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'A constitutional failure': Experts slam MPs' scrutiny of post-Brexit trade deal

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A Union Jack flag flies on top of Parliament during the debate in the House of Commons on the EU (Future Relationship) Bill in London, Wednesday, Dec. 30, 2020.
A Union Jack flag flies on top of Parliament during the debate in the House of Commons on the EU (Future Relationship) Bill in London, Wednesday, Dec. 30, 2020.   -   Copyright  AP Photo/Frank Augstein
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The post-Brexit deal announced on Christmas Eve will determine EU-UK relations for decades to come. And yet on the British side, in particular, only hours have been set aside in parliament to hold it up to the light.

The process -- declared "a farce" by one influential parliamentary monitor -- saw both UK Houses of Parliament recalled for just one day on Wednesday (December 30).

This was to rush through a Bill to implement those parts of the agreement that need to be incorporated into domestic law by the time the transition period ends. As of January 1, previous rules governing the EU-UK relationship will cease to apply.

The legislation duly sailed through the House of Commons and was expected to pass the House of Lords later in the evening before being given Royal Assent.

Lawmakers in London and Brussels have condemned the lack of time available to scrutinise the deal properly.

UK eurosceptics ensure safe passage

There has been widespread relief that the agreement banished the much-commented "no-deal scenario" so dreaded by many in business and beyond. The Christmas Eve announcement also released the reserves of political will to take it forward.

Critics of its provisions among Westminster politicians -- those opposed to no-deal at least -- had their hands tied by the fact that there was no effective alternative. Reservations among some Labour MPs, as well as the opposition of the Scottish National Party (SNP) and the Democratic Unionist Party (DUP), were nowhere near enough to stem its flow through the House of Commons.

Amongst the ruling Conservative Party's ranks, the nationalist European Research Group (ERG) declared the agreement to be UK "sovereignty-compliant" following scrutiny from its lawyers. Its MPs happily fell into line behind Prime Minister Boris Johnson.

There was not a hint of the furious hostility that saw his predecessor Theresa May fail repeatedly to get her EU withdrawal deal through parliament, and the EU (Future Relationship) Bill was backed by 521 votes to 73.

UK Parliament's role 'a farce'

The potted process has drawn an avalanche of criticism from constitutional experts, including an extraordinary attack from within the Hansard Society, an independent monitor of UK parliamentary democracy.

"Parliament’s role in scrutinising the UK-EU Trade and Cooperation Agreement is a farce," senior researcher Dr Brigid Fowler declared in a scathing blog, describing the proceedings as "a constitutional failure".

"Taken together, this process represents an abdication of Parliament’s constitutional responsibilities to deliver proper scrutiny of the executive and of the law," she added, noting that lawmakers had failed to back a cross-party move that would have forced the government to allow sufficient time.

"MPs thus left themselves wide open to the kind of farcical scramble in which they are now obliged to take part."

"It is deeply ironic given that the heart of the case for Brexit was to restore the primacy of the UK parliament, that the deal is being rushed through so quickly that few if any MPs will have understood its full implications," writes Professor Chris Grey of Royal Holloway, University of London.

"It may very well be that the economic damage of Brexit will in the long run be dwarfed by the battering that parliamentary and constitutional norms have taken over the last few years, with this vote being its culmination."

Political historian Robert Saunders described the process as "an absolute travesty of parliamentary democracy" and "a microcosm of the shattering effect Brexit has had on our constitution".

"The European Communities Act 1972 was debated in Parliament for 300 hours. Today's bill will get about 5," he said on Twitter.

What exactly needed more examination?

The deal contains over 1,200 pages of legal text covering a vast range of policy areas. Beyond the highly-publicised issues of trade and fisheries, it also impacts future cooperation across the board including on security.

Here are some of the issues raised concerning the deal, which have led to calls for more scrutiny:

  • The agreement has been greeted for staving off the devastating consequences of a "no-deal" scenario for EU-UK traders. However, critics argue it deserved more scrutiny as it still makes trade more difficult by erecting barriers.
  • There are different implications for various economic sectors across the spectrum, from cars to chemicals, each of which requires examination that is being denied.
  • Opposition Labour leader Sir Keir Starmer questioned the lack of provision in the deal for the UK service industry.
  • He also challenging the prime minister's lauding of the deal for being tariff and quota-free, pointing out that tariffs could result if the UK departs from its commitment to a "level playing field" in future competition.
  • The agreement sets out complex structures for governing the deal in the future, with potentially wide-ranging consequences.
  • Arrangements concerning future security cooperation have been questioned, with former UK senior diplomat Lord Ricketts saying making new arrangements work will "absorb more time and effort".
  • The UK's withdrawal from the Erasmus+ student exchange programme has been widely criticised. The Irish government has said it will support students from Northern Ireland, leading to demands from Scotland for inclusion.
  • Separately from Brexit itself, some constitutional experts say the legislation authorises a massive power shift from Parliament to the Executive as it gives ministers powers to rewrite large areas of domestic law without scrutiny.

'Regrets' among MPs and MEPs

So close to the wire was agreement struck on trade and future ties, that special measures were agreed to ensure it can take effect on January 1. The deal contains a mechanism for it to be applied provisionally, until formal ratification is complete.

On the EU side, the European Council -- the body representing mainly national leaders -- can authorise its application before the European Parliament votes on it in the New Year.

"(The European) Parliament regrets that the duration of the negotiations and the last-minute nature of the agreement do not allow for proper parliamentary scrutiny before the end of the year," said the European Parliament President David Sassoli.

MPs at Westminster expressed similar sentiments. "We regret that the timing of the deal means there is not enough time for our Committee to scrutinise the deal more fully," reported the Committee on the Future Relationship with the European Union, noting that only four days separated the deal's publication from Wednesday's vote on the Bill to put it into effect.

"We intend to report again in January with more analysis but this will be without the benefit of having had time to take extensive evidence on the deal," the committee added.