Parliament’s power struggle with the executive for control of Brexit

Parliamentary control over policy-making has usually been subservient to that of the government. The crisis over Brexit, the lack of a Parliamentary majority for PMs May and Johnson, and concern over the form Brexit might take have provided an opportunity for Parliament to increase its influence over decision-making in government. Normally, the legislature has scrutiny and legislative powers but the proposal, introduction and management of legislation is controlled by the government. With Brexit that control has been weakened and, as opposition to various aspects of Brexit has increased, Parliament has engaged in a power struggle with the executive and asserted a right to a degree of Parliamentary control, to be consulted and to consent to what must be one of the biggest changes in Britain at least in living memory.

The context

If we look at the context, phase one of Brexit is that Theresa May would negotiate a Withdrawal Agreement with the EU,  with phase two intended to be the negotiation of a  Free Trade Agreement after Britain leaves. She has been under pressure from both Brexiters and Remainers, with demands for both “hard” and “soft” departures, and with some opposed to Brexit itself. She has attempted to retain control over the detail of the negotiation but as concern has mounted from both sides over the outcome, Parliament has been the battleground as both sides have tried to influence that outcome. This pattern continued under Johnson.

Parliament’s attempts at exercising more control

Crucially Mrs May lost her majority in the general election in June 2017 but she continued to negotiate with the EU over phase one, secured a Withdrawal Agreement and was obliged to pilot a Withdrawal Bill through Parliament to give effect to that Agreement. Without a majority the way has been open for a power struggle as opponents attempt to assert influence, both from the Parliamentary opposition but also opponents within her party as well.

  1. Assertion of Parliamentary sovereignty over Brexit (the “Gina Miller” case): Initially the government believed that it was not obliged to get Parliament’s agreement to leave the EU and could act through using the royal  preogative in the conduct of foreign affairs. However in the case brought by Gina Miller, the UK Supreme Court in January 2017 ruled that the UK could not leave the EU except by Act of Parliament, asserting the constitutional principle of the sovereignty of Parliament
  2. The “Meaningful Vote”: As a result of Parliamentary pressure, it was agreed in the Withdrawal Act that the draft Withdrawal treaty would be voted on in Parliament. Traditionally treaties were a matter for ministers under the royal prerogative but Parliament has increasingly insisted on a say. The 1971 accession to the then-EEC occurred after a Parliamentary vote.
  3. Contempt of Parliament: ministers had refused to disclose legal advice on Brexit, arguing it was privileged, but Parliament passed a motion of contempt, obliging the release of the advice
  4. The “Grieve amendment”: in December 2017 a motion was passed giving Parliament a say if her deal (the Withdrawal Agreement) was rejected by Parliament. She would have 21 days to come back to Parliament with alternative proposals, enabling it to propose alternatives itself, such as a “softer Brexit”, a referendum, or new negotiations, and thus avert a no-deal Brexit. That time frame was reduced to 3 days in January 2019 when a Parliamentary ambush was staged under which the Speaker agreed to the right of May’s opponents to amend a business motion, normally the preserve of the government, and thus insist on May returning with proposals after 3 business days.
  5. Parliament’s ability to alter Government proposals: The actions of Grieve and his colleagues in amending the government business motions have also set a precedent under which any action could potentially be amendable, thus weakening government control and increasing Parliamentary control over the business of the House. This measure, agreed to by Speaker Brecow, is controversial both in Parliament amongst Brexiters and also amongst outside observers. Time will tell whether future Parliaments will retain a right to take control of business and legislate independently of the government or whether it will revert to being more under the control of the government of the day. As Speaker Bercow retired on 31 October 2019, the government with a different Speaker might seek to reverse this change.
  6. The Cooper Act: Under a further seizure of the House’s business, on 8 April 2019, the Cooper-Letwin cross-party backbench alliance initiated legislation, subsequently passed, to avoid a No Deal Brexit by compelling the PM to ask for a delay in Brexit from the EU. The postponent was subsequently obtained. This event was a powerful sign that the governments’ oppponents could seize control of business and force changes to its policy.
  7. The Benn Act: May’s Withdrawal Agreement was rejected 3 times by Parliament, May resigned on 24 July 2019 and the new leader of the Conservative Party and PM, Boris Johnson, attempted a re-negotiation and, as part of his tactics to force a breakthrough in the dealock threatened to to leave without a deal, a “No Deal Brexit”. The restrictions placed on the PM and government apply to the Withdrawal Agreement, and neither the Withdrawal Act nor the earlier backbench Cooper Act makes a provision for a No Deal Brexit. The Withdrawal Act simply required the PM to obtain Parliament’s consent to any agreement and was silent on a No Deal situation. Thus attempts were made by backbench opponents led by Hiliary Benn and Oliver Letwin to take control of business again, assert Parliamentary control and prevent the government taking Britain out of the EU without its consent. The Benn Act forced the Prime Minister to apply to the EU for an extension, which subsequently happened and Brexit was postponed until 31 January 2020.
  8. Prorogation of Parliament: As part of the power struggle, Johnson attempted to suspend Parliament (prorogation) so as to reduce the time for debate and force Parliament into agreeing his terms for Brexit that he was negotiating with the EU, for fear of the alternative of a No Deal that he threatened. The prorogation (10-24 September 2019) was challenged in the courts by, among others, Gina Miller and Joanna Cherry. The Supreme Court in a historic verdict ruled the prorgation advice by the PM to the Queen to be justiciable by the Court and that the prorogation was unlawful, ruling that the government’s action was a breach of the constitutional conventions of Parliamentary Sovereignty and democratic accountability, the right to scrutinise the actions of the executive and hold it to account. In so doing, as in the earlier Miller case (see above) the Supreme Court has asserted a role in interpreting the British Constitution that has previously been lacking and shifted the unwritten constitution into new territory where the courts arbitrate in constitutional disputes.
  9. The rights of Parliament: The actions of the Speaker fit within a long tradition of the independence of the Speaker from the control of the executive. This is historically not the first time that a power struggle between executive and legislature has happened, the most famous being the events of 1640-42 that led to the outbreak of the English Civil War. Speaker Bercow is a strong defender of the rights of Parliament and of MPs, and his actions certainly have support, not least amongst those who see Parliament as having been too emasculated.

It should be made clear that this power struggle over control over Brexit was really between a Tory party under pressure from its right wing to go further in breaking with the EU, claiming that this was “the will of the people” under the 2016 referendum and a Parliament that was able to unite to prevent the extremists from having their way and limit the extent of Brexit and the damage it might do.

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Righting the democratic deficit

Arguably one core reason for the unrest that gave rise to the Brexit vote in the referendum of 2016 was a perception of a democratic deficit. It is suggested in this blog that an underlying reason for the deficit and the sense of alienation from a “political class” and “Westminster” has been over-centralisation of the organs of government and representation in the Prime Minister and the government of the day. Overall, a potentially beneficial side-effect of the Brexit crisis and the power struggle between the executive and Parliament could be said to be a re-assertion of the role of Parliament and the influence that can be brought to bear by elected representatives.

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