Government must reveal who will enforce Brexit agreements, says IfG
Any move to add regulatory functions onto the work of departments would require assurances over the independence of oversight, says think tank
The government must set out details of which bodies will oversee the UK’s compliance with the Brexit withdrawal treaty and the agrement on the future relationship with the European Union, the Institute for Government has said.
In a report today, the think tank said most current disagreements between the UK and the EU on European regulations tended to be resolved through a “supervision” process – the exchange of letters and information between the European Commission, regulators and the government.
Although the government has set out plans for the resolution of formal disputes between the UK and the EU after Brexit, the think tank said it had not set out plans for day-to-day oversight within the UK. This role is currently performed by the European Commission and the EU agencies, which monitor how, and how promptly, EU legislation is converted into domestic law and the compatibility of laws passed by parliament with the EU treaties.
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If the commission suspects non-compliance, it can take enforcement action, writing letters, putting public authorities on notice and, ultimately, bringing legal proceedings at the European Court of Justice, although report author and IfG associate Raphael Hogarth said most cases never reached court.
The government needs to set out who will do this job after Brexit, he said. “If the government wants a long-term relationship with the EU that is built on cooperation, it needs to answer this fundamental question: who will keep a watchful eye on ministers, regulators and legislators to make sure that they are respecting the treaties? And who will send a strongly worded letter when they are sailing too close to the wind?”
Then-Cabinet Office minister Chris Skidmore told CSW last year that more than 20 new public bodies would be formed as a result of Brexit to carry out regulatory and other governmental functions that are currently carried out at the European level, although this has not been confirmed. Skidmore said that ministers would aim to base the bodies outside London, and one of the first bodies to be founded – the Trade Remedies Authority – would be placed in the Berkshire county town of Reading.
In his report, Hogarth said that the post-Brexit supervision plans were particularly important if the UK was to retain the unprecedented market access the government has said it wants. Such an agreement would be based on close adherence to many EU rules, and the EU would need to have confidence the UK is meeting its obligations.
A number of options for the supervisory role are set out in the report, ranging from asking the European Commission to maintain the role to creating new domestic structures. The report said one option for a new structure could be a single dedicated supervisory authority that would maintain compliance with the EU exit deal across all policy areas. Another option could be distributing the supervision role to existing departments and regulators.
Jill Rutter, the IfG’s programme director for Brexit, said that a well-thought-through system for supervision would provide more certainty to citizens and business that the rights the UK has committed to observe will be upheld.
“A new supervisory body should also be able to act as a broker if any future conflicts arise between the UK and the devolved governments in relation to the future UK-EU relationship,” she said.
However the government would also need to persuade the EU that any domestic regulators were sufficiently independent of ministers, the report said. If such a body were to face the threat of abolition when it caused political problems, it would not be able to hold ministers to account.
One suggested solution could be to make the supervisory bodies accountable to parliament rather than departments, the IfG said.
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