Divided but influential? The Exiting the European Union select committee


9caa65f1.ccfa.41f1.b3a9.c215903163f256529dfd.b7ad.416a.959b.ac44a05e40ceThe Select Committee on Exiting the European Union was formed in 2016 following the outcome of the EU referendum. Chaired by former International Development Secretary Hilary Benn, it is in many ways an outlier in the world of Commons committees. Philip Lynch and Richard Whitaker discuss what makes it so unusual and analyse how it has operated since its inception.

The Select Committee on Exiting the European Union (the DExEU committee, or Brexit committee) is one of the most divided since the creation of departmental select committees. Select Committees usually operate on a consensual basis, and unanimous reports are regarded as carrying more weight. Most reports are agreed without divisions. But the DExEU committee has seen divisions – formal votes on reports or amendments – on each of its reports, and eurosceptic members produced an alternative draft report in March 2018.

Of the committee’s 21 members, 14 campaigned for Remain in the 2016 EU referendum: six Labour, four Conservative, two SNP, one Liberal Democrat and one Plaid Cymru (see Table 1 below). Seven voted Leave: six Conservatives and one DUP.

Voting on DExEU committee reports

The DExEU and the Northern Ireland select committees are the only ones in which the Conservatives and the Democratic Unionist Party (DUP) together have a majority. However, they have rarely been able to take advantage of this, because the DExEU committee is not divided primarily along party lines. Continue reading

Voting for Brexit: the practical and constitutional barriers to getting consent for the withdrawal agreement before exit day

MIKEMASSARO.9198.CROPPED..hannah.114x133_0_MIK4282.cropped.114x133The government has repeatedly given assurances that parliament will be offered ‘a meaningful vote’ on the final Brexit deal, which is still being negotiated. In this post, Hannah White and Raphael Hogarth discuss the challenges of meeting that commitment and argues that the binary choice of ‘deal’ or ‘no deal’ is a false one. They also discuss some of the practical and constitutional issues raised by the government’s legislative plans to implement Brexit within a very short timeframe.

By October ministers hope to have negotiated a withdrawal agreement on the terms of the UK’s departure from the European Union, and a ‘framework for a future relationship’ on long-term UK-EU relations. To reach agreement with the EU on these documents in so little time will be a monumental challenge for the government – but when this challenge is complete, a new one begins. The government will then have to shepherd these documents through a number of processes in parliament.

Our new report, Voting on Brexit, sets out what the government has to do in order to get its deal through parliament, and give effect to that deal in domestic law. Below are seven key messages from that research.

1. The government’s timetable for getting its deal through parliament is ambitious

The government has promised to seek parliament’s approval for both the withdrawal agreement and the future framework in one go. However, there will be very little time in which to do so. The UK is currently set to leave the EU on 29 March 2019. That means that there will be only six months available for scrutiny and approval of the deal.

This should be enough time, providing nothing goes wrong. But if negotiations drag on past October, or parliament raises significant objections to the deal that require a renegotiation or referendum, or if the European Parliament raises its own objections, then the timetable could be unachievable. The government would need to consider seeking an extension of the Article 50 period in order to complete its negotiation and allow time for scrutiny and approval. Continue reading

Parliament and the withdrawal agreement: What does a ‘meaningful vote’ actually mean?

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The government has repeatedly assured MPs that they will get the opportunity to have a meaningful vote on any agreement reached with the EU related to the UK’s withdrawal as part of the Article 50 process. This post by Jack Simson-Caird examines the role of the House of Commons and the House of Lords when it comes to approving and implementing that agreement. 

Since the UK government began negotiations over the withdrawal agreement under Article 50, questions have been raised about how parliament will approve and implement the final agreement.

The government’s stated position has long been that parliament will have the opportunity to approve the final agreement through a motion ‘to be voted on by both Houses of Parliament before it is concluded’. On 13 December 2017 David Davis MP, the Secretary of State for Exiting the European Union, gave details of the procedures for both the approval and implementation of EU Exit Agreements. He explained that the approval process is separate from the process of implementing the agreement through primary and secondary legislation.

Approving the withdrawal agreement

David Davis proposed that the process of approving the withdrawal agreement will take the form of a resolution in both Houses of Parliament. This resolution will cover both the Withdrawal Agreement and the terms for our future relationship”. The Supreme Court noted in Miller in January 2017 that such a resolution does not have any legislative effect, but is nevertheless ‘an important political act’. Continue reading

Brexit and the sovereignty of parliament: a backbencher’s view

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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. Continue reading

The Lords and the EU Withdrawal Bill: 10 predictions

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The European Union (Withdrawal) Bill has completed its bumpy passage through the Commons and now moves to the Lords, where the government falls well short of a majority. In this post Meg Russell explores what the Lords is likely to do with the bill, making 10 predictions and, in doing so, busting some common myths. She concludes that the bill will be heavily amended, but any suggestion that the Lords will ‘block Brexit’ is misconceived. 

The European Union (Withdrawal) Bill completed its passage through the House of Commons last week. During its two-day second reading, eight days in committee on the floor of the House and two-day report stage, it got a pretty bumpy ride. In a fascinating test for a minority Conservative government, amendments were fended off on a range of issues, but various concessions were also given, and the government suffered one defeat. Now the bill passes to the House of Lords, where the numbers are far more stacked against the government. As of today, the Conservatives held just 248 out of a total 794 Lords seats, with Labour on 197, the Liberal Democrats 100 and independent Crossbenchers 183. In recent years this kind of party constellation has meant that even governments with comfortable Commons majorities have been frequently defeated in the Lords. So what can we expect from the second chamber on this highly sensitive bill? Here are 10 broad predictions:

Amendments are likely, right from the outset

1. There is little doubt that the bill will be significantly amended in the Lords. Even on relatively uncontroversial bills, scrutiny by peers frequently results in changes. But this is precisely the kind of bill that peers get most exercised about. The legal arrangements that it seeks to put in place for Brexit are highly technical and complex. The bill’s central purpose is to repeal the European Communities Act 1972, but at the same time to maintain legal continuity by creating a new body of ‘retained EU law’. This process in itself raises many difficult constitutional points (as indicated further below). In addition, the bill includes extensive ‘delegated powers’, allowing ministers to amend retained EU law with limited parliamentary oversight. This combination of a constitutional focus plus sweeping delegated powers, even leaving aside the disputed context of Brexit, guarantees that Lords scrutiny will be intense. It will almost certainly result in changes.  Continue reading

Ask the Experts: Legal and Constitutional Implications of Brexit

On 13 June UCL Public Policy and the House of Commons Library jointly hosted an ‘Ask the Experts’ event on the legal and constitutional implications of Brexit. The panel consisted of specialists from both institutions. Marc Phoon reports.

The possible economic and social consequences of Brexit were central features of the referendum debate and continue to be discussed widely. However, of equal importance are the legal and constitutional implications of Brexit, which may very well underpin the long term outcomes of the Brexit negotiations. ‘Ask the Experts: Legal and Constitutional Implications of Brexit’, an event jointly hosted by UCL Public Policy and the House of Commons Library on 13 June, aimed to provide some clarity on this matter.

The panel consisted of staff from both the House of Commons Library and UCL. Vaughne Miller is the Head of International Affairs and Defence at the House of Commons Library and an EU law specialist. She was joined by two of her colleagues, Arabella Lang, a treaty specialist and Jack Simson Caird, a constitutional law specialist and UCL alumnus. Ronan McCrea, a Senior Lecturer from the Faculty of Laws and Christine Reh, Reader in European Politics from the Department of Political Science, both based at UCL, completed the panel. Meg Russell from the Constitution Unit chaired the event. In introducing the panel, she emphasised the high-quality, reliable and digestible briefings publicly available from the House of Commons Library, as well (of course) as the materials available from the Constitution Unit, the UCL Brexit Hub and other UCL experts.

Vaughne Miller

Vaughne Miller kick-started the discussion by offering an overview of the differing approaches taken by the EU and the UK government ahead of the Brexit negotiations. The EU, through the European Commission and European Council, has already set out its priorities for the negotiations. It is particularly concerned with issues related to EU citizens’ rights post-Brexit, the border between Northern Ireland and the Republic of Ireland and the so called ‘divorce bill’ – i.e. the financial settlement between the UK and the EU. She noted that the EU has a clearer position than the UK government because of the EU’s laws on transparency, which mean that the majority of the negotiation guidelines coming from the EU will be publicly available.

Miller went on to explain that it is not yet clear how the UK parliament is going to be kept informed about the progress of Brexit negotiations. The government has indicated that the UK parliament will be kept at least as informed as the European Parliament. Nevertheless, MPs have signalled their expectations on this matter through a report published by the European Scrutiny Committee. Furthermore, because of the general election and summer recess, there are concerns about whether there will be adequate parliamentary scrutiny of the early stages of the negotiations. Notably, select committees in the Commons which scrutinise government departments are not likely to be properly established until September this year.

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Can the Brexit clock be stopped?

In this post Piet Eeckhout adopts a constitutional law perspective to argue that there are numerous ways in which the two-year Article 50 clock could be stopped or extended. Not only could the decision to withdraw be revoked by the UK, but both the UK and European Parliament could ask for the negotiations to be extended. Crucially, EU constitutional law requires an orderly transition. 

The deed has been done, the letter delivered. All over media screens the two-year clock started ticking, registering to the level of seconds the time left for Britain’s EU membership. The point of Brexit, when by virtue of Article 50 the treaties cease to apply, can be determined with atomic precision, so it seems.

But the relationship between law and time can be treacherous, and those who look at the two-year deadline of the withdrawal process as a physical fact could well come in for a surprise. Of course we know that the European Council has the power to decide, unanimously, to extend the withdrawal process. So much is expressly stated in Article 50. There is, however, more to Article 50 than meets the eye.

In a paper written with Dr Eleni Frantziou (Westminster), and to be published in the coming months (for an earlier version see here; for my lecture on the subject, see here), we argue that Article 50 needs to be interpreted and implemented in line with broader EU constitutional principles. We also point out that UK constitutional law governs further UK decision-making on Brexit. Our conclusions are that the clock can be stopped in a number of ways.

First, the UK could change its mind. Our view is that the Article 50 notification is revocable. The notification implements a decision to withdraw, in accordance with the withdrawing state’s ‘constitutional requirements’ (Article 50(1)). If that state rescinds that decision, in good faith, and in a constitutionally orthodox fashion, the very basis for withdrawal falls away. In the UK parliament is sovereign. It has authorised the government to notify the intention to withdraw; it could decide, at any point, that Brexit is off. The EU respects the constitutional identity of its member states (Article 4(2) TEU), and would therefore need to respect a Brexit reversal, for else the effect of Article 50 would be one of forced expulsion. The travaux of Article 50 show that such an expulsion mechanism was rejected. Of course any abuse of the Article 50 process must be avoided – there cannot be an opportunistic letter-sending sequel – but the law can deal with abuse. The EU’s whole purpose is integration, and the return of the prodigal son would fit that purpose.

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