Brexit is a constitutional, legal, and political challenge of a size the UK has not seen in decades and will have consequences that are both uncertain and long-lasting. In this post, Dominic Grieve offers his distinctive perspective on Brexit, discussing the concept of parliamentary sovereignty, the role of international courts in UK law, and the more troubling aspects of the Withdrawal Bill itself.
The EU and the sovereignty of parliament
My Brexiter colleagues have in varying degrees signed up to the view that EU membership undermines the sovereignty of parliament in a manner which is damaging to our independence and our parliamentary democracy. This certainly fits in with a national (if principally English) narrative that can be traced back past the Bill of Rights 1688 to Magna Carta in 1215. This narrative has proved very enduring; it places parliament as the central bastion of our liberties.
But it can also be used merely as an assertion of power, particularly when the executive has effective control over parliament. It is with that power that parliament enacted the European Communities Act 1972, which gave primacy to EU law in our country. It was parliament that chose to allow what is now the Court of Justice of the European Union (CJEU) to override UK statute law, so as to ensure our conformity with EU law in all areas in which it has competence.
The justification for requiring that supremacy was that without it, achieving adherence to the treaties and convergence between member states in implementing EU law would be very difficult. This was not an unreasonable argument; but it is hard to avoid concluding that the supremacy of EU law lies at the root of the feeling of powerlessness felt by sections of the electorate and reflected in the referendum result. This feeling has been encouraged by the habit of successive UK governments to hide behind decisions of the EU as a justification for being unwilling to address problems raised by its own electors. But where the lawyer and politician in me parts company with the views of my Brexiter colleagues is in the extent to which they appear oblivious to the extent to which parliamentary sovereignty is not – and never has been – unfettered.
It can be argued that in deciding to hold the UK’s first nationwide referendum in 1975 on our membership of the EEC, Harold Wilson was accepting that the nature of the constitutional change required something more than just parliamentary approval, even if it also sought to accommodate Labour Party dissent. Nowadays we are told that the referendum only legitimated membership of a common market, but the constraints on parliamentary sovereignty that flowed from membership of the EEC were apparent even then.
The truth is that EU membership, although more important than any other international treaty to which we have adhered, is not exceptional. Notwithstanding our pride in our sovereignty, successive governments have sought to make the world a safer and more predictable place by encouraging international agreements governing the behaviour of states. When I was Attorney General, I asked the Foreign Office to tell me how many we had signed up to. They said they had records of over 13,200 that the UK had signed and ratified since 1834. Many thousands are still applicable and range in importance from the UN Charter to local treaties over fishing rights. Over 700 contain references to binding dispute settlement in the event of disagreements over interpretation.
As the product of an international treaty, the EU can only be effective and seen to be legitimate if its own operations are considered to respect the letter and spirit of the treaties that created it. Furthermore, the nature of the project has produced a requirement not only for the supremacy of EU law in areas of EU competence, but also the creation of parts of that law by its central bodies without the need for any domestically generated legislation at all. It is obvious that such a source of law can operate abusively. This means that rights need to be protected; hence the Charter of Fundamental Rights (the Charter), which also covers the key obligations of member states in respect of the ‘four freedoms’ conferred on EU citizens.
It seems rather ironic, therefore, that the Charter should have been on the receiving end of so much vilification in the UK. Criticism can be made of its use to claim rights that might be considered to fall outside the scope of the treaties. Without it, however, the risk increases that EU law could be created or applied in a way that did not respect the limits of the treaties or interfered with fundamental rights, whilst leaving individuals and legal entities without any means of redress.
The process of Brexit
Many Brexiters celebrated the referendum result as the necessary step to restoring parliamentary sovereignty and nationhood. But we were then immediately told that parliament’s new-found sovereignty should not extend to legislating for or even just approving the triggering of the Article 50 process, as the people had spoken and nothing more was needed. I thought this idea to be revolutionary.
In fairness to the government, it did not seek to argue that the EU referendum itself provided the necessary authority to trigger Article 50. It sought instead to contend that it was entitled to do this under the Royal Prerogative because its action was confined to our international relations. The domestic changes that might follow UK laws enjoyed under UK statutes were described as an incidental consequence that parliament had not expressly or impliedly restricted. The High Court rejected this argument as ‘flawed at a basic level’ in R (Miller) v Secretary of State for Exiting the European Union. The Supreme Court was rather kinder, but still held that statutory authority was needed. I confess that I see this outcome as one small bit of silver lining to the Brexit cloud. The judgment has provided a degree of clarity on the impropriety of seeking to use executive powers to undermine and remove the benefits and rights conferred by statute.
Having just spent four months considering the EU (Withdrawal) Bill (the Bill), I don’t think I have ever seen a piece of legislation that conferred such power on the executive to change the law of the land by statutory instrument (SI) and where the entire structure was so closely interwoven that the same end could often be achieved by different routes. Yet with Article 50 triggered it is also vitally necessary that it is enacted. Only an anarchist hell-bent on celebrating chaos on the morning of the 30th March 2019 would wish to see it fail.
The principal problem is that the government did not know – and still does not know – exactly what it needs from this legislation or indeed what it wants from Brexit itself. It claimed its intention was to convert and entrench EU law into domestic law to ensure legal continuity. The complexity of what is being attempted creates uncertainty as to how the law will operate. It is not clear what weight should be given after exit to CJEU authorities by our courts, assuming an intention by the government to mirror areas of EU law to maintain compatibility. The way the Bill is drafted makes it clear that the government intends to reduce both the Charter and general principles of EU law to no more than interpretative aids to retained EU law.
As a government backbencher I have at time been torn between logic and loyalty, so I do worry that we might have done more to improve the Bill if we had been more rebellious. But politics is the art of the possible and I don’t think the changes achieved in the Commons have been negligible.
Firstly, we have stopped the mischief of Clause 9, which allowed the government to start enacting SIs to take us out of the EU in furtherance of a Withdrawal Agreement before we know what it is, including changing any part of the Bill itself. I am sorry that this required me to vote against the government. It has inevitably appalled some of my colleagues and constituents, but I have no regrets on the matter. It has ensured a much needed preservation of parliament’s role at the end of the Brexit process, and I am entirely unpersuaded by the suggestion that the Clause 9 powers were needed now because of time constraints.
Second, I am grateful that the government listened to the concerns expressed around the extent of the powers in Clause 7, which gave it power to make regulations to remedy deficiencies in retained EU law. It was too extensive. The new wording is a significant improvement and a safeguard against this clause being used abusively.
Next, we have achieved an important step for parliamentary scrutiny in the amendments enabling a bespoke process to be set up for the SIs that will be made under the legislation. The intervention of the Procedure Committee was key in getting this and I am very grateful for its work and that of its chair, Charles Walker.
I am disappointed that I was not able to do more to persuade the government to move further on the use of general principles of EU law to bring challenges to the operation of retained EU law. I think it would be useful until parliament and the government can consider what long term protection might be needed for rights that will be left unprotected after exit. The logical approach would be similar protection to that provided by the Human Rights Act 1998, but this Bill is probably not the place to consider this.
Looking ahead, it is curious that the Bill may turn out to be largely redundant by the time we come to leave. Assuming a Withdrawal Agreement is reached by the autumn of this year, we will be going through another major piece of legislation in 10 months time that is in practice going to replace most of what we are now doing.
As the Stage One negotiation showed, the idea that the referendum vote is giving us sovereign autonomy is misplaced. The issue of the Irish border has at least in theory circumscribed the nature of our future relationship with the EU, unless we renege on the assurance that there would be no customs checks requiring a physical border. I find it hard to see how this will not mean staying in a customs union, making much of Liam Fox’s work as International Trade Secretary seemingly redundant. I detect growing acknowledgement in government that this is the case
The Prime Minister has also recognised the importance for us as well as for the EU, of continuing to participate in areas of justice and home affairs, including the European Arrest Warrant and the Schengen Information System. Equally important are the civil law measures which include matters as diverse as high value commercial litigation and contact arrangements for children. The recast Brussels Regulations have created rules to ensure uniformity and certainty for litigating parties and have been of the greatest benefit in making the UK an attractive place to litigate.
The government has shown every intention of wanting to remain in these arrangements and it is arguably very much in the interests of the EU that we should continue to do so. But we risk in these areas ending up as observers. I see this as one of the most serious side effects of Brexit. As an example, we are enacting primary legislation to give effect to the new General Data Protection Regulation of the EU – to which we have provided input – in a Data Protection Bill. Once outside the EU, our ability to contribute to further changes will be gone, but our obligation to observe those changes in all data exchanges with EU countries will remain. I wonder how all this will play out with the public when it becomes clearer how this will work.
Finally, there is that transitional deal which is likely to be our short term destiny from March 2019. No change at all for a time, not even I now sense in the areas of agriculture and fisheries. Instead, we shall have what Boris Johnson characterises as ‘vassalage’. It makes Nigel Farage’s recent intervention in favour of a second referendum seem a perfectly understandable attempt to return to the purity of his vision; the cliff edge followed by untrammelled sovereignty. Going over cliff edges is not, however, without risks.
In the past 19 months, we have seen the development of an unparalleled political and constitutional crisis. It has precipitated the fall of one government and contributed to the failure of another to get a coherent mandate for carrying it out. It is also breaking apart the previous broad consensus between the mainstream political parties as to how the economy should continue to be managed. This can bring potentially profound change in our country’s relationship with both our own and the international legal order.
‘Taking back control’ is a powerful idea in conditions where the decline in confidence in institutions has become such a marked phenomenon. The risk is that it is largely a mirage. It is also a uniquely disruptive form of change that precipitates the very reverse of the ‘quiet government’ the UK has traditionally aspired to deliver to its citizens. It should be no surprise therefore that in this atmosphere of crisis the principal change is the accrual of more power to the executive. But that makes it all the more important that MPs, including former attorneys-general, should be vigilant that we don’t lose the very things which are the most valuable legacy of our forebears.
This post is an edited version of a lecture delivered to The Constitution Society. The full text of the lecture can be viewed here. The opinions and analysis expressed in this post are the personal views of the author.
About the author
Dominic Grieve QC MP is the Conservative Member of Parliament for Beaconsfield and a former Attorney General of the United Kingdom.