Tag Archives: European Court of Justice

The 2019 Conservative Party manifesto: were its pledges on the constitution delivered? 

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The 2019 Conservative Party manifesto contained a number of constitutional policy commitments – on Brexit, UK institutions, elections, civil liberties, and devolution. As the manifestos for this year’s general election emerge, Lisa James assesses the delivery record of the 2019–24 Conservative governments against the pledges made in 2019. 

The 2019 Conservative Party manifesto contained a wide-ranging set of constitutional commitments. Since its publication much has changed – the UK has left the EU, experienced a global pandemic, and had three Prime Ministers and five Chancellors of the Exchequer. But delivery against manifesto commitments still matters, so with the 2019–24 parliament dissolved, now is the time to reassess the pledges that were made. 

Getting Brexit done 

The single highest profile – and titular – pledge of the manifesto was of course the promise to ‘get Brexit done’. The election followed a period of parliamentary deadlock, and the negotiation of Boris Johnson’s Brexit deal. The manifesto pledged to pass this deal, limit the length of the ‘transition period’ for negotiating new trade arrangements, end the jurisdiction of the European Court of Justice (ECJ) over the UK, and end the supremacy of EU law. 

The Brexit deal was rapidly passed following the Conservative general election victory, and the UK left the EU on 31 January 2020. The pledge not to extend the transition period beyond the end of 2020 was also kept. The deal largely removed ECJ jurisdiction from the UK, but the court retained a continuing role in relation to Northern Ireland as a result of its treatment under Johnson’s Brexit deal (discussed further below). The supremacy of retained EU law (a special category of legislation derived from the UK’s EU membership) was ended by the Retained EU Law (Revocation and Reform) Act 2023. 

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Representation of the UK parliament’s power in the national media: too weak, or too strong? 

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The extent and proper level of the Westminster parliament’s power has long been disputed. So what impressions do UK newspaper readers receive on this question? Meg Russell and Lisa James summarise a new study showing that the dominant right-leaning newspapers, in particular, often present negative messages about parliament: depicting it as either too weak or too strong. 

Parliament sits at the heart of the UK constitution. But, despite valuable communication and outreach programmes by the parliamentary authorities, the public’s understanding of this central institution is likely to be heavily influenced by its presentation in the media.  

We have recently published an article, ‘Representation of the UK Parliament’s Power in the National Media: Too Weak, or Too Strong?’, investigating how parliament is portrayed in UK newspapers. It explores, in particular, how the print media depicts parliamentary strength. The actual level of parliament’s power has long been a debate among academics: is it a mere rubber stamp, dominated by the executive, or a more influential shaper of policy? Some scholars have charted the well-established but dubious ‘parliamentary decline thesis’. Others have suggested parliament is more powerful than often assumed, that procedural and political changes have led to a ‘new assertiveness’, or even that the institution may have become ‘too powerful’. But what messages do the public receive from the media about such questions? Our article is the first to explore this directly. It also explores how these messages changed in the turbulent years following the June 2016 Brexit referendum, when the government faced increasing challenges in the House of Commons. 

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The UK’s defiance of the European Court of Human Rights

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Veronika Fikfak argues that by amending the Illegal Migration Bill to require UK courts to ignore a potential interim measure from the European Court of Human Rights, the UK government has reached for the most drastic option, exposing its carefully fostered image of a ‘good complier’ as merely a myth. She warns against passage of the amendment, and criticises the government for taking the same path as Russia by choosing defiance over dialogue.

In late April, the government tabled a number of amendments to the Illegal Migration Bill, including an order to domestic courts to ignore a potential interim measure from the European Court of Human Rights (‘the ECtHR’) to stop someone being removed from the UK if they bring forward a legal challenge. British judges have been told that if the bill is enacted with the new amendments, it will mean that they ‘cannot apply any interim measure, aside from in the narrow route available under the bill where [the applicants] are at risk of serious and irreversible harm.’ The House of Lords Constitution Committee has raised serious concerns about the potential impact of the bill on the rule of law and human rights. In this blog, I argue that this order puts the UK on par with Russia and Poland, which have used domestic law to prevent compliance with their international obligations under the European Convention on Human Rights (ECHR). I show how both countries have sought out a direct conflict with the Strasbourg Court and how the UK – for the first time since joining the ECHR – is taking the same route. I also outline how far its behaviour goes from the usual ‘good complier’ image that the UK has carefully fostered.

Poland and Russia choose defiance over compliance

In international law, courts are notoriously dependent on states, and especially their executive branches, to enforce their judgments. Since the international community has no enforcement mechanism to compel states to comply with a decision of an international court, if a state were to refuse to do so voluntarily, the judgment would remain merely words on paper. Yet generally states have been reluctant to openly defy the ECtHR by refusing to enforce its judgments. Instead, negotiations, lobbying and delays are the standard techniques to avoid or minimise compliance. Even when countries adopt domestic laws that clearly contradict the ECHR (such as in the case of immigration legislation in Denmark or the UK’s recent bill), this is usually done under the cover that the state ‘seeks to clarify the content of obligations under the Convention’ or more boldly that it wishes to ‘test the limits’ of the ECHR. Once a judgment is delivered, the state promptly puts in place a process to comply with the judgment (such as in the case of Savran v Denmark). The intent to voluntarily comply with the ECHR is present for the majority of countries.

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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 →