Brexit and parliament: where did it all go wrong?

meg_russell_2000x2500.jpgParliamentary 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:

The referendum

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. Continue reading

Five key questions about coronavirus and devolution

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The coronavirus is a once in a generation event that has required an almost unprecedented response from government at all levels, from Westminster to West Lothian. Akash Paun argues that it has raised five crucial questions about the politics of devolution at a time when efficient and effective intergovernmental relations are crucial. 

Coronavirus has hit all parts of the UK and has required a comprehensive response by government at all levels – central, devolved and local. The crisis has raised (at least!) five big questions about devolution, intergovernmental relations and the politics of the Union:

  • Does the crisis show that the UK and devolved governments can cooperate effectively?
  • To what extent does devolution enable policy divergence between the UK nations?
  • How is the crisis affecting the operation of the devolved institutions themselves?
  • How is the pandemic response being funded – and with what impact on devolution?
  • What might this period mean for wider constitutional debates and the Union?

It is too early to give a definitive answer to any of these questions. But developments over the past few months already point to some preliminary conclusions, as well as identifying important lines of investigation for future research.

The UK and devolved governments can work together – at least in a crisis

One important finding, as the Institute for Government (IfG) recently concluded, is that the UK and devolved governments have shown the ability to work together well at various points over the past three months. Given the many disputes over Brexit, the Union and other matters in recent years, and the underlying weaknesses of the UK’s system of intergovernmental relations, it was far from a foregone conclusion that the different administrations would be able to cooperate at all.

But credit should be given where it is due. In early March, the UK and devolved governments published a joint Coronavirus Action Plan – a rare sighting of a government policy paper that was co-branded by the four administrations. There was close working too on the Coronavirus Act, which was drafted with significant devolved input before being passed at Westminster with devolved consent under the Sewel Convention. And devolved leaders participated in meetings of the COBRA emergency committee throughout this period, helping to ensure that major announcements, not least the imposition of the lockdown in late March, were coordinated between the capitals. Continue reading

Parliament and Brexit: what do the public think?

IMG_20181213_223144Almost four years have passed since the 2016 EU referendum delivered a mandate for Brexit. However, as John Curtice explains in the latest extract from our joint report on Parliament and Brexit, the views of the public on the role of referendums in the Brexit process is heavily influenced by their views on whether Britain should leave the European Union or remain a member.

Though they have been used various times on constitutional matters in the UK, referendums are often thought to challenge traditional notions of representative parliamentary democracy. In the UK’s version of such a democracy, MPs are sent to Westminster to deliberate and exercise their judgement on their constituents’ behalf. Referendums seemingly usurp this traditional role, in an attempt to ascertain ‘the will of the people’.

Nonetheless, survey research has long suggested that referendums are popular with voters – as indeed was the June 2016 EU referendum. A fortnight beforehand, 52% told YouGov that David Cameron was right to hold a referendum on Britain’s EU membership, and only 32% said he was wrong. On the very eve of polling, Ipsos MORI reported that 66% of voters felt the Prime Minister was right to hold a ballot, while only 24% reckoned he was wrong.

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Yet, underneath the surface there were already important differences of opinion. As the first chart shows, Leave and Remain backers had rather different views. According to YouGov, 83% of Leave supporters supported Cameron’s decision, and only 9% thought it wrong. In contrast, 60% of likely Remain voters disliked the decision and only 26% approved. Of course, in calling the referendum Cameron had opened up the possibility that the UK might indeed leave the EU, a prospect that Leave voters were more likely to
embrace. Continue reading

Advice in a time of belief: Brexit and the civil service

Jim.Gallagher.150x150.jpgThe role of the civil service in delivering Brexit has been hotly debated by many. Its neutrality has been questioned by some, and individual civil servants have been personally criticised. But what precisely is their role when it comes to advising ministers, and has it been affected by Brexit? Jim Gallagher argues that just as political parties have been tested by the result of the 2016 referendum, the civil service is similarly under pressure.

The UK civil service prides itself on being able to serve democratically elected ministers of radically different political beliefs. This principle of political neutrality has carried it through transitions as marked as Callaghan to Thatcher, Major to Blair, and from the Brown government to its coalition successor.

The permanent home civil service has also successfully transitioned from serving Westminster departments to devolved administrations in Cardiff and Edinburgh, even advising a Scottish government in pursuing independence. None of these transitions has been painless, but Brexit seems to present a different challenge.

Individual officials have been publicly identified for criticism, dismissed or moved after giving unpalatable advice, or leaked against in the press. Sir Ivan Rogers was sacked from his job in Brussels for advising on how the EU would react. Olly Robbins will be the fall guy for negotiating Mrs May’s failed deal. Last week, Sir Kim Darroch, the UK’s ambassador in Washington, resigned, and the Cabinet secretary Sir Mark Sedwill is said to be next.

But this may not just be about individuals. Many pro-Brexit politicians seem to see the civil service as a supporter of the establishment they seek to overthrow. So is the principle of a politically neutral civil service under threat? Continue reading

175 not out: the new edition of Erskine May and eight years of constitutional change

sir_david_natzler.smiling.cropped.3840x1920.jpgIn March, Sir David Natzler retired as Clerk of the Commons after over 40 years in the House. Now, he is the co-editor of Erskine May, the 25th edition of which is the first new edition in eight years, and is freely available to the public: a significant change. Here, Sir David discusses some of the key changes to the text after what can only be described as an eventful eight years for the Commons. 

The years since the last edition of Erskine May in 2011 have been pretty turbulent by any standards. We have had three types – coalition, majority and minority – of government, two general elections, three national referendums and numerous constitutional statutes of real significance. So it was plainly time for a new edition of this timeless work, which is often referred to but rarely read.

The new Erskine May is exciting to me because, as its co-editor, I had the happy task of reading through the chapters as they emerged from the efforts of many of my former colleagues. We all had to ask ourselves: is this a clear and honest account of parliamentary procedure and practice, and if not, how far can we go in recasting it? It is not a new book; but nor is it merely a historical text with minor amendments for the benefit of a modern audience. New content has been added, but nothing has been asserted without due authority, and we also recognise that some assertions of the past are too precious to be excised. Paragraph 21.4 on the rule against reading of speeches is as good an example as any: the principle remains valued by some MPs but it would be idle to pretend that it is rigorously observed in practice. There has to be some wishful thinking.

Who is this edition of Erskine May for? Plainly for practitioners, meaning the occupants of the Chair (such as the Speaker and Deputy Speakers), those who advise them, MPs and officials. But it is not just for them. Recent controversy over decisions by the Speaker on procedural issues related to Brexit and threats of early or extended prorogation by some candidates for leadership of the Conservative Party have served to remind all of us that parliamentary procedures are not some sort of secret masonic ritual to be understood only by a priestly caste of clerks and a handful of others, but are as integral to a parliamentary democracy as electoral rules. And it is not just for Westminster: one of my great pleasures as Clerk was to receive emails from colleagues around the Commonwealth seeking elucidation of a procedural – and usually political – issue where their knowledge of what was said in Erskine May was far in advance of my own!

Fortunately this edition has been preceded by two very different works which help set it in context. In 2018 the Commons authorities published a Guide to Procedure which is intended to help those involved in its day to day work, set out in plain English. It is of course available online. And secondly, at the end of 2017 Hart Publishing produced a book of essays – edited by current Clerk of Committees Paul Evans, entitled Essays on the History of Parliamentary Procedure: In Honour of Thomas Erskine May, to mark the great man’s 200th birthday in 2015. Continue reading

Beyond Brexit: Towards a British Constitution

vb_image_70x90Brexit is a major constitutional change. It creates considerable constitutional uncertainty, but also opportunity. It could prove Britain’s constitutional moment. Vernon Bogdanor argues that just as joining the EU fundamentally altered the UK constitution, so Brexit could, by exposing the very nakedness of Britain’s uncodified arrangements, prove a catalyst for a written constitution.

During the period of membership of the European Communities/European Union, the UK was subject to a written or codified constitution, which was entrenched. Brexit is a process rare if not unique in the modern world, involving as it does disengagement from a codified to an uncodified system. It is just possible indeed that Brexit will lead to a codified constitution for the United Kingdom that would bring us into line with virtually every other democracy in the modern world.

At a seminar at King’s College, London shortly after the 2016 EU referendum, Takis Tridimas, a professor of European Law at King’s said that the result represented the most significant constitutional event in the UK since the restoration of the monarchy in 1660, since it showed that on the issue of Europe, the sovereignty of the people trumped the sovereignty of Parliament. Of course, from a legal point of view, the referendum was merely advisory, but the government committed itself to respecting the result and the outcome was seen by the majority of MPs as decisive. Since June 2016, therefore, both government and parliament have been enacting a policy to which they are opposed. That is a situation unprecedented in our long constitutional history. Europe, therefore, has been responsible for the introduction of a new concept into the UK constitution, the sovereignty of the people. On this issue, the people have in effect become a third chamber of Parliament, issuing instructions to the other two. The sovereignty of Parliament is now being constrained not by Brussels, but by the people.

The effects of the European Communities Act on the UK constitution

The main constitutional consequence of our EU membership was to restrict the sovereignty of parliament. Parliamentary sovereignty must be distinguished from national sovereignty, with which it is often confused. National sovereignty is engaged whenever a country signs a treaty. It is not an absolute, it can be pooled or shared with other countries, and it is a matter of political judgement how far it should in fact be shared. But parliamentary sovereignty – the notion that Parliament can enact any law it chooses – is not like that at all. It is an absolute. One either has it or one does not. One can no more be a qualified sovereign than one can be a qualified virgin. Continue reading

On restoring responsible political parties

picture.52.1535547351DtrC8R1XQAIIktGAs calls for another Brexit referendum grow ever louder, Frances McCall Rosenbluth and Ian Shapiro discuss their new book, Responsible Parties: Saving Democracy from Itself, in which they argue that attempts to decentralise political decision-making in the US and UK have made governments and political parties less effective and damaged their ability to address constituents’ long-term interests. 

Since the 1960s, powerful movements across the democratic world have sought to bring politics closer to the people. Party members more often elect their leaders directly. There has been greater use of referendums and plebiscites. Many political parties have adopted decentralised ways of choosing candidates. Boundaries have been redrawn to create ‘majority-minority districts’ – in which the majority of the constituents in the district are non-white – and thus ensure selection of racial and ethnic minorities. In many (especially newer) democracies, proportional representation (PR) is favoured as more inclusive of non-majority voters. Unlike single member district systems, which generate two big catch-all parties, parties proliferate under PR; minority groups can all vote for parties they expect to fight for them in the legislature. These changes are touted as democratic enhancements that move decisions closer to the people and elect politicians who are less remote from – and more responsive to – the voters.  

Paradoxically, however, this decentralisation has been accompanied by dramatic increases in voter alienation. Poll after poll reflects historic lows of citizen trust in politicians, parties and institutions, dramatically underscored in 2016 by the Brexit vote and Donald Trump’s populist stampede to the US presidency. Similar patterns prevail in many democracies, where anti-establishment parties and candidates enjoy unprecedented support from voters. They reject government recommendations in referendums and plebiscites, and elect anti-establishment figures who would not have been taken seriously half a generation ago. Incumbency, which used to be a decisive advantage, seems increasingly to be a liability as ‘tossing the bums out’ shortens political half-lives at every turn. Angry voters flail at their own impotence, waging semi-permanent war on their representatives. Continue reading

How long would it take to hold a second referendum on Brexit?

jess_sargent.000alan_renwick.000Meg.Russell.000 (1)With exit day less than seven months away, one of the perceived obstacles to a second Brexit referendum is time. Here, in the second in a series of posts on the mechanics of a second referendumJess Sargeant, Alan Renwick and Meg Russell discuss the constraints, concluding a new referendum could be held much more quickly than previous polls but a delay to exit day would most likely still be needed.

In order for a referendum to be held in the UK, various processes must be completed, all of which take time. Many political commentators have dismissed the possibility of a second referendum on Brexit on the basis that there is insufficient time to hold one before the UK leaves the European Union, citing the EU referendum’s 13-month timetable as evidence of its impossibility. By contrast, many proponents of a ‘People’s Vote’ have argued that time is not a problem: earlier this month Vince Cable argued that a referendum could be legislated for ‘in a matter of weeks’.

The reality lies somewhere between these two positions: while the timing is challenging, it does not present an unsurmountable obstacle to a referendum.

What is required for a referendum to be held in the UK?

  • Legislation – Primary legislation is needed to provide the legal basis for the referendum and to specify details that are not in standing legislation, including the referendum question, the franchise, the date of the referendum, and the conduct rules for the poll (although the latter two are often ultimately left to secondary legislation).
  • Question testing – The Electoral Commission has a statutory duty to assess the ‘intelligibility’ of the referendum question, a process that usually takes 12 weeks.
  • Preparation for the poll itself – The Electoral Commission and local officials need time to prepare for administering the poll and regulating campaigners. The Commission recommends that the legislation should be clear at least six months before it is due to be complied with.
  • Regulated referendum period – The UK’s referendum legislation – the Political Parties, Elections and Referendums Act (PPERA) – specifies a minimum 10-week campaign period, during which campaign regulation applies.

Continue reading