Parliament: sovereign or supine?

by Dr Andrew Blick
Senior Lecturer in Politics and Contemporary History at King’s College London; Senior Research Fellow at the Federal Trust

8th March 2019

Parliament, it might be tempting to believe, can now seize control of the Brexit agenda. But a closer examination of the present political environment reveals a picture less flattering to the heart of representative democracy. The Commons will indeed be asked to vote on one or more propositions next week. First, does it accept whatever revamped exit deal the government may obtain from the EU? If not, second, does it want to leave without a deal? If not, then, third, does it want the government to seek an extension of Article 50? MPs may also vote on whether or not they want a second referendum.

That the Commons is being asked to resolve such key questions could be taken as evidence of Parliament’s ‘sovereignty’– retaining which is supposedly a central motive for the UK’s departure from the EU. But the context within which this exercise in parliamentary consultation is taking place, and the choices on offer, are being shaped by the executive.

At its head is Theresa May. She is an exceptionally weak Prime Minister. Her Cabinet has been visibly divided throughout her tenure at No.10. Her party has, since June 2017, been in a minority in the Commons and cannot agree over the proper approach to Brexit. During her premiership the project of withdrawal from the EU has engulfed May in a way no other modern peacetime Prime Minister has been by a single issue. Yet, her office still enjoys certain inbuilt structural advantages with respect to Parliament. May, for instance, has been able play for time (‘kicking the can’), trying to use the fear of no deal to her advantage. More important still, the agreement she will be presenting to Parliament will be one that she and her ministers negotiated, in accordance with a strategy that they determined for themselves.

Parliament may have the right to reject that deal; and it can vote for the Prime Minister to seek more time from the EU. What it cannot do is take over the work of the executive. The EU is negotiating with the UK government, not the Westminster Parliament. Even if May is forced by MPs to ask for an extension to the Article 50 period, she will determine the context in which that request is issued. How long will it be for? What will be done with the extra time? May and her government will be answering these questions, not Parliament. And in doing so, they, not Parliament, will play the crucial role in determining how the EU responds to this approach and ultimately what outcomes it leads to.

Parliament is better placed to veto courses of action over Brexit than to impose positive policy objectives. Part of the reason for its weakness is that is has become assertive so late in the day. There were earlier stages when it might have taken on a more meaningful role for itself. When, following the 2015 General Election, the Cameron government brought forward legislation for a European referendum, for instance, Parliament could have introduced stipulations about the process that strengthened its hand. In the late 1970s, a rebel amendment meant that public votes on devolution for Wales and Scotland were subject to a requirement that 40 per cent of all registered voters needed to support the change, or else the decision would return to Parliament. But in 2015 MPs had no such appetite for this kind of intervention. Nor, following the Supreme Court Miller judgement in early 2017, did they wish meaningfully to use the power the judiciary had handed them to make the activation of Article 50 by the Prime Minister come with any conditions.

Parliament has allowed itself to be trapped. It is faced with a choice between two unattractive options (the deal, or no deal); or a third – seek an extension – the nature of which is beyond its control, and which may merely postpone the making of the decision it now faces.

A fourth possibility for the Commons – to support a second referendum – is unlikely to succeed. But it is notable that parliamentarians – the majority of whom, privately, would  surely still prefer Brexit were not happening at all – lack the self-confidence to seek to prevent it on their own account. The accepted wisdom among MPs is that only a second public vote can reverse the result of the first.

And here is the true weakness of Parliament. While it has strengths, it is often reluctant to use them. MPs, for instance, retain a reserve power which they always, in theory, possess: to remove the existing government and replace it with one which will pursue a policy that they support. If a majority of MPs of shared outlook came together and were sufficiently determined, they could bring this outcome about, through informal means or through an expressly worded resolution of the House. However, the ties of party, bolstered by the electoral system, make such a coup unlikely. In practice, it is the executive, not Parliament, that is sovereign.