Eventful parliaments are sometimes given colourful names: the “Rump,” “Barebones,” “Cavalier” and so on. There is a case for doing the same for the parliamentary term just ended. What name to give it is a different matter. Its many critics might take inspiration from the “Addled Parliament” of 1614. So rancorous was it that James I observed on dissolving it that he was “amazed that his ancestors should have allowed such an institution to come into existence”—an attitude that similarly bloody-minded but less fortunate Stuart kings would live to regret.
The parliament of 2017-19 was certainly divided and divisive. In this it mirrored the state of the nation, something we desire in representative political bodies. It failed to come to heel when bidden to do so by the executive. But this is what happens to governments careless of their majority; and insisting that political opponents fold when your position is ascendant is the opposite of democratic. So was this a successful parliament? And what, if any, is its constitutional legacy?Some say that the answer depends on your frame of reference. Normal rules do not apply when assessing this parliament: since the people settled the Brexit question in the referendum, all politicians became agents of the popular will, making those who do not fall into line betrayers of it. But if this argument works at all, it only does so for the basic decision on Leave or Remain, not in relation to choices between various Brexit scenarios. On these questions, which were this parliament’s prime business, invoking the “Will of the People” adds little, since the will of the people is precisely what falls to be determined through political processes centred on parliament.
A parliament strong due to executive weakness; a veto point, its strength most visible in obstruction but largely incapable of driving its own alternative agenda. These are all true, but only to a point. Unusually volatile, the 2017-19 parliament could also be surprisingly decisive. Controversy surrounds the speaker’s office, the nodal point of many innovations such as the use of the “humble address” (in conjunction with the contempt of parliament process) to pressure government into taking certain actions. But its most important single achievement was the Benn Act. Spurred by the prime minister’s decision to prorogue it, parliament acted with speed, passing legislation requiring the government to ask the EU for an extension to the negotiating period to avoid a no-deal Brexit.
These developments reinforce a conception of parliament as an independent political entity, one that foregrounds its functions as superior deliberative and legislative body. That conception can be obscured by an understanding of parliament as the helpmeet of government, whose first task it is to sustain, supply and scrutinise the executive. These positions are not incompatible, so long as it is understood that ultimately it is parliaments that rule governments and not the reverse. This was the view the Supreme Court articulated in Miller 2, the prorogation case. Misrepresented by some as anti-democratic, the decision in fact reinforces the basic prerogatives of parliament by reducing the capacity of an executive incapable of gaining its confidence to shut it down.
That recent parliaments have managed to assert themselves, albeit in the context of weak and sometimes ham-fisted executives, is itself an achievement. The centre of gravity of the modern state pulls towards executive power, more inexorably in times of crisis and instability. It is odd that Brexiters have yet to see at least some of these developments as confirming the strongest part of their case—that once outside the EU we would see the reinvigoration of domestic politics, symbolised by the idea of sovereignty being “returned” to parliament.
How lasting these developments turn out to be depends much on the direction of political travel. Parliaments where governments have healthy majorities have a different complexion from parliaments where no party dominates. But there are signs that in one area at least the gains of recent parliaments may well stick. I refer to parliament’s more active role in foreign relations. Brexit has brought this “federative” capacity of parliament into focus since questions that present as foreign relations matters—treaty negotiations, political agreements, trade deals etc—are also constitutive, choices in relation to which clearly concern our identity as a political nation.
In this context, the hoary idea that made parliament sovereign at home but gave the executive, through the exercise of prerogative, a largely free hand abroad has been scotched. We have seen instead a gradual recognition that parliamentary sovereignty must have both external and internal properties to be meaningful. Internally, parliament is the ultimate law-making body. Externally, parliament’s federative capacity acts as a kind of airlock: parliament is the ultimate arbiter of what the state agrees to in its external relations, especially when the products of such agreements impact on domestic law or existing legal rights.
Parliament’s federative capacity was at the heart of the first Miller case, when the Supreme Court decided that the government could not use the foreign relations prerogative to give notice of the UK’s withdrawal from the EU but needed first to obtain an Act of Parliament. It has since become more consistently recognised in political practice, most recently in the European Union (Withdrawal Agreement) Bill. The Bill implements the Withdrawal Agreement concluded between the UK and the EU on 17th October 2019. It passed second reading in late October, but was dropped by the government when parliament refused to agree the very tight timetable it proposed. It is likely that the Bill (or something very like it) will be passed soon after a government emerges post general election.
The Bill is wide-ranging and complex. Its main purpose is to maintain the effect of EU law within domestic law during the Withdrawal Agreement’s transition period, but it also contains provisions on citizens’ rights and workers’ rights (including the creation of an independent monitoring authority) and the Ireland/Northern Ireland protocol. Like other Brexit legislation, it confers broad delegated law-making powers on government ministers.
But the Bill also contains important provisions that are on point. Clause 29 provides for parliamentary oversight of EU law-making, requiring the government to schedule a debate and vote in the House of Commons where the relevant select committee reports that any EU legislation raises “a matter of vital national interest to the United Kingdom.” Clause 30 provides that the transition period can only be extended if the government has laid a statement to that effect before each House of Parliament and if the Commons agrees to the extension.
Clause 31 requires a minister to make a statement to the Commons on objectives for the future relationship with the EU at least 30 sitting days before exit day. The statement must be consistent with the Political Declaration of 17th October 2019. Ministers are not permitted to negotiate on the future relationship with the EU unless the statement is agreed by the Commons. The clause also imposes periodic reporting requirements - not just to Parliament but to the devolved legislatures, otherwise given little formal role by the Bill. Importantly, the same clause provides a mechanism for parliamentary approval of a negotiated future relationship treaty, stating that the treaty may be ratified only if it has been approved by a resolution of the House of Commons.
The legal advisers to the House of Lords Constitution Committee note how these provisions carve out a “relatively muscular role” for parliament in relation to negotiating the UK’s future relationship with the EU. As such, and even though it contains no formal power (unlike the Benn Act) for parliament to compel the government to extend the transition period, the Bill accurately reflects recent trends. The old prerogative-dominated model saw parliament’s foreign relations role as informal and ex post (or downstream), reacting to and potentially criticising government action after it has been taken. Current practice gives formal recognition to parliament’s federative role, in statutory provisions that impose duties on government ministers and create avenues for scrutiny. These provisions enable parliament to exercise ex ante (or upstream) control—that is, in certain particularly important areas, it must do something to authorise the executive before it can take certain steps.
Of course, it is one thing what a legal framework says, and quite another how it is taken up in practice. It is conceivable that these provisions, assuming they come into force, will make little practical difference to transition period negotiations. Even so, they serve to reinforce a vital principle that seems to be emerging stronger from the bruising experience of Brexit—that whatever the form or forum, executive action is subject to legislative prescription.
