Tag Archives: House of Commons

The parliamentary battle over Brexit and the constitution

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Today sees the publication of a new book by the Unit’s Meg Russell and Lisa James, The Parliamentary Battle over Brexit. Here the authors summarise some of its key findings about why parliament was drawn into such controversy over the implementation of Brexit. They reflect on what these events teach us about our constitution, as well as what may need to change in order to avoid repeating such problems, and to mend the damage done.

The UK’s arguments over what became known as Brexit began long before the June 2016 referendum, and continued with increasing bitterness afterwards. Parliament was often central, both as a venue for such arguments, and in terms of disputes about its proper role. It and its members frequently faced criticism and blame. Our new book, published today, charts The Parliamentary Battle over Brexit, from the early pressures for a referendum, through disputes about the triggering of Article 50 and control of the House of Commons agenda, the repeated defeats of Theresa May’s deal, and Boris Johnson’s unlawful parliamentary prorogation, to the UK’s eventual departure from the EU following his deal. The book charts what happened, but also asks what went wrong and whether things could have been handled differently. It reflects on what these events teach us about the functioning of our constitution, and what if anything might need to change.

The book includes a wealth of detail about key political moments, and the roles of different individuals and groups. Here we focus on some of the bigger questions about the lasting legacy of the battles over Brexit for the culture and institutions of UK politics, and particularly for the place of parliament itself. A fuller version of this analysis appears in the final chapter of the book.

Referendums and public participation

The referendum of 23 June 2016 was only the third ever such UK-wide vote (the first being on European Community membership in 1975, and the second in 2011 on changing the House of Commons voting system). The handling of the referendum was the single biggest error of the Brexit process, from which many other difficulties flowed.

Unlike the 2011 referendum, which was underpinned by legislation setting out the detail of the proposed new voting system, no clear prospectus was offered to the voters for Brexit. Prime Minister David Cameron hoped to use the vote – described disapprovingly by the House of Commons Public Administration and Constitutional Affairs Committee as a ‘bluff call’ referendum – to make the question of Brexit go away. Parliament never debated the substance of the question, the government did not detail the options, and civil servants were forbidden from preparing for a Leave vote. Leave campaigners argued at the level of principle, rather than on a specific plan. As one Brexit-supporting interviewee told us, ‘it was only [after the referendum] that different types of Brexit started coming to the fore. Soft Brexit and hard Brexit had never been canvassed before the referendum; the expressions were coined afterwards’. Issues that would soon come to dominate the agenda, such as membership of the Customs Union or Single Market, and crucially the Northern Ireland border, were barely mentioned during the campaign. This left the government – and parliament – in a very difficult position. The different options for Brexit had to be established only after the vote had taken place, and on this the voters had conveyed no clear instruction.

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The misleading of parliament greatly troubles the public: something should be done

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The recent case of Boris Johnson, now referred to the Committee of Privileges, highlighted perceived problems in handling allegations of MPs misleading the House of Commons. Meanwhile, Constitution Unit research shows that the public want tough sanctions for such behaviour. Meg Russell summarises these findings, in the context of the Johnson inquiry, and a parallel inquiry by the Commons Procedure Committee on correcting the record – arguing that serious consideration should be given to tightening the rules.

Recent context

Concerns about the truthfulness of politicians are nothing new. Indeed, historically politicians may often have been subject to unfair criticism in this area. Within parliament, and particularly with respect to ministers, there is a strong expectation that members should tell the truth. The December 2022 edition of the Ministerial Code states in its very first article (as did its predecessors) that:

It is of paramount importance that Ministers give accurate and truthful information to Parliament, correcting any inadvertent error at the earliest opportunity. Ministers who knowingly mislead Parliament will be expected to offer their resignation to the Prime Minister.

Within parliament, this matter is in theory handled equally seriously. Erskine May states that ‘The Commons may treat the making of a deliberately misleading statement as a contempt’. As such, this behaviour may be referred to the Committee of Privileges for investigation leading to possible punishment.

These matters reached prominence under the premiership of Boris Johnson, who was frequently accused – by MPs and others – of misleading parliament. Things came to a head over statements that he had made about ‘partygate’ (the holding of social gatherings in 10 Downing Street during the COVID-19 lockdowns), which ultimately resulted in Johnson being referred to the Committee of Privileges. It is currently undertaking an investigation. Aside from the allegations themselves, controversy has reached the news over Johnson submitting a legal opinion to the committee questioning its processes, and over his legal advice being funded by the public purse. Hearings by the committee are expected in due course, with a report later this year.

Meanwhile, the House of Commons Procedure Committee is conducting a parallel inquiry which also addresses handling of misleading statements to parliament, with a focus on ‘correcting the record’. Unlike the Committee of Privileges, the Procedure Committee has invited evidence on general issues, rather than a single case, and it exists to propose changes to Commons procedures. Understandably, therefore, it has attracted evidence from those concerned about recent events.

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Checks and balances: what are they, and why do they matter?

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Checks and balances are fundamental elements of constitutional democracy that prevent the unconstrained exercise of power, improve the quality of decision-making and ensure that mechanisms exist for preventing or penalising unethical behaviour. Lisa James, Alan Renwick and Meg Russell argue that they therefore play a vital role in maintaining public confidence in the political system and the government has a particular responsibility to uphold them.

Background

The importance of checks and balances is often cited in debates about the health of democracy, and their erosion is widely considered a sign of democratic backsliding. But what are they, and why are they important?

Checks and balances are the mechanisms which distribute power throughout a political system – preventing any one institution or individual from exercising total control. The words ‘checks’ and ‘balances’ are typically used together, but can be thought of as referring to subtly different (though overlapping) things. Checks are the mechanisms which allow political institutions to limit one another’s power – for example by blocking, delaying or simply criticising decisions. Balances, meanwhile, ensure that a wide variety of views and interests are represented in the democratic process. This includes structures like federalism, or broader features of democratic functioning such as the existence of multiple political parties.

The term ‘checks and balances’ is given more prominence in some countries than others, and is often particularly associated with the United States. But the principle is core to all modern democracies.

Checks and balances operate between and within most political institutions. However, the risks of unconstrained power are often considered particularly high with respect to the executive. This briefing hence focuses on the key institutions which check and balance executive power at UK level:

  1. parliament
  2. the courts
  3. impartial officials, and
  4. media and civil society.

Why do checks and balances matter?

Checks and balances play two key roles. First, they limit the power of the majority to act without regard to the views or interests of others. They ensure that the perspectives of those who are in the minority on a given issue are represented – for example, by guaranteeing that opposition voices are heard in the process of law-making. Second, at a more practical level, they ensure that policy is tested and behaviour supervised. This helps to improve the quality of decision-making, and prevent behaviour which might threaten the integrity or reputation of the political system.

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What does the new Prime Minister mean for the constitution?

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The Constitution Unit held an event in November at which three expert panellists discussed the potential constitutional impact of newly appointed Prime Minister Rishi Sunak, discussing the problems posed by concerns about ministerial standards, the government’s decision to proceed with several bills that pose worrying constitutional questions, and the future of the devolution settlement. Alice Hart and Hashmath Hassan summarise the contributions.

On the day that the UK Supreme Court ruled that the Scottish Parliament cannot legally hold another independence referendum without Westminster’s approval, the Constitution Unit held an event to discuss the potential constitutional impact of the new Prime Minister, Rishi Sunak. The event was chaired by Professor Meg Russell, Director of the Constitution Unit, and brought together three expert panellists: Jill Rutter (a Senior Research Fellow at UK in a Changing Europe and a Senior Fellow at the Institute for Government); Dr Ruth Fox (Director of the Hansard Society); and Professor Colm O’Cinneide (Professor of Constitutional and Human Rights Law at University College London). The summaries below are presented in order of the speakers’ contributions. 

Jill Rutter 

Jill Rutter discussed the need to repair the damage done to the perception of standards in public life during Boris Johnson’s time as Prime Minister. Johnson suffered the resignation of two Independent Advisers on Ministers’ Interests in as many years, tolerated misbehaviour from his MPs and was ‘fast and loose with the facts’ in parliament. Sunak’s commitment to the integrity agenda is unclear, Rutter stated. He has made assurances that he will appoint an Independent Adviser (unlike his predecessor, Liz Truss, who indicated that she did not need one) and has appointed a barrister to lead an independent inquiry into bullying allegations against Deputy Prime Minister Dominic Raab. However, questions remain about Sunak’s approach to his new Independent Adviser, such as whether he will provide the postholder with sufficient resources (as promised by Johnson to former Independent Adviser Lord (Christopher) Geidt) and whether he will make any effort to ensure their independence in terms of both the publication of reports and initiation of investigations without the approval of the Prime Minister.  

Other than these immediate actions, little is known about Sunak’s plans to restore integrity and trust in government. Clamping down on lobbying may be a good place to start, Rutter suggested: she noted that the Gordon Brown review of the constitution commissioned by the Labour Party is planning to propose limitations on MPs’ second jobs. She provided some examples of big ideas that Sunak could adopt, such as Labour’s proposal to establish an Integrity and Ethics Commission and the Australian government’s introduction of an anti-corruption commission. A key challenge for Sunak, Rutter suggested, is dealing with Johnson’s and Truss’ lists of nominations to the House of Lords – especially with regard to how they may affect trust in politics.  

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