, ideally, where there are duties on the Government to provide information to Parliament and to consult Parliament on particular items of legislation, those would be binding on the Government. Again, in all of those countries with dynamic alignment, it is the select committee system that is the central avenue by which Parliament influences the Government.
The questions then are around what functions we want these committees to be performing and what the optimal committee system is for performing those functions. I would divide the functions into three. There is, as we discussed a moment ago, Parliament’s role in decision-shaping, where it is about receiving information and sifting through that information to ensure that the most significant upcoming policy proposals obtain the most parliamentary scrutiny, ensuring that the relevant policy and departmental select committees are aware of them and can engage with that process, and engaging with the Government before decisions are made in the joint committee about incorporating new EU legislation into the treaties.
In both Norway and Iceland, the committees responsible for considering dynamic alignment more or less always have meetings of that committee in the few days prior to a joint committee decision.
Lord Jackson of Peterborough: You mentioned the word “sifting”. Would you advocate a bespoke sifting committee or a discrete business committee in, say, the Lords and/or the Commons to sift through what is going to be a very significant volume of legislative work? Do we need a sifting committee?
Matthew England: One would be useful. Indeed, that is the second function that parliamentary committees in both Houses would need to perform. The prior question asks what it is that Parliament is going to be sifting, because, at the early stage, you are going to be getting all of these policy proposals from the European Commission that have not been formalised into formal, drafted legislation. You need to sift through those and decide which are going to have more policy scrutiny.
More significantly, if Parliament is going to have a role in approving or disapproving the incorporation or implementation of particular items of EU legislation, will there be a role for a sifting committee to sift either the approval motions for joint committee decisions or statutory instruments to implement legislation?
Lord Jackson of Peterborough: What about carve-outs? Are they going to be upstream, with Ministers making an executive decision as the executive to carve out, say, talking to the NFU about novel foods and that being a carve-out that will not get any further, or should parliamentarians have the opportunity to advocate for carve-outs?
Matthew England: This is where the decision-shaping stage comes in. My understanding is that, once the European Union presents a proposal to the joint committee, there is then an exchange of views between the EU and whatever the contracting party is. At that stage, the UK, for example, could propose adaptations or exemptions. Ideally, we would have a parliamentary scrutiny system that enables Parliament to suggest potential adaptations and exemptions before we get to the stage of going to a joint committee.
Lord Jackson of Peterborough: Professor Hestermeyer, do you have anything to add to those comments?
Professor Holger Hestermeyer: Yes, and also to the last question, if I may. This agreement will be a supplementary agreement under the TCA, so the Parliamentary Partnership Assembly will be relevant. I regard the formal decision-shaping powers as important because they start early on and give the UK similar rights as members to be involved in working groups. However, these would be for the executive. Through the Parliamentary Partnership Assembly, what the UK can effectively do is build alliances with others—in, particular, with members who have similar positions. Looking at the history of the UK in the EU, there have always been allies and the UK can be fantastically excellent in building these alliances, which will certainly help.
When it comes to scrutiny, I agree very much with Matthew. We have to also look at when exactly scrutiny attaches. I would argue it is very important to have an efficient scrutiny process. Already at the joint committee including-a-new-EU-document-in-the-annex stage, because, after that, there will be an obligation of implementation, which means that, through the scrutiny process, Parliament can also have an impact on possible adaptations and exemptions.
Then, in a second stage, the question is how this now turns into UK law. Quite frankly, at the moment, we do not quite know. I presume that, when it comes to regulations, it will be similar to what happens in the EEA. Those might enter into force automatically to some extent. The interesting question is what will happen to implementing and delegated Acts. These are very technical.
Note that the UK, with regard to international law, knows ambulatory references where those enter into force automatically. That happens in the Law of the Sea with some particular acts under the SOLAS and the MARPOL conventions, where there is an ambulatory reference and, whenever there is a new document, it automatically enters into force. In terms of those technical things, there might not be a lot of interest in Parliament, but directives in particular need parliamentary input. I would strongly favour a sifting committee, because there will be a lot of documents coming through, in particular in terms of delegated and implementing Acts on the EU side. The sifting committee can then identify important documents.
Then there is also the question of how these important documents will become part of UK law. I presume that, similar though not necessarily identical to what happened in the past, there will be a role for statutory instruments there.
Lord Jackson of Peterborough: Do all of you believe that any Government or the Civil Service have the bandwidth to process, evaluate and adjudicate the efficacy of these significant pieces of legislation, at the moment or in the future?
Dr Ruth Fox: I am not really in a position to judge that, because we focus more on parliamentary capacity. The question is also whether Parliament and the devolved legislatures have the capacity to scrutinise it.
If I may, just on the sifting point with regard to statutory instruments, in much the same way as CRaG, sifting is useful but has limitations, because you are sifting from a pretty weak procedure in the negative scrutiny procedure to a little less weak in the affirmative procedure. What are you getting, essentially? What are the Government conceding by agreeing to something being sifted and then accepting the decision of the sifting committee to upgrade? It is conceding a debate of 90 minutes maximum in the House of Commons, and 60 minutes here in the House of Lords. These debates rarely last more than 26 or 27 minutes, and are sometimes much shorter.
Certainly, in the House of Commons, they do not have the advantages that you have in the House of Lords with the Secondary Legislation Scrutiny Committee. There is no dedicated committee to look at these issues in the Commons. Sifting is useful, but it has huge limitations, hence why we think the delegated legislation system should be reformed.
Q96 Baroness Ashton of Upholland: I want to do something slightly tangential. Professor Hestermeyer, you mentioned working groups, and that sparked my attention. When I was based in Brussels, working groups were really significant in terms of influencing and, as you rightly pointed out, gathering a coalition of people who felt the same to feed up the system.
I just wondered, in one sentence, whether we will, indeed, by being members of the working groups, be able to exert some influence on how things turn out. I know it is not the basis of this conversation, but, generally, in looking at this, I would just be interested, but very briefly, because I do not want to annoy the Chair.
Professor Holger Hestermeyer: The answer for me is clearly yes, and I would make a distinction. A lot of this depends on the regulatory goal. Quite often, the regulatory goal is something that we all share, for example, food safety. Then questions arise as to particularities, such as taking into account particularly growing techniques that might not exist in France but exist in the UK. If the UK is included, this will be taken into account in the regulation because there was not, from the start, the intention to discriminate. If, of course, there is an intention to hurt certain people, there is very little that can be done, but that is not true for the vast majority of regulation, which is not necessarily automatically captured by special interests.
I would also add one point to Lord Jackson’s question about whether the capacity is there. I would argue not at the moment because, of course, it has to be built, but I am a strong believer in UK capacity. I have experienced it firsthand. I lived in London for 10 years, and the capacity of the Civil Service and of Parliament is quite amazing when they set their minds to it.
Q97 Lord Barrow: Professor, I am going to start with you and then go to our friends in the room. We started in this area, but should Parliament be able to block the application in Great Britain of EU law that is otherwise due to apply under dynamic alignment? If so, how could that be done? Is it about a mechanism constraining the Government’s ability to agree decisions in joint bodies, or is it about constraining the application of such a decision? How does that operate, perhaps, through the domestic scrutiny process, which we have been touching on? Is this feasible and, if so, where and how would we do it?
Professor Holger Hestermeyer: Thank you very much for the question. The possibility must be there because there must be some effect to parliamentary scrutiny. Ideally, the first level would be already at the joint committee stage, where Parliament could have an input and say, “No, we do not want that”, and then possibly an exemption can be negotiated and ultimately reached without any breach of any obligation.
I would argue that, particularly for directives, there must also be a power of some shaping because that power also exists for member states. Directives are binding only with regard to the result, in theory, although we have seen very detailed directives in the past, so the UK must be able to shape them as well. Here, too, I would like to see a parliamentary power that gives decisive input, which includes the possibility to say, “In the way this is currently done by the Government, we do not like that”.
Matthew England: In effect, I would summarise it by saying there are three stages at which Parliament can have a potential veto over whether a piece of EU law is incorporated. In effect, one option is to have it before the joint committee decision takes place, to, in effect, say that the Government’s representatives in the joint committee cannot make a decision at the joint committee until they have the approval of Parliament. There is some precedent for that in Northern Ireland with what are called applicability motions, although there are special circumstances in Northern Ireland that require that.
Another option would be that, once a joint committee decision is made, the UK would enter a constitutional reservation that the joint committee decision does not come into force until certain internal constitutional requirements have been satisfied. One of those requirements could be that Parliament has approved the relevant joint committee decisions.
Finally, as Holger has said, at the very end stage, once the treaty has been changed and there is a new obligation to implement a piece of legislation, Parliament could have a potential option to reject the likely statutory instruments that result. That is a more powerful option with respect to directives than it is to regulations because we have choice over the form and implementation of those directives, but then there may be a constitutional principle at stake with regulations to say that, even though Parliament would be breaking an international obligation and opening the UK up to potential countermeasures if it did not implement the legislation, it should still be the one that is deciding important matters. Parliament makes those decisions for international treaties a lot.
Lord Barrow: You mentioned it could be powerful, but there is also that dilemma that you end up with countermeasures. You all see it as essential, but is this a powerful instrument as well as being a necessary one, if I can call it that?
Dr Ruth Fox: The very fact that there is a veto in existence might help to exercise some influence in terms of the discussions and negotiations. Part of the way that it works in terms of negotiations with other countries—and it has been a criticism that it does not happen here because the UK Government envelop the negotiations almost in secrecy and are very reluctant to be more open and transparent than is the case in some countries—is that, if the Government could point to the fact that Westminster is just not going to accept this, that might be a helpful tool for them in terms of the discussions and negotiations.
Realistically, when push comes to shove, if they have adopted a certain position and that has gone through all their processes, we either incorporate or we do not. Ultimately, as you say, we would face those countermeasures, so it is a political decision. I would never say never, particularly after the last 10 years, and there are an awful lot of things that have happened that I would not have expected when I first started working at the Hansard Society. In practice, no other country that is subject to these sorts of dynamic alignment agreements has exercised the veto.
Lord Barrow: Professor, I see you nodding.
Professor Holger Hestermeyer: Yes, I very much agree. It is a necessary tool. Sometimes, as quite often happens in trade debates, you say, “This is something that our population simply insists on, and we will carry the burden. If there is a cost attached to it, we will have to also pay that”. I would de-dramatise those situations and say that that is part of the democratic consent that we live in.
Q98 The Chair: The question does arise, of course, of whether the UK—either the Government or Parliament—seeking to block a particular change under dynamic alignment affects the process as a whole, or whether it is then subject to some sort of arbitration process, which other third parties have with the EU. How would you see it developing if we had such a system?
Professor Holger Hestermeyer: The first stage would very likely be a debate in the joint committee, where arguments will be raised. The UK might raise the argument, “This is not within the scope of dynamic alignment. We have constitutional reservations”. At that stage, the EU might or might not accept that. It might create an exemption or carve-out that is limited. Switzerland got a carve-out for importing US hormone beef, if I am not mistaken, and then has to label it. That is the first stage.
If both sides insist and dig in their positions, the EU will very likely say, “We think you are in breach. There is an obligation of alignment here”, and then will start the arbitration procedure. It is, in principle, an independent arbitration procedure, because it starts off with empanelling an arbitration panel.
If there is a question of EU law, though, that is referred to the Court of Justice. It is an obligation the EU has under the rule of autonomy of EU law that only the Court of Justice can determine terms of EU law, but there is not necessarily EU law at stake. It could be just a question that arises under the agreement. The arbitration panel might also decide not to defer to the Court of Justice. Then, in the end, there will be an outcome of arbitration, which might be, “The UK is right. There is no obligation to align”. It might be, “The UK is wrong. There is an obligation to align”. Then the UK might say, “We have thought it through and we will now align”, or it might say, “This is a really important issue for us. We cannot do this”.
Then—you are quite right—it depends on the importance of the issue and what sort of proportional measures can be imposed. At least in the Swiss bilaterals III, which are not in force. The obligation is to have proportional measures. There can be arbitration about that as well, if I am not mistaken. It is a rather regularised procedure that can happen and in very few circumstances will it result in incredibly drastic measures, I would argue.
Q99 The Duke of Wellington: This is an incredibly interesting discussion. We have had references to Norway, Switzerland and Iceland. Is there any feature of the parliamentary scrutiny in any of those or other countries that have dynamic alignment agreements with the EU that could be particularly appropriate or beneficial to our system of scrutiny or parliamentary investigation of what is proposed? I am trying to look for the best in class in terms of trying to set up these arrangements.
Matthew England: I would add a caveat that, from what I have looked at, there is no common or universal framework for parliamentary scrutiny across these countries. They all have different ways of allocating responsibilities among committees. Iceland gives everything to their foreign affairs committee. Norway has a dedicated European consultative committee to handle at least the decision-shaping and joint committee aspects of the relationship. There is not a universal committee structure that can be employed, and I do not have a sense about which of those works better, but what matters more is the powers that those committees and Parliament as a whole have, and the way those powers are codified.
In all three of the cases of Switzerland, Norway and Iceland, there is, at least in some circumstances, a requirement for Parliament to approve a joint committee decision before it comes into force. That is not all joint committee decisions. Because there are so many, that would probably be impractical, but there is usually some requirement in the constitution that certain international agreements be subject to parliamentary approval.
As Holger said, in Britain, joint committee decisions under these new agreements are not likely to be considered a treaty subject to ratification under the CRaG Act, but, in these other countries, joint committee decisions are usually regarded as treaties for the purposes of their constitutional processes. That is something we could gain from them.
The Duke of Wellington: Is there anything you might suggest to us in detail as to how we might put in place the necessary level of scrutiny and co-decision-making? As I said, we would want to be best in class in terms of how we handle these matters.
Matthew England: In terms of the issue about parliamentary approval of incorporation, you could include that in statute, either through the CRaG Act or in the European Partnership Bill that is currently going through.
In terms of committee scrutiny, the best features of the committees that exist in those countries are a capacity to focus their scrutiny on the most important proposals and the most important items of legislation.
In Switzerland, they are at least proposing to have, because the agreement has not come into force yet, very strict arrangements about when the Government have an obligation to inform and when they have an obligation to consult the relevant parliamentary committees in both chambers of their Parliament. Roughly speaking, the requirement is that the Government would inform the committees when an instrument is considered important and would consult when it is considered substantial. They have some federal rules setting out what is meant precisely by “important” and by “substantial”.
The Duke of Wellington: Professor, would you have anything to add to that?
Professor Holger Hestermeyer: I particularly liked the focus on involvement in the joint committee decisions. The one thing I have to add is that it might make sense to distinguish between different EU Acts—something that the Swiss do not do in detail in the agreement, and it might be relevant to do that in the agreement. In that regard, the EEA is better. From the Swiss agreement, though, we can take the European understanding of domestic procedures for the Swiss, quite interestingly, because they seem to be monist, but, at the same time, might require a referendum, so there is some liberty here to negotiate something that is suitable for the UK circumstances.
Q100 Baroness Suttie: Will dynamic alignment require any changes to current arrangements for relations between the UK Parliament and the devolved Parliaments on scrutiny and legislative matters? If so, what would you suggest? Given the recent elections, could you say a little about what might happen if there was a disagreement or a conflict?
Dr Ruth Fox: There should be changes. In terms of legislation, there is the existence of the legislative consent motion, and I am assuming that the European Partnership Bill, once it appears, will require a legislative consent motion from the devolved Parliaments. That is that the UK Parliament will not normally legislate in areas of devolved competence without the agreement of those legislatures through an LCM. The reality is that, as we saw during Brexit, that can just be ridden roughshod over. One might give it the tag “noted but ignored”.
There is a concern that, as a result of the elections in May, particularly in Wales, for example, a Plaid Cymru Government might be more inclined to oppose LCMs than perhaps the Labour Government were in the past, but we will have to see how that plays out. As I say, it is a bit of a paper tiger because it can be ignored. What it does is complicate and lead to, if you like, bad feeling between the Governments and the parliamentarians.
In terms of influencing this dynamic alignment process, there is a memo of understanding between the UK and the European Commission. The question is how the UK Government will accommodate devolved perspectives and how Parliaments will play into that. In terms of incorporation and veto, I am assuming that the UK Government are not going to give the devolveds a veto over any changes in respect of devolved competences, so we can set that one aside.
It is difficult to say because we have not got the Bill in front of us, but how will they legislate in the partnership Bill in terms of granting devolved Ministers, and, therefore, by extension, the legislatures, powers to implement EU laws in devolved areas? How will that be done? Will they grant devolved Ministers their powers? Will they grant the implementing powers only to UK Ministers, or will it be a combination of both? As we saw in some of the Brexit legislation and the Retained EU Law Bill, will it be that the devolved Ministers have the power to legislate, but UK Ministers, in effect, have a reserve power to do it on their behalf, with or without agreement? Until we see the Bill, it is difficult to say.
In terms of inter-parliamentary relations specifically, it is very difficult at the moment because there are not the mechanisms. In terms of the UK-EU partnership assembly that we mentioned earlier, because it relates to devolved competences, the devolved legislatures have observer status. That meets only a couple of times a year. It does not fit in with the joint committee framework of meetings, and they only have observer status.
There is the Inter-Parliamentary Forum, which was the initiative started a couple of Parliaments ago through the Brexit process, led by the Lord Speaker, but, again, that does not have any formalised powers. It is a much more informal arrangement and covers a range of areas.
A couple of years ago, we suggested that there should be, in effect, a new inter-parliamentary assembly, because we are talking about it in relation to dynamic alignment agreements, but what this process highlights, as we saw during Brexit, is that it brings to the fore an awful lot of existing problems in the way Parliaments scrutinise legislation, treaties, Bills, statutory instruments and devolved matters.
Consequently, we are seeing a lot of problems in those other areas that affect the devolved legislatures as well, and there are not the mechanisms, even sometimes at inter-committee level, for them to consult, to share information, to advise or to engage in a discussion. There is a case for an inter-parliamentary assembly, and we published a paper a couple of years ago with the Study of Parliament Group. We had a working group on it. We have linked to it in our evidence. I can share it directly with the committee members, but that sets out a framework of how it could be done.
Baroness Suttie: Can I just ask whether you have thoughts on whether the devolved Ministers could or should have any involvement in the decision-shaping processes, to pre-empt disagreements, as it were?
Dr Ruth Fox: Yes. If we have a devolved settlement, for the issues and the decisions related to areas of devolved competence, then yes, we ought to have that process. With regard to how it is done at an inter-ministerial level, you would need more expertise in terms of the Government side than I can offer, but it requires a different political mindset. One of the problems we have with the devolution settlement is that too many people in Westminster and Whitehall have a UK-wide approach and think about policy issues—even, for example, such as health—as if, when they are talking here in Westminster, they are talking about UK-wide, when, in fact, more often than not, they are talking just about England.
Q101 Lord Brennan of Canton: Certainly in my experience, working as chief adviser to the First Minister in Wales until the beginning of 2025, the position taken by the governing party now—Plaid Cymru—was that they would oppose UK Government legislating in areas of devolved competence and would not agree to legislative consent motions as a matter of principle. If they took that position now in Government in relation to all of this, what would be the consequences?
Dr Ruth Fox: In terms of legislative consent motions, nothing explicitly procedurally, because, as I said, they can be noted but ignored, and Westminster can legislate as it wishes. Clearly, there are political ramifications that flow from that in terms of the relationships between the two Governments and how that plays out in respect of other policy and financial decisions that may arise in terms of negotiations. It does not help the process if it is seen that Plaid Cymru can just present this as Westminster riding roughshod over Wales.
Q102 Baroness Suttie: Does the professor want to add anything based on his experience?
Professor Holger Hestermeyer: To some extent, this also goes back to the previous question. There is an interesting document that the Swiss put out that helps us to see what might be possible in terms of decision-shaping. The Swiss have drafted an agreement between the federation and the cantons on the participation of cantons in the Bilaterals III, which include these new dynamic alignment agreements. They provide for certain rights of cantons, including early transmission of information, participation of cantons in drafting EU Acts in the committees, working groups and comitology. There are those decision-shaping powers. Of course, Switzerland is a federal state, and not a devolved state, but, nevertheless, those documents can be useful.
I also wanted to highlight one thing that Ruth said that is quite important. This is also an opportunity to rethink, in general, how to improve procedures. For me, what is close to my heart is rethinking CRaG and strengthening it significantly to take care of the issues that we now face.
The Chair: Thank you. The overarching theme here, it seems to me—shout if I have misinterpreted you—is that we are about to embark on something that is going to require a considerable degree of parliamentary scrutiny within a system where parliamentary scrutiny is already inadequate. I see no disagreement, in which case thank you very much indeed to our witnesses. You have been extraordinarily helpful in what is an extremely important session, and we are very grateful to you. It has been an enormous assistance to us in our inquiry. With that, I bring the public session to a close.
