Today marks five years since June 23 2016, that fateful day when the UK delivered a small but decisive majority in favour of leaving the EU. Five years later and Brexit is done, at least in name, though the recent request for an extension on ‘grace periods’ for goods entering Northern Ireland does have an air of familiarity about it…
Given the significance of this ‘anniversary’, and the constant presence that Brexit-related news has had in our lives ever since, we in the Cicero Legislative Affairs Unit have been asking ourselves; what does it all actually mean? Here are our five key takeaways from the last five years:
Secondary Legislation Matters
Before 2016, you would be hard-pressed to find anyone, even in political circles, who knew much about Secondary Legislation. Among those who did, even fewer seemed to care about this collection of minor bills known as Statutory Instruments (SIs). Relegated to the bottom of the Order Paper, they often provided little more than a technical clarification or a definition of a term included in a piece of Primary Legislation, from which Secondary Legislation derives its powers.
Brexit changed this however, as the Government grappled with how to make the extensive changes required to transition out of the EU, not all of which could be debated in Parliament. Secondary Legislation was increasingly relied on to make more substantial changes, often with little scrutiny from other MPs. In 2018, it was found that the average debate in a Delegated Legislation Committee lasted just 23 minutes, and though Parliament has the power to block them from becoming law, this only happens rarely. MPs are also unable to suggest amendments, and must instead only approve or reject an SI outright, while as many as 80% of SIs don’t even require Parliamentary approval, and simply become law automatically if they are not opposed.
SIs are now the primary way in which the Government makes laws, and it has argued that the sheer volume of legislation required to unpick nearly 40 years of EU legislation and transform it into UK law, or introduce wide-reaching lockdowns over the course of the pandemic, would be impossible to debate in full. As Primary Legislation – Acts of Parliament – have fallen in number over previous decades, the amount of Secondary Legislation has risen. Over 1,600 SIs were passed in 2020, compared to just 29 new Primary Acts. Indeed, Primary Legislation increasingly acts as a mere framework, with ‘Skeleton Bills’ granting powers for vast amounts of Secondary Legislation to be introduced afterwards. Hundreds of these will be minor technical additions or administrative attachments to existing Bills, but many remain concerned that other SIs are not being given the attention they require, especially as the EU Withdrawal Act (2020) gives the Government effectively unlimited powers to amend EU laws as they become UK ones.
More recently, nearly 400 SIs have been passed since March 2020 in order to deal with the COVID-19 pandemic, including 81 drawing their powers from a single Public Health Act from 1984. Lockdowns have been extended and businesses forced to close through un-amendable SIs, subject to very little scrutiny.
Several MPs and members of the House of Lords have called for reform, and Commons Speaker Sir Lindsay Hoyle has criticised the Government over its use of Secondary Legislation as “totally unsatisfactory” and showing a “total disregard” for Parliament. These reforms may come to pass, but as we move to a post-Brexit and post-pandemic legislative landscape, keeping a close eye on Secondary Legislation remains vital to keeping informed.
Parliament is supreme, for now
The UK is an exception to many models of Government, with an executive made up almost entirely of members of the legislature. This is in contrast to the French and American models, for example, where a President is not a sitting Member of Parliament.
Understandably, questions have long been asked over where the ultimate political authority in the UK lies – Government or Parliament? This is sometimes difficult to answer. When things are going ‘well’, the British Prime Minister is almost ‘Jupiterian’, and among the most powerful democratically elected leaders worldwide. Premiers such as Margaret Thatcher and Tony Blair enjoyed large majorities in Parliament and were able to enact almost any change they wanted; being both within the legislative system, and controlling it from without with broad agenda-setting powers. Blair notably did not lose a single vote in the Commons for the first eight years of his premiership, reducing Parliament to an effective ‘rubber stamp’.
Difficulties arise when Prime Ministers do not have this sort of majority – such as Theresa May after 2017, who was left with a working majority of just two. Such leaders are at the whims of Parliament, including their own rebellious backbenchers, and find their entire legislative agenda stalled, unable to issue executive orders as their US Presidential counterparts might. Although hard to picture now, when Boris Johnson first took over as Prime Minister he lost almost every vote in the Commons called before the snap election in 2019.
In many ways this question was one of the constant drivers of conflict throughout the Brexit process, setting up numerous battles between Ministers and MPs, Prime Ministers and Speakers. It was Theresa May’s Government that had to negotiate the terms of the Brexit deal – it was Parliament that had to vote it into law, and declined to do so three times. In many ways, it was the fact that May was no longer able to control the Parliamentary agenda that contributed to her struggles and eventual downfall.
Indeed, even before the ‘starting pistol’ had been fired on the Brexit negotiations on 29 March 2017, these issues had risen up the public agenda and all the way to the Supreme Court, as activist Gina Miller proved by winning a court battle that established Parliamentary dominance (at least as far as the triggering of Article 50 was concerned). Miller was able to challenge the Government through a judicial review asking the Court to provide clarification on the Government’s powers. The case established that the Government could not unilaterally trigger the UK’s withdrawal from the EU, and must instead receive Parliamentary assent.
This case and others have entrenched Parliamentary dominance once in the UK once again – for now at least. Boris Johnson and his Government’s resurgent majority calls this into question. Perhaps learning from the struggles of his predecessor, Johnson has already announced a new Judicial Review Bill. The Bill, according to the Queen’s Speech, plans to “restore the balance of power between the executive, legislature and the courts”, building on the 2019 Conservative Manifesto promise to ensure that Judicial Reviews are not “abused to conduct politics by another means” or “to create needless delays”. Here, the fine line gets even finer. Only Parliament can restrict itself – and Boris Johnson could use his majority to introduce reforms that would change Parliament for a long time to come – executive dominance could return once more.
Don’t play the Queen
The role of the Queen in a constitutional monarchy such as the UK was a topic that once featured solely in classroom debates, academic papers, and dry constitutional law. It was of minor interest – a fun ‘what if?’, but a largely irrelevant question. All that changed in August 2019, when Prime Minister Boris Johnson advised the Queen to ‘prorogue’ – or dissolve – Parliament for five weeks in the run up to the Brexit deadline in a move seen by many as an attempt by a Government that had just suffered a string of defeats to avoid further Parliamentary scrutiny; the proposed prorogation would have seen Parliament return just 17 days before the Brexit deadline.
The issue was fast-tracked to the Supreme Court, setting up a battle involving all three branches of Government – Legislature, Judiciary, and Executive. The court ruled unanimously that the prorogation had been illegal on the basis that the Prime Minister had not informed the Queen of its true purpose – arguably to prevent Parliament from fulfilling its role. This resulted in memorable headlines (and surely every Prime Minister’s tabloid nightmare), accusing Johnson of “lying to the Queen”.
The prorogation was therefore declared null and void – in effect, it had never happened – and Parliament returned the next day. Nevertheless, some of our interesting hypothetical questions were answered. Would a sitting Monarch go against the advice of their Government and Prime Minister? No. But also, dragging a constitutional Monarch into legislative affairs isn’t likely to go down well with the courts. Don’t expect another prorogation anytime soon – though with the Government’s current majority, it is unlikely they would need to do so.
Fixed elections…? Fixed with what?
In the Queen’s Speech, the Government announced that it intends to repeal the Fixed-Term Parliament Act (FTPA) introduced in 2011. However, with three elections in five years between 2015-2019, you would be forgiven for either forgetting it existed, or never realising in the first place.
The Act was originally introduced by the Coalition in 2011 and set a fixed election timetable in the UK for the first time. Previous Prime Ministers had enjoyed the ability to call elections when it best suited them – i.e. when their party was riding high in the polls, and looked likely to defeat the opposition. Successful multi-term premiers including Thatcher and Blair made use of this tactic in order to remain in power, but it contributed to an element of uncertainty. Gordon Brown was widely criticised when as Prime Minister he refused to call an election the polls indicated he could have won, only to lose the next year.
Following the introduction of the Act, an election was held ‘on schedule’ in 2015, but ‘off schedule elections’ were held in 2017 and 2019 under Theresa May and Boris Johnson respectively. Both Prime Ministers were accused of lacking democratic legitimacy, having assumed office ‘mid-term’, and faced pressure to face the voters. Under the FTPA an election only required a two-thirds majority in the House of Commons to proceed. Afraid of being seen as ‘running scared’, opposition parties also face pressure to support any election motion tabled. Although the gamble did not pay off for May, who lost her majority, it did so for Johnson, who emerged with an 80-seat majority in 2019 and was able to break the Parliamentary gridlock.
Now with control of the Commons, the Prime Minister announced in the Queen’s Speech earlier this year his intention to repeal the FTPA, returning to him the power enjoyed by previous Prime Ministers to call elections at the time of their choosing. Whilst this could give us an insight into Boris Johnson’s mindset, and the predecessors he most hopes to emulate, it is also true that the FTPA failed in its primary objective and was unable to stop Prime Ministers calling for early elections. Indeed in 2019, Johnson was able to override parts of the act by passing a law that would require a simple, rather than a super, majority of MPs to vote for the election. We also learned that in practice, opposition parties do not want to be seen as cowardly or hiding from voters. Tellingly, both the Conservatives and Labour included the repeal of the failed Bill in their manifestos – the allure of ‘rolling the dice’ with early elections to improve your party’s position has proved too strong for British politicians of all parties.
What does a ‘Remainer’ look like these days anyway?
We’re now five years on from the referendum, and the latest polling indicates that four out of five of us would vote the same way if the question were asked again today. In short, our minds are made up, and the referendum remains one of the crucial dividing lines in our politics. Increasingly, how a politician voted in the 2016 referendum is taken as a broad indicator of their policies or priorities, much like a party membership. MPs who weren’t even sitting in 2016 are asked how they voted, so that the public can better understand them. Having a ‘Remainer’ candidate run for election in a pro-Brexit constituency, as Labour did in the Hartlepool by-election, is considered a risky move. The high Remain vote in Chesham and Amersham is also discussed as a factor in the Conservative loss there last week. Keeping quiet about how you voted, as some MPs such as Commons Speaker Sir Lindsay Hoyle have done, has become a policy in itself.
In Batley and Spen, where a by-election will be held on 1 July, Labour will be looking not just at keeping its own voters, but at the pro-Brexit independents who received over 6,000 votes in 2019 – enough to wipe out Labour’s slim 3,500 majority should they coalesce behind the Conservative candidate. So, if there’s one thing we’ve learned about Brexit over the last five years, it’s that it isn’t going anywhere any time soon, and could continue to shape our politics for many years to come.
Get in touch with our Legislative Affairs Unit:
