Kishwer Falkner, Baroness Falkner of Margravine

The act of the United Kingdom leaving the European Union has thrown the internal constitution of the UK into disarray.  The balance between the executive and parliament when in a form of coalition government is always difficult but the balance of powers between the two houses of parliament has also ruptured, with consequences for the future.

In the three phases which will lead to the end of Britain’s membership of the EU in March 2019, the first was marked with Theresa May becoming the new occupant of No. 10 in 2016. Her Cabinet, designed to represent a balance of Brexit Leavers and Remainers, miscalculated almost immediately that it could bypass parliament in its negotiations with the EU. In the inevitable legal challenge to this position, the Supreme Court found otherwise and said that the primary legislation was needed to allow the Government to proceed.  So, parliament found itself as a serious force.

What made matters worse for the British government was that when negotiations with the EU commenced, the latter dictated that the status of the Irish Border should be completed first before moving to a future agreement.  The border between Northern Ireland and the Republic of Ireland matters in the sense that the Good Friday Agreement – negotiated by Tony Blair in 1999 – created a more or less united Ireland in practice through giving the Irish a formal role in Northern Ireland, enshrined in treaty.  The fact that the rest of the UK failed to appreciate this dilution of sovereignty has only come to light post-Brexit.

The problem with sequencing the Ireland issue first is that you can’t know what border controls are needed until you know the future UK-EU relationship.  If the UK stays in a customs union, the border problem is very different from the way it would be for a country outside a customs union. So, UK capitulation to EU demands to settle this first was careless at best.

The second challenge for the Government has been the EU Withdrawal Bill.  This was intended to be a straightforward act to simply retain all EU law at the date of exit in order that it would continue to apply without disruption.  Instead, recalcitrant Remainers in the Commons decided to really ‘take back control’ by amending it so a ‘meaningful’ vote will now be held on the withdrawal agreement which is expected in the autumn – more on that below.

Once the bill arrived in the House of Lords, a huge majority of Remainers inflicted a further fifteen defeats on key aspects of the bill.  These range from demands that the UK remains in a customs union, in the single market, keep aligned to EU human rights, environmental and labour law, delete the exit date from the bill, and that parliament has oversight of all law repatriated from the EU (some 1000 pieces of rules, ministerial guidance and technical standards), inter alia.   Their hope is that in the six months since the bill left the Commons, pro-European Conservatives have been empowered to rebel against their government so that they can keep the UK in as tight an embrace to the EU as possible.

This outcome has been described as the UK being ‘tethered’ to a dying corpse’ by hard-line Brexiteers, while more moderate elements have seen the UK becoming a ‘vassal state’.   The latter is correct in that the UK will would pay to be a rule-taker with no say in the making of EU rules – the worst possible option for a large and important country: the EU’s most significant military power, its third-largest economic power and one with the most significant global reach, anticipated to have the EU’s largest population by 2050.

It is unclear at this point whether this Tory rebellion will come to pass, as the ‘ping-pong’ stage is yet to come – when the Commons can overturn the Lords amendments.  The real danger will come with phase three at the end of this year.  If the withdrawal negotiations don’t deliver enough for the UK, a coalition of all the opposition parties plus Tory rebels could defeat the government in the Commons, and if not there, the Lords would again come into play, and all bets are off.

In the UK’s unwritten constitution, Peers are on the whole mindful of the fact that they are unelected and tend to defer to the elected house, particularly where policy was set out in a governing party manifesto.  By overriding the result of the referendum in all but name and not paying sufficient regard to the fact that the A50 bill passed in the Commons by a whopping majority of 384, the Lords are putting themselves into collision with the Commons.

As a Democrat and supporter of parliament’s constitutional balance, I have discovered some merit in words attributed to Walter Bagehot, the author of The English Constitution (1894) when he said: “the cure for admiring the Lords was to go and look at it.”

May 24, 2018

Kishwer Falkner, Baroness Falkner of Margravine, is a distinguished fellow at the Munk School of Global Affairs. She entered the House of Lords in 2004 and is Chairwoman of the EU Sub-Committee on Economic and Financial Affairs, leading their pivotal work on the EU and Brexit over the past two years. Baroness Falkner joins us at the Munk School on May 25, to discuss future directions for the EU post-Brexit, as part of our Distinguished Lecture Series.