Parliament, politics and anti-politics

meg_russell_2000x2500.jpgThis week, the Constitution Unit and UK in a Changing Europe publish a new report, Parliament and Brexit, which contains expert analysis how parliament has handled Brexit in the near four-year period since the 2016 referendum victory for the Leave campaign. It also includes discussion of parliament’s future scrutiny functions, as Brexit continues to take shape in increasingly difficult political times. In this, the first excerpt from the report to appear on our blog, Unit Director Meg Russell outlines how the tussle between parliament and government over Brexit harmed the former’s reputation, to the detriment of our parliamentary democracy.

Parliament sits at the heart of the UK’s democracy, with core functions of holding the government to account, scrutinising and legitimising its actions. Through local representation and the representation of political parties, it links citizens to the key political decisions that are taken in their name.

In all democracies parliaments are central – it’s impossible to be a democracy without a parliament. But this centrality is particularly so in the UK, for two fundamental reasons. First, as a ‘parliamentary’ (rather than presidential) democracy the government ultimately depends on the confidence of the House of Commons for its survival. Second, the UK puts the principle of ‘parliamentary sovereignty’ at the core of its constitution (as discussed in Barnard and Young’s contribution to the report). Challenges to the authority of parliament are thus challenges to UK democracy, and potentially to our constitution itself. Yet such challenges occurred, increasingly, during the Brexit process.

That process saw unprecedented levels of conflict between government and parliament, and perceived conflicts between ‘parliament and people’, precipitated by a unique chain of events. The 2016 referendum handed voters the in-principle decision over the UK’s membership of the EU, at a time when most MPs supported Remain (see contributions in the report from Philip Lynch and Richard Whitaker). This already promised tensions, given that parliament and government were left to navigate the more detailed questions about the form that Brexit should take. The Conservatives were highly divided on Brexit, while most Labour MPs instinctively opposed it. Delivering such a controversial policy with the narrow parliamentary majority that Theresa May inherited from David Cameron looked risky, so she gambled on a general election in 2017 to improve matters; but this resulted in an even weaker minority government. Her authority was undermined, and parliament more divided than before. Continue reading

Has parliament just got boring? Five conclusions from the passage of the EU Withdrawal Agreement Act

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The 2019 parliament has passed its first statute: the European Union (Withdrawal Agreement) Act 2020. Unusually for a major constitutional bill it was approved unamended. Does this demonstrate the shape of things to come, with an enfeebled parliament under Johnson’s majority government? Lisa James and Meg Russell argue that the WAB was not a typical bill, and the circumstances were far from normal. Even under majority government parliament is far from powerless, and the full dynamics of the new situation may take some time to play out.

1. The Act passed easily – but the circumstances were unusual

The EU (Withdrawal Agreement) Act 2020 (the WAA or – before it gained Royal Assent – the WAB) passed with remarkable ease and speed. A 100-page bill implementing the Withdrawal Agreement, it was packed with detailed provisions on everything from citizens’ rights to the operation of the Joint Committee. Nonetheless, following just 11 days’ scrutiny, it passed wholly unamended: five government defeats in the Lords were swiftly overturned when the Bill returned to the Commons.

Comparison with a key previous piece of Brexit legislation – illustrated in the table below – shows how uneventful the WAB’s passage was in relative terms. The EU (Withdrawal) Act 2018 was similar in scope and complexity, but had a far rockier passage. During 36 days’ scrutiny the government was defeated 16 times, including a rare defeat in the Commons. By the time it passed, it had been so heavily amended – by backbenchers, opposition parliamentarians and ministers themselves – that it was 63% longer than when first introduced.

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Why the new Speaker may not always be able to play a straight bat

NGQojaZG_400x400 (1)On 4 November, the House of Commons elected Lindsay Hoyle to serve as Speaker, following the resignation of John Bercow. It has been treated as accepted wisdom that a different approach to the Speakership is called for. However, Bercow has taken decisions about the Commons’ handling of Brexit in circumstances where several – or all – of the available choices were potentially controversial. Jack Simson Caird argues that his successor might therefore find that trying to ‘play a straight bat’ is not as easy or appropriate as it might appear.

Lindsay Hoyle is the new Speaker of the House of Commons. Hoyle, like many of his fellow candidates for the role, sought to emphasise that he would be very different from John Bercow. One of the main narratives around the election was that the Speaker should be, in the words of Chris Bryant, ‘an umpire and not a player’. All the candidates, including Hoyle, pledged to follow Bercow in standing up for backbenchers, but at the same time suggested that he had made procedural decisions in the 2017 parliament that were problematic. It is in that context that this post seeks to revisit some of the major decisions taken by Bercow during the last parliament. In the narrative established by the media and several of the candidates during the election for his successor, Bercow’s major Brexit decisions were portrayed as the product of his personality, and a desire to be the focal point of political debate. However, when the Speaker’s key decisions are examined in context, that narrative seems rather simplistic. If, after the general election, Lindsay Hoyle is faced with a minority government that is seeking to push through constitutional reforms in the face of opposition from large numbers of MPs, then he may find himself in the political spotlight. The analysis below suggests that in that context, balancing a commitment to be a champion of backbench MPs and the desire to play procedural decisions with a ‘straight bat’ may prove to be difficult in practice.  Continue reading

Which MPs are responsible for failing to ‘get Brexit done’?

meg_russell_2000x2500.jpgToday Boris Johnson will give his leader’s speech at Conservative Party conference, doubtless with a central argument about the need to ‘get Brexit done’. MPs have been blamed for the failure to achieve this. But which MPs precisely are responsible? Meg Russell argues that opposition parties cannot normally be expected to deliver government policy. Instead, government backbenchers usually have that role. It is resistance from Conservative backbenchers – including Johnson himself and others promoted to his Cabinet – to supporting Theresa May’s deal that provides the most obvious reason for Brexit not having been agreed.

The slogan for this year’s Conservative Party conference, under the leadership of the new Prime Minister Boris Johnson, is to ‘get Brexit done’. Immediately following the Supreme Court ruling against the government last week, ill-tempered exchanges in the House of Commons saw the Prime Minister repeatedly blaming parliamentarians for failing to deliver Brexit. For example, Boris Johnson commented thatPoliticians of all parties promised the public that they would honour the result. Sadly, many have since done all they can to abandon those promises and to overturn that democratic vote’. In contrast he pledged thatWe will not betray the people who sent us here; we will not’, adding that ‘That is what the Opposition want to do’. Far stronger words, characteristically, have been ascribed to his chief adviser Dominic Cummings in blaming parliament for the Brexit impasse. Several papers have reported Cummings as suggesting that it was ‘not surprising’ that people are angry with MPs, as they have failed in their duty to get Brexit done. Given the risks that such comments further stoke such public anger against our democratic institutions, it seems important to consider exactly which MPs primarily bear responsibility for the failure to agree a Brexit plan.

First, a quick recap on what happened in the months before Johnson took office. His predecessor, Theresa May, pursued a lengthy negotiation with the EU27 – resulting in a withdrawal agreement that was signed off on 25 November 2018. Under the terms of Section 13 of the European Union (Withdrawal) Act, this deal was then put to an initial ‘meaningful vote’ in the House of Commons on 15 January 2019. However, it was defeated by MPs by a whopping 432 to 202 votes. The Prime Minister subsequently brought the deal back for a second such attempt on 12 March. By this point various MPs had been brought round to supporting the deal; but it was nonetheless still heavily defeated, by 391 votes to 242. A third and final attempt at getting the House of Commons to agree the deal then occurred on the originally-planned Brexit day, of 29 March 2019. This was not a ‘meaningful vote’ under the terms of the Act, as Speaker John Bercow had hinted that such a move could be ruled out of order – on the basis that MPs cannot just repeatedly be asked to vote upon the same proposition – but it was again an in-principle vote on the deal. Again the gap between supporters and opponents narrowed, but the government was defeated by 344 votes to 286 – a margin of 58. Hence a further 30 MPs would have needed to switch from opposing to supporting the deal in order for it to be clearly approved. Continue reading

The Supreme Court ruling in Cherry/Miller (No.2), and the power of parliament

meg_russell_2000x2500.jpgThis week’s Supreme Court judgment against Boris Johnson on parliament’s prorogation has shaken British politics and will be looked back on as a landmark case. Yet at the same time, Meg Russell argues, it simply reinforces the core principle of parliament’s centrality in our constitution. There has long been a myth of executive-dominance in the British system. Perhaps after this case, the fact that the government gains its power and authority from parliament will be better recognised – by those both inside and outside the system.

The Supreme Court’s judgment in the prorogation case was damning. Short of deciding that Boris Johnson had misled the Queen (which would be difficult to know, given private conversations) the court issued the strongest possible condemnation on all counts. The government had argued that prorogation was non-justiciable: i.e. not a matter in which the courts could get involved. The justices instead ruled it justiciable. Having established that, they then ruled it to be unlawful. Then, rather than leaving any loose ends regarding remedies, they explicitly quashed the prorogation, declaring that ‘Parliament has not been prorogued’. To cap it all, the decision was a unanimous one by all 11 justices who sat in the case. The prorogation was hence not just ‘improper’, as argued previously on this blog, and in a letter to the Times signed by 22 constitutional experts, but also found to be unlawful in the most powerful possible terms.

In some respects this feels like a constitutional earthquake. Few at the outset expected such a resounding result. On the basis of the High Court’s judgment, the first hurdle of justiciability was in doubt. Many who watched the proceedings, and the careful forensic analysis by Lord Pannick, representing Gina Miller, will soon have started thinking otherwise. This can only have been reinforced by watching the presentations by the government’s lawyers, who claimed that the issue of prorogation should be resolved politically rather than through the courts. Their suggestion that parliament could somehow defend itself, when the very point of the case was that parliament had been shut down, rang hollow.

The court’s judgment confirmed that advising the monarch to prorogue ‘will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive’ (para 50). That flows, the judgment suggested, from two principles at the very core of the UK constitution: the sovereignty of parliament, and the accountability of the government to parliament – exercised, for example, through questions and committees. Continue reading

Can Boris Johnson ignore parliament and force a no deal Brexit?

meg_russell_2000x2500.jpgprofessor_hazell_2000x2500_1.jpgControversy is swirling over the extent to which Boris Johnson’s government must be bound by parliament, particularly regarding a ‘no deal’ Brexit. Some have even suggested that Johnson could flout a Commons vote of no confidence and pursue this outcome contrary to parliamentary support. Meg Russell and Robert Hazell explore such questions, concluding that both convention and parliamentary logic mean Johnson cannot ultimately force a ‘no deal’. But to prevent this MPs must be organised and determined.

There has been much recent controversy about whether Boris Johnson’s new government can press ahead with a ‘no deal’ Brexit against the express wishes of the House of Commons. This was kicked off in part by a front-page story in Tuesday’s Times headed ‘Johnson to defy any vote of no confidence’ – suggesting that even if MPs went so far as to withdraw their support from the government, the Prime Minister could stay on and force a ‘no deal’ Brexit, perhaps in the middle of a general election campaign. Various commentators have subsequently expressed their views. Many questions raised are close to those that we addressed in an earlier post on this blog reflecting on constitutional questions surrounding the (then still awaited) appointment of the new Prime Minister. Here we return to some of these questions, and our conclusions are twofold. First, despite disparate commentators’ voices, there is a high degree of agreement on the key issues. Second, the essential answer to the question posed in our title is ‘no’. But this depends on strong political will and organisation by the forces in parliament opposed to ‘no deal’.

The options available to MPs

Much energy has been spent in recent months, including prior to the Johnson premiership, reflecting on what MPs’ options are if they want to block a ‘no deal’ Brexit. The general view – for example from the Institute for Government, and from Jack Simson Caird on this blog – is that such options are limited, but do exist. MPs’ continued determination to prevent a ‘no deal’ outcome was demonstrated by the heavy defeat inflicted on Theresa May’s government over the Northern Ireland (Executive Formation) Bill – which in effect blocked the threat of an autumn prorogation. On a previous occasion, ‘no deal’ was defeated by 400 votes to 160. Now, following the departure of many ministers from the government, the forces against ‘no deal’ on the Conservative backbenches are even stronger.

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