The executive’s Brexit: the UK Constitution after Miller

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The judgment of the Supreme Court in R (Miller) v Secretary of State for Exiting the European Union required the government to seek parliamentary approval (through legislation) for the triggering of Article 50, which formally started the Brexit process. In this post, Mark Elliott, Jack Williams and Alison Young argue that parliament has failed to capitalise on the court’s decision and that it is the executive, not parliament, that is truly in control of the Brexit process.

Whether you like your Brexit ‘hard’, ‘soft’, or ‘red, white and blue’, one thing is clear – this will be the executive’s Brexit. Despite the Supreme Court decision in Miller handing parliament a golden opportunity to shape Brexit, Theresa May’s government has been in the driving seat, largely unimpeded, ever since the 2016 referendum in favour of leaving the EU. Parliament has consistently been a passenger.

The first pitstop on the executive’s journey to Brexit was the triggering of Article 50. As is by now well known, the government claimed that it already had the power to trigger the process of the UK’s leaving the EU by virtue of its foreign relations prerogative. Indeed, the government’s initial intention was to trigger Article 50 by the end of 2016, necessitating an expedited process in the Miller litigation, leapfrogging the Court of Appeal to ultimately reach the Supreme Court by the end of the year. If one believes that the triggering of Article 50 (in March 2017) was premature, then it is troublesome to imagine what would have happened if, in the absence of the litigation, it had been triggered six months earlier.  

The Supreme Court came down firmly in favour of parliament, ruling that the government would be able to initiate Brexit only if parliament were to empower it to do so, albeit that the UK parliament could lawfully go ahead and authorise the triggering of Article 50 whether the devolved legislatures liked it or not. This was on the basis that the foreign relations prerogative does not extend, by its very nature, to changing or affecting domestic law or rights. At the time, Miller therefore appeared to be of immense political significance because it put parliament so firmly in the Brexit driving seat. However, 18 months on, the picture looks rather different, and the judgment has proven to be far from the final word on the underlying controversies. Continue reading

What is the Salisbury convention, and have the Lords broken it over Brexit?

downloadThe European Union (Withdrawal) Bill returns to the Commons today for consideration of the numerous amendments made during its eventful passage though the Lords. Some commentators have accused the Lords of exceeding their constitutional authority, with the Salisbury convention being cited in defence of this position. David Beamish discusses how the convention operates and argues that the Lords have not breached it so far.

The European Union (Withdrawal) Bill has prompted much discussion of the role of the House of Lords in passing legislation, including references such as this to the Salisbury convention:

‘ …the Lords has effectively torn up the Salisbury convention: that manifesto promises by the governing party should not be blocked by an unrepresentative upper house’.

That passage, from an article in The Times by Matt Ridley, who sits in parliament as an elected hereditary peer, relates to the amendments made by the Lords to the Withdrawal Bill and in relation to the proposal for a ‘Leveson Two’ inquiry. A day later, Iain Martin wrote in The Times:

‘This week there was the worst illustration of the problem yet. The Commons thought that it had settled the question of press freedom, when it voted against moves to hold yet another inquiry into the press. But the Lords had another go on voting down the government, in breach of the convention that bills which enact manifesto commitments should be passed by the Lords.’

It is perhaps ironic that this ‘convention’ is now being cited in relation to the difficulties which the House is making for a Conservative government. It was originally introduced by a Conservative opposition which dominated the House of Lords following the election in 1945 of a Labour government with a large Commons majority but only a small representation in the Lords, which then consisted entirely of hereditary peers.  Continue reading

Devolution and the repatriation of competences: the House of Lords Constitution Committee reports on the EU Withdrawal Bill

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The Constitution Committee of the House of Lords today published its report on the European Union (Withdrawal) Bill, which is set to have its second reading in the upper house this week. In this post, Stephen Tierney discusses the report’s findings on the devolution issues raised by the Bill and examines the suggestions for solving some of the problems posed by the legislation as currently drafted.

The House of Lords Constitution Committee has today published a comprehensive and critical report on the European Union (Withdrawal) Bill (‘the Bill’). The Bill’s second reading will begin in the Lords this week, with the government committed to bringing forward amendments to the Bill’s provisions regarding the devolved territories (in particular, the controversial clause 11), but as yet these have not been tabled.

Largely because of the government’s undertakings to change the Bill, and the fact that it trusts proposed amendments will emerge from negotiations between the UK government and devolved administrations, the Committee refrains from making its own detailed recommendations in relation to clauses 10 and 11. The Committee’s overall position is that: ‘the devolution settlements must not be undermined. We welcome the discussions that are currently taking place between the UK government and the devolved administrations to seek consensus on the approach of the Bill to meeting the challenges posed by Brexit.’ Nonetheless, the Committee is also clear that clause 11 as it stands is problematic and that amendments to the provision are ‘imperative’.

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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

The Constitutional Standards of the Constitution Committee: how a code of constitutional standards can help strengthen parliamentary scrutiny

The Constitution Unit has today published a third edition of its report on the Constitutional Standards of the House of Lords Constitution Committee. The report contains a code of constitutional standards based on past Constitution Committee reports, which provide detailed guidance on the application of constitutional principles to legislative proposals. Robert Hazell and Dawn Oliver argue that such a code is particularly needed in the 2017 parliament and could have significantly improved the drafting of the European Union (Withdrawal) Bill.

Today the Constitution Unit has published a third edition of its report on the Constitutional Standards of the House of Lords Select Committee on the Constitution. The report contains a code of constitutional standards based on almost 200 reports from the Constitution Committee, published between its creation in 2001 and the end of the last (2016–17) parliamentary session. The standards provide detailed guidance on the application of constitutional principles to legislative proposals, and cover a range of subjects, including the rule of law, delegated legislation, the separation of powers and individual rights.

The use of a code of soft law constitutional standards is particularly needed in the 2017 parliament. Standards of the type set out in our report could have significantly improved the drafting of the European Union (Withdrawal) Bill. Such a code could also be used by parliamentary committees of either House to enhance the scrutiny of the delegated legislation needed to prepare the statute book for Brexit.

The European Union (Withdrawal) Bill

The European Union (Withdrawal) Bill is providing a showcase of parliament’s ability to scrutinise constitutional legislation. It is packed with provisions that raise matters of fundamental constitutional principle, from the rule of law to Henry VIII powers to devolution. A good number of the amendments reflect arguments made by the Constitution Committee, which unusually reported before the bill received its second reading in the Commons.

The government has been criticised by some, including Hannah White from the Institute for Government, for failing to engage meaningfully with parliament before the bill was introduced to the Commons. The government is now making concessions in order to avoid defeats. Engagement with an officially recognised code of standards could have enabled the government to avoid these difficulties. The Constitution Committee’s recommendations are rarely framed in absolute terms. Many of the standards demand forms of justification for departures from constitutional principles. Even when the committee’s standards go beyond justification, they often demand changes that relate to drafting or the inclusion of safeguards, neither of which normally frustrates the policy aims of a bill.

The basic case for the use of standards is that it can enable basic constitutional concerns to be addressed systematically at the earliest possible stage. This was a point made by the Constitution Committee itself in its recent report on the legislative process:

We continue to believe that there would be merit in producing a set of standards that legislation must meet before it can be introduced.

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A reset of intergovernmental relations on Brexit is needed to break the deadlock over the EU Withdrawal Bill

The EU Withdrawal Bill has exacerbated the already serious tensions between the UK and the devolved governments over Brexit. Akash Paun argues that the underlying problem is a lack of trust between the governments, and that to break the deadlock there must be a revival of intergovernmental mechanisms and compromise on all sides.

The EU Withdrawal Bill will take the UK out of the European Union while providing that all European law be imported into domestic law to avoid a regulatory black hole after Brexit.

The bill creates wide-ranging powers for ministers to amend this huge body of ‘retained EU law’ to ensure it will be ‘operable’ outside the EU and to reflect the terms of the withdrawal agreement.

In Edinburgh and Cardiff, there are serious concerns about the impact of the bill on devolution and on the balance of power within the UK. The Scottish and Welsh Governments have announced that they oppose granting the bill devolved consent, which Whitehall recognises should be sought under the Sewel convention.

The EU Withdrawal Bill sets a default that EU powers return to Westminster

The central point of contention is clause 11. At present, the devolved parliaments cannot pass legislation that is incompatible with EU law. Clause 11 replaces this constraint with a new provision preventing them modifying the new category of ‘retained EU law’.

This means all powers currently exercised at EU level will initially flow back to Westminster. There is further provision for some of these powers to be ‘released’ to the devolved level, but at the discretion of UK ministers.

The Whitehall view is that new frameworks will be required to coordinate policy currently held constant across the UK by EU law in areas such as environmental regulation, agricultural policy, state aid and aspects of justice and transport.

These frameworks might be needed to prevent new barriers to economic activity within the UK, to ensure the UK can strike comprehensive trade deals, to comply with international obligations or to manage common resources such as fisheries.

A long list of policy domains where EU and devolved powers intersect has been published. For Scotland there are 111 areas mentioned. But the extent to which new frameworks will be needed is unclear.

This is partly because the terms of exiting the EU remain unknown and if the UK remains within some EU frameworks, the devolution question will be (largely) moot. But it is also because the government failed to think through these complex questions before triggering Article 50 and is now in a race against the clock.

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The EU Withdrawal Bill: parliamentary prospects

The EU (Withdrawal) Bill received its second reading in the House of Commons by a relatively comfortable margin in the early hours of Tuesday morning. During the remainder of its parliamentary passage the government is likely to come under greater pressure, particularly on the issue of the delegated powers in the bill. On 13 September the BBC’s Mark D’Arcy and the Hansard Society’s Ruth Fox spoke about the prospects at the Constitution Unit. Alex Diggens and Jack Sheldon summarise what was said.

The European Union (Withdrawal) Bill looks set to be one of the most significant and controversial pieces of legislation to pass through parliament in recent memory. Ostensibly a bill to repeal the European Communities Act 1972 and manage the process of converting EU law into domestic law, the bill has far greater scope. It hands significant delegated powers to ministers, allowing them to make changes to remedy supposed ‘deficiencies’ in both secondary and primary legislation through statutory instruments (SIs) and to implement the eventual withdrawal agreement. It also has major implications for the devolution settlements, as outlined in a previous blog post.

In the early hours of Tuesday morning the bill received its second reading in the Commons by the relatively comfortable margin of 326 votes to 290. However, the upcoming Commons committee and report stages, as well as the bill’s passage through the House of Lords, are likely to pose much greater difficulty for the government. On 13 September the Constitution Unit held a seminar to discuss the prospects. Chaired by the Unit’s Dr Alan Renwick, the panel comprised two experts on the dynamics at play: Mark D’Arcy, the BBC’s Parliamentary Correspondent, and Dr Ruth Fox, Director of the Hansard Society.

Dr Alan Renwick introduces the seminar

Mark D’Arcy

Mark D’Arcy focused his remarks on the party-political landscape in relation to the bill and the key types of amendments that are being brought forward.

On the party-political landscape, D’Arcy argued that the bill’s passage will be a drawn-out battle, but one that the government go into reasonably confidently. He said that 10 Downing Street is working hard to keep open links with all of the Conservative factions, and that none of them is seeking to kill the bill. The Tory ‘Remain’ contingent in the Commons is small, and they recall the infighting during the Major years; they therefore recognise that actively fighting Brexit would be ‘career death’. D’Arcy suggested that ‘Bregretters’ might be a more accurate term for this group as they do not actually seek to prevent Brexit. The House of Lords have expressed significant reservations about the bill, notably through the influential Constitution Committee, but D’Arcy predicted that they will be constrained by not wanting to be seen fighting against ‘the people’.

As soon as the second reading vote went through the Commons, queues were forming to put amendments forward. The ‘Bregretters’ put down several, led by the former Attorney General Dominic Grieve. The focus of their amendments was on overseeing the technical operation of the bill, particularly on identifying which SIs require thorough parliamentary scrutiny. Another group of amendments comes from the Labour ‘Remain’ group. These tend to be more ambitious – they keep open options for the future, for instance the option to remain in the Customs Union, or perhaps even the European Economic Area. Other groups have more niche concerns – for example, some MPs are pushing to entrench specific rights provided by EU law.

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