The authoritative source for independent research on UK-EU relations

25 Jan 2021


Politics and Society

Brexit and Covid-19 have thrown a giant stone into the relatively sedate waters of Government and the law in the UK.

If ‘taking back control’ was the mantra that won the referendum, and taking the UK beyond the jurisdiction of the European Court of Justice (ECJ) was one of the Government’s reddest lines in the exit negotiations, this is where we might expect to see really significant planned changes.

The impact of the last five years and what that means for how we are governed in the future is the question addressed in the Government and Law section of UKICE’s new Beyond Brexit report.

Joe Tomlinson argues that the referendum saw ‘constitutional hardball in action’ as ‘many political actors came to think that their cause was so important that any lawful action was justified’.

In fact, as he notes, the Government was deemed by the Supreme Court to have gone beyond that boundary when it deemed the September 2019 prorogation of Parliament as unlawful.

Other norms have been violated – from the threat to break international law in the original version of the Internal Market Bill, to Westminster legislating without consent from the devolved Governments, breaching the Sewel Convention.

Moreover the Conservative manifesto promised to review the way aspects of the constitution and judicial review is itself are working.

Freed of (much of) the jurisdiction of the ECJ, the Government looks set too on reducing the scope for the British courts to limit its freedom of action.

How far the UK has really released itself from the oversight of the ECJ is explored by Catherine Barnard: up to a point, as the ECJ will still have some sway in Northern Ireland, protecting EU citizens’ rights under the Withdrawal Agreement and if the UK decides to participate in the Horizon Europe programme.

But it is the role of the UK courts in the Brexit process – not least in the cases where it ruled against the Government and in favour of ensuring Parliament had a voice – which has given more urgency to the review mentioned above.

Catherine notes that the head of that review, Lord Foulkes, was a prominent critic of the Supreme Court’s judgment in the Cherry/Miller challenge to prorogation.

But there is no quiet life ahead for the courts – they will have to apply the rushed and under-scrutinised Trade and Cooperation Agreement, now incorporated into UK law but also play an increasing role in disputes over the meaning of the UK internal market.

Also potentially in the Government’s line of fire is the Human Rights Act. As Conor Gearty sets out, this has been the subject of long-term sniping from successive Conservative Governments.

But there are reasons why a government might look to take back control from Strasbourg – not least the implications for relations with Scotland and the Good Friday Agreement.

Gearty argues that the British courts may interpret their role as acting as the ultimate protector of human rights and curtail the scope for government action. He also thinks the Human Rights Act will survive to the next election and beyond.

The rushed legislation to get the Brexit deal done inevitably meant huge reliance on delegated legislation and so-called Henry VIII powers, which allow ministers  to amend primary legislation through regulations.

Both Alison Young and Ruth Fox, and Brigid Fowler, raise warning signals about how the sheer scale and then speed of the Brexit task has led to a massive shift of power over legislation from Parliament to the executive.

Fox and Fowler note that by the end of 2020, 960 Brexit related statutory instruments had been laid under the Brexit legislation – with far more to come as the Government implements the future relationship agreement.

So will Parliament reassert its sovereignty in the years to come?

Fox and Fowler note little appetite for reform from Government but speculate on whether the increasing unrest from Conservative backbenchers over the way in which the government has used delegated legislation to implement coronavirus restrictions may increase the appetite for reform – though there is ‘little sign yet of the necessary coalition of MPs willing to devote significant political capital to a thoroughgoing reform of the delegated legislation system’.

Young suggests that this may be another issue where the courts ultimately decide : ‘If Henry VIII powers are used to undermine key principles of the constitution, or make sweeping constitutional changes, courts are likely to quash them, being beyond the scope of the minister’s powers’.

What of Government itself? Nicholas Allen points out that the norms of Cabinet Government and collective responsibility buckled as ‘collegiality was more honoured in the breach than the observance’.

Will getting Brexit done mean a reversion to normal? Allen thinks Johnson’s personal style means that he is unlikely to be keen to use Cabinet as a key decision-making forum and that the ultimate problem he faces is the breakdown in internal party discipline evident in the growing willingness of the backbenches to organise.

Those Cabinet divisions made Brexit hard to handle for a civil service whose intentions were always suspect to many Brexit supporters.

The civil service has managed Brexit – but weaknesses have been exposed in the handling of the pandemic.

The Government has created an atmosphere which suggests it has little understanding or sympathy for core civil service values and is willing to launch personal attacks on individual civil servants.

The big task now facing the new Cabinet secretary is to show that the civil service is both capable of helping ministers deliver, while showing the civil service he will stand up to ministers and protect the integrity of the organisation he leads.

Brexit has meant a reversal of the cuts in the civil service seen since 2010 – it has also reversed the ‘bonfire of the quangos’.

Taking back control to the UK now means handing power to existing and new public bodies, as Felicity Matthews points out.

So far four new public bodies have been created as a direct consequence of Brexit; other public bodies are to get more powers.

Even so, there are questions over this new landscape – not least whether these bodies will have the resources they need and whether bodies set up in UK legislation will be able to act with the necessary independence to guarantee credible oversight.

Brexit has put the UK’s constitution under unprecedented pressure. The next few years will show whether a done Brexit allows it to revert back to normal or whether there has been a permanent shift in the underlying relationships.

By Jill Rutter, senior research fellow at the UK in a Changing Europe. You can read our report ‘Brexit and Beyond’ here.


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