The Government has scheduled the ‘Stormont Brake’ SI for debate in the Chamber; the default practice would have seen the SI debated in a Delegated Legislation Committee.

The concession of a Chamber debate on the ‘Stormont Brake’ SI aside, MPs are right that UK parliamentary scrutiny of the Windsor Framework ahead of the vote on 22 March and Joint Committee meeting two days later will have been inadequate.

The House of Commons will vote on the ‘Stormont Brake’ SI:

• only two days after the SI was published – much more quickly than is normal for draft SIs that require parliamentary approval – and presumably without the Joint Committee on Statutory Instruments (JCSI) or House of Lords Secondary Legislation Scrutiny Committee (SLSC) having been able to report on it in time;

• as far as it is possible to tell, without the Government having deposited with the ESC its Explanatory Memorandums (EMs) on the relevant Joint Committee-related documents; and

• with Windsor Framework-related ministerial evidence to, or reports by, its Select Committees arriving at most one day in advance, after the ESC scrambled to get the Northern Ireland Secretary in front of it on 21 March (although the Committee arguably wasted time by first seeking, predictably fruitlessly, an appearance from the Prime Minister).

However, MPs’ complaints – particularly those of Conservative backbenchers who provide the Government with its majority – are frustrating and ring somewhat hollow, for two reasons.

First, there is a general credibility problem.

At the start of the 2019 Parliament backbenchers were willing to take the Committee and further stages of the EU (Withdrawal Agreement) Bill in three days, whereas MPs in the previous Parliament would not.

The House then agreed to scrutinise and approve the EU (Future Relationship) Bill in one day on 30 December 2020.

Since then, and the exigencies of the Covid pandemic and other crises notwithstanding, the House has consistently acquiesced in Government behaviour that has seen legislation proceed without previously-accepted levels of scrutiny time and information.

Second, scrutiny of the Windsor Framework engages general types of parliamentary business where the House has so far shown little enthusiasm for reform, missed opportunities to press for stronger scrutiny arrangements, or actively contributed to the situation that currently arises.

The inadequate scrutiny of the Windsor Framework has not ‘just happened’. If MPs do not seek to establish stronger generalised scrutiny practices when there is not a particular item of business that concerns them, they cannot expect to find those practices in place when there is.

The Windsor Framework row exposes three types of business in particular where scrutiny arrangements are inadequate, especially in the House of Commons.

The good news is that, in all three areas, opportunities are coming up to improve matters.

The Windsor Framework will amend the Ireland/Northern Ireland Protocol in the Withdrawal Agreement – that is, it will result in treaty amendment.

Parliament’s statutory role with respect to treaties is set out in Part 2 of the Constitutional Reform and Governance Act 2010 (the CRAG Act).

The CRAG Act is inadequate as a basis for Parliament’s engagement with treaties, but – by establishing a 21-day pre-ratification period – it can at least prevent the Government from rushing to bind the UK in international law. However, the CRAG Act is of no use to parliamentarians in the current case because it does not apply to the proposed Withdrawal Agreement amendment. Whether and in what cases the CRAG Act applies to treaty amendments (as opposed to new treaties) remains unclear and contested, but none of the three previous amendments to the Withdrawal Agreement has been made subject to the Act.

The House of Commons, as a whole, has largely supported the Government’s resistance to reopening the CRAG Act or otherwise establishing stronger generalised treaty scrutiny arrangements.

However, the House’s first Select Committee report since the Brexit referendum on scrutiny of treaties in general (as opposed to just free trade agreements) is expected from the Public Administration and Constitutional Affairs Committee before the summer recess.

In contrast, the House of Lords International Agreements Committee and its predecessors have been pursuing the issue of treaty amendment scrutiny with the Government since 2019.

The Protocol is to be amended by a Decision of the UK-EU Withdrawal Agreement Joint Committee, which is empowered to amend the Agreement by its Article 164. The Windsor Framework also involves a range of other Joint Committee instruments.

In Parliament, scrutiny of the Joint Committee takes place primarily through the ESC in the Commons and the European Affairs Committee (EAC) in the Lords, building on the inherited European scrutiny system that operated during the UK’s EU membership.

Since Brexit, the ESC has complained consistently about its inability to carry out satisfactory scrutiny of the Joint Committee, as a result of the Government’s failure to provide information and documentation in good time before Joint Committee meetings. In October 2022, new arrangements were agreed between the ESC and EAC and the Government that were intended to enable scrutiny practices that both sides could live with. The ‘Windsor Framework’ meeting of the Joint Committee on 24 March is the first test of these arrangements. However, the ESC and the Government seem still to be having the same argument as ever.

The immediate problem is that the new arrangements do not pin the Government down on the relative timings of its submission of relevant documents to the ESC, and the holding of Joint Committee meetings: the Government only committed to submitting documents “before meetings wherever possible”.

Nevertheless, in its report on the new arrangements, the ESC declared itself content with the “balance” that they struck as regards “providing information on important matters – such as binding decisions taken in joint UK/EU bodies set up under the Withdrawal Agreement”.

The ESC also does not appear to have sought the wider support of the House for its campaign for improved scrutiny of the Joint Committee – by, for example, seeking changes to its Standing Order, which would require a Chamber debate. Bizarrely, the ESC told the Procedure Committee that the October 2022 arrangements do not affect its Standing Order, as “they relate to the types of EU documents the Government will facilitate scrutiny of”, even though the Standing Order (No. 143) consists in part precisely of a listing of the types of EU documents which will be subject to scrutiny. (The Standing Order anyway has not been substantively amended since before the Lisbon Treaty came into force.)

The two Committees and the Government agreed to review the October 22 arrangements this summer, and it is to be hoped that the Commons takes the opportunity to draw lessons from the Windsor Framework experience to make stronger demands regarding scrutiny of the Joint Committee.

In terms of UK legislation, it appears that the Windsor Framework is to be implemented through SIs. Whether the UK domestic law that implements UK treaty commitments takes the form of primary legislation, delegated legislation, or a combination of both, is the result of the powers that are – or are not – already available to the Government on the statute book, plus any specific statutory requirements.

Especially since Brexit, SIs are fairly routinely being used to implement UK commitments under international treaties. This gives MPs who wish to be sure of being able to debate and amend treaty-implementing legislation an interest both in the powers that Bills grant to Ministers to make treaty-implementing SIs, and in the parliamentary scrutiny procedures to which those SIs are subject.

However, when the Commons voted in January 2020 on an SNP amendment to the EU (Withdrawal Agreement) Bill that would have prevented the Government from being able to use delegated powers under the Bill to amend the Northern Ireland Act 1998 (and so make the ‘Stormont Brake’ SI that is being debated on 22 March), the House voted by 340 to 262 against, with no Conservatives voting in favour.

We hope that the Windsor Framework experience encourages MPs to engage with the proposals we are making in our Delegated Legislation Review to enable them to exercise a better handle on the Government’s use of SIs.

Fowler, B. (21 March 2023), Windsor Framework scrutiny complaints: Why MPs should look to themselves (Hansard Society blog)