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

Amendments are needed to strengthen the Withdrawal Bill’s provisions for scrutiny of Statutory Instruments

5GMFtvPS_reasonably_smallToday saw the start of two days of report stage debate in the House of Commons on the content of the EU (Withdrawal) Bill. At committee stage, amendments were made that created a new sifting committee for statutory instruments related to Brexit. Joel Blackwell, of The Hansard Society, argues below that the current proposals are insufficient to guarantee proper scrutiny and makes several recommendations for changes that can be made before the bill passes to the House of Lords.

The EU (Withdrawal) Bill, which returned to the House of Commons for its report stage today, was successfully amended at committee stage in December 2017 to create a mechanism which will allow MPs, via a new European Statutory Instruments sifting committee, to consider statutory instruments (SIs) made under the Bill’s widest delegated powers and recommend an upgrade in the level of scrutiny of those about which they have most concern.

This new scrutiny mechanism, incorporated through a series of amendments tabled by Procedure Committee Chair Charles Walker, is intended to constrain the wide Henry VIII powers the government will use to make changes to retained EU law via SIs (under clauses 7, 8 and 9 of the Bill).

But if MPs are serious about scrutinising the changes arising from Brexit, these amendments, and the related proposals to amend Standing Orders will, as currently drafted, offer only limited help. If MPs are not happy with what the government wants to do, they will still be unable to exercise any real influence on the substance of a Brexit SI.

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Reform is needed to restore public and parliamentary confidence in the private members’ bill process

Last month the House of Commons Procedure Committee published a report on the private members’ bill process in which a number of proposals for reform were put forward. The committee’s chair, Charles Walker, offers an overview and argues that the alternative to reform is that more members will abandon the existing process and backbench legislation, as we know it, will cease.

Procedure Committees past and present have examined the private members’ bill (PMB) process and found it gravely wanting. It is becoming more and more evident that parliamentary and public confidence in the process is waning. The current process misleads the general public, often falsely raises expectations about legislative action, and operates under procedures which are too easily gamed to prevent genuine legislative proposals from proceeding. The Procedure Committee undertook its latest inquiry into PMBs in light of experience of the process in this session and increasing dissatisfaction with the House’s procedures for PMBs, building on the work of the predecessor committee in the last parliament.

We identified two fundamental problems with the present process. Our chief concern is the lack of transparency: the process is impenetrable to the general public and too often brings parliament into disrepute. Our second concern is that it is now extremely difficult for a genuine PMB to reach the statute book—increasingly, not because the House as a whole has decided that a bill should not progress, but because a small number of members opposed to a measure can effectively veto it.

Evidence we heard suggests that the public is baffled by the process. Colleagues are frequently lobbied by constituents and others with requests to be present at Westminster on a sitting Friday to support a bill which has little (if any) chance of being debated, let alone reaching the statute book.

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