As the Exiting the European Union Committee (once more) debates the 58 Brexit Studies with David Davis, two Birkbeck Politics academics reflect on what the struggle between Westminster and the government tells us about power, Parliament and Brexit.
Governing is (perhaps) not what it used to be but there are some things that have not changed much. The possession and significance of privileged information is one of them. Distributing and (more broadly) utilising sensitive information is part of the tools of government. That is why one of the most significant concerns of parliaments in democracies is getting hold of this information. Without it, there is no way they can hold government to account. But even in the absence of this oversight, the credibility of a government’s position is at stake. Without credible information (indeed, without information that is known to be credible), how can a government formulate good public policy? This was at the heart of the previous coalition government’s now forgotten review of the balance of competences between the UK and the EU. A key reason why it was barely mentioned after its conclusion was the fact that it did not fit the narrative that the Conservatives wanted to construct in relation to the UK’s membership of the EU. The credibility of government-held information is more important in the context of controversial negotiations like the one that the UK government is currently conducting with the European Union (first) in relation to the terms of the UK’s exit. A large part of the controversy that surrounds the referendum is built on the systematic use of lies by supporters (including ministers) of the winning side. Now that they must deliver on their promises, the fundamental weakness of their arguments is beginning to show. This is demonstrated, for example, by the government’s acceptance of the EU’s preferred sequencing and the reported acceptance of the EU’s calculation of the UK’s legacy debts (usually and misleadingly referred to as ‘exit bill’), i.e. the expected costs to which the UK has agreed whilst still a member of the EU.
Until the earth-shattering news of Meghan Markle’s engagement to Prince Harry, the debate inside the UK on the ongoing Brexit negotiations was dominated by the thorny issue of Northern Ireland and the impact of Brexit on the British economy. The British Parliament managed to extract from the government a commitment to share hitherto unpublished sectoral studies that assess Brexit’s likely impact on several sectors of the British economy. The latest twist in this sorry and lengthy saga – which highlights, instead of concealing, as the UK’s Conservative government intended, the weakness of its negotiating position – saw the government effectively refuse to reveal this information to British parliamentarians.
This may come as a surprise to many but it is perfectly in keeping with both the country’s enduring constitutional settlement and the Conservative Party’s – especially its loudly Eurosceptic wing’s – duplicitous stance on the issue of parliamentary sovereignty. Although Westminster is frequently referred to as ‘the mother of all parliaments’ one must be careful for the system is neither balanced, nor is it characterised by the centrality of Houses of Commons and Lords that its title suggests. As early as 1867, Walter Bagehot was observing that ‘[i]n England a strong Cabinet can obtain the concurrence of the legislature in all acts which facilitate its administration; it is itself, so to say, the legislature’. He noted that ‘[t]he efficient secret of the English Constitution may be described as the close union, the nearly complete fusion, of the executive and legislative powers’. One of the ways in which this fusion is achieved is highlighted in RHS Crossman’s famous introduction to the 1963 edition of Bagehot’s classic book:
‘Once elected by the Commons the Prime Minister exerts power greater than those of any American President […] In this new middle class regime, in fact, the nation is run by a board of control headed by a powerful managing director’.
But even if one ignores the real and enduring balance of power between the British executive and legislature, it would be unreasonable to expect a UK government to bend to the will of parliament on matters European given the historical precedent. As I have argued in detail in an article in the Journal of Common Market Studies, acting in a comparable context in the early 1990s again under a Conservative government with a slim majority in the House of Commons, an arrangement put in place in 1980 obliged the government of the day to (normally) refrain from giving its assent to EU legislative proposals as long as the parliamentary scrutiny of these proposals in Westminster had not been completed. Crucially though, the government retained the right to decide that due to ‘special reasons’ – agreement at the level of the EU need not be withheld (House of Commons Debates, vol. 991, 30 October 1980, col. 843). It was – and is – up to the government of the day to make that decision and all they need to do is simply explain these reasons in Parliament. In other words, one should not be surprised by the current government’s stance. It is consistent with the essence of the UK’s constitutional arrangement as well as the ruling party’s tradition, no matter what Conservative Eurosceptics said when they were not running the country. If Brexit is about ‘taking back control’, why not share with our elected representatives these impact studies?
In reality, the current government’s real problem lies in either a) the really bad news that these studies would reveal to the British public or b) the weakness of way in which these studies were constructed. Either way, the government’s dogged fight to conceal them is much more revealing than they want it to be.