Why Britain should allow the UK and EU Parliaments to talk after Brexit
Dr Davor Jancic from Queen Mary University of London's School of Law has written an opinion piece for the LSE Brexit Blog. He argues that the UK government's refusal to agree to cooperate with the EU parliament is not just misguided but antaognistic.
One of the surprising outcomes of the third round of UK-EU negotiations on a future relationship is the UK’s refusal to agree to post-Brexit inter-parliamentary cooperation. This can be explained in terms of sovereignty, diplomacy and the rule of law. But the government’s approach reflects an authority-asserting ethos, and is as flawed as it is troubling.
Here is why. First, if the intention is to shield new-found sovereignty against EU influence in an infelicitous crusade to take back control, that is unconvincing. It flouts the objectives agreed in both versions of the Political Declaration, which encourages the establishment of a dialogue between the UK Parliament and the European Parliament (EP) enabling them to share views and expertise where they see fit. It also goes against the preferences of these parliaments. In a resolution adopted in February 2020, the EP called for the setting up of a joint parliamentary body whose job would be to monitor the implementation of the future relationship agreement.
The value of parliamentary diplomacy
The value of parliamentary diplomacy after Brexit has been recognised in Westminster on multiple occasions too. In March 2019, for instance, the House of Lords argued in favour of establishing a UK-EU Joint Parliamentary Committee even before the conclusion of negotiations. From a broader perspective, these proposals follow the pattern of most international parliamentary institutions that currently operate around the world at both bilateral and multilateral levels. As one recent study shows, with few exceptions, they serve as deliberative forums rather than decision-making arenas.
Any Euro-British parliamentary body would only have a consultative role. It would not have the power to adopt legally binding acts or be subject to the jurisdiction of the Court of Justice of the European Union.
Second, if the rejection of inter-parliamentary institutionalisation is merely a negotiating tactic within a wider diplomatic strategy, this, although conceivable, is also unpersuasive. This is not a contentious area of future UK-EU governance and certainly not one where antagonism is helpful. Instead of demonstrating good will, an unnecessarily adversarial approach risks further chipping away whatever trust remains between the two sides.
Not only is this a poor decision at a crucial time, it is one that sends the wrong signal to Britain’s partners abroad. The unwillingness to formalise a legislative dialogue with one of the world’s most influential polities and one with which the UK’s legal system is so highly intertwined, conflicts with the logic of a Global Britain eager to rekindle global connections. What should Singapore, Canada or Japan think of the British commitment to internationalism and democracy if the expansion of lawmakers’ networks is not welcomed?
Even worse, brushing legislators’ transnational role aside is, inadvertently, quite un-British because it collides with Westminster’s long-standing but little known tradition of openness to global governance. In fact, the ‘first father’ who initiated the founding back in 1889 of the oldest international parliamentary institution in the world, the Inter-Parliamentary Union (IPU), was a British Labour MP and Nobel Peace Prize laureate, William Randal Cremer. Both Houses of Parliament have since then actively and fruitfully engaged within the IPU. It is this spirit of good neighbourliness and good global citizenship that should be a model for post-Brexit UK.
If the government’s view is that parliamentarians can always talk informally, this is unsatisfactory because institutionalised forms of cooperation provide structure, regularity, visibility and a sense of trust-building, which uncoordinated ad hoc contacts do not.
Third, the government is unwilling to share the foreign affairs powers it enjoys under the royal prerogative, even when it comes to benevolent but otherwise democratically beneficial inter-parliamentary collaboration. The UK’s official approach to future relationship negotiations deceptively evokes a sense of constitutional togetherness where it states that international relations remain ‘the responsibility of the UK Government and the UK Parliament’.
Yet the logic of clear separation between Whitehall’s and Westminster’s spheres of influence is inherent in Brexit-related legislation. Encouraged by his landslide victory in the 2019 general election, Boris Johnson repealed the MPs’ rights under the European Union (Withdrawal) Act 2018 which would have empowered them to approve the framework for the future UK-EU relationship. Similarly, had the initial European Union (Withdrawal Agreement) Bill succeeded, MPs would also have gained the right to approve the objectives for the future relationship. On the contrary, the government now has a largely free hand to negotiate with the EU. Apart from parliamentary debates during the transition period, Westminster remains within the confines of the negative resolution process, which originates from a nearly 100-year old Ponsonby rule, now codified in the Constitutional Reform and Governance Act 2010.
This may be a discomfortingly literal exercise of the constitutional principle requiring the government to command rather than earn the support of the majority in the House of Commons, but Brexit is not only a crisis. It represents an opportunity to rethink Parliament’s rights of participation in international affairs, including treaty-making and parliamentary diplomacy. These developments are concerning in light of the rule of law because they hamper participation, transparency and oversight. Given the magnitude of Brexit’s economic and constitutional consequences for the UK, this is democratically unsound.
Finally, the standoffish attitude ignores the many benefits of formal inter-parliamentary relations. In Brexit negotiations, the EP has risen to the status of a ‘quasi-negotiator’ owing to its resolutions and impact-oriented institutional structures such as its steering group and Brexit coordinator. Beyond this, the EP has become an important veto player in EU foreign relations, one that all major global powers, such as the US and China, try to build stronger ties with. This is not just for reasons of friendship and socialisation.
Transnational legislative forums and networks are invaluable sources of information and act as vehicles for policy debates and norm promotion. As such, they can have positive effects. The dialogues they generate enrich domestic political discussions and can help to prevent frictions, reduce tensions and iron out misunderstandings.
Significantly, this would ensure that after Brexit the voice of the people, acting through their elected representatives, is heard in Brussels. This would in turn give the UK a periodic insight into EU affairs as well as a degree of indirect influence. This can then better equip MPs and peers for the exercise of democratic control back in the Palace of Westminster.
For a political party whose previous government was found in contempt of parliament, more transparency – not less – should be a priority, and legislative dialogues foster this. All of these reasons demonstrate why the Prime Minister should change course and embrace formal parliamentary liaison as a vital component of the future UK-EU relations.
This opinion piece by Dr Davor Jancic was originally published in the LSE Brexit Blog on 20 May 2020.
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