UK Constitutional Law Association

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Kenneth Armstrong: Bootstrapping Brexit: A European Rescue of the Nation State?

Kenneth ArmstrongIn a report published on 20th October, the European Union Select Committee of the House of Lords set out the argument for close parliamentary scrutiny of the UK’s withdrawal from the European Union. The central claim made in the report is that a middle path may be found between the Government’s apparent preference for retrospective scrutiny of its EU-level negotiations and what the Government considers to be attempts at parliamentary micromanagement of the withdrawal process. What motivates this search for a middle way is a belief that parliamentary scrutiny can serve the instrumental purpose of contributing to the success of the negotiations. The report suggests that in procedural terms, Parliament might ensure that government is taking proper advice and consulting the right people and in more substantive terms, the Government’s position might be enhanced through parliamentary testing of its position in light of available information and analysis.

The focus of this analysis is not an evaluation of the instrumental qualities of parliamentary scrutiny. Instead it is argued that the report bootstraps its arguments for parliamentary involvement in Brexit by resort to the resources of European constitutional law. To be clear, it is not suggested that European constitutional law dictates or determines the role of the UK parliament: that would be to transgress the boundaries between the EU and national legal orders. But rather that the role ascribed to the European Parliament in the scrutiny of international agreements entered into on behalf of the EU provides a resource through which to shape and direct the institutional position of the UK’s parliament in scrutinising Brexit.

In its report, the Lords’ European Union Committee attaches great significance to a statement given in evidence to the Committee by the Secretary of State for Exiting the European Union, David Davis, when he said that the government, in its dealings with Parliament, would ‘certainly match and, hopefully, improve on what the European Parliament sees’. The idea that the UK Parliament might end up having less of a scrutinising role than the European Parliament has been raised a number of times to makes the case for stronger parliamentary influence over Brexit. What is interesting about the Lords’ report is the manner in which it seeks to put flesh on the bones of that argument by direct reference to the procedures and mechanisms that give the European Parliament a significant substantive role in the EU’s conduct of international negotiations.

Davor Jančić has recently highlighted the description of the EP as a ‘world leader in parliamentary diplomacy’. It was not always so. Indeed, as regards the EU’s Common Commercial Policy (CCP), this was a domain traditionally dominated by the EU’s executive branches. Based on a mandate agreed in the Council, it was for the European Commission to negotiate on behalf of the Union, subject to regular reporting to a committee of national representatives. With the entry into force of the Lisbon Treaty in 2009, Article 207(3) TFEU now provides that that the Commission shall also report regularly to the EP on the progress of negotiations.

This might seem a fairly flimsy parliamentary foothold and barely one upon which to bootstrap any domestic parliamentary claims of influence and oversight over the Brexit negotiations. Rather, the real bite comes in Article 218 TFEU which gives additional detail to the institutional procedures to be followed when negotiating international agreements. In particular, it requires the consent of the European Parliament to the conclusion of a range of different international agreements, including trade agreements which either form part of a wider ‘association agreement’ or are concluded under the CCP in fields where the ordinary legislative process is engaged in implementation of the agreement. In short, the consent of the EP has become the norm for the EU’s international agreements except for the reserved domain of foreign and security policy. It is this downstream capacity for veto (‘exit’) that enhances upstream EP engagement (‘voice’) when negotiating positions are being determined.

The EP has not been afraid to exercise its power of veto, as Christina Eckes notes. It refused its consent to the Terrorist Finance Tracking Program (TFTP) agreement and the Anti-Counterfeiting Trade Agreement (ACTA). Therefore, the position of the EP has to be taken into account and not just by the EU institutions but also by the partners with whom the EU negotiates. But, instead of waiting to the end of the process to seek retrospective EP approval – with the risk that it will be denied – institutional practice has shifted in ways that give the EP influence from the beginning of the procedure. Indeed, it is a feature of the constitutional architecture of the EU that the formal provisions of the treaties are often subject to institutional agreements that clarify and in some instances expand the powers of institutions under the treaties. This is especially so in respect of the powers of the EP when the EU negotiates international agreements. In terms of the 2010 Framework Agreement on relations between the EP and the Commission, the EP ‘shall be immediately and fully informed at all stages of the negotiation and conclusion of international agreements, including the definition of negotiating directives’. More detailed procedural rules are set out in Annex III of the Framework Agreement.

It is based on these European norms that the House of Lords European Committee identified four core principles which it suggested should underpin parliamentary involvement:

  • Parliamentary committees should have access – including on a confidential basis – to a wide range of relevant documents;
  • Documentation should be supplied in sufficient time for committees to express their views and for Government to take those views into account;
  • A ‘comply-or-explain’ approach to any recommendations made by committees; and
  • Procedures to safeguard confidential information.

But to what extent is it appropriate to bootstrap the constitutional position of the UK Parliament by reference to that of the European Parliament? Or to put it another way, how does the constitutionalisation of the role of the EP in international negotiations compare to that of the UK Parliament? There are two points to consider. The first is whether UK constitutional law gives the UK Parliament an analogous right to ‘consent’ to an agreement prior to its ratification. The second is whether the role of the EP under Article 50 TEU is wholly analogous to its role under Article 218 TFEU.

In 2009, the year that the Lisbon Treaty endowed the EP with its powers over international treaties, it was possible to write that, ‘[T]he lack of formal parliamentary involvement in treaty-making differentiates the UK Parliament from most other national legislatures’. Instead the UK parliament had a highly limited oversight under a constitutional convention: the Ponsonby convention. However, the provisions of Part 2 of the Constitutional Reform and Governance Act 2010 gave legal force to that convention and now sets down a set of rules for Parliament’s involvement in the ratification of treaties. This entails the laying of a text of a treaty before both Houses of Parliament for 21 days. In the absence of any objection, the government may then proceed to ratification. It is for either House to seek to pass a resolution objecting to ratification. If a resolution is passed, then government must provide a statement of its reasons why it wishes to proceed to ratification. If such a resolution is passed by the Lords alone, then following the provision of the ministerial statement, the government may still proceed to ratification. If the Commons passes such a resolution, then a ratification stand-still follows for another 21 days from the ministerial statement during which period it may again pass a resolution objecting to ratification. As the Act makes clear, this process can be repeated which suggests that the Commons may continue to object to ratification of a treaty.

As Paul Craig has written, the provisions of the 2010 Act are a set of constitutional ‘default’ rules. This default applies to the extent that more specific rules do not apply. The subsequent European Union Act 2011 provides stronger constitutional safeguards through requirements of a referendum and/or Act of Parliament in respect of certain future EU treaty changes.

A couple of observations can be made. The direction of constitutional travel has certainly been in favour of enhancing the UK Parliament’s role prior to the ratification of a treaty by the Government. Indeed, the speed of travel has been accelerated as a consequence of the UK’s membership of the EU with enhanced involvement where EU treaties are concerned. But as the Attorney General submitted during the course of the Article 50 litigation before the High Court, such parliamentary oversight has been confined to the domestic management of the consequences of an international negotiation which leads to a new or revised treaty. It is only once the negotiation is completed that retrospectively Parliament is required to be involved prior to formal ratification. It is central to the Attorney General’s cases that these ‘end-of-pipe’ parliamentary processes neither remove nor constrain the exercise of the Royal Prerogative at the point at which negotiations begin.

In any event, whereas the enhanced role of the EP in the oversight of negotiations is directly linked to its powers of consent, the scrutiny practices of the UK Parliament can simply be adjusted and applied even in the absence of stronger powers at the end of the process. Parliament found the means and mechanisms through which to exert scrutiny as the ill-fated EU Constitutional Treaty was being negotiated even before the provisions of the 2010 Act were being considered. In part that may be due to the means by which the Constitutional Treaty was negotiated: a constitutional convention was established with input from parliamentarians at both EU and national level. So perhaps again the domestic arrangements may have been a response in part to developments within European constitutionalism. But the point is that it is for Parliament itself to define its own procedures for scrutinising Brexit whether or not it possessed the ultimate power to consent to the ratification of the withdrawal agreement.

Even if we assume that there could be an analogy between the relative positions of the EP and the UK Parliament, a more intriguing question is whether the role of the EP under Article 50 TEU is comparable to its role under Article 218 TFEU. At first blush this seems like a rather spurious point. After all Article 50(2) TEU states in terms that a withdrawal agreement shall be negotiated in accordance with Article 218 (3) TFEU and concluded by the Council on behalf of the Union having obtained the consent of the EP. It is therefore, unarguable that the EP will have to consent to any agreement adopted under Article 50 TEU in like manner to its constitutional function under Article 218 TFEU.

In accepting the EP’s unarguable formal role as laid down in Article 50 TEU, it is, nonetheless, worth reflecting on what lies behind that role. It is suggested that there are two conflations that render Article 50 TEU constitutionally ambiguous. The first conflation is between the expression in EU law of a state’s international law right to withdraw from a treaty (and in this case, its departure from an international organisation), and, the negotiation of an agreement between the EU and the withdrawing state detailing the consequential effects of that withdrawal. It would have been perfectly possible for Article 50 TEU to have adopted a rather minimalist approach that did no more that specify the right of a Member State to withdraw by notifying the European Council of its intention with some act of confirmation of the withdrawal decision by that state after the expiry of a period of time.  From an intergovernmentalist perspective there would be no obvious need for the involvement of the EP: the UK as a state party to the treaties would simply withdraw, with any domestic constitutional oversight being a matter for that state itself. Of course, the retort might be that the EU treaties are more than an agreement between states and the constitutional role of the EP in the Article 48 TEU process for amending the treaties has increased. Nonetheless, the formal power remains with the Member States acting by unanimity to adopt any treaty amendments and the power of ratification remains with the Member States subject to their own parliamentary and constitutional process. To put it bluntly it is not obvious why the EP should have a role in the withdrawal process at all. The answer, of course, is that the process of withdrawal and the adoption of an agreement between the EU and the withdrawing state has been conflated.

And here’s where the second conflation occurs. It is perfectly understandable that a withdrawal agreement might be desirable to manage some of the immediately consequential effects of withdrawal including transitional arrangements. But that is a rather different proposition from an agreement that purports to govern significant substantive aspects of that state’s future relationship with the EU. Unfortunately, Article 50 TEU does not draw such a distinction. However, it seems likely that the details of a future trade and cooperation deal between the UK and the EU will be negotiated separately from the Article 50 agreement itself. Indeed, it is open to argument that Article 50 TEU would not provide an adequate legal basis for a comprehensive trade and cooperation deal which ought instead to be negotiated having regard to the normal legal bases found in the treaties and the respective role of the EP under the institutional procedures that apply to those legal bases. So while there might be good reason to draw an analogy with the powers of the EP, and for parallel domestic parliamentary involvement, at the point where the future trade and cooperation relationship between the UK and the EU is being negotiated, a withdrawal agreement alone need not have necessitated a role for the EP. But in having conflated these different agreements it is plain that Article 50 TEU does accord a right of consent to the EP.

The conclusion might well be that, in an ironic twist, it is the constitutional and democratic qualities of the EU – much maligned in the referendum campaign – that are called upon to rescue parliamentary democracy in the UK. The gaps in an under-constitutionalised UK are being filled by reference to the resources of a  constitutionalised – or perhaps ‘over-constitutionalised’ – EU.

Kenneth Armstrong is Professor of European Law, University of Cambridge

(Suggested citation: K. Armstrong, ‘Bootstrapping Brexit: A European Rescue of the Nation State?’ U.K. Const. L. Blog (27th Oct 2016) (available at https://ukconstitutionallaw.org/))

One comment on “Kenneth Armstrong: Bootstrapping Brexit: A European Rescue of the Nation State?

  1. Pingback: Brexit Basics 11: update 2nd November | Law & Religion UK

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