Tag Archives: Retained EU Law (Revocation and Reform) Bill

The parliamentary battle over Brexit and the constitution

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Today sees the publication of a new book by the Unit’s Meg Russell and Lisa James, The Parliamentary Battle over Brexit. Here the authors summarise some of its key findings about why parliament was drawn into such controversy over the implementation of Brexit. They reflect on what these events teach us about our constitution, as well as what may need to change in order to avoid repeating such problems, and to mend the damage done.

The UK’s arguments over what became known as Brexit began long before the June 2016 referendum, and continued with increasing bitterness afterwards. Parliament was often central, both as a venue for such arguments, and in terms of disputes about its proper role. It and its members frequently faced criticism and blame. Our new book, published today, charts The Parliamentary Battle over Brexit, from the early pressures for a referendum, through disputes about the triggering of Article 50 and control of the House of Commons agenda, the repeated defeats of Theresa May’s deal, and Boris Johnson’s unlawful parliamentary prorogation, to the UK’s eventual departure from the EU following his deal. The book charts what happened, but also asks what went wrong and whether things could have been handled differently. It reflects on what these events teach us about the functioning of our constitution, and what if anything might need to change.

The book includes a wealth of detail about key political moments, and the roles of different individuals and groups. Here we focus on some of the bigger questions about the lasting legacy of the battles over Brexit for the culture and institutions of UK politics, and particularly for the place of parliament itself. A fuller version of this analysis appears in the final chapter of the book.

Referendums and public participation

The referendum of 23 June 2016 was only the third ever such UK-wide vote (the first being on European Community membership in 1975, and the second in 2011 on changing the House of Commons voting system). The handling of the referendum was the single biggest error of the Brexit process, from which many other difficulties flowed.

Unlike the 2011 referendum, which was underpinned by legislation setting out the detail of the proposed new voting system, no clear prospectus was offered to the voters for Brexit. Prime Minister David Cameron hoped to use the vote – described disapprovingly by the House of Commons Public Administration and Constitutional Affairs Committee as a ‘bluff call’ referendum – to make the question of Brexit go away. Parliament never debated the substance of the question, the government did not detail the options, and civil servants were forbidden from preparing for a Leave vote. Leave campaigners argued at the level of principle, rather than on a specific plan. As one Brexit-supporting interviewee told us, ‘it was only [after the referendum] that different types of Brexit started coming to the fore. Soft Brexit and hard Brexit had never been canvassed before the referendum; the expressions were coined afterwards’. Issues that would soon come to dominate the agenda, such as membership of the Customs Union or Single Market, and crucially the Northern Ireland border, were barely mentioned during the campaign. This left the government – and parliament – in a very difficult position. The different options for Brexit had to be established only after the vote had taken place, and on this the voters had conveyed no clear instruction.

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The public wants parliament to have a central role in legislation, so why does the Retained EU Law Bill enhance the legislative power of ministers?

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The Retained EU Law (Revocation and Reform) Bill is controversial for many reasons – not least the sweeping powers it grants the executive to change a swathe of laws. Lisa James and Alan Renwick discuss recent Constitution Unit survey results, which suggest that members of the public instinctively favour a central role for parliament in law making.

The Retained EU Law (Revocation and Reform) Bill – or REUL Bill – is a complex and controversial piece of legislation. Its focus is the law which arose from the UK’s membership of the European Union. This ‘retained EU law’ is significant in both scale and scope: the government currently lists over 3700 pieces of such legislation, much of it implementing regulatory regimes across a number of major policy domains. Areas such as environmental protection, consumer rights and employment law are particularly affected.

The REUL Bill would automatically repeal most retained EU law at the end of 2023, and make it much easier for ministers to amend or replace. This approach has proved controversial in a number of ways. Business groups have raised concerns that previously settled areas of law could be disrupted at short notice, creating legal uncertainty. Environmental groups and trade unions, among others, have raised concerns about rights protections being lost. And some have questioned whether Whitehall really has the capacity to conduct a thorough and careful review of such a huge body of law by the end of the year.

Alongside this, experts have warned that the bill as currently drafted would greatly empower the government at the expense of parliament, handing ministers sweeping powers to decide what law is repealed or preserved, and how it is amended. Such process-related concerns – regarding how legal change is enacted – are sometimes considered of interest only to experts. But recent Constitution Unit research shows that the public have clear instincts on how such processes should work – and express widespread support for parliament’s role in law-making.

The REUL Bill and parliamentary scrutiny

As currently drafted, the bill places significant powers and discretion in the hands of ministers. If passed in its current form, the clock would begin ticking on the sunset clause which would repeal most retained EU law at the end of 2023; from this point, parliament would have little say over what happens to retained EU law.

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The rule of law: what is it, and why does it matter?

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The rule of law is a fundamental principle underpinning the UK constitution. Its core principles include limits on state power, protection for fundamental rights and judicial independence. Lisa James and Jan van Zyl Smit argue that upholding the rule of law is a responsibility shared between politicians, officials and the public – with ministers and MPs having important roles to play.  

Background

The rule of law is frequently cited in political debate, and is a key topic monitored by those worried about democratic backsliding. But what is it, and why is it so important?

The rule of law is one of the fundamental principles underpinning constitutional democracies, and its importance is not seriously questioned in any modern democratic state. But like other constitutional principles, long-running debates exist about how it can most effectively be implemented.

This briefing explains the central concepts constituting the rule of law under three broad categories:

  1. Legality and legal certainty
  2. Legal equality and fundamental rights
  3. Judicial independence and access to justice

Why does the rule of law matter?

The rule of law prevents the abuse of state power, requires the law to be followed by all, and ensures that legal rights are fulfilled in practice. It also provides the means for various other core aspects of democracy to be safeguarded – for example, making certain that the laws made by parliament are enforced, and that fair conduct of elections can be guaranteed. More broadly, it underpins social functioning by providing fair and legitimate routes for disputes to be settled. And it supports stable economies and economic growth by upholding property rights, facilitating the elimination of corruption, and maintaining a business environment in which contracts are enforced, and international trade and investment can flourish. The rule of law alone is not sufficient to make a state democratic, but a state which does not observe it cannot be a healthy democracy.

As such, the rule of law has long been recognised as a fundamental part of the UK system. Many of its core aspects were established during the seventeenth century – particularly by the Bill of Rights 1689. Nineteenth-century scholar Albert Venn Dicey considered it, alongside parliamentary sovereignty, one of the ‘twin pillars’ of the constitution. More recently, Margaret Thatcher considered its observance central to Conservatism, arguing that ‘the institution of democracy alone is not enough. Liberty can only flourish under a rule of law’. And the 2001 Labour government recognised its importance as an existing principle in the Constitutional Reform Act 2005.

What does the rule of law cover?

Like other fundamental principles, the precise details of the rule of law are debated, but its central tenets are widely recognised. Lord (Tom) Bingham of Cornhill, a former Senior Law Lord, provided one well-known schema, on which the Venice Commission’s Rule of Law tools for assessing constitutional reforms are based. Another influential definition was given by then UN Secretary-General Kofi Annan, who defined the rule of law as:

…a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards.

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What does the new Prime Minister mean for the constitution?

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The Constitution Unit held an event in November at which three expert panellists discussed the potential constitutional impact of newly appointed Prime Minister Rishi Sunak, discussing the problems posed by concerns about ministerial standards, the government’s decision to proceed with several bills that pose worrying constitutional questions, and the future of the devolution settlement. Alice Hart and Hashmath Hassan summarise the contributions.

On the day that the UK Supreme Court ruled that the Scottish Parliament cannot legally hold another independence referendum without Westminster’s approval, the Constitution Unit held an event to discuss the potential constitutional impact of the new Prime Minister, Rishi Sunak. The event was chaired by Professor Meg Russell, Director of the Constitution Unit, and brought together three expert panellists: Jill Rutter (a Senior Research Fellow at UK in a Changing Europe and a Senior Fellow at the Institute for Government); Dr Ruth Fox (Director of the Hansard Society); and Professor Colm O’Cinneide (Professor of Constitutional and Human Rights Law at University College London). The summaries below are presented in order of the speakers’ contributions. 

Jill Rutter 

Jill Rutter discussed the need to repair the damage done to the perception of standards in public life during Boris Johnson’s time as Prime Minister. Johnson suffered the resignation of two Independent Advisers on Ministers’ Interests in as many years, tolerated misbehaviour from his MPs and was ‘fast and loose with the facts’ in parliament. Sunak’s commitment to the integrity agenda is unclear, Rutter stated. He has made assurances that he will appoint an Independent Adviser (unlike his predecessor, Liz Truss, who indicated that she did not need one) and has appointed a barrister to lead an independent inquiry into bullying allegations against Deputy Prime Minister Dominic Raab. However, questions remain about Sunak’s approach to his new Independent Adviser, such as whether he will provide the postholder with sufficient resources (as promised by Johnson to former Independent Adviser Lord (Christopher) Geidt) and whether he will make any effort to ensure their independence in terms of both the publication of reports and initiation of investigations without the approval of the Prime Minister.  

Other than these immediate actions, little is known about Sunak’s plans to restore integrity and trust in government. Clamping down on lobbying may be a good place to start, Rutter suggested: she noted that the Gordon Brown review of the constitution commissioned by the Labour Party is planning to propose limitations on MPs’ second jobs. She provided some examples of big ideas that Sunak could adopt, such as Labour’s proposal to establish an Integrity and Ethics Commission and the Australian government’s introduction of an anti-corruption commission. A key challenge for Sunak, Rutter suggested, is dealing with Johnson’s and Truss’ lists of nominations to the House of Lords – especially with regard to how they may affect trust in politics.  

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How Sunak can restore integrity, professionalism and accountability

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Meg Russell, Alan Renwick, Sophie Andrews-McCarroll and Lisa James argue that for Rishi Sunak to keep his promise to put integrity, professionalism and accountability at the heart of his government, he must strengthen the standards system, enhance parliamentary scrutiny, defend the rule of law, abide by constitutional norms and defend checks and balances.

In his first speech as Prime Minister, Rishi Sunak promised to put integrity, professionalism and accountability in government at the heart of his premiership. This promise is to be warmly welcomed – commentators and experts have raised consistent alarms about slipping constitutional standards in recent years, and research shows that the public care deeply about honesty and integrity in their politicians.

But what might such a pledge look like in reality? Against the backdrop of Boris Johnson’s resignation this summer, precipitated by concerns about his approach to standards, integrity and accountability, an earlier post on this blog issued five questions for the then leadership candidates to address on rebuilding constitutional standards and restoring integrity. The subsequent premiership of Liz Truss aptly demonstrated these questions’ continuing relevance. This new post returns to the five core tasks, links them to Sunak’s stated goals, and suggests what his government might do to meet them. It demonstrates close agreement with proposals by respected experts from other bodies in response to Sunak’s pledge.

1. Strengthening the standards system

The system for maintaining government and parliamentary standards was placed under great stress during the Johnson premiership. Successive Independent Advisers on Ministers’ Interests resigned, ministers unwisely attempted to derail a House of Commons Committee on Standards investigation, and a Privileges Committee inquiry into whether Johnson himself misled parliament is ongoing. Truss’s subsequent claim that her personal integrity was a sufficient bulwark against standards breaches fell far short of the serious commitment to institutional arrangements needed to safeguard integrity.

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