Constitutional Law Group June 15, 2018 Europe, European Union, International law, UK government, UK Parliament

Francis Young: Parliament and Taking Back Control: A Precedent from the Maastricht Debates

This post considers whether it is a convention of the British constitution that Parliament cannot direct the executive in the making of treaties. The context, of course, is the current tussle over 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 with the EU.

Amendments to this effect have been tabled by Viscount Hailsham and Dominic Grieve. These amendments stand out among the many, many amendments that have been debated in connection with the Withdrawal Bill. Government resistance to most amendments proposed by pro-European parliamentarians has been based on the proposition that Parliament cannot act against the “will of the people”, as (putatively) expressed in the June 2016 referendum. But in the case of the “meaningful vote” amendments, the Government is taking a different line. These amendments cannot be accepted (we are told) because they infringe the Crown’s historic prerogative of negotiating and concluding treaties. They must be defeated not (or not only) because they violate the “will of the people”, but because they violate monarchical authority.

Mr Jacob Rees-Mogg MP has based his opposition to a “meaningful vote” amendment on the principle of the separation of powers; he stated in this morning’s Times that the House of Commons “is not and cannot be an executive body”. Likewise, Mr David Davis stated in the debate on Tuesday, in relation to Dominic Grieve’s amendment:

What it amounts to is an unconstitutional shift that risks undermining our negotiations with the European Union. It enables Parliament to dictate to the Government their course of action in international negotiations.

Of course, as we know, the concept of unconstitutionality is a slippery one in this jurisdiction. In Madzimbamuto v Lardner-Burke and George [1969] 1 AC 645, a case which involved far-right nationalist politicians, the Privy Council famously stated:

It is often said that it would be unconstitutional for the United Kingdom Parliament to do certain things, meaning that the moral, political and other reasons against doing them are so strong that most people would regard it as highly improper if Parliament did these things. But that does not mean that it is beyond the power of Parliament to do such things. If Parliament chose to do any of them the courts could not hold the Act of Parliament invalid.

We must therefore interpret the position of Mr Davis, Mr Rees-Mogg and their supporters as being that a “meaningful vote” amendment would be unconstitutional not in the sense of being beyond the legal powers of Parliament to enact, but rather unconstitutional in the sense of being contrary to established understandings of the British constitution – contrary to convention, in other words.

It is trite law that the royal prerogative, as exercised in modern times by ministers, does indeed extend to negotiations such as those in which the Government is currently engaged with the European Union: “The conduct of foreign affairs, making treaties, making peace and war, conquering or annexing territories, are all aspects of the Royal prerogative” (Rahmatullah (No 2) v Ministry of Defence [2017] UKSC 1, per Lady Hale). Presumably even members of the ERG would agree that only the first two of these things is relevant here. Yet I wish to suggest that one relatively recent precedent makes it clear that it is not contrary to British constitutional convention for the Commons to seek to direct the actions of the executive in the making of treaties.

The precedent comes from the time of the Treaty on European Union, better known as the Maastricht Treaty. After being negotiated by the Major Government, this treaty was implemented in UK law by means of the European Communities (Amendment) Act 1993. During the epic parliamentary battle over the legislation, the Government accepted a Labour amendment which in due course became Section 7 of the Act:

This 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.

While the wording of this section referred to a Government motion (“tabled by a Minister”), the intention was always that the Labour Opposition would table an amendment to the Government motion, and that that amendment would call upon the Government to adopt the Protocol on Social Policy. This was a part of the treaty – otherwise known as the Social Chapter – from which John Major had secured an opt-out for the UK on the grounds of economic policy.

The crucial votes were taken in the Commons on 22-23 July 1993. On 22 July, the Opposition narrowly failed to amend the Government’s motion, but it succeeded in voting down the motion itself. It will come as a surprise to no-one that the rebel Conservative MPs who voted with Labour on that occasion included certain current MPs who are opposed to a “meaningful vote” amendment (it would be invidious to mention the individuals concerned). Major responded by re-tabling the Government motion as a matter of confidence the following day. He won the resulting vote comfortably.

The key point is that Section 7 amounted to a deliberate and conscious attempt to empower Parliament to force the Government not to ratify an international treaty that it had negotiated unless it reconsidered its decision to reject certain terms of the treaty. It did not de jure allow the Commons to issue a legally binding direction to the Government as to what it ought to sign up to (and there was some suggestion at the time that the Government could ignore a Commons vote in favour of the Social Chapter – in Prime Minister’s questions on 20 July 1993, Major refused to be drawn on this point). But that is not the issue. The objections of Messrs Davis, Rees-Mogg et al. are based on broad constitutional principle – concern for the separation of powers – rather than on any narrow de jure point about the enforceability of a Commons resolution.

In conclusion, whatever the merits or otherwise of a “meaningful vote” amendment, such an amendment cannot be said to amount to an unprecedented departure from the conventional distribution of powers under the British constitution.

Francis Young is a Fellow of the Royal Historical Society, the author of 12 books, and holds a PhD from the University of Cambridge.

(Suggested citation: F. Young, ‘Parliament and Taking Back Control: A Precedent from the Maastricht Debates’, U.K. Const. L. Blog (15th Jun. 2018) (available at https://ukconstitutionallaw.org/)

9Comments

Add yours

1

Sean Feeney on June 15, 2018 at 12:01 pm
Reply

The “key point” about the European Communities (Amendment) Act 1993 is:

1. It has received judicial consideration (none of the direct case law on the 1993 Act appears to be cited in this blog post), most notably in:

R. v Secretary of State for Foreign and Commonwealth Affairs ex p. Rees-Mogg [1993] EWHC Admin 4 (30 July 1993) [1993] 3 CMLR 101, [1993] EWHC Admin 4, [1994] 1 All ER 457, [1994] 2 WLR 115, [1994] QB 552. 6. R. v Secretary of State for Foreign and Commonwealth Affairs ex p. Rees-Mogg [1993] EWHC Admin 4 (30 July 1993)([1993] 3 CMLR 101, [1993] EWHC Admin 4, [1994] 1 All ER 457, [1994] 2 WLR 115, [1994] QB 552.
http://www.bailii.org/ew/cases/EWHC/Admin/1993/4.html

A case which itself received judicial consideration in the little-known case of Miller:

R. v Secretary of State for Foreign and Commonwealth Affairs ex p. Rees-Mogg [1993] EWHC Admin 4 (30 July 1993) [1993] 3 CMLR 101, [1993] EWHC Admin 4, [1994] 1 All ER 457, [1994] 2 WLR 115, [1994] QB 552.
http://www.bailii.org/ew/cases/EWHC/Admin/2016/2768.html

A case that was a leap-frog appeal to the Supreme Court where Rees-Mogg received further consideration – along with the Maastricht Treaty and the 1993 Act:
Miller & Anor, R (on the application of) v Secretary of State for Exiting the European Union (Rev 3) [2017] UKSC 5 (24 January 2017) [2017] 1 All ER 593, [2017] 2 CMLR 15, [2017] 2 WLR 583, [2017] HRLR 2, [2017] NI 141, [2017] UKSC 5, [2017] WLR(D) 53, [2018] AC 61
http://www.bailii.org/uk/cases/UKSC/2017/5.html

Those who – who like me – are lazy can establish the two relevant dates for the precedent-fact clause in Section 7 (“… when each House of Parliament has come to a Resolution …”) of the 1993 Act from the helpful annotation on the Government’s legislation database:

“Commencement Information

“I1
“Act not in force at Royal Assent see s.7; Act in force on 23.7.1993 being the date on which the House of Commons came to a Resolution in accordance with s. 7 (the House of Lords having come to a Resolution on 22.7.1993)”
https://www.legislation.gov.uk/ukpga/1993/32/introduction
- 2
  
  Francis Young on June 20, 2018 at 7:47 am
  Reply
  
  I’m not sure how any of this material is relevant to my point (and nor is the date of handing down of Rahmatullah). My point is simply that s.7 of the 1993 Act and the debates that followed it amount to a relatively recent precedent for the Commons engaging in doing something that the Government now say is “unconstitutional”.
3

Sean Feeney on June 15, 2018 at 12:15 pm
Reply

Two further dates are relevant – the handing down dates of two judgments of the Supreme Court:

1. 17 January 2017 for Rahmatullah (No 2); and
2. 24 January 2017 for Miller.

While Rahmatullah was not cited in the judgment in Miller, the Supreme Court’s judgment by majority was not given per incuriam since the Court sat en banc and it’s unlikely the Supreme Court Justices hand forgotten the judgment they handed down the week before.
4

John Hartigan on June 17, 2018 at 11:04 am
Reply

As you correctly observe – the Maastricht debates were AFTER the negotiations, not before. It’s entirely proper for Parliament to accept, reject or demand a renegotiation on specific points of a Treaty, but what is currently being debated is for Parliament to enforce restrictions on the Govt’s negotiating position (the no walk-away amendments, staying in the Customs Union etc.) BEFORE the negotiations are concluded. That is surely unprecedented. Parliament is in grave danger of reinterpreting it’s sovereignty to such an extreme that it risks losing the consent of the electorate which is the bedrock upon which Parliamentary sovereignty stands.
- 5
  
  Francis Young on June 20, 2018 at 8:00 am
  Reply
  
  It’s entirely proper for Parliament to accept, reject or demand a renegotiation on specific points of a Treaty,
  
  The “specific points” issue is what is at stake here. The basic difference between the Grieve-Hailsham amendments and the Government’s amendment is that the former would allow the Commons to express a view on “specific points” of policy whereas the latter would allow only a binary, “take it or leave it” vote.
  
  The Maastricht debates were held after the treaty was signed – but before it was ratified. I don’t think that the timing point bears on the key question of whether the Commons is entitled to “dictate to the Government their course of action”, to use the words of Mr Secretary Davis. The Commons attempted to do just that in 1993, on the basis of an amendment that the Government of the day accepted (Davis himself being a whip at the time).
  - 6
    
    John Hartigan on June 20, 2018 at 7:00 pm
    
    The timing point is fundamental. Parliament deciding whether it should ratify a treaty negotiated by the Govt ala Maastricht is perfectly normal. However, Parliament deciding on acceptable terms in advance of a treaty is unprecedented in my understanding and an abuse of Parliament’s role.
  - 7
    
    Francis Young on June 21, 2018 at 11:03 am
    
    The timing point is fundamental. Parliament deciding whether it should ratify a treaty negotiated by the Govt ala Maastricht is perfectly normal. However, Parliament deciding on acceptable terms in advance of a treaty is unprecedented in my understanding
    
    The 1993 debates weren’t about ratification, which was a separate process. They were about whether the Government should be told to renegotiate specific terms (the Social Chapter) of an unratified treaty. Ratification would take place only after the 1993 Act came into force, and s.7 said that the Act could only come into force after Parliament had declared itself on the Social Chapter. That’s why July 1993 offered a “meaningful vote”, to use the current parlance. The Government won the vote (eventually), but in accepting s.7 they conceded the same principle that their successors are now declaring to be unacceptable.
  - 8
    
    John Hartigan on June 23, 2018 at 11:27 am
    
    Thank you, but the timing point remains unanswered. In 1993 Parliament debated a “meaningful vote” after the negotiations, not before. Major did not negotiate the Maastricht treaty with Parliament already having debated these points; he negotiated as he saw fit and, quite rightly, Parliament debated afterwards whether they approved or not. The position now is quite different. Parliament is debating in advance of the negotiations and therefore fundamentally affecting the Government’s negotiating position. Whether this is right or wrong is for debate, but Maastricht does not quite provide the precedent as suggested. More widely, the increasing claims of Parliament on its role are largely ignored by commentators yet represent a profound, and perhaps unwelcome, shift in how our democracy functions.
9

Andrew David Thorburn on June 19, 2018 at 10:13 am
Reply

“Mr Jacob Rees-Mogg MP has based his opposition to a “meaningful vote” amendment on the principle of the separation of powers; he stated in this morning’s Times that the House of Commons “is not and cannot be an executive body”. Likewise, Mr David Davis stated in the debate on Tuesday, in relation to Dominic Grieve’s amendment:

What it amounts to is an unconstitutional shift that risks undermining our negotiations with the European Union. It enables Parliament to dictate to the Government their course of action in international negotiations.”

We all know it cannot be the Executive, but the BREXIT negotiations bring into play fundamental questions regarding how we see our Constitution. The only body who can comment, in a meaningful way, is Parliament. The Executive is in place because of Parliament, like all power you have to know it’s source and when it can become unstable. From my understanding of how things should operate it does not amount to an unconstitutional shift. Sovereignty was shared with the EU, a new legal order was created, and it is not just a standard action in international negotiations.

ADT 10:09 19/06/18 In Wattstown, Rhondda.