The European Union (Withdrawal) Act 2018 is now law. The only form of withdrawal to which it gives legal authority is one with no deal on 29th March 2019. No other way forward (including stopping the exit process) is legally or practically possible without both the agreement of the European Union and further proceedings in parliament.
One element of this is that the 2018 Act prevents the ratification of any withdrawal agreement unless there has also been political agreement in principle on “the substance of the framework for the future relationship,” and it has been approved in parliament. The Chequers White Paper sets out the government’s proposals for this, but they have not been well received either by the EU or at home.
The EU has indicated that further concessions will be required. Yet in the UK, there appears to be a significant consensus that the proposals already concede too much: particularly in the direction of allowing the UK to become “a rule-taker” with insufficient influence over the content of the rules.
The aspect of the Chequers proposals that has attracted most criticism along those lines is the concept of a “common rule book” for goods. This has been understood to mean that the UK must accept existing EU rules on goods forever, together with a further permanent obligation to accept any changes unilaterally decided on by the EU in the future.
A close reading of Chapter 4 of the White Paper, however, reveals that to be a misleading oversimplification. Chapter 4 proposes institutional arrangements for the new relationship between the EU and the UK. These include a joint body, comprising representatives from both the EU and the UK. That body would adjudicate, amongst other things, on disputes between the UK and the EU about proposed changes to the “common rule book,” including, seemingly, changes proposed by the UK.
It is also proposed that an “equivalence” principle should be part of the process, making it possible for the “common rule book” to allow the same ends to be achieved, in the EU and in the UK, by different means. In the absence of agreement on a proposed change, parts of the common rule book could be suspended; and it is assumed that there would also have to be a mechanism enabling the UK, if it chose to do so, to terminate the whole agreement requiring compliance with the “common rule book.”
“A bad argument has been advanced as the government’s principal or only defence”The proposed institutional arrangements form only part of a framework and are for further negotiation. They are not filled out in detail. There may be room for argument about their likely application and effectiveness for protecting UK autonomy in practice. Also, there can be no certainty at all about whether the EU would agree to a version of them that would be acceptable to the UK parliament—even though they do draw on precedents in the EEA arrangements. Nevertheless, as they stand, they do seem to provide a sound basis for asserting that the government is not, after all, conceding “vassalage” to the EU from the start.
Surprisingly, that is not how the criticism of the “common rule book” has been countered. Much less persuasive arguments have been used.
Every lawyer is familiar with the temptation to bolster a good argument with a few not so good ones, although giving in to the temptation is always risky, not least because it suggests a lack of confidence, and therefore a weakness, in the good argument.
This is worse than that. A bad argument has been advanced as the government’s principal or only defence. It is an argument to be found in the White Paper; and it was given prominence both in the initial statement after the Chequers meeting and in the prime minister’s reply to David Davis’s resignation letter.
What is claimed is that, at the point where the UK’s international obligations require it to implement a change to the “common rule book,” parliament would still be free—if it were prepared to accept the consequences—to put the UK in breach of its international obligations by refusing to do so. This claim is true only in theory and is of questionable propriety.
It describes a situation that is indistinguishable from our situation as a member of the EU. During our membership parliament has always had the theoretical capacity to reject changes to EU law wherever UK legislation was needed to implement them, and it has had many thousands of opportunities to do so. However, in a democratic country that accepts the rule of law, neither government nor parliament should—or would—make a deliberate decision to break the UK’s legal obligations as the result of a simple, commercial calculation that it would be better to suffer the consequences of doing so than to comply.
“The emphasis is on a formal and exclusively theoretical aspect of parliamentary sovereignty”The UK government and parliament have always accepted the need, so long as the UK remained a member of the EU, to implement the obligations that membership imposed. Scrutiny has been confined to considering the means of implementation but accepting that there must be an implementation. The same would continue to apply to any other international obligation of the UK.
The proposals in Chapter 4 of the White Paper about the arrangements for changing the “common rule book” (see, in particular, para. 30) are much more significant than parliament’s, for all practical purposes, meaningless capacity to defy international law. What is needed, and is actually proposed, are mechanisms that would enable a UK government to avoid becoming subject to implementation obligations in the first place. Parliamentary sovereignty would be preserved because any decision on whether or how to use the mechanisms, would be subject, as UK government decisions always are, to parliamentary scrutiny and accountability.
Existing UK constitutional arrangements are very effective—referendums apart—for securing that UK governments do whatever is needed to avoid commitments that are unacceptable to parliament. That would apply to proposed changes to the “common rule book” irrespective of any theoretical power for parliament subsequently to refuse to implement them.
What is most worrying about the debate around the Chequers proposals is the way in which the government has put so much emphasis on a formal and exclusively theoretical aspect of parliamentary sovereignty.
The concern must be that this is the matter against which the government will measure its success in future negotiations. It would be a mistake, though, if that resulted in concessions on the more substantive proposals on institutional arrangements. Those do seem capable of being developed into something providing real and valuable protection for UK autonomy. If properly explained, they could also make the Chequers proposals on the “common rule book” for goods more acceptable in the country and so to parliament.
Stephen Laws was First Parliamentary Counsel from 2006-12. He writes on constitutional and legal matters
