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In his insightful post, David Howarth set out a conflict between two visions of democracy: Westminster and Whitehall. The Westminster vision favours Parliament (particularly the House of Commons), drawing on Parliament’s democratic credentials, the sovereignty of Parliament and the ultimate constitutional convention that a Government only holds power to the extent that it enjoys the confidence of the House of Commons. The Whitehall vision favours a strong executive and efficient government, democratically backed by the mandate on which it was elected, focusing on Standing Order 14 which prioritises Governmental business in the House. This post will ask how far these visions are supported, or rejected, by the European Union (Withdrawal) Act 2019. It will argue that, in one sense, the Act is a pyrrhic victory. It did little to modify the relative powers of the House of Commons and the Government and, if anything, its long-term consequence may transfer power from the Commons to the Government. Although it marks a potential transition in the role of the House of Commons, moving from its traditional role as the epitome of a reactive or arena legislature to a more active role, the Bill also demonstrates the precarious position of Parliament. The House of Commons may be unable to capitalise on its potential transition from a passive to an active legislature.
A Pyrrhic Victory?
When introducing the European Union (Withdrawal)(No 5) Bill at its second reading in the House of Commons, Yvette Cooper explained that the purpose of the Bill was to ‘avert no deal on 12 April’. This has indeed been averted. Moreover, the Bill obtained cross-party support, and was added to the agenda through a business motion of the House to disapply Standing Order 14 , enabling the first, second and third readings of the Bill, and the Committee stage in the House of Commons, to take place in one day. This process by-passed the usual mechanisms for Private Members Bills, which normally succeed in practice only when supported by the Government. It is hard to see this as anything other than a victory for Parliament over the Government; for the Westminster over the Whitehall view of democracy.
In addition, we can regard the Bill’s process through Parliament as the culmination of a series of measures through which the Commons appears to have wrested control from the Government. The process was started by section 13 of the European Union (Withdrawal) Act 2018, creating the so-called ‘meaningful vote’. By placing conditions on the ratification of the Withdrawal Agreement, as well as initiating a series of ‘motions in neutral terms’, the Act transferred power from Whitehall to Westminster. Without section 13, the Withdrawal Agreement could have been ratified through the negative resolution process found in section 20 of the Constitutional Reform and Governance Act 2010. The motions in neutral terms laid the foundations for a series of business motions of the House: enabling motions on neutral terms to be amendable (on 4 December); suspending Standing Order 14 (on 25 March and 1 April), enabling a series of indicative votes on 27 March and 1 April), in addition to the business motions on 1 April and 3 April suspending Order 14 in order to provide for the enactment of the Bill. If further proof were needed, section 13 was also instrumental in the decision of Wightman which granted permission for an Art. 267 reference to the CJEU, ultimately leading to the CJEU’s conclusion that it was legally possible for the UK to unilaterally revoke Article 50. It seems hard to conclude anything other than that the the Westminster view of democracy is now compelling, with the Whitehall model in full retreat.
However, the Bill’s progression through the Commons and the Lords, and its final form, tell a different story. Flaws in the Bill’s first draft (on which see Mark Elliott, and the report of the Select Committee on the Constitution of the House of Lords) led to amendments in both the Commons and the Lords. It was not clear that the Bill, in its initial form, would achieve its objective. Whilst the original version of the Bill required the Prime Minister to move an initial motion shortly after the Bill received royal assent, there were no dates set as to when the Prime Minister should approach the European Council to seek an extension, or as to when she should lay a motion before the Commons should the European Council propose a different extension date to the one proposed by the Prime Minister, or one with conditions attached.
Even if Prime Ministerial inertia could lead to judicial review (potentially on Padfield grounds should she fail to seek an extension from the European Council in time so as to thwart the aims of the Act to avert ‘no deal’ on 12 April) it was not clear whether the court could grant a mandatory order to require the Prime Minister to move a motion in the House, or to hold her in contempt of court should she fail to do so. Moreover, any legal action would potentially be too late – the 12 April deadline would have passed and we would have left the EU without a deal.
The Bill could also lead to a potential ‘Parliamentary Mulberry Bush’, as dates were proposed by the Prime Minister, rejected, modified by the Council, to be proposed, rejected and modified by the House of Commons on almost a continuing basis. The Bill was amended in the House of Lords to prevent this problem, with the Act providing for just one motion. The Prime Minister chooses the date of any possible extension, with the possibility of the Commons voting to amend her chosen date. The Prime Minister chose 30 June, in line with the letter written to Donald Tusk prior to the deliberations on the Bill. The motion was approved by 420 votes to 110. Whitehall’s vision of democracy hovers back into view.
The Bill as proposed in the Commons also potentially restricted the Prime Minister’s prerogative powers, giving rise to fears of potential litigation should the Prime Minister agree to another extension after 12 April using the prerogative. But section 6 of the Act expressly preserves the prerogative power of the Prime Minister to seek and agree to an extension of Article 50, provided that this is for an extension that ends no earlier than 22 May 2019. The Whitehall vision of democracy seems far from dead in such a scenario.
Moreover, the Government was successful in proposing a further amendment in the House of Commons. The procedure for accepting delegated legislation to modify the definition of ‘exit day’ no longer requires an affirmative resolution by the Commons and the Lords. It now uses the negative resolution procedure (section 2). This amendment survived in the House of Lords, despite the recommendation of the House of Lords Delegated Powers and Regulatory Reform Committee to reject it. Expediency won out: the maintenance of the affirmative resolution procedure might lead to the frustration of the Bill’s purpose, there perhaps being no time to obtain votes in order to avoid the UK leaving the EU with no deal on 12 April. Yet, the modification of ‘exit day’ does not prevent the avoidance of no deal. It provides clarity by preventing delegated legislation designed to facilitate ‘no deal’, or to deal with deficiencies in retained EU law, from coming in to force. Yet, as a matter of EU law, whilst we remain a member of the EU, directly effective provisions of EU law would override this delegated legislation, even if it were to have come in to force on 12 April. Moreover, the move to negative resolution is not just for the one-off motion to prevent no deal on 12 April. It applies to all future amendments to ‘exit day’: 22 May (leaving with a Withdrawal Agreement and no European Parliamentary elections); 11 June (leaving with no deal having failed to hold European Parliamentary elections); 31 October (with or without the ratification of the Withdrawal Agreement); or the first of July, August, September or October, the Withdrawal Agreement having been ratifed before the end of June, July, August or September – not to mention the possibility of a further extension request. The Whitehall view of democracy becomes more dominant.
From Reactive to Active?
The enactment of the European Union (Withdrawal) Act 2019 sets a precedent which could see Westminster becoming more active. It illustrates that it is possible for a cross-party group of backbench MPs to initiate and enact legislation, suspending Standing Orders to command parliamentary time for debate. However, it also illustrates the difficulties of this process. The Act is the fifth such Bill to be proposed by Yvette Cooper. Previous attempts to suspend Standing Order 14 to enact similar Bills failed to gain majority support in the House of Commons. The Act is short, dealing with one issue. It was enacted during a unique set of circumstances questioning the assumptions on which the Westminster Parliament traditionally operates. The snap general election of 2017 failed to deliver a clear majority Government, despite the UK’s continued adherance to first-past-the-post. Brexit cuts across party lines. This gives rise to odd juxtapositions of large Governmental defeats, followed the next day by a vote of confidence in the Government.
All of this is taking place against a backdrop of a politically advisory referendum, exacerbating tensions between the sovereignty of Parliament and the sovereignty of the people, and a constantly ticking clock of exit days set by EU law, which can only be pushed forward when there is unanimous agreement from the European Council. As much as the House of Commons can repeatedly vote against a no deal Brexit, the only way to stop a no deal exit on a particular exit day is to agree the Withdrawal Agreement, revoke article 50, or seek and obtain a further extension. It is not just, as Lord Judge pointed out in the House of Lords, that a precedent set need not be followed; the precedent arose from a set of circumstances that may not be easy to replicate outside of Brexit.
There are further potential problems when assessing the impact of the European Union (Withdrawal) Act 2019. The assessment of Westminster as a reactive legislature derives from an analysis of the extent to which non-Governmental members of the legislature can successfully initiate or amend legislation. It fails to take account of how those in Government may themselves propose amendments to legislation in the face of anticipated reaction in the Commons; or through adopting and supporting amendments that were originally proposed by non-Governmental MPs. The Government also reacts to public pressure and reports of Select Committees. These may prompt legislation and influence the content of both draft and proposed Bills. These mechanisms provide a means of facilitating deliberation. But deliberation often takes place behind the scenes, hidden by the ‘show’ of adversarial politics on the floor of the House. Would section 13 of the European Union (Withdrawal) Act 2018 have been enacted without these pressures in the background? Would the Prime Minister have written to Donald Tusk on 5 April without the events of 1 and 3 April? These are questions to which it is hard to provide any definitive answer.
Perhaps the best way to read the Act is to realise its unique status. To recognise the very particular set of facts that prompted its initiation and enactment. If it sets a precedent, let it set one of illustrating that, when the limited mechanisms for effective deliberation fail, it is still possible for the Commons to ensure that its views are not silenced. It is what Nick Barber and I call a ‘constitutional self-defence mechanism’ ( Public Law 113). A means for the Commons to protect its constitutional powers in times of, or to even help resolve, a potential crisis. It can also indirectly help to facilitate deliberation – failing to take account of the views of the Commons, or enabling the Commons to influence the content of legislation, could lead to the Commons taking control. The Westminster view comes back into focus, reminding Whitehall that it only has power to the extent that it holds the confidence of the House. In short, neither the Westminster nor the Whitehall view of democracy is fully accurate. Both also have strengths and weaknesses as a potential model of democracy. The tension betweeen these two views is needed to ensure that neither Westminster nor Whitehall become so strong as to undermine the legitimate democratic credentials of the other.
Is Westminster v Whitehall the only game in town?
This assessment of the European Union (Withdrawal) Act 2019 has focused on competing conceptions or views of democracy. The UK constitution has evolved through a series of potential crises – of which Brexit is merely the latest. It is at these moments that competing conceptions of democracy come to the fore. The crisis pushes this conflict to centre-stage; when normally different constitutional theories are able to work side by side, responding to particular situations, alternating in their dominance in the background. However, this battle between Whitehall and Westminster overlooks other views of democracy. By pushing the current situation to levels of constitutional crisis, seeking a solution where one side wins, we push deliberative democracy to the background. If we are to move on, politics needs to find a means of deliberating and reaching an acceptable compromise. These deliberations should not just include the Commons. If we are to regain trust in politics, they need to engage more fully with the people as well.
Alison L. Young, Sir David Williams Chair of Public Law, University of Cambridge
(Suggested citation: A. Young, ‘Taking (Back) Control?’, U.K. Const. L. Blog (23rd Apr. 2019) (available at https://ukconstitutionallaw.org/))