The constitutional issues that underlie the Brexit negotiations

Last night’s government defeat on the Withdrawal Bill has led to renewed questions relating to the ability of the government to negotiate a deal with the EU, or even to achieve Brexit at all.

Some questions have been asked explicitly – most notably the vote of no confidence tabled by the opposition – while some remain unexplored, such as those relating to the relative powers of different actors within British politics. These are key to understanding the current impasse in the Brexit negotiations, and how politicians can progress.

One of the key themes of the Brexit campaign related to sovereignty.  Although the debate represented different notions of sovereignty it broadly centred upon a return of power from Brussels to London under the guise of ‘taking back control’.

While the broad principle was agreed upon by Brexiteers, what this looks like in practice has been more difficult to reach consensus on. It has produced a power grab between Britain’s branches of government, namely the executive (government) and legislature (Parliament). Initially May – as head of the executive – wanted to invoke Article 50 (the mechanism through which Britain would leave the EU) using royal prerogative. This would mean that the government could dictate the timing of Britain’s exit without consulting Parliament.

However, a legal challenge prevented the government from acting unilaterally, and the resulting judgment required Parliament to be consulted prior to the invoking of Article 50.

Despite Parliament then voting to do so in February 2017, the tensions between the executive and legislature have remained. The loss of the government’s majority in the 2007 general election has further heightened these issues.

Here May fought a personal election campaign – promoting herself and her vision of Brexit – and subsequently lost the Conservative Party’s majority in the House of Commons, thus making it more difficult to push through her deal.

Over the last few months Parliament has reasserted itself, and reaffirmed its traditional role of scrutinising the government. In addition to last night’s vote, last November government ministers were found in contempt of Parliament over their inability to publish in full the legal advice the government had received; in December, May was forced to delay the meaningful vote following opposition from backbench MPs; and more recently Parliament has expressed its opposition to a no deal Brexit and insisted that in the event of the deal being voted down, the government must respond by presenting a plan B option within three sitting days.

However, if the government wins today’s vote of no confidence – as it is expected to – this may help to tilt the power balance back towards the government. This wouldn’t alter any of the votes already conducted, including the date of withdrawal, but it might empower the government to try and orchestrate a new deal.

One reason why this crisis has emerged is that there exists a tension between the nature of referendum – a form of direct democracy – and general elections – a form or representative democracy.

Here each derives its legitimacy from the public, though with different remits. The referendum was an explicit choice, between being a member of the EU or not, and produced a clear result (i.e. that we should not). However, what wasn’t drawn out in the referendum was the conditions on which we should leave or have a future relationship (if any) with the EU.

There then exists scope, for MPs, to challenge and negotiate the terms of this relationship. In doing so they must represent everyone – include those unable to vote – in their constituencies, not just the 52% of voters who supported Brexit in the 2016 referendum.

MPs have to consider a whole range of issues – not simply the issue of Europe – and many see a conflict between promoting economic and security interests and leaving the EU, despite promises to “respect the result” of the referendum. These were some of the reasons why 114 MPs opposed the initial vote to invoke Article 50.

In addition to this tension between structures at the national level, the devolved administrations have also demanded a say in the Brexit process. This is an issue that is further clouded by the current suspension of the Stormont Assembly in Northern Ireland, not least given the importance of the Irish backstop agreement and refusal of Sinn Féin MPs to take their seats in Westminster.

SNP MPs have argued that the Brexit referendum has broken promises made during the 2014 independence referendum in Scotland, and means that result can be questioned – which places further stress on the integrity of the union.

May is thus faced with some serious challenges to overcome if she is to find consensus across the House of Commons, or indeed the country. First, her rhetoric of “this deal or no deal” will have to be tempered, as opponents see this as effectively blackmail, and akin to asking MPs to vote for an unfavourable option simply to avoid a worse one.

Second, her unionist credentials and desire to preserve the integrity of the United Kingdom will mean she may have to address further concerns of the devolved administrations, or political parties, regarding further differentials between Northern Ireland and other constituent parts of the UK.

Inevitably this means adapting or changing her red lines. Yesterday, ahead of the vote, it appeared that any Plan B may involve trying to rework Plan A and bring it back to Parliament for a further vote.

However, this fails to address the underlying crisis that is playing out beneath the surface of policy issues. If May is to overcome the apparent Brexit impasse new solutions and strategies may need to be advanced, including revisiting the relationships that exist between Parliament, government and devolved administrations.

By Dr Christopher Kirkland, Lecturer of Politics at York St John university.

Disclaimer:
The views expressed in this analysis post are those of the authors and not necessarily those of the UK in a Changing Europe initiative.

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