Brexit and Democracy: The Role of Parliaments in the UK and the European Union

331 Pages·2019·3.012 MB·English

by  Thomas Christiansen, Diane Fromage

Brexit and
Democracy
The Role of Parliaments in the
UK and the European Union
Edited by
Thomas Christiansen
and Diane Fromage
E U R O P E A N
A D M I N I S T R AT I V E
G OV E R NA N C E S E R I E S
European Administrative Governance
Series Editors
Thomas Christiansen
Maastricht University
Maastricht, The Netherlands
Sophie Vanhoonacker
Maastricht University
Maastricht, The Netherlands
The series maps the range of disciplines addressing the study of European
public administration. In particular, contributions to the series will engage
with the role and nature of the evolving bureaucratic processes of the
European Union, including the study of the EU’s civil service, of organi-
zation aspects of individual institutions such as the European Commission,
the Council of Ministers, the External Action Service, the European
Parliament, the European Court and the European Central Bank and of
inter-institutional relations among these and other actors. The series also
welcomes contributions on the growing role of EU agencies, networks of
technical experts and national officials, and of the administrative dimen-
sion of multilevel governance including international organizations. Of
particular interest in this respect will be the emergence of a European
diplomatic service and the management of the EU’s expanding commer-
cial, foreign, development, security and defence policies, as well as the role
of institutions in a range of other policy areas of the Union. Beyond this
strong focus of EU administrative governance, the series will also include
texts on the development and practice of administrative governance within
European states. This may include contributions to the administrative his-
tory of Europe, which is not just about rules and regulations governing
bureaucracies, or about formal criteria for measuring the growth of
bureaucracies, but rather about the concrete workings of public adminis-
tration, both in its executive functions as in its involvement in policy-
making. Furthermore the series will include studies on the interaction
between the national and European level, with particular attention for the
impact of the EU on domestic administrative systems. The series editors
welcome approaches from prospective contributors and are available to
contact at [email protected] and s.vanhoonacker@
maastrichtuniversity.nl for proposals and feedback. All books in the series
are subject to Palgrave’s rigorous peer review process: https://www.
palgrave.com/gb/demystifying-peer-review/792492
More information about this series at
http://www.palgrave.com/gp/series/14977
Thomas Christiansen • Diane Fromage
Editors
Brexit and Democracy
The Role of Parliaments in the UK and the
European Union
Editors
Thomas Christiansen Diane Fromage
Faculty of Arts and Social Sciences Faculty of Law
Maastricht University Maastricht University
Maastricht, The Netherlands Maastricht, The Netherlands
ISSN 2524-7263 ISSN 2524-7271 (electronic)
European Administrative Governance
ISBN 978-3-030-06042-8 ISBN 978-3-030-06043-5 (eBook)
https://doi.org/10.1007/978-3-030-06043-5
Library of Congress Control Number: 2019932267
© The Editor(s) (if applicable) and The Author(s), under exclusive licence to Springer
Nature Switzerland AG 2019
This work is subject to copyright. All rights are solely and exclusively licensed by the
Publisher, whether the whole or part of the material is concerned, specifically the rights of
translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on
microfilms or in any other physical way, and transmission or information storage and retrieval,
electronic adaptation, computer software, or by similar or dissimilar methodology now
known or hereafter developed.
The use of general descriptive names, registered names, trademarks, service marks, etc. in this
publication does not imply, even in the absence of a specific statement, that such names are
exempt from the relevant protective laws and regulations and therefore free for general use.
The publisher, the authors and the editors are safe to assume that the advice and information
in this book are believed to be true and accurate at the date of publication. Neither the pub-
lisher nor the authors or the editors give a warranty, express or implied, with respect to the
material contained herein or for any errors or omissions that may have been made. The
publisher remains neutral with regard to jurisdictional claims in published maps and institu-
tional affiliations.
This Palgrave Macmillan imprint is published by the registered company Springer Nature
Switzerland AG.
The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland
P
reface
The idea for this book arose from the common interest we share in the role
of parliaments in the European Union (EU). Working on a wider project on
executive-legislative relations in the EU,1 it occurred to us that the develop-
ments around Brexit are a particular, and particularly important, issue for
parliamentary scrutiny. Considering how little academic attention had hith-
erto been focused on this aspect of the otherwise widely studied Brexit, it
was an easy decision then to embark on the path leading to this publication.
In doing so, we followed a number of objectives: to ensure that our
book would cover developments in both the United Kingdom (UK) and
the EU, to aim for a multidisciplinary approach involving expertise from
both law and political science, and to be able to bring the publication to
the readers swiftly, so as to inform the ongoing debate about Brexit and its
democratic implications.
We are satisfied that this edited volume achieves these objectives. Having
obtained the necessary funding, and following a call for papers, we were
able to bring together a group of international scholars for a one-day work-
shop in Brussels to address the various angles from which to examine the
relationship between Brexit, parliaments and citizens. We were fortunate
that our publisher Palgrave Macmillan supported the idea of this book
from the start and managed both the peer review stage and the production
process very efficiently. And we had great cooperation from the contribu-
tors who reliably met intermediate and final deadlines while also respond-
ing to our—sometimes repeated—requests for revisions and updates.
1 D. Fromage, A. Herranz-Surrallés and T. Christiansen (eds), Executive-Legislative (Im)
balance in the European Union, Hart (forthcoming).
v
vi PREFACE
Yet this smooth publishing process is completely at odds with the messy,
unpredictable and much-maligned subject matter. The fact that the Brexit
process has been a trip into the unknown for the United Kingdom, the
European Union and also for academia made the project a highly challeng-
ing endeavour. Indeed, when the then British Prime Minister David
Cameron gave his famous Bloomberg speech in January 2013,2 the pros-
pect of the UK’s exit from the EU was not considered as a serious possibil-
ity by most observers. Yet, on 23 June 2016, a narrow majority of British
voters decided that their country should leave the EU. The withdrawal
procedure foreseen by Article 50 of the Treaty of the EU was triggered on
29 March 2017, and the two-year period available to negotiate the first
divorce settlement between the EU and one of its Member States started.
Negotiations were anything but easy and were dominated by uncertainty.
In fact, as this volume goes to press early February 2019, the outcome of
this process is still unclear. A proposed ‘withdrawal agreement’ defining the
conditions of the UK’s divorce and of the two-year transition period to
follow could finally be agreed on 13 November 2018, but it was immedi-
ately contested by hard Brexiteers. The political declaration on the future
relationship was a much shorter document describing in rather broad terms
the agenda for subsequent negotiations. Limited support for this deal
within Prime Minister Theresa May’s own cabinet, resignations in protest
by several ministers and divisions within her party meant that the House of
Commons would play a decisive role in the final stage of the Brexit process.
The fractious distribution of opinions there, together with the tenuous
support for the government’s position, created a situation where—less
than two months before the 29 March 2019 deadline—it was still unclear
whether an agreement would be adopted, whether the UK would request
an extension of the deadline, whether the UK would crash out of the EU
with ‘no deal’ (indeed a scenario that the UK, other Member States and
EU institutions alike had started to actively prepare for) or whether a sec-
ond referendum might still reverse the original decision in favour of Brexit.
This uncertainty notwithstanding, the Brexit process presents at least two
characteristics that make its study worthwhile regardless of its outcome. First,
it is not the only crisis that has hit the European Union over the past decade;
the EU also had to deal with the economic and financial crisis or the migra-
tion crisis for instance. However, Brexit and the debates around a possible
exit from the EU that took place in other Member States such as Greece or
the Netherlands have clearly evidenced a deeply rooted democratic and legit-
2 David Cameron, EU speech at Bloomberg, 23 January 2013 available at: https://www.
gov.uk/government/speeches/eu-speech-at-bloomberg
PREFACE vii
imacy crisis within the EU. The question of the European integration pro-
cess’s ‘democratic deficit’ has arguably been vividly debated since it was first
conceptualised by David Marquand in 1979. The results of the Danish and
the French referendums on the Maastricht Treaty also showcased citizens’
increasing scepticism towards integration. Despite the progressive strength-
ening of the role of the European Parliament—the only directly elected EU
institution—Dutch and French citizens rejected the Treaty establishing a
Constitution for Europe in 2004, and Eurosceptic parties continued to gain
more votes in elections to the European Parliament, as well as in national
parliamentary elections, since the early 2010s. These are all signs of citizens’
increasing discontent with the EU, while Brexit clearly remains the stron-
gest manifestation of opposition to European integration. It was admittedly
only a slim majority of British citizens that voted in favour of Brexit, and
there is tangible evidence that the stakes of the Brexit referendum, as well as
its actual consequences, were unknown to a large part of the voters. One
conclusion from these developments is, however, that EU ought to urgently
start a process of self-reflection and far-reaching reforms, and that the solu-
tions used so far mostly in the form of increasing powers for the European
Parliament and national parliaments did not suffice to regain citizens’ trust.
Yet even though they may not be able to solve this problem alone, par-
liaments certainly play a key role in the debates about the future of the EU
due to their quality as primary institutions enshrining democracy and
political pluralism. In fact, it is worth noting that parliaments have been at
the core of the debates on Brexit and the future of the EU, either because
parliaments should regain more powers (as in the UK), or because of pro-
posals that parliaments be granted a bigger say in the EU’s actions, as
envisaged for instance by the ‘Task force on subsidiarity, proportionality
and doing less more efficiently’, created in 2018.
In the course of the Brexit negotiations as such, especially the UK
Parliament and the European Parliament played a crucial role. In the British
case, the question of Parliament’s role in the triggering of Brexit and in the
conclusion of the negotiation prompted key constitutional questions
related to the balance of powers between parliament and government, and
more profoundly to the British tradition of parliamentary sovereignty.
Within the EU, even if the European Parliament did not have a formal role
during the negotiation procedures as per Article 50, it did exercise a tight
scrutiny of the negotiations because its consent on the final divorce agree-
ment was needed alongside that of a qualified majority of Member States
sitting in the Council. This gave rise to unprecedented dynamics between
executive and legislative institutions both in the UK and in the EU.
viii PREFACE
In the remaining EU Member States (the ‘EU27’), parliaments’ con-
sent has not been an issue at this stage, but will be required if and when
the EU and the UK reach an agreement on their future relationship since
this would necessarily affect both EU-exclusive competences and shared
competences. The precedent of the EU-Canada Comprehensive Economic
and Trade Agreement which almost collapsed because of objections from
a single regional parliament—the Walloon Parliament—was an additional
motivation in favour of the early and continuous involvement of national
and (where necessary) regional parliaments. Additionally, the prospect
of Brexit undoubtedly has far-reaching consequences for all remaining
Member States because of the UK’s status as a net contributor to the EU
budget and as a leading military power, among other reasons. For some
Member States, such as Belgium, Cyprus, Ireland or Spain, even more is at
stake due to the special issues affecting their relationship with the UK.
Throwing light on these wider questions is what motivated us at the
start of the process leading to this publication. Our project was facilitated
by a collaboration between the Faculty of Arts and Social Sciences and the
Law Faculty at Maastricht University through the inter-faculty Centre for
European Research in Maastricht (CERiM). The above-mentioned work-
shop entitled ‘The Parliamentary Scrutiny of Brexit: Perspectives from
Europe and the UK’ was organised with the help of CERiM and took
place on 8–9 March 2018 at Maastricht University’s Campus Brussels. We
take this opportunity to sincerely thank all participants, and in particular
the practitioners who generously accepted to take some of their time to
contribute to our discussion, and our support staff—Elke Hundhausen,
Shelly Tsui and the colleagues at UM Campus Brussels without whose
efficient help this event could not have taken place. We gratefully acknowl-
edge the generous financial support of CERiM, of the Faculty of Arts and
Social Sciences, the Law Faculty, the Universiteitsfonds Limburg/SWOL
and the Erasmus+ programme of the EU. The subsequent book publica-
tion owes much to the enthusiastic support of Jemima Warren, our editor
at Palgrave Macmillan, and of Sophie Vanhoonacker, co-editor of the
European Administrative Governance series. We also thank Carlotta
Borges for her research assistance and help in preparing the manuscript for
submission to the publisher, and Oliver Foster at Palgrave Macmillan for
his support and advice during the production process.
Maastricht, The Netherlands Thomas Christiansen
January 2019 Diane Fromage
c
ontents
1 Introduction 1
Thomas Christiansen and Diane Fromage
Part I The UK Parliament and Brexit 27
2 What Do We Mean by Parliamentary Scrutiny of Brexit?
A View from the House of Commons 29
Louise Thompson and Ben Yong
3 Brexit and the UK Parliament: Challenges and
Opportunities 51
Philip Lynch, Richard Whitaker, and Adam Cygan
4 Fighting to ‘Take Back Control’: The House of Lords
and Brexit 81
Julie Smith
ix