Meg Russell, Director of the UCL Constitution Unit and Professor of British and Comparative Politics at UCL, discusses the past, present and future of Parliament’s role in Brexit. This article is a chapter from the Brexit and Beyond Report published by UK in a Changing Europe, and was republished with permission.
Where have we come from?
A central argument in favour of Brexit was the need to return sovereignty to the UK Parliament. By ‘taking back control’, Parliament would regain power over areas of policy making that had been governed by EU laws. British legislators, not Brussels, would be back in the driving seat.
This fondness for Parliament was always distinctly ambiguous. The UK joined the European Community in 1973 through a parliamentary vote; but membership soon sparked the first UKwide referendum, held in 1975, on whether we should stay. From then on, the right of the people to directly decide our future relationship with the European bloc was regularly contested, and became increasingly accepted.
Referendums were demanded on the Maastricht treaty, promised on Britain’s entry into the euro and on the Lisbon treaty, and finally guaranteed by the European Union Act 2011. This cemented a promise that future encroachments of EU power through treaty change would be put to a public vote; but, by taking the right to decide away from parliament and requiring a referendum, this undermined the very parliamentary sovereignty that it was claimed to protect.
Following the 2016 referendum, Parliament’s role was increasingly challenged. Through the Miller cases, the Supreme Court twice intervened to put Parliament back at the heart of decision making — to the consternation of many Brexit supporters. Theresa May’s relationship with Parliament became increasingly antagonistic. Boris Johnson picked up and built on that, both in terms of rhetoric and actions, not least through his ultimately failed attempt at prorogation. By the 2019 General Election, parliament was being portrayed as an enemy of democracy — accused in the Conservative manifesto of ‘thwarting the democratic decision of the British people’.
Where are we now?
The return of Johnson’s Government with a comfortable Commons majority offered hopes of a return to ‘normality’. But, as everyone knows, 2020 has been far from normal. In policy terms, the Government and Parliament have had to prepare for the end of the Brexit transition period alongside dealing with the shock of Covid-19. Like many workplaces, the pandemic has caused Parliament to be partly closed and partly to operate virtually — with all of the associated awkwardness for communication. Unsurprisingly, parliamentarians have often felt shut out.
While 2019 was marked by Parliament — and particularly the Commons — aggressively writing itself into the Brexit process, immediately after the election the government abruptly reversed that trend. The hastily-passed European Union Withdrawal Agreement Act removed any role for Parliament in setting the UK’s negotiating objectives, or in determining any extension to the transition, and reduced the requirement on ministers to report to or consult with Parliament. On other Brexit legislation, ministers sought to push their plans through unamended. On the deal itself, parliamentarians were given a single day, on 30 December, to agree a bill implementing a 1,246 page agreement.
Lack of consultation on Brexit might have caused more tension were it not for the Covid-19 crisis — on which Parliament’s sidelining proved more immediately evident and brutal. The lengthy Coronavirus Act was pushed through Parliament in just three days, giving ministers sweeping powers, including over spending. Subsequently, various restrictive policies unprecedented in peacetime — for example limiting travel and socialising, suspending businesses, and requiring the wearing of masks — were passed via ‘delegated legislation’ without input from MPs. Announcements were often made in Downing Street press conferences, rather than Parliament, greatly angering the Commons Speaker.
The nature of the health crisis arguably made some centralisation of executive policy making a necessity. But the extent, and longevity, of this situation has generated increasing unease — particularly on the back of the previous centralising tendencies of both May and Johnson’s administrations over Brexit. Ministers may, many feel, have got rather too comfortable in viewing Parliament as a nuisance best avoided. Crucially, the Covid-19 crisis has sometimes seemed to illustrate how parliamentary scrutiny is not just a democratic formality, but can help guarantee more carefully-considered policy making, and help bring the public on board.
Where are we heading?
Notably, some of those most concerned about executive overreach over recent months have been Brexiteers. Clauses in the Government’s Internal Market Bill, potentially allowing ministers to breach international law, attracted strong criticism from the likes of Michael Howard and Norman Lamont in the Lords. In the Commons, figures such as Steve Baker and Graham Brady have been at the forefront of rebellions on coronavirus. This has shown starkly how, even with a large majority, ministers take their backbenchers for granted at their peril.
But the differences have crosscut the Brexit divide. Commons Leader Jacob Rees-Mogg — who preceded Baker as chair of the European Research Group (ERG) — severely aggravated backbenchers over his insistence that MPs ‘shielding’ from the pandemic should be prevented from contributing virtually to divisions and debates. Ultimately, the exit of Dominic Cummings, himself found ‘in contempt of Parliament’ before being appointed to the heart of Downing Street, seemed to be a victory for backbench pressure, which many MPs hoped would signal a rebalancing back in the direction of Parliament.
So, this turbulent period ends much as it began: with a desire by many Conservatives to see Parliament ‘take back control’. This time, however, their target isn’t the external threat of the EU, but the internal threat of an overweening and unchecked executive. Boris Johnson’s seeming disregard for scrutiny has unwittingly fuelled insurrection among many key figures who put him in his job, and — perhaps more surprisingly — among new MPs whose own jobs were built on his election victory.
This presents a perilous situation for a Prime Minister. Johnson and his allies rebelled against Theresa May, ultimately bringing her down; they can hardly complain if other MPs grasp parliamentary opportunities to give the executive a kicking. Discomfort is worsened by many highly capable Conservatives having been excluded from Johnson’s administration, various of whom now chair the select committees. This situation breeds resentment and frustration when policy is poorly handled, which feels increasingly unsustainable.
Just a year after the general election, won by a landslide majority, Johnson seems increasingly to be living on borrowed time unless he does serious work to make peace with Parliament.
Note: The views expressed in this post are those of the author, and not of the UCL European Institute, nor of UCL.