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Brexit - Motion to Take Note

Part of the debate – in the House of Lords at 4:40 pm on 2nd October 2019.

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Photo of The Earl of Kinnoull The Earl of Kinnoull Chair, European Union Committee, Principal Deputy Chairman of Committees 4:40 pm, 2nd October 2019

My Lords, it is a great pleasure to follow the noble Baroness, who spoke with her customary zeal and energy. Before I make my brief remarks, I want to note how busy the EU Committee structure is. The family of committees is meeting and the great machinery that is scrutiny has restarted and continues apace. The 43rd of our Brexit reports is in its final stages of preparation. The 16th of our Treaty reports will be out next week. I pay tribute to our 26 staff.

I wanted to use my time on one issue of great concern to me and the EU Committee. Indeed, at our meeting yesterday the majority of our time was taken up with it. I speak of the new policy on UK participation in EU meetings—the empty chair policy. On 20 August the UK wrote to the EU Council and said that going forward, UK Ministers and officials would participate in EU meetings only where,

“the UK has significant national interests involved”.

Some guidance was given in the letter about what that might mean, and later in the letter the position of our vote was discussed. I quote from the letter again:

“Where necessary therefore, the UK will make appropriate arrangements regarding its vote”.

This was subsequently clarified as meaning delegating the UK’s vote to Finland, which currently holds the rotating EU presidency. The committee understands that UK officials and Ministers now attend about one-third of EU meetings.

On that stark set of facts, I have three points to make. The first is one of perception: our partners take this badly. I have spent a number of days in Europe talking to partners since I became chairman. The Government have often said that we would take a full part in the affairs of the EU until we left. On 16 September the General Affairs Council of the EU met—the EU format that would have expected to welcome our Foreign Secretary. Sixteen Foreign Secretaries from other nations were present; the other countries sent either their Deputy Foreign Secretaries or their permanent representatives. Our chair was empty. As one senior European put it to me, “I don’t see how one develops a deep and meaningful relationship by being absent”.

Their bafflement is all the greater as there is a far from zero chance, given the provisions of the Benn Act, that we will continue our membership beyond 31 October. Even if we do leave on that date, the next step will undoubtedly be to seek to open fresh negotiations. What sort of preparation is it for those negotiations for the UK to sign out of discussions on the entire range of EU legislation? Our UKRep team—recently beefed up—is hugely experienced and able to deputise for Ministers where necessary.

The second problem is that there is insufficient clarity about which meetings we will attend. The EU Committee in a letter of 4 September asked for more detail on this. The Minister answered very quickly on 9 September—I thank him for that speed—but I regret that his answer had the effect of reducing clarity. The test is now only,

“what the Government considers to be in the national interest”.

It was also noted that:

“Attendance will be decided on a case by case basis”.

That lack of clarity is bad for our EU 27 friends and partners and for Parliament in our scrutiny work. Our correspondence on this matter continues.

The third problem is one of accountability. The scrutiny reserve resolution of March 2010 sets out the Government’s commitments on how scrutiny operates and how Ministers will vote on matters that are still the subject of scrutiny. Some 200 files are currently under scrutiny by the EU Committee, which is very clear that it expects the Government to continue to attend any and all meetings that relate to files held under scrutiny. We are not imagining that scrutiny will continue unchanged after Brexit day. It is clear that on that day the scrutiny reserve will fall and that our internal processes will change fundamentally. However, we had a clear understanding with the previous Government that until exit day the existing scrutiny processes would continue and the Government would give the committee their full support. Can the Minister confirm that that is still the case?

In his letter of 9 September, the Minister made reference to delegating the UK’s vote to the presidency country, Finland. Can he further confirm that the Government share my understanding that any vote cast by the presidency on behalf of UK will engage the terms of the scrutiny reserve?

I am pressing the Minister on those points in part because of an alarming letter that we recently received from the Department for Business, Energy and Industrial Strategy concerning our scrutiny of a draft regulation for the single market programme. It is quite an important regulation. The letter asks us to clear this matter from scrutiny on the basis that:

HMG officials will no longer attend the working party responsible for drafting the Regulation for the Single Market Programme. Consequently, the Government will not be able to provide a meaningful update to the Committees”.

It continues:

“As UK ministers and officials will have no further role in shaping the Regulation ... I am writing to formally request that”,


“be cleared from scrutiny”.

The empty-chair policy is being used, it would appear, to try to circumvent the scrutiny of both Houses on matters of direct and, in all probability, continuing interest to the UK and UK businesses.

In our democracy a major and core ingredient is respect for institutions. Indeed, we now know that this respect is a matter not just of convention but of law—Lady Hale has told us. The empty-chair policy raises questions over the Government’s respect for this House, for the scrutiny reserve and for our ongoing relationship with the EU institutions. I suspect that we will hear more about this today, and I look forward to the Minister’s reply.