A New Normal? Parliament after Brexit

This is the submitted, slightly longer, version of an article by Senior Researcher Brigid Fowler published in Political Insight, the magazine of the Political Studies Association, in its March 2020 issue (Volume 11, Issue 1, pp 41-43) and online on 24 February prior to hard copy publication. The article was submitted on 11 February.

1. Introduction: an historically extraordinary Parliament

2. What's 'normal'?

3. New normal?

4. Post-2019 constitutional and procedural reaction

5. Public attitudes

The 2017-19 Parliament will go down as an historically extraordinary Parliament.

In terms of its sitting patterns, for example, it comprised the longest parliamentary session since the English Civil War followed by the shortest since 1948. As a consequence of its pattern of sessions and then the early general election, it ended in the first calendar year since 1974 to have two Queen’s Speeches; 2019 saw the first Queen’s Speeches held in the autumn since 2009, and the latest Queen’s Speech in a calendar year since at least 1900. October 2019 saw the first Saturday sitting of either House since the invasion of the Falklands in 1982.

• {: .list-title} The 2017-19 Parliament: what wasn't normal?

• Longest parliamentary session since Civil War

• Shortest session since 1948

• First Commons confidence vote since 1994

• First time a government is found in contempt of House

• Commons business seized four times by MPs

• Prorogation voided by Supreme Court {: .aside-r}

In terms of the government’s position in the House of Commons, in just a few months in early 2019 there were several of the biggest government Commons defeats since the start of the twentieth century (including the largest, by 230, in the first ‘meaningful vote’ on the UK-EU Withdrawal Agreement on 15 January 2019).

There was the first explicit Commons confidence vote since 1994; and in December 2018 the Commons found the government in contempt of the House apparently for the first time in UK parliamentary history (after the government failed to comply with a ‘Humble Address’ requiring it to publish the full government legal advice on the Brexit deal).

Such abnormalities were symptoms of the underlying problem: the government’s lack of a House of Commons majority, in the face of a default ‘no-deal’ outcome to the Brexit process with a deadline attached, and a cross-party non-government backbench majority opposed to ‘no deal’.

This situation generated two further extraordinary developments that seem likely to have lasting effects on Parliament after Brexit.

First, in terms of Parliament’s constitutional position vis-à-vis the executive and the courts, there was the government effecting, and then the Supreme Court voiding, what would have been the longest prorogation of Parliament since 1950. In its judgement (pdf), the Supreme Court arguably elevated Parliament’s ability to scrutinise and hold the government to account to a constitutional principle.

Second, in terms of the workings of the House of Commons, there were multiple controversial procedural moves by the anti-‘no-deal’ majority which saw it defeat the government on matters of process, as well as substance. For its part, the government ceased to observe several previously normal understandings about the treatment of the opposition. The anti-‘no-deal’ majority was aided by a Speaker, John Bercow, who was prepared to defy and create procedural precedent in the interests of helping it to express its will.

The anti-‘no-deal’ majority four times took control of House of Commons business from the government, and twice passed legislation which the government opposed and which mandated the government’s international action with respect to avoiding a ‘no-deal’ Brexit. These steps raised fundamental questions about the freedom of action that a government should have when it does not command a Commons majority.

The Times’ Matt Chorley famously – and with good reason – covered these parliamentary developments and much of the rest of the UK’s post-2017 politics with the blanket phrase ‘THIS IS NOT NORMAL’.

Following the December 2019 general election, there is a sense around Westminster that normality is back: there is a single-party government with a sizeable Commons majority and able to get its business through. There can be no more straightforward illustration of the difference a majority makes than the previous House of Commons refusing, and then the new House agreeing two months later, to undertake remaining stages of the EU (Withdrawal Agreement) Bill in three sitting days.

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Prime Minister Boris Johnson speaking during the debate on the Queen’s Speech, State Opening of Parliament, December 2019 (©UK Parliament / Jessica Taylor) {: .caption}

There are some prominent voices around Westminster that not only welcome this change but also appear to want actively to encourage what they may perceive or present as a return to normality.

Some politicians in both Houses have expressed a distaste for the 2017-19 Parliament on the grounds that its procedural and constitutional innovations damaged the principles of democratic responsibility and accountability. Reacting against it, several parliamentarians have expressed a wish to return to what is seen as a more traditional relationship between executive and legislature.

In this kind of relationship, the government can be more assured of getting its parliamentary business through unimpeded and less fettered in its executive and international action. Some government figures claim a mandate from the 2019 general election for this kind of approach.

Normal to some, new to others? 74% of MPs have no experience of the role which pre-dates the 2010 general election. {: .aside-l}

Even the November 2019 contest for the House of Commons Speakership had a strongly reactive, ‘not Bercow’, flavour. The new Speaker, Sir Lindsay Hoyle, has said that he wants to “get back to normality” as regards the operation of the House – although he was referring to the behaviour of the government, as well as backbenchers.

But, for one thing, what’s 'normal'? The Conservatives’ majority of 80 is the first large single-party majority since 2005. It will presumably be experienced as abnormal by the 74% of MPs who have no experience in the role which pre-dates 2010.

The electoral maths point to the Conservatives’ majority lasting more than one term; but it could be that the large post-2019 single-party majority turns out to be the blip, in a longer period of small or non-existent ones. Expectations about the likelihood of future single-party majorities will be critical in shaping decisions about parliamentary and other rules and institutions.

Furthermore, among politicians and observers who wish actively to ‘return to normal’, what is the desired status quo ante? Simply, ‘before 2017’? Or, for example, the period before 2010 (as suggested by cross-party support for repealing the 2011 Fixed-term Parliaments Act)? Or the period before the constitutional reforms of the Blair era, as raised by some suggestions around reform of the Supreme Court?

With respect to some aspects of Parliament, there would be limits to any attempt to turn the clock back. Some features of the institution may be relatively new in parliamentary terms but are nevertheless firmly established by now, and effectively uncontested.

This would apply, to take one example, to the election by the whole House of many House of Commons select committee chairs. This was the most high-profile of the reforms made after the 2009 expenses scandal, and a key longer-term step in giving greater power to backbenchers.

In any case, and however the ‘old normal’ is conceived, with respect to several aspects of the workings of Parliament the new normal will be different.

Partly, this will be the result of Brexit.

Brexit will alter Parliament in part by requiring or prompting technical changes to previous practices and procedures.

For example, the Prime Minister will presumably no longer make statements to the House of Commons after every European Council meeting when the House is sitting. Assuming no replacement session is established, this will free up time in the Chamber for other business, while cutting the amount of time for which the Prime Minister is available for scrutiny by MPs.

In another example, Section 29 of the EU (Withdrawal Agreement) Act 2020 introduced a new procedure which for the first time gives the European scrutiny committee of each House a statutory right to hold a debate in the Chamber, when it considers that new EU legislation “raises a matter of vital national interest”.

It appears that this new procedure will be accommodated within a European scrutiny system which will anyway have to be altered during the post-Brexit transition period to reflect the absence of UK ministers from the EU Council, and which will presumably be abolished when the transition period ends.

In the House of Lords, the eventual disappearance of the European scrutiny system can be more easily accommodated within existing procedures and committee structures, but greater changes will be involved in the Commons. Again, all other things being equal, the eventual disappearance of the European scrutiny system would free MPs of one of their previous obligations.

However, the post-transition fate of the European scrutiny system could depend in part on the nature of the post-transition UK-EU relationship. It is not clear whether possible UK decisions on alignment with new EU law would be made through normal parliamentary procedures, or would involve the retention of some kind of dedicated parliamentary process.

Possible parliamentary scrutiny of the UK-EU Joint Committee established by the Withdrawal Agreement could involve the same choice between ‘normal’ and dedicated procedures.

As of early February, the government has appeared to indicate that it regards normal scrutiny mechanisms – such as debates, questions and select committee activity – as adequate to the task. To a considerable extent, then, the scope and nature of possible Brexit-driven parliamentary change is not yet nailed down.

In three more general areas of parliamentary activity, the Brexit process has already generated increased interest – both inside and outside Parliament – and some innovation. All three are areas where external specialists, as well as some parliamentarians, have long argued that current arrangements are inadequate, especially in the House of Commons.

However, the reforms induced by the Brexit process so far are limited and only weakly embedded.

The first area is parliamentary scrutiny of delegated legislation (that is, Statutory Instruments – SIs). The delegated legislation scrutiny system has long been known to be unfit for purpose, primarily in the Commons, but the need in the Brexit process to accommodate shortness of time and high uncertainty led the government to take especially wide delegated powers.

During passage of the EU (Withdrawal) Act 2018, the government accepted the establishment of a new ‘sifting’ process which allows parliamentarians potentially to give themselves somewhat more say over some SIs made under the Act. However, the process was bolted on to fundamentally the same inadequate system.

• {: .list-title} Scrutiny of Brexit SIs: not fit for purpose

• The parliamentary sifting process is bolted on to the existing inadequate scrutiny system

• Sifting is limited to SIs made under the 2018 EU (Withdrawal) Act, so does not cover many Brexit SIs {: .aside-l}

Moreover, it remains limited only to SIs made under the Withdrawal Act. While the reform expanded somewhat the principle of Parliament having some say over some SI procedure, it thus also added to the opacity and inconsistency of an already-complex system.

The second area is treaty scrutiny, including trade agreements. In the default UK treaty-making process, Parliament’s role is weak and comes only at the end of the process, prior to ratification, under the Constitutional Reform and Governance Act 2010 (CRAG Act).

Treaties have normally only received parliamentary scrutiny inasmuch as they required implementing legislation. Among parliamentarians and specialists who have considered the matter, the CRAG Act process is widely considered to be inadequate, especially given the increased volume and policy impact of treaties that will be arriving along with the repatriation of trade policy powers.

Since January 2019, the House of Lords EU Committee has been reporting systematically on Brexit-related treaties, within the CRAG Act framework. However, as of early February 2020, it is not clear whether this will develop into a more ambitious cross-House system. It is also not clear whether the Johnson government adheres fully to promises made by its predecessor which would allow Parliament greater upstream engagement with the trade agreement process, nor whether such commitments extend to the post-transition agreement or agreements with the EU.

The third area is relations between the Westminster Parliament and the devolved legislatures. The post-devolution settlement since 1998 has involved no formal inter-parliamentary mechanisms, but in October 2017 the House of Lords EU Committee initiated the creation of an Inter-Parliamentary Forum on Brexit.

This has brought parliamentarians and officials working on Brexit in both Houses at Westminster and all three devolved legislatures together regularly to exchange information and reach common views about inter-parliamentary and inter-governmental processes. However, so far the Forum has no official standing at Westminster or with the UK government.

After Brexit, heightened parliamentary engagement in these three areas will remain warranted. Statutory Instruments will remain central to the task of developing a functioning post-Brexit statute book that is more independent of EU law and implements the UK’s new policy decisions.

Trade agreements will be a new feature of the UK policy landscape. And UK policy instruments that engage the devolved nations – such as trade agreements and the Common Frameworks (for policy areas that are devolved but which have previously been subject to EU law) – will be increasingly important. There is plenty of scope for the innovations of the 2017 Parliament to develop into significant and lasting features of a changed post-Brexit parliamentary normality.

However, all three of these areas of parliamentary activity concern the degree to which Parliament and parliamentarians at Westminster can act with a degree of independence from government.

As such, the political wish to ‘return to normal’ in executive-legislative relations might see these reforms wither.

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The Speaker of the House of Commons, Sir Lindsay Hoyle, during the State Opening of Parliament, December 2019 (©UK Parliament/Jessica Taylor) {: .caption}

Alongside Brexit, the wider constitutional and procedural legacies of the 2017-19 Parliament could thus be a second factor that ensures the post-2019 institution differs at least from its immediate predecessor, in ways that go beyond simply the new existence of a government majority.

In addition to general potential mechanisms for parliamentary change, two specific processes – of differing scale – are underway that derive from the extraordinary developments of the 2017-19 Parliament. Both could channel any ‘back to normal’ reaction, and will certainly help to shape the 2017-19 Parliament’s successors.

First, in the House of Commons, Speaker Hoyle has said that he would like a “tidying up” of the rules, which “closes loopholes” and re-establishes clarity around those aspects of parliamentary procedure where his predecessor’s innovations may have left doubts. The precise process to be involved remains unclear.

Second, on the infamous page 48 of their 2019 general election manifesto (pdf), the Conservatives promised a Constitution, Democracy and Rights Commission that would “look at the broader aspects of our constitution”, including “the relationship between the government, Parliament and the courts” and “the functioning of the Royal Prerogative”.

As of early February, little further was known about the Commission, beyond indications that the government intends to establish it during 2020. But Parliament could be affected by its work – for example, with respect to the government’s prerogative powers to make treaties or effect a prorogation. In the meantime, awareness of the impending Commission could cause other decisions affecting Parliament to be postponed.

One final question about the degree and nature of change after the 2017-19 experience concerns public attitudes to Parliament.

The dramas of the 2017-19 Parliament saw the public’s exposure to it rise. BBC Parliament secured record-breaking viewing figures (pdf), and in the two years from June 2017 the number of average daily viewers for Parliament’s own live TV stream increased by 237%.

Exposure up, confidence down? In December 2018, 57% of people said MPs’ handling of Brexit had given them ‘a little’ or ‘a lot’ less confidence in MPs to act in the public’s best interest. (Source: Audit 16) {: .aside-l}

However, in the Brexit context, this increased exposure seems to have been associated with worsening public views of Parliament and parliamentarians.

In the Hansard Society’s 2019 Audit of Political Engagement, for example, when people were asked whether MPs’ handling of Brexit had given them more or less confidence in MPs to act in the public’s best interest, 57% said ‘a little’ or ‘a lot’ less. The figure was 63% among those declaring themselves ‘very’ or ‘fairly’ interested in politics.

In January 2019, Britain Thinks found 68% of people saying that their impression of Parliament had got ‘slightly’ or ‘much’ worse since the EU referendum; and in January and March 2019 ComRes found 79% and 78% of people respectively disagreeing with the statement that Parliament was 'emerging from the Brexit process in a good light'.

As well as whether the ‘new normal’ will involve a Parliament more or less willing and able to act independently of government, a further question is thus whether it will involve a Parliament held in higher or lower public esteem.