Monthly Archives: October 2019

October 26, 2019 · 12:50 pm

British Parliament on Brexit Will bring 18th century back?

History is writing new chapter

For many centuries Britain had established the democratic practices through out the world. 20th Century had made many of colonial occupations were liberated by Gandhian principle of non violence which made UK Parliament to enact INDIA Independence Act and many more. The British Empire lost the geographical areas in the world but remained a force of connectivity by English language, commonwealth forum , best Parliamentary practices to be followed by other countries and well established Judiciary and rule of law.

No doubt when the UK Parliament accepted the EU unity and European Constitution and duel system of governance followed historical experiment of 545 Independent sovereign rulers and British occupied 12 provinces coming together as India and Pakistan in 1947., and also by UK Parliament.

Now history repeats itself by the initiative of British Parliament to come out of EU by Brexit by painfully delivering the law for three years of deliberation and voting. On the one side USA under President Donal Trump talks of National interest first and UN and allied organisations to partially closed. WTO , Paris agreement goes into degraded position.

Are these signals good for the world ?

will the Leaders and people realise that back stabbing of all system is in disarray leading to chaos in the world and humanity.

will there be a whistle blow to stop disintegration and putting the clock back to 18th century ?

Dr EM Sudarsana Natchiyappan

Former Minister in Indian Government

Presently Sr Advocate , Supreme Court of India,

‘New Delhi 110001

A step-by-step guide to the Withdrawal Agreement Bill

The Brexit endgame now rests on the Withdrawal Agreement Bill (WAB).

The WAB is a fundamentally different exercise from what we have seen so far in terms of the Brexit process. It is a bill rather than a motion, so it can be amended to create legally binding obligations on the government. But as its main purpose is to implement the Withdrawal Agreement, an international treaty, it can’t amended in a way that is incompatible with that agreement, if we are to leave with a deal.

As it starts its progress, each stage brings with it a distinct set of strategic choices and opportunities for parliamentarians.

1) Today: Publication and first reading

MPs and experts have argued that the government should have published a version of the WAB much earlier.

Most of the content will be determined by the test of the Withdrawal Agreement – but this will be the first time we see how the government proposes to put it into law. We will also see whether the government is offering some of the concessions it hinted at on Saturday – for example on Parliament’s future role on the trade negotiations, and on employment and environmental protection.

2) Tuesday: Second reading

The second reading vote on the WAB in the House of Commons, scheduled for Tuesday, is a one-shot game. This could be the first occasion we see if there is a majority for the deal in principle. If the WAB is rejected at second reading it can’t be reintroduced in this parliamentary session.

That basically means the Government would have run out of road, and a general election would be needed to make any further progress.

The strategic choice for MPs at second reading is difficult. If the WAB is rejected then it effectively ends the session straight away. But MPs could decide to adopt a wait and see approach: even if the Bill is approved at second reading, it can still be rejected later at third reading. And Parliament can use the passage of the WAB to try to amend it – for example to seek a Customs Union in the future relationship, or make approval subject to a “confirmatory vote”.

Some MPs who dislike the WAB could decide to abstain in the hope that they can amend it at committee and report stage, and then make their final decision at third reading.

3) Tuesday: Commons Programme motion

If MPs approve the second reading, they will then be asked to then approve the programme motion. MPs can make amendments to this motion, which will set out the timetable for MPs’ consideration of the WAB. This is the stage where some bills – for example Nick Clegg’s House of Lords reform bill in 2012 – have died.

The government is likely to propose an extraordinarily condensed timetable to enable it to hit its 31 October exit deadline. The programme motion is likely to propose that all the House of Commons stages are taken this week.

But there will be strong opposition to this. A tight timetable is controversial because of the constitutional significance of the WAB, given the role the Withdrawal Agreement envisages for the European Court of Justice and the amount of delegated powers it is likely to give ministers to enact areas like the Protocol on Northern Ireland. Outside the context of a major national emergency, or a threat to national security, it is highly unusual for a major constitutional bill to be put through the Commons in such a short timeframe.

By way of comparison, the EU (Withdrawal) Bill, which was passed in 2018, had two days of second reading debate, eight days for the committee stage and two days of report stage in the Commons: but these took place over more than three calendar months, allowing time for scrutiny of a highly complex constitutional bill.

The government’s programme motion if passed could lead to a fairly chaotic process. When it comes to negotiating compromises, what normally matters isn’t only the number of days for debate, but the amount of time between the days. Now an extension has been requested, MPs may feel such a curtailed process is unnecessary.

4) Committee stage

As a major constitutional bill, the committee stage will take place on the floor of the House. The committee stage of the process will be dominated by the amendments proposed by MPs.

If the Withdrawal Agreement Bill is amended in a way that risks being interpreted as a failure to honour the commitments in the Withdrawal Agreement, then that will constitute a rejection of the Withdrawal Agreement.

This could be a major stumbling block for those MPs trying to shape or stop the Withdrawal Agreement after second reading. In 1972, when the Commons was considering the European Communities Act, then chairman of ways and means Robert Grant-Ferris made a ruling that amendments which purported to change the text of the treaties were out of order.

On each of these the government will have to weigh the likelihood of defeat and the damage to its objectives. Time will be very compressed for the normal process of negotiating compromises with backbenchers where it may come under pressure.

In committee stage on the floor of the House, it will be up to the Deputy Speaker Lindsay Hoyle, chairman of ways and means, to decide which amendments get selected for debate, and which of those go to a vote. The main point of contention with the WAB will be whether the bill’s primary aim – to implement the withdrawal agreement – provides justification for not choosing certain amendments.

5) Report stage and third reading

Report stage is when the government will have an opportunity to show its hand and put forward further concessions that respond to amendments proposed by MPs. Report stage would also represent backbench MPs’ last opportunity to amend the bill before it goes to the Lords.

Third reading is then an opportunity for MPs to approve or reject the WAB as amended in committee and report stage. If the WAB has been subject to significant amendments in the Commons, which would seem likely, the third reading could be the critical moment that determines whether the UK leaves on 31 October with a deal.

6) The House of Lords and Ping-Pong

The Government does not have control over the parliamentary timetable in the House of Lords. This makes it difficult to see how it will get the WAB through before exit day, even if an accelerated timetable is accepted by the House of Commons.

The Letwin Amendment and the request for extension means the Parliament does not immediately have to choose between the current deal and no deal at all, giving the space for a longer timetable.

The Lords sees itself as a constitutional guardian, and is almost certain to make amendments on the major areas of constitutional significance.

The Lords’ committees on the constitution and delegated powers will report on the WAB early on. Their recommendations will be highly influential in shaping the amendments proposed.

The WAB is certain to be amended in the Lords. Even if a referendum has been rejected by the Commons, a further referendum amendment could be introduced by the Lords. The Commons will be asked to approve, reject or consider alternative amendments to those proposed made in the Lords. This may go through more than one stage of back and forth between the House of Commons and the House of Lords.

Only when the bill has successfully negotiated all these stages, will the UK will be able formally to ratify a withdrawal treaty with the European Union.

By Dr Jack Simson-Caird, Senior Research Fellow at the Bingham Centre for the Rule of Law and Dr Alan Wager, Research Associate at The UK in a Changing Europe

Disclaimer:
The views expressed in this analysis post are those of

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).

Government and the Rule of Law

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.

Business and the Rule of Law

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

Vacancies
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