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

Addressing the constitutional flaws in the EU Withdrawal Bill: The view of the Constitution Committee

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Today sees the start of two days of debate in the House of Lords as the EU (Withdrawal) Bill has its second reading stage. Ahead of that debate, the Constitution Committee of the House of Lords has produced a report on the legislation. In this blogpost Baroness Taylor, who chairs the committee, explains that the Bill as currently constituted has major flaws that could cause serious constitutional problems if left unamended.

Brexit presents an unprecedented constitutional challenge for the UK. In order to achieve a smooth departure from the European Union, it is essential that there is legal certainty and continuity on exit day. The European Union (Withdrawal) Bill (the Bill) is the government’s attempt to achieve this. It attempts to deliver certainty by preserving existing EU law as it currently applies in the UK and converting it into domestic law. This is a legal undertaking of a type and scale that is unique and it poses significant challenges for both parliament and the government.

The House of Lords Constitution Committee gave early consideration to these challenges in its ‘Great Repeal Bill’ and delegated powers report and its interim report on the Withdrawal Bill itself. We are disappointed that the Government has not addressed our earlier concerns and recommendations and, as it stands, the Bill raises a series of profound, wide-ranging and interlocking constitutional concerns. The Committee’s latest report, published yesterday, explores the constitutional deficiencies of the Bill in detail, and offers a number of constructive solutions to improve this essential legislation.

At present, the Bill risks fundamentally undermining legal certainty in a number of ways. The creation of ‘retained EU law’ (existing EU law in a new domestic form) will result in problematic uncertainties and ambiguities as to what it contains and how it relates to other domestic law. The Bill fails to give sufficient clarity and guidance to the courts as to how retained EU law is to be interpreted after the UK leaves the European Union and it seeks, unsuccessfully and erroneously, to perpetuate the ‘supremacy’ of EU law post-Brexit. Continue reading

Amendments are needed to strengthen the Withdrawal Bill’s provisions for scrutiny of Statutory Instruments

5GMFtvPS_reasonably_smallToday saw the start of two days of report stage debate in the House of Commons on the content of the EU (Withdrawal) Bill. At committee stage, amendments were made that created a new sifting committee for statutory instruments related to Brexit. Joel Blackwell, of The Hansard Society, argues below that the current proposals are insufficient to guarantee proper scrutiny and makes several recommendations for changes that can be made before the bill passes to the House of Lords.

The EU (Withdrawal) Bill, which returned to the House of Commons for its report stage today, was successfully amended at committee stage in December 2017 to create a mechanism which will allow MPs, via a new European Statutory Instruments sifting committee, to consider statutory instruments (SIs) made under the Bill’s widest delegated powers and recommend an upgrade in the level of scrutiny of those about which they have most concern.

This new scrutiny mechanism, incorporated through a series of amendments tabled by Procedure Committee Chair Charles Walker, is intended to constrain the wide Henry VIII powers the government will use to make changes to retained EU law via SIs (under clauses 7, 8 and 9 of the Bill).

But if MPs are serious about scrutinising the changes arising from Brexit, these amendments, and the related proposals to amend Standing Orders will, as currently drafted, offer only limited help. If MPs are not happy with what the government wants to do, they will still be unable to exercise any real influence on the substance of a Brexit SI.

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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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Taking back control? Initial thoughts on the Great Repeal Bill white paper

In the newly published Great Repeal Bill white paper, the government makes much of the theme ‘taking back control’. But the paper’s content does little to alleviate the fear that it is the executive, not parliament, that will benefit from the Great Repeal Bill process. The Hansard Society’s Ruth Fox has five initial questions raised by the white paper.

1/ When will the parliamentary votes on any Brexit deal be held?

The white paper seems to reveal confusion in the government’s position regarding the timing of the votes that it has promised both chambers of parliament on the Brexit deal. In the Prime Minister’s Lancaster House speech and at the start of the EU (Notification of Withdrawal) Bill second reading debate on 31 January the government said that the votes would be held before the deal ‘comes into force’. By the second day of the bill’s committee stage on 7 February, the government said that it would bring forward a motion to approve the deal ‘before it is concluded’. In the Prime Minister’s statement yesterday and her foreword to the white paper today, she reverted to the original ‘before it comes into force’ position. But paragraph 1.19 of the white paper reintroduces ‘before it is concluded’. This may be carelessness, but the two phrases could mean very different things. Parliament now needs urgently to clarify with the government when exactly in the process it plans to put any final Brexit deal to the vote.

2/ Is the government’s description of the delegated legislation process accurate?

On page 23 of the white paper, the government states that parliamentary procedures allow parliament to scrutinise as many or as few statutory instruments as it sees fit, and notes that parliament can and regularly does both debate and vote on secondary legislation.

What the white paper omits to mention, however, is that secondary legislation subject to the negative scrutiny procedure (the majority of this type of legislation) can only be debated if an MP ‘prays’ against it via an Early Day Motion (EDM). Even then, whether it is debated lies in the hands of the government, not parliament. Paragraph 3.21 states that under the negative procedure members of either chamber can ‘require’ a debate and if necessary a vote. In fact, they can ‘request’ these, but they cannot ‘require’ them. The government controls the parliamentary timetable in the House of Commons, and it must therefore agree to grant the time for any debate. In the last parliamentary session, MPs debated just 3 per cent of the 585 negative instruments laid before them. And although the Leader of the Opposition and his front bench colleagues tabled 12 prayer motions for a debate, just five were granted.

Sometimes the government doesn’t prevent a debate but runs down the clock and builds in delays that minimise the ability of MPs to revoke a regulation. In the last week alone, the opposition had to secure an emergency debate under Standing Order 24 in order to debate the new Personal Independence Payment Regulations. 179 MPs from eight different parties prayed against the SI via an EDM, but the government only scheduled a debate for 19 April, 16 days after the ‘praying against’ period would have expired. This makes revocation difficult. The emergency debate was a means to air the issues before the annulment period came to an end, but it had no force, as there was no substantive vote on the regulations.

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Parliament, government and secondary legislation: Lords select committees respond to the Strathclyde Review

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Two House of Lords select committees have this week published reports that are highly critical of the recommendations of the Strathclyde review into the Lords’ powers in relation to secondary legislation, published in December. Mark Elliott summarises the committees’ findings and welcomes calls for a consensual, reflective approach to be taken.

I wrote in December about the Strathclyde Review, which took place at great speed in the autumn against the backdrop of the House of Lords’ refusal to allow the enactment of secondary legislation on tax credits. The Review – set up by the government – recommended stripping the Lords of its power to veto statutory instruments by investing the Commons with statutory authority to override the Lords in the event of opposition to secondary legislation. Two House of Lords select committees – the Constitution Committee and the Delegated Powers and Regulatory Reform Committee – have now published reports that are highly critical of the Strathclyde proposals.

The report of the Constitution Committee

In its report, the Constitution Committee rejects the notion that the tax credits affair amounted to a ‘constitutional crisis’ and says that a ‘single Government defeat … does not seem a sound foundation upon which to base significant and lasting reform’ in this area. Indeed, the committee argues that the Strathclyde Review ended up – as a result of the terms of reference set for it by the Government – asking the ‘wrong questions’ and framing the issues inappropriately. In particular, the committee takes the view that while the Strathclyde Review approaches the matter in terms of the relationship between the two houses of parliament, the underlying, and far more profound, issue concerns the relationship between parliament and the executive:

Delegated legislation is the product of a delegation of power from Parliament to the Government. Parliamentary scrutiny of secondary legislation is the mechanism by which Parliament assures itself that the Government is exercising that delegated authority in an appropriate way, and in a manner which accords with Parliament’s intentions. Yet Parliamentary scrutiny of delegated legislation is less intensive and arguably less effective than its scrutiny of primary legislation. Statutory instruments cannot be amended, so there is little scope or incentive for compromise. Far less time is spent debating delegated legislation than is spent debating primary legislation. And … it is established practice that the House of Lords does not vote down delegated legislation except in exceptional circumstances. The result is that the Government can pass legislative proposals with greater ease and with less scrutiny if it can do so as delegated, rather than primary, legislation. It is in this context that proposals to weaken the powers of the House of Lords should be considered.

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The Strathclyde recommendations are based on a false premise that there is a convention that the Lords does not reject statutory instruments

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Lord Norton of Louth argues that the Strathclyde Review recommendations are based on a false premise that there is a convention that the Lords does not reject statutory instruments.  Instead of rushing into wider changes the immediate response to October’s tax credits controversy should be to address the inconsistency in the way Commons financial privilege is recognised in relation to SIs. In the longer term there is a case for a wider review of how both houses deal with secondary legislation.

The report produced by Lord Strathclyde is based on two propositions.  First, that there is a convention that the House of Lords does not vote to reject statutory instruments.  Second, that the problem of the vote on 26 October last year, when the House withheld agreement to the Tax Credits Regulations, is one of failure to comply with that convention.  Both propositions are false, the second necessarily so given that the first has no basis in fact.

There is much misunderstanding of what constitutes a convention.  They are non-legal rules that determine a consistent, indeed invariable, pattern of behaviour.  Those who comply with them do so because they accept that they are, as David Feldman has cogently expressed it, right behaviour.

Conventions do not become such by the words of a particular person, be it Viscount Cranborne in 1945 or Lord Sewel in 1998.  They are not created, but develop.  A convention exists once there is an invariable practice.  That is not the same as standard or usual practice.  If one deviates from it, it is not an invariable practice.  Kenneth Wheare distinguished between conventions and usage.  I think it more appropriate to distinguish between invariable and usual practice.

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