Parliamentary control over policy-making has usually been subservient to that of the government. The crisis over Brexit, May’s lack of a Parliamentary majority 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 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.
If we look at the context, May has negotiated a Withdrawal Agreement with the EU, phase one of Brexit under which the UK will leave the EU with phase two being the negotiation of a hoped-for Free Trade Agreement after Britain leaves. She has been under pressure from both Brexiters and Remainers, with demands for both “hard” and “soft” departures. 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.
Parliament’s attempts at exercising more control
After May lost her majority in June 2017, she has been in negotiation with the EU and piloting a Withdrawal Bill through Parliament. Without a majority the way has been open to opponents to assert influence
- 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
- 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.
- 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
- 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.
- 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 be the Speaker, is controversial both in Parliament amongst Brexiters and also amongst outside observers. Time will tell whether future Parliaments more under the control of the government of the day, and with a different Speaker might seek to reverse this change
- 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.
- The rights of Parliament: The actions of the Speaker fits within a long tradition of the independence of the Speaker from the control of the executive. 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.
The current situation is that May’s Withdrawal Agreement has been rejected 3 times by Parliament, the likely new leader of the Conservative Party and PM will attempt a re-negotiation and, failing that as seems likely since the EU has already refused a re-negotiation, the new PM will attempt to leave without a deal. The restrictions placed on the PM and government apply to the Withdrawal Agreement, and neither the Withdrawal Act nor the recent 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 is silent on a No Deal situation. Thus attempts are being made by backbench opponents to assert Parliamentary control and prevent the government taking Britain out of the EU without its consent.
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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 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.
There’s been reports over the weekend that a “plot” is being hatched by the cross-party alliance to have Parliament’s business rules changed so that other MPs than the government can introduce mtions and legislation. This would give them control over the Brexit process.