By Adam CYGAN

Professor Adam Cygan teaches EU Law at the University of Leicester and is lead researcher on the Economic and Social Research Council Brexit Priority Grant project, Parties, Parliament and the Brexit Process. In this column, Prof. Cygan reflects on the role of the British Parliament in the Brexit negotiations. The lack of precedents make any of the steps in the Brexit process an exploratory one, and this unexpected role of the British Parliament is another example. Navigating the consequences of Brexit in the EU and its policies is a feature of our Executive Education courses, and specific sessions are organized on this issue in the Intensive Seminar on the EU, Trade Policy and EU Economic Governance, among others. Additionally, a half-day Brexit simulation game is organized within the Negotiations in Practice course taking place in November. We hope you enjoy the read below!

Triggering Article 50 – The Role of Parliament

In its judgment on the Gina Miller court case, the UK Supreme Court held that to trigger Article 50 and commence the two-year process of exiting the EU, there must first be a formal vote by Parliament. The Supreme Court confirmed that, given the constitutional consequences of leaving the EU, particularly the repeal of the European Communities Act 1972 - which will bring to an end the rights contained within the EU Treaties - parliamentary consent was required.

Despite criticism of the judges in some parts of the media, the judgment of the Supreme Court should not be considered as anything other than a legal statement about the constitutional nature of the legal limits on executive authority. The judgment has nothing to do with the wisdom of triggering Article 50, nor does it affect, let alone displace, the outcome of the referendum on EU membership.

The key aspect of this judgment is that it placed constraints on the ability of the government to act without reference to Parliament, and since triggering Article 50 on 29 March 2017, Parliament has sought to assert its constitutional rights throughout the passage of the EU Withdrawal Bill. First and foremost, Parliament has exercised its right to hold the government to account.

Brexit and the House of Commons

Since triggering Article 50, the relationship between Parliament and the government has been further complicated by the inconclusive General Election result. In June 2017, the Conservative government lost its parliamentary majority, making the process of delivering Brexit even more challenging. One consequence of the hung Parliament that resulted from the election has been to embolden MPs, who proposed nearly 500 amendments to the EU Withdrawal Bill during its debate in the House of Commons. Though only defeated once – on the amendment for a ‘meaningful vote’ for Parliament on the final Brexit deal – the government was mindful of the impact of losing key votes which would create an impression of a government losing control of the Brexit process.

Thus, during the passage of the Bill in the House of Commons, the government accepted a number of amendments to the Bill, including one which proposed that the date of withdrawal could be changed if necessary. Overall, the number of amendments proposed illustrates that MPs believe they have a real chance to influence the Brexit process, and the acceptance of amendments by the government, without a vote, is recognition that the government is not in complete control of the parliamentary process. In the lead up to Brexit on 29 March 2019, Parliament and the government will, no doubt, continue to compete to assert their authority.

The House of Lords Causes Problems for the Government

After the conclusion of the House of Commons stage for the Withdrawal Bill, it was the turn of the House of Lords to debate the Bill. Here the government faced greater difficulties with peers accepting 15 amendments to the Bill. Constitutionally, the House of Commons can overturn the amendments of the House of Lords, but two amendments stand out and are likely to create problems for the government primarily because of the existence of cross party support for these in the Commons.

The first is Lord Kerr’s proposal that the government set out arrangements for a new customs union with the EU. This amendment is strategic because, rather than just proposing that the UK stay in a customs union with the EU, it requires the government to provide a statement to Parliament outlining the steps it would take to negotiate a custom union. Therefore, if accepted by the Commons, the government would have to be quite specific about its intentions for a future customs union, thereby giving Parliament a significant degree of control over the government's negotiating position on the customs union and future UK/EU trade negotiations more generally.

The second is an amendment proposed by Lord Hogg, a former Conservative minister in Mrs Thatcher’s government in the 1980s. This amendment would prevent the UK from leaving the EU without a deal and would, crucially, require the government to go back to the negotiating table if Parliament rejected the deal that the government secured. This vote potentially places Parliament at odds with the government which has repeatedly stated that if Parliament rejects the deal then the default position is that the UK leaves the EU with no deal and there will be no further negotiations. As the House of Commons has already created a legal requirement for a meaningful vote on the final Brexit deal, it is not inconceivable that MPs could accept Lord Hogg’s amendment because it increases parliamentary control over the government. 

It is, of course, open to the Commons to reject all 15 amendments to the EU Withdrawal Bill which have been passed by the House of Lords. This would be the ideal outcome from the government’s perspective. However, the Kerr and Hogg amendments have complicated the government’s position, not least because they are likely to act as ‘lightening rods’ for MPs, on all sides of the Commons, who question the government’s Brexit strategy. Should MPs choose to listen to the Lords and approve these amendments then the government faces the prospect of trying to deliver its Brexit legislation through a Parliament which has expressed its view that it does not support the government’s objectives. 

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