by Dr Andrew Blick
Senior Lecturer in Politics and Contemporary History at King’s College London; Senior Research Fellow at the Federal Trust
26th February 2019
It is an irony frequently remarked upon that the Brexit process, though embarked upon partly in the name of the sovereignty of Parliament, has seen this institution marginalised. Some of this exclusion from meaningful involvement in Brexit has been self-imposed. Parliament approved legislation, the European Union (Referendum) Act 2015, providing for an open-ended question to be put to the public which it subsequently accepted as producing a binding requirement, in some form, to leave the EU. It then provided the Prime Minister, through the European Union (Notification of Withdrawal) Act 2017, with the statutory authority required to trigger Article 50 of the Treaty on European Union, without attaching any conditions to the exercise of this power. Parliament has subsequently proved more effective at asserting that it should have power than actually exercising it. It has lately been willing to reject options it finds undesirable, most dramatically the deal secured by the UK government in negotiations with the EU. But even when expressing negative views, parliamentarians have voted in the same direction for different and opposing reasons. The imposition of a positive course of action – a function that is surely the essence of a ‘sovereign’ body – has not been attained.
But how might Parliament – and within it, the House of Commons – take on the ‘meaningful’ role that conventional interpretations of our constitution lead us to believe it is able and required to? One means by which certain parliamentarians are now seeking to impose themselves decisively on government and on the Brexit process is through producing primary legislation designed for this end. The central tenet of the doctrine of parliamentary sovereignty is that an Act of Parliament has ultimate legal authority within the UK legal system. If Parliament issues an Act stipulating that something must be done, or not be done, so the theory runs, then its will must be respected, and if necessary, a court must enforce it. But how can this general principle be realised in the present context?
One favoured means at present is a Bill in the name of the Labour MP Yvette Cooper, with the support of a cross-party group of MPs (the ‘Kyle-Wilson’ amendment, taking its name from the Labour MPs Phil Wilson and Peter Kyle, is considered below). In its currently drafted form, it would have the effect, if passed, of providing MPs with the opportunity to force the Prime Minister to seek an extension of Article 50. Seek is the operative word, since it would be a request that would require unanimous consent from the EU27 – something that could be obtained but is not guaranteed. The Bill envisages a process that comes into play if an exit deal with the EU has not been approved by the UK Parliament by 13 March. Unlike an earlier version of the Bill, it does not specify how long an extension the UK should try to secure. But is the Bill likely to succeed, and what are the obstacles to its success?
One issue for supporters of the Bill to address is the need to pass it soon enough to be relevant. To do so would involve MPs voting to provide space for it in the Commons timetable. If the Commons has not agreed a deal by 26 February, Cooper has said that she will seek to secure this room for it in the programme. If there is a genuine majority in the Commons for the Bill, then a majority also presumably exists for making the passing of the Bill practically possible. (As a corollary, if there is not support for making the time available, then neither is there sufficient backing for the Bill itself.)
A second potential barrier is the House of Lords. It is Parliament, not the Commons, that is ‘sovereign’, and all but seven Acts of Parliament in UK history have been passed after being agreed by both Houses. These Acts were passed using a procedure in the Parliament Act 1911/1949. But the time delay that would be involved, if the Commons were forced to overrule the Lords in this way, would render the Act redundant before it reached the statute book. The Lords, then, possess a theoretical ability to block such a legislative approach to control of the government. But given the apparent balance of opinion in the second chamber regarding Brexit, and the general tendency to defer to the democratic legitimacy of the Commons, especially on an issue of this level of importance, such resistance would probably not manifest itself.
More serious opposition could come from the very branch of the constitution that was the target of the proposed law. Unlike the Lords, the executive would be hostile to the legislation (assuming it had not changed its policy, or a new government with a different approach were not installed, in which case the Cooper Bill in its current form would not be needed). If the two most important sources of its strength – party discipline and control over the Commons timetable – were no longer available to the executive, it might try other, more controversial, tactics. They could include advising the monarch not to provide Royal Assent to the Bill if and when it had passed through the Commons and the Lords, therefore denying it the status of an Act. Such an option would be challenged as ‘unconstitutional’ (always a contestable term in the context of the ‘unwritten’ UK constitution) and would be criticised for compromising the political impartiality of the monarchy. It is not entirely clear that the monarch or her advisers would be content to comply with a request to deny Royal Assent to a Bill that had completed its parliamentary stages, given that no ruler has done so since the early eighteenth century.
The government might also seek an early General Election from the Commons which, if obtained, could prevent the present Parliament from being able either to pass or to implement the legislation, since it would be dissolved. However, to secure an early General Election would require at least a simple majority in the Commons. The necessary support might not be forthcoming if there were a majority in favour of seeking an extension and the bid for an early General Election were perceived as a means of frustrating this goal. MPs might also have other reasons for not wanting to bring about a poll.
Perhaps equally controversial could be for the government to refuse to acknowledge that it was bound by such an Act of Parliament once it were passed. There might then need to be legal enforcement action to force the executive to comply. Though the courts tend to be hesitant about engaging in such matters, there would be a strong case for expedited consideration in this area, though how the tight deadline of 29 March would be managed is an important question. At this point it would be a judicial decision, rather than parliamentary vote, that would need to be made meaningful. The government might, even if ordered to comply, refuse to recognise such an instruction. Some constitutional experts might well be willing to support it in an assertion that it is improper for Parliament to set out to usurp the proper role of the executive in the field of external relations. Such a stand-off between Parliament and courts on the one hand, and the executive and its allies on the other hand, would create considerable uncertainty around the function of the democratic system of the UK.
Another option for a government faced by an Act requiring it to seek an extension to Article 50 would be to comply with its letter only. Parliament cannot compel the EU to provide an extension if asked to do so; and it cannot force the government to act in good faith when it adheres to the law. If faced with a formal request to delay Brexit, before deciding how to respond, the EU27 might reasonably want to discern whether agreeing to it would serve its interests. To make this judgement it would need to consider factors such as how long an extension the UK government wanted, what use it proposed to make of the extra time made available, and what the possible outcomes might be.
To provide this information in a meaningful and satisfactory way would require the existence of a developed and coherent policy founded in a genuine desire on the part of the UK executive to pursue a new approach. An Act of Parliament might conceivably be able to force the UK government to request an extension to Article 50. But it could not compel the UK executive to create a meaningful policy around it that was sufficient to secure agreement from the EU27. A postponement of Brexit, if the EU27 were to allow it, and if it were to be part of a successful reorientation on the part of the UK, would require the government genuinely to alter its position. If this change took place, then an Act such as that presently envisaged by some in Parliament would not be necessary anyway. Without such an alteration of course, it is difficult to conclude that a law of this type would be successful. . (Indeed, even if the present government were to invite on its own initiative a binding vote on whether it should or should not seek an extension to Article 50, and the Commons decided that it should do so, this result in itself would not provide the government with a credible approach to that course of action.)
Moreover, a UK government could evade meaningful fulfilment of the Act by simply passing on the request, making clear that it was doing so merely out of a need for legal compliance, and offering no constructive policy framework to accompany it. It seems likely that the EU27 would receive such a request in the spirit it was intended and reject it. An Act of Parliament would have been obeyed, but not honoured. Alternatively, the UK government could seek an extension of minimal duration – for instance, a week – which, even if it were agreed to, would be of little meaning.
Some of these same considerations apply to the ‘Kyle-Wilson’ proposal. This amendment would provide parliamentary approval for the exit deal, but subject to a binding referendum offering a straight choice between it and remaining in the EU. This approach has now received qualified endorsement from the Labour leadership, which has committed to pressing this option in Parliament should other efforts fail. Nonetheless, Kyle-Wilson or something similar would be resisted by some Labour MPs, especially those whose constituencies produced ‘leave’ majorities in 2016. Whether it could achieve enough support from Conservative MPs is not clear, especially if the envisaged referendum allowed overtly for remaining in the EU as an option. Kyle-Wilson might create a firm obligation in domestic law to the effect that acceptance of the deal was contingent upon the holding of a popular vote. But it is not as clear that it could prevent the government, if – as might well be the case – it found this condition politically unpalatable, from allowing the UK to leave without any deal on 29th March rather than permitting a referendum to take place. Any such public vote would also require an extension of the Article 50 period (though how long, precisely, would be required is a matter of debate). The complications involved in securing this postponement of Brexit, and the opportunities they might create for evading an effort by Parliament to assert itself, have already been discussed. In any case, the appearance of a Commons majority in favour of Kyle-Wilson would be an expression of a more fundamental upheaval in the parliamentary party system, involving a more serious split than so far seen in the governing Conservatives and possibly Labour as well, and perhaps the collapse of the present government. The issues raised by this prospect are now considered.
If Parliament cannot change the mind of the government, then forcing it to make a serious effort to delay and possibly review altogether Brexit might well prove unsuccessful, even if primary legislation to this effect reaches the statute book. If Parliament can achieve a meaningful reversal of existing policy, then an Act of the type envisaged by Cooper (or the Kyle-Walker amendment) might not be required. Otherwise, the last resort open to Parliament remains as it always was. The Commons can replace the present government with another that is willing to pursue a different course of action. Governments in the UK, whether single party majority administrations, minority governments, or coalitions, rest on what is known as the ‘confidence’ of the Commons. As the elected chamber, this link between it and the composition of the government of the day is crucial to the democratic system of the UK. Yet the importance of this tenet is matched by the informal, vague nature of its existence.
The precise means by which, at a given point, the Commons might supplant a government between general elections is not entirely clear. There has always been a lack of clarity in this area. But as a consequence of the Fixed-term Parliaments Act 2011 the position is more confused still, since it is not certain how far a test of confidence can be separated from a process possibly leading to an early General Election, which MPs who could favour a change of government might not want to trigger. At present the government seems content to continue in office irrespective of suffering repeated defeats on its most central policy programme. It seems to interpret the present constitutional position as being that the only clear way to remove a government is through an election. Some MPs on the government side, for their part, are content to vote against their administration on substantive policy issues while they believe that doing so will not lead to it losing office.
That MPs have not yet acted more decisively is also attributable to the party system. Partisan barriers between MPs have not followed the same lines as divisions over the Brexit issue. To force the government to leave office will require considerable pressure. Though a few MPs from the Conservatives and Labour have now begun a process of realignment, time is short for the far more substantial reconfiguration that would be needed. If a large and determined enough cross-party group were able to agree on the basic composition of a replacement government, it might be able to secure this outcome through an informal route, or else use a motion in the Commons, either within the wording of the 2011 Act, or slightly altered so as not to engage a possible General Election. This approach could prove to be a more effective use of time and effort than a prescriptive Act of Parliament. As has been the case ever since 23 June 2016, sufficient political will among the majority of parliamentarians in both Houses who supported remain at the referendum has been the missing ingredient. If it can be found, then procedural and legal means will not be sufficient to prevent their victory.