Accountability and Transparency of the Executive & Brexit under UK and EU Law
By Dr Marios Costa and Dr Elaine Fahey, Institute for the Study of European Law, The City Law School
On the 3rd of November 2016, the English High Court in London delivered one of the most important constitutional rulings ever, currently under appeal. The now rapidly well-known Miller case relates to a legal challenge brought by Gina Miller and Deir Tozetti Dos Santos against the Secretary of State for Exiting the European Union (EU), mainly on the ground that should the Government wish to initiate the exit process from the EU, it needed to have Parliament’s approval.
In this regard, the Miller decision clarifies a fundamental aspect in relation to the due process that needs to be followed to ‘divorce’ from the EU. Following from that, as Ms Miller argued, and the High Court agreed, the process to withdraw requires an Act of Parliament since it will involve an unprecedented change in the legal status of many citizens. In the wording of the judiciary: ‘the Secretary of State does not have the power under the Crown’s prerogative to give notice pursuant to Article 50 of the TEU for the United Kingdom to withdraw from the European Union.’ [Para. 111].
Accountability and transparency of the UK Executive power
The litigation is not over. It has just witnessed the devolved administrations arguing for new forms of accountability, information and interactions with Westminster. One constant remains. The Prime Minister has repeatedly stated that she would not provide a ‘running commentary’ on the negotiations and reveal the Government’s hand to the dismay of many Members of Parliament (MPs), ordinary citizens and businesses. In the midst of the litigation, the Prime Minister has nonetheless given Parliament a vote on the Brexit timetable, in order to keep pro-Remain MPs on a proverbial ‘leash’.
On 7 December, a majority of MPs backed the Government timetable for the Brexit talks. But it was only after the Prime Minister’s agreement to allow MPs vote on a final deal and obtain the Government strategy. The motion was notably not from the Government, but from the opposition.
This commentary focuses upon the issue of accountability and transparency of the UK Executive power underpinning the judgment and on their particular developments. In terms of accountability, the implications of Miller upon the Executive are yet to be understood. We argue that it is necessary that Parliament fulfils its underlying obligation to hold the Executive accountable throughout the exit process, as required under many EU and transnational models of governance (Costa, 2016).
We state that this needs to be done through the highest possible level of transparency, not least in the age of Twitter, WikiLeaks etc. Miller is only a limited dimension of the broader democratic principles at play in Brexit. We further argue that Miller or no Miller, ironically the UK Parliament will arguably exercise significantly fewer accountability powers and have lesser transparency rights than comparable Members of the European Parliament (MEPs). We ask, thus how should we understand accountability, transparency and principles of good administration under UK and EU law?
Accountability and Brexit
Firstly, what does accountability mean under UK law and how accountable the divorce process from the EU should be? These questions are closely linked to the main argument of the Brexit campaign to ‘take back control’ and in consequence to regain sovereignty. But nevertheless, a further question that arises here is whose sovereignty are the UK citizens going to ‘get back’ from Europe? The Government sought to “[…] invoke Article Fifty [TEU] no later than the end of March next year” (Conservative Party conference, 2016) and to negotiate the UK/EU International Treaty behind closed doors under the so called ‘Royal Prerogative’ powers.
We thus argue that there is an obligation on Parliament to monitor and control the negotiation process as a matter of accountability. UK Constitutional law provides for the Executive to negotiate and sign international agreements of this kind. Doing so requires that Parliament exercises a democratic check upon the actions of the Executive to ensure that the terms on which political power is exercised do not enjoy unlimited discretionary power.
Similarly, the Executive is under an obligation to explain and justify its actions before Parliament. There is a strong need for the public, no more so than at present, to know how the negotiation process unfolds and to receive assurances that their fundamental rights are duly taken into account. The Executive has the right to negotiate the future relationship with the EU. Parliament therefore needs to ensure that the Government is as transparent as possible. This is the only way to hold the Executive accountable and in consequence for the legislature to fulfil its underlying constitutional duty. After all, without maximum access to Government information on how the Brexit decisions are being taken there is no effective way to monitor the exercise of the Government’s power and hold it accountable.
Six months after the UK referendum we still know nothing about the plans of the Executive. Yet, the Prime Minister confirmed, rather ironically, that ‘Brexit means Brexit’ and as of 7 December, that Brexit means a ‘Red, White and Blue’ Brexit. This leads to the question of transparency throughout the Brexit process.
Transparency and Brexit
The UK Government has thus made much of its attempt to avoid a ‘running commentary’ on Brexit, in the words of the Prime Minister so as to shroud its negotiating stance and position in secrecy. This raises the question as to the information rights of Parliament. But ironically it raises the information rights of not just the UK Parliament but also another Parliament involved in the Article 50 TEU process, the European Parliament (EP).
We argue that when Article 50 TEU is triggered, irrespective of the outcome of the Miller decision in the UK Supreme Court, the EP and not Westminster will arguably have significantly superior rights to the UK Parliament for the entire duration of the process, Miller or no Miller. It is a great irony indeed and one that mocks much of the substance of taking back control as the mantra for the Brexit process in the first place. It is worth recalling that the EP has robust information rights on EU international agreements in primary and secondary law (but chiefly Article 218 TFEU).
The EP has struck down agreements for the lack of information and has also successfully litigated to enforce these rights where it has not been given sufficient information, e.g. where laws were published without informing them. The EP has forced the Commission successfully to reveal the Transatlantic Trade and Investment Partnership (TTIIP) negotiation mandate. As a result, reading rooms have been set up to allow Members of the European Parliament (MEPs) read negotiating texts and they are not permitted to bring in their mobile phones into the rooms- a general state of affairs that they are not happy with. It has not stopped there. The EU Ombudsman is actively developing transparency arrangements and pushing for greater openness in international negotiations, for example, in the TTIP negotiations, such that the negotiations were eventually all videoed/ tweeted and all negotiation texts published online.
It is not a foreign development we are noting. There is a massive significance for all of this for the UK observer now. There is now a proposal to give the UK Parliament a reading room at some point in Brexit, thus drawing from EU practice for the negotiation of international agreements so as to involve the EP (see also Wintour, 2016). It is a curious turn in the birthplace of Parliamentary sovereignty (the UK) that they are reaching for EU law innovations and litigating just to get information. It is also a curious example of the Global Reach of EU law (Fahey, 2016). But of course we live in the era of Twitter, WikiLeaks and the coups in Turkey via Facetime. As a result, Brexit seems to belong to a different world of communication style and to place accountability and transparency concerns far down the order of priorities and to reduce the meaningfulness of ‘taking back control’ to a dull, hollow soundbite without constitutional or democratic credibility.
In sum, we argue that the Miller case is arguably quite a redundant judgment after a certain point. It is just about a vote at the end of a process and not a continuous scrutiny process. Similarly, the vote of 7 December to publish the strategy is a far distance from a running commentary - and even further from the accountability and transparency enjoyed by MEPs under EU law.
Finally, we argue that there is a curious situation not yet remarked upon as to how much the EP must have ‘a running commentary’ as a matter of EU law to the Brexit negotiations. The hollow mantra of ‘Brexit means Brexit’ or ‘no running commentary’ is illegal under EU law. It is also worth recalling that the force of the Miller judgment is not at all related to these points.
The European Parliament (EP) is the directly elected parliamentary institution of the European Union (EU). Together with the Council of the European Union (the Council) and the European Commission, it exercises the legislative function of the EU.