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15th June 2018

BREXIT – Giving ‘meaning’ to a Parliamentary vote

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Could the UK Parliament have a real say in how the Government negotiates terms with the EU? As we wade through another highly charged chapter in the Brexit story, the debate has turned to whether the European Union (Withdrawal) Bill should be amended to allow the House of Commons a ‘meaningful vote’ on the outcome of the current negotiations. The Government is challenging amendments to the Bill which seek to secure Parliamentary involvement that it considers would infringe the Crown’s historic prerogative of negotiating and concluding treaties on the international plane. Those advocating the Government’s case pray in aid of their argument the ‘Separation of Powers’ principle. In the words of a vocal Brexiteer: The House of Commons “is not and cannot be an executive body”. Parliament should not dictate to Government how it should conduct international negotiations.

We have been here before of course, with Article 50 – “Lay off the Crown’s historic prerogative!” was the cry in the battle through the Courts in 2016. Those banging the ‘unconstitutional’ gong this time around might reflect on two things however.

Firstly, there is no legal impediment to the UK Parliament telling the Government what it should do, even if there may be moral, political or other reasons why a body of opinion would think it improper in the circumstances. As the Privy Council held in Madzimbamuto v Lardner-Burke and George [1969] 1 AC 645, “If Parliament chose to do any [such thing] the Courts could not hold the Act of Parliament invalid”. Basically, Parliament is ultimately sovereign. The complaint then is really one about Parliament involving itself in a way that would be contrary to convention – that is, in conflict with established constitutional understandings.

But how unconventional would it be? There is some precedent. The European Communities (Amendment) Act 1993 which implemented the Maastricht Treaty into UK law included a provision that the Act “…shall come into force only when each House of Parliament has come to a Resolution on a motion tabled by a Minister of the Crown considering the question of adopting the Protocol on Social Policy” (section 7). Here was a provision that was designed to enable Parliament to direct the Government not to ratify an international treaty unless it had reconsidered its rejection of a key section of the Treaty. Whilst the Government ultimately forced its will through, by a motion of ‘confidence’, a mechanism had been adopted whereby Parliament could steer Government in respect of that treaty.

So, whatever the politics – whether it would be a good or a bad thing for the UK/EU negotiations – giving Parliament a ‘meaningful vote’, in the sense of a degree of control over the Executive in relation to the present negotiations, would not really be a paradigm shift from the UK’s established constitutional arrangements.

Dominic Hopkins is head of Disputes and Litigation at Hewitsons and an Associate Member of the UK Constitutional Law Association. For more information please contact Dominic on 01604 233233 or click here to email Dominic