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 →
Today Magna Carta (1215) celebrates its 800th birthday. We celebrate this historic event for two reasons. First, the Great Charter is one of the oldest in force legal documents in the world, as four lines from the original charter are still on the statute books in the United Kingdom. Second, and more importantly, Magna Carta has become a symbol of limited government that is recognised all over the world. However, when celebrating the 800th anniversary of Magna Carta’s birth, one should not forget about the 800th anniversary of its death on 24 August 2015. Magna Carta (2015) died when it was annulled by Pope Innocent III, just two months and nine days after it was sealed. The Great Charter was subsequently amended and reissued in 1216, 1217, 1225 and 1297, but its early death serves as a reminder that, in 1215, Magna Carta was a failure. It was completely ignored by King John and, ultimately, led England into the very civil war which it was meant to prevent.
In our new volume, Magna Carta and Its Modern Legacy, Robert Hazell and I have put together a collection of essays that both commemorate Magna Carta’s 800 year history and provide a balanced assessment of the Great Charter’s legacy. The volume is divided into three sections: 1) Magna Carta’s influence in the UK, 2) its influence abroad and 3) 21st century reflection on Magna Carta. While the scholars who have contributed to our volume all recognize the symbolic importance of Magna Carta, they all also realise that many of the claims made about Magna Carta are grossly exaggerated. As a result, the account of Magna Carta told by their chapters is more realistic than the account told by many commentators. Instead of unbridled enthusiasm for the Great Charter, our contributors recognise that its influence has not been wholly positive.
If the UK gets a written constitution, will it seek simply to codify the current constitutional arrangement or will it present an opportunity for more fundamental changes? In light of a recent PCRC report assessing the desirability of a written constitution, Daniel Helen looks at recent codification proposals and considers the reforms they put forward.
Behind the title of the Political and Constitutional Reform Committee’s report into the desirability of a codified constitution for the UK – published last Thursday as A New Magna Carta?– lies an unintended analogy. While the rebellious English barons in 1215 may have claimed that they demanded nothing more than a return to the good old law of Edward the Confessor and Henry I, in many of its provisions Magna Carta marked a significant break from past practice. Modern-day proponents of a codified, or ‘written’, constitution are not so different. While the act of codifying certainly amounts to a momentous reform in itself, both proponents and opponents realise that it provides an opportunity to make significant changes to the substance (not just the form) of the constitution. The committee’s report is no exception.
There have been numerous attempts at codification over the past few decades, varying considerably in length and scope.The most radical proposal came in the form of Tony Benn’s Commonwealth of Britain Bill, first presented to the House of Commons in 1991. It called for – inter alia – the abolition of the monarchy, a ‘House of the People’ in lieu of the aristocratic Lords, equal parliamentary representation of men and women, and a federal Britain with devolved parliaments in England, Scotland and Wales (British jurisdiction over Northern Ireland would end). Given Benn’s views and history, one should not really be surprised by his proposals. In 1990, the Liberal Democrats published a codified constitution in “We the People…” – Towards a Written Constitution. Its proposed changes embodied party policy which remains largely the same to this day. Notably, it would introduce the single transferable vote and replace the Lords with an elected Senate. Like Benn’s Bill, it is clearly the product of a distinctive political outlook.
In June, UCL hosted a workshop organised by the Political Studies Association exploring to what extent Magna Carta still influences the UK constitution and British politics. Colin Murray reports.
As the 800th anniversary of events at Runnymede draws closer, 18 June saw a one-day workshop on the influence of Magna Carta organised by the Political Studies Association and hosted by University College London. With official pronouncements on the anniversary talking up ‘celebrations’ of the Magna Carta the time is ripe for a reconsideration of its ongoing influence. If, as Robert Hazell said in his introductory remarks, the UK Constitution can be described as a ‘winner takes all’ system, can we really say much at all for the influence of a document which purports to be at the root of ideas of limited government?
As the eleven panel presentations unfolded, the tenor of debate very much suggested that the Magna Carta has long since ceased to have practical implications as a legal instrument. Its terms have for the most part been repealed or superseded. Only the spirit persists, which of course makes it particularly valuable to political actors as a foundation myth (as explored by Natalie Riendeau) or to judges as a rhetorical device (Craig Lerner). These views were reinforced by Vernon Bogdanor, who considered that accounts of Magna Carta were in danger of remembering the future and forgetting the past. With the present very much in mind, Bogdanor drew an analogy between the power struggles which precipitated Magna Carta and the uneasy constitutional compromise it established and the present shifting relationship between parliamentary sovereignty and the rule of law within the UK Constitution. Expanding upon this theme, Anthony King posed the question of who the barons were within today’s political system. Nora Williams would later reprise this issue by considering Magna Carta’s lessons for contemporary accounts of judicial supremacy in constitutional arrangements.