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

This prorogation is improper: the government should reverse it

meg_russell_2000x2500.jpgalan.jfif (1)professor_hazell_2000x2500_1.jpgBoris Johnson’s prorogation announcement has generated widespread criticism, and will be hotly debated when MPs return today from their summer break. Meg Russell, Alan Renwick and Robert Hazell argue that the decision to suspend parliament for five weeks was an improper use of executive power, sets dangerous precedents, and undermines fundamental principles of our constitution. It should therefore not proceed. MPs may seek to block it, and so may the courts, but the preferable route would be for the government to recognise its mistake and reverse it.

MPs return to Westminster today after the five-week summer recess in deeply unusual and worrying circumstances. Last week Prime Minister Boris Johnson, who has faced just one day of parliamentary scrutiny since taking office on 24 July, triggered a prorogation of parliament, set to last another five weeks. Particularly given the Brexit deadline of 31 October, this has caused widespread consternation: among opposition parties, senior Conservatives (such as former Prime Minister Sir John Major, and Lord Young of Cookham who served for 24 of the last 40 years on the frontbench under a succession of Conservative leaders), plus constitutional experts, and the wider public. MPs must now decide how to respond, and meanwhile the action is being challenged in the courts. In this piece we argue that the prorogation was improper, that it sets dangerous precedents, that it is contrary to our constitutional traditions, and that there is still time for the government to defuse the crisis by reversing it.

The rights and wrongs of prorogation

At one level, parliamentary prorogation is entirely uncontroversial. By routine, a short prorogation usually occurs each year between the end of one parliamentary session and the start of the next – ahead of a new Queen’s speech. In addition, a short prorogation often occurs before parliament is dissolved for a general election, in order to regulate the timing and ensure that election day takes place on a Thursday. The recent practice and procedure of prorogation is set out clearly in an excellent briefing from the House of Commons Library.

Discussion of potentially more sinister uses of prorogation began during the Conservative leadership contest, when Dominic Raab (now Foreign Secretary) refused to rule out proroguing parliament to force through a ‘no deal’ Brexit in the face of opposition by MPs. This was roundly condemned by others in the race at the time: being described by Sajid Javid (now Chancellor of the Exchequer) as ‘trashing democracy’, and Michael Gove (now effective Deputy Prime Minister) as ‘a terrible thing’. Andrea Leadsom (now Secretary of State for Business, Energy and Industrial Strategy) commented that ‘I don’t think prorogation is the right thing to do and I don’t think that a Prime Minister would choose to do that’.

Following Johnson’s prorogation announcement, ministers have instead suggested that this is absolutely standard procedure. On Thursday’s Today programme, the Leader of the House of Commons, Jacob Rees-Mogg, claimed that it was more or less what happened every year, and that it was ‘because of the 3 ½ weeks of conference recess [that] it is five weeks in total’. Hence Rees-Mogg accused critics of the move of expressing ‘confected anger’.

But such suggestions of normality are disingenuous, seeking to exploit public confusion between the different means by which it can be decided that the Commons will not sit. It is important to distinguish between the following three things:

Prorogation brings all parliamentary business to a complete stop. Unless rescued by a government motion, bills that are before parliament fall and must start their passage again. Importantly, the decision to prorogue lies wholly in the hands of the government – through issuing advice to the Queen, which she is duty bound to accept. Usually a prorogation lasts for just a few days. Research by the House of Lords Library shows that a five-week prorogation will be the longest since 1930.  

Parliamentary recess is very different. Recess occurs periodically throughout the year, to accommodate holidays and, usually, a break for the party conferences. However, the decision to adjourn for recess lies with MPs. The motion for the 2019 conference recess had not yet been laid, and the looming Brexit deadline meant that there was increasing pressure from MPs to cancel or cut this recess short. Crucially, it is also possible for some parliamentary business – such as meetings of select committees – to continue during recess, and the progress of bills is not halted.

Dissolution of parliament in contrast occurs before a general election. Under the Fixed-term Parliaments Act, the decision to dissolve parliament again lies with MPs themselves – and is taken by a parliamentary vote. Dissolution does not simply suspend parliament: as the name suggests, it dissolves parliament in preparation for the creation of a new one through a general election.

Hence either recess or dissolution, sometimes combined with a short prorogation, frequently result in parliamentary breaks which last a number of weeks. But in both of these cases MPs take the decision to break themselves. Had ministers genuinely wanted to hold a ‘routine’ prorogation to facilitate a Queen’s speech, as they claim, they could easily have proposed one lasting a few days, and left the decision to MPs regarding whether to take the conference recess. Instead, they have proposed the longest prorogation for 90 years, using executive power to shut down parliament in the midst of a crisis – seemingly to avoid the risk that MPs would veto the conference recess, and perhaps use the time available defeat the government on other things. As suggested in the previous comments of Conservative leadership contenders, that represents an improper use of executive power. Continue reading