Mark and Ruth look at the growing fashion for re-writing Bills mid-air as they pass through Parliament, adding on all sorts of policy bells and whistles at the last minute.
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.
Senior Researcher, Hansard Society
Dr Brigid Fowler
Senior Researcher, Hansard Society
Brigid joined the Hansard Society in December 2016 to lead its work on Parliament and Brexit, as well as contribute to its ongoing research on the legislative process, parliamentary procedure and scrutiny, and public political engagement. From 2007 to 2014 she was a Committee Specialist for the House of Commons Foreign Affairs Committee, where she led on the Committee’s EU-related work. In the first six months of 2016 she was on the research team of Britain Stronger in Europe. She has also worked as assistant to an MEP in Brussels and as an analyst and researcher on EU and European affairs in the private sector and at the University of Birmingham and King’s College London.
After completing BA and MPhil degrees at the University of Oxford in PPE and European Politics, respectively, she spent the first part of her career focusing on the politics of post-communist transition and EU accession in Central Europe, and completed her PhD at the University of Birmingham on the case of Hungary. She has given media comment, appeared before select committees and published several journal articles and book contributions.
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Which of these prevails could have an effect long after the UK leaves the EU. 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 news that the Supreme Court will rule on the scope of the government’s prerogative powers on January 24, they have refocused attention on the implications of Brexit for the legislature.
"... the EU referendum and withdrawal process represents a significant challenge to the UK’s traditional system of representative democracy"
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.
And yet Parliament must now help deliver Brexit – because, as Secretary of State for Exiting the EU David Davis has said, the government ‘will not allow anyone to veto the decision of the British people’. Taken to its logical conclusion, this argument would raise fundamental questions about the point of having parliamentary representatives. As Winston Churchill said in 1955 (in remarks reproduced in the Hansard Society’s journal, Parliamentary Affairs), ‘the first duty of a member of Parliament is to do what he thinks in his faithful and disinterested judgement is right and necessary for the honour and safety of Great Britain’.(1) As may become clear in voting on any bill to trigger Article 50 in coming days, the dilemma is most acute for ‘Remain’-supporting MPs representing ‘Leave’-supporting constituencies.
Furthermore, Parliament is required to help deliver Brexit not only in a technical, procedural tense but also in such a way that it helps meet one of the promises of the ‘Leave’ campaign - to ‘take back control’. Parliament's role in Brexit should be among the criteria used to gauge whether the UK ‘makes a success of it’ and delivers on the demands and hopes vested in the ‘Leave’ vote. But the demand to ‘take back control’ goes to the heart of the relationship between representatives and voters. Who is ‘taking back control’? - a Parliament of representatives exercising judgement, or voters who want a previously out-of-touch elite to enact their priorities and views? Much of the public language surrounding the phrase since the referendum has evidenced a tricky elision between parliamentary and popular sovereignty.
Parliament has three functions in the Brexit process:
to play its role in the international treaty-making and -unmaking that will be involved;
to scrutinise the executive’s handling of the process; and
to put in place the domestic law needed or desired to effect the UK’s EU withdrawal.
These three functions will frame the Hansard Society’s work on Brexit this year and beyond. In 2017, the three will come into focus roughly sequentially. Parliament's treaty role will be defined by the prime minister’s commitment in her speech to give both houses a vote on the UK-EU exit agreement, then the Supreme Court’s Article 50 ruling on January 24, and then the passage of any Article 50 bill by the end of March. As regards scrutiny, much work is already underway, particularly in select committees, but - especially now that the government appears to have resiled from a commitment to publish a pre-Article 50 document - the scope of Parliament's Brexit scrutiny is likely to be at the forefront of the arguments surrounding any Article 50 bill after the Supreme Court rules. Once Article 50 is triggered in late March, parliamentary scrutiny will then be put to the test as the Brexit negotiations get underway. The domestic legislation involved in Brexit will come into focus with the Great Repeal Bill, which will be included in the Queen’s Speech at the start of the new parliamentary session in May.
Combined, the way in which Parliament carries out these three functions could take it towards one or other of two scenarios:
Brexit results in an empowered executive. The government’s customary advantage over Parliament in international affairs is bolstered by the political imperative to be seen to be delivering the referendum result, and the practical urgency of getting a vast amount done quickly. In the face of Brexit’s scale and complexity, Parliament fails to rise to the challenge and has little impact on the process, thanks to a lack of time and resources, often limited understanding of EU issues, enduring post-referendum political divisions, poor coordination among the many parliamentary actors involved, distraction by other issues and the political effects of extra-parliamentary campaigning against any perceived obstruction to implementation of the referendum result.
Brexit enhances Parliament's influence and standing. The unexpected and unprecedented nature of Brexit proves to be a leveller between the executive and legislature. Brexit’s pan-UK but territorially differentiated nature spurs the building of stronger relationships between Westminster and the devolved legislatures. Parliament takes advantage of the post-referendum space for policy development and unconventional coalition-building, the government’s internal differences and small Commons majority, high public interest, and the precedent of a parliamentary EU scrutiny system that has sometimes been capable of holding the government up, to become a key site for information-gathering and dissemination, policy generation, consensus-building and decision-making.
The Hansard Society is interested in which of these scenarios plays out, and why.
We think it matters, for three reasons.
First, Parliament could make a difference to Brexit’s policy content – the future trade terms between the UK and the EU, or the post-Brexit policies that the UK adopts in agriculture, regional development, higher education or immigration. This will depend on parliamentarians exploiting the opportunities open to them.
Second, the handling of Brexit, across Parliament's three functions, will create processes and precedents that could endure into - or at least shape - the post-Brexit era. For example, international treaty-making will be a more prominent and possibly more extensive element of UK foreign policy once the UK is able to negotiate international trade agreements on its own. The Supreme Court ruling and the treatment of any UK-EU Brexit-related agreement or agreements will set frameworks and precedents for Parliament's role in this respect. The House of Lords EU Committee has already suggested, in its October 2016 report on Brexit scrutiny, that any system established to give Parliament some control of the Brexit negotiations could become the template for the handling of any post-Brexit international trade deals.
Similarly, the Hansard Society has already argued that the likely volume and importance of Brexit-related delegated legislation ought finally to be the spur to long-overdue reform of Parliament's scrutiny procedures for this class of law, primarily in the House of Commons. The prospect of the Great Repeal Bill has prompted the House of Lords Constitution Committee to bring forward the delegated powers element of its inquiry into the legislative process, and the House of Commons Procedure Committee might also look into delegated legislation. Relations between the two Houses, and between Westminster and the devolved legislatures, are other areas where the Brexit process could have a lasting impact; while, from among select committee chairs, who is seen to have had a ‘good Brexit’ could help shape the select committee system for the post-Brexit age.
Third, as indicated above, Parliament's constitutional and political role is at stake. Parliament - not just individual parliamentarians - needs to have a ‘good Brexit’. Get it wrong (our first scenario above), and Parliament's weaknesses could be among the relatively few things left unchanged by Brexit. Get it right - ‘make a success of it’ - and a reformed legislature could enter the post-Brexit era better connected with citizens and a more equal player in the UK’s democratic politics. An early indicator of the possible direction of travel will come with the Hansard Society’s latest annual Audit of Political Engagement, the first results of which are just in…
(1) Winston Churchill, ‘The duties of a Member of Parliament’, Parliamentary Affairs, Vol. VIII, No 3, Summer 1955. The extract was cited by the Select Committee on Modernisation of the House of Commons in its 2007 report Revitalising the Chamber: the role of the back bench Member (HC 337), the last time a Commons body considered this issue.
Fowler, B. (2017), Why Parliament needs a 'good Brexit', (Hansard Society: London)
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