Brexit and parliament: an end of term report

Posted on August 6, 2019 by The Constitution Unit

On 22 July, the Unit, in association with The UK in a Changing Europe, hosted four experts on the legislative process, including our Director, Professor Meg Russell, for a panel discussion of parliament’s handling of Brexit. Sam Anderson summarises the main contributions.

On 22 July, the Constitution Unit held a packed event entitled ‘Brexit and Parliament: an end of term report’. As well as launching Unit Director Professor Meg Russell’s new Senior Fellowship with The UK in a Changing Europe, it offered a key opportunity to reflect on parliament’s recent performance on Brexit and what may lie ahead. The other contributors were Hilary Benn MP, Labour Chair of the Commons Exiting the European Union Select Committee; Chris White, Managing Director of Public Affairs at Newington Communications and former adviser to two Conservative Leaders of the House; and Dr Brigid Fowler, Senior Researcher at the Hansard Society, who leads its work on parliament and Brexit. The event was chaired by Dr Daniel Gover, Research Fellow at the Constitution Unit and Lecturer in British Politics at Queen Mary University of London. The discussion included whether parliament had used some of its more innovative procedures appropriately, potential next steps in the backbench fight to stop ‘no deal’ and public perceptions of how parliament is performing in the Brexit process.

Meg Russell

Meg Russell gave an overview of the three key research areas that her new fellowship will focus on.

1. How direct and representative democracy relate to each other in the UK

This has been one of the main issues raised by the 2016 referendum. The centrality of parliamentary sovereignty in the UK constitution means that there is a natural tension between representative democracy – where decisions are made by parliament – and direct democracy, involving the use of referendums. Referendums can undoubtedly create tensions with parliament’s representative function; however the Unit’s Independent Commission of Referendums concluded that in certain circumstances referendums can usefully complement parliamentary sovereignty.

The concepts of direct democracy and the overriding mandate of the referendum have fed debates about the role of parliament that have taken a ‘darker turn’ in recent months. Challenging parliament’s decisions is legitimate in a democracy, but threatening the right of parliament to sit and perform its constitutional and legal functions is something we never expected to see. This rhetoric seeks ‘to pit the people against parliament’, with the ‘worrying implication that the executive should cut loose’ of the accountability that lies at the heart of our system, in the name of the people. For example, many responses to a recent tweet from former Conservative MP Nick Boles, in which he expressed concern about the government ‘muzzling’ parliament, invoked ‘the will of the 17.4 million’, with some suggesting that the will of MPs no longer matters. Prorogation has been advocated by a number of Brexiteer MPs, to prevent parliament blocking a ‘no deal’ Brexit. However it has been criticised by other prominent Leavers, such as Sir Bernard Jenkin, Chair of the Commons Public Administration and Constitutional Affairs Committee, and Andrea Leadsom, former Leader of the Commons.

2. The power of parliament over government policy

Professor Russell’s previous work has looked at the ways parliament exercises its power, including through select committees and the legislative process. Parliament is more powerful – and exercises that power in more subtle ways – than many often assume. The Brexit process has demonstrated this in a high profile way. A number of established patterns have continued: one is the anticipatory influence that the Commons has on government, such as when Theresa May offered MPs a vote on ‘no deal’ in March to avoid it being forced upon her. In addition, the Commons and the Lords have largely worked together as partners not rivals; the scrutiny role of select committees and the Commons chamber have been shown to play an important role in testing the claims and policies of ministers; and opposition days have been used in a number of ‘imaginative’ ways. Continue reading →

Trade Bill highlights parliament’s weak international treaty role

Posted on January 12, 2018 by The Constitution Unit

profile__brigid.fowler.01.000

On 9 January, the Trade Bill successfully passed its second reading stage in the House of Commons. Intended to regulate the implementation of international trade agreements after Britain leaves the EU, it is one of the most important pieces of Brexit-related legislation currently going through parliament. In this post, which originally appeared on the website of the Hansard Society, Dr. Brigid Fowler argues that the role of parliament in influencing the drafting and agreement of British trade treaties has the potential to be weakened, not strengthened by Brexit should this bill become law.

The Trade Bill, which had its second reading debate on Tuesday, is one of the most important pieces of Brexit legislation. It is a framework Bill enabling the UK to implement the non-tariff elements of future international trade agreements, where those agreements are with states with which the EU has signed a trade agreement by the date the UK leaves.

For non-tariff issues, the Bill is aimed at addressing the domestic legislative aspect of one of the most urgent Brexit questions: how to save, in less than 15 months, the preferential trade arrangements that the UK has through the EU with, according to the Bill’s impact assessment, at least 88 countries and territories, covered by perhaps 40-plus agreements.

The Bill’s broad aim is the same as that of the EU (Withdrawal) Bill – which has its report stage consideration in the House of Commons on 16–17 January – and indeed of the government’s overall Brexit approach: to minimise the disruption to business and consumers at the moment when the UK leaves the EU on 29 March 2019.

But, as regards trade agreements, the EU (Withdrawal) Bill on its own cannot do the job, because capturing the provisions of trade agreements that the EU might sign right up to Brexit day may require domestic implementing powers that last beyond those in that Bill.

Continue reading →

Why parliament needs a ‘good Brexit’

Posted on January 25, 2017 by The Constitution Unit

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.

Continue reading →