Tag Archives: Withdrawal Act

The continuing constitutional pressures of Brexit

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Ahead of the launch event for their new book on the continuing constitutional pressures of Brexit, Oran Doyle, Aileen McHarg and Jo Murkens summarise the book’s introductory essay. They conclude that, five years on from the seismic constitutional event that was the 2016 referendum, it is clear that Brexit is exerting pressure on various aspects of the constitution, but it remains too early to tell the full impact of Brexit on the UK constitution.

The United Kingdom’s withdrawal from the European Union was clearly a development of major significance that affected the UK constitution and its three legal systems, and brought about a series of political crises. But the prolonged process of negotiating the terms of withdrawal and the future UK-EU relationship also imposed and exposed a range of other constitutional tensions and pressures. This is true not only in respect of the UK itself, but also for the EU – which experienced a major recasting of its external borders, a recalibration of internal decision-making dynamics, and challenges to core features of its constitutional order – and in particular for Ireland – which, by virtue of its geographic position and constitutional history, has faced unique political and constitutional challenges as a consequence of Brexit.

In The Brexit Challenge for Ireland and the United Kingdom: Constitutions Under Pressure, recently published by Cambridge University Press, scholars based in the UK and Ireland explore a wide range of constitutional, legal, and political issues affecting both countries which have arisen out of Brexit. These include questions of territorial governance within the UK, the renewed prospect and implications of a united Ireland, the use of constitutional referendums, the impact of Brexit on political parties, executive-parliamentary relations, and the role of the courts and law officers in constitutional disputes.

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Constitutional reform: then and now (1995-2020)

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In the latest blog celebrating the Constitution Unit’s 25th anniversary, human rights academic and advocate Francesca Klug recounts how aspects of the constitutional agenda of the mid-1990s were realised, and what lessons we can learn about how to entrench its achievements, prevent democratic backsliding and stop erosion of hard-won rights.

When I was at school, I learned nothing about the British constitution, but one thing I did absorb was this: although we do not have a written founding document, our invisible constitution was apparently uniquely successful and therefore inviolable. However, during the 1980s, I gradually became aware that there was something a bit odd about this perfect constitution. In other democracies, many of the controversial or unpopular measures introduced by Margaret Thatcher’s governments – such as the ‘poll tax’ and broadcasting and book bans – could be challenged in the courts. In the UK, however, there was nothing citizens could do to overturn such policies, except take to the streets to protest or wait up to five years for another election. 

This powerlessness and lack of accountability was a major driver behind the founding of Charter 88 in 1988, led by Anthony Barnett and Stewart Weir. I was lucky as a relatively young activist to be asked to join its council. We called for holistic change: a democratic second chamber, electoral reform, devolution, freedom of information and a bill of rights. And we had one major overall objective: we wanted the people of this country to have more power over the decisions which affected them; what in today’s money might be called ‘taking back control’. We sought this not for its own sake, but as a means of making our society fairer. 

It took a little time, but this message started to persuade people at the highest levels of the Labour Party. John Smith succeeded Neil Kinnock as Leader following the Conservatives’ 1992 general election victory and the following year he gave a landmark speech to Charter 88, entitled ‘A Citizens’ Democracy’. For the first time, he articulated a clear objective for wholesale constitutional reform. Its purpose, he said, was to ‘restore democracy to our people – for what we have in this country is not real democracy: it is elective dictatorship.’ The use of the term ‘elective dictatorship’ is interesting, as it partly echoed Lord Hailsham, a former Conservative Lord Chancellor, who had coined the phrase two decades earlier. Notably, in this speech Smith committed the Labour Party to the introduction of a human rights act based on the European Convention of Human Rights (ECHR), which turned 70 years old this month. 

John Smith died unexpectedly the following year, but Tony Blair, despite some scepticism, largely kept faith with his predecessor’s commitment to constitutional reform. The precise objectives articulated by Smith, however, seemed to wither away and the purpose of the proposed policies became more obscure. In particular, there was no unified narrative to link them together and no sense of what might come next. 

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The Sewel convention and Brexit

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mcewen-e1527685912390In March, the Constitution Unit co-published a new report, Parliament and Brexit, in which some of the UK’s leading academics examine how parliament has managed Brexit to date, and how it might seek to handle the issue in future. Here, Nicola McEwen discusses how the Sewel convention, which regulates the relationship between the UK Parliament and its devolved counterparts, was put under strain by Brexit.

There are four legislatures in the UK, but only one of these is sovereign. The sovereignty of the Westminster parliament remains one of the most important principles of the UK constitution. Each of the devolution statutes made clear that conferral of law-making powers on the devolved institutions ‘does not affect the power of the Parliament of the United Kingdom to make laws’ for Scotland, Northern Ireland and Wales – including in areas of devolved competence. But Westminster’s parliamentary sovereignty is offset by the constitutional convention that it will not normally legislate in areas of devolved competence, or alter the competences of the devolved institutions, without their consent.

That convention, commonly known as the Sewel convention, has become an important principle underpinning UK devolution. It represents a tacit understanding that the devolved institutions, each of which was founded on popular consent in a referendum, have primary democratic and political authority over laws within their areas of competence.

From the outset, the scope of the Sewel convention was ambiguous. The UK and devolved governments have frequently disagreed on the extent to which UK legislation necessitates legislative consent from the devolved institutions. When tasked with determining its status following its inclusion in the Scotland Act 2016 and the Wales Act 2017, the Supreme Court in Miller I concluded that it remained a convention rather than a legal rule, therefore ‘the policing of its scope and the manner of its operation does not lie within the constitutional remit of the judiciary’. The Court thus left it to politicians and parliament to determine the operation and interpretation of the convention. Continue reading →

Has parliament just got boring? Five conclusions from the passage of the EU Withdrawal Agreement Act

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The 2019 parliament has passed its first statute: the European Union (Withdrawal Agreement) Act 2020. Unusually for a major constitutional bill it was approved unamended. Does this demonstrate the shape of things to come, with an enfeebled parliament under Johnson’s majority government? Lisa James and Meg Russell argue that the WAB was not a typical bill, and the circumstances were far from normal. Even under majority government parliament is far from powerless, and the full dynamics of the new situation may take some time to play out.

1. The Act passed easily – but the circumstances were unusual

The EU (Withdrawal Agreement) Act 2020 (the WAA or – before it gained Royal Assent – the WAB) passed with remarkable ease and speed. A 100-page bill implementing the Withdrawal Agreement, it was packed with detailed provisions on everything from citizens’ rights to the operation of the Joint Committee. Nonetheless, following just 11 days’ scrutiny, it passed wholly unamended: five government defeats in the Lords were swiftly overturned when the Bill returned to the Commons.

Comparison with a key previous piece of Brexit legislation – illustrated in the table below – shows how uneventful the WAB’s passage was in relative terms. The EU (Withdrawal) Act 2018 was similar in scope and complexity, but had a far rockier passage. During 36 days’ scrutiny the government was defeated 16 times, including a rare defeat in the Commons. By the time it passed, it had been so heavily amended – by backbenchers, opposition parliamentarians and ministers themselves – that it was 63% longer than when first introduced.

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Parliament must act quickly to exert influence if it wishes to prevent a ‘no deal’ Brexit

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NGQojaZG_400x400 (1)In four months’ time, the extension to the Article 50 period agreed in April will expire. The UK will have a new Prime Minister by then, although it remains unclear what position they will take if the Commons continues to refuse to approve the Withdrawal Agreement. Jack Simson Caird analyses the legal and political mechanisms available should parliament seek to prevent the next Prime Minister taking the UK out of the EU without a deal.

Boris Johnson has said that if he is the next Prime Minister the UK will leave the EU on 31 October with or without a deal. Theresa May, made the same pledge before the original Article 50 deadline on 29 March. However, after coming under significant pressure from MPs, she did not follow through and sought two extensions from the EU (resulting in the current exit day of 31 October).

Since Theresa May said that she would step down, there has been significant debate over whether the House of Commons could prompt Prime Minister Johnson to avoid ‘no deal’. In this post, I argue that MPs could stop a Prime Minister determined to deliver ‘no deal’ by putting the new leader under extreme pressure to reveal his position on Brexit from the very beginning of his premiership. There is no guarantee that steps taken by parliament to prevent ‘no deal’ would be legally effective, but the events in the first half of 2019 have shown that parliamentary pressure can result in a shift in the government’s position. It is constitutionally unsustainable for a government to pursue a policy which does not have the support of a majority of MPs. This fact will be front and centre from the very moment the new Prime Minister takes over.

Commanding the confidence of the Commons and ‘no deal’ Brexit

When the Conservative Party appoints a new leader, the next natural step is for Theresa May to go to the Queen and recommend that the MP chosen – likely to be Boris Johnson – is best placed to command the confidence of the Commons and should be appointed Prime Minister. This is usually a constitutional formality. However, unlike when Theresa May was appointed, the next Prime Minister will take over a minority administration. Furthermore, Theresa May resigned after it became clear that there was no prospect of her being able to get a majority for the Brexit deal in the Commons (and because she was not prepared to leave without a deal in the face of opposition from a majority of MPs). In fact, some Conservative MPs have already indicated their potential willingness to vote down a Johnson government if the new Prime Minister sought to pursue ‘no deal’. Should such claims become louder in the coming weeks, Theresa May might struggle to give the necessary assurances to the Queen that the person she recommends can command the confidence of a majority of MPs. Even if she does, the new Prime Minister will clearly be in a delicate constitutional situation. Continue reading →