In its judgment on the Gina Miller court case, the Supreme Court held that to trigger Article 50 and commence the two-year process of exiting the EU, there must first be a formal vote by parliament.
The Court confirmed that, given the constitutional consequences of leaving the EU, particularly the repeal of the European Communities Act (ECA) 1972—which will bring to an end the rights contained within the EU Treaties—parliamentary consent was required.
This judgment placed constraints on the ability of the government to act without reference to parliament, and since triggering Article 50 Parliament has sought to assert its constitutional rights throughout the passage of the EU Withdrawal Bill. First and foremost, Parliament has exercised its right to hold the government to account.
Since triggering Article 50, the relationship between Parliament and the government has been further complicated by the inconclusive general election result. In June 2017, the Conservative government lost its parliamentary majority, making the process of delivering Brexit even more challenging.
One consequence of the hung Parliament that resulted from the election has been to embolden MPs, who proposed nearly 500 amendments to the EU Withdrawal Bill. Though only defeated once – on the amendment for a ‘meaningful vote’ for Parliament on the final Brexit deal – the government was mindful of the impact of losing key votes which would create an impression of a government losing control of the Brexit process.
Thus, it accepted a number of amendments to the Bill, including one which proposed that the date of withdrawal could be changed if necessary. Overall, the number of amendments proposed illustrates that MPs believe they have a real chance to influence the Brexit process, and the acceptance of amendments by the government, without a vote, is recognition that the government is not in complete control of the parliamentary process. In the coming year, leading up to Brexit on 29 March 2019, Parliament and the government will continue to compete to assert their authority.
The first 12 months: the EU Withdrawal Bill
Through the EU Withdrawal Bill, the government sought parliamentary consent to deliver three key Brexit objectives. First, the repeal of the European Communities Act, which will bring to an end the supremacy of EU law in the UK and enable
Parliament to pass legislation that may diverge from EU law. Second, the Bill will convert the body of EU law into UK law on Brexit day and create a new type of UK legislation called ‘retained EU law’.
The purpose of this is to provide legal certainty and continuity immediately after Brexit. Third, the Bill enables ministers to—where necessary—correct UK law to deliver a functioning legal system in those circumstances where the EU Withdrawal Bill cannot provide legislative certainty. This includes where existing EU legislation imposes specific functions on the EU institutions.
The final objective also requires Parliament to approve the use of so-called ‘Henry VIII powers’ by ministers to make ‘corrections’ without the need for parliamentary approval.
The government has faced intense pressure from all sides of the Commons to guarantee a ‘meaningful vote’ for Parliament on the terms of the final Brexit withdrawal agreement the UK concludes with the EU.
It was on this issue and on the question of the use of Henry VIII powers to implement the final withdrawal agreement that the government suffered its only defeat. Constitutionally, this amendment to the Bill is significant.
Not only does it provide for a formal vote by Parliament on the withdrawal agreement, but it also enshrines in law a parliamentary right of democratic oversight over the Brexit withdrawal agreement.
To this extent, Parliament can be said to have ‘taken back control’. In the British system of parliamentary democracy, where the government is expected to command a majority in the House of Commons, such a defeat is significant.
Through this legal requirement for a vote to approve the final deal, Parliament has laid down clear boundaries. The final deal will be one which is agreed and agreeable to both the EU27 and the UK, and which has been endorsed by both the European and UK parliaments.
This defeat is also significant in terms of the future relationship between Parliament and the government, both during the Brexit process and more generally.
At the very least, for the remainder of this parliamentary term, the government cannot assume that it has a command of parliament, notwithstanding the agreement with the DUP covering Brexit issues.
This will be significant when the government brings before Parliament further Brexit legislation such as the EU Withdrawal Agreement and Implementation Bill – which will legislate for the withdrawal agreement between the UK and EU to become part of UK law – and the Trade and Customs Bill.
While governments do not like parliamentary defeats, this one could be considered an opportunity to strengthen and ‘democratise’ the Brexit process.
It is fair to say that the process so far has proved challenging for the government, both in terms of the negotiations with the EU and during the parliamentary process. By asserting its supremacy and taking back control, Parliament has made clear that it has an independent voice on Brexit to which the government would be well advised to listen to avoid further defeats.
Moreover, the defeat on a ‘meaningful vote’ demonstrates that Parliament cannot be taken for granted, something which will be tested again when the EU Withdrawal Bill returns to the Commons from the House of Lords, where it is likely to have been amended.
Parliamentary challenges for the second year of the Article 50 process
In addition to Phase Two of the negotiations, in which the UK will commence the difficult and lengthy process of trying to secure a new trading relationship with the EU, the parliamentary process of delivering Brexit will continue, potentially right up to the date of withdrawal.
The House of Lords will finish debating the EU Withdrawal Bill, and the House of Commons will need to consider those amendments approved by the Lords. This raises the prospect of re-opening controversial issues that the Commons had previously settled such as, for example, the future application of the EU Charter of Fundamental Rights.
Amendments passed by the Lords could act as lightning rods for rebels, old and new, on all sides of the Commons who could use them as a springboard to overturn previous votes.
Equally challenging for the government will be the passage of the Trade and Customs Bill, with cross-party amendments proposing to keep the UK within some form of customs union with the EU. The voting intentions of Conservative MPs who oppose a ‘hard Brexit’ could prove particularly significant, since they could once again deprive the government of a majority.
The introduction of the EU Withdrawal Agreement and Implementation Bill in the Commons is likely to provide further opportunities for MPs to challenge the government’s Brexit strategy, more specifically on the implementation of the withdrawal agreement and the transition period.
A key battleground here is likely to be the extent to which the UK should remain aligned with EU law during transition and the UK’s continued compliance with judgments of the Court of Justice of the European Union.
Across the whole parliamentary spectrum of MPs there is a genuine disagreement on this question; however, the government is mindful that the Implementation Bill must comply with the spirit, as well as the legal requirements, of the withdrawal agreement signed with the EU.
The government, without a parliamentary majority, will need to find a ‘middle ground’ that satisfies MPs on all sides of the Brexit debate, but in seeking a compromise the government runs the risk of alienating those MPs, mainly within the Conservative Party, who may consider the proposed compromise as unacceptable.
The possibility of further government defeats in parliament, during the coming year, should not be discounted.
The political circumstances surrounding the Brexit process, be they the inconclusive general election result or cabinet disagreement over the direction of the negotiations, have given Parliament an opportunity to shape the Brexit process to an extent which could not have been anticipated at the time the Prime Minister laid out her Brexit priorities during the Lancaster House speech in January 2017.
This must be considered a positive development for parliamentary democracy. Yet Parliament must also be strategic in its scrutiny of the Brexit process given that only 12 months remain before the Article 50 period expires. In holding the government to account, Parliament must also recognise the dangers that the UK faces.
In particular, a failure to agree a formal deal with the EU is likely to have political and economic consequences. Parliament would want to avoid taking the blame for this type of ‘no deal’ scenario.
So far, Parliament has demonstrated that it is sovereign, and if it is to exercise powers repatriated from Brussels it intends to do so in a manner that it considers represents the best interests of the UK.
However, perhaps the biggest risk for Parliament in the coming year is that in delivering Brexit it will stand accused at the end of the Article 50 period of not giving effect to the will of the British people as expressed in the 2016 referendum and in particular the expectation that leaving the EU means ‘taking back control’.
If this were to be the case, such an outcome may prove bad for parliamentary democracy and for parliament’s reputation.