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

The Sewel convention and Brexit

mcewen-e1527685912390In March, the Constitution Unit co-published a new report, Parliament and Brexit, in which some of the UK’s leading academics examine how parliament has managed Brexit to date, and how it might seek to handle the issue in future. Here, Nicola McEwen discusses how the Sewel convention, which regulates the relationship between the UK Parliament and its devolved counterparts, was put under strain by Brexit.

There are four legislatures in the UK, but only one of these is sovereign. The sovereignty of the Westminster parliament remains one of the most important principles of the UK constitution. Each of the devolution statutes made clear that conferral of law-making powers on the devolved institutions ‘does not affect the power of the Parliament of the United Kingdom to make laws’ for Scotland, Northern Ireland and Wales – including in areas of devolved competence. But Westminster’s parliamentary sovereignty is offset by the constitutional convention that it will not normally legislate in areas of devolved competence, or alter the competences of the devolved institutions, without their consent.

That convention, commonly known as the Sewel convention, has become an important principle underpinning UK devolution. It represents a tacit understanding that the devolved institutions, each of which was founded on popular consent in a referendum, have primary democratic and political authority over laws within their areas of competence.

From the outset, the scope of the Sewel convention was ambiguous. The UK and devolved governments have frequently disagreed on the extent to which UK legislation necessitates legislative consent from the devolved institutions. When tasked with determining its status following its inclusion in the Scotland Act 2016 and the Wales Act 2017, the Supreme Court in Miller I concluded that it remained a convention rather than a legal rule, therefore ‘the policing of its scope and the manner of its operation does not lie within the constitutional remit of the judiciary’. The Court thus left it to politicians and parliament to determine the operation and interpretation of the convention. Continue reading

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

The Johnson government’s constitutional reform agenda: prospects and challenges

thumbnail_20190802_092917.jpgThe Conservative Party’s manifesto for the 2019 general election included a commitment to set up a Constitution, Democracy and Rights Commission (as discussed previously on this blog by Meg Russell and Alan Renwick) and engage in a wider programme of constitutional reform. In February, the Unit hosted an event to discuss the new government’s constitutional reform agenda: Sam Anderson summarises the main contributions. 

Page 48 of the Conservative manifesto for the 2019 general election committed to a wide range of constitutional reform proposals – including repeal of the Fixed-term Parliaments Act (FTPA), an ‘update’ of the Human Rights Act (HRA), and the creation of a ‘Constitution Democracy and Rights Commission’ to examine broader aspects of the constitution. On 4 February, the Constitution Unit held an event to discuss the implementation of this agenda, entitled ‘The Johnson government’s constitutional reform agenda: prospects and challenges. The panel consisted of two Conservatives: Lord Andrew Dunlop, a member of the House of Lords Constitution Committee and former Parliamentary Undersecretary of State for Scotland and Northern Ireland; and Chris White, a former Special Adviser to William Hague, Andrew Lansley and Patrick McLoughlin. Professor Meg Russell, Director of the Constitution Unit, chaired the event. The following is a summary of the main contributions. 

Lord Dunlop

Lord Dunlop suggested that the key question for the new government is what ‘taking back control’ means in constitutional terms. The years since the Scottish Independence referendum in 2014 have been incredibly rich for those interested in the constitution. We have seen a deadlocked parliament, an arguably ‘activist’ judiciary, and fracturing Union, whilst foundational concepts like parliamentary sovereignty, the separation of powers, and the rule of law have come under scrutiny. It would be wrong, however, to see the government’s manifesto commitments as simply a direct response to the political and constitutional crisis of last autumn. Brexit placed a number of areas of the constitution under strain, but for Dunlop, it is the long-term context that is key to explaining the proposals in the manifesto. In his opinion, the proposals are not about ‘settling scores’.

For a number of years, EU membership, the devolution settlements and the HRA have all to varying extents limited parliament’s law-making powers. For example, Lord Neuberger, former President of the Supreme Court, has pointed out the profound changes that the HRA has brought to the role of judges in relation to interpretation of statute law, and retired Supreme Court Justice Lord Sumption’s recent Reith Lectures have contributed to a long-running debate about the proper role of judges in a democracy. In Lord Dunlop’s view, the proposals on page 48 of the manifesto reflect the fact that Brexit has put additional pressure on an already strained constitution, and should therefore prompt us to consider whether the constitution is operating as it should.  Continue reading

Do we need a written constitution?

image1.000.jpgPrior to the general election, several of the parties’ manifestos called for the creation of a codified constitution for the UK. In December, the Constitution Unit hosted an event to debate the merits and downsides of such an exercise. Harrison Shaylor summarises the discussion.

What did the 2019 Liberal Democrat election manifesto and the Brexit Party’s ‘Contract with the People’ (from the same election) have in common? Both advocate the need for a written constitution in the UK. So too did the Green Party manifesto, and that of the Alliance Party of Northern Ireland. Meg Russell took part in a discussion on a written constitution in The Briefing Room on Radio 4 in September, and on 28 November, the Constitution Unit held its own event entitled ‘Do we need a written constitution?’. Two distinguished law professors – Sionaidh Douglas-Scott of Queen Mary University of London and Nicholas Barber of the University of Oxford – set out the case for and against a written constitution, in a debate chaired by a former Unit Director, Professor Robert Hazell. What follows is a summary of the presentations made by each participant. 

The argument for a written constitution: Sionaidh Douglas-Scott

‘Someone, I haven’t been able to trace whom, once said: Constitution building is a bit like dentistry: there’s never a good time for it; no one does it for fun; but it’s sometimes necessary and, when it’s done right, it prevents greater pain in the future.’

Professor Douglas-Scott explained that a constitution delineates the relationships between the major institutions of state, such as the executive and the legislature, as well as between the state and its citizens. More abstractly, a constitution says something about legitimacy and power. How does the state exercise power? And when is it legitimate for it do so?

The UK is unusual in not having a written constitution, in the sense of not having the fundamental rules of the constitution codified in a single document. It is one of only a few democracies in the world which lacks one, alongside Israel and New Zealand. The reason for this is historical. Since 1688, Britain has not experienced a revolution or regime change – a ‘constitutional moment’ – like the American or the French Revolution, or the withdrawal of colonial rule. Rather, Britain’s constitution has evolved slowly over time under relative stability; it has never been deemed necessary to list the fundamental laws and principles underpinning the country’s polity. As the Constitution Unit website states: ‘What Britain has instead is an accumulation of various statutes, conventions, judicial decisions and treaties which collectively can be referred to as the British Constitution.’

This arrangement, Professor Douglas-Scott argued, is no longer adequate. The current constitution is deficient for three reasons: its lack of clarity; its failure to properly protect fundamental rights; and the inadequacy of the current devolution settlement. Continue reading

Politics, courts and the UK’s single market

image_preview.jpgBrexit is likely to pose numerous legal questions about how the various parts of the UK relate to each other once the UK leaves the EU. Deborah Mabbett argues that the recent Supreme Court decision on prorogation is therefore unlikely to be the last time the judiciary is called upon to decide a matter related to Brexit.

Even among those who welcomed the Supreme Court’s decision on the prorogation of parliament, there has been concern that it has entered into dangerous new territory. It might have been forced there by a Prime Minister who failed to observe convention, or by a parliament that resiled from its duty to remove a government which has no majority, but forced it was, and this is a source of concern and regret. Several commentators have argued that the decision paves the way for a nasty and unpredictable election structured around a populist opposition of courts and parliament versus ‘The People’, and indeed those who see Dominic Cummings as an evil genius fear that this was the intention of the prorogation in the first place.

For those seeking a calmer view, the Court is clear in its self-assessment that, far from entering new territory, it is firmly placed on ground it has held all along. It has upheld the rule of law, in the specific sense of imposing limitations on arbitrary authority. This is the daily bread and butter of administrative law, of which there is a great deal more than excitable commentators seem to realise. Below the public gaze, the courts have dug in their heels over countless daily exercises of executive power, including the mistreatment of immigrants, the removal of welfare rights and the denial of access to justice. True, the arbitrary power challenged in these cases is not exercised by the contemporary king—the Prime Minister—but by the agents and minions of the state. Escalating the level of scrutiny to the actions of high political figures makes the prorogation decision a matter of constitutional rather than administrative law, but law it is.

On what grounds can it be claimed that the Supreme Court’s decision is ‘political’? The domains of law and politics cannot be defined by their subject matter, which clearly overlap across great swathes of social issues. We must look instead for differences in method and modes of reasoning. The characteristic method of politics is the structured antagonism of government and opposition, organised around the general political orientations of left and right. The belief that the Court had made this kind of decision seems to be behind the claim of Toby Young and Douglas Carswell, among others, that the prorogation judgment calls for action to ferret out and expose the partisan leanings of the justices. Yet left and right partisanship was obviously beside the point in the decision. 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

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

Beyond Brexit: Towards a British Constitution

vb_image_70x90Brexit is a major constitutional change. It creates considerable constitutional uncertainty, but also opportunity. It could prove Britain’s constitutional moment. Vernon Bogdanor argues that just as joining the EU fundamentally altered the UK constitution, so Brexit could, by exposing the very nakedness of Britain’s uncodified arrangements, prove a catalyst for a written constitution.

During the period of membership of the European Communities/European Union, the UK was subject to a written or codified constitution, which was entrenched. Brexit is a process rare if not unique in the modern world, involving as it does disengagement from a codified to an uncodified system. It is just possible indeed that Brexit will lead to a codified constitution for the United Kingdom that would bring us into line with virtually every other democracy in the modern world.

At a seminar at King’s College, London shortly after the 2016 EU referendum, Takis Tridimas, a professor of European Law at King’s said that the result represented the most significant constitutional event in the UK since the restoration of the monarchy in 1660, since it showed that on the issue of Europe, the sovereignty of the people trumped the sovereignty of Parliament. Of course, from a legal point of view, the referendum was merely advisory, but the government committed itself to respecting the result and the outcome was seen by the majority of MPs as decisive. Since June 2016, therefore, both government and parliament have been enacting a policy to which they are opposed. That is a situation unprecedented in our long constitutional history. Europe, therefore, has been responsible for the introduction of a new concept into the UK constitution, the sovereignty of the people. On this issue, the people have in effect become a third chamber of Parliament, issuing instructions to the other two. The sovereignty of Parliament is now being constrained not by Brussels, but by the people.

The effects of the European Communities Act on the UK constitution

The main constitutional consequence of our EU membership was to restrict the sovereignty of parliament. Parliamentary sovereignty must be distinguished from national sovereignty, with which it is often confused. National sovereignty is engaged whenever a country signs a treaty. It is not an absolute, it can be pooled or shared with other countries, and it is a matter of political judgement how far it should in fact be shared. But parliamentary sovereignty – the notion that Parliament can enact any law it chooses – is not like that at all. It is an absolute. One either has it or one does not. One can no more be a qualified sovereign than one can be a qualified virgin. Continue reading