Wyeside Consulting Ltd





Hilary Benn MP, Chair of the House of Commons Exiting the European Union Committee, gave some interesting insights into the Parliamentary scrutiny of Brexit in discussion at the Institute for Government on 6 November 2017.  William Wilson, Barrister and Director of Wyeside Consulting Ltd, attended and made these notes.

Mr Benn noted that his Committee had already published reports on the scale of the challenge of Brexit, on citizens and on assessing the White Paper on the EU (Withdrawal) Bill.

Asked about the committee’s achievements, he noted that the Committee had advised that the government would need a transitional phase after Brexit (now conceded), that Parliament would need a vote (now conceded) and that there should be a White Paper before the EU (Withdrawal) Bill (since published).

Commenting that “every single day I’ve learned something new about the consequences of Brexit”, Mr Benn noted that the Committee had embarked on two further inquiries, into the EU (Withdrawal) Bill – (particularly the extent to which it would offer certainty, and the impact on the devolution settlement); and on the negotiations, which left the Committee scope to pick and choose its issues.

Mr Benn noted that it was particularly significant that Steve Barker MP in answer to his question from the Chair at a recent Committee hearing, had conceded that the government would need to bring forward separate primary legislation to implement the Withdrawal Agreement at the conclusion of negotiations. This was the subject of significant proposed amendments and was politically important.

Mr Benn stated that “the government has had to be prodded and cajoled into taking the role of Parliament seriously”. He pointed to the political significance of the delay in bringing the EU (Withdrawal) Bill back to the Commons for its Committee Stage, and of the government’s response to the uncontested House of Commons vote on 1 November 2017 requiring that the Committee be given the 58 sectoral impact assessments of Brexit (see separate Wyeside website briefing ‘Brexit, Parliament and the ’58 Sectoral Studies’).

The Committee wanted all the material on these 58 studies released to the Committee, and they would then decide what should or should not be released publically. He made it clear that he was not interested in publishing material damaging to the UK’s negotiating interests such as fall back positions or red lines.

On the issue of enforcement of EU law once it was transposed into UK law, Mr Benn considered the example of air quality legislation. It was presently enforced by the European Commission and the Court of Justice of the European Union. He asked who would be given by government the job of enforcing it? What rights would the public have to hold Mayors or the government to account? What about the Charter of Fundamental Rights, which the government proposed to discard?

On devolution, Mr Benn accepted that there did need to be discussion of common frameworks. He did not advocate Devolved Administrations taking steps to break up the UK market. Future trade deals would also need a UK response, or you would get, for example, imports of chlorinated chicken allowed in some parts of the UK but not others.

In answer to questions, Mr Benn thought that the best outcome that could be hoped for by the UK at the moment would be –

Part I the divorce settlement agreed as far as possible  (on the Northern Ireland border this would be hard without sorting out the regime to be applied to customs and trade)

Part II agreement on the nature of the transitional agreement

Part III a declaration that the UK and EU27 would negotiate an Association Agreement to cover a list of prescribed topics.

Mr Benn thought that Parliament would vote for that, with a transitional agreement which Keir Starmer QC MP had described as “as short as possible but as long as necessary’.

By contrast, Mr Benn thought that there was no majority in Parliament to endorse ‘no deal’, and it was significant that Parliament had more scope to make its views clear if there was now to be separate legislation to give effect to any Withdrawal Agreement.

On oversight, he favoured a hybrid body to oversee, for example, citizens’ rights, with participation by the Court of Justice and UK Supreme Court, agreed by Treaty. He thought it unlikely that the UK would accept long term jurisdiction over EU citizens’ rights in the UK, any more that the EU would welcome UK Supreme Court jurisdiction over UK citizens living in the EU.

This was a significant update and summary by a well-respected insider with a ringside seat.


William Wilson

6 November 2017