Parliament and treaty-making: from CRAG to a meaningful vote?

Hestermeyer (1)Yesterday, the House of Lords debated three international treaties, in line with the process established by the Constitutional Reform and Governance Act 2010 (see here for the transcript of the debates). Holger Hestermeyer discusses how the process of treaty ratifaction works, how it has been affected by the meaningful vote mechanism created by Brexit, and what lessons can be learned from the way in which other countries and organisations ratify treaties.

There has hardly been a day in the last two years in which treaties have not taken centre stage in the public debate. From the Withdrawal Agreement to the future trade relationship with the EU, from discussions about leaving the European Convention on Human Rights to proposals to join the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) treaties have become essential for the future economic and political outlook of the UK. But as treaties have obtained a central role in the debate, the question of how treaties are made has also become a topic of discussion, in particular the role of parliament. In the UK, that role is limited: parliament can merely delay treaty ratification. It can also vote down implementing legislation, but it does not (or did not, before the Withdrawal Agreement) get a vote on the treaty itself. A separate system is in place for the scrutiny of EU treaties, but this is outside of the scope of this blogpost and will be coming to an end with Brexit.

The UK constitutional setup is somewhat unusual. In many countries, the executive needs to obtain parliamentary consent for certain types of treaties to be able to ratify. Whether and to what extent the UK system of treaty scrutiny is in need of reform is now the subject of an inquiry in the House of Lords’ Constitution Committee, but treaty scrutiny has also played an important role in the discussions on the Trade Bill 2017-2019 and is the subject of EDM 128, which was tabled on 4 July 2017 has attracted 125 supporters. This blogpost will briefly describe how treaties are made with particular regard to the UK. It will then discuss why there is a call for reform. Finally it will turn to what such a reform could look like and what lessons can be drawn from other systems, such as the US, the EU, France or Germany.

How treaties are made

The treaty-making process can vary according to a number of factors, such as whether a treaty is formally concluded as a treaty or through an exchange of notes or whether a treaty is bilateral or multilateral. In general, the parties decide to try and negotiate a treaty with a defined partner, prepare internally (e.g. though consultations) setting their objectives, and then conduct the negotiations. Once the negotiators have reached agreement, the text is finalised and the parties can sign. Usually the signature does not yet bring the treaty into force – most treaties require another formal act expressing the consent of the state to be bound, referred to as ‘ratification’. Continue reading

How long an extension to Article 50 does the UK need?

download.001alan.jfif (1) Despite last-minute additions, Theresa May’s Brexit deal has again been heavily defeated in the Commons. Hence, MPs will need to consider an extension of Article 50. Meg Russell and Alan Renwick argue that for any practical purposes – including renegotiating a deal, or holding a referendum or citizens’ assembly to break the Brexit impasse – the extension previously proposed by the Prime Minister is too short. MPs may now want to press a longer extension on the government.

This week is crunch Brexit decision time for parliament. With the official exit day of 29 March just over a fortnight away, the Prime Minister has been defeated for the second time on her deal, despite some last-minute concessions. She has previously promised MPs further votes on two things: the immediate prospect of a ‘no deal’ exit, or requesting an extension to the Article 50 period. Following tonight’s defeat, MPs will be asked tomorrow whether they wish to exit without a deal on 29 March. If that is defeated, as looks very likely, they will be asked on Thursday whether the Prime Minister should return to Brussels requesting a delay to exit day. Such a decision is at the discretion of the EU27, who must unanimously agree.

The Prime Minister originally proposed that if the Commons supported extending Article 50 she would ask for a ‘short, limited extension’, which should go ‘not beyond the end of June’. But while this might buy the UK time, and avoid the immediate risk of a ‘no deal’ exit, would it really be adequate to resolve the situation? When MPs face this question, there are many reasons to believe that they should demand a longer extension, given how little could be achieved within three months.

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Beyond Brexit: Towards a British Constitution

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

If there’s a second referendum on Brexit, what question should be put to voters?

jess_sargent.000alan_renwick.000download.001In the fourth in a series of posts on the mechanics of a possible second referendum on Brexit, Jess Sargeant, Alan Renwick and Meg Russell consider what question should be asked. This would be crucial for any vote to command legitimacy. Various models have been proposed, but some are far more credible than others in the current context.

 

This is the fourth in a series of posts on the possible mechanics of a second referendum on Brexit. Having previously discussed the timetable, and the circumstances in which suca referendum might be called, this post considers what kind of question should be put to voters.

Which options might voters be asked to choose between?

Three main options could be considered for inclusion in any further referendum on Brexit:

  • leave the EU on the terms the government has negotiated
  • leave the EU without a deal
  • remain in the EU

Some might add a fourth option: to reopen negotiations. But any option put to a referendum must satisfy two criteria: it must be feasible, and it must be clear. An option to reopen negotiations would fail on both counts: the EU might well refuse to reopen negotiations; and there would be no certainty as to what the UK might secure from such negotiations. A referendum of this kind could not ‘settle’ the issue of the UK’s relationship with the EU.

What form might the question take?

With three options in play, decisions would need to be taken about which of them should appear on the ballot paper, in what form, and in what combination. Continue reading

The draft EU renegotiation deal: do national parliaments have a genuine red card?

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One element of David Cameron’s draft EU renegotiation deal, published on Tuesday, is a so-called ‘red card’ mechanism that would allow national parliaments to get together to block European legislation. Katarzyna Granat analyses the proposal by contrasting them with the mechanisms currently in force under the Lisbon Treaty. She argues that it is a compromise solution which does not threaten to disrupt the EU legislative procedure.

The draft decision of the Heads of State or Government, ‘A New Settlement for the United Kingdom within the European Union’, unveiled by Donald Tusk on February 2 2016 offers the first concrete vision of the changes to enhance the role of national parliaments under the UK’s renegotiation efforts.

Tusk’s proposal (Section C, points 2-3) envisions that reasoned opinions of national parliaments issued under Article 7.1 of Protocol No. 2 of the Lisbon Treaty ‘on the application of the principles of subsidiarity and proportionality’ should be ‘duly taken into account’ by all institutions participating in the EU decision-making procedures. In Tusk’s proposal national parliaments may submit reasoned opinions stating that an EU draft legislative act violates the principle of subsidiarity submitted within 12 weeks from the transmission of that draft. If these reasoned opinions represent more than 55% of votes allocated to national parliaments (i.e. at least 31 of the 56 available votes; two votes for each national parliament; in the case of a bicameral parliament, each of the two chambers has one vote; votes of parliaments of member states not participating in the adoption of the act at stake are not counted), the opinions will be ‘comprehensively discussed’ in the Council. If the EU draft legislative proposal is not changed in a way reflecting the concerns of national parliaments in their reasoned opinions, the Council will discontinue the consideration of that draft.

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A referendum on Britain’s EU membership is a sure fire way to encourage the breakup of the UK

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David Cameron has pledged to hold a referendum on the UK’s EU membership if his Conservative party wins a majority at the British general election in May. Jo Murkens writes on the impact an EU referendum would have on the UK’s place in Europe and on the UK as a whole.

A referendum on European Union membership has been a longstanding demand from the Eurosceptic/phobic wing of UK politics. They regard the plebiscite and the prospect of withdrawal as a rejuvenation of national sovereignty and democracy. Over the past few years David Cameron has acceded to the demands by promising a referendum on EU membership in 2017. The three main obstacles he needs to overcome before then are concluding negotiations on reforming the European Union, or changing the UK’s current terms and conditions of EU membership – and, of course, the small matter of winning the May 2015 general election for the Conservatives with an overall majority.

The idea of a referendum opens up a space for discussing the principle of UK membership as well as the details of EU policy, institutional reform, and possible alternatives. This short piece is a comment on the UK’s continued failure to contribute to the EU’s political goals as well as on its failure to understand the EU’s relevance for the integrity of the United Kingdom.

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