Tuesday, 13 June 2017

The Gamble that Failed: The Brexit Election and what happens next

Professor Steve Peers

Last week’s early UK election ended with the surprising result of a ‘hung Parliament’, in which no one party had a majority of the seats in the House of Commons. What does this mean for the Brexit process going forward?

First of all, there’s a simple message for Theresa May’s Conservative party: they failed. Epically. The Prime Minister called this election three years early specifically to ask voters to increase her slender majority of seats in the Commons, in order to give her a mandate to carry out her Brexit plan. Voters refused – giving her fewer seats and a minority government instead. Of course, some voters must have voted on other issues, but the ‘Brexit negotiation mandate’ was the express reason for calling the election, and was repeatedly invoked by the Prime Minister throughout the election campaign. And while it’s true that the Conservatives are the largest party, that’s hardly comparable to the political legitimacy of a majority government – and again, that ignores the specific rationale for calling the election in the first place.

Having said that, the largest party is entitled to attempt to form a government, and the Conservatives are currently trying just that, in negotiations with a Northern Ireland party, the Democratic Unionists (DUP). That party has many of the same Brexit objectives as the Conservatives (see their manifesto here), including maintaining simplified border crossing with the Republic of Ireland (other UK parties, as well as the EU side in the Brexit talks, have this objective too). Together, the Conservatives and DUP will have a small majority of seats in the House of Commons.

What are the implications of this? Such a slim majority of Commons seats is vulnerable to defections, and in any event it’s not yet known whether the DUP will commit to support any proposed legislation. Furthermore, the government is now more vulnerable to rejection or major amendment of legislation by the House of Lords. While there is a constitutional convention, known as the ‘Salisbury Convention’, which commits the House of Lords not to block proposals for legislation tabled by a government which were mentioned in the winning party’s manifesto, it’s arguable whether this Convention applies where there is a minority government.

This applies even more so to the Brexit policy of this government, since the Prime Minister explicitly requested voters for a bigger Commons majority to combat the hypothetical prospect of the Lords voting against her Brexit agenda. In effect, she asked voters: “Give me a big majority so the Lords don’t meddle with my Brexit plans”. And the voters answered: “No”. In the circumstances, if the Lords block any government Brexit bills, they would not be frustrating the popular vote – but rather giving effect to it.

There is another option for a Commons majority to get its way, if the Lords blocks the adoption of legislation: the Parliament Acts, which allow the Commons to override the Lords.  However, there is a problem of timing here. If the Parliament Acts are invoked, the legislation in question comes into force after a one-year delay. But there are only 21 months left before Brexit Day (29 March 2019). Factor in the months necessary for Brexit-related Bills to pass through Parliament, and overriding the Lords is not a very plausible threat. Mrs Thatcher used to say that the problem with socialism is that you eventually run out of other peoples’ money. Maybe; but the problem with Mayism is that you eventually run out of your own time to negotiate Brexit.

Underpinning all this is the changed dynamics of UK politics as a result of the election. When the ‘Article 50 Act’ was passed earlier this year, there were enough votes in the House of Lords to support guaranteeing EU citizens’ rights in the UK, as well as parliamentary scrutiny of the Brexit deal. But eventually Labour Lords abstained on these amendments, and so the Bill was adopted without them. Labour’s abstention may have been because the party did not want to be accused of blocking the Article 50 process, and/or because the party was worried (in light of opinion polls) about facing a snap ‘Brexit election’ if it did.

Now the position is transformed: a) the Article 50 Act has been passed, so Labour cannot be accused of blocking the process; and b) the ‘Brexit election’ has already been held, resulting in an unexpected increase in Labour votes, seats, momentum and opinion poll ratings. Although Labour still lost the election, it is now far more likely to welcome a further election than to fear one in these circumstances.

Substantive issues

Let’s now examine how this changed political dynamic could affect the details of the Brexit process. The government plans to propose a Great Repeal Bill that would convert the bulk of EU law into UK law as from Brexit Day, as well as other Brexit-related legislation (on immigration and customs, for example). Under the new political environment, the opposition parties, possibly with Conservative defectors, have a bigger opportunity to pass amendments or to block such bills.

For instance, amendments could include: guarantees for the rights of EU citizens in the UK; limiting the government’s power to reduce social and environmental standards without a further Act of Parliament; effective parliamentary scrutiny of the negotiations; the role of the devolved legislatures; and parliamentary approval of the final deal. It seems unlikely that there are enough votes to demand a further referendum on the terms of the final Brexit deal, but there might be enough to require the government to seek some form of interim participation in the EU single market, pending negotiation of a subsequent post-Brexit trade deal. (While the Labour manifesto, as discussed here, ruled out continuing free movement of persons, arguably a brief continuation, with use of a safeguard clause like that in the European Economic Area, would not contradict this).

This brings us to a key Conservative party position that the new composition of the Commons could in effect rule out: the ‘no deal is better than a bad deal’ argument. One of the least edifying moments of the campaign was the Prime Minister’s endless repetition of this mantra in one of the debates, accompanied each time by bellows of support from her ardent admirers. This was always an implausible threat due to the damage to the UK economy it would likely cause if it were carried out. But now it is politically implausible to, for the government could well struggle to find a parliamentary majority in both Houses to carry such a threat out. (Labour, and other opposition parties, explicitly oppose the use of this threat).  

In particular, Parliament might be unwilling to repeal the European Communities Act to give effect ‘no deal’, or at least unwilling to repeal it in advance if the government wants to repeal it in advance of Brexit Day (ie, unilaterally breaching its EU law obligations set out in Article 50). On this point, it’s essential to recall the Supreme Court ruling in Miller, to the effect that EU law is part of the domestic legal system largely because of the European Communities Act, rather than executive powers. The ‘no-deal’ threat was always unconvincing in light of political economy; it is now even more unconvincing as a matter of parliamentary arithmetic.

One final observation on the ‘no-deal’ scenario: it is particularly incompatible with the position of the Conservatives’ planned partner, the DUP, because (as noted above) the latter is keen on maintaining the absence of controls on the border with the Irish Republic. Since customs issues are an exclusive EU competence, this cannot work out without some form of treaty with the EU. And the EU’s negotiating guidelines rule out a separate deal on this issue: other issues (including difficult questions about financial payments) must be settled as part of an overall package.

It’s technically possible that the EU might change this position and negotiate a separate deal on this issue, even if there’s no deal overall. But how likely is it? Some Leavers argue that the EU’s negotiation position will swiftly fall apart, and the UK can get whatever it wants from the talks. Yet they said things like this throughout the referendum campaign, arguing that immediately after the referendum vote the EU would beg the UK to do a trade deal on the UK’s terms. To borrow from some Brexiteers’ favourite genre (WWII films), German car makers would call Angela Merkel to tell her “For you, ze var is over”; and Merkel would in turn call other EU leaders to say “Ve haf vays of making you talk”.

None of this happened, of course. Nor did the parallel fantasy that Brexit would soon be followed by Nexit, Frexit and the rest as other EU countries held key elections. Instead, domino after domino stood firm, and populist party after populist party ditched unpopular anti-EU policies after a series of electoral defeats. Some Brexiteers said there’d be an orgy of countries leaving the EU; but the UK is the only one who showed up to it. When it comes to analysis of EU politics, maybe it’s time to swipe left on those Brexiteers.


The British public was asked to give its verdict on Theresa May’s Brexit strategy. Since the referendum, we’ve heard her sneering at Remain voters and alleging that the EU wanted to undermine the election, while her angry tabloid allies ranted about “enemies of the people”, “crushing the saboteurs” and “Blue murder”. After a year of this rhetoric, British voters have politely asked the loud woman to turn down the volume – refusing her explicit request to back her Brexit strategy and implicitly asking for a rethink. Sadly, having campaigned in Hard Rock, it seems that Mrs. May is incapable of governing in Easy Listening. But as always, it ain’t over until the Mother of Parliaments sings.

Barnard & Peers: chapter 27

Photo credit: Daily25

Wednesday, 7 June 2017

The UK General Election and Brexit: Comparing Party Manifestos

Professor Steve Peers

Tomorrow sees another general election in the UK, just two years after the last one. Since this is (according to the Prime Minister) an election on Brexit, it seems appropriate to review the parties’ views on this issue, including future UK/EU relations. I will examine the parties’ views in turn – focussing on larger UK-wide parties plus (due to its political importance) the Scottish National Party. The final section is an overview and comparison.


The Tory manifesto position on Brexit is largely a summary of the position set out in the Brexit White Paper (discussed here), and the planned Great Repeal Bill (discussed here), which would keep EU law as part of ‘UK law’ for the time being. Essentially, the Tories believe that the future UK/EU relationship should be based on a free trade deal without ‘vast’ payments into the EU budget or free movement of persons. Participation in the customs union and internal market would end, and there are some details about the transition to full separate UK participation in the World Trade Organisation. There’s an objective of continuing security cooperation with the EU, but the details are not spelled out.

Some fair settlement of UK accounts would be made upon departure from the EU, but the Tory policy is ‘no deal is better than a bad deal’ – without spelling that position out further. Fortunately, the UKIP manifesto (discussed below) addresses this point. Unlike UKIP, the Tories do not attempt to ‘sell’ the no-deal scenario – which is just as well considering the concerns about its potential economic damage. Rather there is much discussion of what the positive outcomes of a deal would be.

Future immigration policy would retain an objective of net immigration below 100,000 – which would entail reducing non-EU migration (an issue largely outside the scope of EU law for the UK) as well. This would include further restricting the number of foreign students and family members, despite promises from the Leave side made during the referendum campaign to make it easier to admit UK citizens’ non-EU family members.  


Labour accepts the result of the referendum but sets out in more detail than the Conservatives what the future UK/EU relationship would look like.  It supports continued relations with Euratom and the single energy market, plus wants to maintain the ‘benefits’ of the single market and customs union without explaining how. Other remarks from the party suggest that it opposes continued participation as such in the single market and customs union, and opposes free movement of persons continuing.

Labour reject the ‘no-deal’ option, support a transitional deal, and list a number of areas where they still wish to cooperate with the EU: research programmes, Erasmus, Europol, Eurojust, the European Arrest Warrant (EAW), climate and anti-terrorism cooperation.  They have a different policy from the Tories on future family migration, as they would waive the strict income requirements for family members rather than tighten them. (There would still be a requirement not to use public funds). They would ‘guarantee existing rights’ of EU citizens in the UK. They set out in detail their future trade policy, insisting on links between trade and other concerns like the environment and human and labour rights.

Liberal Democrats

The LibDems aim for a referendum on the final Brexit deal, and support continued membership of the EU single market (including free movement of people) and customs union. They make specific reference to staying in Erasmus, preserving social and environmental rights, and participating in Europol, the EAW, EU databases, EU research funds, the European health card, abolition of roaming fees, and pat passports. Like Labour, they suggest links in between human rights and the environment in future trade deals. LibDems also give some detail on the position of EU citizens in the UK:


Similar to the LibDems, Greens propose a referendum on the final Brexit deal, and seek to continue with free movement and the single market. They also wish to guarantee EU citizens’ rights, retain social and environmental safeguards, and link trade deals to other standards.

Scottish National Party

The SNP manifesto views on Brexit reiterate its two key positions: Scotland, or the UK as a whole, to stay in the single market (previously discussed here), and a Scottish independence referendum when the terms of Brexit are known (previously discussed here). They also repeat their support for guaranteeing EU citizens’ rights.


Finally, that brings us to the UKIP manifesto. This manifesto gives us an indication of how the ‘no-deal’ scenario hinted at in the Conservative manifesto might play out. UKIP opposes the use of the Article 50 procedure to negotiate with the EU, focussing instead on the purely domestic law change of repealing the European Communities Act. They still aspire to a free trade deal with the EU, however, although they are indifferent to whether they get one – since they also promise to spend the £11 billion “windfall” from tariffs on EU goods. There’s no acknowledgement of the effects on the UK economy of this scenario: indeed, they argue that talk of a “cliff edge” from leaving the EU without a trade deal is “hyperbole”, since trade will still continue. This ignores the obvious prospect that the level of trade will decrease if tariffs and non-tariff barriers are imposed. While they reject the single market and customs union, they want EU/UK trade to continue “on the same basis as present”.

In any event, UKIP not only refuse to make any payment upon departure, they expect the UK to receive a sum from the EU as it leaves. Moreover, they pledge to oppose the existence of customs unions like the EU in the World Trade Organisations – even though the WTO expressly provides for the existence of customs unions, and (as UKIP even acknowledge) the EU is a WTO member in its own right.

Overall then, UKIP expects to receive all the current trade benefits of EU membership, with none of the perceived drawbacks, plus a payment on the way out. All of this while refusing to use the official departure route and campaigning to end the EU’s existence as a customs union and WTO member. If you seek a visual metaphor for how UKIP sees the world, imagine their leader Paul Nuttall – a star football player in his own mind - repeatedly scoring penalties over the heads of 27 massed goalkeepers.

UKIP’s rage against the dying of their light deserves one final paragraph. Their immigration policy includes not just an unreal zero migration target, but also a demand that new immigrants observe UK “values” to be admitted. This from a party who have continually disregarded the basic British values of tolerance, equality and fair play: members have referred to gays causing floods, and repeatedly insulted minorities. Indeed, after the last European Parliament election, to receive EU money UKIP did a deal with a party whose leader denies the Holocaust, and claims that women are inferior and obtain their political beliefs via biological transmission from the men they have sexual intercourse with. Clearly, politics’ loss is gynaecology’s gain.


There are two broad categories of opinion on the EU in this election, but also important differences within each group. The Liberal Democrats, Greens and SNP want to continue participation in the single market as well as a number of other EU policies. Moreover, all three parties want to offer the option of continued EU membership – the LibDems and Greens by means of a UK-wide referendum on the final deal, and the SNP by means of a referendum on Scottish independence.

The Conservatives, Labour and UKIP all favour departure from the UK without the single market, the customs union and free movement of persons, and aim instead for a free trade deal with the EU. However, these similarities soon end.  Like the first group of parties, Labour would guarantee EU citizens’ rights (in fact, it supports guaranteeing their existing rights, an important nuance), and would seek participation in a number of specific EU measures. The Tories are considerably cooler and less detailed on these issues, and are willing to contemplate a ‘no-deal’ scenario, although they cannot bring themselves to ‘sell’ it. Labour would welcome foreign families and students; the Tories see them as numbers to be reduced.

UKIP offers voters not just one fantasy, but a choice of two fantasies: either a problem-free ‘no-deal’ scenario, or a deal with all of the benefits and none of the supposed drawbacks of EU membership, with a gold watch for UK service to the EU thrown in for good measure. Of course, some would argue that UKIP’s fantasies are simply more explicit than Labour’s or the Conservatives’ – since the EU has made clear in its negotiating position that it is not possible to retain all benefits of the single market for a former Member State which leaves it.

Voters may not wish to make Brexit the main reason for their vote, or may in any event choose to cast a tactical vote against a party they dislike, rather than vote for a party which they most agree with but which has no chance of winning their seat. But it can hardly be said that all parties take the same view on Brexit issues, and the summary above makes clear that for those whose concern is Brexit first and foremost, there is a lot at stake in this election.

Barnard & Peers: chapter 27
Photo credit: BBC