Lords Brexit defeats are forcing MPs to face crucial choices

meg-russellOne part of the government’s flagship Brexit legislation is now nearing its parliamentary endpoint after the EU (Withdrawal) Bill completed its report stage in the House of Lords in early May. The UK parliament’s second chamber inflicted 14 government defeats on the bill, which sets out arrangements to facilitate Brexit. It will soon return to the House of Commons for these various issues to be considered. Meg Russell examines some of the issues this may cause for the House of Commons and parliament as a whole.

The Lords’ interventions have led some to claim that this is a “peers versus the people power grab”, or even that the chamber is behaving in an “unconstitutional” manner. But while the current situation may be unusual, it’s not for the reasons many commentators claim.

There have been many past standoffs between governments and the House of Lords, some far more serious than this one. The most famous clashes occurred a century or more ago under Liberal governments, including over the 1832 Great Reform Act and Lloyd George’s 1909 “people’s budget”. The largest recorded annual number of Lords defeats– 126 – occurred under Labour in 1975-76. Defeats under the Labour governments of Tony Blair and Gordon Brown were commonplace – for example there were 12 on the 2005-6 Identity Cards Bill. Continue reading

Why parliament needs a ‘good Brexit’

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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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The UK decision to withdraw from the EU: parliament or government?

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In light of the ongoing legal hearing on the triggering of Article 50, Piet Eeckhout, Professor of EU Law at UCL, examines Article 50 from an EU law perspective. He explores what the UK’s constitutional requirements for leaving the EU entail, noting that parliament has a role to play in any withdrawal decision.

The litigation concerning the triggering of Article 50 is underway. It is the constitutional case of the century. The government’s skeleton argument has been published. This reveals that one of the pillars of its defence is that the decision to withdraw from the EU has already been taken. Consequently, all that is in issue is the authority to notify the EU of that decision, and to start the two-year negotiation period provided for in Article 50. That, the government’s case goes, is a decision of high policy which is rightly in the government’s hands, and not in those of parliament.

In an excellent blog Mark Elliott and Alice Young dissect and critique this framing of the litigation. They point out that it is difficult to identify who took the momentous Brexit decision, given that the referendum was advisory and there is no formal government decision either – only political statements. Their critique is informed by UK constitutional authority.

In this blog I also want to focus on this question, but more from an external and EU law perspective. The theses I want to present are twofold. First, and at the expense of coming across as completely divorced from reality, I argue that there is as yet no Brexit decision. Second, if the principle of UK parliamentary sovereignty is to continue to have real meaning, the decision has to be taken by parliament, not the government.

Ever since the debate about the respective roles of parliament and government in the Brexit process gathered steam, there has been an excessive focus on the notification question: is it for the government to ‘trigger’ Article 50 by notifying the EU, or is it for parliament? This kind of framing of the debate overlooks the wording of Article 50. The first paragraph of that provision proclaims that ‘any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements’. The second paragraph states that ‘a Member State which decides to withdraw shall notify the European Council of its intention’. So first, there must be a constitutionally orthodox decision to withdraw. The notification is secondary.

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