Parliament should have a greater role in negotiations with Europe and third countriesby George Peretz / September 3, 2018 / Leave a comment
It is now commonplace to observe that Brexit is putting the UK constitution under unbearable strain. One of the most obvious ways that it is doing so is by calling into question the allocation of powers between the Crown and parliament when it comes to dealing with the EU and, in due course, with other countries with which the UK will need to negotiate trade agreements after Brexit.
The traditional British model of making and implementing treaties is that they are negotiated and entered into by the Crown (i.e. the government) under the royal prerogative. Parliament has only two roles: it can pass a motion of no confidence in Her Majesty’s Government if it dislikes the treaty, or it can refuse to pass the legislation necessary to make the changes to domestic law that treaties usually require in order to be ratified. (In general, and in contrast to some other European countries, treaties have no effect in UK domestic law unless and until parliament changes the law.)
The problem is that the first option is not normally politically realistic and the second is unlikely to be attractive to MPs in the governing party once the government has concluded a treaty which, in most cases, cannot easily be re-negotiated: the treaty is at that stage effectively “take it or leave it,” and those MPs may well be reluctant to humiliate their government by telling it to leave it.
One recent innovation that was supposed to help was the Constitutional Reform and Governance Act 2010. That Act requires the government to lay treaties before parliament and gives parliament a power to delay ratification. But that limited power does not deal with the point that, by that stage, parliament is still being confronted with a “take it or leave it” choice.
In the 2017 Miller case, the Supreme Court was able to find an exception to the traditional model in the case of the Article 50 decision. It was able to interpret the European Communities Act 1972 as having, by implication, qualified the royal prerogative so that an Act of Parliament would be required before the Crown could serve a notice terminating EU membership. But Miller did not otherwise disturb the traditional model.
However, the view that the traditional model is unsatisfactory has been gaining ground. The heart of the problem is that international treaties concerning trade are far removed from the…