Parliament: Winning small battles but disengaged from the war
Brexit has left the UK’s political system and future mired in uncertainty. But it has also made one thing exceptionally clear: that the UK’s constitutional settlement does not protect the democratic functions it is assumed to serve and is no longer fit for purpose in a modern democracy. The UK constitution has delivered far too much power in too few hands, and parliament must root out this flaw or risk democracy being fatally undermined.
There have been many moments throughout Brexit when the words “constitutional crisis” have been floated - by the media, by parliamentarians, mainly by those in the Westminster bubble. Some of these claims have been exaggerated, some have rung uncomfortably true. What is unfolding in the UK - what is really bringing our country to crisis point - is the result of our constitution functioning as it meant to. And that’s the problem.
The UK is famously one of the last remaining developed democracies to not have a written constitution. Instead, our unwritten constitution has evolved over time, and as a result is lauded by proponents of this model for its flexibility. Rather than protecting democratic norms, as constitutions should, the UK’s unwritten constitution is malleable by those in power.
In Brexit we have seen the UK constitution deliver vast and unchecked power into the hands of the government. Norms have been cast aside, conventions broken, and parliamentary democracy overridden. Never mind concerns about ‘Brexit in Name Only’, it is increasingly clear that we have ‘Parliamentary Sovereignty in Name Only’.
For one, the Royal Prerogative power of treaty-making has handed the government exceptional centralised control over the Brexit process. This power, which was originally vested in monarchs, was eventually handed down to the government. Now it means that it is for the executive alone to fix negotiating red lines, report back to parliament on progress if and when it sees fit, and put the deal to parliament on its own terms.
The government has shown it is both willing and able to wield the power it has under our weak constitution to push our democracy to breaking point. In Brexit we have seen the government refuse to involve parliament in negotiations, government ministers lie to select committees without any penalties, refuse to appear in front of parliament to be held to account, and restrict time for debate and scrutiny on critical Brexit legislation. So much power in so few hands should unsettle anyone with a commitment to democracy.
But this is not just the fault of the government. When given the chance, the UK parliament has failed to step up to the plate and defend democracy. The only reason legislation was passed by MPs to trigger article 50 was because a citizen took the government to court, all the while parliament sat on the sidelines. Once the principle of parliamentary sovereignty had been upheld by the Supreme Court MPs then passed up the chance to attach conditions to the triggering of article 50. In the passage of the EU (Withdrawal) Act, MPs failed to enforce a satisfactory scrutiny procedure on the delegated powers the government was demanding. Instead they were bought off with a new committee which has no real power. The government, unbeknownst to many, has been empowered to make sweeping changes to legislation that in the years to come could see our hard-won rights and the standards we have come to take for granted silently fall away at the flick of a ministerial pen.
More recently, MPs showered themselves in metaphorical back-slapping, fist-bumping and air-punching when they defeated the government to secure a so-called ‘meaningful vote’ - their framing, not mine. Now that the government has exerted its power to unilaterally delay parliament's vote on the deal, which could now be pushed back as far as the 28 March if the government so chooses, parliament’s self-congratulations look premature and hollow. Using the full tools in their arsenal, all MPs could do in response was hold a three hour emergency debate.
What has come of parliament’s vote to hold the government in contempt? Not much. Did parliament exert its sovereignty to secure the right to make substantive changes to the deal? No. After an extensive and dramatic battle with the government that played out more in the fashion of a soap-opera than a serious legislature, MPs won access to very basic information. The sad fact is that parliament is picking and winning the wrong battles, and that’s obvious when you consider which battles have - and have not - been fought. What, for example, will make the biggest difference to the lives of people up and down the country: the legal advice given by Sir Geoffrey Cox to the government, or the red lines set and negotiations undertaken by the May government?
MPs could have demanded a Brexit process that delivered on the promise to ‘take back control’ - one which was deliberative and engaged both the public and parliament in shaping our future together. The Democratic Brexit report set out a wide range of models used by other democracies that put parliament and the people in the driving seat when it comes to making international treaties, rather than relegating elected representatives to bystanders and treating the public as irrelevant beyond a ballot sheet. This is the default under the archaic prerogative of treaty-making. But it was for parliament to demand control - on behalf of not just MPs but also people and communities. And it did not.
In leaving the European Union, the UK will have to negotiate free trade agreements with prospective trading partners. This is also a central ambition for the current administration, and a driving force behind the Prime Minister’s negotiating strategy. This is in fact now what underlies much of the consternation around May’s proposed deal, which many free trade advocates in parliament believe will tether the UK to the EU’s standards and regulations, at the expense of the UK being able to do trade deals.
The same royal prerogative power of treaty-making used to give the government power over Brexit will be used in future trade deals, and Brexit aside we’ve already had a taster of how the treaty-making prerogative can be wielded. When the Comprehensive Economic Trade Agreement (CETA) between the EU and Canada was ratified, for example, the UK parliament wasn’t even allowed to debate the deal, let alone vote on it. The Secretary of State for International Trade Liam Fox didn’t give MPs any say on the deal, and he didn’t have to. Fox was hauled in front of the European Scrutiny Committee after the fact and grilled about his decision to not give MPs any opportunity to debate the deal, but at the end of the day, parliament was powerless to do anything about this.
The withdrawal deal on the table has caused division, not consensus, and acrimony, rather than resolution. There are few champions of the deal, and even the Prime Minister herself can only at this stage muster pleas for acceptance rather than enthusiastic endorsements.
Parliament has been handed a fait accompli by the government. The decision before MPs is not a ‘meaningful vote’, it is a false dichotomy - a Hobson’s choice. Neither the public nor parliament have been meaningfully involved in shaping the deal that will define our country’s future for decades to come. Parliament has influenced neither the form of negotiations nor the substance of the deal, so the only option MPs have now is to rubber stamp what the government is presenting - or else. For every deal struck in the future, parliament will have to fight these same battles, and the only way to win the war if for the UK to have a democratic overhaul.