Professor Steve Peers

The recent UK election concluded with an unexpected ‘hung Parliament,’ where no single party secured a majority in the House of Commons. This raises questions about the future of Brexit.

Theresa May’s Conservative party undeniably faced a major setback. The Prime Minister called for this election three years ahead of schedule, seeking a stronger majority to solidify her Brexit plan. Instead, voters reduced her majority, resulting in a minority government. While other factors may have influenced voters, the main reason for the election was to secure a mandate for Brexit negotiations, as emphasized by the Prime Minister throughout her campaign. Despite the Conservatives remaining the largest party, their lack of a majority weakens their political legitimacy and undermines the initial purpose of the election.

Nonetheless, the largest party has the right to try and form a government. The Conservatives are currently in talks with the Democratic Unionists (DUP), a Northern Ireland party. Both parties share similar Brexit goals, including maintaining streamlined border crossings with the Republic of Ireland – an objective shared by other UK parties and the EU. Together, they would hold a slight majority in the House of Commons.

However, this slim majority makes the government susceptible to defections. It remains uncertain whether the DUP will consistently support proposed legislation. Additionally, the government is now more vulnerable to legislative rejections or substantial amendments from the House of Lords. The ‘Salisbury Convention’ typically prevents the House of Lords from obstructing legislation proposed by a majority government based on its manifesto. However, it’s debatable if this convention applies to a minority government.

This is particularly relevant to the government’s Brexit policy, as the Prime Minister specifically asked for a larger Commons majority to prevent the House of Lords from potentially opposing her Brexit agenda. Her request for a strong mandate to prevent interference with her Brexit plans was effectively declined by the voters. Consequently, if the Lords challenge any government Brexit bills, they would not be defying the popular vote but rather upholding it.

If the Lords obstruct legislation, a Commons majority could utilize the Parliament Acts to overrule them. However, time constraints pose a challenge. Invoking the Parliament Acts would delay the legislation’s enactment by a year. With only 21 months until Brexit Day on March 29, 2019, and considering the time needed for Brexit-related bills to pass through Parliament, overruling the Lords seems improbable. While Mrs. Thatcher famously remarked that the issue with socialism is running out of other people’s money, the problem with Mayism might be running out of time for Brexit negotiations.

The election has significantly shifted UK politics. During the passage of the ‘Article 50 Act,’ the House of Lords had enough votes to potentially secure EU citizens’ rights in the UK and increase parliamentary oversight of the Brexit deal. However, Labour Lords ultimately abstained, allowing the bill to pass without these amendments. This abstention might have been due to Labour’s unwillingness to be seen as obstructing the Article 50 process or their concern about a potential snap ‘Brexit election’ given the existing polls.

Now, the situation has changed. The Article 50 Act has passed, eliminating the risk of Labour being accused of hindering the process. Moreover, the ‘Brexit election’ has happened, unexpectedly boosting Labour’s votes, seats, momentum, and poll ratings. Though Labour lost, they are now more likely to embrace another election than fear one.

Substantive issues

Let’s examine how this altered political landscape might impact the specifics of Brexit. The government intends to introduce a Great Repeal Bill that would convert most EU law into UK law upon Brexit Day, alongside other Brexit-related legislation on immigration and customs. In this new political environment, opposition parties, potentially with support from Conservative dissenters, have more leverage to add amendments or block such bills.

Potential amendments could encompass various aspects, including safeguards for the rights of EU citizens in the UK, limiting the government’s authority to weaken social and environmental standards without a separate Act of Parliament, ensuring effective parliamentary scrutiny of the negotiations, clarifying the roles of devolved legislatures, and requiring parliamentary approval for the final Brexit deal. While a second referendum on the final deal seems unlikely, requiring the government to explore interim participation in the EU single market while a post-Brexit trade deal is negotiated might be feasible. Though the Labour manifesto opposed continued free movement of people, a temporary continuation using a safeguard clause like that in the European Economic Area wouldn’t necessarily contradict their stance.

This brings us to a key Conservative stance potentially challenged by the new Commons composition: the ’no deal is better than a bad deal’ argument. This often-repeated mantra, met with enthusiastic support from the Prime Minister’s base, has always been dubious given its potential economic repercussions for the UK. Now, it lacks political viability as well, as the government might struggle to garner a parliamentary majority in both Houses to support such a risky move. Notably, Labour and other opposition parties clearly oppose this approach.

Parliament may be hesitant to repeal the European Communities Act, which would effectively enable a ’no deal’ scenario. They might be particularly unwilling to repeal it in advance of Brexit Day, as the government desires, to avoid unilaterally violating its EU law obligations outlined in Article 50. The Supreme Court’s ruling in Miller emphasized that EU law is primarily integrated into the domestic legal system through the European Communities Act, not executive powers. Initially unconvincing due to political and economic factors, the ’no-deal’ threat now appears even weaker considering parliamentary dynamics.

The ’no-deal’ scenario clashes with the stance of the DUP, the Conservatives’ potential partner. The DUP aims to preserve open borders with the Republic of Ireland. As customs fall under exclusive EU jurisdiction, achieving this necessitates some form of agreement with the EU. However, the EU’s negotiating guidelines explicitly rule out a separate deal on this matter, requiring that it be addressed within a comprehensive agreement that includes challenging issues like financial settlements.

Technically, the EU might reconsider and negotiate a separate border deal even without an overarching agreement. However, the likelihood of this happening is slim. Some Leave supporters believe the EU’s negotiating stance will crumble, allowing the UK to secure favorable terms. Similar claims were made during the referendum campaign, suggesting that the EU would desperately seek a trade deal on UK terms immediately after the vote. They envisioned scenarios where German car manufacturers would pressure Angela Merkel, who would then pressure other EU leaders.

Of course, none of this materialized. The anticipated domino effect of Nexit, Frexit, and others following Brexit, particularly after crucial elections in other EU countries, never happened. Instead, support for the EU remained strong, and populist parties abandoned unpopular anti-EU policies after a string of electoral losses. The hoped-for exodus of countries from the EU never came to pass; the UK stands alone. It’s time to reconsider the predictions of those who misjudged EU politics.

Conclusions

The British public was asked to evaluate Theresa May’s Brexit approach. The period since the referendum has seen dismissive remarks towards Remain voters, accusations of EU interference in the election, and inflammatory rhetoric from pro-Leave tabloid allies, who branded their opponents as “enemies of the people” and called for their suppression. Following a year of such divisive rhetoric, British voters have essentially requested a more measured approach. They have denied the Prime Minister’s request for a clear mandate on her Brexit strategy and implicitly asked for a reevaluation. Unfortunately, Mrs. May, accustomed to campaigning in ‘Hard Rock’ mode, might find it challenging to govern through ‘Easy Listening.’ However, the final word rests with the ‘Mother of Parliaments.’

Barnard & Peers: chapter 27

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