Brexit and parliament: where did it all go wrong?

meg_russell_2000x2500.jpgParliamentary arguments over Brexit may now feel far behind us, but the bitterness of those arguments has left scars on our politics. Meg Russell examines four factors which contributed to the parliamentary ‘perfect storm’ over Brexit, concluding that ‘parliament’ largely got the blame for divisions inside the Conservative Party. This was fuelled by the referendum, minority government and the inability of parliamentary rules to accommodate a minority situation. The populist anti-parliamentary rhetoric which resulted was potentially damaging, with implications for the current Covid-19 crisis, when public trust in political decision-making is essential.

Amidst the current Covid-19 crisis, last year’s Brexit clashes already feel a long time ago. But at the time, they pushed Britain’s politics and constitution to their limits. Parliament was frequently at the heart of these conflicts – with angry headlines suggesting that parliamentarians were seeking to ‘block Brexit’, and branding them ‘wreckers’ or ‘saboteurs’. Twice questions of parliament’s proper role in relation to government ended up in the Supreme Court. Boris Johnson sought a lengthy prorogation of parliament, after which the Attorney General told MPs that they had ‘no moral right to sit’. How on earth did the UK, traditionally the most parliamentary of all democracies, get into such a mess? I dissect this question in a newly-published paper, ‘Brexit and Parliament: The Anatomy of a Perfect Storm’, in the journal Parliamentary Affairs. This post summarises the article’s key arguments. The full version is freely available to read online.

I suggest that four key political and constitutional features, all unusual in the UK context, contributed to this ‘perfect storm’. It was accompanied by a rise in populist and anti-parliamentary rhetoric – of a kind which would be destabilising and dangerous in any democracy, but particularly one based on a core principle of parliamentary sovereignty – as returned to at the end of this post. The four factors were as follows:

The referendum

As charted by the Independent Commission on Referendums, referendum use has grown in UK politics, but can sit awkwardly with traditional parliamentary sovereignty. Arguments for referendums on matters concerning EU powers were made over a long period (somewhat ironically) on the basis of protecting that very sovereignty. The 2016 EU referendum – eventually conceded by David Cameron, under pressure from Conservative Eurosceptics and UKIP – was very unusual, in two important ways. First, it was what the House of Commons Public Administration and Constitutional Affairs Committee (chaired by senior Brexit supporter Bernard Jenkin) criticised as a ‘bluff-call’ referendum: where the government’s purpose was not to seek approval for a change that it supported, but to shut down its opponents’ demands. Second, the referendum was held on a broad proposition (to leave the EU), rather than a detailed prospectus. Hence when the result came in, and was not the one the Prime Minister or most MPs (even on the Conservative benches at that time) wanted, parliament was left to decide how to put it into effect. Such circumstances generated clear tensions between parliamentary and popular sovereignty. Continue reading

The invisibility of legal advice given to EU institutions

Leino_Sandberg_P_ivi_2_photo_Linda_Tammisto.jpgWhenever a political institution seeks to rely on legal advice, there are often calls for that advice to be published, so it can be scrutinised. As has been discussed previously on the blog, there are pros and cons to placing material prepared in confidence into the public domain. Päivi Leino-Sandberg argues that in an EU context, such advice is often invisible, to the detriment of the decision-making process. 

Legal advice matters. It may not always decide the fate of nations, as Attorney General Geoffrey Cox’s advice on the Irish backstop may have done, but an astute follower of EU politics may recall times when proposals by the European Commission have hit a legal roadblock. A measure may have been found unconstitutional by the legal service of another EU Institution or a powerful Member State, bringing the political process to a halt. Typically, a flurry of fierce legal wrangling then ensues, during which the offending parts of the proposal are reviewed, removed or modified to reconcile divergent legal views. In most cases, the proposal will eventually re-emerge and is adopted in a revised form. Sometimes, it is quietly buried.

These are the battlegrounds of legal advisers working in the EU Institutions. Their opinions carry significant weight. The Commission Legal Service has enjoyed a de facto veto power over most Commission measures, even though this power has weakened during the Juncker Commission (2014-2019). The Council Legal Service is no less powerful. A Member State legal adviser explains how:

‘if you haven’t either managed to silence the Council Legal Service … or get them onside, forget about it. Because if they come out with something that’s contrary to where you are, they probably have a natural majority of fifteen Member States before you even start. And of the thirteen others, seven or eight will go with them anyway.’

But in spite of its importance, legal advice in the EU remains curiously invisible.

Two recent posts on this blog debated access to legal advice given to parliaments. In the first of these posts, Ben Yong, Greg Davies and Cristina Leston-Bandeira cautioned against publishing UK Parliament select committee legal advice. They concluded that publication of advice personalises and potentially politicises it, and threatens the relationship of trust and confidence between officials and parliamentarians. Publication might also create an exaggerated picture of the role of legal advice in political decision-making. In contrast, Gabrielle Appleby advocated for the publication of such advice to facilitate greater transparency about the influence of legal advice in parliamentary decision-making.

In the EU, legal advice given in the legislative context should, as a rule, be open to public scrutiny. However, it continues to be treated as confidential. I have been examining its use empirically in the Commission, the Council and the European Parliament. Each of these institutions has – in addition to legally trained officials in policy units – a dedicated Legal Service that plays a key role in its legislative work and defends it before the courts. It is these bodies that are tasked to assess the constitutionality of proposed action. They may advise against certain approaches and recommend in favour of others. Continue reading

A case for publishing select committee legal advice

g_appleby_headshot.jpg.pngIn May, we posted a blog entitled ‘The politics of publishing select committee advice’ in which the authors discussed the potential negative implications of making public the legal advice given to parliamentary committees. Here, Gabrielle Appleby argues that there are in fact benefits to publishing such advice, and that it could be advantageous to parliamentarians and the public if it was done as a matter of course. 

The work that has been done by Ben Yong, Greg Davies and Cristina Leston-Bandeira, (as explained in their recent post, ‘The politics of publishing select committee advice,’ and in more detail in their publication in the Law and Society Journal), with their focus on parliamentarians, clerks and parliamentary lawyers, is an important contribution to understanding under-studied constitutional actors. Their work provides more than doctrinal examination or theoretical musing on the work of these actors. It is informed by a rich empirical insight into the phenomenon of the release by parliamentary select committees of in-house legal advice that might have been provided to them to inform their deliberations, which they say is increasing in a concerning manner. 

I welcome their general conclusion, that there is a need for ‘written guidance in order to improve consistency’ around the publication of such advice. However, I write to proffer a version of that guidance that is not just more permissive of publication than that alluded to by the authors, but, indeed, actively encourages it.

How should parliamentary committees use legal advice?

As I have written with my colleague Anna Olijnyk, I support a framework in which  parliamentary deliberations are informed by legal advice (including the deliberation of parliamentary committees) and that advice should be released as a matter of course. 

To justify my position I must first explain my starting point. Like Yong, Davies and Leston-Bandeira, I hold concerns about the juridification of politics, and, more specifically, about the over-reliance on legal advice to inhibit the legitimate development of policies and laws. Responding to that concern in the context of constitutional limits (coming as we do in Australia from a tradition of a written constitution), Olijnyk and I have developed a normative framework for executive and legislative deliberation, which tries to balance the tug of the rule of law towards legally enforced rules and norms against the need for flexibility and innovation in political decision-making. We propose a framework in which the legal position must inform political decision-making, and in some cases will be determinative. But, in many cases of ambiguity and indeterminacy, it will inform without dictating the outcome. 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

Courting a Liddle Contempt?

Following the publication of an article by Rod Liddle, the Spectator has been referred to the Attorney General, Dominic Grieve, for possible contempt of court.  Mr Justice Treacy, presiding over the trial of Gary Dobson and David Norris for the murder of Stephen Lawrence in 1993, also warned the press not to republish any part of the article.

The key issue is whether the article had the potential to prejudice the trial; if so, Liddle could face action and the Spectator could be fined. The Contempt of Court Act 1981 created a ‘strict liability rule’, which relates to ‘active’ court proceedings. Strict liability means that the publisher’s intention is completely irrelevant: the rule applies in cases where a publication creates ‘a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced.’

Grieve has certainly been more active than his predecessors in pursuing those newspapers who report irresponsibly: this July, The Sun and the Daily Mirror were fined £18,000 and £50,000 respectively for their coverage of the investigation of Joanna Yeates’ murder in Bristol, particularly in relation to the “vilification” of her landlord, Christopher Jeffries, who was arrested but released without charge shortly afterwards. In addition, Grieve has brought contempt proceedings against Sky (for allegedly breaching an injunction relating to the kidnapped couple Paul and Rachel Chandler), as well as the Daily Mail and Daily Mirror (for their reporting of Levi Bellfield’s murder of the schoolgirl Milly Dowler).

Having seen the article it is not easy to sympathise with either Rod Liddle or the Spectator. How such a hubristic article was allowed to be published is difficult to fathom. Given the Attorney General’s zeal for pursuing reckless newspapers, the Spectator will have to quickly locate its lawyers…

Injudicious Talk?

So it’s finally happened. The dogs on the street knew the identity of CTB, the footballer who held a super-injunction prohibiting publication of details of an alleged affair. Yesterday afternoon,in the course of a Commons debate on privacy, John Hemming MP used the protection of parliamentary privilege to name CTB as Ryan Giggs. [] As a result the media (and this blog) have been freed to repeat this information without threat of legal sanction. This is one of several similar incidents recently. In March, Mr. Hemming used privilege to reveal the existence of an injunction held by Sir Fred Goodwin and last week Lord Stoneham stated in the House of Lords that the injunction in question related to an allegation of an affair.

These incidents suggest that parliamentarians may be starting to assert a direct role in interpreting the appropriate boundaries between privacy and freedom of expression and in challenging rival judicial interpretation of the balance of these values. There is nothing wrong with this as a matter of constitutional principle. Parliament has always acted as supreme constitutional authority (just as judges have always made law). However, direct challenges to the authority of the judiciary are unusual because if Parliament doesn’t like the wider implications of a judicial decision it can simply change the law (but of course Parliament doesn’t appear to be sure quite what an alternative privacy law should look like, and doesn’t want to court media criticism any more than do judges).

The reality is that the judicial position that underpins the jurisprudence on privacy in Britain is entirely defensible. Of course it is possible to disagree with it, but is it so far beyond the pale that it deserves the kind of criticism it has received? Only last Friday, Lord Judge suggested that MPs should think carefully before using privilege to frustrate injunctions in this way. [See the press conference for Lord Neuberger’s report on Super-Injunctions:] And yesterday morning a fresh application to discharge Mr. Giggs’ injunction had already been rejected by the High Court (a second application after Mr. Hemming’s statement was also rejected). Given the timing, Mr. Hemming’s statement thus represents something of a challenge to the authority of judges; a minor one, perhaps, but a challenge nonetheless. Depending on one’s point of view, this may also amount to a challenge to the rule of law. Is it really worth having a constitutional crisis over an alleged celebrity affair?

There is an interest in privacy – particularly in respect of the most intimate aspects of family life – that tends to go unspoken for in this debate. Partly, this is because the media has a professional (and pecuniary) interest in making secret things public and because, to some extent, politicians follow agendas that are set by the media. The widespread media position that super-injunctions amount to press censorship is of course literally true, but insufficiently fine-grained. The media account of the privacy debate significantly underplays the damage that publication causes to families. The super-injunction granted to Trafigura in 2009 (which prevented publication of a report into the dumping of toxic waste in Africa) [] was orders of magnitude more worrying than an order that suppressed some celebrity gossip about a footballer and a Big Brother contestant. The balance of interests in the first case is not the same as that in the second (not least because companies don’t have family lives). And it’s not as though it’s hard to see the qualitative difference between these two kinds of story – the common ‘slippery slopes’ argument that tends to blight discussion of freedom of expression and privacy is not always well founded. (Readers may want to see Conor Gearty’s more extensive argument about privacy and the Max Mosley case on the UK Constitutional Law Group Blog available at:

Of course, it might be reasonable to argue that the balance of interests was changed in this case by the fact that Mr. Giggs’ name was already public knowledge through circulation on Twitter and the internet more generally. It is possible that we are in a world in which privacy is impossible for people who are in the public domain (and perhaps for private citizens too). In that context a privacy injunction might be as effective as an injunction that water should run uphill and simply not worth having. Nonetheless the courts appear to have been receptive to the argument by Mr. Giggs’ lawyers that there were important differences between publication on Twitter and publication in the print and TV media, with all that the latter could entail [see:]. A thoughtful Guardian editorial makes a similar point today:

All of that said, Mr. Hemming has not had things all his own way. The response from fellow parliamentarians has been notable in its lack of support for his position, with a number expressing regret or emphasising that privilege should not be used in this way. Responding yesterday in the same Commons debate to a suggestion that the judiciary should ‘butt out’, Attorney General Dominic Grieve MP said that ‘I have to say to my hon. Friend that I am not quite sure what they are supposed to butt out from. If he is suggesting that they should butt out from doing their duty and following the judicial oath that they take, I am afraid I disagree with him.’ And in the Lords, former Lord Chancellor Lord Falconer commented that: ‘There is something quite ugly about unpopular people being named in Parliament despite the fact that a judge has thought that they are entitled to privacy,’ and noted also that the issue of privacy had been the subject of significant debate when Parliament enacted the Human Rights Act. Even Mr. Hemming’s own party leader, Nick Clegg, (speaking today) was critical. []

No one is suggesting that the general authority of the judiciary is likely to crumble over this. But there is a very public challenge here from some parliamentarians and from the media and so far the judiciary appear to be sticking to their guns. The Attorney General has announced a joint committee to investigate this issue. It will be interesting to see what happens next.

Lord Neuberger’s report on Super-Injunctions is available at: