As the Brexit chaos continues, Professor Margaret Arnott discusses the constitutional issues it has posed for inter-parliamentary relations in the UK.
The impasse in the Brexit process was evident in the House of Commons this week. An extension to the Article 50 withdrawal date agreed with the EU allowed for UK exit from the EU on 22 May 2019 if the PM could secure MPs’ approval for her ‘deal’ (already rejected emphatically by the Commons twice) by the 29 March 2019. In an attempt to win over more ‘Eurosceptics’ in her own party the PM announced on 27 March 2019 that she would stand down as PM and Conservative Leader if her Withdrawal Plan was approved by the House. A debate on Friday 29th March was announced by the UK Government on the 28th March. The Speaker confirmed later that day that a third meaningful vote (MV3) on the PM’s ‘deal’ would go ahead the following day. The DUP, which consistently bases its opposition to the PM’s deal on what it regards as a threat to the constitutional position of Northern Ireland, remains crucial to the outcome of MV3. (The DUP may prefer to see MV3 defeated and support a longer extension in the expectation of securing a ‘softer’ Brexit which removes the need for a “backstop’).
Events this week have been fast moving with further constitutional questions about the future governance of UK. On Monday 25th March 2019, in a constitutional novelty arising directly out of the Brexit process, a minority UK government that has entered a confidence and supply arrangement with the DUP was defeated by 27 votes on the Letwin amendment for backbenchers to secure time for debates and votes on a range of Brexit scenarios. The government was again defeated when it introduced a business motion on the 27th to forestall the Letwin proposal. The Government whipped its MPs but lost by 331 to 287.
In part the indicative votes on the 27th March added to the constitutional complexity due to failure to provide clarity about preferred option(s) for the Brexit process in the Commons. Letwin and colleagues intend to continue with the indicative voting process on Monday 1st April if Theresa May’s ‘deal’ is voted down on 29 March. But this may add to ongoing existing constitutional issues and challenges facing the governance of the post devolution UK, at its simplest because there is no clear mechanism to enforce the Government to accept any ‘decision’ emerging from continued indicative voting.
The Brexit context has brought constitutional issues to the fore in the UK Parliament. Combined with impact of the UK Conservative Government losing its majority in June 2017 UK General Election and entering a ‘confidence and supply’ agreement with the DUP, the dynamics of electoral competition across the regions and nations of the UK changed not only party representation in the House of Commons but also highlighted the different electoral trends territorially in the devolved UK.
Questions about constitutional change in the governance of the post Brexit devolved UK increasingly more prominent. Devolution was an ad hoc and piecemeal constitutional reform that had it roots in 19th century Home Rule movement and in considerations of administrative efficiency for the British/UK state. For some the 2014 Scottish independence referendum failed to settle the issue of Scotland’s future and that of the UK. Post 2014 then Prime Minister David Cameron linked further devolution for Scotland to solving the problem presented by demands for ‘English votes for English laws’ (EVEL).
Questions of sovereignty, governance, scrutiny and legitimacy have not been far from political debates in the devolved legislatures in Scotland and Wales. Both devolved legislatures passed Continuity legislation in March 2018 that provided for all devolved matters that were currently under the EU remit should be devolved to the Welsh Assembly and Scottish Parliament on the UK ‘exit’ day from the EU membership. While the Welsh Assembly repealed the legislation in November 2018, the UK Government successful appealed the Scottish Parliament Continuity Act in the Supreme Court on the grounds that it was outside its competence.
In the Scottish Parliament on 27th March 2019, MSPs voted by 89 to 28 for a motion to revoke Article 50 if an extension is not agreed allowing for a ‘People’s Vote’. A couple of weeks earlier the Welsh Assembly and the Scottish Parliament passed the same motions that sought an extension to Article 50 and the planned ‘exit’ date of 29th March 2019. This was another constitutional first for the devolved UK when the devolved legislatures in Wales and Scotland scheduled the debates on the same motion on the same day and same time. Earlier in the year in February 2019 Nicola Sturgeon, First Minister of Scotland, in a address to Georgetown University and subsequent interview on the US PBS news channel linked Brexit process to Scotland’s constitutional future.
Calls for reform of intergovernmental relations in the devolved UK have been advanced in a number of recent reports by House of Commons and House of Lords select committees. Reform of asymmetric devolution is gaining more attention from across the political spectrum but not only in relation to reform of intergovernmental relations – while not agreeing what direction that may take – current inter parliamentary relations are also being highlighted as requiring reform. The impetus for parliamentary reform in the light of the Brexit context is gaining momentum – devolution arrangements within the UK will not remain unchanged. The future governance of the devolved UK will have to reconcile very different political and constitutional perspectives: the impact of repatriated powers on existing legislative frameworks, Common Framework Agreements; possible re-regulations and constitutional/political issues surrounding evolving ‘devolution settlements’.
With the uncertainties surrounding the Brexit process, possible solutions to these challenges facing the ‘devolution settlements’ are very likely to lead to further constitutional issues in the UK.