Parliamentary arguments over Brexit may now feel far behind us, but the bitterness of those arguments has left scars on our politics. Meg Russell examines four factors which contributed to the parliamentary ‘perfect storm’ over Brexit, concluding that ‘parliament’ largely got the blame for divisions inside the Conservative Party. This was fuelled by the referendum, minority government and the inability of parliamentary rules to accommodate a minority situation. The populist anti-parliamentary rhetoric which resulted was potentially damaging, with implications for the current Covid-19 crisis, when public trust in political decision-making is essential.
Amidst the current Covid-19 crisis, last year’s Brexit clashes already feel a long time ago. But at the time, they pushed Britain’s politics and constitution to their limits. Parliament was frequently at the heart of these conflicts – with angry headlines suggesting that parliamentarians were seeking to ‘block Brexit’, and branding them ‘wreckers’ or ‘saboteurs’. Twice questions of parliament’s proper role in relation to government ended up in the Supreme Court. Boris Johnson sought a lengthy prorogation of parliament, after which the Attorney General told MPs that they had ‘no moral right to sit’. How on earth did the UK, traditionally the most parliamentary of all democracies, get into such a mess? I dissect this question in a newly-published paper, ‘Brexit and Parliament: The Anatomy of a Perfect Storm’, in the journal Parliamentary Affairs. This post summarises the article’s key arguments. The full version is freely available to read online.
I suggest that four key political and constitutional features, all unusual in the UK context, contributed to this ‘perfect storm’. It was accompanied by a rise in populist and anti-parliamentary rhetoric – of a kind which would be destabilising and dangerous in any democracy, but particularly one based on a core principle of parliamentary sovereignty – as returned to at the end of this post. The four factors were as follows:
As charted by the Independent Commission on Referendums, referendum use has grown in UK politics, but can sit awkwardly with traditional parliamentary sovereignty. Arguments for referendums on matters concerning EU powers were made over a long period (somewhat ironically) on the basis of protecting that very sovereignty. The 2016 EU referendum – eventually conceded by David Cameron, under pressure from Conservative Eurosceptics and UKIP – was very unusual, in two important ways. First, it was what the House of Commons Public Administration and Constitutional Affairs Committee (chaired by senior Brexit supporter Bernard Jenkin) criticised as a ‘bluff-call’ referendum: where the government’s purpose was not to seek approval for a change that it supported, but to shut down its opponents’ demands. Second, the referendum was held on a broad proposition (to leave the EU), rather than a detailed prospectus. Hence when the result came in, and was not the one the Prime Minister or most MPs (even on the Conservative benches at that time) wanted, parliament was left to decide how to put it into effect. Such circumstances generated clear tensions between parliamentary and popular sovereignty.
The morning after the referendum Prime Minister David Cameron announced his resignation, and was subsequently replaced by Theresa May. In 2015 the government had unexpectedly won a narrow Commons majority, when most had predicted a hung parliament. This left a difficult environment in which to deliver a major controversial policy. As ever, the main group that the Prime Minister needed to worry about, and keep onside, were her own party’s backbenchers. But (as discussed further below) the Conservative parliamentary party was deeply divided. Having secured (with relatively little difficulty) the legislation to trigger Article 50, May hence proposed a snap general election, in hopes of increasing her majority. But the result was a hung parliament, leading to a minority government, and a confidence and supply arrangement with the Northern Ireland DUP.
Westminster, unlike many other parliaments, is unaccustomed to minority governments, and proved ill-equipped to do what was required. First, the natural thing would have been for May to trim her policy ambitions, sticking to less controversial topics on which she could be assured of parliamentary support. But this was impossible, since under the terms of Article 50, she needed a Brexit deal approved within two years. Second, May herself was fundamentally unsuited to managing minority government, which requires a consensual style, respect for parliament, and willingness to work cross-party. In contrast May, as Seldon and Newell observe, was renowned for her ‘intransigence’ and ‘tribalism’. She had set ‘red lines’ on Brexit prior to the election, designed to keep her backbench Eurosceptics onside, and did not let changed circumstances change her strategy.
The most fundamental blockage – which had led to the referendum itself – was the deep division inside the Conservative Party. This was never publicly acknowledged by Theresa May, who took out her frustrations on an undifferentiated ‘parliament’, or the opposition, rather than her own backbenchers – on whose votes a Prime Minister should normally be able to depend. When MPs first voted on her withdrawal agreement, in January 2019, 118 Conservatives defied the whip. On the second occasion, 75 did so. Even on the third occasion, on the original ‘Brexit day’ of 29 March 2019, 34 Conservative MPs rebelled, leading to rejection of the deal by 344 votes to 286. Notably, 28 of these rebels were hard-core Eurosceptics, rather than opponents of Brexit. Had they, and the pro-Brexit DUP, voted for her deal it would have been approved.
Given the minority government situation, it should have been clear to the Prime Minister from early on that the deal faced defeat; notably key Brexit supporters, including David Davis and Boris Johnson in July 2018, had quit her Cabinet in protest. But she made no attempt to change strategy and construct an alternative cross-party parliamentary majority. A further contributing factor was Labour’s internal divisions: Jeremy Corbyn as leader was more sympathetic to Brexit than most of his MPs, whose support he could not promise to deliver. The standard logic at Westminster, as in other contemporary parliaments, is that governments build parliamentary majorities through agreements between stable party blocks. But neither the Conservative nor the Labour block was stable.
The failure of parliamentary rules
As time went on, questions thus increasingly arose over whether some alternative parliamentary majority could be found, brokered by other parliamentarians. The House of Commons rules made this difficult, as in comparative terms the government has powerful agenda control. In 2009, the ‘Wright committee’ had proposed establishment of a cross-party ‘House Business Committee’, which might have helped, but this was never put into effect. Thus while MPs could ask the government questions, in select committees and the chamber, they could do little to force decisions. The Prime Minister delayed key votes and played for time, which was rapidly running out. This persuaded MPs to try and ‘seize the agenda’, to facilitate ‘indicative votes’ on the Brexit options. But without the classic organisation of whips and leaders, and with little incentive for MPs to compromise, these proved indecisive. The key thing on which MPs agreed was the desire to block a ‘no deal’ exit. This spawned unprecedented use of private members’ bills (the so-called ‘Cooper-Letwin’ Bill and ‘Benn-Burt’ Bill) to force the government to seek extensions to the Article 50 period. But it caused much controversy, including over the role of the Speaker.
These developments raised further arguments about sovereignty, this time including the meaning of ‘parliamentary’ sovereignty itself. For some, particularly under minority government, it was right that the parliamentary majority should have the last word. Others held to a ‘Whitehall’ view of parliamentary sovereignty, whereby the executive (or ‘crown-in-parliament’) should instead hold sway. The great irony was that key Eurosceptic proponents of this position had themselves sought to block the government’s policy, preferring a ‘no deal’ option – which the Prime Minister, as well as the parliamentary majority, were striving to avoid.
‘Parliament versus people’ – the descent into populism
The four features above helped fuel an increasingly adversarial and ill-tempered environment both inside and outside parliament, laying the ground for the start of Boris Johnson’s premiership after Theresa May had been forced out. Johnson won the Conservative leadership contest just one day before parliament broke up for its long summer recess in July 2019. Over the summer, there was much talk of further rebel moves to prevent ‘no deal’, and even of a vote of no confidence and installation of an alternative ‘unity’ government. Immediately before parliament was due to return, on 28 August, it emerged that Johnson had asked the Queen for a five-week prorogation – which went on to be overturned in the Supreme Court. In the short period before this ‘non prorogation’ parliamentarians passed the Benn-Burt Act, requiring an Article 50 extension until 31 January 2020.
During this period, anti-parliamentary rhetoric, already fuelled under Theresa May, became more bitter, including the Attorney General’s remarks quoted above. May herself was widely criticised for a Downing Street statement following the defeat of her deal, when she sought to position herself with the public against MPs, arguing that ‘I am on your side’. This had clear undertones of populism, which characterises society as divided into a ‘pure people’ versus a ‘corrupt elite’. But of course, the key MPs who had denied May her majority were Conservative backbenchers – among them, Boris Johnson. Nonetheless, his own administration continued, and ramped up, the anti-parliamentary claims. Launching the general election campaign in November 2019, Johnson suggested that ‘our MPs are just refusing time and again to deliver Brexit and honour the mandate of the people’. The Conservative manifesto repeated this, criticising the ‘failure of Parliament to deliver Brexit’ and ‘the way so many MPs have devoted themselves to thwarting the democratic decision of the British people’.
Analysis: what happened and where next?
I have suggested that four factors contributed, in interrelated ways, to the ‘perfect storm’ that caused the UK executive to pit itself increasingly explicitly against parliament over Brexit: the referendum, minority government, the divided Conservative Party, and the failure of parliamentary rules to adapt to a minority situation. All of this fed frustration, and facilitated Boris Johnson’s eventual ‘people versus parliament’ rhetoric. That he and his allies had been part of the blocking majority at earlier stages remained something that his predecessor, and oddly even the Labour leader, never highlighted. In the end, the result of a ‘bluff-call’ referendum driven by divisions in the Conservative Party failed repeatedly to be delivered, due to continued divisions in the Conservative Party – and the party’s leaders increasingly heaped the blame on parliament.
Although these arguments may now feel far behind us, they have inevitably left scars on our politics. Parliament is central in any democracy, and even more so in a system like the UK’s where it is officially the highest authority. Distrust in parliament leads to a weakening of democracy itself. At the current time of crisis, when government has been granted extraordinary emergency powers, political trust, and robust parliamentary scrutiny of political decision-making, is particularly crucial. The Conservative manifesto promised a ‘Constitution, Democracy and Rights Commission’, with responsibility to examine ‘the relationship between the Government, Parliament and the courts’. What will happen to this pledge, given the Covid-19 situation, remains unclear. What is clear however is that, whatever else happens, concerted efforts to restore trust in parliament are now essential.
This is a summary of the analysis and arguments contained in an article by Professor Russell, published today by Parliamentary Affairs. To read the full version, click here.
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About the author
Professor Meg Russell is Director of the Constitution Unit, and a Senior Fellow at The UK in a Changing Europe (UKICE) studying ‘Brexit, Parliament and the Constitution’. The Unit’s page for the project is here. In March 2019 the Unit and UKICE jointly published the report Parliament and Brexit.