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Politician says parliament to be kept in dark about EU negotiations, lawyers not very happy about it

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Basic principle of parliamentary sovereignty may be under threat from Brexit “farce”

parliament

Lawyers have clubbed together for a shared social media moan this week, slamming David Davis’ position on parliament’s involvement in Brexit negotiations.

Davis, the man in charge of the government’s new Brexit department (full name: Department for Exiting the European Union), reportedly told a House of Lords select committee on Monday that negotiation details will be kept secret from parliamentarians. He said:

Before Article 50 is triggered will be a rather frustrating time because we won’t be saying a lot. We’ll be saying a bit, laying out guidelines, but as the Prime Minister has said we won’t give a running commentary on it because that would just undermine our negotiating stance from the beginning.

He also said:

I can entirely see accountability after the event, that’s very clear. In advance, I don’t think it’s possible for parliamentarians to micro-manage the process and wouldn’t give us an optimum outcome for the country.

Moments after Davis made his controversial comments, lawyers were out in force on social media making their opinions known. Leading the way was media lawyer David Allen Green:

The main concern is that, by advocating a Brexit negotiation that doesn’t involve parliament, the government will be undermining the basic principle of parliamentary sovereignty.

A staple in first year law student syllabuses, this constitutional principle states parliament is the supreme law-making authority in the country; no other source can amend or overrule a law that parliament has passed.

Throughout the EU referendum campaign, Boris Johnson and co appealed to parliamentary sovereignty in an attempt to win votes, claiming the United Kingdom’s membership of the EU eroded the principle. So, to Green and other social media commenters — like Colm O’Cinneide, UCL professor of human rights, and Durham Law School lecturer Alan Greene — Davis’ latest announcement is more than a little ironic.

24 Comments

Interloper

This is the problem isn’t it – to ignorant dickwads like Boris, Davis et al, PS means “the party elected into power within Parliament… we’ve been voted in, ergo we can do what we like…”.

“Separation of powers. Bah, what a ridiculous idea…..”

*sigh*

(5)(4)

Anonymous

All parties act like this. Not just the Tories

(2)(0)

Interloper

Not disputing that. Still doesn’t necessarily make it right.

That said, the current incumbents stretch their bounds to a point that verges on the unpalatable (as did Blair)..

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Not Amused

I am a barrister and I am very happy with this.

Please stop using generic phrases and thereby wrongly stating we all agree with a few narcissists on twitter.

(9)(10)

Not Amused

I should add that even while being very old, I can’t remember Parliament ever negotiating any international treaty.

I do not recall Parliament negotiating a trade treaty.
I do not recall Parliament negotiating a peace treaty.
I do not recall Parliament negotiating an international law treaty.
I do not recall Parliament negotiating a treaty regarding fishing rights.

If Mr Allen Green can recall these events, then I look forward to being told the details. How, for example, was the negotiating team comprised? Was it a small team made up proportionately of MPs from each party? Or did all 650 members go along and sit in the room with the foreign diplomat?

Are there other activities which Mr Allen Green thinks Parliament should now do as a collective body? I understand certain junior ministers make laws via delegated legislation dealing with the specifics of fishing. Perhaps all 650 members could now more actively participate?

Has it not occurred the Remainers that the country can see the Emperor is in fact naked? The past 20 years has been characterised by a high level of disingenuity (at best) in politics. I shall not miss it, but the old proponents should come to realise that they will need new tricks if they are to subvert the will of the people – even Sir Humphrey would innovate from time to time.

(12)(3)

Interloper

In counter to your sneering riposte, the term “supremacy of parliament” was banded around countless times during the (supposed) campaign by Leave. Didn’t hear you complaining then like..

And for the record, I personally like DAG’s commentary on most matters – makes a lot of sense to me personally, for the most part..

(3)(3)

Not Amused

The Supremacy of Parliament includes delegating tasks to the Government and the Separation of Powers.

Clearly the time young people have wasted learning EU law can now be better spent learning about the constitution.

(9)(5)

Anonymous

Clearly you haven’t learned a thing about constitutional law. Show me where Parliament delegated any power to the Government to negotiate Brexit terms. I’ll take section and subsection, please.

Condescending little prick.

(1)(1)

Boh Dear

I agree. Though, it was an error by Davis/Brexiters in the first place saying ‘Parliament’ rather than ‘government’, probably because it makes a better soundbite. The negotiating of treaties and international agreements is an executive function. Parliament will get its say on any legislation that is required as part of the Brexit process e.g. repeal of ECA 1972, but otherwise this is the government’s business.

(4)(0)

Anonymous

Not Amused, that is a very good point. Do you have a girlfriend? Would you like one?

(7)(0)

David Allen Green

That is not the view I was seeking to convey, and my tweets clearly state “supervision”. That is the role of parliament.

Why the long-winded attack?

(1)(1)

Anonymous

This post has been removed because it breached Legal Cheek’s comments policy.

(4)(0)

Anonymous

Oh, what a surprise, David Allen Green immediately took to Twitter to whore out his opinions to all and sundry. I wonder if that man has ever had a single thought that he didn’t instantaneously verbalise.

(3)(5)

David Allen Green

How is “taking” to Twitter “whoring” out opinions?

Nobody pays for opinions on Twitter.

I tweeted something which I saw was of interest, as many do.

Others leave comments on LC.

Neither way is good or bad, so why the personal abuse?

(10)(0)

Anonymous

I’m a Lawyer on twitter and I have no problem with this.

The government is about to negotiate with the EU. Did anyone who wasn’t a moron seriously expect a briefing note, in advance, of what they want, what they will compromise on, and what the red lines are?

Have the EU provided this to us? Does anyone who isn’t a moron seriously expect them to?

This whole thing sounds like remainers whining about nothing.

(8)(0)

Boring Johnson

This is about to turn into the most boring discussion in the world – no one knows what Brexit is, no one will have many clues for at least a couple of years, no one will know the impact for at least ten years…

(3)(0)

Anonymous

“The plain truth is that as a matter of law Parliament is the sovereign power in the state … It is however equally true that in a political sense the electors are the most important part of, ​we may even say are actually, the sovereign power, since their will is under the present constitution sure to obtain ultimate obedience. Parliament can hardly in the long run differ from the wishes of the English people, or at any rate the electors. That which the majority of the House of Commons command the majority of the English people usually desire.” – Dicey, the Law of the Constitution

(0)(0)

Interloper

“AV Dicey is soooo generic” – Not Amused (probably)

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Not Amused

I like Dicey.

I just David Allen Green didn’t see himself as his superior …

(3)(1)

David Allen Green

I don’t.

I disagree with Dicey, but I recognise he is the greatest constitutional scholar this country has produced.

Why the personal abuse?

(4)(0)

Anonymous

This post has been removed because it breached Legal Cheek’s comments policy.

(2)(0)

David Allen Green

This is a message for “Not Amused” and “Anonymous” as I have no other way of contacting you.

I don’t know who you are. You exercise your right to have your identity kept from view.

It is not pleasant to be personally attacked. That is perhaps why you chose to shield your identities. The personal attacks are (and perhaps intended to be) upsetting. I had no idea my tweets were going to be used in this way for this piece (and did not seek for them to be so used), and I did not know about these personal attacks until sometimes after they were posted.

I do my best to explain the law and legal issues on social media, because I think it is a good thing for lawyers to do.

Please feel free to attack my work (and I will defend or qualify what I say accordingly). but please be fair.

(9)(0)

Anonymous

Let’s go and cry about it.

(0)(3)

Anonymous

To be fair this is just continued fallout from the referendum.

It was around a 52-48 split on the vote and it’s the 48% who seem to be the most aggrieved about how the mechanics of the change is carried out. The 52% couldn’t care less.

I say this as a “Remainer” by the way.

(2)(0)

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