Brexit, Parliament and the Constitution: The guardian awakes
According to legend, King Arthur lies sleeping somewhere in the British Isles, and will awaken one day to save his people from impending doom. So far, the Brexit crisis does not appear to have brought him out of his slumbers, but the myth of a dormant guardian, who revives when needed, is an apt one for the role which Parliament has played in the current saga. Ordinarily, when there is a Government with a working majority and tranquil political waters, parliamentary checks on executive power appear more formal than real. Nevertheless, the role which it has played in the Brexit process so far, has been a dramatic reminder that Parliament is sovereign, and its endorsement is required in the British system.
In announcing, on Monday 10 December, the postponement of Parliament’s vote on the Brexit deal, Theresa May was candid in her admission that rescheduling was her only option if she wanted to avoid a major defeat. It was clear to all parties that the Prime Minister could not push through with the accord in the teeth of a catastrophic parliamentary rejection. The truth is that the relationship between the UK Government and the legislature is complicated, malleable and difficult to capture in words; but there are also meta-principles which have grown up over time, many of them forged in the armed conflicts of the XVII century. One of the most iconic and enduring is that the Executive (whether the Monarch in historical times or the Government in the present) is subject to the law and accountable. Deference to the law is not a matter of “grace and favour”, as Lord Templeman once famously put it in M v Home Office  UKHL 5.
From the Miller case onwards, when in early 2017 the Supreme Court confirmed that the Government could not withdraw from the European Union without parliamentary approval, the legislature has forcibly asserted its right to be in control of the nation’s destiny. For instance, when recently the current Administration attempted to deny MPs the opportunity to see the legal advice which it had received on the Brexit deal, they were threatened with “Contempt of Parliament”. Although there was uncertainty about how it functioned, or what the consequences of it would be, the bottom line though was that Parliament maintained its control over Government action, and there was no doubt that the Prime Minister and her Cabinet were accountable. When it came to the crunch, the will of Parliament could not be ignored.
It is important, of course, not to romanticize the position. The reality is that Parliament is deeply divided, and a number of conflicting groups are eagerly pursuing their particular agendas. Regrettably, some of our MPs are hardly the unblemished chivalric knights of the Victorian imagination, but real medieval barons, and this was apparent in the frantic maneuvering from all sides, both before and after the very recent vote of no confidence in Theresa May as Conservative Party leader. Nevertheless, it is striking that despite the ongoing frustration of many Tory backbenchers towards the Head of the Government, the denial of the opportunity to express their rejection of the current Brexit deal to MPs appears to have been what tipped the scales, and enabled those who have for been pushing for months for a vote of no confidence, to finally gather sufficient signatures to demand one. Not only will Parliament as a collective protect its constitutional position, many individual Parliamentarians will not tolerate it being side-lined, and sometimes, self-interest and genuinely high minded principles can move in tandem.
At the time of writing, it is difficult to see how the Brexit story will play out. Theresa May has survived as Conservative Party leader and Prime Minister for the time being, but is still confronted by the same problems as before. She is facing an unholy alliance between the fervently anti-European Brexiteers and the most staunchly pro-Remain forces, both of whom bitterly oppose the only deal which is on the table. These two camps are united in the belief that rejecting the proffered settlement is a matter of necessity. Yet, it is undeniable that the two parties are clinging to mutually opposing assumptions when it comes to the upshot of Britain turning down the deal. At the furthest end of the spectrum, the Remain grouping is hoping to avoid Brexit altogether, assuming that failure to reach a deal with result in the United Kingdom remaining in the EU. In contrast, many of the Brexiteers are actively hoping for “crash out Brexit”, and the opportunity to leave Europe behind without making any concessions.
Both visions are lacking in plausibility. Denying that a no-deal Brexit is a real possibility seems absurd, and there are good reasons why the Bank of England is issuing warnings about it. On the other hand, the notion that UK could simply skip off into the sunset without resolving questions about trade, borders, cooperation in terms of policing, education, healthcare, science, defence and the environment, is delusional. Of course, the more moderate members of these factions may be hoping to force the Prime Minister to go back to Europe and renegotiate, but to what end? What could she possibly agree that would be acceptable to unbending Remainers and resolute Brexiteers? And there is also the minor issue that EU leaders have made it crystal clear that they are not prepared to go back to the table in any event. They are open to providing some reassurances and clarification, but not to making changes to the deal on offer.
Furthermore, many aspects of the problem are utterly intractable when considered in the light of obtaining parliamentary consent to any deal. Northern Ireland is, undoubtedly, one of the most menacing spectres. The pro-unionist DUP is not going to be prepared to budge in relation to their objection to any “backstop” customs arrangement which allows unfettered cross border trade between Northern Ireland and the Republic; but at the same time, the Irish PM has indicated that he won’t agree to any changes to the same backstop, despite knowing that it is an anathema to the people on whom May is dependent. Moreover, the real risks of reigniting conflict in a tragically troubled context should never be taken lightly.
Even if there were to be a General Election, or a different Prime Minister, would there be any stronger possibility to achieving a coherent Brexit agreement? Taking into account all of the challenges outlined above, this looks vanishingly improbable. A second Brexit vote could not be ruled out, but whatever the result, it would sow seeds of division and bitterness. If the Remain supporters were to triumph, there would be accusations that the democratic process had been subverted, and fuel would be thrown onto extremist right-wing fires, already gaining ground in some UK communities. Equally, if the outcome was once more to demand departure from the EU, any hopes of a soft Brexit would be dashed, and pro-European citizens would be left in an even more despairing position. All in all, there may be merit in Theresa May’s pleas for the country to accept what Europe has offered, but for the moment only one thing is beyond doubt: Parliament is the body which will ultimately do the accepting or rejecting, and will steer the ship of State
This joint blog by Javier Garcia Oliva and Helen Hall is an updated version of a previous article of Javier’s, which was published by the Diario de Cadiz and all other newspapers of the Joly Group earlier this week.
Theresa May calls off MPs vote on her Brexit Deal (BBC News 10/12/18)
Brexit Legal Advice and Threat of Contempt of Parliament (The Guardian 3/12/18)
R (Miller) v Secretary of State for Exiting the European Union  UKSC 5