On 22 July, the Unit, in association with The UK in a Changing Europe, hosted four experts on the legislative process, including our Director, Professor Meg Russell, for a panel discussion of parliament’s handling of Brexit. Sam Anderson summarises the main contributions.
On 22 July, the Constitution Unit held a packed event entitled ‘Brexit and Parliament: an end of term report’. As well as launching Unit Director Professor Meg Russell’s new Senior Fellowship with The UK in a Changing Europe, it offered a key opportunity to reflect on parliament’s recent performance on Brexit and what may lie ahead. The other contributors were Hilary Benn MP, Labour Chair of the Commons Exiting the European Union Select Committee; Chris White, Managing Director of Public Affairs at Newington Communications and former adviser to two Conservative Leaders of the House; and Dr Brigid Fowler, Senior Researcher at the Hansard Society, who leads its work on parliament and Brexit. The event was chaired by Dr Daniel Gover, Research Fellow at the Constitution Unit and Lecturer in British Politics at Queen Mary University of London. The discussion included whether parliament had used some of its more innovative procedures appropriately, potential next steps in the backbench fight to stop ‘no deal’ and public perceptions of how parliament is performing in the Brexit process.
Meg Russell gave an overview of the three key research areas that her new fellowship will focus on.
1. How direct and representative democracy relate to each other in the UK
This has been one of the main issues raised by the 2016 referendum. The centrality of parliamentary sovereignty in the UK constitution means that there is a natural tension between representative democracy – where decisions are made by parliament – and direct democracy, involving the use of referendums. Referendums can undoubtedly create tensions with parliament’s representative function; however the Unit’s Independent Commission of Referendums concluded that in certain circumstances referendums can usefully complement parliamentary sovereignty.
The concepts of direct democracy and the overriding mandate of the referendum have fed debates about the role of parliament that have taken a ‘darker turn’ in recent months. Challenging parliament’s decisions is legitimate in a democracy, but threatening the right of parliament to sit and perform its constitutional and legal functions is something we never expected to see. This rhetoric seeks ‘to pit the people against parliament’, with the ‘worrying implication that the executive should cut loose’ of the accountability that lies at the heart of our system, in the name of the people. For example, many responses to a recent tweet from former Conservative MP Nick Boles, in which he expressed concern about the government ‘muzzling’ parliament, invoked ‘the will of the 17.4 million’, with some suggesting that the will of MPs no longer matters. Prorogation has been advocated by a number of Brexiteer MPs, to prevent parliament blocking a ‘no deal’ Brexit. However it has been criticised by other prominent Leavers, such as Sir Bernard Jenkin, Chair of the Commons Public Administration and Constitutional Affairs Committee, and Andrea Leadsom, former Leader of the Commons.
2. The power of parliament over government policy
Professor Russell’s previous work has looked at the ways parliament exercises its power, including through select committees and the legislative process. Parliament is more powerful – and exercises that power in more subtle ways – than many often assume. The Brexit process has demonstrated this in a high profile way. A number of established patterns have continued: one is the anticipatory influence that the Commons has on government, such as when Theresa May offered MPs a vote on ‘no deal’ in March to avoid it being forced upon her. In addition, the Commons and the Lords have largely worked together as partners not rivals; the scrutiny role of select committees and the Commons chamber have been shown to play an important role in testing the claims and policies of ministers; and opposition days have been used in a number of ‘imaginative’ ways.
New phenomena have also occurred. A number of procedures have been stretched and cross-party working is happening to an extent rarely been seen before. It is unclear whether these trends will reverse if and when the Brexit process is complete, or whether they represent the new normal. It is possible that this is all just a function of minority government, and that things will change in the event of a Prime Minister with a functioning majority.
3. The possibility of procedural reform
Though also inextricably linked to the experience of minority government, the need for procedural reform has been thrown into sharp relief. The government currently has default control of the Commons timetable under Standing Order No. 14. There are delicate questions here about sovereignty – does the government have agenda control because it is assumed to have a majority, or should it have such control by default even when that majority is missing? This raises questions of whether a House Business Committee, as proposed by the Wright Committee on the Reform of the House of Commons in 2009, could help by enabling coalitions of MPs who can command a majority on a specific measure or policy to get time for such business in the House.
As prorogation has been threatened, questions arise about who should be able to initiate that process. When the House is dissolved for a general election, or goes into recess, this must be voted upon by MPs. Arguably prorogation should be put on a similar footing. There have also been questions about recalling the Commons from recess, which can only formally be instigated by the government. If controversies arise during the current recess – for example a big shift in policy towards a ‘no deal’ Brexit – there is no formal mechanism for backbenchers to force a recall, although in the past political pressure has been enough to achieve this (as discussed in a previous post by Meg Russell and Daniel Gover on this blog).
Hilary Benn began by characterising Brexit policy as a ‘mess’, adding that the term ‘crisis’ certainly applies to the current political situation of the UK. Despite some expressing the view that parliament had lost its appetite for preventing ‘no deal’, an amendment to the Northern Ireland (Executive Formation) Bill designed to make prorogation more difficult passed by 41 votes, demonstrating the continuing commitment of a parliamentary majority to blocking a ‘no deal’ exit. To prorogue parliament would be ‘so outrageous, so scandalous, and so awful’ that it is likely a large group of MPs would choose to sit, debate and vote in the Commons whether or not parliament was formally in session.
Boris Johnson, speaking on behalf of a new government, has expressed a desire to renegotiate the Withdrawal Agreement. But he has also firmly committed to removing the backstop, which makes the likelihood of a successful renegotiation slim. Despite parliament clearly expressing its opposition to ‘no deal’ on multiple occasions, it is worth asking what can be done to avoid this outcome if the government decides to pursue it.
One option would be to try to repeat the process that resulted in the EU (Withdrawal) Act 2019 proposed by Yvette Cooper in April. It looks unlikely that backbenchers will be able to take control of the parliamentary timetable in exactly the same way again, or use an opposition day, but there is the potential to use an emergency debate motion under Standing Order No. 24. This would require some flexible interpretation of the rules by the Speaker, John Bercow.
The other, ‘more extreme’ option would be to bring down the government. There are concerns that if this were to happen through a vote of no-confidence under the Fixed-term Parliaments Act 2011 (FTPA) a general election period could extend past 31 October. During an election period, convention requires that the government continues to implement the status quo relating to policy. But Prime Minister Johnson could conceivably refuse to request another Article 50 extension, arguing that a ‘no deal’ exit represents the status quo. To avoid this, one possible solution is that during the statutory 14-day period under the FTPA between a vote of no confidence and a general election being called, parliament could express confidence in an alternative government whose primary – if not sole – purpose would be to request and agree to an extension. That government might also introduce legislation for another Brexit referendum to be held.
Chris White started by outlining some positive things that parliament has achieved since the 2016 referendum, such as the work of Hilary Benn’s committee and the European Statutory Instruments Committee, which is responsible for scrutinising the high volume of secondary legislation required for leaving the EU.
However, the ‘usual channels’ have in recent months broken down, as both sides have tried to ‘test to destruction’ a rule book that did not envisage a situation such as that posed by Brexit. Examples have included the government delaying the first meaningful vote, the problems with ‘pairing’ on the Trade Bill, and the government practice of ignoring opposition day debates. This then led to a series of ‘pitched battles’ involving an increased use of the Humble Address procedure and backbenchers capturing government time. These events and government consideration of prorogation suggest that actors on both sides need to ‘step back from the brink’.
The role of the Speaker in recent debates is another major issue for White. John Bercow has clearly worked to uphold the rights of the House against the government, but concerns have been expressed about his impartiality. For example, in March the Speaker suggested that the government could not lay a ‘notwithstanding’ motion, which would have allowed for a third meaningful vote on the Withdrawal Agreement, despite accepting a similar motion relating to the indicative votes process.
As for blocking a ‘no deal’ Brexit, the timeframe for a vote of no confidence is now incredibly tight if its aim is to prevent ‘no deal’ by default. This is true even without taking into account the possibility of the government using its own powers to delay a general election. The ability for backbenchers to get a referendum bill through is also questionable, both due to a likely lack of parliamentary support and the likelihood that the government will block any more capturing of the parliamentary timetable.
As Brigid Fowler pointed out, grading parliament’s performance requires us to define who and what we mean by ‘parliament’. Parliament is not homogenous, but consists of different groups of actors such as the Commons, the Lords, whips, select committees and clerks. It would be fair to say that in some respects the House of Lords is performing its scrutiny function well, whereas MPs are more bogged down in the politics of the process. Parliamentary staff, especially those in Brexit-facing roles, have performed incredibly well under the same workload pressure, scrutiny and uncertainty as civil servants.
It would also be fair to say that there are a number of ‘extenuating circumstances’ hindering parliament’s performance. Minority government is resulting in the political and procedural deadlock mentioned by the other speakers. Neither frontbench appears to be operating as a major party normally does in terms of generating policy and reliable voting patterns. Cabinet government is also operating abnormally, with collective ministerial responsibility failing on a number of occasions.
The public are judging parliament’s performance, and they have found it wanting. The Hansard Society’s most recent Audit of Political Engagement found that public opinion of the British system of government is at its lowest in 15 years, worse than during the MPs’ expenses scandal. Only 25% of the public have confidence in the way MPs are handling Brexit, and 60% said it was reducing their confidence in political actors (for a more detailed summary, see the Unit’s blog on the report).
Fowler agreed that there is now a fundamental issue of tension between direct and representative democracy. If extending the analogy of a school report, do we want MPs to accept that sometimes they have to do things they believe are wrong, or to show evidence of independent judgement?
Two key areas of work for the Hansard Society are delegated legislation and treaty making, and Fowler expressed hope of reform in these areas. Although there was widespread agreement that the processes governing these matters did not work pre-Brexit, the extra strain has highlighted the need for reform. As well as the new role of the European Statutory Instruments Committee, the Lords EU Committee is beginning to properly scrutinise draft treaties. Both of these are works in progress. The process for ratifying the Withdrawal Agreement has largely been ad hoc, and many more treaties will need to be ratified after we leave the EU, raising the question of how such processes will be handled in future. The task of answering that question has not even begun.
The above text consists of summaries of the contributions of all four speakers at the Unit’s recent event, Brexit and Parliament: an end of term report. The summaries only cover the speakers’ main contributions and do not reflect the content of the lively and informative Q&A session that followed. The entire event, including the panel discussion, is available to view on our YouTube channel.
About the author
Sam Anderson is a Research Volunteer at the Constitution Unit.