The EU Withdrawal Bill will remove power from the UK parliament and hand it to the judiciary, former president of the Supreme Court Lord Neuberger has warned. Withdrawal, Neuberger said today, will have ‘a profound effect on the balance of power between the legislature, the executive and the judiciary’.
Neuberger told the EU Withdrawal Bill Summit, organised by City & Financial at London’s Guildhall, ‘The principle behind withdrawal was to restore parliamentary authority. Yet the process can be argued to have weakened, not strengthened, parliament against the two unelected branches.’
Some of parliament’s loss of power, Neuberger said, came from its own inaction. MPs ‘sat on their hands’ on questions affecting its own authority, which led to the courts deciding a key point through the Gina Miller case.
Central to Neuberger’s view is the so-called ‘Henry VIII’ powers, especially as contained in Clause 6 of the bill. Clause 6, unless ‘reworked’, Neuberger warned, would mean, ‘UK judges, not parliament, will make judgements on diplomacy, economics and law – classically policy areas for parliament’.
‘Parliament would be supreme in name only,’ he warned. ‘I am not saying this is a good thing or a bad thing,’ he said. ‘I’m not concerned that judges are being pushed in to the limelight. I am concerned that those doing the pushing don’t realise it.’
Edward Garnier QC, former solicitor general, told the summit that Henry VIII powers would be hard to avoid as ‘we are constrained in this two year period’.
Asked by one-time Treasury Select Committee chair Andrew Tyrie if the article 50 process could be postponed, or withdrawn from, Neuberger said he believed it could. ‘Yes, it’s pretty clear,’ he replied. ‘The EU can [agree to] extend the time by qualified majority voting.’
The position if Northern Ireland is not well understood in London, a later discussion heard. Professor Christopher McCrudden, of Queens University Belfast and Blackstone Chambers, said: ‘Northern Ireland requires a radically different response to Scotland… The Good Friday Agreement is an international treaty. It cannot be changed without the consent of Ireland.’
Breaking the agreement, McCrudden said, would affect the trust other EU countries had in the UK in future treaty negotiations.