Supreme Court’s former president says parliament will be supreme ‘in name only’
Lord Neuberger, former Supreme Court president, sounded a constitutional warning bell when he said that the European Union (Withdrawal) Bill, the principle of which is to “restore parliamentary sovereignty”, will actually hand a lot of power to ministers and (perhaps more importantly for his successors at the Supreme Court) to judges.
Speaking at a conference organised by the City of London Corporation in the Guildhall yesterday, Neuberger argued that the draft of the bill would “weaken parliament not strengthen it” and the legislature would be supreme “in name only”.
He said that the bill, which was debated in parliament this week, gives:
“[A]n extraordinary degree of rule-making powers to ministers rather than parliament to make and shape legislation.”
Neuberger also warned that clause 6 of the bill, the clause which concerns the interpretation of all the EU law which will be retained by the UK after “exit day”, will, in effect, mean that it will be judges not parliament examining a whole range of issues. These issues are, in fact, “policy issues for parliament”.
He said the bill was part of a trend, started in the 1970s, of UK judges being forced to engage in what are essentially policy issues such as devolution, human rights, data protection and national security. Neuberger added: “I am not saying it is a good thing or a bad thing” but with this latest and fundamentally important bill, judges will be “pushed back into the limelight”.
Sponsored by global titan DLA Piper, the conference’s audience of lawyers and bankers also heard from Professor Vernon Bogdanor, author of The New British Constitution, and former libel lawyer and one-time solicitor general Sir Edward Garnier QC.
In his talk, Bogdanor argued that the bill was “unprecedented in the history of the world” in moving the UK to an “unprotected constitutional order”, and predicted that this lack of protection will lead to a written “constitutional settlement” in the UK.
The bill, which as we all know repeals the European Communities Act 1972, is actually quite short: it is 62 pages long and made up of only 19 clauses and nine schedules. In those few clauses it attempts to transfer all EU law into UK law by 30 March 2019 (Garnier said it should have been called “the Great Cut and Paste Bill”). Interestingly, one whole clause in schedule 1 is devoted to the law textbook-favourite Francovich case.
The City of London Corporation, which is headquartered in the 800-year-old Guildhall building, is working with the House of Commons Justice Committee on what it calls “pragmatic amendments” to the bill, such as seeking to provide clarity on its effect on legal contracts.
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