Abstract
A key aspect of the campaign to leave the European Union (EU) was the chance to ‘take back control of our laws’. No longer would ‘Brussels’ tell the United Kingdom what to do, or so the narrative developed. The logic was that Parliament would regain powers that had been transferred to the EU over the course of half a century. Yet, when she sought to trigger Article 50, Prime Minister Theresa May initially tried to circumvent Parliament in an early sign that Brexit could mark an executive power grab. Only thanks to a court ruling was Parliament enabled to vote on the matter, prompting the first in a series of pieces of legislation on Brexit: the EU (Notification of Withdrawal) Act 2017. Complementing the chapters by Thompson and Yong and by Whitaker et al. in this volume, this chapter will explore the changing dynamics of Parliament-Executive relations in light of Brexit, focusing primarily on the role of the upper chamber—the House of Lords—where the Government does not have majority, thanks to the unusual methods of appointing peers, many of whom sit as Cross-benchers, outside the normal party system. It will look at the Government’s ability to get legislation through the Lords, with particular reference to the EU (Notification of Withdrawal) Act 2017 and the EU (Withdrawal) Act 2018.
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Notes
- 1.
The exceptions were the debates surrounding the UK’s entry into the Common Market, culminating with the European Communities Act 1972, and ratification of the Maastricht Treaty in 1992.
- 2.
- 3.
The Bishops proved to be somewhat divided over Brexit issues with one or two supporting the Government position, other supporting amendments.
- 4.
The question of territorial representation was raised by Lord Northbrook in September 2018. See Hansard 7 September 2018.
- 5.
Those peers who identify as Crossbenchers sit as a group and have regular meetings with fellow Crossbenchers. However not all non-party peers are Crossbenchers; some sit as Independent Labour, for example.
- 6.
Of course, the UK has opt-outs from the Euro and the Schengen Accords, so is not as fully integrated as some EU Member States, but enshrining EU law into domestic law would mark a degree of ‘downloading’ rarely seen in full Member States.
- 7.
The Coalition Agreement’s commitment to increasing the number of peers to reflect more closely the percentage vote at the previous general election helped in this regard, ensuring as it did that a disproportionate number of Liberal Democrats were elevated during the five years of Coalition.
- 8.
Most legislation is initiated by the Government, but there are some opportunities for backbench MPs to propose legislation, typically via a PMB. MPs go into a ballot to secure a chance to put forward a PMB and those that come near the top of ballot have some chance of getting their Bill through, particularly if the governing party is supportive. For more information, see https://www.parliament.uk/about/how/laws/bills/private-members/
- 9.
Originally, May argued she could trigger Article 50 by virtue of the referendum result. Only after a court case brought by Gina Miller was Parliament given the opportunity to legislate on the matters—an opportunity to ‘take back control’ had been won, despite the PM’s endeavours to take executive action. See also Lynch et al. and Thompson and Yong in this volume.
- 10.
There is some dispute over whether Parliament can bind itself to abide by the outcome of a referendum but the EU membership referendum, unlike the vote on electoral reform held in 2011, was not legally binding. The legislation for the latter referendum explicitly stated it would be binding; that for the former did not.
- 11.
While Lords amendments are not all debated individually, and certainly are not all voted upon, as long as they are deemed to be ‘in scope’ by the clerks they can be tabled and potentially debated, typically grouped with other similar amendments, with peers deciding whether they wish to push particular amendment to a vote. There is again a degree of restraint as peers know that if they force too many votes other peers will become frustrated and may simply leave, something which tends not to happen in the Commons where whipping is much tougher. Nonetheless, peers have a much greater chance to press their preferred amendments to the vote than their Commons colleagues do, whose opportunity to get amendments debated depends on the Speaker. By contrast Thompson and Yong cite Keir Starmer’s frustration over the difficulty of securing debates on amendments on amendments in the Commons.
- 12.
In 2017 a Lords committee chaired by Lord Burns made recommendations on how to reduce the membership of the Lords without fundamental Lords reform. The eponymous Burns Report won support in the Lords and the Prime Minister had also indicated her support for it.
- 13.
The term dates back to King Henry VIII who sought such powers in the sixteenth century.
- 14.
While Irish nationalist MPs from Sinn Féin will not take their seats in the House of Commons because they refuse to swear the oath of allegiance to the Queen, without which they cannot perform any role within Parliament, Scottish nationalists from the SNP are willing to sit in the Commons but refuse to nominate peers precisely because the Lords is not an elected chamber. In both cases, their supporters’ voices are diminished as a result of these decisions.
- 15.
See Smith (2017b) for a discussion of the respective views of MPs and peers on EU matters.
- 16.
Lord Heseltine was also sacked from unpaid government roles when he rebelled on an amendment to give Parliament a ‘meaningful vote’ in March 2017 (Lister 2017).
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Smith, J. (2019). Fighting to ‘Take Back Control’: The House of Lords and Brexit. In: Christiansen, T., Fromage, D. (eds) Brexit and Democracy. European Administrative Governance. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-06043-5_4
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