Tag Archives: European Communities Act

Do we need a written constitution?

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image1.000.jpgPrior to the general election, several of the parties’ manifestos called for the creation of a codified constitution for the UK. In December, the Constitution Unit hosted an event to debate the merits and downsides of such an exercise. Harrison Shaylor summarises the discussion.

What did the 2019 Liberal Democrat election manifesto and the Brexit Party’s ‘Contract with the People’ (from the same election) have in common? Both advocate the need for a written constitution in the UK. So too did the Green Party manifesto, and that of the Alliance Party of Northern Ireland. Meg Russell took part in a discussion on a written constitution in The Briefing Room on Radio 4 in September, and on 28 November, the Constitution Unit held its own event entitled ‘Do we need a written constitution?’. Two distinguished law professors – Sionaidh Douglas-Scott of Queen Mary University of London and Nicholas Barber of the University of Oxford – set out the case for and against a written constitution, in a debate chaired by a former Unit Director, Professor Robert Hazell. What follows is a summary of the presentations made by each participant. 

The argument for a written constitution: Sionaidh Douglas-Scott

‘Someone, I haven’t been able to trace whom, once said: Constitution building is a bit like dentistry: there’s never a good time for it; no one does it for fun; but it’s sometimes necessary and, when it’s done right, it prevents greater pain in the future.’

Professor Douglas-Scott explained that a constitution delineates the relationships between the major institutions of state, such as the executive and the legislature, as well as between the state and its citizens. More abstractly, a constitution says something about legitimacy and power. How does the state exercise power? And when is it legitimate for it do so?

The UK is unusual in not having a written constitution, in the sense of not having the fundamental rules of the constitution codified in a single document. It is one of only a few democracies in the world which lacks one, alongside Israel and New Zealand. The reason for this is historical. Since 1688, Britain has not experienced a revolution or regime change – a ‘constitutional moment’ – like the American or the French Revolution, or the withdrawal of colonial rule. Rather, Britain’s constitution has evolved slowly over time under relative stability; it has never been deemed necessary to list the fundamental laws and principles underpinning the country’s polity. As the Constitution Unit website states: ‘What Britain has instead is an accumulation of various statutes, conventions, judicial decisions and treaties which collectively can be referred to as the British Constitution.’

This arrangement, Professor Douglas-Scott argued, is no longer adequate. The current constitution is deficient for three reasons: its lack of clarity; its failure to properly protect fundamental rights; and the inadequacy of the current devolution settlement. Continue reading →

Beyond Brexit: Towards a British Constitution

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vb_image_70x90Brexit is a major constitutional change. It creates considerable constitutional uncertainty, but also opportunity. It could prove Britain’s constitutional moment. Vernon Bogdanor argues that just as joining the EU fundamentally altered the UK constitution, so Brexit could, by exposing the very nakedness of Britain’s uncodified arrangements, prove a catalyst for a written constitution.

During the period of membership of the European Communities/European Union, the UK was subject to a written or codified constitution, which was entrenched. Brexit is a process rare if not unique in the modern world, involving as it does disengagement from a codified to an uncodified system. It is just possible indeed that Brexit will lead to a codified constitution for the United Kingdom that would bring us into line with virtually every other democracy in the modern world.

At a seminar at King’s College, London shortly after the 2016 EU referendum, Takis Tridimas, a professor of European Law at King’s said that the result represented the most significant constitutional event in the UK since the restoration of the monarchy in 1660, since it showed that on the issue of Europe, the sovereignty of the people trumped the sovereignty of Parliament. Of course, from a legal point of view, the referendum was merely advisory, but the government committed itself to respecting the result and the outcome was seen by the majority of MPs as decisive. Since June 2016, therefore, both government and parliament have been enacting a policy to which they are opposed. That is a situation unprecedented in our long constitutional history. Europe, therefore, has been responsible for the introduction of a new concept into the UK constitution, the sovereignty of the people. On this issue, the people have in effect become a third chamber of Parliament, issuing instructions to the other two. The sovereignty of Parliament is now being constrained not by Brussels, but by the people.

The effects of the European Communities Act on the UK constitution

The main constitutional consequence of our EU membership was to restrict the sovereignty of parliament. Parliamentary sovereignty must be distinguished from national sovereignty, with which it is often confused. National sovereignty is engaged whenever a country signs a treaty. It is not an absolute, it can be pooled or shared with other countries, and it is a matter of political judgement how far it should in fact be shared. But parliamentary sovereignty – the notion that Parliament can enact any law it chooses – is not like that at all. It is an absolute. One either has it or one does not. One can no more be a qualified sovereign than one can be a qualified virgin. Continue reading →

The European Union (Withdrawal Agreement) Bill and constitutional impact assessments

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NGQojaZG_400x400 (1)At an evidence session with the Minister for the Constiution in March, the Lords’ Constitution Committee discussed introducing constitutional impact assessments for government bills. Here, Jack Simson Caird discusses the potential benefits of such a process on the forthcoming bill legislating for a Withdrawal Agreement, and how it might have affected the passage of the European Union (Withdrawal) Act.

On 24 July 2018, the government published its White Paper Legislating for the Withdrawal Agreement between the United Kingdom and the European Union. In the introduction Dominic Raab, the recently appointed Secretary of State for Exiting the European Union, explained that the White Paper would outline the government’s approach to the European Union (Withdrawal Agreement) Bill (the Withdrawal Agreement Bill), which parliament must pass before exit day to implement the Withdrawal Agreement. Raab explained that the White Paper demonstrated the government’s ongoing commitment to ‘proper parliamentary scrutiny of our exit from the EU’.

Earlier in the year on 14 March 2018, Chloe Smith MP, the Minister for the Constitution, noted in evidence to the House of Lords Constitution Committee, another way in which the government could show such a commitment:

The second point your comment raises is the idea of whether there ought perhaps to be a constitutional impact assessment of every Bill, in the same way as we do an equality impact assessment, an environmental impact assessment or what have you.

This post examines how a constitutional impact assessment might enhance parliamentary scrutiny of the Withdrawal Agreement Bill. In doing so, I look back at the lessons of the scrutiny of the European Union (Withdrawal) Act 2018 (the Withdrawal Act), which received Royal Assent in June 2018, nearly a year after it was introduced to the House of Commons in July 2017. Continue reading →

Clause 11: the Schleswig-Holstein question of the EU Withdrawal Bill

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Today, the House of Lords will continue its scrutiny of the EU (Withdrawal) Bill by discussing Clause 11, which provides that the power to amend retained EU law in areas currently devolved to Edinburgh, Cardiff and Belfast would transfer from Brussels to Westminster, rather than to the relevant devolved body. Jim Gallagher discusses how the UK and Scottish governments are at odds over this issue and offers some potential solutions to a dispute that has now been referred to the UK Supreme Court. 

The current dispute between the Scottish and UK governments is increasingly coming to resemble the Schleswig-Holstein question, in that almost no-one really understands this technical, legal issue, but it has produced some apocalyptic rhetoric. Nicola Sturgeon has said it could ‘demolish’ devolution. Having competing pieces of legislation seeking to preserve EU law after Brexit is said to be a ‘constitutional crisis’. This hyperbole favours alliteration over analysis, but there are some real constitutional issues at stake here, obscured by political noise and intergovernmental argument.

The nub of the argument is quite simple: both sides agree Holyrood’s powers will increase after Brexit, but disagree about when and how. Both governments do have a point. The UK government, overwhelmed by Brexit, want to keep control of some Brussels policies until orderly replacements are settled. The Scottish government stands on the principle that anything affecting Holyrood’s powers requires its specific consent. Reasonable people could do a deal here. The Welsh government already have, and the issue is now being debated in the House of Lords at Report stage of the Brexit Bill. It is worth taking stock of why it matters.

‘Taking back control’ – To Edinburgh, Cardiff and (maybe) Belfast

Back in July 2016, once the first shock of the referendum result was over, I pointed out that Brexit should increase devolved powers, and so in a sense make the UK more federal in nature. Powers ‘taken back’ from Brussels should be distributed amongst the various legislatures of the UK according to the allocation made in the devolution settlements. This will make the devolved administrations more powerful in two ways. Obviously, they will no longer be constrained by EU law, so there would be no more EU law challenges on Scotland’s minimum alcohol pricing. Less obviously, since most EU competences deal with things managed better over large areas, they will work more smoothly at a UK level than as a four nations patchwork. Hence the (shared) desire for ‘UK frameworks’. Given devolution of the policy issues, the devolved administrations will have an effective veto, or at least a strong influence, over these frameworks. During one debate in the House of Lords, Lord Forsyth of Drumlean called that ‘the tail wagging the dog’. Continue reading →

Devolution, Brexit, and the prospect of a new constitutional settlement for the four countries of the UK

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bigpic (1)Over the next 12 months the UK’s national and devolved institutions will be taking decisions that will rank amongst the most significant political events in Britain’s post-war history. In an attempt to contribute to the debate on the role of devolved bodies in the Brexit process, the Welsh Assembly’s Constitutional and Legislative Affairs Committee has produced a report on the subject. In this blog its Chair, Mick Antoniw AM, offers his personal view on the government’s current approach to Brexit and calls for a constitutional reordering of the UK once Britain leaves the EU.

Leaving the EU has turned out to be more than a mere decision to leave a Europe-wide economic and social bloc and has brought into sharp focus the future role and status of the UK in the world. What do we represent and how are we perceived? How much influence in world economic and political affairs do we really have? These questions, however, go even deeper in that they also call into question the very purpose, long-term future and stability of the UK as a country. 

For almost 50 years, since the passing of the European Communities Act, the answers to these questions have been masked by our membership of a European project that with economic and technological globalisation has been developing into a political and social union based on its collective economic strength. 

The Social Chapter, the central role of the European Court of Justice, the developing role of the European Investment Bank and the development of the EU as a trading bloc in its own right created a legal as well as an economic framework for an expanding Europe. Within this context the UK’s increasingly dysfunctional and conflicting internal constitutional arrangements have been masked and constrained by the broader EU constitutional framework and jurisdiction. 

Pandora’s Box has now been opened. British nationalism’s nakedness has been revealed and our political and constitutional nudity is now there for all to see, exposed by the absence of any clear post-Brexit plan. Now that Article 50 has been triggered, the countdown to leaving the UK has begun and on 29 March 2019 we will be out of the EU, ready or not.  Continue reading →