John Bell, LLM (Queen Mary University of London)*
Introduction
13 November 2023 saw the return of former Prime Minister David Cameron to frontline politics as Foreign Secretary. Given that he is not an MP, the now Lord Cameron of Chipping Norton became the first Foreign Secretary to hold office from the House of Lords since 1982. This raises both the constitutional question of how a Foreign Secretary in the Lords will be accountable to the elected House of Commons and what Lord Cameron’s appointment heralds for UK-EU relations.
David Cameron was of course the Prime Minister that decided to hold the Brexit referendum leading to his resignation and years of acrimony. Yet, Lord Cameron is also an experienced politician and UK-EU relations have improved recently with the Windsor Framework and the UK rejoining Horizon. Although there is irony in Lord Cameron being the one now tasked with making Brexit work, I argue that we should look to a symbiosis between Lord Cameron’s experience and the recent good mood music between the UK and EU.
In this article, I will address the question of Lord Cameron’s accountability to the House of Commons. I will then consider his first meeting with European Commission Vice-President Maros Šefčovič and subsequent Foreign Office questions in the House of Lords, followed by consideration of Lord Cameron’s comments on the UK-EU relationship in his debut before the House of Lords Foreign Affairs Committee.
1 – A Foreign Secretary in the Lords—the question of accountability to the House of Commons
There is no legal requirement for the Foreign Secretary to be either a Lord or an MP in order to hold office. Ministers of the Crown hold office at His Majesty’s pleasure (Following the King’s approval of his appointment on 13 November, Lord Cameron was sworn as Foreign Secretary at a meeting of the Privy Council on 22 November 2023). As a matter of constitutional convention, however, the Foreign Secretary must be accountable to Parliament (Lord Cameron took his seat in the Lords on 20 November 2023). That said, it remains unorthodox for a Foreign Secretary to sit in the House of Lords, the last to do so being Lord Carrington from 1979-1982.
The 6th Baron Carrington sat in the Lords by virtue of his hereditary peerage, whereas Lord Cameron was created a life peer in order to be accountable to Parliament. Patrick Gordon Walker, neither an MP nor a Lord, had to resign as Foreign Secretary in 1965 after a failed attempt to win a safe seat at a by-election. In 1940, Viscount Halifax famously declined the office of Prime Minister in favour of Churchill on the grounds that a Prime Minister could not conventionally sit in the Lords.
Although Lord Cameron’s appointment therefore goes against the grain of precedent and practice, there have been other Secretaries of State (albeit more junior) in office from the Lords in recent decades and he is accountable to Parliament from the House of Lords through oral Foreign Office questions and appearances before the Lords Foreign Affairs Committee. It is notable that there was no regular way of questioning Secretaries of State in the Lords until 2009 when Lord Mandelson was appointed Secretary of State for Business, Innovation and Skills and Lord Adonis was appointed Secretary of State for Transport.
Despite this innovation in the Lords to enhance accountability, the question remains as to how Lord Cameron will be accountable to the elected House of Commons. On the day of his appointment as Foreign Secretary, the Speaker of the House of Commons stated that “[…] given the gravity of the current international situation, it is especially important that [the House of Commons] is able to scrutinise the work of the Foreign, Commonwealth and Development Office effectively.”
The Speaker further stated that he has “commissioned advice from the Clerks about possible options for enhancing scrutiny of the work of the Foreign Secretary when that post is filled by a Member of the [House of Lords]” and said he looks forward to hearing the “Government’s proposals on how the Foreign Secretary will be properly accountable to [the House of Commons].”
At the time of writing, any advice from the Clerks and or Government proposals on enhanced scrutiny by the Commons of Lord Cameron remains to be seen.
However, on 17 January 2024, the House of Commons Procedure Committee published its report Commons scrutiny of Secretaries of State in the House of Lords, which recommends that Secretaries of State in the Lords appear at the Bar of the House of Commons for Foreign Office question time, statements and urgent questions.
As the Committee notes in its report, this would be a “novel” approach and could have “unintended consequences.” including more Secretaries of State in the Lords (report, p 5). Whilst following the precedent of the 1st Duke of Wellington appearing at the Bar of the House in 1814 (report, p 4) may be theoretically possible, the effectiveness of such an approach is an open question.
I argue that Lord Cameron answering questions from the Bar of the House may provide the appearance of scrutiny by the Commons, but that such an approach would be ineffective and set an unnecessary precedent. It remains the case that Foreign Office questions in the Commons can be answered by junior Foreign Office Ministers Andrew Mitchell MP and Anne-Marie Trevelyan MP.
Parliamentary Under Secretary of State (Europe), Leo Docherty MP attended the fourth meeting of the UK-EU Parliamentary Partnership Assembly at the Palace of Westminster from 4-5 December 2023. The attendance of Leo Docherty was perhaps more appropriate due to matters of protocol and the fact Lord Cameron had his first Foreign Office question time in the Lords on 5 December 2023 (for which, see below).
2 – Lord Cameron’s first meeting with Vice-President Šefčovič—reporting back to the Lords
Lord Cameron held his first meeting with Vice-President Maros Šefčovič in Brussels on 29 November 2023. For all the symbolism of his return to Brussels (he was there for a NATO summit), the publicity of the meeting was low-key and only marked with tweets from Cameron and Šefčovič.
Lord Cameron’s tweet noted that he looks forward to “maximizing the opportunities of the Trade and Cooperation Agreement.” Šefčovič’s tweet stated that discussions included implementation of the Windsor Framework and “matters related to the TCA, including trade & energy.” There appear to be no published minutes of the meeting.
More detail on the meeting with Vice-President Šefčovič came from Lord Cameron at his first Foreign Office question time in the Lords on 5 December 2023. This was also the first opportunity to hear Lord Cameron’s approach to UK-EU relations since being appointed Foreign Secretary.
Answering questions in the Lords, Lord Cameron stated that the Trade and Cooperation Agreement (TCA) “remains the basis” of UK-EU relations and that “we are committed to maximising its opportunities.” That is perhaps not too surprising a position, but nonetheless welcome as a starting point. In the same vein, Lord Cameron turned to the institutional framework of the TCA, stating that “[…] I think there is a role for them, but also for using all the connections, structures and other meetings we have to try to push forward British interests.”
The reference to “structures” in addition to the TCA is very interesting and I wonder what Lord Cameron had in mind. He referred to the discussion of an energy partnership during his meeting with Commissioner Šefčovič, which Lord Cameron described as an “excellent idea.” The TCA Specialised Committee on Energy last met on 9 November 2023.
With the TCA as the existing basis for UK-EU relations, I argue that the question of further UK-EU structural cooperation is the focus point for relations going forward. Given the wider context of the Ukraine war, the energy partnership discussed between Cameron and Šefčovič could well be a short-medium term next step in further structural cooperation and a win-win scenario. With over 20 TCA specialised committees dealing with issues ranging from trade to UK participation in EU programmes, one wonders where opportunities can be maximised in other discrete areas.
By letter dated 4 December 2023, Lord Cameron formally notified the European scrutiny committees of both Houses that he is now co-chair of the Withdrawal Agreement Joint Committee (see Article 164 and Annex VIII of the Withdrawal Agreement & section 15B of the European Union (Withdrawal) Act 2018) and co-chair of the TCA Partnership Council (see Article 7 of the TCA). At the time of writing, no date has been set for the next meeting of the Partnership Council in 2024.
As co-chair, Lord Cameron is now literally part of setting the agenda on Brexit—and making it work.
3 – Making the TCA work—Lord Cameron’s debut before the Lords Foreign Affairs Committee
A week after his first Lords question time, Lord Cameron had his debut before a lengthy session of the Lords Foreign Affairs Committee on 14 December 2023. This committee session, more interactive and in-depth than question time in the Chamber, was arguably the first detailed and effective scrutiny of the new Foreign Secretary. From my perspective, we saw a bit more colour added to Lord Cameron’s original statements set out above.
Article 776 of the TCA provides for a review of the implementation of the TCA, which is expected in 2025/2026. Lord Cameron made it very clear that the TCA review is not about reopening freedom of movement or going into the Single Market. Again, this is unsurprising and aligns with his statement to the Lords on 5 December 2023 that the TCA remains the basis of UK-EU relations, with the focus being on maximising its opportunities.
However, on the question of structural cooperation, Lord Cameron cautiously referred to the “dangers of over-structuration.” It is unclear to what extent this comment is backtracking from his answer on 5 December 2023, but it makes the point that we might need to limit expectations as to the contours of structural cooperation outside the TCA.
A general theme of Lord Cameron’s evidence was that the UK is “big enough to matter but small enough to be nimble.” He predictably pointed to the CPTPP as a post-Brexit opportunity to trade with emerging markets. Yet, the Government’s own impact assessment of the CPTPP notes an estimated 0.08% growth in UK GDP. Chatham House argues that the economic benefit of joining the CPTPP is “minimal” and “does not compensate for the cost of leaving the EU.” It argues that the UK’s interest in CPTPP is “strategic,” yet the fact remains that the UK has the world’s biggest single market on its doorstep.
Referring to the political agreement reached between the European Parliament and the Council on the AI Act on 9 December 2023, Lord Cameron suggested that the EU may have rushed into legislating on AI regulation and that the UK might be able to learn both good and bad lessons from the EU’s AI Act. It is worth observing the EU’s role as a regulatory trailblazer in this area.
8 years on from the referendum, the question of the extent to which we can make Brexit work is a live issue. With the world’s biggest single market and a regulatory superpower on its doorstep, the UK must sometimes mirror the policies of its closest trading partner. A prime example of this is the Carbon Border Adjustment Mechanism (CBAM), which the Government has stated it will implement from 2027, mirroring the EU’s CBAM.
Being realistic about the trajectory of UK-EU relations and seeing the realities of Brexit are not mutually exclusive.
Conclusion
Lord Cameron called the Brexit referendum and is now tasked with making Brexit work. His first statements on UK-EU relations suggest a policy of making the most of the TCA by maximising its opportunities. With the current state of UK politics, going back into the single market is not today’s debate. However, Lord Cameron takes office at a time of greatly improved UK-EU relations following the Windsor Framework and the UK rejoining Horizon.
Building on that good mood music through incremental steps is the best we can hope for at present. London and Brussels are in a good place with the heat taken out of the relationship.
I argue that the question of further UK-EU structural cooperation is the focus point. As Lord Cameron said, in addition to the TCA, the UK has to use the “connections, structures and other meetings we have.” As Russia’s illegal war against Ukraine rages on, an energy partnership would be a win-win for both sides and a welcome further step in UK-EU relations.
*John Bell, LLM (Queen Mary University of London) is a Legal Assistant at the Financial Reporting Council and a former Schuman Trainee at the European Parliament. John is a regular contributor on Brexit and constitutional law matters. His views are solely his own.
Photo credit – @david_cameron on X, 2023.
The views expressed in this blog post are the position of the author and not necessarily those of the Brexit Institute blog.