What will the Lords do with the Article 50 bill?

Meg-Russell

The bill authorising the Prime Minister to trigger Article 50, enabling the UK to leave the EU, has cleared the Commons. It begins its consideration in the Lords today. In this post Lords expert Meg Russell discusses how the second chamber is likely to treat the bill. She suggests that this illustrates important dynamics between Lords and Commons, which are often disappointingly misunderstood both in the media and inside government.

The European Union (Notification of Withdrawal) Bill is a simple two-clause measure to authorise the government to trigger Article 50 of the Treaty on European Union and thereby begin negotiations on the UK’s exit from the EU. This follows the ‘Leave’ vote in last June’s referendum, followed by the Supreme Court ruling that parliament’s authorisation was required. A previous blog considered the bill’s likely reception in the Commons, where it completed its initial stages on 8 February. Today the bill begins its consideration in the Lords, where it is due a two-day second reading debate, followed by two-day committee stage next week, and a day spent on remaining stages the week after that.

There has been much discussion of how the House of Lords will treat the bill – including wild speculation about possible retribution if peers try to ‘block’ the bill. Much of this fundamentally misunderstands the relationship between the two chambers of parliament, and the constraints within which the Lords always operates. The bill in fact nicely illustrates some of the subtleties of these relationships, and – while unusual in many ways – can serve as a case study of how the dynamics at Westminster work. By setting out how the Lords is likely to respond to the bill, this post seeks to communicate those wider dynamics.

As a starting point, two key features of the Lords are clearly pertinent, and feature prominently in stories about how it might respond to the Article 50 bill. First, the government has no majority in the chamber. As of today the Lords has 805 members, of whom only 252 are Conservatives. Labour has 202 seats, the Liberal Democrats 102, and the independent Crossbenchers – who do not have a whip or vote as a block – 178 (the remainder comprising bishops, smaller parties and other non-aligned members). This obviously, on the face of it, makes things look difficult for the government. Furthermore, the Lords is known to have an innate pro-‘Remain’ majority. The other obvious feature is that the Lords is unelected. This means (as further explored below) that it generally defers to the will of the elected House of Commons. Of course, the Commons also includes an innate pro-‘Remain’ majority. This presented MPs with various representational dilemmas (explored in the previous post) when debating the Article 50 bill. But the great majority concluded that the will of the public as expressed in the referendum must be respected – and hence that the bill should be approved. It passed its second reading by 498 votes to 114, and its third reading by 494 votes to 122. This is the starting point for debates in the Lords.

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Miller and the media: Supreme Court judgement generates more measured response

img_4218In this post Ailsa McNeil presents the findings of an analysis of newspaper coverage of the High Court and Supreme Court rulings in the Article 50 case. It shows that whilst the High Court judges faced an onslaught of criticism from Brexit-supporting newspapers the reaction to the Supreme Court judgement was more measured. Two factors can explain this: the fact the prospect of parliament delaying the triggering of Article 50 appeared remote by the time the Supreme Court delivered their verdict and the widespread condemnation of some of the coverage of the High Court judgement.

The reaction from some newspapers to November’s High Court ruling provoked almost as much controversy as the decision itself. The judges, branded ‘Enemies of the people’ (Daily Mail, 4 Nov 2016), faced an onslaught of criticism, which knew no bounds. The attacks were personal, vicious and an affront to the rule of law. Although the coverage of the Supreme Court decision was less hostile, some newspapers continued to admonish the judiciary.

We analysed the editorials published on the day following the decisions, 4 November 2016 and 25 January 2017 respectively, in five broadsheets (The Guardian, The Independent, The Financial Times, The Daily Telegraph and The Times) and five tabloids (The Daily Mail, The Daily Mirror, The Sun, The Daily Star and The Daily Express). Where the publication lacked an opinion piece, we used the closest equivalent, usually written by the political editor.

For each, we considered several questions: whether the article was critical or supportive of the judgement; whether it condemned the judges, or if the commentary was likely to decrease trust in the judiciary. Finally, we asked if the editorial breached the Attorney General’s guidelines for contempt of court.

Of the editorials that were critical of the High Court ruling, two published articles that spoke about the judges in terms that we considered would decrease a readers trust in the judiciary. The Daily Mail was quick to question the independence of the ‘unelected’ High Court judges. The article made several statements which suggested the decision was not made impartially. This tone was echoed in the Daily Express. Explicit criticism of the courts, with judges being criticised as out of touch, or too lenient in their sentencing, is not unusual. However, the severity of the criticism this time was unprecedented, as was the outrage that the media coverage generated amongst defenders of judicial independence and the rule of law.

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The process of Brexit: what comes next?

me 2015 (large)

In a new report published jointly by the Constitution Unit and the UCL European Institute, Alan Renwick examines what the process of Brexit is likely to look like over the coming weeks, months, and years. Here he summarises five key lessons.

wp2_arenwick_front_coverThe phoney war around Brexit is almost over. For months, two immediate questions have dominated discussions: How can Article 50 be triggered? And what sort of deal will ministers seek? The Supreme Court’s ruling on 24 January answered the first question. We know much more now about the second through Theresa May’s Lancaster House speech and last Thursday’s white paper. The Article 50 bill is being debate in parliament. By the end of March – if the government gets its way – we will be entering a new phase in the process.

The question is: What comes next? Can the government deliver on its wish list? Can parliament provide effective scrutiny?  Will the courts intervene again? How is Brexit likely to play in the devolved nations? Is a second referendum at all likely?

In a new report, I offer answers to these and related questions. Here I summarise five key points.

1/ The UK government is very unlikely to get what it says it wants.

The government has set out highly ambitious goals. It wants not just a divorce agreement, but also a complex, deep, and bespoke deal on the UK’s future relationship with the European Union, encompassing a comprehensive free trade agreement, a novel form of customs association, and ongoing cooperation in areas including policing, security, and research. Furthermore, it wants all of this to be both negotiated and ratified within two years.

Whether such a deal will emerge is impossible to say; but achieving it within two years certainly looks very unlikely. First, EU leaders (so far at least) have said they will not negotiate on these terms. Rather, they initially want a divorce deal only; once that has been negotiated, they propose a transitional period that preserves many features of EU membership while detailed negotiations on future relations are conducted. Thus, the first round of the negotiations will be a discussion of what the negotiations are actually about.

Second, even if the UK government gets its way in this opening round, the negotiations thereafter will be immensely complex and difficult. They will range across most policy areas. Not only will the UK be negotiating with the EU: in addition, there will be intense negotiations among the twenty-seven remaining member states and between the European Council, European Commission, and European Parliament. Whitehall’s resources for all of this are very tight, and experienced negotiators with relevant expertise are thin on the ground.

Third, a deal such as the Prime Minister proposes will have to be agreed by the European Parliament and ratified by every member state. As the troubles faced in the Walloon parliament by the Canadian free trade agreement show, there is no guarantee that ratification will be smooth. Indeed, in some countries ratification could be subject to a citizen-initiated referendum, as occurred in the Netherlands last April for the EU–Ukraine Association Agreement.

If no deal has been done and ratified within two years, the UK government will have three main options: press for an extension to the negotiation window (which would require unanimous agreement of the member states); accept the EU’s proposed transition phase; or decide that the UK is leaving without any deal. Ardent Brexiteers dislike the first two options. But most observers think the hard and disorderly Brexit implied by the third entirely unpalatable. A government that pursued it could well be forced from office, triggering deep political turmoil.

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What might parliament do with the Article 50 bill?

Meg-Russell

On 24 January the Supreme Court ruled that the government requires parliament’s consent to trigger Article 50 of the EU Treaty and hence begin formally negotiating Brexit. This requires a bill, and the government responded with the European Union (Notification of Withdrawal) Bill – on which debates in the Commons begin today. Meg Russell asks how parliament could respond to the bill – both procedurally, and in terms of the political dilemmas facing members.

In the form it was introduced, the European Union (Notification of Withdrawal) Bill is a very short and simple measure. With just two clauses, it authorises the government to ‘notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU’, stating that this is notwithstanding the 1972 European Communities Act or any other existing statute. Yet its simplicity clearly belies its importance; the decision to trigger Article 50, following the Leave vote in last June’s referendum, has potentially huge ramifications for both the UK’s politics and its economic future. It is well-known that a majority of MPs, and probably an even higher proportion of peers, supported Remain in the referendum. The government’s original starting point was that parliamentary approval of this kind was neither desirable nor necessary. Now that the bill has been published, its passage could present significant political challenges, for government and parliamentarians alike.

This post focuses primarily on the procedural aspects. What are the stages through which the bill will have to pass, and where do the potential obstacles lie? The post focuses in particular on the immediate Commons stages. Having indicated the key steps, it moves on to discuss MPs’ representational dilemmas, and how these could play out. Finally, it provides some brief reflections on the bill’s likely reception in the Lords.

The timetable for the bill in the Commons was set out by David Lidington, Leader of the House of Commons, on Thursday 26 January. Its second reading stage is due to take place on Tuesday and Wednesday this week, with debate today able to last up to midnight. It is then proposed to spend three days in committee, on the floor of the House of Commons, next week, after which it will quickly receive a third reading and (if approved) pass to the House of Lords.

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Why parliament needs a ‘good Brexit’

brigid-fowler

There are two scenarios for the way in which parliament’s handling of Brexit affects its position in the UK’s democratic system – one in which Brexit strengthens the executive, and one in which parliament emerges enhanced. Which of these prevails could have an effect long after the UK leaves the EU, writes the Hansard Society’s Brigid Fowler. If parliament has a ‘good Brexit’, it could strengthen its standing in relation to both the executive and the public.

The UK’s vote to leave the EU was ‘a vote to restore … our parliamentary democracy’, the Prime Minister declared in her January 17 Brexit speech. Theresa May suggested that the UK’s possession of ‘the principle of parliamentary sovereignty [as] the basis of our unwritten constitutional settlement’ was among the reasons the country decided it cannot continue to operate inside a supranational framework. And yet this reaffirmation of the traditional role of the UK parliament, delivered as part of one of the most important prime ministerial policy announcements in a generation, was delivered in a building managed by the Foreign Office, not at Westminster.

The irony has not been lost on many politicians and commentators reacting to Mrs May’s speech, including the Leader of the Opposition. The disjunction seemed to encapsulate one of the central tensions in the Brexit process, namely its potential to either expand or undermine the role of parliament in the UK’s democratic system. Especially now that the arguments about process that surrounded the Prime Minister’s speech have been followed by the Supreme Court’s ruling on the scope of the government’s prerogative powers, they have refocused attention on the implications of Brexit for the legislature.

Regardless of positions on Brexit, and the type of Brexit the Prime Minister has now said she will pursue, the EU referendum and withdrawal process represents a significant challenge to the UK’s traditional system of representative democracy. The UK is now embarked on one of the most consequential policies of its post-1945 history without this ever having been the policy of a government formed as a result of a general election. Before the referendum, EU withdrawal was the official policy of only two of the ten parties represented in the House of Commons (not counting Sinn Féin), mustering nine MPs between them (eight DUP and one UKIP). Taking Conservative, Labour and UUP splits into account, only 158 of 650 MPs – 24% – are reckoned to have backed ‘Leave’. The proportion of peers backing Brexit was probably even lower.

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Following the Supreme Court ruling, what happens next?

robert_hazell (1)me 2015 (large)

Following today’s Supreme Court judgement, the focus of attention shifts back to parliament.  How long will it take for parliament to pass the necessary legislation? How likely is it that the legislation will be amended? Robert Hazell and Alan Renwick assess the implications for the Brexit timetable, and the government’s negotiating strategy.

What will happen to the government’s timetable?

The government have confirmed that they will introduce a short bill, probably just one or two clauses, which it will seek to pass as a matter of urgency. Bills have occasionally been passed through parliament in a few days, or even a few hours. But that can only happen if both chambers recognise the urgency, and support the bill. Crucially, the government would need to get majority support for a timetabling motion in the House of Commons to expedite the process. That might not be forthcoming in a House where three quarters of MPs voted for Remain. (In 2012 Nick Clegg had to abandon his Lords Reform bill after the government lost the timetabling motion following a big Conservative rebellion).

In the House of Lords, the government has no majority, and no control over time. The Lords Constitution Committee and the Lords EU Committee will both want to scrutinise the bill and its implications. The Lords will not block or wreck the bill, but they will want to give it proper scrutiny; especially if they think the scrutiny in the Commons has been inadequate.

Can the bill be amended?

In November government sources suggested the bill would be ‘bombproof’. Parliamentary officials say that is a fantasy. All sorts of ingenious amendments can be tabled, on process as well as substance: requiring a white paper to be published setting out the government’s negotiating position; seeking a second referendum on the negotiated terms; requiring the government to acknowledge that Article 50 notification is revocable, etc. Debate risks exposing continuing splits within both the Conservative and the Labour parties. Because the referendum specified nothing about what Brexit means, the battle continues between Brexiteers, who mostly support a hard Brexit, and Remainers hoping for a soft Brexit. Meanwhile Labour remains split on how to respond to the referendum outcome – to respect the will of the 52 per cent (who make up a majority in constituencies such as Stoke-on-Trent Central, where the forthcoming by-election will be hard fought), or speak up for the majority of Labour voters, who backed Remain. Speaking in parliament after the judgement, Labour’s Shadow Brexit Secretary, Keir Starmer, indicated that Labour would seek to amend the Article 50 legislation to require a white paper on the government’s plans, stipulate mechanisms for parliamentary scrutiny of the negotiations, and hold a ‘meaningful’ vote on the final deal. Legislation gives all groups in parliament multiple opportunities to table amendments or extract promises or impose conditions on the government during its passage.

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Malign influence, lame duck or honest broker? The UK’s role in Europe during the Brexit negotiations

Nick-Wright

The UK will remain a full member of the EU until withdrawal negotiations are completed. In this post Nick Wright explores the roles that Britain might play in EU decision making once Article 50 has been triggered. He considers three possibilities – malign influence, lame duck and honest broker – and concludes that at the moment the second seems most likely, although elements of the other two may also be seen along the way.

Britain remains a full member of the EU until the completion of withdrawal negotiations. It is important to re-state this obvious point because, regardless of the Brexit process, the EU continues to function and therefore the UK continues to have a say (and a vote) on all EU decision-making via the Council of Ministers. The question then is how that will work: how will the dynamics of ‘normal life’ in the Council interact with the Brexit process?

The Council, which agrees all EU legislation in conjunction with the European Parliament, is not a single, unitary body. It exists in a number of ministerial formations covering the range of policy areas dealt with at EU level and is dependent on a complex sub-structure: most policy is decided at the ambassadorial level in the two committees of the Permanent Representatives (Corepers I & II) and the Political and Security Committee. Supporting these are dozens of working parties and technical groups which deal with specific policy questions, ranging from highly technical regulations relating to the Single Market to the implementation of sanctions against Russia.

All member states are represented and involved in continuous negotiations and decision-making across all issues and at every level, and the UK is no exception.

So what happens once Article 50 is triggered? Will the UK still try to influence Council decision-making at all levels? Will it be able to, given the pressure the Brexit negotiations will place on its administrative and diplomatic resources? And how will the EU-27 respond to British efforts to continue to play a role? To help us think about these questions, three simple scenarios are mapped out below.

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