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

Trade Bill highlights parliament’s weak international treaty role


On 9 January, the Trade Bill successfully passed its second reading stage in the House of Commons. Intended to regulate the implementation of international trade agreements after Britain leaves the EU, it is one of the most important pieces of Brexit-related legislation currently going through parliament. In this post, which originally appeared on the website of the Hansard Society, Dr. Brigid Fowler argues that the role of parliament in influencing the drafting and agreement of British trade treaties has the potential to be weakened, not strengthened by Brexit should this bill become law.

The Trade Bill, which had its second reading debate on Tuesday, is one of the most important pieces of Brexit legislation. It is a framework Bill enabling the UK to implement the non-tariff elements of future international trade agreements, where those agreements are with states with which the EU has signed a trade agreement by the date the UK leaves.

For non-tariff issues, the Bill is aimed at addressing the domestic legislative aspect of one of the most urgent Brexit questions: how to save, in less than 15 months, the preferential trade arrangements that the UK has through the EU with, according to the Bill’s impact assessment, at least 88 countries and territories, covered by perhaps 40-plus agreements.

The Bill’s broad aim is the same as that of the EU (Withdrawal) Bill – which has its report stage consideration in the House of Commons on 16–17 January – and indeed of the government’s overall Brexit approach: to minimise the disruption to business and consumers at the moment when the UK leaves the EU on 29 March 2019.

But, as regards trade agreements, the EU (Withdrawal) Bill on its own cannot do the job, because capturing the provisions of trade agreements that the EU might sign right up to Brexit day may require domestic implementing powers that last beyond those in that Bill.

Continue reading

Sitting on a Sofa with a Politician or Two: FOI and Lobbying

The resignation of Defence Secretary Liam Fox last Friday has revealed a network of ties between lobbyists and politicians. The Prime Minister has now pledged to create a register of lobbyists. According to the Guardian the links are extensive. An FOI ruling in 2008 seem to advance the cause of transparency and the site whoslobbying already tracks this information, though it has recently complained about lack of data.

Yet the problem is not just ‘formal’ meetings, as the Guardian article points out, but the private meetings and other informal ways of accessing politicians, such as use of Parliamentary passes. In 2007 FOI was used to reveal arms industry lobbyists apparently being given access to Parliament by peers. This may not yet be the end of the struggle over passes, as this recent request shows. Minister themsleves seem to be lobbying as well as being lobbied, according to this FOI relating to William Hague and unpaid tax bills for oil companies in Uganda, and charities close to Prince Charles have also been involved in access. The big question is whether more of the formal lobbying will become informal when the register is published.

A good day to bury news? More spads for the coalition

Yes Liam Fox has resigned after a week of speculation. But this has mostly gone unreported—from the FT’s Westminster blog two days ago: “Liberal Democrats will have a new special adviser covering the House of Lords and five more special advisers covering the work of government departments where the party has no ministerial support.”

See here. And here.*

*Shameless plug for previous blog post.

EDIT: since special advisers work for ministers, how can they cover departments where the Lib Dems have no ‘ministerial support’ (ie., DEFRA, DCMS, DFID, NIO, WO)? The answer is that they will probably be responsible to Nick Clegg.  It’s  worth noting that the Lib Dems now have a number of special advisers disproportionate to the number of seats won at the 2010 election. But on the other hand, as the Constitution Unit has suggested,** the Lib Dems are in dire need of extra support.