Opinion: Parliament and Brexit

Demands to reclaim sovereignty were an important part of the UK’s decision to leave the European Union.  “Take back control of our laws”, the Leave campaigners exhorted the British electorate in 2016.

The expectation was that Parliament would be a major beneficiary. After all, the so-called democratic deficit in EU politics has long been synonymous with a diminution of the powers of national legislatures. Parliament, it was supposed, would play a key role in the process of the UK’s withdrawal from the EU, and in the legislative arrangements required to ensure it would take place with minimal disruption to the UK.

It quickly became clear that the Prime Minister’s view was rather different. Parliament appeared to be an irritant to the executive’s attempts to pursue its version of Brexit. Having lost the initial attempt to trigger Article 50 without Parliamentary engagement thanks to the legal case brought by Gina Miller and others, Theresa May appeared to think that any attempts to amend or improve the draft legislation was an assault on her intention of making a success of Brexit. Calls for unilateral offers on the rights of EU nationals, or to stay in the single market, were given short shrift. 

Not content with securing the EU Withdrawal Act without amendments, the Prime Minister called a snap general election in the hope of strengthening her parliamentary majority and undermining what she seemed to perceive as twin dangers: the nine Liberal Democrats MPs, and the “unelected” House of Lords, where pro-European voices remained rather louder than in the Commons.

Paradoxically, her catastrophic gamble resulted in a hung parliament that has weakened the Prime Minister’s hand. It has also created the conditions for greater cross-party working, for a less clear-cut withdrawal, and for increased leverage for Parliament.

Prior to the election, the PM could rely on the Salisbury Convention to ensure that Labour would ultimately not defy the will of the Commons or the Government’s 2015 manifesto pledge to hold a referendum and be bound by the results of the referendum. The outcome of the 2017 General Election ensures that the Opposition could reasonably claim that the Government does not have a majority and, hence, needs to adopt a more consensual approach to withdrawal.

What role is there, then, for Parliament?

The Queen’s Speech was dominated by Brexit, in a way that the General Election was not. Eight pieces of legislation were flagged up. Among them was the all-encompassing “Repeal Bill” (now demoted from the “Great Repeal Bill” originally proposed) required to repeal the 1972 European Communities Act, to enshrine EU law into UK law, and to ensure there are no gaps in the Statute Book on the day the UK leaves the EU. Alongside it were other bills on trade, customs, immigration, agriculture, fisheries and nuclear safeguards. For each of these pieces of legislation the Government will need to secure a majority in both Houses. What are its chances of doing so? 

The confidence and supply deal with the DUP includes Brexit-related matters. The results of the first vote on the Queen’s Speech, with a Government majority of 14, show that the Government can get business through the Commons. Whether it will do so well on more contentious matters where just a handful of Tory rebels could alter the outcome is an open question – fascinating for academics, a nightmare for Government whips.

The first post-election vote in the Lords saw a clear government majority to reject an amendment on remaining in the single market and customs union. That vote, however, is not a good indicator of what may follow. The amendment was not supported by the Labour frontbench, so although it was proposed by Labour peer Lord Adonis, and secured some rebel Labour support, it fell far short of the numbers that would come about if Labour put a whip on.

The experience of the 2015-17 Parliament was very clear: where Labour and the Liberal Democrats work together, with some crossbench support, they can defeat the Government. Votes in the Commons will be tight throughout the coming session. Votes in the Lords, meanwhile, may swing wildly according to whether the largest opposition party wishes to let the Government set the Brexit agenda, or prefers to cooperate with other parties (and rebel Tories) to shape Brexit.