Brexit in Parliament

Weekly Update – 25 October 2019
Dear friends,
The publication of the European Union (Withdrawal Agreement) Bill (“the WAB”) on Monday this week, and the House of Commons insistence that Parliament have a proper opportunity to scrutinise it carefully, was an important moment for the Rule of Law in the UK, demonstrating that upholding the Rule of Law is not just the job of courts, but a shared responsibility amongst all branches of government, including Parliament.

The WAB is a major constitutional measure which raises a number of Rule of Law issues, not least the extensive delegation of law-making powers to the Executive and the protection of the rights and legitimate expectations of EU citizens.  But the major Rule of Law concern raised by the WAB’s appearance this week was the Government’s plan to give the Commons less than a week to scrutinise the Bill.

As the Supreme Court recently reminded the Government, under our constitutional arrangements Parliament is supreme over the Executive.  This is inherent in our political system’s commitment to the Rule of Law, and it also precludes the Government from rushing major constitutional changes through Parliament without the opportunity for serious scrutiny.

By rejecting the Government’s programme motion for this constitutionally momentous piece of legislation, and defending Parliament’s ability to engage in rigorous public scrutiny of a legislative proposal before it is enacted, the House of Commons was giving practical life to the Rule of Law principle that law-making procedures must satisfy certain minimum standards, including sufficient time for meaningful scrutiny, commensurate with the significance of the law in question.

Brexit and the Rule of Law

Our work on the WAB
We first raised the issue of adequate scrutiny of the WAB by Parliament more than a year ago in October 2018. On Monday, Jack Simson Caird, Senior Research Fellow in Parliaments and the Rule of Law, explained the parliamentary stages of the WAB in a co-authored Guide to the parliamentary process for UK in a Changing Europe which was widely shared and cited in the media. On Tuesday, Jack appeared on BBC News, Sky News, BBC Radio Scotland and was quoted in the FT on the importance of scrutinising the WAB.

As parliamentary debate commenced, and then was paused, on the WAB, an issue that remained under the radar was the jurisdiction of the European Court of Justice. Brexit Research Fellow Oliver Garner argued for the LSE Brexit Blog that the new Protocol on Ireland/Northern Ireland could lead to the indefinite jurisdiction of the European Court of Justice over the actions of UK authorities on UK territory with regard to goods passing from Great Britain to Northern Ireland.

Miller 2 and 2018 in review

Jack Simson Caird defended the Supreme Court’s judgment in the prorogation case against the charge that it was an illegitimate “political” intervention in an article in the latest edition of Counsel magazine: Miller 2, the Supreme Court and the politics of constitutional interpretation.All the constitutional drama of 2019 has obscured many of the extraordinary constitutional events of 2018 in the UK, which have been reviewed by a team of constitutional lawyers (including Jack) for the The I·CONnect-Clough Center 2018 Global Review of Constitutional Law (which can be downloaded from SSRN here).

Jack Simson Caird and Elis Paterson, Researcher in the Rule of Law, delivered a presentation to members of Public Law Project’s SIFT Project at Herbert Smith Freehills. The SIFT Project provides a forum to discuss developments in practice and research concerning delegated legislation. Jack and Ellis’s presentation focused on analysing, from a Rule of Law perspective, the current framework for the creation and scrutiny of delegated legislation, and whether it is still fit for purpose in light of Brexit. A report setting out their findings and recommendations in this area will be published soon.

Ulysses Smith, who leads the Bingham Centre’s work on Business and the Rule of Law, participated in an event in New York hosted by law firm White & Case and convened by Global Citizen and the Pathfinders for Peace for Peaceful Just and Inclusive Societies. The event brought together businesses, UN Member States, and civil society organizations to begin to map out a more ambitious plan to advance the Rule of Law and Access to Justice, including by enhancing the business community’s contributions thereto, in the next five years of the roll out of the 2030 Agenda for Sustainable Development. Goal 16 of the SDGs has ambitious societal targets for the Rule of Law, access to justice, human rights, and the fight against corruption. Advancing SDG 16 is a priority area of work for the Bingham Centre, and is an area of particular interest to the work of the Centre’s Business Network.

Sustainable Development and the Rule of Law
Further to his presentation at a conference convened by the International Development Law Organization in the Hague (which we reported on in a previous issue) Mat Tromme, Senior Research Fellow and Director of the Sustainable Development and Rule of Law programme, published a comment piece on existing challenges to ensure that stolen assets that emanate from corruption can be returned to the country of origin in an accountable (or ‘responsible’) manner. In this piece, Mat also provides some ideas on what needs to happen to make this a reality.

Citizenship and the Rule of Law
Today, Michael Olatokun, Research Fellow in Citizenship and the Rule of Law; Head of Public and Youth Engagement, will be continuing the Centre’s productive partnership with the UCL Institute of Education by training candidates for the PGCE (Post Graduate Certificate of Education – the main qualification required for teachers in England, Wales and Northern Ireland) on the delivery of Rule of Law lessons to their prospective students. Michael was part of the 2018 edition of this training day. In addition to this annual seminar, Michael was a panellist at the Institute’s ‘International Centre for Democratic Citizenship’ Conference this June. Professor Hugh Starkey, convenor of that conference, attended the Bingham Centre expert roundtable with Solicitor General Michael Ellis QC MP last week.

Justice Systems and the Rule of Law
A piece on peoples’ tribunals and the Rule of Law written by Marcos Zunino, Research Fellow in Judicial Independence and Constitutional Transitions, will be published on 21 November in the blog of the International Association of Constitutional Law (IACL). Against the backdrop of the recent peoples’ tribunal on contested citizenship in Assam, India, the blogpost discusses the role of tribunals created by civil society as advocacy platforms that can reinforce the Rule of Law by highlighting legal, jurisdictional and policy shortcomings.

Coming Up
Next week, the Bingham Centre, in collaboration with the Romanian Center for European Politics (CRPE) and the Faculty of International Economic Relations at the Bucharest University of Economic Studies and the National Bank of Romania will be co-hosting a panel at a conference ‘on the Future of Europe’. The panel will consider Rule of Law conditionalities in the EU, including the Cooperation and Verification Mechanism (CVM) and the new monitoring mechanisms in the EU. A short briefing on the panel will be published in follow-up to the event.

On Thursday, 31 October, the Bingham Centre together with our International Visiting Fellow, Dr Dean Knight, will hold an event in London on Citizenship Education Without A Codified Constitution: Comparative Perspectives. The event will consider the extent to which the New Zealand and English education systems adequately prepare students for a life of active citizenship and will feature interactive discussions, panel contributions from experts and calls to action. Spaces are limited and on a first come first served basis. Please email Michael to register your interest or to be added to the waiting list. The event will start at 17:00 and finish at 19:30.

On 9 December 2019, the Bingham Centre is co-sponsoring an event with The Commonwealth Legal Forum, hosted by the Commonwealth Secretariat. The lecture on Maintaining the Rule of Law: The Commonwealth at 70 will be delivered by The Rt Hon. Lady Arden of Heswall DBE. Further details can be found here. Early registration is advised. Click here to register your attendance
We are recruiting for a Research Fellow in Judicial Independence and Constitutional Transitions. This is a full time, fixed term post for 7 months, starting as soon as possible and ending by or before 31 July 2020. The closing date for applications is on or before Sunday, 3 November 2019. More details can be found here.
The Public Policy team at the Arts and Humanities Research Council (“AHRC”) are recruiting for an exciting role as Head of Public Policy to develop and deliver an AHRC strategy for public policy, and to develop opportunities for arts and humanities research to influence UK and international policy. The postholder will have an important role to play in the development of the AHRC’s growing public policy engagement.  The closing date for applications is Monday, 4 November 2019. Further details can be found here.

If you have found this Update useful we would be grateful if you would forward it to those in your network who you think might be interested in the activities of the Bingham Centre, and encourage them to subscribe by clicking on the link below.

Best wishes

Murray Hunt
Director, Bingham Centre for the Rule of Law
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