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Treaties, Brexit and the Constitution Proceedings TREATIES, BREXIT AND THE CONSTITUTION PROCEEDINGS JESUS COLLEGE, OXFORD 23 MARCH 2018 TREATIES, BREXIT AND THE CONSTITUTION Table of Contents INTRODUCTION ........................................................................................................................... 3 PANEL ONE – Parliamentary Sovereignty and the Implications of Miller ..................................... 6 1. Nick Barber (NB) ............................................................................................................................. 6 2. Gerry Facenna (GF) ......................................................................................................................... 7 3. Alison Young (AY) ........................................................................................................................... 8 4. Martin Chamberlain (MC) ............................................................................................................ 10 5. Discussion 1 .................................................................................................................................. 12 PANEL TWO: Parliament’s Role in Negotiating, Concluding and Implementing Treaty Obligations and the Constitutional Reform and Governance Act 2010 ........................................................ 14 6. Jill Barrett (JB) ............................................................................................................................... 14 7. Sylvia de Mars (SdM) .................................................................................................................... 17 8. Brigid Fowler (BF) ......................................................................................................................... 18 9. Discussion 2 .................................................................................................................................. 20 PANEL THREE - Constitutional Treaties, the Devolution Settlement and the British–Irish Agreement 1998 ....................................................................................................................... 22 10. Colin Murray (CM) ................................................................................................................... 22 11. Graeme Cowie (GC) .................................................................................................................. 26 12. Ewan Smith (ES) ....................................................................................................................... 30 13. Discussion 3.............................................................................................................................. 31 PANEL 4: International Perspectives ......................................................................................... 36 14. Joanna Harrington (JH) ............................................................................................................ 36 15. Mario Mendez (MM) ............................................................................................................... 42 16. Ruth Houghton (RH) ................................................................................................................. 44 17. Discussion 4.............................................................................................................................. 45 PANEL FIVE: Overview and Conclusions .................................................................................... 49 18. Frank Berman (FB) ................................................................................................................... 49 19. Helen Mountfield (HM) ............................................................................................................ 51 20. Murray Hunt (MH) ................................................................................................................... 52 21. Discussion 5.............................................................................................................................. 54 2 TREATIES, BREXIT AND THE CONSTITUTION INTRODUCTION Brexit is a treaty problem. Britain will withdraw from one body of treaties and, it hopes, conclude new ones. How should Parliament be involved in this? Brexit is intended to give British lawmakers a greater measure of control over laws and policies which are currently set by the European Union. Issues such as agriculture, fisheries and trade are currently closely regulated by the European Union, whose laws have direct effect in Britain. After Brexit, the UK will take direct responsibility for these competences. Instead of relying on EU processes to settle differences with foreign countries, the UK government will need to negotiate afresh, not only with EU countries but with all states that deal with Britain through the EU. In short, Brexit turns matters of domestic law into matters of foreign policy. Outside the EU, foreign policy problems like trade and fisheries are usually resolved by concluding treaties. Issues like these are politically controversial and many people are uncomfortable about the way in which they are settled in international fora, at considerable remove from people who are affected by them. One reason for Brexit was the idea that issues like these ought to be decided in a more democratically accountable way. However, the simple idea that people will have “control" over issues like fisheries or immigration is an illusion. It takes two to conclude a treaty, and we will need to share control with would-be partners. Governments face challenges in persuading the public that compromise is needed to achieve foreign policy goals. If people are not satisfied by the compromises embodied in the Treaty of the EU, then there is little reason to suppose that they will be satisfied by the presence of chlorinated chicken in supermarkets, or the need to grant freer movement in return for market access. And unless the government can convince other states that it can translate international obligations into domestic law, it will find it harder to persuade them to conclude treaties. Brexit will put pressure on Britain’s system for negotiation, conclusion and incorporation of treaties. Britain has a dualist system, which means, in general, treaty obligations do not take effect in British law until Parliament makes law to implement them. This is an ancient system, and perhaps, an antiquated one. The paradox is that it assumes and perhaps even requires no parliamentary involvement in treaty negotiation or approval, so Parliament is left with decisions only on the ‘how’, not the ‘why’ or the ‘what’, of treaty obligations. This is hard to reconcile with the reality of modern treaties, which often impose obligations on, and create rights for individuals and businesses, and embody important policy choices. Certainly, few countries now take a purely dualist approach, and most allow their parliaments some say in what new international obligations they take on. The new statutory treaty procedures in the Constitutional Reform and Governance Act 2010 take only minimal steps in this direction, and Parliament has never used its new powers. 3 TREATIES, BREXIT AND THE CONSTITUTION Britain’s membership of the European Union relieved pressure on the system by making the EU competent to legislate in some controversial areas. Foreign policy problems like trade and fisheries were more likely to be solved by EU regulation or agreement than by British treaties. These solutions were scrutinised not only by national parliaments but also increasingly by the European Parliament, which carved out a significant and assertive role in approving – and therefore shaping – treaties with third countries. The politics of the Brexit negotiations have strengthened the case for the UK Parliament to have the same access to information about treaty negotiations that the European Parliament enjoys, and a vote to approve the final deal. Since the UK joined the EU, it has made significant changes to its constitution. In 1972 the UK was a unitary state and fisheries, for example, were the responsibility of the Minister of Agriculture, Fisheries and Food in London. Today, issues like agriculture and fisheries are divided between London, Cardiff, Belfast and Edinburgh. In order to negotiate treaties in these areas, the government in Whitehall will either need to secure the consent of the devolved governments, or to amend the devolution settlement. Neither option is straightforward in the current political climate, and rapprochement seems unlikely in the foreseeable future. Even less clear is the involvement of the devolved legislatures in this process. These are issues of fundamental constitution concern. The debate that led to Brexit was, in part, a debate about how international obligations become British law. Brexit will change the way we answered that question for forty years. The answer was contained in series of treaties, which did not merely provide for agricultural cooperation, but also for fundamental human rights and freedoms. Since the very beginning of the United Kingdom, constitutional questions have been embodied in treaties. The Treaty of Union 1707 shaped, and still shapes, the relationship between Scotland, England and Britain. Our modern Bill of Rights is a partial incorporation of the European Convention on Human Rights 1950.The civil war in Northern Ireland was settled by the British-Irish Agreement 1998. Each of these treaties is a source of constitutional rights. One implication
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