The article considers the ways the Lords can scrutinise the new relationship through committee activity, post-legislative scrutiny, holding ministers to account and interparliamentary cooperation. The article notes that 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, following 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, perhaps by 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, which 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 Trade and Cooperation Agreement (TCA); and
• 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 2021.

The new European Affairs Committee will be able to appoint a sub-committee on the Ireland/Northern Ireland Protocol. The sub-committee will be reviewed in or before November 2022.

As for post-legislative scrutiny of the European Union (Future Relationship) Act 2020, the House of Lords Constitution Committee has recommended that the Lords should conduct this at the earliest opportunity, and should consider how best to review the TCA.

The Act was passed to implement the TCA in domestic law. The article explains that 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 that fast-tracked legislation should be reviewed within a year, or at most two years, of being passed. The Government has argued that 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”.

The article also explains that the TCA creates the possibility for the European Parliament and the UK Parliament to establish a parliamentary partnership assembly, which 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. To read the article in full, click here.