Brexit and Democracy: The Role of Parliaments in the UK and the European Union [1st ed.] 978-3-030-06042-8, 978-3-030-06043-5

Table of contents :
Front Matter ....Pages i-xix
Introduction (Thomas Christiansen, Diane Fromage)....Pages 1-25
Front Matter ....Pages 27-27
What Do We Mean by Parliamentary Scrutiny of Brexit? A View from the House of Commons (Louise Thompson, Ben Yong)....Pages 29-49
Brexit and the UK Parliament: Challenges and Opportunities (Philip Lynch, Richard Whitaker, Adam Cygan)....Pages 51-79
Fighting to ‘Take Back Control’: The House of Lords and Brexit (Julie Smith)....Pages 81-103
Front Matter ....Pages 105-105
The Scrutiny of Brexit in National Parliaments: Germany, Luxembourg and the Czech Republic Compared (Vanessa Buth, Anna-Lena Högenauer, Petr Kaniok)....Pages 107-132
National and Regional Parliaments in the Context of Brexit: The Case of Belgium (Vivien Sierens, Nathalie Brack)....Pages 133-153
The Polish Parliament and the Scrutiny of Brexit in Poland (Karolina Borońska-Hryniewiecka)....Pages 155-178
The Irish Parliament and Brexit (Gavin Barrett)....Pages 179-205
The Spanish Parliament and Brexit (Antonio Bar Cendón)....Pages 207-232
Front Matter ....Pages 233-233
The European Parliament in the Brexit Process: Leading Role, Supporting Role or Just a Small Cameo? (Monika Brusenbauch Meislova)....Pages 235-261
The Impact of Brexit on the European Parliament: The Role of British MEPs in Euro-Mediterranean Affairs (Jan Claudius Völkel)....Pages 263-291
Facilitating the Participation of EU Citizens in the Brexit Negotiation Process (Natassa Athanasiadou)....Pages 293-320
Back Matter ....Pages 321-323

Citation preview

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

Edited by Thomas Christiansen and Diane Fromage

EUROPEAN A D M I N I S T R AT I V E GOVERNANCE SERIES

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 organization 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 dimension 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 commercial, 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 history 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 administration, 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 Faculty of Arts and Social Sciences Maastricht University Maastricht, The Netherlands

Diane Fromage Faculty of Law Maastricht University 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 publisher 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 institutional 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

Preface

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 developments around Brexit are a particular, and particularly important, issue for parliamentary scrutiny. Considering how little academic attention had hitherto 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 workshop 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 contributors who reliably met intermediate and final deadlines while also responding 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).

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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 challenging endeavour. Indeed, when the then British Prime Minister David Cameron gave his famous Bloomberg speech in January 2013,2 the prospect of the UK’s exit from the EU was not considered as a serious possibility 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 immediately 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 second 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 migration 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 legit2  David Cameron, EU speech at Bloomberg, 23 January 2013 available at: https://www. gov.uk/government/speeches/eu-speech-at-bloomberg

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imacy crisis within the EU. The question of the European integration process’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 strengthening 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 strongest 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 solutions 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, parliaments 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 proposals 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 agreement 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.

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In the remaining EU Member States (the ‘EU27’), parliaments’ consent 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 workshop 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 acknowledge 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 publication 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 January 2019

Thomas Christiansen Diane Fromage

Contents

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

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Part II Brexit and the National Parliaments in the EU 105 5 The Scrutiny of Brexit in National Parliaments: Germany, Luxembourg and the Czech Republic Compared107 Vanessa Buth, Anna-Lena Högenauer, and Petr Kaniok 6 National and Regional Parliaments in the Context of Brexit: The Case of Belgium133 Vivien Sierens and Nathalie Brack 7 The Polish Parliament and the Scrutiny of Brexit in Poland155 Karolina Borońska-Hryniewiecka 8 The Irish Parliament and Brexit179 Gavin Barrett 9 The Spanish Parliament and Brexit207 Antonio Bar Cendón Part III Brexit, the European Parliament and EU Citizens 233 10 The European Parliament in the Brexit Process: Leading Role, Supporting Role or Just a Small Cameo?235 Monika Brusenbauch Meislova 11 The Impact of Brexit on the European Parliament: The Role of British MEPs in Euro-Mediterranean Affairs263 Jan Claudius Völkel 12 Facilitating the Participation of EU Citizens in the Brexit Negotiation Process293 Natassa Athanasiadou Index321

Notes on Contributors

Natassa Athanasiadou  is Assistant Professor of European Union (EU) Law at the Faculty of Law, Maastricht University, the Netherlands. Previously, she worked for the European Commission as a legal officer advising on matters of EU institutional, administrative and civil service laws. She holds a doctorate with summa cum laude from the University of Heidelberg and is a qualified lawyer of the Bar Association of Thessaloniki. Antonio  Bar  Cendón is Professor of Constitutional Law and Jean Monnet Professor ‘ad personam’ of EU Law and Politics at the Faculty of Law, University of Valencia, Spain. He has been a member of the European Institute of Public Administration (EIPA), Maastricht, and visiting scholar in many other universities and centres. As a consultant, he has worked for the European Parliament, the European Commission, the Council of Europe and other institutions, in various projects in Europe, America and the Middle East. He is a member of the European Commission’s Team Europe. Gavin Barrett  is a barrister and professor specialising in EU Law in the Sutherland School of Law, University College Dublin. He is the author of numerous articles in leading law and political science journals and book chapters on European- and democracy-related themes. His book The Evolving Role of National Parliaments in the European Union: Ireland as a Case Study has recently been published. Karolina Borońska-Hryniewiecka  is the head of the EU Program at the Polish Institute of International Affairs (PISM) and an assistant professor xi

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at the Institute of Political Science of the University of Wrocław. Her research interests revolve around EU institutional reform and the role of parliamentary actors in the EU governance. Her latest publications include From the EWS to the Green Card for National Parliaments: Hindering or Accelerating the EU Lawmaking? (2017) and From Legislative Controllers to Policy Proponents: The Evolving Role of National Parliaments in the EU Multi-level Governance (Palgrave Macmillan 2016). Nathalie  Brack is Assistant Professor of Political Science at Cevipol, ULB, Brussels, and a visiting professor at the College of Europe. Her research interests include Euroscepticism, radical parties, political representation and the linkage between citizens and elites. She recently authored Opposing Europe in the European Parliament. Rebels and Radicals in the Chamber (2018, Palgrave Macmillan) and co-authored How the EU Really Works (2018). Monika  Brusenbauch  Meislova is an assistant professor at the Department of International Relations and European Studies, Masaryk University, Brno, Czech Republic. She has studied at universities in the Czech Republic (Palacký University), the United Kingdom (Loughborough University) and Germany (Philipps-Universität Marburg). She has conducted several research stays in London and Brussels and also undertook an internship at the European Parliament. Her main research interests revolve around the study of British politics (especially British European policy and Brexit), Czech foreign policy and Czech-British relations. Her work on these topics has appeared in both scholarly and popular venues (she is, for instance, an occasional contributor to the LSE blog). She regularly presents her work at both domestic and international conferences and often participates in public debates. Vanessa Buth  was a senior research associate in the ‘Negotiating Brexit’ project at the School for Political, Social and International Studies, University of East Anglia (UEA), in cooperation with ‘The UK in a Changing Europe’. She holds a PhD on the representativeness of EU advocacy groups from UEA. She has been involved in three major investigations of the European Commission as an administration (‘The EC in Question’, ‘The EC: Facing the Future’ and ‘The EC: Where Now, Where Next?’) as well as an investigation of the European Council (‘Understanding the EU Civil Service: The General Secretariat of the Council’). She is co-­ author of the chapter ‘The Balancing Act of European Civil Society  –

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Between Professionalism and Grassroots’ (2013) (In: Beate Kohler-Koch/ Christine Quittkat (Eds.) The Demystification of Participatory Governance) and ‘Civil society in EU Governance: Lobby Groups Like Any Other?’ (2009) (with Beate Kohler-Koch, TranState Working Paper). Thomas Christiansen  holds a Chair in European Institutional Politics in the Faculty of Arts and Social Sciences at Maastricht University, the Netherlands, where he is also Chair of the Research Programme on ‘Politics and Culture in Europe’ and director of the Centre for European Research in Maastricht (CERiM). In addition, he holds regular visiting positions at LUISS Università Guido Carli in Rome, Italy, and at Sungkyunkwan University in Seoul, South Korea. He is executive editor of the Journal of European Integration and co-editor (with Sophie Vanhoonacker) of the European Administration Governance book series at Palgrave Macmillan. His work on different aspects of European integration has been widely published. He recently co-authored, with Christine Neuhold and Anna-Lena Högenauer, Parliamentary Administrations in the European Union (London: Palgrave Macmillan 2016). He is the coeditor, with Emil Kirchner and Han Dorussen, of Security Relations Between the EU and China: From Convergence to Cooperation?, which was published in 2017. Adam Cygan  is Professor of European Law at the University of Leicester. His research interests lie in the field of EU public law and governance. In particular, he focuses on the relationship between national parliaments and the EU institutions within the context of the decision-making process. He has authored numerous publications on this topic, including a monograph on Accountability, Parliamentarism and Transparency in the EU: The Role of National Parliaments (2013). Together with P.  Lynch and R.  Whitaker, he leads an ESRC-funded project called ‘Parties, Parliament and the Brexit process’ (https://parlbrexit.co.uk/). Diane Fromage  is Assistant Professor of EU Law in the Faculty of Law at Maastricht University, the Netherlands. She previously held a similar position at Utrecht University, and has been a Max Weber Postdoctoral Fellow at the European University Institute, Florence. She holds PhD in law and in institutions, administrations and regional policies from the University of Pavia and the Pompeu Fabra University of Barcelona (joint degree). Her research focuses on parliaments in the EU, on independent fiscal institutions and on the Banking Union. Her work

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on these issues has been published extensively in journals such as the Journal of European Legal Studies, the Maastricht Journal of Comparative and European Law and the Yearbook of European Law. Furthermore, she has recently co-edited two journal special issues on parliaments in the EU, respectively for the Journal of European Integration and Politique Européenne. Anna-Lena  Högenauer  is an adjoint de recherche in the Institute of Political Science at the University of Luxembourg. She holds PhD in political science from the University of Edinburgh. Her areas of expertise are EU multilevel governance and parliamentarism. She was a member of the Observatory of Parliaments After the Lisbon Treaty (OPAL, 2011–2014) funded under the Open Research Area for Europe scheme and the Erasmus Academic Network on Parliamentary Democracy in Europe (Pademia, 2013–2016), and is a member of the ESRC-funded ‘Negotiating Brexit’ project. Her published work includes a monograph on the role of parliamentary administrations with Palgrave Macmillan, and a number of articles in journals such as West European Politics, Journal of Common Market Studies, Comparative European Politics, European Political Science Review and the Journal of Legislative Studies. Petr  Kaniok  is an associate professor at the Faculty of Social Science, Masaryk University. He holds PhD in political science from Masaryk University. His areas of expertise are Euroscepticism, political institutions, EU politics and Czech politics. He was involved in 7th FP project bEUcitizen (2013–2017). He is a member of the ESRC-funded ‘Negotiating Brexit’ project and he coordinates Czech Science Foundation-funded project on differentiated integration in Visegrad countries. He has co-authored a monograph on Europeanisation of Czech Euroscepticism. His articles have recently appeared in East European Politics, Journal of Contemporary European Research and Parliaments, Estates and Representation. Philip Lynch  is Associate Professor of Politics at University of Leicester. His main research focus is party politics on the centre right in Britain, and he is particularly interested in the Conservative Party and European integration; the relationship between the Conservative Party and the British nation state; and Euroscepticism in Britain. He runs an ESRC-funded project called ‘Parties, Parliament and the Brexit process’ (https://parlbrexit.co.uk/) with A. Cygan and R. Whitaker.

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Vivien Sierens  is currently a PhD candidate at Cevipol, ULB, Brussels, and at the Vrije Universiteit Brussel (VUB), and Teaching Assistant in Political Science at ULB. His research interests include party membership, political representation and multilevel governance. He recently co-­ authored the article ‘Prompting Legislative Agreement and Loyalty: What Role for Intra-Party Democracy’ in Parliamentary Affairs (2018). Julie  Smith  (Baroness Smith of Newnham) is director of the European Centre at the Department of Politics and International Studies, University of Cambridge, and a fellow of Robinson College, Cambridge. She became a member of the House of Lords in 2014. Her main research interests are in the history and politics of the EU.  Her work focuses on the United Kingdom’s relations with the EU; parliaments and the EU; and parliaments and budgetary politics. She is editor of the Palgrave Handbook on European Referendums (London: Palgrave Macmillan, forthcoming 2019). Her recent publications include The UK’s Journeys into and out of the EU: Destinations Unknown (2017) and The Palgrave Handbook of National Parliaments and the European Union (Basingstoke: Palgrave Macmillan, 2015), co-editor with Claudia Hefftler, Christina Neuhold and Olivier Rozenberg. Louise  Thompson  is Senior Lecturer in Politics at the University of Manchester. Her research focuses on the UK Parliament, particularly the legislative process, committees, political parties and public engagement with Parliament. She is convenor of the PSA Parliaments Group and academic secretary of the Study of Parliament Group. Jan Claudius Völkel  is Marie Skłodowska-Curie Fellow at the Institute for European Studies, Vrije Universiteit Brussel (IES-VUB). Previously, he was DAAD Long-Term Lecturer in Political Science at Cairo University in the Euro-Mediterranean Studies Programme (2013–2017). His main research interests deal with contemporary developments in the Middle East and North Africa (MENA), with a particular focus on Arab parliaments. Since 2008, he is the MENA regional coordinator at the Bertelsmann Transformation Index (www.bti-project.org). Richard Whitaker  is an associate professor at the Department of Politics and International Relations at University of Leicester. His main research interests concern the study of legislatures, and British parties and European integration. He is working on an ESRC-funded project called ‘Parties, Parliament and the Brexit process’ with A. Cygan and P. Lynch (https:// parlbrexit.co.uk/).

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Ben Yong  is a lecturer in the School of Law and Politics, University of Hull. His research interests lie in public law, and bureaucracy and administration (both in the executive and in the legislature).

List of Figures

Fig. 6.1 Fig. 6.2 Fig. 6.3

Position of Belgian political parties on the EU in a bi-dimensional space (salience and overall position on EU integration) (2002– 2014). (Source: Chapel Hill Expert Survey) 139 Networks of parliamentary questions (centred on key MPs) 146 Networks of parliamentary questions (centred on key topics) 148

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List of Tables

Table 3.1 Table 3.2

Select committee composition and the Leave-Remain divide 66 Voting on DExEU committee reports, 2017–2019 (eight reports)69 Table 6.1 Descriptive frequency of parliamentary questions. Majority versus opposition 144 Table 6.2 Descriptive network statistics 147 Table 6.3 Descriptive network statistics 149 Table 8.1 Brexit-related reports produced by Oireachtas committees in post-­February 2016 parliamentary period 184 Table 9.1 Government appearances before the Parliament concerning European Council meetings (2011–2018) 215 Table 9.2 Activities of the Subcommittee for the study of the consequences of the UK’s withdrawal from the EU.  XII Legislature (November 2016–July 2018) 221 Table 9.3 Activities of the Joint Committee for the EU. XII Legislature (July 2016–July 2018) 223 Table 10.1 Voting record of the EP’s resolutions on Brexit 245 Table 10.2 MEPs’ voting behaviour on EP’s resolutions on Brexit (by party groups) 249 Table 10.3 MEPs’ voting behaviour on EP’s resolutions on Brexit (by member states) 251 Table 11.1 UK-MEPs in the 8th European Parliament (as of 31 July 2018, sorted by EP group and alphabet) 267 Table 11.2 UK-MEPs in MENA-related committees (as of 31 July 2018) 272

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CHAPTER 1

Introduction Thomas Christiansen and Diane Fromage

1   The Contestation of Brexit The United Kingdom’s (UK’s) withdrawal from the European Union (EU) is a historic and momentous event, constituting the first time an EU member state activated Article 50 of the Treaty on European Union (TEU). Based on the outcome of a referendum held in Britain in June 2016, this decision occurred in a context of rising Euroscepticism and anti-European populism. Certainly, coming in the wake of the Eurozone sovereign debt crisis which had reached its zenith in the summer of 2015, and in the midst of the Syrian refugee crisis, the British people’s decision to leave the EU added to a sense of the European integration project being in terminal decline. While “Brexiteers” in the UK celebrated their victory at the polls, elites in the remaining member states were haunted by the fear that other states may also opt to leave the Union, like dominoes falling.

T. Christiansen (*) Faculty of Arts and Social Sciences, Maastricht University, Maastricht, The Netherlands e-mail: [email protected] D. Fromage Faculty of Law, Maastricht University, Maastricht, The Netherlands e-mail: [email protected] © The Author(s) 2019 T. Christiansen, D. Fromage (eds.), Brexit and Democracy, European Administrative Governance, https://doi.org/10.1007/978-3-030-06043-5_1

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Yet, the years after the Brexit vote in 2016 painted a surprisingly different picture: in the UK, the governing Conservative Party continued to be riven by internal disagreement, leaving the government with a fragile majority in parliament, whose fragility was exacerbated by the outcome of the snap election called by Prime Minister Theresa May in June 2017 at which the Conservatives lost their parliamentary majority and had to rely on support from the Democratic Unionist Party in order to continue governing. But also beyond the Conservatives, the prospect of Brexit exposed a country deeply divided about the choices involved. Theresa May’s insistence that “Brexit means Brexit” could hardly hide the fact that fundamentally different ways of relating to the EU could be chosen after Brexit, from the “softer” variants of remaining in a customs union with the EU, or even participating in the Internal Market itself (like Norway does through its membership in the European Economic Area) to the “hard” versions of Brexit that would place the UK firmly outside the EU’s Internal Market and imply the setting up of tariff and non-tariff barriers between the two sides, though these could be moderated through a free-trade agreement that would reduce or avoid such barriers in selected economic sectors. As negotiations between the UK and the EU about the withdrawal arrangements and future relationship commenced, it quickly became evident that these were highly complex matters, with difficult decisions abound. Three issues in particular complicated matters significantly: first, participation in the Internal Market would require the UK to accept the continued jurisdiction of the Court of Justice of the EU—something that had been ruled out early as a “red line” in the British negotiating position. Second, the “opting in” of Britain into selected EU policies or institutions such as regulatory agencies was not deemed possible without a financial contribution to the EU budget—again something the British government could not conceive of. Third, achieving a “hard” Brexit appeared to be incompatible with maintaining open borders between Northern Ireland and the Republic of Ireland, and was thus in conflict with the Good Friday Agreement as well as with the EU’s position in support of Ireland. Furthermore, there have also been serious concerns about the protection of citizens’ rights—EU citizens resident in the UK as well as UK citizens living in the other member states—in such a scenario. The elusiveness of a simple choice in the Brexit process engendered much debate and disagreement in the UK: all the main political parties took up different positions, and not only the Tories but also Labour were riven by internal splits. The government of Scotland, where the majority

 INTRODUCTION 

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of the population had voted in favour of remaining in the EU, took a position that was antithetical to that of the UK government, contending that only continued membership in the Internal Market and the customs union would be acceptable to them. And at a popular level, an increasing polarisation became evident, with a movement for a “People’s Vote” demanding a second referendum that might overturn the original vote in favour of Brexit, while radicalised Brexit supporters labelled those seeking even a partial membership in the EU as “traitors”. Against the background of such fundamental dilemmas and such a divided country, the search for a decisive position supported by a majority remained elusive, and Brexit negotiations dragged on from the official withdrawal notification on 29 March 2017 until a specially convened European Council meeting in November 2018, just a few months before the final deadline for the UK’s withdrawal two years after the notification based on Article 50 TEU had been submitted by the British government.1 The fact that key ministers, such as former chief negotiator David Davis, resigned from the cabinet in the later stages of the negotiations, and actively campaigned against the government’s official position in the negotiations, added to the difficulties in achieving an agreement acceptable to all sides. The difficulties on the British side were mirrored by an—arguably surprisingly—united EU which maintained remarkable coherence and steadfastness throughout the negotiations. The governments of the remaining 27 member states—the EU27 as they became known—were represented in the negotiations by a European Commission “Task Force” under the leadership of Michel Barnier, former French minister and Single Market Commissioner. In accordance with the procedure spelt out in Article 50-2 TEU, the European Council, that is, EU27 Heads of states and governments, first defined the mandate providing the guidelines which Michel Barnier and the Brexit Task Force had to follow in the negotiations. Even though the costs and—to the extent to which these existed—benefits of Britain leaving the EU were unevenly distributed across the different member states, the EU27 persistently maintained a common line that regarded the four freedoms—the free mobility of goods, services, capital

1  According to Article 50-3 TEU, the negotiations between the seceding state and the EU are limited to last for a maximum of two years, unless a prolongation is agreed unanimously by European Council members.

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and persons—as indivisible. In other words, access for the UK to the Internal Market was off the table, unless it also included the free movement of people which had been explicitly ruled out by the British government. Equally strong was the assiduous support of the other member states and the European Commission for the Republic of Ireland on the issue of the Northern Irish border. Brexit, then, was a divisive societal issue as well as a highly complex and technical matter in the hands of expert negotiators. However, the negotiations were conducted in the context of political accountability. As the EU27’s chief negotiator, Michel Barnier reported back to the Council at regular intervals. According to Article 10 TEU, Council members, that is, the responsible ministers, are accountable to their respective national parliaments. It follows that parliamentary scrutiny is another key dimension to Brexit as it represents a test of parliamentary scrutiny of the EU executive. At both the national and the European levels, and in the UK as well as in the remaining member states, Brexit challenged parliaments to hold executive leaders and negotiators to account, to ensure a degree of transparency during the negotiations, to seek influence in some cases, and, in the case of the UK parliament, to establish a right to have a final say on the outcome of the process. It is this particular aspect of Brexit that is the central focus of this volume. It addresses the critical issue of the democratic legitimacy of the Brexit process by raising a number of important questions: “How deeply and decisively have parliaments been involved in the process?”; “How effective has their scrutiny of the negotiations been?” and “To what extent have their formal powers matched their actual influence over the outcome?” Answers to these questions will allow us to assess the degree to which the decision-making around Brexit can be seen as democratically legitimate. Yet they also go beyond Brexit, raising much wider issues about the manner in which parliamentary systems and participatory processes in the EU are capable of dealing with extraordinary events and crises, and the impact that such developments have on the relationship between parliaments and governments more broadly. Brexit is, in this sense, an external and unexpected shock to parliamentary systems on both the national and the European levels. Studying closely how this particular challenge has been dealt with by parliaments in different member states, and at the EU level, provides us with new insights about the way in which parliaments cope with such challenges, and even utilise opportunities that present themselves to reassert their role in EU affairs. This volume brings together

 INTRODUCTION 

5

research on this particular experience in the EU. But it is not just an examination of the interaction between Brexit and democracy, as the title suggests; it also adds to the broader literature on executive-legislative relations in the EU and on parliaments’ role and democratic legitimacy in the EU more generally. The contributions to this book investigate these issues empirically in a range of institutional contexts, and they do so from a variety of disciplinary backgrounds, with particular emphasis on constitutional and European law, and political science. The authors of the various chapters have studied distinct empirical environments, and particular aspects relevant to each system through a set of common questions based on the different dimensions to best highlight the various effects of parliamentary involvement in Brexit. This common frame guiding the empirical research presented in each of the contributions is developed below, after the following section provides a more general overview of recent developments with regard to parliamentary scrutiny in the EU in an attempt to contextualise this debate.

2   Arenas of Parliamentary Scrutiny in the EU Parliamentary involvement in Brexit is an important topic for scientific investigation not only because of the significance of Brexit itself, but also because it has occurred against the backdrop of a decade-long debate about parliamentary empowerment in the EU.  Traditionally, the main focus of those concerned with the EU’s democratic credentials has been the European Parliament (EP). The EP has indeed seen a steady increase in its powers through successive treaty reforms, with additional areas of EU decision-making transferred to co-decision and a progressive increase in the EP’s budgetary powers (Beach 2007; Biesenbender 2011; Shackleton and Raunio 2003; Dinan 2012). With the Lisbon Treaty, this equal status between the EP and the Council representing member state governments has been generalised as the Ordinary Legislative Procedure and now applies in the vast majority of legislative domains. Beyond legislation, the EP has become a key actor in other domains such as the conclusion of international agreements between the EU and third countries (Monar 2010; Ripoll Servent 2014), and the appointment of the President and the members of the European Commission (Christiansen  2011; Goldoni 2016). In particular, the changes introduced by the Lisbon Treaty with regard to the appointment procedure of the Commission President and the subsequent creation of the Spitzenkandidaten process

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have significantly changed the dynamics between European Council, European Commission and EP (Christiansen 2016; Shackleton 2017). However, even though the EP is now recognised as a powerful player in EU decision-making, critical questions  about its role in EU decision-­ making have been asked. These concern the mismatch between its formal powers and the capacity the EP has to actually translate these into influence (Christiansen and Dobbels 2012; Fromage 2018b). There has also been some debate about the degree to which post-Maastricht reforms in general, and crisis decision-making in recent years in particular, have strengthened the intergovernmental aspects of the EU, to the detriment of the supranational institutions, including the EP (Bickerton et al. 2015; Rauh 2018). As the European Council became the de facto decision-­making body in the context of the sovereign debt crisis and the refugee crisis, solutions were frequently found through political agreements and new intergovernmental treaties concluded outside of the EU framework rather than following the traditional community method and rather than resorting to EU law-based solutions. In parallel, the Juncker Commission radically reduced the number of legislative initiatives in comparison to its predecessor under the headline of ‘Doing Less More Efficiently’ (Juncker 2014). Consequently, the EP was not able to fully realise the influential role of an equal of the Council that successive treaty reforms had promised. The increasing differentiation of the EU has also complicated the role of the EP: its central function as the democratic institution at the heart of the Euro-polity is somewhat compromised by the many opt-outs of individual member states, often in key policy areas. The fact that neither the Eurozone nor the Schengen area aligns with the formal membership of the EU means that the EP is not readily acceptable as the only institution that provides the democratic legitimacy for decision-making in these cases (Cooper and Smith 2017; Barrett 2018), even if the European Commission regularly reaffirms the EP’s status of the sole organ for parliamentary legitimacy within the EU (inter alia Commission December Package). In fact, research has demonstrated that the dialogue between the EP and the European Central Bank (ECB) has established an effective accountability mechanism (Torres 2013; Fromage and Ibrido 2018). However, neither involving in its work Members of the European Parliament (MEPs) elected in member states that have opted out of these policies, nor excluding these from such decisions—even though they have been elected to represent the common European interest (Article 14-2 TEU)—would seem to be a strategy that provides sufficient legitimacy for EU decision-making in a policy area that

 INTRODUCTION 

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has become increasingly politicised. Consequently, there have been proposals to set up new, dedicated democratic institutions that precisely match the jurisdiction covered by a specific policy area (Kreilinger and Larhant 2016). The idea of a ‘third chamber’ next to Council and Parliament for the Eurozone has been proposed to overcome this dilemma (Calliess 2015). These limitations and concerns about future developments should however not distract from the EP’s remarkable rise to becoming a powerful player on the European level, a status that was further cemented by the stronger relationship that EP and Commission developed as a consequence of the EP electing the Commission President, and the subsequent ‘coalition agreement’ between the Alliance of Liberals and Democrats for Europe (ALDE), European People’s Party (EPP) and Socialists and Democrats (S&D) groups (Euractiv 2014). It formed the basis for the intended cooperation between the two institutions during the five years of Jean-Claude Juncker’s term as Commission President. Compared to the central role played by the EP in the post-Maastricht era, the involvement of national parliaments in EU affairs is a more recent and more complex affair. It is a development that also owes much to the Lisbon Treaty, both in terms of the origins of this instance of treaty reform in the 2002–2003 Constitutional Convention which directly involved national Members of parliament (MPs) in deliberations about the revision of the treaty, and in terms of the ‘revolution’ the new Treaty has engendered for parliaments (Raunio 2011). Through the new provisions it contained, in particular the creation of the so-called Early Warning System—a novel procedure allowing national parliaments to scrutinise EU draft legislation for subsidiarity breaches—national legislatures for the first time gained a formal standing in the EU treaties (Kiiver 2012). Even if the ‘yellow card’ procedure has rarely been activated in the first decade after Lisbon, it heightened the attention that national parliaments would give to European affairs and thus transformed quite fundamentally the relationship between Brussels and national chambers, and between them and their national governments (Gattermann and Hefftler 2015; Auel and Christiansen 2015). The post-Lisbon era then has been a watershed for the European engagement of national parliaments which had not so long ago been considered as “losers” of the integration process (Maurer and Wessels 2001). Even if the role of national parliaments at the European level remains largely advisory, and even if their involvement is uneven across the member states of the EU, their direct interaction with the EU institutions has become more frequent and has involved an ever-increasing

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number of institutions (Fromage 2018a, b). For instance, the 2010s have seen a remarkable rise in interparliamentary cooperation across national boundaries and governance levels in Europe, and national parliaments have submitted more than 3000 contributions to the European Commission in the framework of the Political Dialogue. At the extreme end of this development, national parliaments rose to prominence in fundamental debates about limiting the transfer of competences to the European level in the mid-2010s, with the proposals for a “red card” system allowing individual national chambers to block the adoption of unwanted European legislation. The potential introduction of an (indirect) right of legislative initiative in the form of a ‘green card’ has also been intensively debated (Groen and Christiansen 2015). While these extreme ideas did not translate into actual reforms at the time of Brexit, national parliaments do now conduct subsidiarity checks on draft legislative acts transmitted to them directly by the European Commission as a matter of routine. They have also become more deeply involved in the ratification of the trade and investment agreements the EU signs with third countries, in particular since the jurisprudence from the Court of Justice of the EU has determined that so-called mixed agreements require approval both at the European and at the national levels (CJEU 2017). Indeed, as the experience of the Comprehensive Economic Trade Agreement (CETA) agreement with Canada demonstrated, this development also extends to the Belgian regional parliaments while, in other member states, regional parliaments may need to be informed (Crespy 2016). Yet, also with regard to national parliaments, the past decade has not been a story of unmitigated success. The Eurozone crisis, in particular, has had a mixed impact on the influence of national parliaments. In some countries—Germany is a case in point—the already strong standing of parliaments was further expanded in the context of the adoption or the constitutional review of the often controversial legislation that underpinned the EU’s crisis management (Auel and Höing 2015). However, in other domestic contexts, the shift of decision-making to intransparent, intergovernmental fora such as the Eurogroup, and the empowerment of technocratic governance in the context of the Troika, meant that national parliaments became increasingly marginalised (Maatsch 2015). Generally speaking, the crisis had the effect of exacerbating existing inequalities among the national parliaments in the EU: strong parliaments acquiring additional powers, and weaker parliaments becoming more powerless vis-­ à-­vis their respective executives.

 INTRODUCTION 

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Despite such observations about the varied impact of European developments on national parliaments, and their uneven involvement in the process of scrutinising European legislation, the decade after Lisbon has seen a fundamental shift in the Europeanisation of national parliaments. Rather belatedly, compared to other institutional actors, they have become part of the governance structure of the EU, and even if their influence is not often evident, their presence in the EU has certainly been felt and increasingly visible (Christiansen et  al. 2014). What matters more here than the direct role that national parliaments have played in Brussels is the degree of emancipation that has occurred in their relationship with national executives, with an improved access to information and greater opportunities to scrutinise and even mandate ministers attending Council meetings they have—at least in some member states (Gattermann et  al. 2013). This matters in a range of policy areas and provides the background also to the way in which national parliaments have been able to engage with member state governments in the Brexit process.

3   Brexit, Parliaments and Citizens Under Article 50, the EP is formally required to consent to any agreement that the EU reaches with a state seeking to leave the Union, and this clearly provides the Parliament with influence also over the Brexit negotiations, even if, formally, its participation only intervenes at the ratification stage. As with other matters of a constitutional nature, this formal say on the withdrawal agreement has energised MEPs into having an influential role in the process. Soon after the UK government submitted its notification under Article 50, the Parliament’s Conference of Presidents set up a “Brexit Steering Group” composed of six leading MEPs and chaired by Guy Verhofstadt, leader of the ALDE group in the EP. Guided by this steering group, the EP attentively followed the negotiations and issued motions and opinions on a regular basis, and indeed determined its own ‘red lines’ that would need to be met in order for it to provide its consent to the eventual agreement (European Parliament 2017). Consequently, this volume includes a thorough examination of the way in which the EP was involved in the Brexit process. Next to this analysis of the EP’s participation, national parliaments, both from the UK and the EU27, are also considered. The role they played in scrutinising the Brexit process needs to be seen against the background of a post-Lisbon, post-crisis landscape of significant diversity

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across legislatures in the EU described above. The manner in which national parliaments are formally empowered, institutionally capable and politically motivated to oversee the Brexit negotiations conducted by the executive branches differs from one member state to another, and thus requires the examination of the particular circumstances in individual domestic contexts. For this reason, this volume contains a number of case studies looking at the particularities of specific member states. These cases have been chosen with a view to study a range of different national systems—unicameral as well as bicameral; federal as well as unitary; debating as well as working parliaments—while also ensuring that those countries for which Brexit has a particular significance (e.g. Germany/manufacturing industry; Spain/Gibraltar; Luxembourg/financial services; Ireland/ Northern Irish border; Poland and the Czech Republic/free movement of citizens) are examined. A very special case in this regard is of course the UK itself—it is here that the anticipated impact of the decision to leave the EU was considered to be most far-reaching, and where the issue was most controversial and politicised. As discussed above, Brexit has not only seen a population divided, but also exposed divisions within the main political parties and indeed the political establishment more generally. It comes as no surprise, therefore, that it has also pitched the UK parliament against the government, and indeed put the two Houses of Parliament at loggerheads on various occasions. The situation in the UK is further amplified by the peculiar nature of the unwritten British Constitution which has given rise to disputes about the role of parliament in the context of Brexit, as well as by the importance of parliamentary sovereignty in the UK (Gordon 2016). It took heated public debates, judicial challenges and backbench rebellions to overturn the government’s initial position that parliamentary approval for the UK’s withdrawal from the EU was not required. In the process, the UK parliament has become a central focus for debates about the nature of Brexit, and the key location for ultimate decision-­ making in this matter. In recognition of this significance, three chapters in this volume are devoted to distinct aspects of the role of parliament in the UK decision-making process on Brexit. This includes examinations of both the House of Commons and the House of Lords, of the parliamentary scrutiny of the executive and of the internal politics in each House, leading to discussions of the role of committees and the nature of party politics. Taken together, these chapters demonstrate the massive influence that the UK parliament has had on the Brexit process and the shape of the final agreement.

 INTRODUCTION 

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Beyond this examination of the functioning of the EU and its member states as a system of representative democracy on multiple levels, it also needs to be recognised that the Brexit process has also been impacted by elements of participatory democracy. In the UK, starting with the June 2016 referendum itself, a high degree of popular mobilisation, and indeed a new wave of populism, was engendered around this issue (Iakhnis et al. 2018). Both the original success of UK Independence Party (UKIP) and the wider “Leave” movement, and subsequently the momentum building in support of a second referendum—presented as a “People’s Vote”—demonstrated the manner in which parliaments ceased to be seen as the only relevant arena for democratic decision-making (Donnelly 2018). While at the EU level there are no opportunities for referendums, the Lisbon Treaty introduced the new instrument of a ‘European Citizens Initiative’ (ECI) (Mayoral 2011), and this book includes one contribution examining the manner in which the ECI and other instruments of citizens’ participation have been used in the context of Brexit.

4   Conceptualising the Relationship Between Brexit and Democracy The various arenas in which democratic scrutiny of Brexit decision-making could take place—the UK parliament, the national parliaments in the EU27, the EP and the mobilisation of citizens—are very diverse. The various institutions are all embedded in different constitutional settings, have developed their distinct political cultures and consequently operate with vastly different procedures, capabilities and motivations. Furthermore, Brexit has an uneven impact across the EU, be it with a view to the socio-­ economic consequences, with respect to questions of legal and constitutional principles, or with regard to issues of identity and values. This high degree of diversity means that a single framework for analysis is neither warranted nor likely to be workable—something that is further challenged by the fact that this topic requires a multi-disciplinary approach involving both legal scholars and social scientists. Yet at the same time, it remains preferable to approach the study of parliamentary scrutiny across Europe in a systematic manner to be in a position to not only make country- or institution-specific statements about the impact Brexit has had but also identify general patterns. The approach chosen here to overcome this dilemma is the identification of a set of common questions, as already indicated above, and the development of a number of conceptual dimensions across which the authors address

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a set of common issues and questions in their respective chapters. In particular, each chapter—as far as possible in the context of its specific subject-matter—addresses four distinct dimensions along which the involvement of parliaments in the Brexit process, and its impact on the institution, can be analysed. First, a constitutional dimension, relating to the way in which the unique challenge of Brexit interacts with long-standing tensions in the relations between executives and legislatures (Fromage and Ibrido 2018). A focus on this dimension includes chapters addressing questions such as “How does the executive-legislative relationship play out over Brexit?”; “Does Brexit provide opportunities for parliaments to gain new influence over EU affairs, or does it lead to (further) marginalisation?” and “Does the practice of parliaments’ involvement in the process match our expectations in terms of their constitutional powers?” Second, a procedural dimension, concerned with the nature of the process of the Brexit negotiations, the interactions between the various actors involved in this process and the rules governing this process. This entails the need to address questions such as “To what extent are MPs and MEPs able to influence the process and the direction of negotiations, as opposed to merely having a vote on the outcome?”, “What is the balance between formal and informal arrangements in the scrutiny of Brexit?” and “Do the procedural rules empower or disenfranchise parliaments?” Third, a party-political dimension, focused on the degree to which political parties play a significant role in the context of Brexit. This facilitates an examination of interactions that goes beyond the image of parliaments as single actors and opens up perspectives on divisions within parliaments as well as linkages across different institutions and multiple levels of governance. It involves raising questions such as “To what extent do majority/governing parties and opposition parties approach Brexit scrutiny differently?”, “Does Brexit provide opportunities for opposition parties to exert influence they might otherwise not have?” and “To what extent is Brexit an opportunity for Eurosceptic parties to mobilise ­opposition to the EU, or for pro-European parties to marshal support for further integration?” And, fourth, a national and territorial interest dimension which comprises the issue of actors—parliaments, party groups or individual MPs—projecting views in the context of Brexit that reflect particular interests specific to the state or the territory they represent. This focus leads to questions such as “Does the activity of national parliaments

 INTRODUCTION 

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reflect the configurations of national interests of individual states, or of regional interests within these?”, “Does the involvement of parliamentary actors help to shape the national interests being considered vis-àvis the UK?” and “Is there any evidence of organised interests within member states, or at the European level, advancing particular societal or commercial interests?” These four dimensions, and the set of questions associated with each of them, provide a common thread that will be pursued throughout the contributions to this book. At the same time, the various chapters will address the particularities of the specific cases at hand and provide an in-depth analysis of the manner in which the EP and national parliaments have reacted to the challenge of Brexit. In the following section, the contribution made by each chapter will be briefly summarised, before a concluding section then highlights some of the aggregate findings and offers a discussion of the future outlook with regard to executive-legislative relations in the EU after Brexit.

5   Contributions to This Volume The analysis conducted through the contributions of this book is structured around the arenas of parliamentary scrutiny of Brexit introduced above: in the first part, the roles of the two Houses of Parliament in the UK are being discussed; in the second, the focus is on national and, in some cases, regional parliaments in the remaining EU member states; and the third part is devoted to developments at the EU level, and specifically the EP and Citizens’ participation in the EU arena. The first part of the book, addressing the role of the UK parliament in the Brexit process, consists of three contributions. Louise Thompson and Ben Yong (2019, in this volume) discuss in their chapter the type and quality of parliamentary scrutiny with a particular focus on the passage through parliament of the European Union (Notification of Withdrawal) Bill in the 2016–2017 session. Their analysis demonstrates the ambiguity of the concept of scrutiny, its contingency upon a legislature’s constitutional and procedural rules, as well as the stances of particular actors—including government, opposition, parliamentary committees and outside observers. Their analysis finds that the quality of parliament’s scrutiny of the bill shifts, depending on who is asking the question, their objectives, the object of their scrutiny and the forum in which the question is being asked.

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Philip Lynch et al. (2019, in this volume), in their chapter, explore the wider issues concerning the role of Parliament in amending Brexit-­related legislation. Drawing on extensive data from interviews with participants, they explore in particular the role of House of Commons’ select committees in the Brexit process. Their research finds that while the executive-­ legislative relationship has not fundamentally changed, divisions within the two largest political parties and the government’s minority status after the 2017 general election have meant that the executive has had to make concessions to its own backbench MPs on both sides of the referendum debate, in order to ensure the passage of legislation. Select committees have been influential at times through common themes emerging in some of their reports and their ability to highlight issues not previously on the agenda. At the same time, however, they have also been undermined to some degree by divisions between committees on the leave-­remain and core-periphery dimensions and within the Brexit committee. In the third chapter of this first part, Julie Smith (2019, in this volume) explores the changing dynamics of parliament-executive relations in light of Brexit, focusing primarily on the role of the upper chamber, the House of Lords. Here the government does not have majority, thanks to the unusual methods of appointing peers, many of whom sit as cross-­benchers, outside the normal party system. The chapter examines the government’s ability to get legislation through the Lords, with particular reference to the EU Notification of Withdrawal Act 2017 and the EU (Withdrawal) Act of 2018. The second part of the book contains five chapters dealing with national parliaments in the remaining member states, with special emphasis on those member states that are likely to be particularly affected by Brexit— and hence where parliaments could also be expected to play a major role. Vanessa Buth et  al. (2019, in this volume) present in their chapter the results of comparative research on the role of the German, Czech and Luxembourgish parliaments in the Brexit process. The three cases exhibit a high degree of diversity in terms of these member states’ geographical location and size, and thus also assess the developments in member states with different levels of governmental influence in the Brexit negotiations. The focus of this comparative study is on the formal powers of the respective parliaments, their actual mobilisation and the key dynamics that mark their scrutiny of the Brexit negotiations. Subsequent chapters provide insights derived from in-depth single-­ country case studies. Vivien Sierens and Nathalie Brack (2019, in this volume) examine how Brexit has been addressed by national and regional

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parliaments in Belgium. The chapter is structured around four key questions corresponding to four dimensions of parliamentary scrutiny: first, the constitutional dimension, how does the executive-legislative relationship play out over the issue of Brexit in Belgium? Second, the procedural dimension, what is the impact that parliaments can have on EU affairs in general, and on Brexit in particular? Third, the party-politics dimension, do political parties emphasise the same issues across different levels and depending on their role as government or opposition parties? And, fourth, the national interest dimension, how does the attention paid by regional and federal parliaments reflect the configurations of national interests in a multi-level setting? Karolina Borońska-Hryniewiecka (2019, in this volume) deals in her chapter on Poland with a member state that faces with Brexit the loss of one of its most important EU partners, and is politically and economically deeply affected by the departure of the UK. The research on the actual engagement of the Polish parliament in these procedures reveals that its role in the process is limited to mere monitoring and receipt of governmental information, despite the parliament’s fairly strong scrutiny powers in EU affairs. The analysis shows that while the members of parliament are not able to influence the process by mandating the executive, the level of politicisation of Brexit in the parliamentary arena is quite high, with the governing and opposition parties exploiting the topic for their own political gains. Ireland is arguably the member state most directly and extensively affected by Brexit, be it through the anticipated economic impact of Britain leaving the Single Market or the implications of changes at the border with Northern Ireland. Gavin Barrett (2019, in this volume) examines in his chapter how this prospect has been reflected in the activities of the Irish legislature, the Oireachtas. Raising questions about the influence that Oireachtas members have been able to exercise on the government position on Brexit, and whether the legislature brought any added value to this process. This chapter seeks to answer such questions while examining the constitutional, procedural and party-political dimensions of Brexit in Ireland. A final case study from among the EU27 is provided by Antonio Bar Cendón (2019, in this volume) on the Cortes, the Spanish Parliament. The chapter studies how government-parliament relations have played out over Brexit, reveals how the Joint Committee for the EU has centralised these relations and discusses how limited the Parliament’s influence on the government’s position in the negotiations with the EU has been. It also

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underlines that the position of the political parties with respect to Brexit did not show great differences—the common position being one of rejection—and how the Cortes sought to gather information about public opinion and particular interests through the appearances of experts, professionals, public officials and representatives of various social groups summoned to appear before the Joint Committee. The final part of the book moves the level of analysis to the EU. Two chapters here focus on the EP. First, Monika Brusenbauch Meislova (2019, in this volume) presents in her chapter research on the role of the EP in the Brexit process and outlines the opportunities and challenges that this implies. The analysis focuses firstly on how the EP has reacted institutionally to Brexit (i.e. in terms of setting up special committees or working groups) and secondly on the relationship between the EP and other EU institutions, reflecting on the interinstitutional balance and dynamics in the withdrawal process. Moving then on to the extent to which the EP is able to influence the withdrawal process as opposed to only giving or withholding its consent to any final deal negotiated between the British government and the European Commission, it also examines the balance between the EP’s formal and informal role(s) in the Brexit process. If the previous chapter is concerned with the impact that the EP has had on Brexit, the following chapter by Jan Claudius Völkel (2019, in this volume) is focused on the reverse question, namely, the impact that Brexit has had on debates in the EP. Taking as an empirical testing ground the attitudes of MEPs to relations between Europe and the countries of the Middle East and North Africa, that is, the so-called MENA region, the chapter reveals how debates in Britain between “remainers” and “leavers” also reverberated among the 73 UK MEPs. Brexit supporters promoted fundamentally different ideas about the growing challenges in the EU’s southern neighbourhood compared to those who supported Britain’s EU membership. UK MEPs were particularly disunited about whether b ­ orders for refugees should be opened or closed, whether Muslims posed a threat or an enrichment for Europe’s societies and whether closer cooperation in EU justice and home affairs led to higher or lower security. In a final chapter that moves the analysis beyond the realm of parliaments, Natassa Athanasiadou (2019, in this volume) examines the available mechanisms for citizens and representative associations to scrutinise and participate in the Brexit negotiations at the EU level. Effective citizen scrutiny and participation presuppose transparency and access to information. The chapter therefore first identifies what means have been used to

 INTRODUCTION 

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inform the public throughout the process. Subsequently, the different institutional forms of EU citizens’ direct participation in the context of the Brexit negotiations are examined. As an overall aim, this chapter assesses the standards which the Brexit negotiations have set and the shortcomings which remain with respect to openness, transparency and citizens’ involvement at the EU level.

6   Conclusions and Outlook Taken together, the contributions to this volume provide a comprehensive overview of the manner in which the Brexit process has been scrutinised in the various arenas. While for practical reasons not all member states could be included in this account, developments in key member states and an appropriate cross-section of different national systems were analysed. The UK parliament and the EP are special cases in this regard due to the significance that Brexit has for these two institutions in particular, and the contributions to this book indeed demonstrate that it is also in these cases that the impact of parliamentary involvement has been greatest. In both Westminster and Brussels/Strasbourg, political agency turned the narrow involvement that parliaments formally had into genuine influence. The UK parliament travelled furthest in this regard—from initial attempts by government to avoid parliamentary involvement altogether to ultimately having a decisive role in the final outcome. Looking at the questions that were raised above, the contributions to this volume show that we have not witnessed any upheavals in terms of constitutional change. Instead, the experience of Brexit has largely confirmed the existing arrangements—the experience of parliamentary scrutiny remained within the formal confines of constitutional stipulations. National parliaments have made use of their powers to varying degrees, but there had been no perceived need or apparent desire to expand on these. Only in the UK itself, where the flexibility of the unwritten constitution and the reference to the royal prerogative provided the government with an opportunity to take decisions without reliance on parliamentary approval, was there a test of constitutional principles. On the one hand, a minority of MPs was defeated in their attempt to allow Parliament to direct the government’s negotiating strategy (Lynch et al. 2019, in this volume). On the other hand, Parliament was eventually empowered to have a “meaningful vote” on the outcome of negotiations, ensuring that debates in Parliament, and the majorities available for different Brexit scenarios,

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became influential in guiding the process. In the case of the EP, the challenge for MEPs was to find a way of turning the requirement of giving consent on the final agreement into actual influence in shaping the negotiating stance of the EU27. MEPs succeeded in doing so through a variety of means, thus demonstrating their long-held ability to be innovative in the use of their formal powers (Brusenbauch Meislova 2019, in this volume). Similar observations can be made with regard to the procedural dimension outlined above. Brexit, however extraordinary as an event, did not fundamentally change the arrangements that parliaments adopted internally, or their relations with the executive. In the national parliaments of the EU27, it was dealt with according to the normal procedures for the scrutiny of EU affairs already in place, whereas, in the UK, the relations between parliament and government, and between upper and lower chambers, played out in terms of the—often uncertain—majorities for or against the government. However, in the UK, the absence of a fixed definition of parliamentary scrutiny meant that there was considerable contingency in the way in which the government was held to account over its stance in the Brexit negotiations (Thompson and Yong 2019, in this volume). Yet, the existence of such contingencies implies that party politics—and in particular disagreements between governing majority and opposition— might have had special significance. In the UK, the parliamentary scrutiny of Brexit certainly had a strong party-political dimension, not only because opposition parties to a large extent voted consistently against the government. This also gave the House of Lords a distinctive role, given that here the government did not have a majority (Smith 2019, in this volume). In the Commons, party politics mattered a lot, especially when after the June 2017 general election, the government relied on the support of the DUP, and therefore this party’s particular agenda gained significantly in terms of its influence on the government’s negotiating strategy. However, the ­overarching impression arising from the study of the way in which the House of Commons handled Brexit was the internal divisions in the main political parties, and crucially among the Conservative members. The depth and extent of these divisions led to a situation in which the usual government/opposition split was to a large extent overlaid with a soft/ hard Brexit positioning of MPs across all the parties in the chamber. Elsewhere, however, the contributions to this volume show that party politics was not a major factor in either national legislatures or the EP. On the whole, political parties across the spectrum supported governments in their stance with regard to Brexit, or at least did not challenge the position

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that was adopted (Buth et  al. 2019, in this volume). In some member states, debates about Brexit in national parliaments fuelled existing politicisation of the European issue in the chamber—the Polish Sejm being such a case (Borońska-Hryniewiecka 2019, in this volume). But by and large national consensus on Brexit prevailed across the EU27, and similarly the EP also maintained a large cross-party majority in favour of its adopted positions. The limited role that party politics appear to have had in the Brexit process indicated that national interest (or, in the case of the EP, the common European interest) has been a stronger determinant of parliamentary behaviour than party politics. MPs and MEPs appeared to have concluded that Brexit was not an issue worth contesting, given the national and indeed wider European interest at stake. In the UK, the same could be said about the House of Lords which, due to its unelected character, was also in a position to stress more on the interests of the country as a whole rather than emphasise party-political differences, as was the case in the Commons (Smith 2019, in this volume). One special case here is that of Belgium, where the division of society into distinct linguistic communities is reflected in parliamentary institutions at both the regional and the national levels. Here, parliamentary debates about Brexit brought the different regional perspectives on Brexit to the fore (Sierens and Brack 2019, in this volume). When considering what Brexit teaches us about parliamentary scrutiny of EU affairs after Lisbon, it should first be noted that the three groups of parliaments considered in this volume—UK, EU27 and the EP—are in significantly different positions. Only the UK parliament and the EP have a strong say: as shown by the chapters on the EU27 parliaments included here, their powers have remained fairly limited so far, even if they have shown great interest in the Brexit negotiations. This is because the EU27 parliaments do not have to give their consent to the “divorce agreement”: They will only be involved if and when the future “mixed agreement” regulating the future EU-UK relationships is concluded. As exemplified by the Irish and the Spanish cases, even where member states have significant interests at stake, their parliaments have not mobilised as much as could have been anticipated; they have not made a full use of the tools they have at their disposal and have mostly been reactive rather than proactive (Barrett 2019, in this volume). By contrast, for the UK parliament, a lot has been at stake, and both of its chambers have been actively scrutinising, and seeking to influence, the negotiations.

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Beyond this, as shown by Thompson and Yong (2019, in this volume), it is difficult to assess the effectiveness of parliamentary scrutiny because in the absence of a clear definition of scrutiny, its impact eventually depends on what the objectives of the scrutineers were in the first place. Furthermore, executive-legislative relations in the context of Brexit also differ significantly between the UK and the EU27. In the UK, the relationship between Parliament and government has been tainted with several controversies and disagreements, both as to the way in which the withdrawal negotiations should be conducted and concluded, as well as concerning the nature of the future relationship between the UK and the EU. In fact, Parliament tried to avoid ‘an executive power grab’ (Lynch et al. 2019, in this volume). By contrast, in the EU27, Brexit has not (yet) been a subject of major disagreement between parliament and government; perhaps, it will turn into one once the negotiations about the future relationship with the UK start, if they ever do. This notwithstanding, the EU27 parliaments have played an active role in scrutinising their government’s actions and, for some of them, in trying to act as policy shapers. It follows thus that the executive-legislative relations in EU affairs have not been significantly altered by the Brexit negotiations, despite their high salience and the serious consequences these bear for the future of the EU as a whole. A common understanding of the national interests has been maintained, and no major cleavage between majority and opposition has, thus far, emerged in several of the member states analysed here, with the notable exception of Poland where Brexit has been heavily politicised (Borońska-Hryniewiecka 2019, in this volume). In fact, in Belgium it is parliamentarians from the majority that have been most active in posing questions to the executive (Sierens and Brack 2019, in this volume). In sum, as noted by Buth, Högenauer and Kaniok, those parliaments have not ‘used Brexit as an opportunity to extend their powers vis-à-vis government’ (2019, in this volume). With a view to the future, it is interesting to note that the governments of the EU27, and of the UK alike, may gain more powers in the post-­ Brexit era. As measures will need to be adopted swiftly to deal with the— anticipated as well as unintended—consequences of Brexit, parliaments may be sidelined in the process. In fact, some parliaments already began during the negotiations to empower their respective governments to adopt the measures necessary to guarantee a smooth post-Brexit period, leading to a relative strengthening of the executive vis-à-vis the legislative branch. The French parliament, for instance, already prepared prior to the

 INTRODUCTION 

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conclusion of the Brexit negotiations a delegation of power to the government for it to adopt the necessary measures, even if their adoption affects the legislative domain (“domaine de la loi”). This legislative proposal, additionally, followed the accelerated legislative procedure. It follows that the status quo we have observed so far may be challenged in the post-­ Brexit environment, and that therefore the executive dominance that had prevailed pre-Lisbon may return. It is interesting to note that the EP’s role is peculiar in that regard: Since it has to approve the “divorce agreement”, it has been able to play an important role, even if no formal provisions existed in this sense. In fact, it has seized this opportunity to reaffirm its position in international negotiations and may prove to be an influential actor in future relations between the EU and the UK. At the time of writing, in late 2018, it is uncertain what demands the governance of future EU-UK relations will place on national parliaments. It may well be that it will merely amount to the occasional ratification of intergovernmental treaties in fields such as security, trade, investment or regulatory cooperation—bringing with it opportunities for parliamentary scrutiny as well as certain risks that such powers to approve third-party agreements may also throw a spanner into the works of a smooth cooperation between the EU and the UK. Then again, future EU-UK relations may also be a much more continuous engagement, with selected parts of EU legislation applying to the UK, either for a particular duration or indefinitely. This will mean, especially for the UK parliament, a serious test of its capacity to scrutinise such legislation since the method of its adoption will most likely be less transparent than anything that had hitherto been produced in the EU context. The fact that the British people will not, after Brexit, be represented in, and by, the EP would make the effectiveness of the scrutiny exercised by the Commons and the Lords under such a scenario particularly important from a democratic perspective. It remains to be seen what the nature of future EU-UK relations will be, and how parliaments in the UK, in the EU27 and on the EU level will be involved in it. But it can be confidently concluded already at this stage that the need for parliamentary scrutiny does not end with the formal withdrawal of the UK from the EU. Instead, the new relationship that the UK as non-member will (seek to) forge with the EU in the future will further increase the complexity of the EU governance, and hence constitute new challenges for parliaments to push for the transparency of

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decision-­making and to hold executives to account. Indeed, the UK is likely to become an extreme case of the wider pattern of ‘external governance’ which sees the EU projecting its rules beyond its own borders (Lavenex and Schimmelfennig 2009). Brexit has been a momentous event for Europe, also from the perspective of parliamentary scrutiny. Yet the demands on parliaments at both the national and the European levels to reconcile Brexit and democratic governance do not end with the withdrawal of the UK from the EU. The greater challenges for parliaments to ensure the legitimacy of this relationship may still lie ahead.

References Athanasiadou, N. (2019). Facilitating the Participation of EU Citizens in the Brexit Negotiation Process. In T.  Christiansen & D.  Fromage (Eds.), Brexit and Democracy: The Role of Parliaments in the UK and the European Union. London: Palgrave Macmillan. Auel, K., & Christiansen, T. (2015). “After Lisbon: National Parliaments in the European Union”, West European Politics, 38 (2), 261–281 Auel, K., & Höing, O. (2015). National Parliaments and the Eurozone Crisis: Taking Ownership in Difficult Times? West European Politics, 38(2), 375–395. Bar Cendón, A. (2019). The Spanish Parliament and Brexit. In T. Christiansen & D. Fromage (Eds.), Brexit and Democracy: The Role of Parliaments in the UK and the European Union. London: Palgrave Macmillan. Barrett, G. (2018). European Economic Governance: Deficient in Democratic Legitimacy? Journal of European Integration, 40(3), 249–264. Barrett, G. (2019). The Irish Parliament and Brexit. In T.  Christiansen & D. Fromage (Eds.), Brexit and Democracy: The Role of Parliaments in the UK and the European Union. London: Palgrave Macmillan. Beach, D. (2007). The European Parliament in the 2000 IGC and the Constitutional Treaty Negotiations: From Loser to Winner. Journal of European Public Policy, 14(February), 1271–1292. Bickerton, C. J., Hodson, D., & Puetter, U. (2015). The New Intergovernmentalism: States and Supranational Actors in the Post-Maastricht Era. Oxford: Oxford University Press. Biesenbender, J.  (2011). The Dynamics of Treaty Change: Measuring the Distribution of Power in the European Union? European Integration Online Papers, 15, 1–24. Borońska-Hryniewiecka, K. (2019). The Polish Parliament and the Scrutiny of Brexit in Poland. In T.  Christiansen & D.  Fromage (Eds.), Brexit and Democracy: The Role of Parliaments in the UK and the European Union. London: Palgrave Macmillan.

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Brusenbauch Meislova, M. (2019). The European Parliament in the Brexit Process: Leading Role, Supporting Role or Just a Small Cameo? In T.  Christiansen & D.  Fromage (Eds.), Brexit and Democracy: The Role of Parliaments in the UK and the European Union. London: Palgrave Macmillan. Buth, V., Högenauer, A.-L., & Kaniok, P. (2019). The Scrutiny of Brexit in National Parliaments: Germany, Luxembourg and the Czech Republic Compared. In T.  Christiansen & D.  Fromage (Eds.), Brexit and Democracy: The Role of Parliaments in the UK and the European Union. London: Palgrave Macmillan. Calliess, C. (2015). The Governance Framework of the Eurozone and the Need for a Treaty Reform. In F. Fabbrini, E. H. Ballin, & H. Somsen (Eds.), What Form of Government for the European Union and the Eurozone? Oxford: Hart Publishing. Christiansen, T. (2011). The European Union After the Lisbon Treaty: An Elusive “Institutional Balance”? In A.  Biondi & P.  Eeckhout (Eds.), EU Law After Lisbon. Oxford: Oxford University Press. Christiansen, T. (2016). After the Spitzenkandidaten: Fundamental Change in the EU’s Political System? West European Politics, 39(5), 992–1010. Christiansen, T., & Dobbels, M. (2012). Comitology and Delegated Acts After Lisbon: How the European Parliament Lost the Implementation Game. European Integration Online Papers (EIoP), 16(13), 1–23. Christiansen, T., Högenauer, A., & Neuhold, C. (2014). National Parliaments in the Post-Lisbon European Union: Bureaucratization Rather than Democratization? Comparative European Politics, 12(2), 121–140. Cooper, I., & Smith, J. (2017). Governance Without Democracy? Analysing the Role of Parliaments in European Economic Governance After the Crisis  – Conclusions. Parliamentary Affairs, 70(4), 728–739. Court of Justice of the EU. (2017). Opinion 2/15. Luxembourg. Crespy, A. (2016, October 28). CETA, Wallonia and Sovereignty in Europe. Euractiv. Available at https://www.euractiv.com/section/trade-society/opinion/ceta-wallonia-and-sovereignty-in-europe/. Accessed 9 Nov 2018. Dinan, D. (2012). The Arc of Institutional Reform in Post-Maastricht Treaty Change. Journal of European Integration, 34(7), 843–858. Donnelly, B. (2018). Brexit: A “Meaningful” Vote for MPs Implies a “Meaningful” Vote for the People. The Federal Trust Blog on Europe. Available at http:// fedtrust.co.uk/brexit-a-meaningful-vote-for-mps-implies-a-meaningful-votefor-the-people/. Accessed 9 Nov 2018. Euractiv. (2014). Grand Coalition Accord Draws Near in EU Parliament  – EURACTIV.com. Available at https://www.euractiv.com/section/eu-priorities-2020/news/grand-coalition-accord-draws-near-in-eu-parliament/. Accessed 9 Nov 2018.

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European Parliament. (2017). Brexit: EP Outlines Its Red Lines on Latest UK Citizens’ Rights Proposals. EP Press Release. Available at http://www.europarl. europa.eu/news/en/press-room/20171108IPR87615/brexit-ep-outlinesits-red-lines-on-latest-uk-citizens-rights-proposals. Accessed 9 Nov 2018. Fromage, D. (2018a). Les parlements nationaux: des acteurs européens en devenir? Politique européenne, 59(1), 122–145. Fromage, D. (2018b). The European Parliament in the Post-Crisis Era: An Institution Empowered on Paper Only? Journal of European Integration, 40(3), 281–294. Fromage, D., & Ibrido, R. (2018). The ‘Banking Dialogue’ as a Model to Improve Parliamentary Involvement in the Monetary Dialogue? Journal of European Integration, 40(3), 295–308. Gattermann, K., & Hefftler, C. (2015). Beyond Institutional Capacity: Political Motivation and Parliamentary Behaviour in the Early Warning System. West European Politics, 38(2), 305–334. Gattermann, K., Högenauer, A.-L., & Huff, A. (2013). National Parliaments After Lisbon: Towards Mainstreaming of EU Affairs? OPAL Online Paper Series, 2013(13). Goldoni, M. (2016). Politicising EU Lawmaking? The Spitzenkandidaten Experiment as a Cautionary Tale. European Law Journal, 22(3), 279–295. Gordon, M. (2016). Brexit: A Challenge for the UK Constitution, of the UK Constitution? European Constitutional Law Review, 12(03), 409–444. Groen, A., & Christiansen, T. (2015). From “Second Chamber” to “Yellow Cards”: Tracing the Ideas on National Parliaments in the EU’s Constitutional Process. In C.  Neuhold et  al. (Eds.), The Palgrave Handbook on National Parliaments in the European Union. Basingstoke: Palgrave. Iakhnis, E., Rathbun, B., Reifler, J., & Scotto, T. J. (2018). Populist Referendum: Was “Brexit” an Expression of Nativist and Anti-Elitist Sentiment? Research & Politics, 5(2). Juncker, J.-C. (2014). A New Start for Europe: My Agenda for Jobs, Growth, Fairness and Democratic Change Political Guidelines for the Next European Commission. Brussels: European Commission. Kiiver, P. (2012). The Early Warning System for the Principle of Subsidiarity. London: Routledge. Kreilinger, V., & Larhant, M. (2016). Does the Eurozone Need a Parliament? Policy Paper 176 of the Jacques Delors Institute, Paris. Lavenex, S., & Schimmelfennig, F. (2009). EU Rules Beyond EU Borders: Theorizing External Governance in European Politics. Journal of European Public Policy, 16(6), 791–812. Lynch, P., Whitaker, R., & Cygan, A. (2019). Brexit and the UK Parliament: Challenges and Opportunities. In T. Christiansen & D. Fromage (Eds.), Brexit and Democracy: The Role of Parliaments in the UK and the European Union. London: Palgrave Macmillan.

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Maatsch, A. (2015). Empowered or Disempowered? The Role of National Parliaments During the Reform of European Economic Governance. Discussion Paper 15/10 of the Max-Planck-Institut für Gesellschaftsforschung, Köln. Maurer, A., & Wessels, W. (2001). National Parliaments on Their Ways to Europe: Losers or Latecomers? Baden-Baden: Nomos. Mayoral, J. (2011). Democratic Improvements in the European Union Under the Lisbon Treaty Institutional Changes Regarding Democratic Government in the EU. Florence: Robert Schuman Centre for Advanced Studies, European University Institute. Monar, J.  (2010). Rejection of the EU-US SWIFT Interim Agreement by the European Parliament: A Historic Vote and Its Implications, The. European Foreign Affairs Review, 15, 143. Rauh, C. (2018). An Agenda-Setter in Decline? Legislative Activity of the European Commission 1985–2016. Paper Presented at the Annual Conference of the European Political Science Association 2018. Raunio, T. (2011). The Gatekeepers of European Integration? The Functions of National Parliaments in the EU Political System. Journal of European Integration, 33(3), 303–321. Ripoll Servent, A. (2014). The Role of the European Parliament in International Negotiations After Lisbon. Journal of European Public Policy, 21(4), 568–586. Shackleton, M. (2017). Transforming Representative Democracy in the EU? The Role of the European Parliament. Journal of European Integration, 39(2), 191–205. Shackleton, M., & Raunio, T. (2003). Codecision Since Amsterdam: A Laboratory for Institutional Innovation and Change. Journal of European Public Policy, 10(2), 171–188. Sierens, V., & Brack, N. (2019). National and Regional Parliaments in the Context of Brexit: The Case of Belgium. In T.  Christiansen & D.  Fromage (Eds.), Brexit and Democracy: The Role of Parliaments in the UK and the European Union. London: Palgrave Macmillan. Smith, J. (2019). Fighting to ‘Take Back Control’: The House of Lords and Brexit. In T.  Christiansen & D.  Fromage (Eds.), Brexit and Democracy: The Role of Parliaments in the UK and the European Union. London: Palgrave Macmillan. Thompson, L., & Yong, B. (2019). What Do We Mean by Parliamentary Scrutiny of Brexit? A View from the House of Commons. In T.  Christiansen & D. Fromage (Eds.), Brexit and Democracy: The Role of Parliaments in the UK and the European Union. London: Palgrave Macmillan. Torres, F. (2013). The EMU’s Legitimacy and the ECB as a Strategic Political Player in the Crisis Context. Journal of European Integration, 35(3), 287–300. Völkel, J. (2019). The Impact of Brexit on the European Parliament: The Role of British MEP’s in Euro-Mediterranean Affairs. In T. Christiansen & D. Fromage (Eds.), Brexit and Democracy: The Role of Parliaments in the UK and the European Union. London: Palgrave Macmillan.

PART I

The UK Parliament and Brexit

CHAPTER 2

What Do We Mean by Parliamentary Scrutiny of Brexit? A View from the House of Commons Louise Thompson and Ben Yong

1   Introduction The referendum of June 2016 had provided a slim mandate for the United Kingdom’s (UK’s) withdrawal from the European Union (EU), but legislation was needed to provide the legal authority for the UK to leave. The European Union (Notification of Withdrawal) Bill (hereafter referred to as the EUNOW Bill) was introduced following the UK Supreme Court’s (UKSC) judgement in R (Miller) v Secretary of State for Exiting the European Union on 24 January 2017. This stated that the government could not trigger Article 50 of the Treaty on the European Union via its prerogative powers. The requirements set out in Article 50 and the impact of leaving the EU on domestic rights meant that only Parliament could initiate the withdrawal process via primary legislation.

L. Thompson (*) University of Manchester, Manchester, UK e-mail: [email protected] B. Yong School of Law and Politics, University of Hull, Hull, UK © The Author(s) 2019 T. Christiansen, D. Fromage (eds.), Brexit and Democracy, European Administrative Governance, https://doi.org/10.1007/978-3-030-06043-5_2

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As the name suggests, the aim of the EUNOW Bill was not to set out the detail of the terms of UK withdrawal. Rather, it would give legal effect to the referendum result, conferring on the UK government the authority to give official notice to the European Council by triggering the Article 50 process. David Davis confirmed this as he introduced the second reading debate for the EUNOW Bill: it is not a Bill about whether the UK should leave the European Union, or, indeed, about how it should do so; it is simply about Parliament empowering the Government to implement a decision already made. (HC Debates, 31 January 2017)

The long title of the Bill also confirmed this: A Bill to confer power on the Prime Minister to notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU. (European Union (Notification of Withdrawal), HC Bill 132 (2016–17))

Indeed, the House of Commons had already supported a motion to trigger Article 50 by the end of March 2017, just six weeks prior to this (HC Debates, 7 December 2016). On paper, then, the bill was simply a means of legislating for something which Parliament had already consented to. In theory, this should have been a straightforward piece of legislation. The EUNOW Bill was introduced in the House of Commons on 26 January 2017, and had its second reading debate the following week (31 January). It was a very short piece of legislation, comprising only two clauses and just 137 words. From the government’s perspective, it was ‘the most straightforward possible Bill’ (David Davis, HC Debates, 31 January 2017). But for others, the bill was highly controversial. Media reports stressed that the short design of the legislation was a deliberate action by the government in order to make the bill ‘bombproof’ and not susceptible to amendment (e.g. Merrick 2016; Reuters 2016). The government, however, insisted otherwise (see, e.g. David Lidington, HC Debates, 1 December 2016, c1674). Parliamentarians had mixed feelings about the importance of the EUNOW legislation. Some Members of Parliament (MPs) spoke of the possibility of a ‘constitutional crisis’ if it were not passed by Parliament (HC Debates, 1 February 2017, c1034), while others saw it as an ­opportunity to ensure that ‘Parliament has a say’ over the entire withdrawal process (ibid., c1042).

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As a result of its importance to MPs and to the wider issue of negotiating the process of Brexit, the EUNOW Bill was scrutinised as a bill of constitutional significance and received its detailed line-by-line scrutiny on the floor of the Commons in a Committee of the Whole House. From a procedural perspective, this meant that rather than being scrutinised by a small group of MPs in a public bill committee, it would be given a more prominent and visible committee stage in which any MP could speak and table amendments on the floor of the House of Commons’ chamber. However, despite many hours of debate and a high volume of amendments from MPs, the bill left the Commons completely unscathed. No amendments at all were made. As Julie Smith discusses in Chap. 4, the EUNOW Bill was challenged again by the House of Lords, before receiving Royal Assent in March 2017. This initial piece of legislation was followed by a much longer and more complex European Union (Withdrawal) Bill in the 2017–19 session, which provided for the repeal of the European Communities Act 1972 (the core enabling legislation for the UK’s accession to the European Communities) and established the process by which existing EU legislation would be retained or modified by government ministers. Further legislation dealing with the complexities of Brexit followed, beginning with the Taxation (Cross Border Trade) Bill which made its way through Parliament during 2018. Given the relative constitutional significance of the EUNOW Bill, the opportunity for all MPs to engage actively in its scrutiny and the widespread discussion of it both within and outside Parliament, it presents an interesting opportunity to explore different perceptions of parliamentary scrutiny. The EUNOW Bill is thus used here as a case study to explore the different qualitative understandings of scrutiny from a constitutional, procedural and party-political perspective, and to begin a more comprehensive assessment of parliament’s scrutiny of the bill, and of the opinions of different actors about how well Parliament carried out its scrutiny role. If we want to assess how well Parliament carried out its scrutiny role, however, we should ask a prior question: what do we mean by parliamentary scrutiny? The answer to that is far from clear. The aim of this chapter is to explore this question, through an examination of views of different parliamentary and extra-parliamentary actors in the period leading up to, during and following the enactment of the EUNOW Bill.

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2   Framing Parliamentary Scrutiny Parliamentary scrutiny would seem to be—to paraphrase Mark Bovens—‘one of those golden concepts that no one can be against’ (Bovens 2007, pp. 447–8). Certainly, there was a consensus about parliamentary scrutiny in relation to the EUNOW Bill: that it was generally a Good Thing.1 Thus, Helen Goodman MP, a Labour backbencher, said during the committee stage of the Bill that the quantity of amendments tabled by MPs showed why ‘debate on parliamentary scrutiny is so important’ (HC Debates, 6 February 2017, c103). But at the same time, MPs from all parties questioned the scrutiny work being performed in the Commons throughout the passage of the bill, with many considering it to be lacking. The suggested reasons for the weakness of parliamentary scrutiny included executive dominance; the limited capacities of Parliament and parliamentarians; limited time and resources. We suggest that parliamentary scrutiny has a number of aspects or components, some of which are more contentious than others. These properties illuminate and complicate three of the four dimensions set out in this book’s introduction: the constitutional, procedural and party-political. First, scrutiny is shorthand for a range of activities and objects to be scrutinised. It may involve examining legislation, executive action, the work of bodies outside Parliament and the executive (such as EU bodies) or a mixture. These activities may differ in substance—and purpose. Thus, although the EUNOW Bill was being scrutinised by the UK Parliament, Parliament had also been scrutinising the process of EU withdrawal through a number of other scrutiny mechanisms, such as oral and written questions to ministers, select committee scrutiny of the impact of Brexit on policy and through debating mechanisms such as opposition day debates. Indeed, as Lynch, Whitaker and Cygan illustrate (Lynch et  al. 2019, in this volume), MPs were creative in their use of procedural devices to try to influence the government’s Brexit policy. Put differently, we should be as clear as possible about what activity is being labelled as ‘parliamentary scrutiny’. Different activities can entail different approaches, requirements and standards. Second, the objective—or objectives—of parliamentary scrutiny matter. The objective determines how scrutiny is carried out, and what the measure of ‘effective’ or ‘good’ scrutiny is. Crucially, the objective may differ 1  See the comments of David Davis, in response to the House of Lords European Union Committee report on parliamentary scrutiny of Brexit (European Union Committee 2016b, para 8).

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according to who the scrutineer is, and what is being scrutinised. If we take the parliamentary scrutiny of legislation, some will argue that is ultimately about keeping the government in check; others may think the objective is apolitical—to improve the effectiveness of legislation; and others again may argue that scrutiny is less about improving the technical quality of legislation, and more about providing political legitimacy and/or informing the public. These objectives are quite different,2 and so the measures of success or ‘impact’ may also differ. In terms of scrutinising the EUNOW Bill, then, what we see is differing views of what scrutiny should involve: discussion, ‘technical’ amendment and general criticism of the bill. Third, there are competing views on the role of politics in the scrutiny process. Much activity which constitutes parliamentary scrutiny is adversarial or partisan—partisan in the sense of scoring party or ‘political’ points, or having some ‘ulterior’ motive. But there is a subset of activities which are seen as perhaps more ‘ideal’, where means and ends are separated. This set of activities involves dispassionate, systematic action, whose measures are ‘objective’, non-political and consensual. This links back to the second aspect of scrutiny. Those who viewed scrutiny as a mostly apolitical activity were more likely to focus on the process issues of the EUNOW Bill; while for those who viewed scrutiny as an inherently political activity, the EUNOW Bill was an opportunity for partisan gain and criticism of the government’s policy towards Brexit. Fourth, parliamentary scrutiny involves change or impact, but the nature of this impact depends largely on the objective of the scrutineer. Influence or impact can range from simply informing relevant parties (Parliament, parliamentarians, third parties, the media and the public) to causing a shift in position by another actor—usually, a change in government policy, or the acceptance of a non-government amendment to a bill. In terms of EU withdrawal, discussion of impact in the lead up to Parliament’s scrutiny of the bill was frequently about the possibility of the Commons saying ‘no’ to the bill entirely and thus preventing its passage. Discussion of amending the content of the bill came later. These are ‘ideal’ properties of scrutiny. No one parliamentary actor will conform entirely to one particular view of scrutiny—they will more likely hold different approaches in balance, prioritising, depending on the context. 2  Of course, arguments could be made (and have been) that a constrained government is a more ‘effective’ government, but this turns on what ‘effective’ means.

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But we can see why there is dissatisfaction with the adequacy of parliamentary scrutiny: people may be talking about different activities, which have different objectives, and therefore different measures of ‘effectiveness’. So parliamentarians engage in different kinds of scrutiny, and employ different standards of success, depending on the circumstances. In terms of the constitutional, procedural and party-political dimensions, this means that we should be careful how we interpret claims that the legislature is marginalised by the executive; that the legislature is not making use of its formal, constitutional powers; or that the legislature is not having an ‘impact’. We have to look more closely at who is doing what, when and to whom. ‘The legislature’—or legislative actors (individual members, parties)—may have chosen to engage in a particular kind of scrutiny appropriate to the subject matter or appropriate at the particular time. Our examination of scrutiny here primarily covers a core forum heavily involved in scrutiny of the EUNOW Bill: the House of Commons’ chamber. In order to gather the views of individual MPs, the Hansard transcripts of the Commons’ debate on the EUNOW Bill were analysed. This included the second reading, committee stage, report and third reading of the bill (31 January–8 February 2017). A content analysis was used to highlight the scrutiny being undertaken. This included top level codes such as expectations, time and scrutiny outcomes. All amendments moved or discussed during the Commons Committee and Report Stage (6–8 February 2017) were also coded. Here, the coding included measures of success or failure (accepted/rejected) as well as ministerial concessions (e.g. to meet, to reconsider, to amend at a later stage). This enabled us to present some descriptive statistics in order to better understand the qualitative comments made in the debate on the bill. But in order to see the particularity of scrutiny in the chamber forum, we juxtapose this with another forum—select committees—and media perceptions of scrutiny taking place in the chamber. We looked at a number of select committees—the Exiting the European Union Committee, the House of Commons’ European Union Scrutiny Committee, the House of Lords’ European Union Committee and the House of Lords’ Committee on the Constitution—for discussions on parliamentary scrutiny in the period prior to and shortly after the EUNOW Bill. In practice, however, select committees try not to replicate the work of the others. Thus, the Commons’ EU Scrutiny Committee has continued to focus on the work of the EU, rather than the UK’s exit from the EU; the Brexit committee was established only as the EUNOW Bill was passing through

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the Houses; and the Lords’ Constitution Committee, which did scrutinise the EUNOW Bill, did not reflect upon what it, or other constituent parts, were doing (Committee on the Constitution 2017). Hence, we focused on the work of the Lords’ EU committee, who published two reports specifically on the matter of parliamentary scrutiny (European Union Committee 2016a, b). At the time this was the only parliamentary body to publish a formal opinion on what the scrutiny of Brexit should look like. Our analysis of the media’s perspective on scrutiny required an analysis of newspaper coverage of the EUNOW Bill. Lexis Nexis was used to search for relevant articles. The time period used began on the day before the bill was debated in the Commons (30 January) and ended the day after the bill’s third reading (9 February 2017), with the search terms ‘Brexit OR withdrawal OR Europe OR EU’ being used. This search returned a total sample of 335 articles, all of which were coded using the same coding frame used for MP contributions. 2.1  The Select Committee We start first with the ‘committee’ forum. It is important to note the institutional context here. At Westminster, select committees are cross-party bodies which primarily scrutinise executive action, and on occasion legislation. They are composed of parliamentarians from different parties or groups, and so achieving consensus can be difficult: often, compromises must be made. Following the 2016 referendum, and prior to the EUNOW Bill, the House of Lords’ European Union Committee (‘the Lords EU Committee’) explicitly addressed parliamentary scrutiny in two separate reports (European Union Committee 2016a, b). The first report was broad, discussing the aims of parliamentary scrutiny over Brexit generally. The second report focused more on details, partly as a reaction to the government’s response to the first report. They reveal how parliamentary scrutiny is understood in one particular legislative forum. In the reports, the EU Committee set out a number of justifications for parliamentary scrutiny of Brexit. First, the Committee insisted it was ‘the right and duty of Parliament to ensure that the negotiations are scrutinised effectively at every stage’ (European Union Committee 2016a, para 5). This view of scrutiny followed from the separation of powers: scrutiny was just something Parliament did, because it was the legislature. Alternatively, it might be that scrutiny was a good in itself. David Davis

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MP, the then Secretary of State for Exiting the EU, endorsed this view (although he equated scrutiny with accountability): I have read your report. … parliamentary accountability … is a good in its own right and does not need justification by our saying that it will make this or that process better. The simple fact of parliamentary accountability is a good thing. (European Union Committee 2016b, para 8)

Second, scrutiny could improve government effectiveness. It could do so in two ways: through questioning and testing, mistakes could be rectified, or a particular position strengthened (European Union Committee 2016b, para 15); or scrutiny could increase the legitimacy of the government’s actions—parliamentary engagement in the process could encourage acceptance of the result by parliamentarians and the public. Thus, the Committee argued that scrutiny would ‘ultimately assist the Government itself, as well as being in the public interest’ (European Union Committee 2016a, para 6). Third, parliamentary scrutiny would ensure accountability. What this meant was mostly implicit. It was partly linked to transparency—the Committee stated that ‘effective parliamentary scrutiny will help to ensure that there is an “audit trail” for future generations’ (European Union Committee 2016a, para 21). For David Davis, however, parliamentary scrutiny would aid in electoral accountability, by making clear who did what and why—hence his view of scrutiny as meaning ‘accountability after the event’ (European Union Committee 2016b, para 9). But the Committee rejected Davis’ elision of scrutiny and accountability as incomplete. Scrutiny had the potential for influence in real time (ibid., paras 18–19). Both reports suggested that scrutiny might take different forms and intensities. So, for instance, the Lords’ EU Committee made clear in its first report that some aspects of the negotiations would not be served by complete transparency: there had to be a balance between transparency and ensuring the UK’s position was not undermined. This meant that the intensity of scrutiny would differ (European Union Committee 2016a, para 22). In the second report, the Lords’ EU Committee noted the different ways in which Parliament could scrutinise executive action in the different stages of withdrawal from the EU—preparation, formal negotiations, ratification and implementation (European Union Committee 2016b, paras 20–81).

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There are two points to emphasise here. The first is that discussions about scrutiny took place within the committee forum. That is, there was pressure to ensure relative cross-party consensus over recommendations— hence, the variety of objectives, which were far from in harmony with each other. The politics of scrutiny were largely suppressed. The Committee remained mostly coy on the question of influence or impact of scrutiny, only becoming more explicit in the face of David Davis’ views of accountability after the fact—and then, only to insist that what mattered was strengthening the government’s position. We should contrast this with the legislative debates over the EUNOW Bill, where comments about scrutiny and the importance of impact tended to divide along party lines. The second point is that the Committee discussed parliamentary scrutiny in relation to the process of Brexit as a whole—not just notification. Both reports were published well before the outcome of the Miller case was known: at the time of the reports’ publication, it was still unclear if the government could invoke the start of the exit process under Article 50 of the Treaty on European Union via prerogative action without the consent of Parliament, or if the consent of Parliament via domestic legislation (i.e. what became the EUNOW Bill) was needed. That meant that discussion of parliamentary scrutiny took place in abstract: there was no need to connect ends to the means. There was no need to reach agreement—to prioritise a particular end. That said, the Committee acknowledged that there were several stages to Brexit, which might require different kinds and levels of scrutiny. Legislation was just one of a number of objects which could (and would) be scrutinised by parliamentarians across the period of EU withdrawal. So we see here acknowledgement that the objectives, intensity, approaches and outcomes of parliamentary scrutiny are context-­dependent. There is no ‘set’ standard of scrutiny: it depends on what ‘Parliament’ thinks is important—and this can depend on all manner of things. 2.2  The Chamber: Government and Opposition Expectations of Scrutiny The floor of the House of Commons is a useful place to uncover what ‘Parliament’ thought was important when scrutinising the EUNOW Bill. MPs offered suggestions as to how the bill’s scrutiny should proceed, and identified what in their view were the main objectives of this scrutiny. These remarks came in the form of questions to the Prime Minister and to

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Brexit Minister David Davis, and continued once the parliamentary debate on the bill got underway. It is important to remember here, though, that the House of Commons is not a unified actor (Yong 2018). Rather at this time it consisted of ten political parties,3 one of whom (the Conservative Party) was in government, and nine of whom were in opposition. What we see is a strong division between the government and opposition parties as to what the objective of scrutiny should be. This government-opposition dynamic is clearly present during the scrutiny of all government legislations in the Commons. But the scrutiny of the EUNOW Bill was more complex than this: there were diverging views about what was being scrutinised. While the government saw the Commons’ role as being nothing more than the scrutiny of a simple piece of legislation, some opposition MPs did not confine their scrutiny to that, viewing their role as one of scrutinising UK withdrawal as a whole. There was thus a continued back and forth in the debates between scrutiny of the bill itself and broader scrutiny of Brexit. For instance, many MPs raised the issue of the negotiations following the triggering of Article 50, seeking information about the government’s priorities, their plans to communicate progress to Parliament and the possibility of parliamentary assent on a final deal (see, for instance, Matthew Pennycook, HC Debates, 8 February 2017, c58). This was something which the government felt to be ‘illogical’ (Mims Davies, HC Debates, 8 February 2017, NC) and not appropriate during the passage of a bill. From the government perspective, the EUNOW Bill was about ‘the triggering process only​—nothing more than the triggering process’ (David Davis, HC Debates, 24 January 2017, c176). Efforts by the opposition to portray the bill as ‘more important than the Bills on the Lisbon treaty and the Maastricht treaty’ (see, for instance, HC Debates, 24 January 2017, c176) therefore made little impact on the ministers responsible for taking the bill through the Commons. The divergence in objectives and expectations between government and opposition MPs could also be seen in scrutiny of the legislation itself. For opposition members, ‘good’ scrutiny was typically equated with tex3  This figure excludes the four Sinn Fein MPs who did not take their seats in the Commons. The Democratic Unionist Party (DUP) are counted here as an opposition party, though it should be noted that in the 2017 Parliament, they are supporting the minority Conservative Government’s legislative agenda on a case-by-case basis.

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tual changes being made to the bill. For instance, before the EUNOW Bill’s committee stage (the first point at which the bill could be amended), MPs sought confirmation that the government would take a positive attitude towards opposition amendments. Labour MP Kate Hoey pressed David Davis to confirm that the government ‘do perhaps want amendments that clarify’ the withdrawal process (HC Debates, 24 January 2017, c168). When the committee stage commenced on the floor of the House of Commons, MPs spoke of their intentions to ‘win with our amendments’ (Jenny Chapman, HC Debates, 6 February 2017, c135) and to ‘provide better legislation’ as a result (Stephen Gethins, HC Debates, 6 February 2017, c79). Thus scrutiny here was seen as adversarial, a battle between the two branches of government and parliament. Government resistance to amendments often frustrates MPs during the committee stage of all legislation (Thompson 2015, pp. 66–67), but this frustration was exacerbated during the committee stage of the EUNOW Bill, because the government’s ownership of the legislation appeared more acute. Joanna Cherry summed this position up nicely, saying that the government ‘tell us how fantastic this wonderful, sovereign mother of Parliaments is, but we are berated for having the effrontery to attempt to amend a Bill. It is preposterous’ (HC Debates, 8 February 2017, c459). Scrutiny was viewed as a zero-sum game by opposition MPs during the debate, particularly from those on the Scottish National Party (SNP) benches. However, some MPs did articulate a more subtle, long-term purpose to scrutiny—one which was more consensual and less immediate. Caroline Flint, for instance, noted that this is ‘part of the purpose of having these [EUNOW Bill] debates in the public arena’, noting that ‘looking again’ may mean revisiting an issue over a longer time period, and that this may be up to ‘two years and beyond’ (HC Debates, 8 February 2017, c486). This was a minority view, but fits more closely with a more iterative form of scrutiny with less partisan objectives (Giddings and Irwin 2005). By contrast, government MPs rarely referred to the likelihood of amendments being accepted or rejected by government. This was not, for them, a measure of effective scrutiny. Rather, where it was discussed, amendments are seen to be in opposition to ‘good’ scrutiny—a device ‘designed purely to waste time and to delay’ rather than to improve the legislation (Kit Malthouse, HC Debates, 8 February 2017, c481). Even before the scrutiny of the bill commenced, Conservative MP Jacob Rees-­ Mogg commented that ‘when they [the opposition] say scrutiny, they

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mean delay’ (HC Debates, 24 January 2017, c176). Similarly, government MPs sought to play down opposition success in scrutinising the EUNOW Bill. For instance, when the government appeared to have made a concession on New Clause 1 (the detail of the parliamentary vote on the outcome of Brexit negotiations), Ken Clarke warned Labour’s Keir Starmer that ‘instantly leaping on a concession may be a little unwise until we are quite clear what it amounts to?’ (HC Debates, 7 February 2017, NC). Opposition MPs stressed quite forcefully that a concession on such a significant piece of legislation should justify an amendment from the government, as though the significance of the concession could only be shown through a physical change to the legislation itself. Alex Salmond, for instance, stated that ‘if one makes a serious announcement in the course of the Committee stage of a Bill of this importance, it should be followed by an amendment’ (HC Debates, 7 February 2017). He came back to this issue later on, saying once again that ‘it might be better to have something in writing in the Bill, rather than all these warm words, cups of tea and assurances’ (HC Debates, 8 February 2017, c473). There was an implication here then that what scrutiny required was contingent on the status of the bill. If opposition MPs espoused an amendment-driven definition of good scrutiny, government MPs instead stressed the view that scrutiny was primarily about open and transparent debate. So references to the time spent debating the EUNOW Bill in the chamber were commonplace. Before the timetable for scrutiny had been released by the whips, David Davis told the House that he wanted ‘as much time as we can possibly get for it to be discussed’ (HC Debates, 24 January 2017, c176). Tellingly, he used the word ‘discussed’, rather than anything which suggested a more change-­ oriented notion of scrutiny. It complemented his comments to the Lords’ EU Committee that scrutiny did ‘not need justification by our saying that it will make this or that process better’ (European Union Committee 2016a, para 8). When the committee stage of the bill began, Mark Harper aligned himself with this view, noting that the House ‘has spent a lot of time, as is appropriate’ debating the bill (HC Debates, 6 February 2017, c64). Here, scrutiny is seen to be fulfilling a legitimation function. There was also a clear difference between the attitude of government MPs and the attitude of the rest of the House. Government MPs suggested that time should be allocated in proportion to the size and length of the bill itself: thus former Chief Whip Mark Harper stated that three days of ‘protected time’ to debate the legislation in committee was ‘if anything, an

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excess of generosity’ for a two-clause bill (HC Debates, 6 February 2017). There was also the view that legislation could be improved without any changes to its wording. Peter Bone, for example, said that ‘no Bill that goes through parliamentary scrutiny does not become, as a result, a better Act of Parliament’ and urged David Davis to set aside appropriate time for debate. Here, once again, the implied objective was legitimation via debate; it followed that there was no mention of textual amendment (linked to a more partisan-oriented objective). Opposition MPs, on the other hand, saw time not as a legitimising feature of scrutiny, but as a facilitator of the real purpose of scrutiny— making better legislation through amendment. They spoke of government trying to ‘gag Parliament’ (Chris Leslie, HC Debates, 6 February 2017, c96), accused them of ‘muzzling Members’ (Chris Leslie, HC Debates, 6 February 2017, c96; see also Chuka Umunna, HC Debates, 26 January 2017, c464) and argued that it was ‘totally farcical’ that they were unable to speak to all of their proposed amendments and new clauses (Chris Leslie, HC Debates, 8 February 2017, c521). Keir Starmer argued that the lack of time for scrutiny was antithetical to what he described as ‘the proper role of Parliament’ (HC Debates, 24 January 2017, c163). In his conception, scrutiny should not be about ‘minimising’ the role of MPs nor about avoiding accepting amendments to legislation. He described it as ‘a question of substance, not of process’, suggesting that ineffective scrutiny processes did more than simply risk MPs’ voices not being heard. They had a direct effect on the quality of the resulting legislation and perhaps, on the institution as a whole. Where amendment was not seen to be forthcoming or desirable, opposition MPs moved to a less partisan scrutiny objective, one which emphasised the need for information, transparency or explanation from government, such as Chris Leslie’s request that the opposition ‘want to know what they [the government] plan to do’ (HC Debates, 6 February 2017, c96). In some respects, time was still seen as the facilitator for this type of scrutiny, as MPs needed time to firstly understand the government’s intentions before they could move on to improve the legislation. This was particularly pressing given the lack of clarity contained in the White Paper on leaving the EU, published after the Commons’ second reading debate on the EUNOW Bill, and just two days before its committee stage began (HM Government 2017). The SNP’s Patrick Grady felt that this meant there was ‘nowhere near enough time to consider what the  massive implications of Brexit will actually mean’, highlighting the

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­ undreds of amendments put down by MPs to reinforce his claim (HC h Debates, 7 February 2017, c370). If we look back on all of the Commons’ stages of the EUNOW Bill, we can see the key objectives of scrutiny privileged by parliamentarians—time and amendment success. In terms of amendments, a total of 73 amendments and 155 new clauses were put before the House for consideration over the three days of committee stage debate.4 Four of these amendments and 12 new clauses were pushed to a division; all were defeated. The bill was reported ‘without amendment’ and, following a further division, passed its third reading. In the immediate aftermath, opposition MPs continued to interpret the lack of successful amendments as a sign of poor scrutiny, describing it as ‘a sad day when the Government voted down all the amendments so that the Prime Minister could say that the Bill was unamended’ (Valerie Vaz, HC Debates, 8 February 2017, No Col). They associated this with the ‘breakneck speed’ with which the bill passed through the Commons (Pete Wishart, HC Debates, 8 February 2017, No Col). Although the bill clearly did not receive the same degree of unconstrained parliamentary time in the Commons as other major pieces of European Union legislation—the Maastricht Treaty, for instance, spent over 162 hours just in its committee stage (Miller 2015, p.  7)—it still received over 39 hours of debate in the chamber, just under 18 hours during the second reading debate and just under 22 hours at its committee stage. It did not, however, see any debate at report stage or at third reading. It is common for bills scrutinised in Committee of the Whole House to have no report stage if they are unamended, but the combination of this with no debate at third reading was unusual. Opposition MPs were unsurprisingly upset about the reduced opportunity for debate. Once again, they stressed the notion that the EUNOW Bill was extraordinary, and more deserving of debate than ordinary legislation. Alex Salmond, for example, commented that ‘for this to happen on any Bill would be an abuse; for it to happen on this Bill is an outrage’ (HC Debates, 8 February 2017). This brings us to a final scrutiny objective put forward by MPs during the consideration of the EUNOW Bill: representation and legitimacy, via contributions from as many MPs as possible. This view was espoused heavily by the SNP and stems from a combination of the result of the EU referendum 4  This did not account for all of the amendments tabled. Some were simply not reached before the cut off for the end of committee stage.

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(the difference in the Scottish vote), Commons’ procedures which seem to constrain the party from making contributions (Thompson 2017, pp. 6–7) and a particular incident during the committee stage of the bill where the party’s spokesperson Joanna Cherry’s speech was cut off by the Chair at the end of the debate. When the party held the floor for over an hour in the following day of committee debate, they were congratulated for making sure that ‘the voice of Scotland has been heard loud and clear in scrutinising this bill’ (Robin Walker, HC Debates, 7 February 2017, c390; see also Thompson 2017, p. 7). Government minister David Lidington praised the ingenious way in which ‘about half the number of Scottish National Party Members’ (HC Debates, 8 February 2017, No Col) had been able to contribute to the debate on the bill. The SNP objective for good scrutiny was thus also about making the voices of distinct national groups of MPs heard in the chamber. For them, the opportunity to scrutinise sat alongside the ability to make an impact on the text of the EUNOW legislation. The MP ‘view’ is therefore not actually a unified view. In the chamber, it mimics the adversarial nature of the House of Commons, with different groups of actors (government and opposition) placing a different emphasis on key components of scrutiny. This was exacerbated during discussions of the EUNOW Bill. Although both conceived of scrutiny in a partisan sense, opposition MPs promoted a more change-orientated objective, focusing on textual amendment, while government MPs emphasised debate as a legitimising objective of the bill’s scrutiny. The differing notions of the significance and scope of the bill between government and opposition/backbench MPs added a further level of complexity to this multifaceted view of scrutiny coming from within the House of Commons.

3   A View from the Outside: The Media If parliamentarians were divided about their views on the purpose of scrutiny and the effectiveness of scrutiny in the case of the EUNOW Bill, there was much more consensus from written media outlets at each stage of the bill. There was a focus throughout the reporting on measurable/quantitative aspects of Parliament’s work, such as the length of debates, the number of amendments and the outcomes of divisions. The phrases ‘marathon’ and ‘two day’ debate were well used here (e.g. Bloom 2017; Miller 2017) and interpreted as a positive feature of the ‘intense’ scrutiny taking place by MPs (Thorp 2017a). Although the length of debating time allocated at

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second reading and committee stage is not unusual in the context of the consideration of government legislation in the Commons (see Thompson 2015), it was presented by the press as being particularly noteworthy. Yet, while press reporting highlighted the length of time devoted to each individual stage of the bill in a positive manner, when the scrutiny process as a whole was discussed, the interpretation of it became more negative. Discussions of the many hours MPs spent debating the bill at second reading sat alongside discussions of the very same bill’s ‘breakneck timetable’ (e.g. Blake 2017) and the ‘limited amount of time to discuss amendments’. While seemingly content with the time devoted to scrutiny of the bill at each individual stage, there was also an impression that the legislation was ‘being rushed through Parliament’ (Walker 2017a). This was perhaps because the bill’s consideration was compressed compared to the typical legislative timetable, with all of the Commons’ stages taking place within just 14 days. Of the 23 government bills which reached Royal Assent in the same parliamentary session, the average length of time for the Commons’ stages (from first reading to third reading) was 94 days.5 The only bills with a shorter consideration related to supply and appropriations (in which there is no debate or amendments) and the Northern Ireland (Ministerial Appointments and Regional Rates) Bill in which no amendments were considered. It was thus unusual that a bill which saw considerable debate and a high number of proposed amendments saw its passage condensed into such a short amount of parliamentary time. Similarly, the overall assessment of the Commons’ scrutiny of the bill was also presented as something of a failure. The definition of good ­scrutiny employed by the media seemed to be textual change—successful amendments at committee stage. Reports of the committee of the whole house emphasised the lack of amendments. We see discussion of the ‘unamended Bill’ (e.g. Kay 2017), ‘defeated’ amendments (e.g. Walker 2017b). In the words of one report, MPs ‘achieved precisely nothing’ (Bloom and Williamson 2017). Commons’ scrutiny was presented as a personal battle between MPs and the Prime Minister, with reports that Theresa May had ‘blocked’ (Rodger 2017; Thorp 2017b) or steamrollered (Bloom and Williamson 2017) every proposed change to the bill. It is a clear interpretation of scrutiny as conflict between the two branches, and as either Parliament’s failure to fulfil its constitutional role to act as a

5

 This is a calculation based on calendar dates, rather than sitting days.

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check on the executive, or of the executive inhibiting Parliament from carrying out this role. Either way, it reduces scrutiny to a single focus: a ‘battle’ (James et al. 2017) or ‘war’ (Beattie 2017) in which Parliament has clearly lost. This clearly ignored that some parliamentarians—MPs and peers—at different stages, and in different fora, were trying to achieve different things. As we have seen, some parliamentarians see scrutiny as an opportunity to express ‘voice’ in the chamber, or debate as a means of ensuring legitimation.

4   Conclusion The debates leading up to and following the EUNOW Bill highlight in particular the contentious nature of the constitutional and political environment in which the Commons was working. This resonates across all Brexit scrutiny, as evidenced by Lynch, Whitaker and Cygan (Lynch et al. 2019, in this volume) and by Smith (Smith 2019, in this volume). It also illustrates the many meanings that actors—parliamentary and extra-­ parliamentary—impute to the activity of parliamentary scrutiny. These meanings do not necessarily map onto those of others. They shift, being dependent on who is asking the question, their objectives, the object of their scrutiny and the forum in which the question is being asked. If we revisit our suggested components of scrutiny and apply them to the EUNOW Bill debates, we can identify some patterns in terms of different actors’ expectations and evaluations of parliamentary scrutiny of this first piece of Brexit legislation. The first component of scrutiny was that it is really shorthand for a mix of activities. This was recognised, for instance, by the Lords’ EU Committee, when it delineated different approaches and intensities of scrutiny in relation to the Brexit process. It is also apparent on the floor of the House of Commons where there was disagreement among MPs as to what the focus of scrutiny was—the text of the EUNOW Bill itself, the content of and procedure for the government’s negotiations and ‘final deal’ for withdrawal, or the very notion of leaving the EU (or not) itself. Second, we noted that there was a lack of consensus about the appropriate role of politics in parliamentary scrutiny. There was some agreement here in that for three of our four actors (government, opposition and the media) the scrutiny of the EUNOW Bill was intensely partisan. The manner in which the media presented the scrutiny of the Bill as a ‘battle’ between government and Parliament epitomises the nature of Brexit scrutiny.

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Although this is common in media depictions of most high-profile legislation, the adversarial nature of this process was intensified because the UKSC Miller decision placed the Article 50 notification process firmly back in Parliament’s court. The select committee view is the only exception here, but this was more related to its institutional position, which prevented it from taking an overtly partisan view of scrutiny. We deal with objectives of scrutiny and the expectation of change together. Scrutiny is expected to result in some sort of change or impact, but the nature of the impact depends on the objectives of the scrutineers. We saw this in the debate over the EUNOW Bill, where MPs debated the matter of time. Both government and opposition MPs were in agreement that time for scrutiny was important, but they differed over why this mattered: for the opposition, this was about getting more time to put down amendments and press for textual change; for government MPs, this was typically about ensuring the legitimation of the EUNOW Bill. The fact that the EUNOW Bill left the Commons in an unamended state was problematic for both the press and many non-government MPs, because of the alignment of their scrutiny objective (the constitutional role of Parliament in keeping the government in check) with the need for very visible or quantifiable change. Our findings are also relevant to three of the four dimensions (the constitutional, procedural and party-political) set out in the introduction to this book. In terms of the party-political dimension, governing and opposition parties have approached scrutiny of Brexit differently, but this will depend on the specific arena or forum in which scrutiny takes place. In the chamber, opposition parties desire textual change and governing parties resist. But in a select committee setting, party-political differences may be set aside. In terms of the constitutional and procedural dimensions, our findings suggest that we must pay far more attention to the particular circumstances in order to determine whether or not parliamentarians are exercising constitutional powers vis-à-vis the executive. Similarly, discussions of influence depend on context and specific intent. There is no fixed definition of scrutiny within the UK constitution or in Parliament’s procedural rule books. If there is no fixed meaning for parliamentary scrutiny, and its process and substance are largely dependent on a contingent set of circumstances, then it becomes difficult to find a measure of ‘good’—or ‘bad’—scrutiny. That depends on the objectives of the scrutineers.

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and Democracy: The Role of Parliaments in the UK and the European Union. London: Palgrave Macmillan. Merrick, R. (2016, November 15). Brexit: Teresa May Creates ‘Bombproof’ Article 50 Bill to Prevent MPs Holding It Up. The Independent. Online at: https://www.independent.co.uk/news/uk/politics/brexit-article-50-votebill-three-lines-theresa-may-parliament-trigger-eu-exit-a7418696.html Miller, V. (2015, June 15). EU Treaty Change: The Parliamentary Process of Bills, House of Commons Library Briefing 03341. Online at: https://researchbriefings.parliament.uk/ResearchBriefing/Summary/SN03341 Miller, C. (2017, February 1). This Is How Your MP Voted on the First Brexit Vote. Wales Online. Online at: https://www.walesonline.co.uk/news/walesnews/how-your-mp-voted-first-12543051 R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5. Reuters. (2016). UK Government Has Prepared ‘Bomb-Proof’ Legislation on Article 50, 15 November. Reuters. Online at: https://in.reuters.com/article/ britain-eu-article50/uk-govt-has-prepared-bomb-proof-legislation-on-article50-bbc-idINKBN13A2BV Rodger, J. (2017, February 9). These Are the 52 Labour MPs Who Rebelled to Vote Against Triggering Brexit; Prime Minister Theresa May Survived a Rebellion Threat from the Tories and Crushed All 16 Amendments That Were Formally Added to the Bill. Birmingham Post. Online at: https://www.birminghampost.co.uk/news/regional-affairs/52-labour-mps-who-rebelled12578294 Smith, J.  (2019). Fighting to ‘Take Back Control’: The House of Lords and Brexit. In T.  Christiansen & D.  Fromage (Eds.), Brexit and Democracy: The Role of Parliaments in the UK and the European Union. London: Palgrave Macmillan. Thompson, L. (2015). Making British Law. Basingstoke: Palgrave Macmillan. Thompson, L. (2017). Understanding Third Parties at Westminster: The SNP in the 2015 Parliament. Politics. https://doi.org/10.1177/0263395717740585. Thorp, L. (2017a, February 1). Brexit—Everything You Need to Know About Tonight’s Crucial Article 50 Vote. Liverpool Echo. Online at: https://www. liverpoolecho.co.uk/news/liverpool-news/brexit-everything-you-needknow-12538404 Thorp, L. (2017b, February 8). These Liverpool MPs Will Defy Jeremy Corbyn Again and Vote Against Brexit Bill. Liverpool Echo. Online at: https:// www.liverpoolecho.co.uk/news/liverpool-news/liverpool-mps-defy-jeremycorbyn-12573868 Walker, J. (2017a, February 1). Last Ditch Attempt to Put a Block on Brexit in the House of Commons; Brexit Bill Likely to be Approved After Labour Leadership Urges MPs to Back It. Chronicle Live. Online at: https://www.chroniclelive. co.uk/news/north-east-news/last-ditch-attempt-put-block-12535041

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Walker, J. (2017b, February 9). MPs Say YES to Brexit as Legislation Approved by Commons. Birmingham Mail. Online at: https://www.birminghammail.co. uk/news/midlands-news/mps-say-yes-brexit-legislation-12577931 Yong, B. (2018). The Governance of Parliament. In A.  Horne & G.  Drewry (Eds.), Parliament and the Law (2nd ed., pp.  75–102). Oxford: Hart Publishing.

CHAPTER 3

Brexit and the UK Parliament: Challenges and Opportunities Philip Lynch, Richard Whitaker, and Adam Cygan

1   Introduction This chapter assesses the role and influence of the UK Parliament vis-à-vis government in the process of the UK leaving the European Union (EU). The Brexit process poses considerable challenges to the UK Parliament. The scale of potential change is huge. Forty-five years of primary and secondary legislation has built up during the UK’s membership, much of which will need to be adapted into UK law in order to ensure a smooth transition and avoid sudden legal changes when the UK leaves. Furthermore, the Brexit process requires a great deal of institutional capacity in Parliament in the form of time, policy expertise, information on the likely consequences of decisions about the UK’s future relationship This chapter draws on research funded by an Economic and Social Research Council Brexit Priority Grant (ES/R000646/1) P. Lynch • R. Whitaker (*) School of History, Politics and International Relations, University of Leicester, Leicester, UK e-mail: [email protected] A. Cygan Leicester Law School, University of Leicester, Leicester, UK © The Author(s) 2019 T. Christiansen, D. Fromage (eds.), Brexit and Democracy, European Administrative Governance, https://doi.org/10.1007/978-3-030-06043-5_3

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with the EU, and coordination among Parliamentary committees and political parties. The issue of institutional capacity will only increase in significance once the UK leaves the EU and takes on responsibility for policy areas previously dealt with at the EU level. The process will not necessarily lead to a stronger role for the legislature compared to the executive in the UK especially if legislation in policy areas previously dealt with by the EU is to be made via secondary legislation (Statutory Instruments or SIs) in which Parliament’s role may be minimal, depending on the procedure used for scrutinising SIs. As Smith (2019, in this volume) suggests, the mantra of the Leave campaign ‘Take back control’ may end up applying largely to government rather than Parliament. Nevertheless, Parliament has opportunities to achieve influence independently of government in the Brexit process. The R (Miller) v Secretary of State for Exiting the EU [2017] court case saw the UK’s Supreme Court decide that primary legislation would be necessary before the government could notify the EU that the UK intended to withdraw, via Article 50 of the Treaty on European Union. This was followed by the 2017 general election, which led to a single-party minority government at Westminster, opening up further opportunities for parliamentary influence. The governing Conservatives established an agreement with the Democratic Unionist Party (DUP), giving them a working majority on budgets and any confidence vote as well as Brexit-related bills. However, the government remains vulnerable, as is clear from the defeats it suffered in the House of Commons on Brexit-related legislation in December 2017 and July 2018, described later. While the government has a majority on public bill committees, which scrutinise legislation in the House of Commons, it lacks a majority on most Commons departmental select committees, the role of which is partly to scrutinise ministers’ actions. This is due to the combination of the Conservatives’ lack of a majority in the Commons and the small size of these committees on which parties are roughly proportionally represented, meaning the DUP (with only 1.5 per cent of seats) is not represented on most of them. These select committees are the authors of a series of reports on specific elements of the Brexit process. The chairs of select committees (elected by MPs) have used their positions to question ministers and bring new information into the public domain. The absence of a clear government position on many aspects of Brexit and on plans for post-Brexit arrangements in specific policy areas gives Parliament a­ dditional opportunities to shape the agenda. The presence of a minority government also

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means that cross-party cooperation, such as among members of Parliament (MPs) opposing a hard Brexit, has the potential to alter the outcomes of votes. MPs have also proved creative in employing old and new parliamentary tools to influence policy. For example, Eurosceptics made effective use of the Commons’ Backbench Business Committee to force the question of an EU membership referendum onto the agenda during the 2010–2015 Parliament. Research on the influence of MPs has shown how, before the Brexit process began, backbenchers had been making more of a difference to government agendas and legislation than was previously thought. Russell et al. (2016) and Russell and Gover (2017) show that while governments appear to dominate the process of amending bills, in reality, large proportions of amendments have their origins in parliamentary pressure through amendments that were dropped in response to a government promise to make an equivalent or similar amendment, or through select committee recommendations or pressure exerted via parliamentary debates. Benton and Russell (2013) demonstrate the varied ways in which select committees can influence the government’s agenda and bills working their way through the legislative process. Russell (2013) shows how the House of Lords exerts significant influence on legislation, and Cowley (e.g. 2005) demonstrates the increasing propensity of backbenchers at Westminster to rebel against their party line. These developments, in combination with the presence of a minority government since 2017, lead us to expect MPs to use a variety of methods to influence the Brexit process. Turning to the concepts at the heart of this volume, understanding the effectiveness with which Parliament scrutinises the Brexit process requires us to engage with constitutional, procedural and party political dimensions of Brexit. The constitutional dimension includes questions over the relative power of the executive and legislative branches of government in the UK, around which many of the most hard-fought battles over the EU (Withdrawal) Act were based. The procedural dimension encompasses both the balance between formal and informal methods of parliamentary influence and the use of procedural tools in Parliament to bring items onto the agenda or to alter the government’s approach to specific aspects of Brexit. The party political dimension of Brexit as covered here, concerns the differences within and between parliamentary parties at Westminster and the effects of these differences on parliamentary influence. Although we do not focus sharply on them in this chapter, divisions within Parliament have also occurred along national lines, with differences between MPs

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representing Scotland and Wales on one hand, and those representing England on the other. These have particularly occurred with regard to the extent to which the governments and assemblies in the parts of the UK other than England will gain policymaking power in areas that are currently dealt with at the EU level. This chapter will assess these different dimensions of how Parliament deals with Brexit. The chapter draws on data collected as part of an Economic and Social Research Council–funded project. We draw on non-attributable interviews with committee clerks and MPs and data we have collected on divisions in select committees, the content of select committee reports, MPs’ positions on the Brexit referendum, MPs’ contributions to debates, parliamentary votes, amendments and other parliamentary activities. First, we look descriptively at the extent of Brexit-related parliamentary activity to assess how much, and in what ways, the House of Commons has attempted to exert influence in the process of the UK withdrawing from the EU. We then examine the role of Parliament in amending Brexit-related legislation, followed by a consideration of the role of House of Commons select committees in the Brexit process.

2   Parliamentary Activity on Brexit in the House of Commons This is definitely going to be remembered as the Brexit Parliament. It is undoubtedly the Back Benchers’ Parliament. At the moment, it is running the risk of becoming the vote-less Parliament, because business managers are scrambling around to fill the time with anything other than votes on important matters. Ministers are not going to be able to put those votes off permanently. (Hilary Benn MP, House of Commons, 14 March 2018. ­ Emphasis added.)

As this quote from the chair of the House of Commons’ Exiting the EU select committee indicates, Brexit has dominated the UK Parliament’s agenda since the referendum and particularly since the 2017 general election. We examine Parliament’s attempts to influence the process via legislation and through select committees in two sections that follow. Here we consider some of the other tools used by MPs with the aim of scrutinising the Brexit process. One rarely used parliamentary procedure is the humble address or ‘motion for a return’. This is simply a request to the government

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to produce documents. Three of these have been voted for by the House of Commons since the UK’s referendum on membership of the EU. One concerned the release of ‘sectoral impact assessments’ which looked at the effect of leaving the EU on particular parts of the economy (November 2017), a second requested access to the government’s ‘EU Exit Analysis’ (January 2018) and a third asked the government to reveal the details of options for customs arrangements being considered by the Cabinet (May 2018). With the government unwilling to release these papers, the Labour frontbench used the humble address procedure to request these documents. In the first two cases, the government did not oppose the humble address and agreed to release the papers in question to MPs. But the government did not do so quickly or fully. Versions of the reports were released to and then published by the Select Committee on Exiting the European Union on its website, but with commercially sensitive details and points deemed harmful to the UK’s negotiating position removed. The committee chose to remove sections on views from each sector on Brexit, and the government withheld some of the content before passing the documents to the committee. Nevertheless, these are two examples of Parliament bringing information into the public domain which would not otherwise have been available. The government opposed the third humble address, and MPs voted against it, with the government arguing that its negotiating position would be compromised as would the process of cabinet government, if the papers on options for customs arrangements were released (HC Deb 2018a). A second procedure which has been frequently used for Brexitrelated issues since the referendum is the urgent question. These questions require a response from a minister on the floor of the House of Commons on the same day the question is tabled. Any backbench MP can propose an urgent question but the Speaker of the Commons decides whether to grant them on the basis of their urgency and public importance. Commons Speaker, John Bercow, has granted far more of these than his predecessors, and on a wide range of topics. By the start of the 2018 summer parliamentary recess, 15 urgent questions on Brexit had been asked in the 2017–2019 session (12 by Labour MPs and 1 each by MPs from the Conservatives, Liberal Democrats and Scottish National Party). These urgent questions were asked in response to developments in EU negotiations (such as on the border between Northern Ireland and the Republic of Ireland) and government policy (e.g. then Secretary of State for the EU David Davis’s statement to the

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Exiting the EU select committee on the government’s sectoral analysis papers). While these techniques have helped put some issues on the agenda and bring information into the public domain, one of the major ways in which MPs can attempt to influence the Brexit process is via the government’s legislation implementing Brexit. The next section considers this.

3   Brexit Legislation Central to the legislation giving effect to Brexit in the UK is the European Union (Withdrawal) Act 2018. It repeals the European Communities Act 1972, converts EU law into domestic law through a new category of ‘retained EU law’—which consists of converted EU law and preserved EU-related domestic law—and gives the government powers to amend secondary legislation to prepare for Brexit. Much of the debate about the content of this Act centred around the balance of power between the executive and legislative branches of government in the UK, a significant tension within the constitutional dimension of Brexit in the UK.  The Act granted extensive powers to the government to use secondary legislation on retained EU law. The question of whether Parliament would have a ‘meaningful vote’ on the deal negotiated between the UK and the EU was also central to this executive-legislative tension. The national interest dimension proved controversial as the Scottish Parliament withheld consent to the Bill. The government made multiple concessions during the progress of the Bill through Parliament as a dozen Conservative MPs threatened to rebel, suffering 1 defeat in the Commons but 15  in the Lords. These changes to the legislation covered issues ranging from Northern Ireland, environment and animal sentience to Parliament’s ability to monitor secondary legislation resulting from the Act and opportunities for Parliament to vote on the exit deal agreed between the UK and the EU. A major issue from a constitutional and procedural perspective in the passage of the EU (Withdrawal) Act concerned whether Parliament would have a meaningful vote on any agreement reached between the UK and the EU on Brexit. Such a vote would be meaningful if it had an effect on the outcome of the deal reached between the UK and the EU. The government was defeated during the Commons Committee Stage in December 2017 when MPs approved by a majority of four an amendment on a ‘meaningful vote’ tabled by Conservative MP, and former Attorney General, Dominic Grieve. Note that this being deemed a bill of ‘first-class

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constitutional importance’ (Rogers and Walters 2015: 197), the committee stage took place on the floor of the House of Commons rather than in a separate public bill committee, as would be the case with most non-­ constitutional bills. The amendment sought to prevent the government from implementing the Withdrawal Agreement through secondary legislation or a parliamentary resolution. The House of Lords then passed Viscount Hailsham’s amendment which would have empowered Parliament to instruct the government on what to do next should it be defeated on the ‘meaningful vote’. The government enjoys powers to negotiate international treaties, so Hailsham’s amendment would have brought about significant constitutional change, with Parliament having a statutory right to issue binding instructions to the government on its Brexit negotiations. Supporters of the amendment argued that it lessened the possibility of no deal, critics that it made it less likely the EU would offer the UK a good deal. MPs rejected the Hailsham amendment when the bill returned to the Commons from the Lords (bills can move back and forth between the two Houses until the same version is agreed in each).1 Grieve withdrew his amendment (‘Grieve 1’) after the government promised concessions, but when these were placed in doubt, Hailsham introduced the text supposedly agreed between the government and Conservative rebels as a new amendment—‘Grieve 2’—and it was approved by the Lords. ‘Grieve 2’ would have provided a statutory guarantee that the Commons could amend a statement of (or in Westminster terminology, a motion on) government policy should Parliament have rejected the Withdrawal Agreement and future relationship. Further negotiations between the government and its backbenchers saw most (but not all) potential rebels support the government’s own amendment, which was approved by a majority of 16. It grants Parliament a vote in three circumstances: (i) if it rejects the government’s motion to approve the Withdrawal Agreement and future relationship; (ii) if, before 31 January 2019, the government states that no deal can be reached; and (iii) if, after this date, no deal is reached. In each case, the government would make a statement on its intentions, with

1  Note that the government can ultimately override the House of Lords by using the Parliament Act 1949 through which a bill blocked by the Lords in one parliamentary session (normally equivalent to a year) can be re-introduced in the next and passed by the Commons alone.

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Parliament voting on a motion ‘expressed in neutral terms’. Such motions are usually unamendable, although it would be for the Speaker to determine this. Essentially, then, there is uncertainty about how far—in the event of no deal—Parliament will be able to amend a government motion and thus about the extent to which constitutional change concerning Parliament’s ability to influence treaty negotiations has occurred. In summary, the EU (Withdrawal) Act is significant from a constitutional perspective in that the UK’s Withdrawal Agreement with the EU can only be ratified if it and the future relationship have been approved by a resolution of the Commons and debated in the Lords, and then approved in separate legislation (see below). Given the government’s fragile working majority in the Commons, this is significant. If a deal is reached then the motion in the Commons will be amendable, but any amendments will not be legally binding, as motions do not constitute legislation and are not enforceable before the courts (Hogarth and White 2018: 11). Should the motion be rejected or no deal be reached, MPs will vote on what will most likely be an unamendable motion, preventing them from directing the government in the next stage of negotiations. The Constitutional Reform and Governance Act 2010 may also enable Parliament to indefinitely delay ratification of the Withdrawal Agreement if it objects to ratification—although these powers to object to international treaties have yet to be used. The EU Withdrawal and Implementation Bill (WAIB) will enshrine the Withdrawal Agreement in domestic law through primary legislation as well as the arrangements for the transition or implementation period. There will be limited scope for amending the Bill as MPs cannot alter the text of the Withdrawal Agreement. While much of this might suggest the executive has triumphed in its battle with Parliament, if no deal with the EU is reached or if Parliament rejects the government’s deal, then the government would be in a precarious position (Institute for Government 2018). Conservative MPs might press for a party confidence vote on Theresa May, although she could well survive this given the absence of an obvious alternative candidate. Even if May were toppled, neither soft Brexiteers nor hard Brexiteers can be sure that their side would prevail. The EU (Withdrawal) Act grants the government significant powers— known as Henry VIII powers—to correct (i.e. amend) ‘retained EU law’ through secondary legislation. The number of SIs required will be between 800 and 1000 (Department for Exiting the European Union 2017: 24). Dealing with ‘deficiencies’ through SIs may be uncontroversial in many instances (e.g. removing references to EU institutions), but

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the powers to make changes are wide ranging. At Commons Committee stage, the government accepted amendments by Charles Walker, chair of the Procedure Committee, concerning the creation of the EU Statutory Instruments Committee in the House of Commons, which sifts SIs. It recommends whether the SIs should remain subject to the negative resolution procedure (under which they become law unless annulled by Parliament) or should instead be subject to the affirmative resolution procedure (under which they require parliamentary approval, under a specific procedure for SIs). In accepting this, the government moved from its preferred solution of using the European Scrutiny Committee to perform this role. The Lords sought to bolster the powers of the committee, enabling it to ‘require’ rather than ‘recommend’ greater scrutiny of SIs. Both Houses ultimately accepted a government amendment requiring ministers to make a written statement if they disagree with the procedure recommended by the sifting committee. The Act provides for some regulations (e.g. those creating a new public body) to automatically require the affirmative assent procedure. EU competences relating to common UK policy frameworks are, under the Act, transferred directly to the UK government. The devolved administrations will have the power to amend devolved legislation so that it operates properly, but they are not permitted to make changes ‘inconsistent’ with those made by the UK government. These provisions were branded a ‘power-grab’ by the Scottish and Welsh first ministers (Sturgeon and Jones 2017). The UK government did reach agreement with the Welsh government in April 2018 (Lidington 2018) after conceding that ministers must specify which areas they want to protect from modification by the devolved legislatures. Regulations restricting devolved competences would normally require the consent of the devolved legislatures and would be time limited. The Northern Ireland Executive and Assembly have been suspended since January 2017, amid a disagreement between the two largest parties, so their consent could not be sought. However, agreement was not reached with the Scottish government, led by the Scottish National Party (SNP), and the Scottish Parliament passed its own EU Continuity Bill, preparing Scottish law for Brexit, which the UK government referred to the Supreme Court. SNP MPs at Westminster staged a walkout and tabled an emergency debate in protest at the limited time given to consider devolution and the approval of the EU (Withdrawal) Act without the legislative consent of the Scottish Parliament, which, by convention, rarely happens.

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3.1  Party Divisions and Cross-Party Cooperation In the House of Commons, the European Union (Withdrawal) Bill was subject to more than 112 hours of debate, more than 500 amendments were tabled and there were 80 divisions. The only defeat came on the December 2017 Grieve amendment on the meaningful vote when 11 Conservatives rebelled and 4 abstained. On the other divisions, the government’s majority never fell below 10. In total, 12 Conservative MPs rebelled on the Bill, with junior minister Phillip Lee resigning from the government and voting for the Grieve 2 amendment along with 5 other Conservatives. Suggestions that soft Brexiteers had the numbers and the determination to defeat the government on various issues proved erroneous as most potential rebels backed down, having achieved limited concessions from the government. Most of the rebellions on EU issues before the 2016 referendum were by Conservative Eurosceptics (Lynch and Whitaker 2018), but none of the 60 members of the European Research Group (ERG), which favours a hard Brexit, rebelled on the European Union (Withdrawal) Bill. They tried to exert influence beyond the chamber (e.g. issuing letters to the Prime Minister) but accepted government concessions to the EU (e.g. on the financial settlement and transition period). The July 2018 Chequers Cabinet agreement on the future UK-EU relationship, which was followed by the publication of the government’s White Paper (HM Government 2018), finally brought Eurosceptic discontent to the fore. Secretary of State for Exiting the EU David Davis, his junior minister Steve Baker and Foreign Secretary Boris Johnson resigned. Members of the ERG, led by its chair Jacob Rees Mogg, were highly critical of the government’s proposals, claiming that they amounted to ‘Brexit in name only’. Some threatened to vote against any agreement on these terms; others sought a party leadership election. The ERG members tabled four amendments to the Taxation (Cross-Border Trade) Bill at Report Stage in July 2018, a bill aimed at setting up a new UK customs regime once the UK has left the EU. The government accepted these amendments, although one of them, preventing the UK from collecting taxes on behalf of the EU without reciprocal arrangements, appeared inconsistent with the White Paper. Government acceptance of the ERG amendments angered Conservative Remainers, producing the largest Brexit rebellion of the session when 14 Conservatives rebelled on the amendment on tax collection, including Guto Bebb, who resigned as defence minister to rebel. The government

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won by three votes but suffered a defeat on Phillip Lee’s amendment to the Trade Bill, which requires the government to ‘take all necessary steps’ to participate in the European Medicines Agency’s regulatory network. Twelve Conservatives rebelled on this. The same number rebelled on an amendment by Conservative Remainer Stephen Hammond to the Trade Bill, which makes preparations for a UK international trade policy post-­ Brexit. This amendment would have required the government to stay in a customs union with the EU if it could not agree a free trade deal by early 2019. The government won this critical vote with a majority of six. Although Conservative Remainers had inflicted two defeats on the government on Brexit legislation, the threat of large-scale Eurosceptic rebellion had proved more significant, hence the concessions the government made to the ERG. With the government facing potential rebellions from both Eurosceptic and pro-European Conservative MPs, how Labour MPs vote on Brexit legislation becomes critical. Only nine of the Labour MPs elected in 2017 voted Leave in the EU referendum. Three defied the whip on the tax collection amendment to the Taxation (Cross-Border Trade) Bill and four on Hammond’s customs union amendment to the Trade Bill. In December 2017, only two voted against the Grieve amendment, which was not enough to save the Conservative government from defeat. Most of the 110 Labour MPs who rebelled during the passage of the European Union (Withdrawal) Act were pro-Europeans. The largest rebellions came on divisions on the customs union, single market and a Lords amendment on the European Economic Area (EEA) which was supported by 75 Labour MPs. A further 15 Labour MPs (and Kelvin Hopkins, who had had the whip withdrawn) voted against the EEA amendment, including 8 who voted Remain in the referendum. One shadow minister and five parliamentary private secretaries resigned and defied the Whips’ instructions to abstain on the EEA amendment. Amendments such as the December 2017 Grieve amendment attracted cross-party support from backbench MPs. But the government was able to avoid defeats because of the limits of this cross-party cooperation. Only three Conservative MPs voted for amendments tabled by MPs from opposition parties. Positions adopted by the Labour leadership also helped the government: its amendment to the Lords amendment on the EEA was comfortably defeated and enough Labour MPs followed the leadership position on abstaining on the EEA vote to ensure an even more comfortable victory for the government. Differences over the optimal timing of

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rebellions, the preferred outcome of the Brexit process, party loyalty and Conservative concerns about the consequences of defeating the government all limited the prospects of rebellion. But two defeats, narrow victories on key votes, pressure from the European Research Group and Labour’s unwillingness to support the White Paper showed the difficulties the government may face in getting any deal through the House of Commons.

4   Select Committees Beyond the parliamentary tools discussed so far, the House of Commons’ select committees offer MPs a high-profile and potentially effective tool for attempting to influence the Brexit agenda and the course of the Brexit process. The Commons differs from many national parliaments in Europe in that these select committees—the bulk of which scrutinise the activities of government departments—do not deal with the committee stage in the legislative process. Nevertheless, they have the scope to conduct inquiries of their own choosing and can produce reports on specific pieces of legislation. Furthermore, their inquiries on particular areas of policy can be influential. Benton and Russell (2013: 788–789), in their pre-Brexit study of select committees, show how influence can be achieved not only through governments accepting and acting on select committee recommendations but also via committees bringing evidence into the public domain, drawing attention to issues not previously on the agenda, holding ministers to account and exposing poor decision-making. Set against these methods of attempting influence, select committees face challenges, some of which are specific to the Brexit process. One problem concerned timing. While negotiations for the UK to leave the EU began in June 2017, the membership of select committees took time to finalise after the 2017 election. As a result, four months went by with no inquiries taking place. In addition, inquiries that were running before the 2017 election had to be stopped abruptly, although some were relaunched. Further problems include the scale and complexity of the Brexit process, the secrecy of the negotiations and the significance of the Leave versus Remain fault-line among MPs. The latter may make ­achieving consensus difficult, as we discuss later. Select committee reports are often viewed as more likely to be influential if they are unanimously agreed (Rogers and Walters 2015: 324). Such reports can be billed as cross-party and may carry more weight with governments than those where a committee is heavily divided.

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A further challenge arises from the sheer amount of Brexit-related inquiries being conducted by Commons select committees. By the start of the 2018 summer parliamentary recess, the 2017–2019 session had seen 53 departmental select committee inquiries on Brexit-based issues plus 15 inquiries conducted by other select committees.2 As one interviewee put it, ‘Brexit is the only game in town and everyone wants to play’. The effectiveness of these inquiries may be improved to the extent that committees coordinate their efforts to scrutinise the many elements of the Brexit process. So far, there appears to be only limited coordination of Brexit inquiries in the Commons. Informal channels of coordination include bilateral or multilateral discussions between committee chairs or meetings of clerks of select committees, but there are limits to what can be achieved outside of formal mechanisms. The Liaison Committee, whose remit includes considering ‘general matters relating to the work of select committees’, may be the obvious venue in which to work out how the committees can complement each other and reduce duplication. However, it was only set up some months into the 2017–2019 session, in early November 2017, and has shown little inclination to take on a top-down coordinating role. By the 2018 summer recess, the Liaison Committee had held four evidence sessions since the EU referendum, with each session including questions on Brexit. The Commons has appointed a Brexit coordinator from among its staff. This role involves sharing information on Brexit-related activities in the Commons with the aim of improving coordination as well as drawing public attention to the Commons’ work on Brexit. The lower chamber has not yet gone as far as the House of Lords, which has an Informal Brexit Liaison Group. This brings together members of the Lords’ Liaison Committee and Senior Deputy Speaker Lord McCall. The group holds discussions with relevant experts and oversees Brexit-related scrutiny in the House of Lords’ select committees. A similar institution would surely be beneficial for the Commons. Some overlap in the content of select committee inquiries is, however, inevitable given the scope of Brexit where issues range from broad questions about future strategic objectives to complex, highly technical questions about its impact on particular policy areas. Select committee chairs are also likely to want to be seen focusing on Brexit, especially since they are elected by MPs. Levels of overlap with other committees are rarely their foremost 2  This figure does not include one-off evidence sessions with ministers on the work of their departments.

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concern. The Exiting the EU select committee has held wide-ranging inquiries, and its reports draw upon evidence from other select committees. However, as well as being the most high-profile Brexit committee, it is also the one in which Leave-Remain divisions have been most pronounced. The Business, Energy and Industrial Strategy (BEIS) committee adopted a sectoral approach, launching an inquiry about Brexit’s impact on business which had five sub-inquiries covering different areas. One, on processed food and drink, aimed to avoid explicit overlap with the Environment, Food and Rural Affairs (EFRA) committee’s own investigation into trade in food, which focused on producers. The Home Affairs select committee’s inquiries on immigration policy have produced evidence likely to be of interest to committees on Science, EFRA and others. Nevertheless, they took place in parallel with a Scottish Affairs committee inquiry on immigration and Scotland. Taking into account the Home Affairs committee’s findings would make for more efficient investigations by other committees with an interest in this area. But there is also a case for committees considering joint inquiries or evidence sessions, particularly where they are likely to seek evidence from a similar pool of witnesses. The International Trade and the Treasury select committees held a joint oral evidence session in April 2018 on the economic effects of trade policy. The chairs of these two committees also worked together to produce a joint letter to all MPs ahead of the final Commons stages of the Taxation (Cross-Border Trade) Bill and the Trade Bill in July 2018, warning that trade deals with non-EU countries would be unlikely to offset the losses following from leaving the EU customs union and single market (Morgan and MacNeil 2018). Several committees examined the EU (Withdrawal) Act during its passage through the legislative process, including the Exiting the EU, Public Administration, Procedure and Scottish and Welsh Affairs committees. There were some overlaps in that the Public Administration and Scottish Affairs committees both looked at the devolution aspects of the bill. These inquiries were also hampered by the time lost during and after the 2017 election, and the race to produce reports before the Bill reached committee stage in the Commons. The Procedure Committee produced an interim report critical of the Bill’s provisions on delegated legislation— and one that had more clout for having been agreed without division despite all its Conservative members being Leave voters while their Labour and SNP counterparts backed Remain (House of Commons Procedure Committee 2017). The report added weight to the case for improving this aspect of the Bill and, as noted earlier, the government accepted the Procedure Committee chair’s proposed amendments on this question.

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The government has not always been so responsive to select committee recommendations and reports. The chair of the House of Lords EU select committee, Lord Boswell, wrote to Brexit Secretary David Davis in April 2018 (Boswell 2018) complaining that some Brexit-related reports had received no government response at all, a late response and/or a response that merely repeated government positions already stated in other publications rather than engaging with the details of a report. All of the challenges set out here could potentially be made worse by divisions within select committees over Brexit. The next section considers these. 4.1  Committee Members and the Leave Versus Remain Fault-Line How did select committee members vote in the 2016 EU referendum, and what are their views on Brexit? These are important questions to ask as they tell us about the potential for divisions over Brexit within committees and the extent to which select committee positions are likely to differ from those of the government. To measure MPs’ views, we collected data on how MPs in the 2015–2017 and 2017 parliaments voted in the EU referendum, drawing on MPs’ websites, statements in Parliament and (social) media sources. Combining all Conservative and Labour MPs elected in 2017 (regardless of committee membership and front- or backbench status) shows that 73 per cent voted Remain in the referendum, a very slight increase on the 72 per cent of those holding seats prior to the 2017 election. After the 2017 election, the proportion of select committee positions held by those voting Remain increased slightly from 63 per cent to 67 per cent. Remainers therefore are somewhat underrepresented within the select committee system, but the rise in their proportion after the 2017 election was in the same direction as the changing composition of Conservative and Labour MPs taken together. As shown in Table  3.1, those who voted Remain in the referendum made up the majority of members on most committees in the 2017–2019 session. Only two committees had a majority of MPs voting Leave: Northern Ireland Affairs and the European Scrutiny Committee, which has been used in the past to argue for a much more flexible relationship between the UK and the EU. How much does the Leave versus Remain fault-line matter for select committee unity? To assess this, we collected data on all select committee votes on reports in the period 2010–2018. These votes are recorded in the formal minutes attached to select committee reports and can be taken on

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Table 3.1  Select committee composition and the Leave-Remain divide Select committee

Majority position 2017–2019

Change in Chair proportion of Leavers since 2016

Remain (82%)

−

Remain (54%)

No change

Digital, Culture, Media and Sport

Remain (100%)

−

Education

Remain (73%)

No change

Environment, Food and Rural Affairs

Remain (64%)

+

Exiting the EU

Remain (67%)

−

Foreign Affairs

Remain (64%)

−

Health

Remain (81%)

No change

Home Affairs

Remain (64%)

+

Housing, Communities and Local Government International Development International Trade

Remain (82%)

+

Remain (64%)

No change

Remain (55%)

−

Justice

Remain (91%)

No change

Northern Ireland Affairs

Leave (62%)

+

Science and Technology

Remain (64%)

−

Departmental Business, Energy and Industrial Strategy Defence

Rachel Reeves (Labour, Remain) Julian Lewis (Conservative, Leave) Damian Collins (Conservative, Remain) Robert Halfon (Conservative, Remain) Neil Parish (Conservative, Remain) Hilary Benn (Labour, Remain) Tom Tugendhat (Conservative, Remain) Sarah Wollaston (Conservative, Remain) Yvette Cooper (Labour, Remain) Clive Betts (Labour, Remain) Stephen Twigg (Labour, Remain) Angus Brendan MacNeil (SNP, Remain) Bob Neill (Conservative, Remain) Andrew Murrison (Conservative, Leave) Norman Lamb (Lib Dem, Remain) (continued)

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Table 3.1 (continued) Select committee

Majority position 2017–2019

Change in Chair proportion of Leavers since 2016

Scottish Affairs

Remain (82%)

No change

Transport

Remain (55%)

No change

Treasury

Remain (73%)

−

Welsh Affairs

Remain (73%)

−

Women and Equalities

Remain (73%)

−

Work and Pensions

Remain (64%)

+

Other Backbench Business

50/50

No change

Environmental Audit

Remain (75%)

−

European Scrutiny

Leave (63%)

−

Liaison

Remain (74%)

+

Petitions

Remain (73%)

No change

Procedure

Remain (57%)

+

Public Accounts

Remain (81%)

−

Public Administration

Remain (55%)

−

Pete Wishart (SNP, Remain) Lillian Greenwood (Labour, Remain) Nicky Morgan (Conservative, Remain) David T.C. Davies (Conservative, Leave) Maria Miller (Conservative, Remain) Frank Field (Labour, Leave) Ian Mearns (Labour, Remain) Mary Creagh (Labour, Remain) Bill Cash (Conservative, Leave) Sarah Wollaston (Conservative, Remain) Helen Jones (Labour, Remain) Charles Walker (Conservative, Leave) Meg Hillier (Labour, Remain) Bernard Jenkin (Conservative, Remain)

specific parts of (e.g. amendments tabled by members) or on a whole report. If we look at the period since the 2017 election, the only votes that had taken place by the start of the 2018 summer parliamentary recess were on Brexit-related reports. However, 95 per cent of these votes took place within only two committees (Exiting the EU and International Trade).

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Furthermore, many of the divisions on the International Trade committee concerned the transparency of appointments to a Trade Remedies Authority. Divisions on Brexit-related reports from the Northern Ireland Affairs committee and Environment, Food and Rural Affairs committee were not simple Leave versus Remain votes. Excluding the Exiting the EU committee, 24 of the 28 Brexit-related reports have achieved unanimity, including those on customs, immigration (Home Affairs), transitional arrangements (Treasury) and the impact of Brexit on key sectors (Business, Energy and Industrial Strategy). In addition, when we compare the 2017–2019 session with each session going back to 2010–2012, there has been no increase in the percentage of reports on which there are votes over time. This had gone from 10 per cent in the 2010–2012 session to 7 per cent in the 2017–2019 session by the beginning of the 2018 summer parliamentary recess. In short, aside from the Brexit committee, the Leave versus Remain fault-line has had little effect on unity in agreeing select committee reports. This should be to the benefit of committees insofar as unanimous agreement means their reports carry more weight. Given its centrality to the scrutiny of the Brexit process and on the basis that all of its reports have been subject to committee votes, we look in more detail in the next section at the Exiting the EU select committee. Our analysis here complements that of Thompson and Yong (2019, in this volume), who assess the role of the House of Lords EU committee. 4.2  Select Committee on Exiting the EU The Select Committee on Exiting the European Union (the DExEU committee, or Brexit committee) is one of the most divided since the creation of departmental select committees in 1979. It is unusual in having a clear fault-line between those who support a harder Brexit and those who favour a softer Brexit, with the former in the minority. Of the DExEU committee’s 21 members, 14 campaigned for Remain in the 2016 EU referendum: 6 Labour, 4 Conservative, 2 SNP, 1 Liberal Democrat and 1 Plaid Cymru (see Table  3.2). Five of the Labour MPs subsequently voted for the European Union (Notification of Withdrawal) Act 2016 which triggered Article 50, but Stephen Timms voted against and has rebelled on votes on staying in the single market and customs union. All Labour members of the committee voted for the Lords’ amendment to the EU (Withdrawal) Bill asking the government to aim for retaining UK membership of the European Economic Area (EEA). The four

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Table 3.2  Voting on DExEU committee reports, 2017–2019 (eight reports) MP

Party

Position in EU referendum

Hilary Benn (Chair) Peter Bone Christopher Chope Stephen Crabb Jonathan Djanogly Richard Graham Andrea Jenkyns Jeremy Lefroy Craig Mackinlay Jacob Rees-Mogg John Whittingdale Stephen Kinnock Seema Malhotra Pat McFadden Emma Reynolds Stephen Timms Joanna Cherry Peter Grant Wera Hobhouse Hywell Williams Sammy Wilson

Labour

Remain

Votes with majority Votes with minority on DExEU cttee on DExEU cttee 3 (100%)

0 (0%)

4 (14%) 5 (11%)

25 (86%) 39 (89%)

Conservative Remain Conservative Remain

42 (84%) 34 (79%)

8 (16%) 9 (21%)

Conservative Remain

23 (50%)

23 (50%)

Conservative Leave Conservative Remain Conservative Leave

2 (6%) 52 (91%) 5 (9%)

34 (94%) 5 (9%) 53 (91%)

Conservative Leave

5 (11%)

41 (89%)

Conservative Leave

8 (17%)

38 (83%)

Conservative Leave Conservative Leave

Labour

Remain

52 (93%)

4 (7%)

Labour

Remain

41 (91%)

4 (9%)

Labour Labour

Remain Remain

47 (92%) 36 (97%)

4 (8%) 1 (3%)

Labour SNP SNP Lib Dem

Remain Remain Remain Remain

55 (93%) 54 (92%) 54 (92%) 47 (90%)

4 (7%) 5 (8%) 5 (8%) 5 (10%)

Plaid Cymru Remain

51 (91%)

5 (9%)

5 (11%)

39 (89%)

DUP

Leave

Note: As Chair, Hilary Benn only votes in the event of a tie. He has done so on three occasions, each time voting with Remain-supporting members

Conservative Remainers voted to trigger Article 50, but Jonathan Djanogly and Jeremy Lefroy rebelled on the Grieve amendment to the European Union (Withdrawal) Bill in December 2017. Seven DExEU committee members voted Leave: six Conservatives and one DUP. These Conservatives

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are all members of the European Research Group (including its Chairman, Jacob Rees-Mogg). The 2017–2019 DExEU committee (and its Conservative cohort) has two fewer Leave-supporting MPs than in 2016–2017. The DExEU and Northern Ireland select committees are the only ones in which the Conservatives and the DUP together have a majority. However, these parties have rarely been able to take advantage of this because the DExEU committee is not divided primarily along party lines. Most divisions have seen Leave-supporting MPs oppose those who supported Remain, indicating a Leave versus Remain fault-line. However, this terminology is problematic as some committee members who backed Remain then voted to trigger Article 50, and the committee itself does not suggest halting Brexit. The divide is better described as one between those favouring a harder Brexit and those favouring a softer Brexit. The level of division in the committee as a whole can be seen by assessing the 59 votes taken by the committee on the first eight reports of the 2017–2019 session using the Rice Index (Clausen 1977). This is calculated by finding the absolute value of the difference in the proportion of the committee voting yes and that voting no, and multiplying the result by 100. The index can take on values between 0 (where a committee is split 50:50) and 100 (where all members vote the same way). When interpreting Rice Index values for the DExEU committee, we should note that because there are only 21 committee members, the index is rather sensitive to small changes in the numbers voting yes or no. Nevertheless, it still gives us a broad indication of the level of division. The average Rice Index value for the committee as a whole in votes on reports is only 29. If we look at the Rice Index by party and by referendum position, we see that MPs who voted Leave in the referendum score 100 on the index for 56 of the 59 divisions on the first eight reports of the 2017–2019 session. The main exception was when committee vice-chair John Whittingdale was the only Leave MP to support the final version of the first report. Those voting Remain, on the other hand, have an average Rice Index value of 82. Labour MPs voted entirely cohesively on all 59 votes, while Conservatives were much more divided with a Rice Index average of 44. Lefroy and Djanogly were the Conservatives most likely to side with the majority, but Remain-voter Richard Graham often voted with his more Eurosceptic colleagues. Looking at the outcomes of votes on reports, while they tend to vote cohesively, hard Brexiteers have been in the majority only five times.

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The Brexit committee is unusual in its level of division. Most select committee reports are agreed without votes. But too great an emphasis on achieving unanimity may mean committees avoiding inquiries on controversial topics or settling for anodyne reports. Achieving consensus on the DExEU committee was always a tall order given its size, status as lead committee on such a contentious issue and the entrenched positions of some of its members. Efforts have been made to reach more widespread agreement, with such meetings often lasting several hours, and have borne fruit on many issues. But relations between Eurosceptics and Chair Hilary Benn have been strained in both the parliamentary sessions in which the committee has existed. In March 2017, several MPs walked out of a private meeting about the committee’s third report of the 2016–2017 session on the government’s Brexit negotiating position (BBC News 2017). Evidence of tensions can also be seen in Leave-supporting Andrea Jenkyns’ decision in May 2018 to leave her position as a Parliamentary Private Secretary (an unpaid post on the bottom rung of the government ladder) to concentrate on her role as a member of the Brexit committee (Jenkyns 2018). She cited the minority position of Leavers on the committee as justification. Conservative Eurosceptics have used the committee to put their views on the record and challenge the Remain/soft Brexit position. They have voted against each report in the current session. In the third report of 2017–2019 (House of Commons Exiting the EU Committee 2018b), the seven Leave-supporting members backed an alternative draft report tabled by Rees-Mogg which struck a more optimistic tone on a frictionless border between Northern Ireland and the Republic of Ireland, a free trade agreement and the government’s approach. Although rejected, it is included in the formal minutes (in effect, as a minority report). This was one of 25 unsuccessful amendments to reports put forward by Leave members. Eurosceptics also opposed the recommendation that the Article 50 period be extended if agreement on the Future Partnership is not reached by October 2018 (House of Commons Exiting the EU Committee 2018b, para. 86, 2018d, paras. 36 and 44). They voted against the 15 tests for the Future Partnership set out in the fourth report of 2017/19 (House of Commons Exiting the EU Committee 2018c, para. 181), and the suggestion—proposed by Graham—that the EFTA/EEA membership has advantages should negotiations on a deep and special partnership fail (para. 114). These ambitious tests and tacit support for a ‘Norway-style’ arrangement are likely to provoke divisions on future DExEU reports.

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4.3  Select Committee Influence Divisions and tensions within committees may be damaging, but it does not necessarily follow that they lead to ineffectiveness. Earlier we referred to a range of forms that select committee influence can take (Benton and Russell 2013), from governments implementing committee recommendations, to drawing attention to issues, acting as a source of evidence and holding ministers to account. In this section, we look for evidence of select committee influence in various forms in the Brexit process. A significant caveat applies here. Given the range of actors trying to make a difference in the Brexit process, singling out the influence of a select committee from that of other institutions or individuals is very difficult. We therefore provide evidence of where House of Commons select committees appear to have made a difference but we do not claim that this difference results only from committees’ actions. Because of the lack or vagueness of government responses to particular reports and due to the short time frame of the Brexit process so far, we have not used Hindmoor et al.’s (2009) or Russell and Benton’s (2011) approaches to coding the government’s responses to select committee recommendations or examining the content of future legislation in light of committee reports, except in cases where the EU (Withdrawal) Bill was altered in line with select committee recommendations. If we consider how far governments have acted on committee recommendations, we noted earlier the influence of the Procedure committee on the EU (Withdrawal) Act’s provisions concerning the sifting of SIs resulting from the Act. In addition to this, several important suggestions made by the DExEU committee in its first report of the 2016–2017 session (House of Commons Exiting the European Union Committee 2017a) were followed through by the government. The committee recommended the government publish a White Paper by February 2017 setting out its negotiating strategy (para.38), that the government seek a period of transition to any new trading relationship with the EU following the UK’s official departure (para. 163) and that Parliament be given a vote on the deal agreed with the EU (para. 168). The White Paper appeared and recommended a period of implementation and a parliamentary vote on the deal reached with the EU, reflecting important elements of the constitutional and procedural dimensions of Brexit. Nevertheless, in its responses to their first four reports of 2017–2019, the government has neither endorsed nor rejected many of the DExEU committee’s recommendations.

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The government came under criticism for failing to include in the EU (Withdrawal) Act provisions in the Lisbon Treaty recognising animal sentience. It published a draft bill with the aim of bringing this recognition directly into UK law. In its scrutiny of this draft bill the EFRA committee recommended that the concept of animal sentience be dealt with in a separate piece of legislation (House of Commons EFRA Committee 2018a). The government responded that it was looking at ways to ‘directly address the committee’s concerns’ on this specific issue (House of Commons EFRA Committee 2018b). There is some evidence that select committees have required the government to make clear its position on particular issues. For instance, in response to challenging questions from the Brexit committee in October 2017, David Davis commented that a deal with the EU could be signed before Parliament had a vote. This prompted an urgent question in the Commons in response to which the government was forced to clarify its position. Select committees have also demonstrated an ability set out by Benton and Russell (2013) and described by one clerk we interviewed as ‘putting a magnifying glass on an issue’. The Science and Technology committee’s session with the then Minister for Defence Procurement (Guto Bebb) in June 2018 led to media coverage of the cost of a UK equivalent to the Galileo satellite navigation system, a major issue in the UK’s discussions with the EU on a future defence relationship. A month prior to this, the Brexit committee had held a session with experts on space policy, which also drew attention to the implications of the UK not being part of the Galileo project. The BEIS committee’s report on the effect of Brexit on the automotive industry, including the prediction of job losses under some circumstances (House of Commons BEIS Committee 2018), provided evidence used by MPs with car manufacturers and related industries in their constituencies to express concerns (e.g. House of Commons 2018b). Following Labour’s ‘motion for a return’ humble addresses, the Brexit committee published the government’s sectoral analyses and economic analysis of exiting the EU (House of Commons Exiting the EU Committee 2017b, 2018a). This provides evidence of select committees (along with other actors) putting information in the public domain that would not otherwise be there. The Science and Technology select committee in the Commons appeared to be making a direct attempt at agenda setting with its report proposing an immigration policy for scientists. This was a reaction to the government’s rejection of the committee’s proposals that the report of the

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Migration Advisory Committee be brought forward so that it could form part of an early UK-EU deal for science (House of Commons Science and Technology Committee 2018). The aim was to feed into discussions on immigration between the UK and the EU. This is an unusual approach by a select committee and it remains to be seen how influential it will prove. Possibilities for select committees to influence the agenda are also surely affected by the extent to which their Brexit-related inquiries reach similar conclusions. In some cases, committees have made differing recommendations, allowing the government to select those closest to their own position. This occurred with the Treasury committee report on transitional arrangements which did not endorse suggestions that the Article 50 process could be extended (House of Commons Treasury Committee 2017), in contrast to the Brexit committee’s recommendations. Nonetheless, common themes have emerged across reports particularly in the 2017–2019 session, such as opposition to a ‘no deal’ scenario and support for continued regulatory alignment and close links with key EU agencies after Brexit, making it more difficult for the government to dismiss them.

5   Conclusion By considering the role of Parliament in amending legislation and the actions of House of Commons select committees, along with other procedural tools used by MPs, we have assessed the role and influence of the UK Parliament in the Brexit process, with a particular focus on the House of Commons. If we look first at the constitutional dimension of Brexit, how has the executive-legislative relationship played out in the UK? We conclude that this has not yet fundamentally changed, partly because the amendment to the EU (Withdrawal) Bill that would have allowed Parliament to direct the government’s negotiating strategy in the event of a defeat on the deal agreed by the government with the EU was overturned by MPs. Nevertheless, divisions within the two largest political parties and the government’s minority status after the 2017 general election mean that the executive has had to make concessions to its own backbench MPs on both sides of the referendum debate, in order to ensure the passage of legislation. Even then, by the summer of 2018, the government had twice been defeated in the Commons on amendments to Brexit-­ related legislation. By that time, there did not appear to be a secure majority for any of the main options for a UK-EU deal, that is, the arrangement set out in the government’s White Paper of July 2018 (HM Government

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2018), membership of the EEA and ‘no deal’, resulting in trading on World Trade Organisation terms. As a result, a meaningful vote on this issue could be difficult for the government. These problems for the executive indicate that while Parliament still appears to be what Norton (1990) would call a policy-influencing legislature, which can modify or reject proposals from the executive, it is possible with regard to Brexit that it could become a policymaking Parliament which can introduce its own policy independent of government. This is, of course, dependent on the outcome of the meaningful vote. Nevertheless, as Smith (2019, in this volume) notes, members of both the Commons and the Lords sought to avoid an executive power grab in the Brexit process. Select committees have attempted to influence government in a range of ways. We found evidence of several of the forms of select committee influence identified by Benton and Russell (2013). The DExEU committee successfully channelled demands for a White Paper on the government’s negotiating position and the need for a transition period and a parliamentary vote on the deal reached with the EU. The committee published (following Labour’s humble addresses) government analyses of the possible effects of Brexit that government was not initially willing to place in the public domain. Select committees have drawn attention to possible effects of Brexit in particular areas of policy and contributed to designing how the scrutiny of SIs resulting from the EU (Withdrawal) Act will work. Common themes have emerged from select committee reports, including the problems that might follow if no deal is reached with the EU, and the benefits of regulatory alignment and remaining in certain EU agencies. A government defeat on the Trade Bill put this latter recommendation on the statute book with regard to the European Medicines Agency’s regulatory network. Differing views of Brexit have led to very few divisions on reports beyond those from the DExEU committee. This range of activity corresponds with some of the different forms of scrutiny set out by Thompson and Yong (2019, in this volume), including attempts to amend legislation as well as putting on record the pros and cons of government proposals. On the procedural dimension of Brexit, Parliament’s attempts to achieve direct influence on the negotiations have not come to fruition. Nevertheless, amendments to Brexit-related legislation mean that Parliament has attempted to ensure it can influence the process of negotiations once the deadline for an agreement is reached. Parliament is guaranteed a vote on any deal negotiated with the EU, and the minority status of

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the government means that the views of backbench MPs cannot be discounted. The scrutiny of Brexit has been largely through formal parliamentary mechanisms described in this chapter, with informal negotiations being more important in the government’s relations with its backbenchers to whom concessions have been made on Brexit-related legislation. Our analysis of votes on Brexit-related issues in Parliament has shown that the party political dimension is crucial for understanding vote outcomes and concessions made by the government. Consistent with previous work on parliamentary rebellions (Cowley 2005), we find persistent rebels in both the largest parties in the Commons. The two government defeats in the Commons have resulted from a combination of pro-EU Conservative rebels and Labour MPs. Other defeats have been narrowly avoided as a result of a small number of pro-Brexit Labour MPs siding with government-supporting Conservatives. The threat of rebellion from members of the ERG on the Taxation (Cross-Border Trade) Bill was also used effectively to extract concessions from the government. Future votes will be affected by fluctuations in this coalition of hard Brexiteers from across the two main parties as well as by the number of Conservative MPs prepared to either defeat the government and risk an election or force a Conservative leadership contest. The UK Parliament has engaged in a great deal of scrutiny of the Brexit process via a range of parliamentary tools and institutions, including select committees, humble addresses and urgent questions. Legislation has been altered as a result of backbench pressure, and the range of views within and between parties means that the government cannot be sure of clear support in the Commons for any particular deal with the EU. While we may not have seen evidence of fundamental constitutional change in Parliament’s position, both the Commons and the Lords, as Smith (2019, in this volume) shows, have exercised influence independently of government in the process of preparing for Brexit.

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Norton, P. (1990). Parliaments: A Framework for Analysis. West European Politics, 13(3), 1–9. Rogers, R., & Walters, R. (2015). How Parliament Works (7th ed.). Abingdon: Routledge. Russell, M. (2013). The Contemporary House of Lords: Westminster Bicameralism Revisited. Oxford: Oxford University Press. Russell, M., & Benton, M. (2011). Selective Influence: The Policy Impact of House of Commons Select Committees. London: University College London Constitution Unit. Russell, M., & Gover, D. (2017). Legislation at Westminster: Parliamentary Actors and Influence in the Making of British Law. Oxford: Oxford University Press. Russell, M., Gover, D., & Wollter, K. (2016). Does the Executive Dominate the Westminster Legislative Process? Six Reasons for Doubt. Parliamentary Affairs, 69(2), 286–308. Smith, J.  (2019). Fighting to ‘Take Back Control’: The House of Lords and Brexit. In T.  Christiansen & D.  Fromage (Eds.), Brexit and Democracy: The Role of Parliaments in the UK and the European Union. London: Palgrave Macmillan. Sturgeon, N., & Jones, C. (2017, July 13). Statement on the EU (Withdrawal Bill). Retrieved from https://news.gov.scot/news/eu-withdrawal-bill Thompson, L., & Yong, B. (2019). What Do We Mean by Parliamentary Scrutiny of Brexit? A View from the House of Commons. In T.  Christiansen & D. Fromage (Eds.), Brexit and Democracy: The Role of Parliaments in the UK and the European Union. London: Palgrave Macmillan.

CHAPTER 4

Fighting to ‘Take Back Control’: The House of Lords and Brexit Julie Smith

1   Introduction Relations with the European Union (EU) have divided British political parties ever since the Communities were established in the 1950s yet rarely have they dominated parliamentary business.1 However, when the Conservatives won the 2015 general election, the issue of ‘Brexit’ became a major focus of parliamentary business in the United Kingdom (UK). MPs and peers legislated first to hold a referendum on membership, then to trigger Article 50 of the Treaty on European Union, thereby starting the procedure to leave the EU, and thereafter passed the EU (Withdrawal) Act 2018, which was intended to ensure that the UK had a functioning statute book on the day it left the EU alongside formally repealing the 1972 European Communities Act. From an issue of low political salience, ‘Europe’ now dominated parliamentary business and raised new questions  The exceptions were the debates surrounding the UK’s entry into the Common Market, culminating with the European Communities Act 1972, and ratification of the Maastricht Treaty in 1992. 1

J. Smith (*) University of Cambridge, Cambridge, UK e-mail: [email protected] © The Author(s) 2019 T. Christiansen, D. Fromage (eds.), Brexit and Democracy, European Administrative Governance, https://doi.org/10.1007/978-3-030-06043-5_4

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about the relations between Government and Parliament, the relationship between direct and representative democracy and, crucially, the role of the unelected second chamber, the House of Lords. During the referendum, the Leave campaign exhorted voters to ‘Vote Leave: take back control’. The EU’s alleged lack of democratic credentials was a key part of their rhetoric and it was assumed that the Parliament in Westminster would be the beneficiary of the UK taking back its laws. Yet, as this chapter argues, the reality of post-referendum politics in the UK was somewhat different as the Prime Minister sought to deliver her version of Brexit without challenge from Parliament, unwilling to accept that her proposals might be worthy of amendment or that Parliament should shape the process of leaving the EU in any meaningful way. The referendum had paved the way for increased executive dominance and the upper chamber found itself criticised by MPs and media alike as it attempted to perform its key functions of scrutinising legislation and holding the Government to account (Letts 2018; New Statesman 2018). Complementing the chapters by Lynch et al. and by Thompson and Yong in this volume, this chapter will consider the role the House of Lords is able to play in shaping legislation relating both to the UK’s departure from the EU and to its legal order post-Brexit. Focusing on two key pieces of legislation, the EU (Notification of Withdrawal) Act 2017 and the EU (Withdrawal) Act 2018, it shows that the House of Lords has a narrowly defined role in the legislative process which could have been further constrained by Brexit. However, the actions of both Houses of Parliament enabled Parliament to exert some influence over the Executive on key aspects of the EU (Withdrawal) Act, suggesting concerns about an executive power grab should not be overstated. Moreover, it demonstrates that when a Government has a very small majority in the House of Commons it must become more attuned to the wishes of Parliament, which allows the Lords to exercise influence despite their inability formally to veto legislation. The chapter draws on both academic analysis of the evolving role of Parliament, media and political discourse, and on personal insights as a parliamentarian who witnessed the debates, votes and Government reactions from within the House of Lords. The chapter starts with a brief overview of the evolving role of the House of Lords in British politics before assessing how peers use their powers to affect Brexit. The main focus is on formal powers, although

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informal means are discussed where they contributed to peers’ ability to influence legislative outcomes, whether directly or indirectly. It discusses the significance of governing parties’ manifesto commitments for their ability to get the proposed legislation through the House of Lords. It considers how party affiliation affects Lords’ rhetoric and willingness to defeat the Government, noting that peers proved more willing than MPs to defy their party line over Brexit-related legislation—at least until the Commons’ ‘meaningful vote’ in January 2019, just weeks before the proposed ‘Exit Day—while also noting the pivotal role played by the non-­ aligned Crossbench peers. Finally, it argues that while Government defeats in the Lords matter, peers also exercise influence in other ways such that the Government may bring forward amendments of its own. The House of Lords’ EU Select Committee, referred to by Thompson and Yong (2019, in this volume), and its seven sub-committees have long played a key role in scrutinising the EU proposals. In the years following the 2016 referendum, they produced numerous well-informed reports on different aspects of Brexit, which have served as the basis for many of the debates held in the Lords since the referendum.2 Given the constraints of space, this chapter focuses on the legislative role of the Lords in the context of Brexit and thus does not look in detail at the extensive work of the House of Lords’ EU Select Committee, which does not directly affect the legislative process.

2   The House of Lords in British Political Life Before considering the role of the Lords in the context of Brexit it is worth outlining its constitutional role and composition, which mark it out from other parliamentary bodies in modern democratic systems and help explain the Lords’ unique role as legislators who cannot be kicked out by the voters and, hence, do not have the same incentives to respond to the ‘will of the people’ as MPs may have, especially when they are expressed in a referendum. Members of the upper house have been known as ‘peers’ since the fourteenth century, while the term House of Lords dates back to the reign of Henry VIII in the sixteenth century (House of Lords 2017). Traditionally Lords were appointed by the monarch, and their titles and right to a seat in the upper house could be inherited. In addition to these 2  For further discussion of the role of the Lords’ EU Committee, see Huff and Smith (2015) and Smith (2017b).

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Lords Temporal, 26 Bishops of the established Church of England sit in the Lords, bringing a rather independent perspective to legislation and to the question of Brexit.3 Following the Act of Union with Scotland in 1707, the Scots elected a number of peers to the Lords. While Irish peers were also appointed after Union in 1800 (House of Lords 2017, p. 4). Thus, two of the four nations of the UK were directly represented in the Lords. This practice died out after Irish independence in the 1922, and in 1963 the Scots stopped electing their members (ibid.). Thereafter peers had no role in territorial representation, a matter which was to have implications for the legislation to hold a referendum and on the legislation adopted to implement Brexit.4 To a certain extent it gives peers the flexibility to act in the national interest rather than in the interests of a narrower group of constituents. However, in the context of a United Kingdom comprising four ‘nations’— England, by far the largest, Wales, Scotland and Northern Ireland—where the former two voted Leave and the majority in the remaining two voted Remain, it becomes difficult to assert a single ‘national interest’. After the 1959 Life Peerages Act most new peers were appointed for ‘life’ usually on the recommendation of party leaders (and disproportionately to the three main parties—Conservative, Labour and Liberal Democrat), although some eminent people from outside politics are appointed and sit on the Crossbenches as non-aligned peers whose role can be very significant.5 Until 1999, the majority of peers were still hereditary, ensuring that the Conservatives had an in-built majority in the Lords. Lords reform in 1999 removed all but 92 hereditary peers, resulting in a smaller, mostly appointed and perhaps rather more partisan chamber, albeit one in which no party had a majority. Membership was not all that changed during the twentieth century. The Lords’ relationship with the executive also changed, becoming more distant as a convention emerged that Prime Ministers and increasingly other ministers should sit in the elected House of Commons. The Executive 3  The Bishops proved to be somewhat divided over Brexit issues with one or two supporting the Government position, other supporting amendments. 4  The question of territorial representation was raised by Lord Northbrook in September 2018. See Hansard 7 September 2018. 5  Those peers who identify as Crossbenchers sit as a group and have regular meetings with fellow Crossbenchers. However not all non-party peers are Crossbenchers; some sit as Independent Labour, for example.

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depends on the legislature to secure and retain office and to enact its legislation, while members of the legislature, primarily of the House of Commons, rely on the Executive for patronage and the chance to climb the ‘greasy pole’ of political office. While some MPs may be willing to put career advancement on hold in favour of points of principle, or crucially what they believe to be the national interest, acting in a traditional Burkean way as representatives using their judgement rather than as delegates doing what their constituents want them to do, most will tend to toe the party line. The situation in the un-elected House of Lords is somewhat different. Until the turn of the twentieth century it was not uncommon for the Prime Minister and several other ministers to sit in the House of Lords rather than as elected MPs, ensuring that the fused legislative-­ executive was as apparent in the upper chamber as the lower. However, it is now rare for Cabinet ministers to sit in the Lords, so business in the Lords is led by more junior ministers or Government Whips, who in the Lords act as de facto ministers, answering questions and leading debates, unlike Whips in the Commons whose role is solely about party discipline. While a majority of peers do take a party whip, that is, they sit with (and generally vote with) fellow peers from the Conservative, Labour or Liberal Democrat parties, nearly a quarter of peers sit as Crossbenchers, members who are not aligned to any party and bring a degree of independentmindedness and expertise rarely seen in force in parliamentary chambers. By extension, they also add a considerable degree of unpredictability to the voting arithmetic in the Lords. 2.1  Powers of the House of Lords Since Tudor times (1485 onwards) both the Lords and the Commons must give their ‘assent’ to legislation in order for it to pass (House of Lords 2011, 2017) but the actual powers of the Lords in the twenty-first century are far more circumscribed than those of the Commons. The upper chamber has no say in Government formation or financial matters and its role in the legislative sphere is more limited than that of the Commons. As Miles Taylor notes, Walter Bagehot believed even a century and half ago that the role of the Lords was ‘to act as a revising chamber, for the House of Commons was usually too busy and sometimes too self-­important to give legislation the attention it demanded’ (Taylor 2001, p. xxvii). Since then the powers of the unelected Chamber have been curbed after  they attempted to overplay their hand during the 1906–1910 Liberal Government; the shadow of reform and/or abolition has hung over the

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Lords ever since, providing at least one threat that might be expected to keep peers in line. Having secured a landslide in the 1906 general election, the Liberals found themselves unable to get legislation through the Conservative-­ dominated Lords and, having seen their 1909 budget rejected by peers in an unprecedented move, in their 1910 manifesto the party argued: ‘The possession of an unlimited veto by a partisan Second Chamber is an insuperable obstacle to democratic legislation…The limitation of the veto is the first and most urgent step to be taken’ (House of Lords 2017, quoting Iain Dale, ed., Liberal Party election manifestos 1900–1997 (2000), p. 31). Owing to the re-elected Liberals’ frustration that a fundamentally Conservative (in both senses) body could thwart the will of the elected chamber, the 1911 Parliament Act removed the Lords’ ability to reject legislation, leaving it with powers only to amend legislation and to delay it for up to two years. Further reform in 1949 reduced that power to a one-­ year delay, not something that would normally prove fatal to legislation or catastrophic for the Government’s ability to push its legislative agenda through—unless, of course, a Bill is time sensitive as the EU (Withdrawal) Bill [EU(W)B] and other Brexit-related legislation are, owing to the two-­ year window for negotiations enshrined in the Article 50 provision for states seeking to leave the EU. The triggering of Article 50 on 29 March 2017 just prior to the calling of an inconclusive general election led to a very tight timetable for the legislation necessary to ensure the UK had a complete statute book on the day it left the EU. A delay of even a year would have rendered the passage of the EU(W)B ahead of the departure date almost impossible. After all, the Bill only reached the House of Lords in January 2018 and was finally enacted in June that year, only nine months ahead of the projected departure date of 29 March 2019; a year’s delay would have ensured the legislation was not in place. Subsequent legislation linked to any Withdrawal Agreement would be even more vulnerable to any slippage arising from the Lords attempting to use their powers of delay or even to their taking time to amend the legislation since by definition it could not begin its legislative passage through Parliament prior to any Withdrawal Agreement between the UK and the EU27 for which the target date was mid-October 2018, less than six months before the ‘Exit Day’; a date that was in any case missed. Why do delays matter so much? Precisely because of the breadth and depth of EU legislation that impacts directly and indirectly on the UK as an EU Member State. Broadly speaking, Directives must be transposed into domestic legislation while Regulations are directly applica-

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ble in the Member State concerned. While the EU legislation would remain in place during any transitional period that the UK might negotiate, departure without any deal or without a transitional agreement would mean EU law ceased to apply immediately, leaving the UK with significant holes in its statute book as Regulations ceased to apply. The purpose of the EU(W)B, apart from the repeal of the 1972 European Communities Act, was therefore designed to ensure that there would be legislative certainty on the day the UK left the EU. Paradoxically, it would mean enshrining all (or almost all) EU law into domestic legislation, ensuring that on the day of departure from the EU, the UK would in many ways be the most Europeanised country in Europe.6 Given the uncertainty of what the final deal might look like (Article 50 only refers to the Withdrawal Agreement ‘taking into consideration the future relationship’) and the possibility of a ‘no-deal’ scenario, the Government believed the EU(W)B was a necessary precursor to leaving the EU, while acknowledging that some or all of its provisions would have to be suspended in the event of a transitional period, which the Government chose to refer to as an ‘implementation period’, although precisely what it presumed to implement was unclear; in practice it was expected be a period in which the UK had all the obligations of membership but was absent from all the EU institutions. Although the Lords technically have the power to delay legislation, they have a tendency to exercise self-restraint owing to a recognition of their unelected status, which made it unlikely that peers would delay the Brexit legislation. The Lords’ position is more open to challenge than that of most second chambers being unelected and, hence, vulnerable to criticism if they appear to go against the express will of the Commons, which in the context of Brexit seemed to be elided in the minds of many commentators with ‘the will of the people’ since the decision to leave the EU  had been taken by referendum. This vulnerability of the Lords was compounded in the EU(W)B and the EU (Notification of Withdrawal) Bill where Brexiteers, whether in Parliament, the press or the public, would accuse the Lords of ignoring ‘the will of the people’ whenever they sought to amend any Brexit-related legislation (see, for example, Letts 2018).

6  Of course, the UK has opt-outs from the Euro and the Schengen Accords, so is not as fully integrated as some EU Member States, but enshrining EU law into domestic law would mark a degree of ‘downloading’ rarely seen in full Member States.

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Nonetheless, for two years peers did demonstrate a greater willingness than MPs did to challenge the view that the Prime Minister’s approach to Brexit was unchangeable in any way. Peers were willing to scrutinise and amend the Brexit legislation but did not seek to thwart it entirely. This is in line with the so-called Salisbury Convention whereby the two main parties (the Conservatives and Labour) are committed not to vote against legislation emanating from the governing party’s manifesto at Second Reading. The Crossbench peers are not formally party to the Convention but nonetheless express caution when dealing with Bills derived from manifesto pledges. The third largest party in the Lords, the Liberal Democrats never accepted the Salisbury Convention. This would affect Lib Dem peers’ response to the first piece of Brexit legislation, the EU (Notification of Withdrawal) Bill, which arrived in Parliament in early 2017 following a legal case by Gina Miller as discussed by Thompson and Yong in this volume. Lords are not precluded from amending legislation. Indeed, asking the House of Commons to ‘think again’ is a key part of their role. In the context of a large Commons majority for particular issues, their Lordships’ attempts to get MPs to think again would be likely to fall on deaf ears. Too few MPs from the Government benches would ever rebel in sufficient numbers to defeat the Government line, or so the theory went until disproved by Brexit-related votes in January 2019. However, in the face of a slim majority (or even the absence thereof when one considers the nature of the Democratic Unionist Party’s [DUP’s] support for the Conservatives after the 2017 election), just a few defections from the party line were needed to defeat the Government on the EU(W)B and other Brexit-­ related matters, whether legislation or votes on the ‘deal’ due at the end of the withdrawal negotiations. Thus, the Lords’ attempts to revise the legislation stood a better chance of success than would have been the case had May not held a general election in 2017, since Government Whips could not be sure that no MPs would rebel if successful Lords’ amendments were sent back to the Commons for their agreement. Intended to strengthen the PM’s hand, the election had actually weakened it regarding the negotiations with the EU because the splits within the Government were so visible as well as in terms of getting her legislative proposals through Parliament. Internal Tory divisions were seen on a daily basis and the willingness of some MPs to rebel in the voting lobbies not just in speeches rendered the Lords’ attempts to improve the legislation relatively easier than they might have been. As we will see, the Lords found it easier to revise the EU(W)B than the Bills introduced when there was a Conservative majority in the Commons.

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3   Was It in the Manifesto? During the 2010–2015 Coalition, the Government was in the unusual position of having a de facto majority in the House of Lords and while it still suffered some defeats, it could typically rely on Conservative and Liberal Democrat peers to push legislation through in a way unheard of for decades.7 A hung Parliament in which no party had an absolute majority of seats in the House of Commons created a paradoxical situation whereby the solution of creating a coalition strengthened the incoming Government’s powers vis-à-vis the legislature thanks to the knock-on effect in the House of Lords which constitutionally is not directly affected by the results of a general, or any other, election. Yet, while this new circumstance helped the Government get its business through Parliament, it did not help the Conservatives push through legislation which they alone favoured if it was not enshrined in the Coalition Agreement, and was not even in the party’s own 2010 election manifesto. Thus, when in response to David Cameron’s volte face over holding a referendum on the EU membership—announced in his 2013 Bloomberg Speech—backbench MP James Wharton introduced a Private Member’s Bill (PMB) on an EU referendum into the House of Commons, peers effectively talked the Bill out when it arrived in their chamber (see Smith 2015, p. 394).8 There was no constitutional crisis: the Bill was not Conservative or Coalition policy. Thus peers, who were generally more pro-European than their elected counterparts were, saw no good reason to support this unwarranted legislation as they saw it, arising as it did from a decision taken by David Cameron in the interests of political expediency to try to avoid his own party splitting on the European question. By contrast, after the 2015 election, the majority Conservative Government that had replaced the Coalition could not rely on any sort of majority in the Lords. Like Labour over the decades, the Conservatives 7  The Coalition Agreement’s commitment to increasing the number of peers to reflect more closely the percentage vote at the previous general election helped in this regard, ensuring as it did that a disproportionate number of Liberal Democrats were elevated during the five years of Coalition. 8  Most legislation is initiated by the Government, but there are some opportunities for backbench MPs to propose legislation, typically via a PMB. MPs go into a ballot to secure a chance to put forward a PMB and those that come near the top of ballot have some chance of getting their Bill through, particularly if the governing party is supportive. For more information, see https://www.parliament.uk/about/how/laws/bills/private-members/

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had less than a third of the chamber behind them. However, with a referendum pledge in their 2015 election manifesto, they could rely on the Salisbury Convention that the Lords will not block legislation emanating from Governments’ manifesto pledges, ensuring that the Lords would not block progress on the EU Referendum Bill, which was duly introduced into Parliament and became law in 2015. Peers debated the proposals at length and voted through amendments particularly relating to the extent of the franchise. However, when the Commons rejected the attempts to enfranchise 16 and 17 year olds and UK nationals resident elsewhere in the EU for more than 15 years, the Lords did not insist on their amendments. This pattern is standard—the Lords may vote against the Government but if the Commons are unwilling to accept the changes in a subsequent vote, the Lords as an unelected chamber typically back down. Likewise, when Theresa May was required by the Supreme Court ruling in the Miller case to get parliamentary approval to trigger an Article 50 notification,9 the Lords were never going to try to block the Bill, however reluctant they might have felt about allowing a piece of legislation to pass which many felt would do untold damage to the UK. The referendum may not have been legally binding, hence the legal ruling that Parliament must legislate rather than accept the PM’s right to trigger Article 50. However, peers for the most part accepted that the outcome of the referendum had to be respected, which de facto meant passing the EU (Notification of Withdrawal) Act.10 Thus, only the pro-EU Liberal Democrats in the Lords (less a handful of rebels) who had not subscribed to the Salisbury Convention in the first place, voted against the Bill, citing the fact that citizens would not be able to have a vote on the final deal as the reason for their action. Other peers were clear that the legislation must pass given that the Conservative manifesto had been explicit that the party would accept the outcome with the referendum—a situation that was compounded by the fact that the 9  Originally, May argued she could trigger Article 50 by virtue of the referendum result. Only after a court case brought by Gina Miller was Parliament given the opportunity to legislate on the matters—an opportunity to ‘take back control’ had been won, despite the PM’s endeavours to take executive action. See also Lynch et al. and Thompson and Yong in this volume. 10  There is some dispute over whether Parliament can bind itself to abide by the outcome of a referendum but the EU membership referendum, unlike the vote on electoral reform held in 2011, was not legally binding. The legislation for the latter referendum explicitly stated it would be binding; that for the former did not.

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Labour Party had also pledged to accept the result of the referendum. The result was politically if not legally binding. Yet, as with the EU Referendum Act 2015, peers did not see the Salisbury Convention as necessitating they vote for the legislation unamended. The Convention is that peers should not vote down Government legislation at Second Reading, not that every detail of the Government’s proposals must be accepted; it does not presume that every point of drafting is perfect and unamenable to improvement. Indeed, that is the very role of the Lords as a revising chamber since the reforms of the early twentieth century. Very often the legislation passed from the Commons is poorly drafted and MPs have less time than the Lords to engage in line-by-line scrutiny of Bills; nor can MPs demand that specific amendments be debated in the way that the Lords can.11 Thus, the Lords’ contribution to improving legislation can be seen as helpful by MPs and interest groups (perhaps less so by the Government). Amendments, then, are a normal part of the Lords’ work. Yet the reaction from the media to Lords’ amendments to the EU(W)B as well as May’s determination to push through Brexit-related legislation unamended, whether the EU (Notification of Withdrawal) Bill or the EU(W)B, suggested that, far from the decision to leave the EU allowing Parliament or even the people to ‘take back control’, there was, perhaps, a move towards executive power grab.

4   Who Was Taking Back Control? The House of Commons passed the EU (Notification of Withdrawal) Bill unamended, as the PM would brook no amendments and some Leave-­ supporting MPs argued that it was necessary to get a ‘clean bill’ through Parliament to ensure that the Article 50 notification could be triggered, regardless of the significance of the issues, including the rights of EU citizens, 11  While Lords amendments are not all debated individually, and certainly are not all voted upon, as long as they are deemed to be ‘in scope’ by the clerks they can be tabled and potentially debated, typically grouped with other similar amendments, with peers deciding whether they wish to push particular amendment to a vote. There is again a degree of restraint as peers know that if they force too many votes other peers will become frustrated and may simply leave, something which tends not to happen in the Commons where whipping is much tougher. Nonetheless, peers have a much greater chance to press their preferred amendments to the vote than their Commons colleagues do, whose opportunity to get amendments debated depends on the Speaker. By contrast Thompson and Yong cite Keir Starmer’s frustration over the difficulty of securing debates on amendments on amendments in the Commons.

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on which the Lords were seeking amendments. It went unspoken that if the Government had chosen to accept the Lords’ amendments there would not have been any delay to the legislation. Nonetheless, the Lords, their personal feelings and even their ideas of the national interest and their Burkean judgement aside, did not seek to challenge the supremacy of the House of Commons, nor yet the ‘will of the people’ as articulated in the June 2016 referendum. They did not defeat, or even seek to defeat, the Bill. Nor did they persist with their amendments once the will of the Commons had been tested and proved firm. They had asked the Commons to ‘think again’ and thereafter accepted their views. The Lords may not have wanted Brexit but they recognised that constitutionally they could not block it. Nor were MPs seeking to do so—May had inherited a small but working majority in the Commons and there was no obvious threat to Brexit from the Lords. Nonetheless, on 8 April 2017, shortly after triggering Article 50, May announced she was calling a snap general election. Standing high in the polls, she hoped to secure a much larger mandate for delivering Brexit and strengthen her hand in the withdrawal negotiations with the EU27, even though the experience of the EU (Notification of Withdrawal) Bill had shown that she had sufficient support—or at least lack of opposition—to get Brexit legislation through both Houses of Parliament. The attempt backfired as a campaign focused on the PM as ‘strong and stable’ suggested she was anything but strong and stable and the shock outcome saw her lose her electoral advantage over Labour and her parliamentary majority in the House of Commons. This necessitated protracted (by UK standards) negotiations with the DUP, a pro-Brexit Unionist Northern Irish party, which eventually offered the Conservatives ‘supply and confidence’, that is, arrangements less than a coalition. May would remain PM at the head of a minority Conservative Government supported by the DUP but without the sort of formal coalition agreement that had kept the Lib Dems in coalition with the Tories for five years. The Tory-DUP deal did cover the question of Brexit to which the DUP was passionately committed despite the fact that Northern Ireland had voted Remain in the referendum. May could thus count on a (reduced) Commons majority on Brexit matters, but the Lords was a different proposition. Whereas Cameron could rely on a large number of Coalition peers in his first term in office, thanks to the substantial number of Lib Dem lords voting alongside the Conservatives, May could rely only on a handful of DUP peers. Nor did she seek to do what other leaders had done and create

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a set of new members after the election. Public opinion about an upper chamber that was already seen as bloated and out of touch was such that creating additional peerages was likely to be portrayed negatively, particularly in the tabloid press; proposals were thus quietly shelved only reappearing on the eve of Royal Wedding in an announcement that 13 peers were being created, including nine Tories and one DUP. While these were essentially the delayed dissolution peers from the previous year, there was much criticism about the PM further expanding the Lords at a time when the Chamber itself had proposed ways of reducing numbers.12 It was claimed that the new peerages were the PM’s way of trying to redress the balance in the Lords, although given the scale of defeats on some of the amendments ten more Government peers would do little to avert the losses. Post-election, the mantra of ‘the will of the people’ was still to the fore in discussions on Brexit, and if the PM could not claim to have a stronger mandate to negotiate withdrawal, she could argue that 85% of voters had opted for parties that had accepted the decision to leave the EU (that Labour ‘supported’ Brexit as May claimed was an overstatement, but the commitment to respecting the outcome of the referendum was clear in Labour’s manifesto). The election may have been inconclusive as far as the Commons was concerned but it served to reinforce the Lords’ acceptance of the outcome of the referendum, bound as they were by the Salisbury Convention in a way that they had not been during the 2010–2015 Coalition given that the Coalition Agreement had not been offered to the public by way of a manifesto. Peers were now duty bound to accept May’s next piece of Brexit-related legislation. Despite lacking a majority in the Lords, the PM could thus rest assured that the Lords would not block the EU(W)B.  Labour and Conservative peers alike largely took their steer from their Commons frontbench colleagues and made clear they would not wreck the Bill. Even the Liberal Democrats made clear they would not seek to vote down the Bill (see e.g. Lord Newby’s contribution in Hansard 30 January 2018, Col. 1382). Yet, if they were not minded to block the legislation, peers did seek to ‘improve’ it as those moving or supporting  In 2017 a Lords committee chaired by Lord Burns made recommendations on how to reduce the membership of the Lords without fundamental Lords reform. The eponymous Burns Report won support in the Lords and the Prime Minister had also indicated her support for it. 12

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amendments saw it, even if Brexiteers in Parliament or the media sought to portray any attempts to change the Government’s original draft as ‘wrecking’ tactics (see, for example, Daily Mail Comment 2018). The 2017 General Election and the loss of May’s parliamentary majority enhanced the leverage of the House of Lords. True, the Government had made a manifesto pledge to deliver Brexit, but the detail was arguably unclear. Some would beg to differ, arguing either that the nature of the future relationship had been made clear in the referendum—that is, that leaving meant the UK would be outside the customs union and outside the internal market, rendering membership of the European Economic Area (EEA) unthinkable—or that May’s September 2017 ‘Florence Speech’ had ruled out membership of the customs  union and internal market, the latter because of the free movement requirements that had engendered such negative feelings during the referendum. However, the constant infighting within her Cabinet made it difficult for advocates of a hard Brexit to make their case sufficiently convincing to retain the support of Crossbenchers who are typically mindful of the convention of the primacy of the Commons. Yet by September 2018, calls to remain in the EEA, tantamount to a ‘soft’ Brexit, were coming from all parts of the House (see Hansard 4 September 2018). Peers were assisted, even empowered, in their attempts to amend the legislation by the House of Commons, which, despite the Tories’ nominal majority thanks to the DUP, found that a few rebels could defeat the Government, leading the Daily Telegraph to put pictures of 13 potential pro-European Tory rebels on its front page under the headline ‘The Brexit Mutineers’ (Daily Telegraph, 15 November 2017; see also Lynch et  al. 2019, in this volume). So slender was the Government’s majority that just a handful of rebels could cause a defeat and the EU(W)B was drafted in such a way that even veteran Eurosceptic Sir Bill Cash raised concerns about the Government’s apparent ‘power grab’ in the form of so-called Henry VIII powers that would have given ministers wide-ranging powers to amend legislation without any reference to Parliament; that some ­flexibility would be needed was not in question given the sheer scale of the challenge of transposing so much legislation onto the statute books by March 2019 (or 2020 in the event of a transition period being agreed).13 An executive power grab was not acceptable to Parliament, however. 13  The term dates back to King Henry VIII who sought such powers in the sixteenth century.

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Thus, the legislation, while essential in order that the UK would have a functioning statute book on the day it left the EU, was far from perfect from a parliamentary perspective. Few amendments were successful in the Commons Division lobbies, but as (Lynch et al. 2019) discuss elsewhere in this volume, MPs did defeat the Government over the right to have a vote on the final deal—something that the European Parliament was already empowered to hold, as it is required by the Treaties to consent to any Withdrawal Agreement under Article 50 (on the European Parliament’s role: Brusenbauch Meislova 2019, in this volume). Peers thus prepared to pick up where the MPs had left off when the Bill arrived in the upper house in January 2018, focusing on a range of key issues, including membership of the/a customs union; membership of the single market; membership of the EEA; Henry VIII clauses; matters relating to devolved powers (Clause XI); and matters relating to Northern Ireland. Over the course of five months, the cross-party activity of peers saw the Government defeated 15 times.

5   Party Positions Since Lords reform, governing parties rarely enjoy a majority in the House of Lords; the experience of the 2010–2015 Coalition Government was the exception rather than the rule. David Cameron as leader of the Conservativemajority Government from 2015 and May from 2016 could not count on a majority in the Lords on any legislation not envisaged in their party’s election manifestos, regardless of subject matter. Legislation relating to the Brexit issue would prove even more difficult than normal because a large majority of peers were strong Europhiles, keen to remain in the EU or least minimise the impact of Brexit. The fact that Cameron had pledged to hold the referendum in the 2015 manifesto and May had committed to delivering Brexit in the 2017 manifesto meant that peers would not block necessary legislation; it did not mean they would simply nod the Government’s proposals though. Their role after all remains as Bagehot saw it: to improve matters that the Commons do not have time for, and that is what they sought to do on Brexit. How peers chose to engage in their constitutional duties depended on which group they were affiliated to: Conservative, Labour, Liberal Democrat or Crossbench. There are a handful of peers who are members of other parties, notably from the DUP (six) and United Kingdom Independence Party (three). They are not sufficiently numerous to form separate groups, nor are the latter able to make any effective

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Eurosceptic case in the Lords—to the extent the Leave voices are heard they are mostly on the Conservative benches, where some of the most passionate Europhile rebels also sit; for those at each end of the spectrum, the issue transcends party loyalties. Neither the Scottish or Irish nationalists (Scottish National Party and Sinn Féin) are willing to sit in the Lords, so their voices are notably lacking, requiring peers from other parties to speak up for the interests of Scotland and Northern Ireland, and in particular for the Remain majority in each nation.14 The Welsh nationalists had one very active and fervently Remain peer who joined forces with Labour, Liberal Democrat and rebel Tory peers throughout all the Brexit Bills. This lack of nationalist voices, like the lack of territorial representation, would matter less in a unitary state than in the UK of asymmetric devolution as it has evolved since the late 1990s. By 2018, such lack of ‘voice’ for three of the four nations of the UK raises serious questions about the adequacy of representation in the Lords. 5.1  Tories If the Lords were broadly pro-European/pro-Remain and Brexiteers in a distinct minority across the whole House,15 Conservative peers were nonetheless broadly bound to obey, if not ‘the will of the people’, at least the will of the Prime Minister, namely to deliver her version of Brexit, which she had indicated included leaving both the customs union and the single (internal) market. Thus, they were for the most part reluctant to vote against the party line or to support many of the amendments to the Bill. Moreover, the Conservative peers knew that rebelling could have consequences. Those peers who rebelled on the EU (Notification of Withdrawal) Bill prior to the 2017 general election found themselves removed from Committee positions and/or not put on new committees if their term of office had expired, and some of them made a lot of noise about their treat While Irish nationalist MPs from Sinn Féin will not take their seats in the House of Commons because they refuse to swear the oath of allegiance to the Queen, without which they cannot perform any role within Parliament, Scottish nationalists from the SNP are willing to sit in the Commons but refuse to nominate peers precisely because the Lords is not an elected chamber. In both cases, their supporters’ voices are diminished as a result of these decisions. 15  See Smith (2017b) for a discussion of the respective views of MPs and peers on EU matters. 14

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ment. Lord Cormack was the most vocal in telling the Chamber that he has been sacked. Quite what impact this punishment had was unclear; for Lord Cormack it seemed to serve almost as a badge of honour; it certainly did not prevent him rebelling frequently on the EU(W)B. Nor were others who had lost positions, as patronage was withdrawn, less minded to rebel as a result.16 Far from discouraging such behaviour as the Chief Whip might have wished, rebellions persisted. Thus, in the final stages of the EU(W)B over 20 Tory peers defied their Party Whip on one or more votes. Voting on the EU(W)B highlighted the ways in which rebels can impact legislation. Across the whole Bill, the Government was defeated 15 times in the Lords. As is normally the case, there were no votes at Second Reading, which is an opportunity for members to outline issues of concern to which they will return in later stages of the legislation. Very few of the hundreds of amendments debated at Committee, Report or Third Reading were pressed to a vote through the division lobbies; of those that were, the Government won only twice; the opposition, who with support from Tory rebels won on 15 occasions, reflected a very effective approach to keeping Labour and Liberal Democrat peers on message and securing the support of a lot of Crossbenchers. When amendments were pressed to the vote, on each occasion there were some Tory rebels going through the lobbies to support and in total 27 Conservative peers rebelled at least once. Yet none of the 27 rebelled in every one of the Government defeats; some were mostly loyal, rebelling only on key issues, notably the Grieve 2 Amendment (see Lynch et al. for the Commons perspective on this amendment). On other occasions some of the rebels were simply absent, neither supporting the Government nor yet overtly rebelling. For otherwise loyal peers staying away is less difficult than voting against a three-line whip; from the Government’s perspective this is less bad as well but it nonetheless reduces the chances of seeing off rebellions as the EU(W)B d ­ emonstrated very clearly. There was little in the rhetoric of the rebels to lead anyone to think they would return to loyal voting on subsequent Brexit-­related legislation. The Government’s attempts to ‘take back control’ as an executive power grab had been stopped by committed parliamentarians in the Lords, including on their own benches.

16  Lord Heseltine was also sacked from unpaid government roles when he rebelled on an amendment to give Parliament a ‘meaningful vote’ in March 2017 (Lister 2017).

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5.2  Labour Labour peers were, with very few exceptions, strongly in favour of remaining in the EU before the referendum and while most accepted the official party line of accepting the outcome of the referendum, there were marked differences from the position taken in the Commons. Jeremy Corbyn was a long-standing Eurosceptic whose stance on Brexit was seen as inadequate by his own front bench who triggered a leadership contest straight after the referendum. Corbyn retained the leadership and had a highly effective strategy in the snap general election of 2017 whereby Leavers felt that Labour respected the result of the referendum and Remainers believed Labour would offer a softer Brexit than the Conservatives. Labour’s Front Bench in the Lords remained determined to minimise the impact of Brexit as far as possible, actively moving and supporting amendments to keep the UK in a customs union, granting Parliament a meaningful vote on the outcome of the negotiations and stopping the Government’s attempts to use Henry VIII powers. Some Labour backbenchers were willing to go much further, sometimes breaking with their front bench to vote with Liberal Democrats and others. Indeed, on the issue of ongoing membership of the EEA a Labour backbencher, Lord Alli, brought about surprise Government defeat. 5.3  Liberal Democrats The second largest opposition party in the Lords has a long-standing Europhile stance and its members were deeply opposed to the idea of an in/out referendum during the Coalition period. While formally they too accepted the outcome of the referendum, they were early advocates of returning the issue of EU membership to the voters rather than leaving ratification of any withdrawal deal to Parliament. Most Lib Dem peers voted against the EU (Notification of Withdrawal) Bill on the grounds that such a referendum was not on offer. They did not seek to block the EU(W)B but were keen advocates of numerous amendments to the ­legislation. And while they could argue that they were merely asking the Commons to ‘think again’ on various issues, not overstepping their role as peers, it is noteworthy that the Liberal Democrats are strong advocates of an elected upper chamber, who were, perhaps, rather less concerned that Government defeats might trigger Lords reform.

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5.4  Crossbenchers The votes of the Crossbench peers can make all the difference to whether the Government can secure safe passage of its legislation through the Lords. On the whole, Crossbenchers have a small-conservative bent and are reluctant to overturn the will of the Commons lightly. However, among their ranks are numerous former Supreme Court judges, lawyers, former diplomats and academics, all of whom weigh the evidence carefully before voting, since they do not have a party whip exhorting them to vote a certain way. Thus, they are better able than party-affiliated peers, especially those on the Government benches, to vote with both their conscience and judgement in the national interest. When Government ministers do not make a cogent rebuttal to the arguments made for an amendment or those advocating it are particularly effective, amendments can pass, sometimes unexpectedly, providing Governments with shock defeats. On European questions, while there are some Brexiteers among their ranks, many Crossbenchers are passionate Europhiles and they trooped through the lobbies alongside Conservative rebels and Labour and Liberal Democrat peers to support amendments to the EU (Referendum) Bill on the extent of the franchise; on citizens’ rights in the EU (Notification of Withdrawal) Bill; and in support of the 15 wide-­ ranging amendments on which the Government was defeated on the EU(W)B. As with the Conservative peers, the numbers of Crossbenchers supporting amendments differed dramatically according to the issue at hand. But what was quite clear on all three pieces of legislation was that the upper house was willing to challenge the Government and when the Government’s Commons’ majority was uncertain, there was considerable scope for their concerns to be heard.

6   It’s Not All About Defeating the Government The front page headlines over Brexit were about the Lords defeating the Government and ‘defying the will of the people’, yet behind the headlines were some rather more understated aspects of the Lords’ scrutiny of Brexit legislation. The media focused on the 15 Government defeats on the EU(W)B, yet there were 200 amendments in total, the vast majority from the Government itself, which went largely unreported. Such amendments do not for the most part arise from the Government spontaneously chang-

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ing its mind about a Bill. Rather they reflect the Government’s considered responses to issues raised by peers whether in general at Second Reading or through more specific amendments put forward at Committee Stage, which is when line-by-line scrutiny of the Bill begins. The convention is that the Lords do not vote at Second Reading as to do so kills the legislation off entirely, which is against the spirit of the Salisbury Convention; rather, Second Reading is used to air the issues which peers might wish to amend as well as allowing a general debate on the wider issues at hand. It is also quite rare to hold votes at Committee Stage, not least because if an amendment is defeated at that stage of the Bill’s passage through Parliament it is dead and cannot be resurrected later on. Instead, peers will put forward amendments for debate, in order to debate the matter and gain a clearer understanding of the Government’s position on an issue— sometimes to flag up issues that they really wish the Government to take on board. In some cases, the minister will agree to bring forward Government amendments at Report stage when, as the name suggests, they ‘report back’ on the matters they undertook at Committee Stage to reconsider. If the Government manages to produce acceptable amendments, they will go through and executive-legislature differences are averted. In some cases this will result in Government amendments which the opposition are willing to accept—and so it was with the vast majority of amendments to the EU(W)B. If the Government fails to produce an acceptable amendment, peers are likely to persist in proposing alternatives and pressing them to a vote at Report Stage, or at the very last ‘Third Reading’ which is the time the final details of legislation are ironed out. The credible prospect of being defeated, along some effective debating highlighting the weaknesses in the drafting, meant the Government recognised a need to change its position on the EU(W)B. Few amendments get pressed to a vote since peers recognise the difficulty of garnering enough support to defeat the Government on more than a handful of issues—as discussed above, Government peers will rebel only rarely and Crossbenchers are also reluctant to vote repeatedly. Nonetheless, the passage of the EU (Withdrawal) Act 2018 shows how far the Lords were able to persuade the Government to think again—its key role. Thus, on certain areas where the Lords felt the Bill was defective the Government did bring forward its own proposals. On the relationship between Brexit and the Devolved Administrations, the Government said even before debate on amendments that more work was needed (Lords’ Hansard 25 January 2018, c.1127) and it proposed a raft of amendments

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which broadly met the concerns of peers. It is important to recall that whereas the Scottish nationalists are well represented in the Commons, they have no seats in the Lords, refusing to participate in an unelected chamber. Nor do the Irish nationalists sit in either Lords or Commons. Coupled with the lack of any territorial dimension to the Lords, this means that the voices of key parts of the Scottish and Northern Irish political spectrums are missing. Their interests were promoted by cross-party amendments, and at various stages in proceedings the Government accepted the cases being put forward, though in terms of Northern Ireland only after it had been defeated at Report Stage by an amendment led by former Conservative minister Lord Patten, itself a sign of the divisions within Conservative ranks.

7   Concluding Reflections A decade before Brexit, Vernon Bogdanor noted: Modern-day critics, however, including critics on the Left, take a very different view of democracy. For them, the danger arises from too few checks on government, not from too many. These critics believe that government in Britain, with its unprotected constitution and unelected upper house, is always in danger of succumbing to the condition identified by Lord Hailsham as one of elective dictatorship. Such critics argue that an elected upper house would provide one means of checking that dictatorship. (Bogdanor 2009, p. 146)

The irony of Brexit is that the attempts by the House of Lords to reduce the threats of elective dictatorship (seen through amendments to remove Henry VIII powers that would have given unfettered powers to ministers), advocated on many occasions by Lord Hailsham’s son, Douglas Hogg, a life peer sitting in the House of Lords since 2015 but entitled to use the hereditary title Viscount Hailsham, were pilloried by leading Brexiteers of the right from Jacob Rees-Mogg to the tabloid Daily Mail, which referred to the Lords as ‘dinosaurs in ermine’ (23 May 2018) and accused peers of wrecking the Bill, and the Daily Express, which commenced an online petition seeking to abolish the unelected chamber, just as seven years earlier it had launched the petition for a referendum on the UK’s membership of the EU (see Smith 2017a; see also Stevens 2018). As Lord Forsyth had warned fellow peers during the passage of EU(W)B, those peers seeking to amend

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the Bill had set themselves on a collision course with ‘the people’, which could ultimately lead to the Lords’ demise. Reminding colleagues that ‘we are an unelected House,’ he claimed: ‘we are an unelected chamber…this amendment and other amendments is part of a campaign which is putting peers against the people…and I believe they are playing with fire’ (House of Lords Hansard 18 April 2018, cols. 1191–2). Yet it was precisely this unelected dimension that enabled peers to exert their own opinions to defeat the Government. While its powers and composition have changed almost beyond recognition in the century and half since Bagehot wrote The English Constitution, the Lords continue to act as a revising chamber for matters the Commons lack the time to deal with and their unelected status makes it easier for peers to act according to their judgement of what is in the national interest. They are less constrained in their actions in part because so few peers are part of the ‘payroll vote’ whose votes the Government can rely on the way they do in the Commons. The loss of an in-built Tory majority over the course of the past century ensures the Executive has to listen to the Lords if they are going to avoid parliamentary defeats, even though they are aware that peers will ultimately defer to the will of the elected House. The immediate aftermath of the Brexit referendum suggested that the Government would try to set the agenda and limit the role of Parliament. The Courts in the Miller case and the Lords during the passage of the EU (Withdrawal) Act sought to redress the balance, ensuring a role for both Houses of Parliament in approving the Withdrawal Agreement and, crucially, reducing the Henry VIII clauses that would have given ministers broad and potentially open-­ended power after Exit Day.

References Bagehot, W. (2001). The English Constitution. Edited with an Introduction and Notes by Miles Taylor. Oxford: Oxford University Press. Bogdanor, V. (2009). The New British Constitution. Oxford/Portland: Hart Publishing. Brusenbauch Meislova, M. (2019). The European Parliament in the Brexit Process: Leading Role, Supporting Role or just a Small Cameo? In T.  Christiansen & D.  Fromage (Eds.), Brexit and Democracy: The Role of Parliaments in the UK and the European Union. London: Palgrave Macmillan. Daily Mail Comment. (2018, May 10). How Brussels Must Be Chortling as These Traitors in Ermine Betray 17.4 Million Voters. Daily Mail, p. 18. House of Lords. (2011). Library Note, ‘House of Lords Reform: Chronology 1900–2010’, LLN 2011/025. London: House of Lords.

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House of Lords. (2017). Library Note, ‘History of the House of Lords: A Short Introduction’, LLN 2017/020. London: House of Lords. Huff, A., & Smith, J.  (2015). Westminster and the European Union: Ever-­ Increasing Scepticism? In C. Hefftler et al. (Eds.), The Palgrave Handbook of National Parliaments and the European Union (pp.  312–331). Basingstoke: Palgrave Macmillan. Letts, Q. (2018, May 10). The Lords Who Loathe Democracy. Daily Mail, pp. 19, 20. Lister, S. (2017, March 7). Theresa May Sacks Michael Heseltine as Government Adviser over Brexit Rebellion. Independent. Available at https://www.independent.co.uk/news/uk/politics/theresa-may-lord-heseltine-governmentadviser-Brexit-rebellion-house-of-lords-a7617191.htm/. Last accessed 20 Jan 2019. Lynch, P., Whitaker, R., & Cygan, A. (2019). Brexit and the UK Parliament: Challenges and Opportunities. In T. Christiansen & D. Fromage (Eds.), Brexit and Democracy: The Role of Parliaments in the UK and the European Union. London: Palgrave Macmillan. New Statesman. (2018, May 10). Tory Brexiteers Are Raging Against the House of Lords – Six Years Ago They Voted to Keep It. Available at www.newstatesman.com/. Last accessed 2 June 2018. Smith, J. (2015). Europe. In A. Seldon & M. Finn (Eds.), The Coalition Effect (pp. 370–396). Cambridge: CUP. Smith, J.  (2017a). The UK’s Journeys into and Out of the EU: Destinations Unknown. London: Routledge. Smith, J. (2017b). National Parliaments and the European Union – A View from Westminster. In D. Jančič (Ed.), National Parliaments After the Lisbon Treaty and the Euro Crisis – Resilience or Resignation (pp. 77–95). Oxford: Oxford University Press. Stevens, J. (2018, May 10). It’s Time to Pull Plug on the Lords. Daily Mail, p. 1. Taylor, M. (2001), ‘Introduction’ to Bagehot (2001), pp. vii–xxix. Thompson, L., & Yong, B. (2019). What Do We Mean by Parliamentary Scrutiny of Brexit? A View from the House of Commons. In T.  Christiansen & D. Fromage (Eds.), Brexit and Democracy: The Role of Parliaments in the UK and the European Union. London: Palgrave Macmillan.

PART II

Brexit and the National Parliaments in the EU

CHAPTER 5

The Scrutiny of Brexit in National Parliaments: Germany, Luxembourg and the Czech Republic Compared Vanessa Buth, Anna-Lena Högenauer, and Petr Kaniok

1   Introduction The outcome of the British referendum on the UK membership of the European Union (EU) raised more challenges than expected. Governments quickly realized that they not only had to renegotiate the relationship between the UK and the EU across a wide range of policies, but that they were also facing questions in terms of process. One question that almost immediately emerged on both sides of the tables was about parliaments: To what extent should the national parliaments and the European Parliament (EP) be informed about the negotiations? Should they be c­onsulted, V. Buth University of East Anglia (UEA), Norwich, UK A.-L. Högenauer (*) Institute of Political Science, University of Luxembourg, Esch-sur-Alzette, Luxembourg e-mail: [email protected] P. Kaniok Masaryk University, Brno, Czech Republic © The Author(s) 2019 T. Christiansen, D. Fromage (eds.), Brexit and Democracy, European Administrative Governance, https://doi.org/10.1007/978-3-030-06043-5_5

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and if so at regular intervals or mostly at the end of the process? Should they be able to approve or reject the outcome? In the case of the European Parliament, its formal powers are defined by Art. 50 Treaty on European Union (TEU): it must give its consent to the final agreement for the agreement to take effect. The European Parliament used this formal power to clarify at an early stage of the negotiations that it did not intend to simply vote once at the end of the negotiations, but that it also expected to be regularly briefed and consulted during the negotiations (see on the European Parliament: Brusenbauch Meislova 2019, in this volume). The case of national parliaments is less clear, as Art. 50 TEU makes no reference to them: The EU treaties usually do not interfere in what are considered domestic power structures. In the case of Britain, this ambiguity resulted in a public argument about the role of parliament both in triggering Brexit and in approving the final settlement. Originally, the British government intended to minimize the role of parliament in Brexit—a stance that clashed with a claim of the Brexit campaign to defend parliamentary sovereignty. In practice, the argument resulted in a high-profile court case and repeated stand-offs between parliament and government that are ongoing at the time of writing (February 2018) and that attracted the attention of both the media and academics (e.g. Gee and Young 2016; Phillipson 2016; Eleftheriadis 2017; Mabbett 2017; Poole 2017; see also the chapters by Thompson and Yong 2019; Lynch et  al. 2019; Smith 2019, in this volume). By contrast, the question of the rights of the parliaments of the EU-27 has attracted little public or scholarly attention. Is this indicative of a lack of interest on the part of the parliaments? Do they accept that the Brexit negotiations are the prerogative of governments or do they feel that the impact of Brexit will be too small/unpredictable to merit attention? These doubts can be quickly dismissed. According to the 27th Conference of Parliamentary Committees for Union Affairs of Parliaments of the European Union (COSAC) report (COSAC 2017), 35 out of 37 parliaments and parliamentary chambers that took part in its survey want their governments to regularly inform them about the Brexit negotiations. Twenty-eight out of 38 parliaments or chambers would like to have the opportunity to ask questions from the negotiating team and discuss the progress of negotiations. Finally, 21 out of 38 parliaments think that the European Commission and national parliaments should come together on a regular basis to discuss the negotiations. Despite the absence of a public debate on the powers of parliaments, national parliaments in the EU-27 are thus clearly interested in Brexit scrutiny.

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The aim of this chapter is to analyse national parliaments along the four dimensions outlined in the introductory chapter of this volume. The constitutional dimension covers the formal powers of national parliaments and we are looking in particular at the dynamics of the executive-­legislative relationship as well as the role of bicameralism. Regarding the procedural dimension, we analyse how national parliaments make use of these procedures in practice, whether they attempt to modify existing procedures and to what extent they make use of interparliamentary channels. The party-­ political dimension analyses to what extent parliamentary debates are shaped by differences between governing and opposition parties in Brexit scrutiny, including Eurosceptic parties, and to what extent the ‘national interest’ acts as a unifying factor or determines the precise issues that receive attention. For these purposes, the chapter compares three cases— Germany, the Czech Republic and Luxembourg. The chapter is based on qualitative interviews and document analysis from 2013 to 2017, encompassing the period before the Brexit referendum and the first phase of the Brexit negotiations.

2   State of the Art The case of Brexit is unique. No member state has ever left the EU, and there are thus no historical examples of how parliaments could, would or should be involved in this process. However, Brexit happens in the context of an evolution of national parliamentary involvement in EU policy-­ making that spans decades, and it thus can be placed in this literature. Firstly, the Brexit negotiations are an executive-dominated process— especially as far as the EU-27 are concerned. Before the Brexit referendum, the negotiation of a special deal for Britain, should it choose to remain, was dominated by the member state governments and the European Commission, with no formal involvement of national parliaments. Since the referendum, the EU negotiation team responds primarily to a mandate from the European Council and to potential pressures from the EP. The role of national parliaments in this is again not spelled out. As Art. 50 TEU does not mention national parliaments, the final decisions on Brexit could probably be taken without national parliamentary involvement—unless national parliaments insist that their government consults them before the final vote. This situation is reminiscent of the literature on national parliaments in the EU pre-2005, which argued largely that Europeanization was synonymous with an increase in executive dominance

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and a weakening of national parliaments: As competences moved to the European level, governments turned into legislators in the Council of Ministers, and national parliaments struggled to control them due to a mix of a lack of formal powers, an information deficit and disinterest. Very few parliaments—such as the Nordic parliaments, managed to set up effective scrutiny systems (cf. Norton 1996; Maurer and Wessels 2001; O’Brennan and Raunio 2007). However, the situation of national parliaments has substantially improved since the early 2000s. As national parliaments became aware of their loss of powers, they started to fight back by demanding more formal powers (e.g. better control powers over the government), by setting up specialized EU affairs committees (EACs) to conduct the scrutiny and by demanding reform on the European level (e.g. Dimitrakopoulos 2001; Bergman et al. 2003; Auel 2005). Winzen thus argues that the strength of national parliaments in EU policy-making overall increased from 2000 to 2010 (Winzen 2012: 663–5). Winzen noted that the member states that joined after 2004 did indeed tend to give their national parliaments more formal powers of scrutiny. The recognition of national parliaments in the Treaty of Lisbon and the introduction of the Early Warning System, that give national parliaments an opportunity to object to new European legislation, if it violates the principle of subsidiarity, mark a new step in the strengthening of national parliaments. While the Early Warning System concerns only EU legislation (and does not cover the Brexit negotiations), it did motivate many national parliaments to further improve their scrutiny procedures, encourage sectoral committees to comment on EU affairs falling into their areas of expertise and liaise more actively with other European Parliaments in COSAC (e.g. Auel and Christiansen 2015; Gattermann et  al. 2016). Högenauer and Neuhold also show that many national parliaments increased the number of EU experts at their disposal after the Treaty of Lisbon and gave them an important supporting role in scrutiny (Högenauer and Neuhold 2015; Högenauer et al. 2016). The Eurozone and immigration crises led to a further mobilization of national parliaments, as they highlighted the potential salience of EU affairs for voters. Auel and Höing (2015) show that the parliaments of countries that were particularly affected by the Eurozone crisis are more likely to scrutinize EU affairs actively, thus showing that scrutiny can be driven by national salience and key events. In addition, national parliaments with strong formal powers are more likely to be active scrutinizers. Finally, national parliaments

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recently started to assert their influence in the course of major international trade negotiations, such as the trade agreements with Canada and the US. They are thus better prepared for the complicated process of the Brexit negotiations than they would have been 15 or 20 years ago. Based on the literature on parliamentary scrutiny of EU affairs more generally, we thus have a number of expectations as regards national parliaments and Brexit. Firstly, we expect institutional strength (i.e. formal powers) to have a positive impact on levels of scrutiny. In addition, we would expect the size of the country to matter, as the governments of large countries are more likely to be able to shape the outcome of the negotiations (and to shape them across a range of areas) compared to the governments of small countries. As the governments of small countries will find it difficult to defend even a small number of key interests, we expect their parliaments to be more supportive of the governments and also rally around key national interests. Existing research also suggests that there are differences in activity between upper and lower houses and between unicameral and bicameral systems. Unicameral parliaments, according Auel, Rozenberg and Tacea, ‘are clearly the most active when it comes to issuing mandates or resolutions, but they debate EU affairs far less often in the plenary than chambers in bicameral parliaments’ (Auel et al. 2015: 75). Thus, we expect the parliaments to follow a similar path in case of Brexit—the Luxembourgish parliament focusing on resolutions, whereas the Czech and German chambers will make active use of debates. Finally, just as parliamentary scrutiny of the Eurozone crisis depended on national salience, we also expect the scrutiny of Brexit to focus on issues salient for the member state in question and to be driven by key events. In other words, we expect different parliaments to talk about different types of issues. Regarding the partypolitics dimension, we expect to find differences between opposition and government as well as between Eurosceptics and pro-EU parties. To test these expectations, we have chosen three countries (Germany, the Czech Republic and Luxembourg) that correspond to a large, a medium-sized and a small member state and that include two bicameral parliaments and one unicameral parliament. The German parliament has the most extensive formal powers (ranked joint 6th in the EU by Winzen 2012 with a score of 2.17), compared to the Czech Parliament (1.83) and the Luxembourgish parliament (0.67). More recently, Auel et al. (2015) produced similar results on institutional strength. In their overview, both German chambers belong among the strongest EU chambers (0.78 for Bundestag ranking 2nd and 0.62 for Bundesrat ranking 8th) followed

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closely by the Czech chambers (0.59 for Senate ranking 10th, 0.58 for Chamber of Deputies ranking 11th). On the contrary, Luxembourg can be found towards the bottom of the chart (0.40) (Auel et al. 2015). The same authors also measured EU national parliaments’ activity score in EU affairs. Here the picture looks different. The Bundestag moves down to rank 5 (0.34), followed by the Czech Senate (0.33, rank 6), which now surpassed the Bundesrat (0.24 rank 13). The Luxembourgian parliament moved up towards the lower middle (0.16), swopping places with the Czech lower house now towards the bottom rank (0.10). In our case selection, we moreover tried to combine a good balance of a set of criteria beyond institutional powers. The theory suggests that the salience of an issue and national interests impact the parliamentary scrutiny activity. We have therefore selected countries that are all differently affected by Brexit and which are expected to play a different role in the whole process. Germany represents a member state that is expected to be heard much during the negotiations. Specific concern for Germany is the financial contribution to the EU budget and its benefit from the latter, as well as its trade sector and citizen mobility. In the Czech Republic, Brexit is perceived as a salient issue, but the number of concerns is limited to several key areas—particularly citizens’ rights and budgetary health. Luxembourg represents a case where the salience of Brexit is high in a key economic sector—the financial sector.

3   Constitutional Dimensions The formal powers of the three case studies of parliaments in EU affairs differ along two lines—whether the powers are centred around information gathering or government control, and whether only the EAC is responsible for EU affairs or whether all affected committees are. The Luxembourgish parliament is the weakest parliament of the three in EU affairs: The Constitution is silent on the role of parliament in EU affairs. Instead, parliament defines the scrutiny procedures autonomously in its rules of procedure (RoP) (Spreitzer 2014). Most of the rules are contained in an Aide-Mémoire on the cooperation between the parliament and the government included in Annex 2 of the RoP.  It is worth noting that the Committee on Foreign and European Affairs shares the responsibility over EU affairs with the sectoral committees, which are expected to issue opinions on matters falling into their area of expertise. According to the Aide-Mémoire, the parliament has the right to receive a wide range of EU documents, to be informed by the government orally

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or in writing about topics that are salient for Luxembourg. In addition, the sectoral committees can invite members of the government to answer questions before and after Council or European Council meetings. However, it has no mandating powers, and while the government should transmit information in time to allow the parliament to define its own position and send it to the government, the government is not obliged to follow that position. In addition, the government will present an annual report on EU politics. In practice, the report is usually presented by the foreign minister and followed by a public debate. The report on EU politics is of relevance in this context, as it allowed for extensive debates on Brexit and the future of the EU more generally. Finally, the government has to inform the parliament about accession negotiations when a new state wishes to join the EU, set out its own position and consult parliament. Technically, these rules do not mention states leaving the Union, but one can assume that the parliament will expect them to apply to Brexit. By contrast, the chambers of the Czech parliament are far more powerful. Regarding the institutional set-up of the Czech European policy, both chambers are in a similar position and have similar tasks. Both the Chamber of Deputies and the Senate have their own EAC. They are the most important actors shaping the chambers’ EU policies as plenaries very rarely change or reject motions for resolution proposed by the EACs (Hrabálek and Strelkov 2015: 496). The EACs of both chambers share similar tasks. They focus on subsidiarity checks of EU legislation proposals, assessing EU legislation and scrutinizing governmental EU policy. Further details are in cases of both chambers specified in their respective rules of procedures. There is no formal document defining mutual relations between both chambers in the EU affairs. Regarding Brexit, no changes to the internal procedures or relations between chambers and government have been adopted. Only the lower house’s EAC is considering the possibility to establish a specialized Brexit subcommittee or a specific working group. This possibility was discussed in the beginning of January 2018 (Interview with Ondřej Benešík, Chair of the Committee for EU Affairs, Chamber of Deputies of the Parliament of the Czech Republic, 16/1/2018). The chair of the Chamber of Deputies’ EAC is also considering requesting government to regularly report not only on its mandate for European Council meetings, but also on the Council’s outcomes. By the end of February 2018, this had, however, not been mentioned or proposed in any official document (Interview with Ondřej Benešík, Chair of the Committee for EU Affairs, Chamber of Deputies of the Parliament of the Czech Republic, 16/1/2018).

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The German Bundestag is very influential. While it has no formal mandating powers, its positions are semi-binding: the exit of a member state falls under Art. 23 of the German constitution as described in the following: § 8 EUZBBG determines that the government, before participating in the negotiations on Art. 50, must give the Bundestag the opportunity to issue a statement. If the Bundestag does issue a statement, the government must take this as a basis for the negotiations (§ 8 Abs. 2 EUZBBG). The German constitution (Art. 23) states that the Bundestag and the Bundesrat participate in European affairs. To this end, the German government must inform both extensively and as early as possible. The right for information includes the opinion formation within the government as well as the preparation and the proceedings of negotiations within the institutions of the EU (§ 3 Abs. 2 S. 1 EUZBBG; EUZBLG §3). The ‘regulation about the cooperation of federal government and Bundestag in European affairs (EUZBBG, July 2013)’ adds that the government must inform the Bundestag continuously and generally in written form. The German government is moreover obliged to inform the Bundesrat about undertakings in the scope of the EU, if these concern the interests of the Bundesländer (EUZBLG §2). In other words, the government must send explanatory memoranda outlining its position to the Bundestag on all EU proposals, and to the Bundesrat on all those potentially concerning the interests of the Bundesländer. It briefs the Bundestag and Bundesrat before taking a position in the Council and reports to both about the positions taken. Article 45 determines that the Bundestag must summon the EAC, making it one of only a few committees mentioned explicitly in the constitution. The EAC is the central place for debates on European politics in the Bundestag. It has interdisciplinary responsibilities and set up as an integrated and cross-sectoral committee.1 In the case of Brexit, the issue was also raised in other committees, such as the economic committee, but the EAC was the most important venue for discussing Brexit (Interview with CDU 27/04/2018; Interview with SPD 19/04/2018; Interview 1  The Bundestag EAC, however, is not the only committee responsible for the scrutiny of EU proposals. All committees discuss European affairs within their respective specialized areas. But the EAC is interdisciplinary and deals with cross-cutting policy as well as issues relating to European integration in particular. It scrutinizes the government’s position throughout the whole EU legislative process and on all proposals. More details on https://www.bundestag. de/ausschuesse/ausschuesse18/a21/rechtsgrundlagen (accessed 20/02/2018).

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with Die LINKE 13/04/2018). The EAC of the Bundesrat consults all EU Council and Commission proposals, especially for regulations and guidelines, as well as white and green papers that are concerning the interests of the Bundesländer, and performs subsidiarity checks.2 In addition, every committee has the power to summon a member of the government to provide written or oral statements (COSAC 2017). In addition, European issues in the Bundestag are supported by a special ‘Europe department’ in the administration, with one staff dedicated exclusively to the EAC.  It also created a horizontal informal working group including all the departments’ divisions in response to Brexit helping to formulate the future relationship in more detail, for example, concerning research, politics, migration and defence. It is to be expected that for the regulation of the future (trade) relations between the EU and the UK, a new agreement will be passed, such as an association after Art. 217 AEUV or an agreement after Art. 218 AEUV (Lippert and Von Ondarza 2016). Whether Art. 23 of the German constitution or Art. 59 Abs. 2 S. 1 German constitution or yet another regulation applies, has not been clarified yet.3 The last element, the adaptation of the founding treaties after the UK’s exit, will require the participation of the Bundestag and Bundesrat according to Art. 23 of the German constitution. Regarding scrutiny, there is a crucial difference between the Luxembourgish parliament on the one hand and the Czech Republic and Germany on the other. Luxembourg has a unicameral parliament. Both the Czech Republic and Germany have bicameral parliaments, with the upper houses having an independent scrutiny impact and acting as their own actors at EU level. Our analysis shows that when differentiating between the scrutiny activities of the unicameral parliament and the upper (the Czech Senate and the German Bundesrat) and the lower houses (the Czech Chamber of Deputies and the German Bundestag), we get ­different results in terms of frequency and intensity of scrutiny around Brexit-­related issues. These results confirm recent research showing that unicameral parliaments, upper and lower houses vary not only in terms of their institutional rights and their general level of activity, but also regarding their kind of 2  See https://www.bundesrat.de/DE/bundesrat/ausschuesse/eu/eu.html?nn=4353202 (accessed 20/02/2018). 3  See https://www.bundestag.de/blob/484626/a4135f26572436921ebcd0baa150a63b/ wd-3-224-16-pdf-data.pdf (accessed 20/02/2018).

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activity (Auel et  al. 2015). Unicameral parliaments, according to Auel, Rozenberg and Tacea, ‘are clearly the most active when it comes to issuing mandates or resolutions, but they debate EU affairs far less often in the plenary than chambers in bicameral parliaments’ (Auel et al. 2015: 75). We cannot confirm this for the Luxembourg parliament in the case of Brexit. Attempts to actively control the government through resolutions were very rare. Instead, Brexit was debated in the plenary as well as in the EAC, although starting only at a later stage in comparison to the Czech Republic, namely in 2016. Six parliamentary questions were asked in 2016 and 2017: one by the Déi Lénk on whether the Luxembourgish government would try to negotiate bilateral deals, and five by the CSV on the legality of the special deal that the EU had negotiated with the UK in February 2016, how many British citizens had applied for Luxembourgish citizenship, how to deal with highly skilled migrants from Britain after Brexit, whether the government had commissioned impact assessments on Brexit, and whether the government had a strategy in the event of a hard Brexit. The Luxembourg parliament can therefore be categorized as Brexit scrutinizer and as an arena where an active Brexit debate is motivated. As mentioned above, both German and Czech chambers rank high with regards to institutional strength (Auel et al. 2015), which strongly correlates with a high level of activity. Taking Auel, Rozenberg and Tacea’s findings as a basis, we would expect the German Bundestag to be extremely active in debating Brexit in the EAC, and at the same time also very actively debating Brexit in its plenary. Whilst we only have access to plenary protocols and not to EAC protocols, we do know that the Bundestag treats Brexit as a highly political topic. Brexit was debated oftentimes in the plenary and was frequently subject of debate in the EAC: 14 out of 55 meetings in the period between June 2015 and December 2017 had Brexit on the agenda (Interview with CDU 27/04/2018; Interview with SPD 19/04/2018; Interview with Die LINKE 13/04/2018; COSAC 2017). All parliamentary groups have set up internal structures to be able to follow the process through extensively. This is similar for the way Brexit is treated politically in the EAC. The parliamentary groups each have a member in the EAC dedicated specifically to ‘Brexit’ and Great Britain, who take the lead on the debate for their parliamentary group. The Bundestag EAC is also regularly receiving visits from Michel Barnier and other members of the European Commission’s Article 50 Task Force. In addition to the weekly EAC meetings, a weekly one-hour meeting of correspondents, where experts, the ministry of foreign affairs and chief negotiators from the

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German government and the Commission took part, was set up in response to Brexit. These meetings have not been reinstated since the elections in autumn 2017, but, according to one interviewee, this is likely to be taken up again (Interview with the Bundestag administration 19/04/2018). Also, the individual party factions set up internal working groups in response to Brexit (Interview with CDU 27/04/2018; Interview with SPD 19/04/2018; Interview with Die LINKE 13/04/2018). This confirms the Bundestag as active Brexit scrutinizer and as an arena for active Brexit debate, whilst resolutions and mandates were less important parliamentary tools for Brexit in the Bundestag. The Czech Chamber of Deputies, on the other hand, would be expected to be a ‘Brexit scrutiny laggard’, with a very low overall level of activity, according to Auel, Rozenberg and Tacea’s results. This is, however, not the case. The Czech Chamber of Deputies discussed Brexit in 26% of its EAC minutes in the period from 27/11/2013 to 26/10/2017. Whilst Brexit was debated to a lesser extent and more broadly in the plenary, debates regularly took place in context with statements given by the government prior to European Council meetings. A motion for a resolution was agreed within the EAC, but did not get approved in the plenary in time before the electoral campaign. The Czech Chamber of Deputies can thus be concluded to be an active Brexit scrutinizer, however, without actual attempts to influence the government or the European Commission. The literature would expect the Bundesrat to foremost make use of mandates and resolutions as Brexit scrutiny tools on EU affairs. In the case of Brexit, the Bundesrat made use of its plenary to debate the topic in far less instances than the Bundestag (mentioned in six plenaries, two of which had Brexit on the agenda). We lack information on the use of the Bundesrat EAC for debating Brexit. The Bundesrat did, however, pass a resolution demanding the government keep the Bundesrat informed closely and appropriately (according to Art. 23) during the negotiations of the UK’s exit and the regulation of a new partnership. It moreover requested for two members of the Bundesrat to participate in the EU Councils’ working group on Brexit (according to EUZBLG §6). This confirms the Bundesrat as ‘policy shaper’, attempting to influence the government’s Brexit negotiating position through resolution(s). The Czech Senate would be expected to be extraordinarily active in debating Brexit in the plenary. We found this to be true, with Brexit discussed in ranging between 50% of its EAC minutes in the period from 21/11/2014 to 18/10/2016 and 81% in the period from 16/11/2016

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to 31/12/2017. Additionally, we find the Czech Senate to be very actively debating Brexit in the plenary, covering a range of Brexit-related issues. The Czech Senate moreover adopted three resolutions, one requesting that government to keep the Senate informed about the negotiations progress and to ‘consult Senate regarding the future relation between EU and United Kingdom as well as the future relation between the Czech Republic and the United Kingdom’ (Senate Minutes 14/7/2016). The other two resolutions interpreted the British departure from the EU in a broader context: a resolution on the White paper on the future of the EU (Senate of the Parliament of the Czech Republic Resolution No. 232) and a resolution on the future of the EU (Senate of the Parliament of the Czech Republic Resolution No. 138). The Czech Senate is thus a very active Brexit scrutinizer as well as an active ‘policy shaper’, attempting to influence the government’s Brexit negotiating position through resolutions. In summary, we find the different parliaments, unicameral and the upper and lower houses in the bicameral parliaments, to vary in their approach to Brexit scrutiny or rather their interpretation of their role vis-­ à-­vis the government on Brexit-related issues. However, all chambers were found—to varying degrees—to be active in their chosen roles: Whether as active scrutinizers and arena for active debate (Czech Senate, Bundestag, Czech Chamber of Deputies, Luxembourg parliament) or as policy shapers (Czech Senate, Bundesrat).

4   Procedural Dimensions In this section, we will analyse for what purpose the three parliaments used their procedures, whether they tried to extend them and the role played by channels of interparliamentary cooperation. Firstly, in terms of how parliaments make use of available procedures, our documentary analysis and interviews showed that parliamentary scrutiny of Brexit until late 2017 was (a) largely reactive, (b) that parliaments nevertheless tried to improve existing procedures, but (c) mostly focused on information gathering rather than influence in practice. The fact that the first stage of Brexit negotiations revolved around issues on which the EU-27 could generally agree undoubtedly contributed to this. Thus, all three governments supported the common EU position, and all three parliaments supported their governments, which meant that all three parliaments had broadly similar positions. All three wanted to prevent ‘cherry-picking’ on

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the part of the UK, insisted that the single market goes hand in hand with the four freedoms and that the questions of the rights of EU and British migrants after Brexit have to be resolved. Moreover, all four expected the Northern Ireland question to be resolved and the UK to pay its financial obligations. In addition, there are a few country-specific concerns, such as the German contribution to the EU budget or the future of the financial place in Luxembourg. Overall, we found that the timing of parliamentary activities in all cases followed a similar path and direction: all chambers were rather reactive than active, that is, their Brexit activities were shaped by external events, be it the British referendum or subsequent European Council meetings. Whereas we can hardly find any substantial interest in UK issues prior to June 2016,4 the referendum and its result triggered plenary debates in all cases. Secondly, all chambers were in this sense reactive to actions by their government, locked in their institutional possibilities and traditions. In the Czech case, for example, Brexit was discussed particularly in the context of governmental mandates for European Council meetings (and in the case of the Senate also debriefings on their outcomes). In the Luxembourgish case, scrutiny also largely revolves around committee or plenary debates with ministers.5 Unique was, however, the weekly hour to report on Brexit, which the German parliament had institutionalized during the previous government (see section above), in addition to plenary and committee debates in response to external events. However, we can see differences in how the parliaments de facto positioned themselves on the procedural level. All three parliaments improved their scrutiny procedures for the Brexit negotiations. The Luxembourgish and Czech parliaments focused on information gathering, whereas the German parliament tried to improve its channels for influence.

4  For example, the Czech parliament started to follow the issue prior to the 2015 June European Council meeting (Chamber of Deputies, European Affairs Committee Minutes 24/06/2015, Senate of the Parliament of the Czech Republic European Affairs Committee Minutes 13/6/2015). During this period, however, the agenda of the British future in the EU was heavily overshadowed by the migration crisis. The same applies to Luxembourgish parliament, which started to become more active since 2015, showing no interest in 2013 or 2014. 5  There were three plenary debates in Luxembourg on Brexit between 2015 and 2017. Moreover, on 21 March 2017, Foreign Minister Jean Asselborn briefed the Chamber  of Deputies on the key issues of the first stage of the negotiations.

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In the Luxembourgish case, the parliament adopted a resolution in July 2017 asking the ministers to attend committee meetings after every session of EU negotiation on Brexit (4/07/2017). However, both the German and Czech parliaments pushed more actively for special procedures on Brexit and/or had more extensive formal powers to begin with. In the Czech case, the EAC can mandate the government before Council meetings (unlike the Luxembourgish EAC). In addition, on 27 June, a special working group for Brexit and the future of the EU was established under the supervision of the Office of Government. In the beginning of its existence, the composition of the group was criticized by the opposition, particularly in the Chamber of Deputies EAC (Chamber of Deputies, European Affairs Committee Minutes 15/9/2016). Apart from this group, a political group consisting of representatives of major political parties was established. This group also involved MPs and its activity resulted in a deal on Czech priorities for Brexit negotiations signed in February 2017, as mentioned in the previous section. In the German case, all parties in both chambers demanded to be informed continuously and thoroughly about the Brexit negotiations. The Bundestag wished to be in direct contact with the negotiating team as well as other parliaments and the European Commission, being given the opportunity to ask questions and obtain further clarifications on the progress of the negotiations (COSAC 2017). The Bundesrat took a proactive step to assure its involvement: On 31 March 2017, the Bundesrat passed a resolution clarifying that it expects the government to keep the Bundesrat informed closely and appropriately (according to Art. 23) during the negotiations of the UK’s exit and the regulation of a new partnership. In addition, it asked to participate in the deliberations of the government’s position already before negotiations were taken up, as well as during negotiations, and demanded two members of the Bundesrat to be allowed to participate in the EU Councils’ working group on Brexit (according to EUZBLG §6). It moreover expects to be included in the legislative measures for the adaptation to Brexit at the national level at an early stage. In response, the minister of state Michael Roth judged in agreement with the government that the Bundesländer are ‘generally not concerned’ (­ member of the Bundesrat, plenary protocol 31 March 2017) during the negotiations of the European Council in the first phase of setting up guidelines for negotiation. This caused great discontent amongst members of the Bundesrat at the plenary (protocol 31 March 2017). In response to the initial request, the German foreign ministry set up an informal working

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group on Brexit for the government and the Bundesländer after the European summit in the summer 2017. It did not, however, invite members of the Bundesrat to attend meetings of the EU Council. Finally, parliamentary activities related to Brexit also took place at international level. Members of the negotiating team reported to the parliamentary representatives in Brussels during Monday Morning Meetings on two occasions—after the notification of Brexit and in December 2017 (Interview with the National Parliamentary Representative (NPR) of the Bundesrat, 25/04/2018; Interview with the NPR of the Czech CoD; 2/05/2018). In addition, the head of the negotiating team, Michel Barnier, addressed a COSAC meeting in May 2017, and Commission Vice-President Frans Timmermans addressed a meeting of the COSAC chairpersons in January 2018. At these meetings, representatives of the European Affairs Committees of all member state parliaments (and some observer parliaments) are gathered. However, these meetings present opportunities mainly for the exchange of views among parliaments (and occasionally negotiators) and for the collection of first-hand information. None of the interviewees from Germany, Luxembourg or the Czech Republic felt that the goal was to reach a joint parliamentary position, or even that parliaments were actively trying to find a common position (ibid.; Interview with a member of the COSAC secretariat, 26/04/2018; Interview with the NPR of Luxembourg, 25/04/2018; Interview with the NPR of the Czech Chamber of Deputies, 2/05/2018). There are two reasons for this: firstly, the negotiations themselves are still rather vague and it is far from clear what the general direction of the outcome will be, which means that there is no incentive/opportunity for parliaments to discuss concrete goals. For example, while both Czech EACs are active at the international level, and particularly in COSAC, they found that Brexit was being discussed as a rather abstract issue (Interview with Václav Hampl, Chair of the Committee for EU Affairs, Senate of the Parliament of the Czech Republic 23/1/2018; Interview with Ondřej Benešík, Chair of the Committee for EU Affairs, Chamber of Deputies of the Parliament of the Czech Republic 16/1/2018). It was thus overshadowed by more concrete and pressing issues like the migration crisis (Interview with Ondřej Benešík, Chair of the Committee for EU Affairs, Chamber of Deputies of the Parliament of the Czech Republic 16/1/2018) or—in the case of the NPRs—ongoing legislative processes, which are their main task. Secondly, the interests of national parliaments are not uniform with regards to concrete issues. For example, the BENELUX countries traditionally cooperate closely, and also do so on Brexit. Their foreign ministers

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met every month in 2018 to discuss this topic. However, while discussions are often extremely technical and precise (e.g. on the precise consequences of a hard Brexit on the financial sector and existing contracts), the attempts to find a common position are limited. On the one hand, Belgium is less interested in the financial sector than Luxembourg and the Netherlands, and Luxembourg is less interested in trade in goods, the customs union and so on than the other two, as it has no big ports from which large quantities of goods are shipped from and to the UK. In addition, even where interests overlap, for example, in the banking sectors, countries are not just allies but also competitors, which means that they have an interest in keeping their cards close to their chest (Interview with staff of the Luxembourgish Parliament, 24/04/2018). This has played out differently in the case of the Visegrad Four group. Its meetings were used as a space for mutual coordination, particularly if the Visegrad Four meeting preceded a COSAC conference (Interview with two employees of the Parliamentary Institute 10/1/2018). The Visegrad Four EACs share goals and priorities regarding Brexit, and there is a good interpersonal relationship between its members. This is creating an excellent space for regular and intensive communication and exchange of views on Brexit (Interview with Ondřej Benešík, Chair of the Committee for EU Affairs, Chamber of Deputies of the Parliament of the Czech Republic 16/1/2018). Brexit holds similar implications6 for the Visegrad Four countries’ citizens, and their EACs moreover feel that they are going to lose an important ally in EU politics (Interview with Ondřej Benešík, Chair of the Committee for EU Affairs, Chamber of Deputies of the Parliament of the Czech Republic 16/1/2018; Interview with one employee, EU Affairs Department, Office of the Senate of the Parliament of the Czech Republic 10/1/2018), particularly those that are not members of the Eurozone (Interview with Ondřej Benešík, Chair of the Committee for EU Affairs, Chamber of Deputies of the Parliament of the Czech Republic 16/1/2018). Finally, national parliaments also cooperate bilaterally or in smaller groups. The German parliament has exchanges with the British parliament, and the BENELUX also meet with the British parliament (Interview with staff of the Luxembourgish Parliament, 24/04/2018). In addition,

6  A large number of these countries’ citizens are working and living in the UK. For example, in 2016, the largest population of non-British UK residents was Polish people.

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do the parliamentary documents show that some bilateral committee meetings of EU-27 parliaments have taken place, and that Michel Barnier and other members of the negotiating team have visited national parliaments.

5   National Interest Versus Party Politics Party politics have become, particularly in the recent years, a more important factor of EU politics. This goes hand in hand with the increased politicization of the integration process and also with multiple crises the EU has been facing. In this sense, we expected that the negotiation process could intensify government-opposition tensions at parliamentary level and might trigger a different reaction by Eurosceptic parties, who might be more sympathetic towards the goal of leaving the EU. However, this did not prove to be true. Brexit was not an issue affecting government-opposition dynamics. Even the Czech Eurosceptics did not use it as a platform. This is probably hardly surprising in the Luxembourgish and German cases, where the EU agenda does not represent a controversial issue, but it is surprising in the Czech case, where EU issues have polarized political discussion for many years. The non-controversial profile of Brexit can be explained particularly by traditional consensual EU debates and well-established processes of formulating EU policy. This is true especially for Luxembourg. Luxembourg’s population is relatively pro-European in general, and thus the parties are also pro-European in general. All three government parties (the Social democrats (LSAP), Liberals (DP), Greens (dei Gren)) and the biggest opposition party (the Christian Democrats (CSV)) are pro-European. Even the two minor opposition parties—left-wing dei Lenk and right-­ wing ADR—cannot be considered as Eurosceptical, but rather as Eurocritical, that is, they are in favour of EU integration, but would like the EU to be more social or to leave more room for the member states. In addition, the next national elections are in autumn 2018, and none of the parties’ views Brexit as a theme that could mobilize voters (Interviews with an ADR MP, 13.02.18; an LSAP MP, 14.02.18; a CSV MP, 13.04.18; a dei Lenk MP, 13.04.18). As a result, both parliamentary documents and interviews confirm that the three governmental parties and the CSV have largely identical positions on Brexit (Interview with an LSAP MP, 14.02.18; Interview with a CSV MP, 13.04.18; Interview with an dei Lenk MP, 13.04.18).

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Similarly, in Germany, the coalition parties (until 2017 CDU and SPD) as well as the opposition party Bündnis90/Die Grünen (Greens) stand behind the general line of a unified approach of the EU-27 and do not wish to enter bilateral negotiations or start their own plans with other national parliaments. The other opposition party, die LINKE (Leftist party), agrees with the contents of the EU approach, but not with the process or rather the handling of the negotiations. Since the new government was formed in March 2018, two parties joined the opposition: the centre-right liberal democratic party FDP and the right-wing Alternative für Deutschland AfD. The former is generally pro-European. The AfD is mildly supportive of Germany’s EU membership—although the party is divided on this issue—but is clearly sceptic towards the EU in terms of further integration, immigration, the euro and bailouts for the Eurozone. It interpreted Brexit as a confirmation of its own ideology.7 Probably the most interesting case represents the Czech Republic. Compared to both Germany and Luxembourg, the Czech EU discussion has been highly polarized, and the Czech political party scene has always been characterized by the presence of strong Eurosceptic parties, traditionally in the form of the conservative Civic Democrats (ODS) and the Communists (KSČ M). Apart from these two ‘usual suspects’, a far right and Eurosceptic party called Freedom of Direct Democracy (SPD) entered the scene after the October 2017 elections. Despite all this, there was broad political consensus in the Czech parliament regarding the national priorities for Brexit as well as the way in which these should be achieved. Formal agreement among major political parties was reached and signed in February 2017. An initiative for this agreement came out from the opposition—more specifically, it was ODS which brought it on the table— which made it more acceptable. The Senate’s EAC chair also participated in its drafting (Interviews 1 and 4). Moreover, the fact that the Czech position was much in line with the EU approach helped to avoid potential controversy around the issue. Insiders involved in the process expected that this would not change unless there either was substantial reformulation of the Czech EU governmental policy or future Czech and EU priorities drifted apart (Interview 3). Despite the absence of political controversy, a number of politicians (and especially the EAC chairs) were very active 7  See, for example, http://www.handelsblatt.com/politik/international/brexit-referendum/brexit-news/alternative-fuer-deutschland-brexit-chaos-in-der-afd/13792100.html (accessed May 2018).

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and felt that Brexit was an issue where a lot was at stake for their country (Interviews 3 and 4). The general lack of controversy does not mean that differences—particularly in terms of dissent voices on specific issues—do not exist. In the German case, Die LINKE felt that the Northern Irish question could not be settled in the first phase of negotiations. In addition, in terms of citizen’s rights, all German parties agreed that the rights should not be diminished and that this a central issue; however, the SPD, for example, believed this could only be settled at the end of the negotiations, whilst Die LINKE thought that the rights should have been cast in stone beforehand, to reduce uncertainties for the citizens concerned (Interview with SPD 19/04/2018; Interview with Die LINKE 13/04/2018). Die LINKE was furthermore against putting pressure on completing the negotiations within two years and rather wanted to prolong that period. There were also some nuances in language and rhetoric used—for example, SPD and Greens adopted rather a harder line against the UK and more frequently use rhetoric punishing the UK for the decision to exit than the CDU or Die LINKE (Interview with SPD 19/04/2018; Interview with Die LINKE 13/04/2018). Similar small hints could be found also in case of Luxembourg. Here, the ADR is somewhat more understanding of the British decision to leave the EU, as it is a sister party of the British Conservatives. It agrees with them that the EU should return some competences to the member states, but it does believe that Luxembourg should remain an EU member state. However, when it comes to the national interests to be defended in the negotiations, its position resembled that of the other four parties (Interview with an ADR MP, 13.02.18). Dei Lenk was the only party that was positioning itself differently in term of contents: for example, it perceived Brexit as a result of the weak social dimension of the EU, and it criticized the focus of the government on the financial sector (Interview with a dei Lenk MP, 13.04.18). Finally, we would have expected the national parliaments to discuss different issues, depending on which issues are the most salient for the ­respective countries. In fact, the parliaments discussed a similar range of issues, but there were differences in how much emphases were placed on specific issues. During the first phase of negotiations, the three issues discussed between the EU and the UK were citizen’s rights, the Northern Ireland border and the financial settlement. These issues were also taken up in the broader debates within the parliaments of the Czech Republic, Germany

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and Luxembourg. This first phase of the negotiations was moreover characterized by an overwhelming unity of the EU-27, represented through Michel Barnier in the negotiations with the UK. The parliaments of the three countries backed this approach and are clear on ‘no cherry-picking’ as well as the non-negotiability of the four freedoms and the single market. However, beyond these topics, we observe that the three parliaments focused on issues of national salience. Luxembourg is home to a prominent financial sector and thus the impact of Brexit on the latter has become the most salient issue in Luxembourg. Germany, the country with the biggest economic weight in the EU, is concerned about an aversion amongst the public to paying a larger share of the EU budget after the leave of the UK.  Without any reforms, Germany’s share in the EU budget will rise considerably. The CDU in the Bundestag, part of the coalition government, is supporting a proposed reform of the EU budgetary system in view of Brexit. The oppositional Green party, on the other hand, suggested to increase Germany’s share of the budget by 8%, which they believe would fill the gap created by the UK’s exit and also Die LINKE is prepared to pay a larger part (Interview with Die LINKE 13/04/2018). The Bundesrat, too, is focussing its scrutiny on the EU budget, because with the UK leaving the EU, Germany becomes—statistically—economically stronger and the new Bundesländer lose the right to EU financial support. In the Czech Republic, both the Chamber of Deputies and the Senate focused on the generally salient issues of citizens’ rights and the financial settlement.

6   Conclusion National parliaments’ involvement in EU politics has increased in recent years. Their current activities in the Brexit process confirm this development. Indeed, the national parliaments analysed are surprisingly active given the low activity scores of some in Auel et al. (2015). So far, their interest in national as well as international level developments has been continuous and driven by events and actions taking place outside domestic constituencies, in particular, European Council meetings and milestones in the negotiation process. To what extent does Brexit represent a unique opportunity for national parliaments to further increase their power in the EU policies of their states? Based upon existing literature, we expected their behaviour in the Brexit process to follow already established patterns—institutional strength

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and capacity playing a role as well as a focus on key national priorities. We also expected unicameral systems to pursue different scrutiny activities to bicameral systems. Our findings confirm our initial assumptions only partly. The constitutional dimension was probably closest to the bull’s eye—as expected, we found the different parliaments, unicameral, and the upper and lower houses in the bicameral parliaments, to vary in their approach to Brexit scrutiny or rather their interpretation of their role vis-à-vis the government on Brexit-related issues. However, all chambers were found to be active in their chosen roles: Whether as active scrutinizers and arena for active debate (Czech Senate, Bundestag, Czech Chamber of Deputies, Luxembourg parliament) or as policy shapers (Czech Senate, Bundesrat). Regarding the procedural level, we did not find remarkable differences among chambers in terms of their involvement and activity, as assumed. Parliaments have in general followed similar patterns of behaviour, focusing particularly on information gathering and government monitoring. Even though some chambers have adjusted their scrutiny mechanisms, the vast majority of their activities have been taken up in already established procedures and frameworks (except for the Bundestag, which set up a weekly Brexit correspondence). Moreover, parliaments have not tried to challenge governmental primacy in Brexit negotiations so far (except for the Bundesrat), thus adopting a reactive approach. Thus, neither our three case study parliaments nor the Irish, Spanish, Belgian or Polish parliaments studied in other chapters have used Brexit as an opportunity to extend their powers vis-à-vis government (Bar Cendón 2019; Barrett 2019; Borońska-Hryniewiecka 2019; Sierens and Brack 2019). Although chambers talked about different issues and put a different emphasis on issues—partly dependent on nationally salient topics—all of them have covered and agreed on the EU’s Brexit priorities such as citizens’ rights’ protection, the Northern Ireland question and the financial settlement between the UK and the EU. Most surprisingly, the party-politics expectation was not confirmed at all. The first stage of negotiations did not increase government-opposition tension, neither was it exploited differently by Eurosceptics and by pro­EU parties. This finding holds for all three countries, including the Czech Republic, where the EU agenda generally is a very controversial topic. We identified some voices of dissent—particularly in Germany—but these addressed mainly procedural or smaller issues and did not disagree with the content of the general consensus on Brexit. Interestingly, this finding

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is also largely repeated across the other chapters looking at national parliaments and Brexit (Bar Cendón 2019; Barrett 2019; Borońska-­ Hryniewiecka 2019; Sierens and Brack 2019): The authors analysing the Irish, Spanish and Belgian parliaments also found that there was no government-­opposition divide on the substance of Brexit and that all parties rallied around a joint vision of national interest. In Poland, Brexit led to disagreements between Eurosceptic and pro-European parties. However, as in the Luxembourgish case, these disagreements appear to focus on the interpretation of the causes of Brexit rather than desirable outcomes, with some Luxembourgish and Polish MPs expressing ‘understanding’ for the decision to leave the EU.  This—in their view—was grounded in the EU’s shortcomings. Our findings should be considered in context, which explains why some assumptions were met and some were not. Firstly, even though Brexit touches upon several important issues, it did not headline the daily political agenda of the analysed countries. The low political salience of the Brexit negotiations was further strengthened by the fact that there was wide consensus on national priorities among relevant political forces in the EU, as well as broad support for the existing EU approach. In the period analysed, the talks between the EU and the UK touched mainly general topics and issues where consensus—at least on the EU side—could easily be reached. Therefore, Brexit—or at least the first phase of its negotiations—failed to trigger party-political competition. The question is, if this development continues into the later stages of the Brexit talks. Our prediction is that it probably will and that the Brexit parliamentary game in the countries analysed is also likely to follow a consensual pattern in the future. So far, the main sources of disagreement are issues related to the future of the EU-27 after Brexit (e.g. the multiannual financial framework), but those discussions are not directly related to the Brexit negotiations. This could of course change when more detailed and specific issues are discussed and when national governments may try to promote—or block—special deals with the UK in concrete sectors and policy areas. Here the question is whether potential controversies could be utilized by national parliaments—but considering the highly technical nature of such discussions, substantial change is unlikely. This prediction was supported by some of our interviewees—for example, German MPs interviewed (Interview with CDU 27/04/2018; Interview with SPD 19/04/2018) did not expect the support for a united EU approach to flag. Even though some chambers demanded special procedures for Brexit

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scrutiny—the German Bundestag and Czech Senate—actual parliamentary activity requires other sources of motivation.

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Interview with the Bundestag Administration 19/04/2018: Interview with Dr. Sven Vollrath, Head of the Europe Sub-department of the German Bundestag Administration, April 19, 2018. Interview with Two Employees of the Parliamentary Institute, 10/1/2018. Interview with Václav Hampl, Chair of the Committee for EU Affairs, Senate of the Parliament of the Czech Republic, 23/1/2018. Lippert, B., & Von Ondarza, N. (2016, July). Der Brexit als Neuland. SWP-­ Aktuell, 42. Lynch, P., Whitaker, R., & Cygan, A. (2019). Brexit and the UK Parliament: Challenges and Opportunities. In T. Christiansen & D. Fromage (Eds.), Brexit and Democracy: The Role of Parliaments in the UK and the European Union. London: Palgrave Macmillan. Mabbett, D. (2017). Parliamentary Sovereignty and Brexit. The Political Quarterly, 88(2), 167–169. Maurer, A., & Wessels, W. (Eds.). (2001). National Parliaments on Their Ways to Europe. Losers or Latecomers? Baden-Baden: Nomos Verlag. Norton, P. (Ed.). (1996). National Parliaments and the European Union. London: Frank Cass. O’Brennan, J., & Raunio, T. (Eds.). (2007). National Parliaments Within the Enlarged European Union: From ‘Victims’ of Integration to Competitive Actors? Abingdon: Routledge. Phillipson, G. (2016). A Dive into Deep Constitutional Waters: Article 50, the Prerogative and Parliament. Modern Law Review, 79(6), 1064–1089. Poole, T. (2017). Devotion to Legalism: On the Brexit Case. Modern Law Review, 80(4), 696–710. Resolution of Chamber of Deputies of the Parliament of the Czech Republic European Affairs Committee No. 394. Senate of the Parliament of the Czech Republic Committee for EU Affairs Minutes 17/2/2016. Senate of the Parliament of the Czech Republic Committee for EU Affairs Minutes 15/5/2016. Senate of the Parliament of the Czech Republic Committee for EU Affairs Minutes 25/1/2016. Senate of the Parliament of the Czech Republic Minutes 14/7/2016. Senate of the Parliament of the Czech Republic Resolution No. 138. Sierens, V., & Brack, N. (2019). National and Regional Parliaments in the Context of Brexit: The Case of Belgium. In T.  Christiansen & D.  Fromage (Eds.), Brexit and Democracy: The Role of Parliaments in the UK and the European Union. London: Palgrave Macmillan.

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Smith, J.  (2019). Fighting to ‘Take Back Control’: The House of Lords and Brexit. In T.  Christiansen & D.  Fromage (Eds.), Brexit and Democracy: The Role of Parliaments in the UK and the European Union. London: Palgrave Macmillan. Spreitzer, A. (2014, July). Effects of European Integration on Parliamentary Control of Government: The Case of Luxembourg, 1999–2011 (PhD Thesis). University of Luxembourg. Thompson, L., & Yong, B. (2019). What Do We Mean by Parliamentary Scrutiny of Brexit? A View from the House of Commons. In T.  Christiansen & D. Fromage (Eds.), Brexit and Democracy: The Role of Parliaments in the UK and the European Union. London: Palgrave Macmillan. Winzen, T. (2012). National Parliamentary Control of European Union Affairs: A Cross-National and Longitudinal Comparison. West European Politics, 35(3), 657–672.

CHAPTER 6

National and Regional Parliaments in the Context of Brexit: The Case of Belgium Vivien Sierens and Nathalie Brack

1   Introduction The Brexit referendum in June 2016 marked a critical point for European integration as it fundamentally called it into question. It has not only evidenced a deep rejection of the European Union (EU) by large segments of the UK population but also triggered an existential crisis for the European political regime, with a member state deciding to leave. Given the unprecedented nature of the event, it is not surprising that a burgeoning literature has quickly developed to understand its causes and consequences. Most of these analyses have focused on explaining the Brexit vote (Hobolt 2016; Jensen and Snaith 2016; Vasilopoulou 2016; Clarke et al. 2017), estimating the consequences of Brexit for the UK (Dhingra et al. 2017; Hix 2018; Van Reenen 2016) and exploring the way it has been framed in British political debates (Butler et al. 2016). A common conclusion within this literature is the high degree of contestability in the definition of a negotiating position for the British government. Yet, little V. Sierens (*) • N. Brack Cevipol, ULB, Brussels, Belgium e-mail: [email protected] © The Author(s) 2019 T. Christiansen, D. Fromage (eds.), Brexit and Democracy, European Administrative Governance, https://doi.org/10.1007/978-3-030-06043-5_6

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research has been done on the domestic debates around Brexit in other EU member states (Oliver 2016).1 Indeed, the process has so far generally been managed by the EU as a unitary actor and has been mostly dominated by the executive powers. And yet, beyond the European Commission’s negotiation position, there are conflicting views on how the EU should negotiate with the UK as the member states are differently exposed to the hazards created by Brexit. These asymmetric risk exposures and the diverging European views around Brexit have been understudied so far. One rare exception is the work of Oliver (2017) which focused on interstate divergences in the negotiating position of their political elites. However, an important locus of these latent conflicts is situated at another level, at the parliamentary level. In the past often considered as “losers” of the European integration process, national parliaments have more recently experienced a resurgence. Since the reforms of the Lisbon Treaty, but also in the context of the economic and financial crisis, national parliaments have sought, in various ways, to play a more relevant role in EU affairs (Auel and Höing 2014; Auel and Christiansen 2015; Fromage 2015; Winzen 2012). Indeed, the current context of crisis has increased the EU’s visibility in national political arenas, and national parliaments have sought to influence EU politics and policies, notably by scrutinizing their government’s actions (Benz 2004; Fasone 2014; Raunio 2009; Sprungk 2013). This is confirmed by the 27th report of the Conference of Parliamentary Committees for Union Affairs of Parliaments of the European Union (COSAC). This report shows that a vast majority of national parliaments want to be informed on Brexit by their national government and intend to ask regular questions about the negotiations (Buth et al. 2018; Cosac 2017). Although there is no reference to national parliaments in Article 50 of the Treaty on the European Union, the role of national and regional parliaments is not just a formality since they will have to vote on any future agreement. And yet, how they address Brexit has been overlooked so far. The aim of this chapter is to examine how the issue of Brexit is addressed by parliaments in another member state, with a specific focus on the developments in the bicameral and federal system of Belgium. The chapter will be structured around several key issues: the first section discusses the constitutional and procedural dimensions of parliamentary involvement in

1  For an exception, see the project “Negotiating Brexit: national governments, EU institutions and the UK”, http://ukandeu.ac.uk/brexitresearch/negotiating-brexit-nationalgovernments-eu-institutions-and-the-uk/

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Belgium. It describes the formal executive-legislative relationship on EU affairs and contrasts it with the views of Members of Parliament (MPs) on Brexit in particular on the one hand and on the impact of parliaments on the other hand. Second, the party-politics dimension will be examined: do political parties emphasize the same issues across different levels and depending on their role as government or opposition parties? And, finally, a third section analyses how Brexit has been discussed in the various Belgian parliaments, looking at party differences, regional differences and MPs’ specialization. How does the attention paid to Brexit differ across parliaments in a multilevel setting? Do parties emphasize the same issue across different levels? Does the different “risk” exposure to Brexit impact parliamentary discussions?

2   Constitutional and Procedural Dimensions: Executive-Legislative Relationships on EU Issues in Belgium 2.1  Domination of the Executive Power As in many member states, the executive power is the main actor dealing with EU affairs in general (and Brexit in particular). The involvement of Belgian parliaments on the EU is rather limited, not only due to a lack of time, interest and expertise but also due to constitutional and procedural arrangements. In Belgium’s federal structure, competences are divided between the federal level, three Regions competent for economic issues (Brussels, Flanders and Wallonia) and three Communities competent for cultural issues (the Flemish Community, the Wallonia-Brussels Federation previously called the French-speaking Community and the German Community). The Belgian position on EU issues is usually established through coordination meetings between the different regional and federal ministers involved on the issue at stake under the supervision of the Directorate General Europe (DGE) of the Ministry for Foreign Affairs. Because of the complexity of the state structure, which is closer to a confederation than a federation for international affairs, parliaments are relegated to a minor role in EU affairs. The most active chamber in Belgium on European issues is definitely the Federal Chamber. As noted by Vanden Bosch (2014), there are three full-time civil servants dedicated to summarizing an average of 100 documents (out of 6000) sent by the EU Commission every year. Members of

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the Chamber also organize debates with the Prime Minister before and after the meetings of the European Council, but they usually lack any influence on the Belgian positions during those meetings. Within each committee of the Chamber, a “europromotor” is designated in order to follow EU affairs related to the powers of the committee and try to put the issue on the Chamber’s agenda. A similar system has been put in place in the Flemish Parliament as well as in the Parliament of the Wallonia-Brussels Federation. And as in any parliament, MPs can propose resolution, ask questions and organize debates on EU issues. However, according to the Federal Chamber, less than 5% of the parliamentary questions deal with the EU and even less concentrate on a specific legislative proposal from the Commission (D’Hollander 2013; Delreux and Randour 2013). Overall, Belgian parliaments are excluded from the coordination on EU affairs, especially when it comes to high-level positions such as on Brexit. A few weeks before the Brexit referendum, the decision to create a High-­ Level Group to assess the potential economic consequences of Brexit for Belgium was decided by the federal government. The process is thus dominated by the executive, along with the federal administration. 2.2   Regions and Federal Level: The Role of the Different Parliaments In principle, the Federal Chamber and the regional parliaments in Belgium are equal, but in reality for international relations and European affairs, the Federal Chamber of Representatives imposes itself as the key actor. According to the cooperation agreement of 1994 and following the fourth constitutional reform, the representation of Belgium in the EU Council is shared by the federal level, the regions and communities depending on their respective powers (i.e., depending on the issues on the Council’s agenda). The regions have extensive constitutional rights when it comes to European and international treaties. Most EU treaties as well as mixed trade agreements have to be ratified by all the parliaments in Belgium (with exception of the Senate for mixed agreements since the sixth constitutional reform). Although the regions have a potential veto power at several stages (during the coordination meetings at the DGE and afterwards if a text has to be ratified), the system and procedures are designed to lead to cooperation and consensus (Beyers and Bursens 2006). So, if in principle, any parliament could block the Brexit deal, it is unlikely given the very limited impact of Belgian parliaments on EU affairs (see Dumont 2013).

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According to a series of interviews that we have done with MPs from various levels at the beginning of 2018, when asked about their role on Brexit negotiations, most regional MPs stress that it is rather the role of the European Parliament and the Federal Chamber to follow and influence the negotiations process. They acknowledge that Brexit is likely to have an impact on their region but note that there is little debate in Belgium and in Belgian parliaments on the issue: “I don’t think any parliament in Belgium will play a role. We can organize as many debates as we want, pretend to the public that we are following the issue, but we shouldn’t kid ourselves, it’s the federal government who will decide on a position in the end” (interview Walloon MP, 22 March 2018). However, regional MPs still would like to be informed about the negotiation process and are attached to their ratification power, but they generally argue that they lack expertise to really matter on the issue. Federal MPs stress a bit more their mission of information and control of the executive. They consider that Brexit will have a strong and negative impact on the country. Indeed, as a small economy, very integrated with the UK market, Belgium is one of the countries that is most likely to suffer from a British exit from the common market. The British market is the fourth largest export market for Belgian products. According to Vandenbussche et al. (2017), a hard Brexit could generate between 10,000 and 42,000 job losses in Belgium. But even Federal MPs stress their feelings of a limited role of the Chamber: “I would say that the Chamber of Representatives can send signals through its position but you know, everything is decided by the heads of states” (Interview with a member of the Chamber of Representatives, 6 April 2018). Different perceptions on Brexit’s relevance for regional parliaments are emerging. As a matter of fact, regions are not equally exposed to the risk of a hard Brexit. As of 2018, 87% of Belgian exports to the UK come from Flanders, around 10% from Wallonia and 3% from Brussels. As a result, Flanders is likely to be more impacted by trade losses if the UK leaves the common market. It is therefore not surprising that MPs from Brussels and Wallonia consider that the debate on Brexit is more important for Flanders: “I think that in Belgium, Flanders is the dominant region economically, so it will suffer more (from Brexit)” (Interview with a member of the Chamber of Representatives, 6 April 2018). However, most consider that there is little difference in parties’ positioning on the issue in Belgium, except for the N-VA who is seen as more critical of the EU and closer to the British Conservatives: “I feel that Flemish MPs are more worried but it does not create tensions. It’s more in terms of trade and economy that

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they will be more impacted (by the Brexit). It is a difference in terms of salience rather than a divergence in points of views between Flemish and French-speaking MPs” (Interview with a Member of the Chamber of Representatives, 22 March 2018).

3   Parties’ Positioning As far as party positioning is concerned, the general consensus around European integration has not been fundamentally questioned by the main political parties in the recent political campaigns. Across all parties, MPs have expressed high level of support for a deepening of European integration, and the level of polarization of MPs on this issue is quite low.2 For a long time, the EU has tended to be a “non-issue” in Belgian politics (Crespy 2011). The “permissive consensus” on the EU is still firmly embedded in Belgium as there is little popular Euroscepticism. According to the latest survey, 62% of the Belgian citizens consider EU membership to be a good thing, 61% are optimistic about the future of the EU and 53% trust the EU (well above the EU28 average) (Eurobarometers 88 and 88.1). Eurosceptic citizens are still a small minority that tend to turn to radical (left or right) parties to express their dissatisfaction with EU policies (Brack and Hoon 2017). Beyond extreme-right and populist parties, the only outlier to this general Euroenthusiasm is the N-VA. Since 2012, N-VA MPs’ attitudes towards European integration have been more lukewarm than in other parties (see Fig. 6.1). Although they are still in favour of European integration, they are among the least enthusiasts for a deepening of the EU. In 2014, the party also modified its stance on European integration in order to adopt a more “Eurorealist” position (FitzGibbon et al. 2016). Since the last European election, the party has also decided to sit with the British Conservative in the European Parliament. Besides, as Hoon  and Deschouwer (2015) have recently showed, their voters appear much more Eurosceptic than the party’s position suggests. This ambivalent position of the N-VA towards European integration is particularly interesting to consider when studying MPs’ attitudes towards Brexit. On the one hand, MPs from the N-VA may feel ideologically close to the British Conservatives (and have endorsed a number of the critiques

2  Based on data from PartiRep, we have computed a degree of polarization of 0.24 based on van der Eijck’s polarization measure for ordered rating scale.

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Fig. 6.1  Position of Belgian political parties on the EU in a bi-dimensional space (salience and overall position on EU integration) (2002–2014). (Source: Chapel Hill Expert Survey)

expressed by the Brexiteers, claiming that this should be a “wake up” call for the EU to engage in reforms), on the other hand, they want to preserve the interests of their region without weakening the existing European institutions. Since 2014 (and despite the reform of electoral calendars), Belgium has presented the interesting case of asymmetric governmental coalitions at multiple levels. In Flanders as in the Federal government, Flemish nationalists of the N-VA are governing with Christian-Democrats and Liberals, while, in the Walloon region, the Social-Democrats were governing with the Christian-Democrats until June 2017. It is worth mentioning that only one French-speaking party is represented in the federal government, the French-speaking liberal, MR.  This creates a particular situation for political debates in the Belgian multilevel setting with very different policy preferences followed by parties at regional and federal levels. In this configuration, a recent paradigmatic example of growing politicization of European matters in regional debates has been the grass-root mobilization around the Transatlantic Free Trade Agreement (TTIP) between the EU and the US and Comprehensive Economic Trade Agreement (CETA) between the EU and Canada. While the negotiation mandate had been smoothly adopted at the Flemish and Federal level, the Walloon parliament politicized the issue and opposed the negotiation mandate. This occurred in a particular situation where the francophone

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Socialist Party (PS) was in the opposition at the federal level but in the government at the regional level. Paul Magnette (Minister President of Wallonia at the time of Brexit) labelled himself the “first Social Democratic Eurosceptic”. Finally, explicit connections have been made by Belgian governmental representatives between Brexit debates and debates on the future of Europe. After the results of the Brexit referendum, Paul Magnette (Minister President of Wallonia at the time of Brexit) labelled himself the “first Social Democratic Eurosceptic” (Stroobants 2017) and explicitly pleaded for a potential exit of Poland, Hungary or Romania from the EU. At the same time, Flemish Minister President Bourgeois was deploring the Walloon attitude towards the UK and proposing of the creation of a sort of “North Sea Union” (Evans Pritchard 2016), a type of advanced free trade agreement between Britain, Belgium, the Netherlands, Germany, Denmark, Sweden and Norway to promote cooperation on managing resources such as energy and fisheries, as well as research and development. These examples evidence the difficulties for Belgium to find its voice on the European scene on the debates on Brexit and the future of integration. On the one hand, for long, Belgium has been, along with the European Commission, a custodian of the integration process, and defending the national interest meant defending more integration. But more and more member states have adopted a transactional approach to European integration, leading to the isolation of Belgium in its defence of an “ever closer union” (see also Mattelaer 2017). On the other hand, as argued by Brack and Crespy (2019), “the latent tensions between the governing parties lead to a crucial lack of ambition and impact on the debates on Brexit and on the future of European integration”. The divergences between the two main governing parties at the federal level make it difficult to have a strong position in Europe or even to define what the Belgian national interest means in the current context. And MPs have not taken advantage of the situation to become proactive in these debates. This is the case for Brexit, but it is also the case for wider debates on the future of Europe in general. Indeed, the national parliament has remained largely reactive, and party discipline has ensured that the same divergences found in the government are found between MPs of the governing parties. Finally, as we explain in this chapter, the two regions will be impacted differently by Brexit: Flanders is very dependent on the UK for its import/export and tends to focus on the economic aspects of the future cooperation, which is also evidenced in N-VA’s discourse on the future of Europe. In Wallonia,

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in contrast, the pleas for a more social and democratic Europe are enduring. These tensions between defending the regional/national interest on the one hand and preserving the long-standing positive stance towards the EU on the other hand lead to a passivity within the Belgian government and parliaments.

4   How Brexit Has Been Discussed in Belgian Parliaments? In this section, we will examine how Belgian parliaments have discussed Brexit since the announcement of an in/out referendum by David Cameron. During the period under study, the Federal Chamber of Representative was the only one to issue a parliamentary report on Brexit. This report was dedicated to the economic consequences of Brexit and issued by the EU Affairs Committee. Brexit was also discussed in more specialized reports dedicated to different issues such as the reform of the EU budget or the deepening of the Economic and Monetary Union. At regional level, the Flemish parliament adopted a parliamentary motion immediately after the Brexit referendum asking the Flemish government to adopt a constructive and pragmatic attitude in the negotiation process. Given the reduced parliamentary reporting activity, next sections will concentrate on how the different parties at different levels (Federal and Regions)3 have dealt with the issue of Brexit. 4.1  Parliamentary Questions as Tool to Monitor Brexit Negotiations The empirical analysis in this section is based on an exhaustive dataset of parliamentary questions on Brexit in three parliamentary assemblies (Federal level, Wallonia and Flanders). Data was retrieved from the website of each of these assemblies.4 In most legislatures, MPs can ask either written or oral 3  At the federal level, the analysis focused on the Chamber of Representatives as they were only two parliamentary questions on Brexit in the Belgian Senate during the period under study. At the federated entities level, there were almost no debates dedicated to Brexit in the Brussels Parliament and very few debates at the level of the Wallonia-Brussels Federation. However, this last assembly commissioned a report on the consequences of Brexit to a highlevel group dedicated on Brexit. 4  All parliamentary questions dealing with Brexit were considered.

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questions. Within Belgian Parliamentary assemblies, different types of questions are possible: written questions, oral questions or interpellations. Covering the period between 23 January 2013, date of David Cameron’s Bloomberg Speech, until 1 October 2017, we retrieved 146 parliamentary questions on Brexit in the Federal parliament (94 oral questions and 52 written questions), 88 parliamentary questions in Flanders (57 oral questions and 31 written questions) and 37 parliamentary questions in Wallonia (12 oral questions and 25 written questions). Parliamentary questions are certainly not the most powerful legislative mechanism, but their use entails very low costs for legislators and makes it easy for them to address issues of interest to them. It is therefore an excellent indicator of their priorities (Chiru and Dimulescu 2011; Navarro and Brouard 2014; Raunio 2009). Indeed, unlike most other parliamentary activities, party leaderships exercise less control over parliamentary questions, and these questions provide a reliable perspective on the focus of parliamentarians on national or international issues (Martin and Rozenberg 2012). Moreover, as noted by Navarro and Brouard (2014), since national parliaments have increasingly used their power of control to scrutinize their government, through the use of questions, we can use this tool to assess the content and issues that parliaments are debating. In addition to that, studies have also showed that parliamentary questions on the EU can be understood as a multilevel game with national MPs asking questions to influence the national position or stressing what they perceive as the national or regional interest (Finke and Herbel 2015). And since parliaments are not unitary actors (Andeweg and Nijzink 1995), the different political parties behave differently. Opposition parties tend to ask more questions than parties in government and tend to use that tool to delegitimize the government (Cole 1999; Green-Pedersen 2010; Vliegenthart and Walgrave 2011). As far as the EU is concerned, scholars have evidenced not only that opposition parties tend to use parliamentary question to obtain information on EU affairs but also that parliamentary questions may reveal tensions within governmental coalitions (Bergman 1997; Senninger 2017). In general, one could expect opposition parties to ask more questions to the government than governing parties as they tend to use parliamentary questions to scrutinize the executive. MPs from the opposition are also more likely to ask general questions since they have less access to information on the negotiations than MPs from the governing coalition. Besides, given the differential economic impact of Brexit on Belgian regions, one could expect that the level of specificity of parliamentary questions will differ according to regions.

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4.2  Method To structure our comparative analysis, this chapter suggests to combine descriptive statistics and social network analysis (SNA) to focus on: • Who asks whom? • Who asks what? For the “who-question”: each MP was categorized according to his/ her party and his/her presence or absence in the governmental coalition. For the “what-question”: each parliamentary question was categorized according to the main issue at stake in the parliamentary question. In a first inductive and exploratory step, parliamentary questions were manually coded according to their main topic and the Chamber’s categorization according to Eurovoc keywords.5 Based on this first coding, in a second step, parliamentary questions were recoded into the four most frequent categories: Questions asking general information on Brexit (such as “How does the government intend to solve this crisis?”, “How will article 50 be activated?”, “After the Brexit referendum, which European project does the Belgian government defend?” and “Which relations will we have with the UK after Brexit?”): • Questions on Trade and Economic Consequences (such as “How has the Trade Balance between Belgium and UK evolved in the last five years?”, “Are we going to renegotiate fiscal conventions with the UK?”, “Which measures are taken to attract British investments in the Belgian economy after Brexit?”),

5  At federal level, 25 categories were identified (General Brexit, Future EU, External Trade, Economic  Consequences, Employment, Negotiations, Fishery, Free  Movement, Fiscal Consequences, Agriculture, High  Level  Group, Airport, Banks  &  Insurances, Uk  Internal, Public  Safety, European  Patent, Business, Foreign  Policy, Defence  Policy, Data  Protection, SME, Space Research, Transport, Naturalization, Council Presidency), at Flemish level, 27 categories were identified (Citizens Protection, Defence, Economic  Consequences, Businesses, Employment, Seat  Share, Trade, Finance, Port, European  Agency, Fishery, Tourism, Free Movement, Internal Negotiation, Helpdesk, Cooperation Project, Agriculture, Food Industry, Flemish Negotiation, Parliamentary Cooperation, Diplomacy, UK  Regional  Issue, Future of Europe, Orchestra, Investment, General Brexit, Migration) and at Walloon level, 18 categories were identified (Impact  Wallonia, Economic  Impact  Wallonia, Impact  R&D, Agriculture, Brexit  Opportunities, European  Funds, Negotiations, Businesses, British  Parliament, Trade Relations, Airport, TAFTA, Food, Federated Entities Federal State, Employment, Crisis Group, Financial Market, European Council Agreement).

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• Questions on the Negotiation Strategy (such as “Will Belgium seek a common position with neighboring countries such as the Netherlands and Denmark on Brexit?”, “What is the impact of British election on Brexit negotiations?”, “How is Brexit debated in the other Belgian Parliaments?”), and • Questions on Specific Issues (such as questions “What is the impact of Brexit for space policy and Galileo?”, “Are there European crisis mechanisms to support farmers impacted by Brexit?”, “What will be the position of Belgium towards British low costs flight companies after Brexit?”) 4.3  Analysis of Parliamentary Questions on Brexit  ajority-Opposition Patterns on Brexit M To analyse the patterns of parliamentary questions on Brexit, we have combined contingency table and SNA. Contingency tables allow us to identify patterns of relationship at the aggregate level, and SNA allows us to identify patterns of relationships between MPs at individual level (Table 6.1). A first general observation is that, at an aggregate level, MPs from the opposition have been less active in asking questions on Brexit. The difference is particularly noticeable in Flanders where around 76% of parliamentary questions have been asked by MPs from governmental parties. This contrasts with a general expectation in the literature where MPs from the opposition are generally assumed to be more active in asking parliamentary questions. This indicates a general low level of politicization of Brexit in Belgian parliamentary assemblies but could also be an indicator of how MPs from governmental parties are scrutinizing their governments (and hence their coalition partners). Table 6.1  Descriptive frequency of parliamentary questions. Majority versus opposition Status

Federal

Flanders

Wallonia

Opposition Frequency Majority Frequency Total

66 0.45 80 0.55 146

21 0.24 67 0.76 88

12 0.32 25 0.68 37

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To grasp individual differences between MPs, we have found SNA to be a useful tool. For each level of government, we have drawn networks of parliamentary questions. First, as can be observed in the graphs of Fig.  6.2, in each region, a couple of MPs have dominated Brexit debates. Actually, these very active MPs are also often members of parliamentary committees on European or external affairs. At the federal level, MPs who have been the most active in asking parliamentary questions (Crusnière, Flahaux, Jadin, Luykx, Van Peteghem and De Vriendt) are all members of the Foreign Affairs Committee. In Flanders, most active MPs on Brexit (Vanlouwe, Van Overmeire, Turan and Hendrickx) also belong to the parliamentary Committee on Foreign and European Affairs. By contrast, in Wallonia, quite surprisingly, few of the active MPs are members of the committee on European Affairs (Lambelin and Simonet) or of the committee on Foreign Affairs (Dock and Prevot). For each of these networks, we have then computed several indicators: density, average degree and homophily. The density of a network is defined as the proportion of existing ties over all possible ties in that network (Wasserman and Faust 1994, 271). The average degree of a network ­measured the average number of edges leaving from a node (Opsahl et al. 2010). The homophily coefficient measures how nodes who share the same characteristics tend to connect to each other. The homophily coefficient is positive if similar nodes (based on some external property) tend to connect to each other, and negative otherwise. The coefficient is measured on a scale from −1 (perfectly heterophile network) to 1 (perfectly homophile network). The homophily coefficient of these graphs was computed based on party affiliation. The degree of a node corresponds to the number of edges of each node. In each of these graphs, the size of the nodes has been weighted according to its “out-degree” coefficient. This means that bigger nodes correspond to MPs who have asked more questions. Table 6.2 provides some descriptive statistics about the structure of the different networks. The densities of these networks are relatively low. This is due to the fact that these are directed networks where the different MPs are connected only to a couple of Ministers. The average weighted degree is higher at the Federal and Flemish level than in Wallonia. This means that, at these two latter levels, individual MPs have, on average, asked more questions on Brexit than in Wallonia. Party homophily is negative at all levels. This means that although MPs from governmental parties have

Fig. 6.2  Networks of parliamentary questions (centred on key MPs)

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Table 6.2  Descriptive network statistics

Federal level Flanders Wallonia

Density

Average weighted degree

Homophily (degree)

0.046 0.054 0.057

2.561 2.146 1.423

−0.062 −0.020 −0.097

been most active in asking questions, individual ministers are more likely to be asked a question by an MP coming from a different party than their own. This confirms Navarro’s idea that cabinet parties may use parliamentary questions on Europe to control their coalition partners (Navarro and Brouard 2014).  ho Asks What? W Networks of parliamentary questions do not necessarily need to be conceived as networks of interrelations between MPs and ministers but may also be conceived as a network of interrelations between MPs and specific topics. This completely changes the perspective on the same ­phenomenon. In each of these graphs, the size of the nodes has been weighted according to its “in-degree” coefficient. This means that bigger nodes correspond to the topics that MPs have asked about the most. As can be observed in Fig. 6.3 and Table 6.3, at all the levels considered, networks have a low density. This is not surprising in a directed network where MPs only connect to some topics and not between themselves. At the federal level, the average weighted degree of the network is the highest. This means that, at this level, many MPs have asked questions about more than one issue but have tended to focus on one dominant general issue concerning general information about the Brexit process. At the Flemish level, the average weighted degree is lower than at the federal level but higher than in Wallonia. This means that MPs have tended to ask questions on more types of issues than in Wallonia. Visually, Fig. 6.3 evidences the importance of more specific and trade-related questions in Flanders than elsewhere. Finally, in Wallonia, the average weighted degree is much lower. This indicates that MPs have tended to focus on one category of issues. Overall, these findings highlight several interesting aspects of preliminary parliamentary debates on Brexit in Belgium. In the immediate post-­ referendum period and the early stage of the Brexit negotiation process, debates on a British exit from the EU have not been highly politicized in Belgium. The federal parliament remains a central place to debate European

Fig. 6.3  Networks of parliamentary questions (centred on key topics)

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Table 6.3  Descriptive network statistics

Federal level Flanders Wallonia

Density

Average weighted degree

0.062 0.059 0.073

2.98 2.256 1.609

issues. However, quite interestingly, there are different levels of mobilization around Brexit across regions. As expected, MPs from the region most affected by Brexit, Flanders, have tended to ask much more questions and on more numerous topics than MPs from Wallonia.

5   Conclusion In recent years, the role of national parliaments in overseeing EU policies has been at the heart of theoretic debates around the democratic legitimacy of the EU (Auel et  al. 2015). And given the increasing role of national and regional parliaments in EU affairs, as evidenced by the CETA ratification debates (2017–2018), it is crucial to understand the domestic parliamentary debates on Brexit outside the UK. Indeed, Brexit is not only a priority on the European agenda at the moment, it also gives insights into the debates surrounding the future of the EU. Relying on parliamentary questions as a scrutiny tool, this chapter explored Belgian parliamentary debates on Brexit at three different levels: the Federal one, Flanders and Wallonia. More precisely, we looked at the extent to which MPs and parties discussed Brexit and how they did so. Indeed, a unique dataset of parliamentary questions on Brexit raised in the different Belgian parliamentary assemblies since Cameron’s Bloomberg Speech in January 2013 allowed us to investigate MPs’ behaviour on Brexit. Relying on SNA, it shows that, contrary to general expectations in the literature, opposition parties have not been very active in asking parliamentary questions on Brexit. Actually, in all the parliamentary assemblies considered, MPs from governmental parties have been the most active on Brexit (as in Ireland, see Barrett 2019, in this volume). This is particularly the case in regional parliaments where opposition parties did not get very much involved on this topic. This is rather surprising given the potential detrimental consequences of Brexit for the Belgian economy. This lack of involvement from opposition parties could be due to a relatively low

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salience of Brexit (and European politics) in Belgian political debates. Contrary to other countries studied in this book, such as Poland or Czech Republic, European issues are neither salient nor contentious in Belgium. Similarly to the Spanish situation, there is a general consensus on the need to preserve the European integration project. As a consequence, very much like in Luxemburg or Spain, much of the parliamentary activity on Brexit has been limited to monitoring and asking information on governmental activities rather than on proactive efforts to influence the negotiation process. However, differences exist between Belgian regions. There are signs of greater specialization and more technical discussions at the regional levels than at the federal one. This confirms the idea suggested by Högenauer (2017) that regional assemblies tend to specialize more on technical and subnational issues. In fact, the different issues emphasized at different levels also depend on the formal distribution of competences (agriculture, fishery), and the main regional infrastructures (ports and airports). More generally, although national (and regional) parliaments are no longer satisfied with rubber-stamping in EU affairs, their role in Belgium on key issues such as important trade deals remains limited. As Brexit and debates on the future of the EU are likely to remain on the agenda for years to come, it is crucial to analyse parliamentary debates to understand to what extent national parliaments can play a role in EU affairs and how (if) they can legitimize important (trade) deals.

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CHAPTER 7

The Polish Parliament and the Scrutiny of Brexit in Poland Karolina Borońska-Hryniewiecka

1   Introduction Poland has always counted the United Kingdom (UK) among its important political allies in the European Union (EU). The UK was one of the most vocal advocates of the EU’s eastern enlargement and the first member state (MS) to open its labour market to Eastern-European citizens. In addition to that, following the 2015 parliamentary election in Poland, in which the right-wing Law and Justice party (Prawo i Sprawiedliwość, PiS) won majority, both governments share opposition to the vision of a more supranational Europe and postulate repatriation of powers to the national level. In his inaugural address on 26 January 2016, the now former Polish Minister of Foreign Affairs Witold Waszczykowski put the UK in the first place among Poland’s major EU partners with a shared perception of European issues (MFA expose 2016).

K. Borońska-Hryniewiecka (*) Institute of Political Science, University of Wrocław, Wrocław, Poland © The Author(s) 2019 T. Christiansen, D. Fromage (eds.), Brexit and Democracy, European Administrative Governance, https://doi.org/10.1007/978-3-030-06043-5_7

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Brexit implies for Poland’s significant economic, social and political consequences. First, Poland runs a trade surplus with the UK.1 For this reason, the Polish government strongly supports keeping a post-Brexit zero-tariff trade relations with the UK and minimizing any non-tariff barriers. Poland is also the largest beneficiary of transfers from the EU budget, where the UK has so far been among the top net payers. UK’s withdrawal will most likely reduce the EU’s financial inflows to Poland, especially if the financial gap is not compensated by other MS.2 Second, the British Isles are one of the main destinations for Polish emigration with over 900,000 Poles living in the UK within strong Polish-community structures (British Office for National Statistics 2016). For this reason, the status of EU migrants in the UK has been the top Polish priority in the ongoing negotiations on the withdrawal agreement. Moreover, the post-­Brexit closure of borders and possible introduction of visa requirements could result in the return of some Polish emigrants which might increase unemployment in the country and put pressure on the national budget. Third, through Brexit, Poland—as the euro-out country—loses its most powerful partner, and thus a leverage, in influencing the evolution of the Eurozone reforms which currently stand high on the EU political agenda. Moreover, the British presence in the EU has been important for Poland in view of their similar positions on eastern policy, particularly towards the Russia-Ukraine conflict. Both the UK and Poland have opposed normalizing relations with Moscow until the Russian government meets all peace agreement commitments and withdraws from Ukraine. Similar views on regional security and similar proportions of national budget spending on defence entail that Poland wants to ensure close and institutionalized security cooperation with the UK post-Brexit (Borońska-Hryniewiecka et al. 2016). For the abovementioned reasons, the Polish government considers the negotiation of the UK withdrawal from the EU as well as the new UK-EU relationship as crucial processes for its national interests. The importance of Brexit for Poland is reflected in institutional changes which have taken place at the executive level of national administration, namely the creation 1  Poland’s trade surplus in goods with the UK was at €7 billion in 2016 and has been steadily on the rise. It is important for a country that runs a trade deficit with the rest of the world. 2  On 5 April 2017, Michel Barnier informed the Polish Sejm that the financial gap as a result of the British withdrawal from the EU will amount to €10 billion a year.

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of an Interdepartmental Team for monitoring and assessment of the international situation resulting from the outcome of the referendum on the UK’s withdrawal from the EU headed by the Polish Foreign Minister (currently Jacek Czaputowicz) as well as the Brexit Working Group headed by the Secretary of State and Minister for European Affairs Konrad Szymański (Prime Minister Decree 2016). The aim of this chapter is to analyse the role of the legislative branch of the Polish administration, namely the Sejm and the Senat, in overseeing and influencing the process of Brexit. Casting light on the activity of the Polish parliament in this respect is important for at least three reasons. First, although EU treaty provisions (TEU and TFEU) do not explicitly provide for the participation of national parliaments in the withdrawal procedure,3 the need to keep the legislatures informed about the negotiations being conducted in this process was emphasized in the guidelines endorsed by COREPER—Committee of Permanent Representatives, EU Council’s main preparatory body—and issued by the EU Council on 22 May 2017 on transparency of negotiations based on art. 50 TEU (EU Council 2017). The document indicated that the EU negotiator should seek to reach out to citizens, national parliaments and stakeholders, and provide the public with directly accessible information in a timely manner, especially during negotiation rounds. Second, as long as the withdrawal agreement will have to be signed by the European Council, the agreement on new relations between the EU and the UK, due to its broad nature and a mixed character, will most likely have to be ratified by MS according to their domestic procedures. Article 90 of the Polish Constitution provides that ratification of an international agreement requires approval of two-­thirds of the Polish Parliament. Such threshold calls for a broad consensus among the political parties. For this reason, the voting cannot be an improvised process. The possibility of blocking the ratification of the agreement, as well as the lack of possibility of introducing amendments by the parliament, increases the need for the executive to cooperate with the legislator at an early stage of negotiations. Last but not least, the current Polish government of the Law and Justice has been one of the most vocal supporters of strengthening the position of national parliaments in the EU. Grounding its postulate in the need to compensate for the EU d ­ emocratic deficit and lack of legitimacy,

3  In particular, art. 12 e TEU and art. 49 TEU require them to be informed only about applications for EU accession and not to withdraw from the EU.

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the Polish administration strongly supports the idea of vesting national parliaments with the veto power over EU legislation through the mechanism of the so-called red card (Szymański 2016). It should be therefore hypothesized that in the process so strategic for the Polish interests as Brexit the government will want to include its parliament in the course of consultations and building of the Polish position in negotiations with the rest of EU partners; ensure high transparency and day-to-day contacts with the legislator as well as respect parliamentary feedback on the process. The literature on parliamentary scrutiny of EU affairs also allows to build hypotheses about the potential involvement of the Polish parliament in the Brexit process. In line with Winzen (2012), it would thus be expected that the Sejm’s relatively strong formal powers in parliamentary control (with a score of 2.0) would entail a fairly high level of scrutiny of Brexit. Similarly, Barcz and Pudło’s classification of the Polish parliament as “policy-shaper” in EU affairs (2015: 609) leads to assumption that the parliament will undertake an active position on the matters and strive to ensure itself a corresponding leverage in the negotiation process. Such expectations are, however, stymied by the study on parliamentary activity in EU affairs developed by Auel et al. (2015) in which the Sejm is ranked joint 8th and the Senat joint 3rd from the bottom out of 40 national chambers, both making little use of their mandating powers. This contribution intends to verify these hypotheses through the analysis of Brexit-related activity of the Polish Parliament in the period of two years between 23 June 2016, when the British referendum on EU membership took place, and 29 June 2018, when the European Council reviewed the partial draft legal text of the Withdrawal Agreement between the EU and UK. The remainder of this chapter is structured in the following way: The first section presents the institutional framework of domestic legal provisions for parliamentary scrutiny of EU affairs within which the Polish Parliament can exert control of and influence Brexit negotiations. The second one analyses the actual parliamentary involvement in the process, focusing on the constitutional and procedural dimensions of the scrutiny. It looks at the relationship between the executive and legislature, the involvement of members of parliament (MPs) in the process as well as at whether the parliamentary activity matches the formal institutional powers of the Polish chambers. The third section analyses the party-political dimension, showing in what ways Polish MPs approach and exploit the question of Brexit at the parliamentary level. The chapter finishes with concluding remarks supported by additional data.

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2   Domestic Provisions for Parliamentary Scrutiny of EU Affairs While art. 95 (1) of the Polish constitution defines the Sejm and Senat as bodies of legislative power, it is only the Sejm that exercises control function over the Council of Ministers (art. 95 (2)). Thus, the positions of the two chambers are unequal: the Sejm has stronger powers, and this asymmetry also applies to EU affairs. The Polish carta magna has not been updated after the country’s accession to the EU and does not include any mention of the parliamentary control over European policy-making. The role of Sejm and Senat in this field is regulated by the Act of 8 October 2010 on the Cooperation of the Council of Ministers with the Sejm and the Senat in matters related to the Republic of Poland’s membership of the EU (hereafter Cooperation Act) (Dziennik Ustaw 2010). The Rules of Procedure of the Sejm and the Senat also play a role (see below). Formally, the Polish model of scrutiny of EU affairs is categorized as “mixed”, that is, it combines elements of a document-based system focusing on examining legislative proposals and other documents emanating from the EU institutions, and a mandating system where the position of the competent parliamentary organ should form the basis for the government‘s position in the EU (see Polish responses to 8th Bi-annual COSAC report). According to the Cooperation Act, the Council of Ministers is obliged to cooperate with the parliament in matters related to the Polish EU membership (art. 2). In this vein, the Council of Ministers should pass to the Sejm and Senat, immediately after receiving them, (i) EU documents subject to consultation with Member States (art. 4), (ii) draft positions of the Republic of Poland regarding EU draft legislative acts (art. 7), (iii) draft legal acts of the EU other than the acts referred to in art. 7 (art. 8) and (iv) draft international agreements to which the EU is to be a party (art. 9). In addition, art. 10 par. 1 of the Cooperation Act provides that the Council of Ministers shall provide the Sejm and the Senat in writing with information on the course of procedures for the establishment of EU law and on the positions of the Republic of Poland taken during these procedures. Finally, art. 7 par. 4 and art. 8 par. 2 of the Cooperation Act provide that “a competent authority”, on the basis of the Sejm’s and Senate’s rules of procedure, can express opinion on the EU draft legislative acts and other documents. In case of European affairs, “the competent authority” is the Sejm Committee on European Union Affairs (EAC) and the Senat Committee on Foreign Affairs and European Union. The Rules

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of Procedure of Sejm provide specifically that the opinion can contain the position of the committee in the form of acceptance or non-­acceptance of the government’s position as well as recommendations for the Council of Ministers (art. 148 c).4 In this case, the Cooperation Act provides that if the position of the Republic of Poland does not take into account such opinion, the representative of the Council of Ministers is obliged to immediately explain the reasons for the discrepancy (art. 8 par. 3). To sum up, EU affairs committees of the two legislative chambers have the formal right to give opinions on draft EU legal acts, positions of government towards these acts and the position that the government intends to take in the EU Council. The abovementioned provisions may be applied with regard to Brexit scrutiny. From the legal point of view, decisions on authorization to open negotiations, as well as to sign and conclude an agreement on the MS withdrawal from the EU based on art. 50 (2) TEU as draft legal acts are subject to the procedure set out in the Cooperation Act. Moreover, the government is obliged to systematically brief the parliament on the progress of the negotiations and take into account the opinion of EU affairs committee—if given.

3   Parliamentary Involvement in the Brexit Process: The Constitutional and Procedural Dimensions In general terms, the circumstance of Brexit has not resulted in granting the Polish parliament any additional channels of influence in EU affairs. In the same vein, there have been no procedural, either formal or informal, adjustments at the parliamentary level in this respect. Unlike in case of the executive branch, neither the Sejm nor the Senat have set up any new institutional bodies for the purpose of Brexit oversight. In this context, it is worth mentioning that on 21 March 2017, Petitions Committee of Sejm received a petition from a group of citizens (Young Polish Emigrants’ Association) postulating a creation of an extraor-

4  The Rules of Procedure of the Senat do not contain any provision as to the contents of the issued opinion.

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dinary parliamentary committee for the monitoring of Poland’s national interest in the process of Brexit. The authors of the petition also attached a draft legal act providing for the establishment of such a committee. The Petitions Committee, however, decided not to take into account the request justifying that Brexit falls within the scope of operation of the already existing permanent Sejm committees, principally the Sejm Committee on European Union Affairs (hereafter EAC) (Minutes of Petitions Committee 8/3/2017). In the opinion of the Sejm’s legal services, the EAC’s instruments and practice developed on the basis of the Cooperation Act and the Rules of Procedure were sufficient to conduct activities in this matter. Apart from the EAC, there is one more body at the Sejm chancellery which presence matters from the point view of the Brexit process. The Bureau of Research (Biuro Analiz Sejmowych) plays a significant role in providing advice and opinions on issues related to Poland’s EU membership. The Bureau, and precisely its Department of European and International Law Research, undertakes analyses of the legislative work carried out in the EU, the jurisprudence of the Court of Justice of the EU as well as analyses of national legislation from the point of view of its conformity with EU law. The Bureau has also expressed its legal opinions on several matters related to Brexit, such as the petition to establish the abovementioned Brexit-related committee and on the prerogatives of the Sejm in the Brexit process. The relationship between the legislative chambers and the national government with regard to Brexit has been based mainly on the latter one briefing the Sejm EAC prior to and after the European Council summits held in the art. 50 format and outlining its position on the specific items of EU-UK negotiations. However, the quality, intensity and systematic character of this legislative-executive relationship, let alone parliamentary influence on the process of negotiations, leave much scope for improvement. In the period of two years since the British referendum on EU membership in June 2016 until June 2018 (when this chapter is being concluded), the topic of Brexit was a matter of Sejm’s proceedings exactly 17 times: 10 times at the meetings of the EAC and 7 times at the Sejm plenary. Considering that the EAC holds from seven to nine meetings per month (they are held every two weeks unless the situation at the EU level requires an extraordinary meeting), it should be observed that Brexit has

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not been a frequent item on its 24-month agenda.5 With regard to Sejm plenaries, Brexit appeared twice during debates on the expose of the Minister of Foreign Affairs’ on Polish foreign policy tasks (in 2017 and 2018, respectively), three times on the occasion of the debates on the government’s information about the Polish participation in the workings of the EU (July–December 2016; January–June 2017 and July–December 2017), as well as during the discussion on the state of the Polish foreign policy towards the EU, the strategy of integration with the Eurozone and fulfilling the obligations resulting from the ratification of the Athens Treaty (Treaty of Accession). Only once, however, the Sejm plenary dedicated one full agenda item entirely to Brexit. It was when the former Prime Minister Beata Szydło presented the government’s information on the outcome of the British referendum on EU membership (see below). As regards the Senat, Brexit has been a matter of the Foreign and European Union Affairs Committee (FEAC) proceedings only once (!), on 9 November 2017, when the senators heard the information on the current state of Brexit negotiations presented by the Secretary of State for European Affairs Minister Szymański. Gathered materials and an interview conducted with an administrative representative at the Senat FEAC reveal that the engagement of the Polish upper chamber in the Brexit process is minimal. The explanation for this lies mainly in the aforementioned Senate’s scarce constitutional powers with regard to the control of the executive (Compare Szymanek 2004). In this respect, when it comes to the provisions for EU scrutiny provided in the Cooperation Agreement, the “weight” of the Senate’s opinion is lower than the Sejm’s. Basically, disregarding the opinion of the upper chamber does not entail any consequences (Compare Barcz and Pudło 2015; Fuksiewicz 2011). In view of an MP, who wished to remain anonymous, the senators are aware of their practically non-existent influence on the government in EU matters other than subsidiarity control. This state of affairs somehow resonates with the findings of Auel et al. (2015) who in their study of the levels of parliamentary activity in EU affairs classified the Polish Senat as a scrutiny-laggard (with a score of 0.07). For the abovementioned reasons, the following analysis will be limited to the workings of the Sejm.

5  The frequency of Brexit-related debates has increased after the beginning of the official negotiations between the EU and the UK (June 2017).

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As regards the modus operandi of the Sejm EAC, its rules of procedure provide for the representative of the government to present agenda (i.e. the subject of the forthcoming EU-level meeting and the Polish position on a particular matter) followed by a round of questions and comments from the committee members. These are represented by both the ruling party and the opposition. The minister is then obliged to respond to these questions. If there are no questions, comments or any other points raised, the committee concludes by “approving” the government’s information and/or position. In 2017, before the official launch of the EU-UK negotiations, the EAC had held three meetings fully devoted to Brexit. At the first one, on 5 April 2017, Secretary of State Szymański presented information on the negotiations of the UK’s withdrawal from the EU based on art. 50 of the Lisbon Treaty, briefly focusing on Poland’s goals. He listed the most important negotiating items, that is, the status and rights of EU nationals in the UK, British financial liabilities towards the EU, shaping of the common security policy and the scope of trade policy post-Brexit. He also outlined the Polish expectations as regards the conduct of the negotiations. Subsequently, several MPs—both from the ruling party and the opposition—asked questions, mainly regarding the status of Poles in the UK, including students and entrepreneurs’ risks for trade and the future of EU security (EAC 05/04/2017). At that point, Minister Szymański observed that there would be more opportunity to discuss the Polish stance and the negotiating mandate before the special European Council on art. 50 to be held on 29 April 2018 and that the current information regarded only the “framework position on Brexit in light of the notification letter”. It, therefore, comes as a surprise that the announced detailed discussion at the parliamentary level actually never took place. In other words, the EAC was neither briefed nor consulted by the government before the first formal EU-27 summit in art. 50 format which adopted the guidelines for Brexit negotiations. When asked how it was possible that no executive-­ legislative consultation of any sort took place before such an important EU-level meeting, the administrative representative of an EU Division at the Sejm Chancellery said she was “able to believe no sensible date could be agreed by both sides” (Interview Sejm 09/04/2018). The remaining two committee meetings before the official launch of EU-UK negotiations both took place on 20 April 2017. On that day, the European Commission’s chief Brexit negotiator Michel Barnier paid a visit

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to the Polish Sejm and appeared before the EAC where he outlined the scope, timing and EU priorities of the forthcoming negotiations as well as addressed a series of questions from the MPs (EAC 20/04/2017). Subsequently, the EAC listened to the British Ambassador to Poland Jonathan Knott on the British strategy of the withdrawal from the EU (EAC 20/04/2017). The presentation was followed by a round of questions from MPs mainly related to the status of Poles in the UK, British contributions to EU budget as well as the shape of the future EU-UK relations. After the launch of Brexit negotiations, in the one year period between June 2017 and June 2018, Brexit appeared at the EAC only seven times, out of which only four were the official government briefings prior or after the European Council (art. 50) meetings. Before the European Council of 23 June 2017, the Secretary of State Szymański presented general information on the meeting’s agenda and informed MPs that the heads of state would attempt to formulate criteria for the relocation of EU agencies (i.e. European Banking Authority and European Medicines Agency) from the UK to other EU MS after Brexit. He did not, however, present any Polish stance on the matter, which was strategic from the point of view of national interest. Surprisingly, the only question from the MPs came from the ruling party and inquired which other MS applied to have the agencies relocated on their territory. Consequently, the government’s information was “accepted” with no reservations (EAC 7/06/2017). The two subsequent EACs dealing with Brexit were the government briefings before and after the General Affairs Council of 17 October and European Council of 20 October 2017 taking place during the fifth round of Brexit negotiations. During the meetings, Minister Szymański called the progress of negotiations unsatisfactory enough to move on to the second stage, that is, talks about future EU-UK relations. He even described the situation a “potential negotiation deadlock”. He lamented about the insufficient certainty which the UK provided to the process, above all in terms of a crucial for Poland question regarding the British contribution to the EU budget, and expressed his concern with the potential negative consequences for Polish beneficiaries. He informed the MPs that the Polish government would cautiously formulate its expectations in this matter, yet without specifying what he meant by it. Notably, after neither the ex-ante nor ex-post ministerial briefing, the EAC members expressed any opinions or asked questions regarding this stage of Brexit ­negotiations. Consequently, the government’s information was “accepted” with no parliamentary feedback on both meetings.

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The next European Council in EU-27 format took place on 15 December 2017. It was significant in the sense that EU leaders adopted draft guidelines to move on to the second phase where they would start discussions on a transition period and the framework for the future relationship. For these reasons, it is striking to observe that during the government’s briefing at the EAC on 7 December, no single word was devoted to the art. 50 meeting. Minister Szymański discussed issues like PESCO, immigration and the European social model, but there was no parliamentary debate on the current state of Brexit negotiations. More surprisingly, no MPs raised reservations to this fact or made any queries regarding the process (EAC 6/12/2017). On 7 December 2017, the EAC hosted, for the second time, the British Ambassador Jonathan Knott who presented information on the British proposals regarding the rights of EU citizens in the UK and Northern Ireland. The meeting was held in a joint format with the Sejm Committee on Liaison with Poles Abroad, in the presence of representatives of the Polish Ministry for Foreign Affairs. The information of Ambassador Knott was followed by several comments and questions from MPs, from both the ruling party and opposition regarding future regulations on immigration, students’ exchange, the customs union and the Irish-British border. It is worth noting that the meeting was organized on the initiative of the British side (EAC 7/12/2017). The subsequent European Council of which the EU-27 meeting formed part took place on 22–23 March 2018. In spite of its strategic importance (adopting guidelines on the negotiating mandate for the framework of a future relationship with the UK after Brexit), the subject of the meeting did not appear in the ex-ante ministerial briefing at the EAC held on 28 February 2018 (EAC 28/02/2018 especially point IV of the proceedings). The issue of Brexit was raised only twice by the opposition MPs with regard to different points on the committee agenda, that is: first by Rafał Trzaskowski from the Civic Platform with regard to the government’s information on the Polish participation in the workings of the EU in the period July–December 2017 (EAC 28/02/2018 point II); and second by the MP from Nowoczesna with regard to relocation of the two EU agencies from the UK to other MSs as a result of Brexit (see below). The government’s information on the state of Brexit negotiations only became the subject of ministerial briefing after the EUCO summit, at the EAC meeting on 12 April. On that occasion, Minister Szymański underlined that Poland, with a growing trade surplus with the UK, is vitally

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interested in the future of trade in goods and services with London. He also stressed that it was in the Polish interest to forge a kind of “security partnership” with the UK post-Brexit. Taking into account the aforementioned strategic interest of Poland which lies in the specificities of the future EU-UK relations, it might be all the more confusing to acknowledge that when the EAC chairman opened the discussion, there were no questions or points raised by the MPs (EAC 12/04/2018). In the period between March and June 2018, where the two subsequent EU-27 meetings took place on the margins of European Councils, no additional consultations and discussions between the government and the EAC were held. Although the MPs were briefed by Minister Szymański on EUCO agendas, the Brexit-related meetings did not appear in the information (EAC 6/06/2018 point III). Similarly as in previous cases, EAC members did not raise any reservations in this respect. The last time when the EAC discussed Brexit in the analysed period was during the third meeting with the British Ambassador regarding the proposals on the rights of EU citizens in the UK which took place on 7 June 2018. The meeting had purely informative character where—similarly as in previous cases—the information of the British side was followed by a round of questions from MPs (EAC 7/06/2018). Several observations can be drawn from the conducted analysis with regard to the Polish parliamentary scrutiny of Brexit. First, when it comes to the constitutional dimension, the EAC—as the leading organ in parliamentary scrutiny of EU affairs—does not make full use of its formal powers. So far, its role has been limited to being briefed by the executive on the course of the process, with minimal attempts to actively control the government through resolutions or mandates (see the case of relocation of EU agencies below). Second, the position of the EAC during the analysed period has been mainly reactive, that is, it revolved around the executive reporting on the upcoming European Councils or their outcomes, without any cases of ministers being summoned by the committee for any Brexit-related consultations. This state of affairs was confirmed by its chair Izabela Kloc (PiS) in her statement on the workings of EAC in the period of January–June 2017 (Sejm 12/10/2017, p. 279). This attitude is also illustrated by the procedural dimension of the scrutiny, which is the fact that neither the Sejm plenary nor the EAC pushed for any special ­procedures or extensive formal powers with regard to the negotiation process. In this context, it is worth recalling the findings of the 27 bi-annual report of COSAC which tells us something more about the Sejm’s institu-

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tional self-perception. The report, which focused on national parliaments’ work related to the outcome of the British referendum, is based on the questionnaire directed at NP and conducted between January and March 2017. Asked in what ways NP should be involved in the Brexit process, the Polish Sejm agreed that they should receive regular updates from their governments, a contact person from the negotiating team should be appointed to liaise directly with NP and the Commission should regularly discuss the progress of Brexit with NP, but expressed no opinion on the possibility that NP should be able to ask questions and obtain clarifications from the negotiating team on the issues related to the negotiations (COSAC 27th, pp. 338–339). This response of the EAC differentiates the Polish parliament from its German, Czech or Luxemburgish counterparts (see Buth et al., in this volume). Such rather conservative stance towards EU-oriented activity resonates with the fact that the Polish Sejm has, for example, never participated in any of the “green card” initiatives6 because it considers this mechanism incompatible with parliamentary prerogatives in foreign policy (compare Borońska-Hryniewiecka 2017). One explanation for the lack of parliamentary ambition in the Brexit process might be its specificity, that is, the fact that the Polish government is not a direct party to these negotiations which are conducted by EU institutions. In this vein, the lack of direct, executive leverage in the process naturally reduces the usual parliamentary pressure. Alternative explanation points to a path dependence theory which attributes institutional practices to the long-established patterns of behaviour and institutional repertoires. In this sense, the Polish parliamentary control of Brexit displays an incremental logic of domestic EU scrutiny which so far reflects the subordinate position of the Polish legislature towards the executive, in spite of the existing parliamentary prerogatives (compare Dimitrakopoulos 2001). While in theory, parliamentary opinions should form basis of the executive position in the EU, the practice shows that they have not been binding (Compare Barcz and Pudło 2015; Fuksiewicz 2011). The failure to implement the terms of the Cooperation Act in relations with the Sejm does not have any consequences for the government other than political

6  The idea of a green card put forward by several national chambers including the British House of Lords, the Danish Folketing and the Dutch Tweede Kamer foresees a way for a group of national parliaments working together to make constructive suggestions for EU policy initiatives, or for reviewing and repealing existing EU legislation.

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(see above). Therefore, it can be assumed that in case of Brexit negotiations, which for the time being do not require passing any EU legislation subject to domestic scrutiny, the EAC does not have the motivation to issue opinions on the subject matter. It is, however, more difficult to explain the EAC’s complacency about the irregular and deficient government reporting on the course of the negotiations. Out of 16 Brexit-related official meetings held in art. 50 format at the EU level in the analysed period (six European Council summits and ten General Affairs Council meetings), the Sejm EAC was briefed in this respect by the government only four times (!), of which only twice ex-ante. Even when the government information was incomplete or untimely, no official reservations or complaints were made by the EAC or single MPs. In fact, this flawed state of executive-legislative relationship has been confirmed by the previous research. In their study of the role of the Polish parliament in EU affairs, Barcz and Pudło noted that the government’s position on particular EU legislative drafts often arrives after the expiry of the statutory time limit and the quality of government’s explanation often fails to meet parliament’s expectations (2015, p. 600). It might be, therefore, the case that the MPs have simply got used to this unsound administrative culture, yet another argument pointing to institutional stickiness and inertia of the Polish parliamentary scrutiny of EU affairs. Finally, the fact that out of the four conducted governmental briefings MPs asked questions only once,7 mostly with regard to the issues of EU migrants in the UK and the British financial obligations, both highly salient for the Polish national interest, might have at least two reasons. One is that there was generally not much controversy in the first phase of the negotiations on Brexit regarding the stance of the Polish government aligned with the EU-27.8 The second is that Polish MPs are not so much interested in the technicalities of the negotiations as these do not attract much voter’s attention and hence do not possess much relevance in terms of MPs’ re-election prospects. For example, when it comes to the parliamentary focus on the EU-UK relations post-Brexit, although MPs from all parties opposed “cherry-picking” on the part of the UK and stressed that the presence in the single market is inextricably linked with respect for

 The other three briefings obtained no parliamentary feedback whatsoever.  For more on the opposition questioning the Polish government’s acting on Brexit, see the section below. 7 8

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the free movement of people, the Polish Sejm did not hold any discussion regarding the possible impact of Brexit on the four freedoms (27th COSAC report, p. 340).

4   Party-Political Dimension of Brexit Since the last national parliamentary elections in October 2015, the level of politicization of Europe in the Polish parliamentary debate has sharply increased. At the same time, the labels of “Brussels” and the “EU” have become one of the most contested words in domestic politics. It is without a doubt that the attitude towards the EU is one of the most differentiating factors between the currently ruling Law and Justice and the main opposition parties (Civic Platform and Nowoczesna) with the ruling party occupying a clear Eurosceptic position and the two latter a Europhile one. Out of the two remaining parties, the right-wing Kukiz15’ represents a conglomerate of anti-establishment Euroscepticism ranging from strong nationalist and anti-EU positions to more moderate ones, whereas the agrarian Polish People’s Party presents a pragmatically Euro-friendly attitude.9 Inevitably, these stances influence party positioning on Brexit. While the governing party and the opposition approach Brexit scrutiny in a similar way and agree that the future EU-UK relationship should be as tight as possible taking into account the inextricability of the four freedoms,10 they strongly disagree in the assessment of the causes of the British decision to leave the EU. The latter is a proxy of their views on the EU and the future of European integration in general. In fact, “the Brexit phenomenon” has become a source of political ammunition for both sides. In the parliamentary realm, it has become an opportunity for the Eurosceptic parties, ­especially the Law and Justice, to mobilize opposition to the EU and blame Brussels’ institutions for the current state of affairs, while for pro-­ European parties to marshal support for stronger integration. Several examples from parliamentary debates, which gathered considerable media coverage, illustrate this disconnection. 9  There are two more parties in the Polish Sejm, that is, Free and Solidary (3 MPs) and Independent (8 MPs). However, due to their small size and lack of activity, they are irrelevant for the purpose of this analysis. 10  It should be noted that during the meetings with external guests, both the ruling party and the opposition presented a coherent and unified position on the future EU-UK relations. This common front was stressed by several MPs from the opposition party.

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The first one refers to the Sejm plenary of 22 July 2016 when MPs heard the government information on the outcome of the British referendum on EU’s membership. On that occasion, the now former Prime Minister Beata Szydło11 (PiS) argued that the UK referendum showed that the Union needed change and that a real reform based on treaty changes was urgent. She listed migration crisis, terrorism and Brexit as three outcomes of an erroneous EU policy and recalled that not only the Brits lost trust in the EU but also the Dutch who rejected in referendum the association agreement with Ukraine.12 In her opinion, EU institutions forgot that the EU is a “community of sovereign states and free nations” who currently “lack respect for their self-determination”. She subsequently postulated a return to Christian values as basis of the European unification and strengthening national parliaments in the EU decision-making. In that vein, she also stressed that the EU “must better listen to the voice of its citizens and enjoy a greater democratic mandate” (Sejm 19–22/07/2016, point 25). The speech concluded in a standing ovation from the side of the ruling party. In the round of parliamentary statements following the Prime Minister’s information, critical approach to the EU and praising national sovereignty was reiterated by other MPs from PiS. For instance, MP Izabela Kloc, chair of the EAC, pledged: “We say no to more European integration. We say no to common currency. Our currency saved us from the crisis (…). Brits revolted against imposition from outside”. In her emotional statement, she also brought up the question of strengthening national parliaments. In this respect, she observed that the Commission cannot discriminate against the new MS by ignoring the voice of national parliaments in case of a “yellow card” for posted workers directive (for more on that see: Fromage and Kreilinger 2017).13 Subsequently, MPs from Kukiz 15 postulated rebuilding the “Europe of free nations” and blamed the British decision on the “dictate of Brussels and multi-cultural Europe”. Moreover, they expressed their readiness to support a similar referendum in Poland (Sejm 19–22/07/2016).

11  Beata Szydło was replaced as the Prime Minister by Mateusz Morawiecki in December 2017. 12  The Dutch held a referendum on the Association Agreement between the European Union and Ukraine that took place on 6 April 2016. 13  In May 2016, 14 parliamentary chambers activated the third “yellow card” in the framework of the so-called Early Warning System for subsidiarity control considering the European Commission’s proposal for a Directive concerning the posting of workers in the framework of the provision of services to be in breach with the principle of subsidiarity.

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On the other hand, MPs from the opposition Civic Platform did not agree that Brexit should be an excuse to blame EU institutions. In their opinion, it was time for consolidation and not contestation of the EU. MP Rafał Trzaskowski, former Minister for EU Affairs, viewed Brexit as a “victory of populists who used twisted arguments and plain lies to convince the ignorant society that the EU is bad”. He also observed that, in case of Poland, postulating treaty reforms as a country almost completely alienated at the EU level is silly and irresponsible. He asked whether Hungary was the only partner in this task. On the other hand, MP Sławomir Nitras from the same party stated that British politicians who supported the “Leave” vote used exactly the same arguments as the PiS in Poland. He reminded that looking for villains and scapegoats abroad—that is, immigrants—turned into a wave of hatred and violence against Poles, Romanians and Spaniards in the UK. He also pointed out that talks about Brussels taking away national sovereignty support the idea of Brexit. There were however much less specific postulates on the part of the opposition parties on how to consolidate Europe after Brexit. Their voices, to a great extent, focused on criticizing the view of the ruling party. The Brexit-induced pro-EU mobilization of the opposition has found its institutional dimension in setting up on 23 June 2016 of a parliamentary working group on the future of the EU.14 Its aim, as indicated in its Rules of Procedure, is to initiate and moderate well-informed debates on the EU and its policies; hold public consultations regarding the Polish position on the future institutional changes as well as to counteract disinformation campaign about the functioning of the EU. Since its creation, the group has held six working meetings and issued one declaration on the future of the EU on the occasion of the 60th anniversary of the Treaties of Rome. As much as creating an additional parliamentary forum of debate on Europe is a positive development, its current composition confirms the EU-related political cleavage: out of 41 members, only 2 represent the ruling party.15 Brexit has been the object of politicization also at the meetings of EAC. On 5 April 2017, after the presentation of the government’s goals in the upcoming Brexit negotiations, the governing party and the opposition

14  Zespół parlamentarny ds. Przyszłości Unii Europejskiej. Its institutional website with recordings of its proceedings can be found at: http://www.sejm.gov.pl/sejm8.nsf/agent. xsp?symbol=ZESPOL&Zesp=431 15  Membership in the working group is voluntary.

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clashed in the assessment of the British referendum and its outcome. In a round of questions, MP Joanna Lichocka from PiS claimed that Brexit was a “demise of the current elites who rule the EU, the consequence of their arrogance and lack of competence, especially that of the President of the European Council Donald Tusk”.16 In a response to that, MP from the liberal Nowoczesna, Michał Stasiński, expressed his concerns about the ruling party being a close ally of the British Conservatives who backed Brexit. He urged the government to observe that Brexit was rather a consequence of an aggressive domestic campaign ran by conservative politicians based on anti-European and, to a large extent, anti-Polish moods (EAC 05/04/2017). It was pointed out that the reason behind Brexit was mainly the unjustified opposition of the British society to the mass immigration from Central-Eastern Europe, especially from Poland. In fact, the wave of violence against the Polish minority which surged through the UK just after the referendum (including a deadly attack on Poles in Harlow, Essex, in September 2016) was a reason of several high-level visits and consultations between the Polish and British administration. In this context, Brexit has become an opportunity for the opposition parties to bring out the failures of the foreign policy strategy of the PiS government. Straight after the outcome of the British referendum, opposition MPs had been mocking the government for making the UK the biggest ally of Poland in a situation when it was about to leave the block. In the plenary debate following the government’s information on the outcome of the British referendum, the former leader and founder of Nowoczesna party, Ryszard Petru, assessed that while “the Polish biggest strategic ally in the EU” is leaving the Union, the prime minister should admit her government’s policy defeat and her Minister for Foreign Affairs should resign (Sejm 19–22/07/2016). The opposition also raised reservations related to the clumsy handling of the Brexit topic by the ruling party, in particular to the visit that the chairman of PiS Jarosław Kaczyński paid Theresa May at the Downing Street on 23 March 2017. In this context, MPs were asking about the unclear nature, contents and outcome of that trip—three facts which had not been sufficiently explained to the public. MP Trzaskowski from the Civic Platform observed that Mr Kaczyński, who decided not to become a prime minister after winning the

16  Before taking over the position of the EUCO President, Donald Tusk had been the Polish Prime Minister and the leader of Civic Platform.

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latest elections but remained a regular MP, does not represent the Polish government. Therefore, his visit to London remains unclear, especially in light of the information coming from the Downing Street that the meeting concerned important items on the Brexit negotiation agenda, that is, the status of EU immigrants. In the opinion of opposition MPs organizing a “semi-private trip to the Downing Street” by the Polish ruling party leader to discuss the fate of Poles in the UK did not look good in the eyes of the rest of the EU and might have undermined the Polish credibility in the upcoming negotiations.17 On the other hand, MPs from the ruling party pictured the visit as a proof of a privileged position of the Polish government in Brexit talks, pointing to the close relationship which the Law and Justice party maintains with the Tories within the European Conservatives and Reformists Group in the European Parliament. Finally, the Polish government was also strongly criticized by the opposition on its failure to relocate any of the two EU agencies from the UK to Poland as a result of Brexit. Large part of the EAC meeting on 28 February 2018 was devoted to consideration of the formal motion of Nowoczesna party to present at the Sejm plenary the “Information of the Prime Minister on the reasons for the failure of the Law and Justice government to relocate European Banking Authority (EBA) and the European Medicines Agency (EMA) from London to Warsaw”. In this respect, the Polish administration (along with majority of EU MS) applied for the two agencies but lost the competition with Amsterdam and Paris. Responding to opposition parties Minister Konrad Szymański explained that during the competition Poland had to struggle not to lose another EU agency already located in Warsaw (Frontex) due to administrative hurdles related to its headquarter. As he pointed out, these circumstances were rather unfavourable for the Polish application (EAC 12/04/2018). In the end, as a result of 16 to 8 votes against the motion of Nowoczesna party, the EAC decided not to hold a plenary debate on relocation of EU agencies from the UK.

5   Concluding Remarks The analysis of the Brexit-related activity of the Sejm and Senat in the period of two years following the British referendum does not confirm the hypothesis that the Polish parliament enjoys a strong and proactive role in

 Michał Stasiński, Nowoczesna.

17

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the negotiation process. Similarly, the conducted research has not showed that Brexit represents a unique opportunity for the Polish parliament to further increase its power in the EU policies, a finding which seems to be common for several other MS analysed in this volume (see Barrett 2019; Buth et al. 2019, in this volume). In fact, contrary to the Polish government’s postulate to strengthen national parliaments in EU affairs, the Polish Sejm and Senat have been somewhat marginalized by the executive with respect to the Brexit negotiations. While the engagement of the Sejm is based on mere monitoring and reception of government information by the EAC, the involvement of the Senat is practically non-existent. This clearly confirms the findings of Auel et  al. (2015) with respect to the Senat minimal EU scrutiny and distinguishes the Polish upper chamber from its Czech and German counterparts (see Buth et  al. 2019, in this volume). As regards the Sejm, its EAC—as the leading organ in parliamentary scrutiny of EU affairs—has not made full use of its formal prerogatives in terms of, for example, expressing opinions on the government’s information prior to European Councils. The fact that the Polish parliamentary scrutiny of Brexit has been largely reactive has been also confirmed in other analysed cases (see Buth et  al. 2019, in this volume). Yet, in this particular case, even with respect to obtaining information on Brexit negotiations, the legislative-executive relationship has been highly irregular, suffered from lack of consistency and precision, thus creating an evident control asymmetry between the government and the parliament. Out of 16 Brexit-related meetings held at the EU level in the period of two years, the Sejm EAC was briefed by the government only four times. Notably, at least in the analysed period, MPs have not voiced any criticism at the parliamentary arena as to the way government consults them with regard to Brexit or to the quality of government’s information it this matter. Limited parliamentary feedback during the governmental briefings of the EAC on the special EU-27 summits reveals that MPs simply do not use their consultative powers in the process of negotiations. Rather than in own government’s position, MPs showed much more interest in the information related to the status of Poles in the UK presented on several occasions by the British Ambassador. This confirms the argument of issue salience as this topic attracts much voters’ interest in Poland. These findings have been largely confirmed in an online interview which the author conducted with a member of the Polish Sejm on the basis of a questionnaire prepared for the purpose of this publication. The

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interviewee is a representative of the Civic Platform and a long-term member of the Sejm EAC. The received responses reveal that the Polish Sejm has a very limited influence on the executive with respect to Brexit negotiations to the extent that the parliament is actually being sidelined in this field. Moreover, the interviewee confirmed that the Sejm does not use its constitutional prerogatives in the field of EU affairs with regard to Brexit. Finally, it was admitted that MPs have the opportunity to influence the process only through discussion with the chief Brexit negotiator and government representatives, but not through mandating the latter ones. It was, however, impossible to compare and contrast the obtained feedback with that of the ruling party due to the fact that its representative and, at the same time, the chair of the Sejm EAC did not find the time to respond to the questionnaire, despite several repeated attempts by the author. With regard to party-political dimension, unlike in the case of Germany, Czech Republic and Luxemburg (Buth et al. 2019, in this volume), we can observe a high level of politicization of Brexit in the parliamentary debates with the governing and opposition parties exploiting the topic for their own political gains. The ruling party presents it as an outcome of the erroneous policy of the EU and a response of the British people to EU institutions’ attack on national sovereignty. In doing this, it tries to justify various government’s decisions such as, for example, the refusal to admit any refugees into Poland. On the other hand, the opposition parties, mainly the Civic Platform and Nowoczesna, use the “Brexit argument” to convince the voters that the policy of the ruling party might lead to Polexit. This Brexit-induced parliamentary conflict over Europe has attracted much media attention which translated into European issues being covered more often in the analysed period of time by both the public and private TV stations. Overall, it should be taken as a positive development, taking into account the importance of parliamentary discussions on Europe and their presence in the media for communicating European affairs to citizens (compare Auel et  al. 2018). However, it remains to be studied in what ways the Brexit-related debates have affected the public opinion’s attitude towards the EU. For the time being, despite the Eurosceptic majority in power and its increasing political control over public TV, the support for EU membership in the Polish society remains one of the highest in EU-28 (Standard Eurobarometer 89/2018; CBOS 2018).

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References 8th Bi-annual Report of COSAC and Annex. http://www.cosac.eu/documents/ bi-annual-reports-of-cosac/. Last Modified 28 June 2018. 27th Bi-annual Report of COSAC and Annex. http://www.cosac.eu/documents/bi-annual-reports-of-cosac/. Last Modified 28 June 2018. Auel, K., Oliver, R., & Tacea, A. (2015). Fighting Back? And, If So, How? Measuring Parliamentary Strength and Activity in EU Affairs. In C. Hefftler, C.  Neuhold, O.  Rozenberg, & J.  Smith (Eds.), The Palgrave Handbook of National Parliaments and the European Union (pp.  60–93). New  York: Palgrave Macmillan. Auel, K., Olga, E., & Kinsky, L. (2018). What Happens in Parliament Stays in Parliament? Newspaper Coverage of National Parliaments in EU Affairs. Journal of Common Market Studies, 56(3), 628–645. Barcz, J., & Pudło, A. (2015). The Polish Parliament in EU Affairs. In C. Hefftler, C.  Neuhold, O.  Rozenberg, & J.  Smith (Eds.), The Palgrave Handbook of National Parliaments and the European Union (pp.  594–612). New  York: Palgrave Macmillan. Barrett, G. (2019). The Irish Parliament and Brexit. In T.  Christiansen & D. Fromage (Eds.), Brexit and Democracy: The Role of Parliaments in the UK and the European Union. London: Palgrave Macmillan. Borońska-Hryniewiecka, K. (2017). From the EWS to the Green Card for National Parliaments: Hindering or Accelerating the EU Lawmaking? In D. Jancic (Ed.), National Parliaments after the Lisbon Treaty and the Euro Crisis: Resilience or Resignation? (pp. 247–261). Oxford: Oxford University Press. Borońska-Hryniewiecka, K., Kaca, E., Płóciennik, S., & Toporowski, P. (2016). Probable EU-UK Relationship After Brexit. Perspective of Germany, France, Italy, Spain and Poland (PISM Report). Warsaw: Polish Institute of International Affairs. British Office for National Statistics. (2016). Labour Force Survey Q1 2016. Buth, V., Högenauer, A.-L., & Kaniok, P. (2019). The Scrutiny of Brexit in National Parliaments: Germany, Luxembourg and the Czech Republic Compared. In T.  Christiansen & D.  Fromage (Eds.), Brexit and Democracy: The Role of Parliaments in the UK and the European Union. London: Palgrave Macmillan. CBOS. (2018). Komunikat No. 56, 30 April 2018. https://www.cbos.pl/PL/ publikacje/raporty.php Dimitrakopoulos, D. G. (2001). Incrementalism and Path Dependence, European Integration and Institutional Change in National Parliaments. Journal of Common Market Studies, 39(3), 405–422. Dziennik Ustaw. (2010). No. 213/2010, Item 1395.

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EU Council. (2017). Guiding Principles for Transparency in the Negotiations, 22 May 2017. http://www.consilium.europa.eu/en/meetings/gac-art50/2017/ 05/22/ Fromage, D., & Kreilinger, V. (2017). National Parliaments’ Third Yellow Card and the Struggle Over the Revision of the Posted Workers Directive. European Journal of Legal Studies, 10(1), 125–160. Fuksiewicz, A. (2011). In M.  Grabski (Ed.), Sejm i Senat rok po wejściu w życie traktatu lizbońskiego  – dostosowanie do reformy instytucjonalnej. Warszawa: Instytut Spraw Publicznych. EAC Minutes, 20/04/2017 (No. 124, 125). http://www.sejm.gov.pl/sejm8. nsf/biuletyn.xsp?skrnr=SUE-124 EAC Minutes, 6/06/2018 (No. 209). http://www.sejm.gov.pl/sejm8.nsf/biuletyn.xsp?skrnr=SUE-209 EAC Minutes, 05/04/2017 (No. 121). http://www.sejm.gov.pl/sejm8.nsf/ PosKomZrealizowane.xsp?komisja=SUE#121 EAC Minutes, 7/06/2017 (No.135). http://www.sejm.gov.pl/sejm8.nsf/ PosKomZrealizowane.xsp?komisja=SUE#135 EAC Minutes, 6/12/2017 (No. 170). http://www.sejm.gov.pl/sejm8.nsf/ PosKomZrealizowane.xsp?komisja=SUE#170 EAC Minutes, 7/12/2017 (No. 172). http://www.sejm.gov.pl/sejm8.nsf/ PosKomZrealizowane.xsp?komisja=SUE#172 EAC Minutes, 12/04/2018 (No. 198). http://www.sejm.gov.pl/sejm8.nsf/ PosKomZrealizowane.xsp?komisja=SUE#198 Interview at Sejm. (2018). EU Division of the Chancellery of the Sejm, 09 April 2018. Ministry for Foreign Affairs. (2018). Expose of the Minister for Foreign Affairs. https://mfa.gov.pl/pl/aktualnosci/wiadomosci/minister_witold_ waszczykowski_o_priorytetach_polskiej_dyplomacji. Accessed on 14 June 2018. Petitions Committee minutes, (No. 64) of 8/03/2017, pp.  6–8. http://www. sejm.gov.pl/sejm8.nsf/PosKomZrealizowane.xsp?komisja=PET#64 Prime Minister Decree Nr 99. (2016, July 20). Sejm Plenary Minutes, 19–22/07/2016 (No. 23). http://www.sejm.gov.pl/ sejm8.nsf/PorzadekObrad.xsp?documentId=4B32A8E27C3CC0C3C12 57F1500567922 Sejm Plenary Minutes, 12/10/2017 (No. 49). http://www.sejm.gov.pl/sejm8. nsf/PorzadekObrad.xsp?documentId=4F5307B0C2CB55FFC12580EB0042 437E Standard Eurobarometer 89. (2018, March). http://ec.europa.eu/commfrontoffice/publicopinion/index.cfm/Sur vey/getSur veyDetail/instruments/ STANDARD/surveyKy/2180

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Szymanek, J.  (2004). Rola Senatu RP w wykonywaniu kontroli parlamentarnej. Ruch prawniczy, ekonomiczny i socjologiczny, 1, 15–33. Szymański, K. (2016). What Kind of Union Does Poland Need? Polish Diplomatic Review, 1(67). http://www.ppd.pism.pl/Numery/1-67-2016/What-Kindof-Union-Does-Poland-Need-Minister-Konrad-Szymanski. Winzen, T. (2012). National Parliamentary Control of European Union Affairs: A Cross-national and Longitudinal Comparison. West European Politics, 35(3), 657–672.

CHAPTER 8

The Irish Parliament and Brexit Gavin Barrett

1   Introduction The Irish parliament has not traditionally been among the stronger parliaments in exacting accountability in European affairs, either in terms of its institutional strength or its activity level. Although systems of grading national parliaments must be accepted cautiously (Costa and Rozenberg 2008), it is indicative that one recent ranking of forty European Union (EU) chambers put the Irish upper and lower Houses at 21st and 25th, respectively, in terms of their institutional strength1 (Auel et  al. 2015, 79). The Oireachtas has historically (correctly) been deemed a ‘slow adapter’ to European integration (Maurer and Wessels 2001). An adequate response by the Irish parliament to European integration was for long hindered by a tradition of executive dominance, assisted by a particularly strongly entrenched party-political system (and mainly majority governments); a Westminsterstyle parliamentary system without strong committees, chronic underresourcing, and an electoral system which rewards primarily constituency 1  Prior to 2011 reforms, both Irish Houses were ranked close to the bottom of the 40 chambers.

G. Barrett (*) Sutherland School of Law, University College Dublin, Dublin, Ireland e-mail: [email protected] © The Author(s) 2019 T. Christiansen, D. Fromage (eds.), Brexit and Democracy, European Administrative Governance, https://doi.org/10.1007/978-3-030-06043-5_8

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work. Over time, however, the Oireachtas role, like that of other national parliaments, has evolved. By 1995, an early version of the present Joint Committee on European Affairs emerged. Later, the political package securing the reversal of the 2001 Nice Treaty referendum defeat boosted the role of the Irish parliament in European affairs, providing for scrutinising European legislation and departmental reports on EU affairs, and promising pre-Council ministerial appearances before Oireachtas committees. The Lisbon Treaty’s December 2009 entry into force saw a Treaty-level upgrading of national parliaments’ role. This included Protocol No 2 with its early warning mechanism (see Kiiver 2012) and a general Treaty provision on representative democracy explicitly recognising the important role of national parliaments in securing democratic accountability.2 Another article enumerated many of the most important roles of national parliaments.3 In Ireland, as in other EU countries, the Lisbon reforms produced several domestic-level changes in European-related parliamentary functions. Some such changes implemented and complemented at statutory4 and constitutional levels5 changes ordained at EU level. The Lisbon changes also provided a (still-ongoing) stimulus to developing national parliamentary involvement in EU affairs, (Barrett 2012, 213; Barrett 2018a, 281 et seq.). Economic crisis brought (or coincided with) further developments. After the 2011 general election (following the November 2010 EU-IMF bailout of Ireland), ex ante statements to the Dáil (lower House) on European Council meetings were added to the already extant ex post statements. Scrutiny of EU legislation was mainstreamed to sectoral committees. Other reforms, including the promise that government ministers would now normally appear before sectoral Oireachtas committees prior to Council meetings, failed to secure implementation. However, broader

 See now Article 10 TEU.  See now Article 12 TEU. 4  For example, s. 7(4) of the European Union Act 2009 (role for Houses in subsidiarity review proceedings). 5  For example, Article 29.4.8° of the Constitution (inserted by the Twenty-Eighth Amendment of the Constitution (Treaty of Lisbon) Act 2009) requiring approval of both Houses for Lisbon Treaty passerelles to majority voting and co-decision (see Barrett 2018, 159–168). A similar constitutional role had already been provided regarding certain Nice and Amsterdam Treaty discretions. 2 3

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reforms (e.g., the establishment of a Select Committee on Budgetary Oversight in 2016 and a Parliamentary Budget Office in 2017) have given the Oireachtas a greater de facto budgetary role, including in relation to European-related matters (even if the role of national governments has itself been restricted de jure with the European semester process). The February 2016 general election yielded inconclusive results. A minority government (supported by a confidence-and-supply agreement6 with the largest opposition party), was formed only several months after the election and after tortuously long negotiations. Since then, the relatively unfamiliar experience of minority government has yielded broad changes in the legislature-executive relationship. Several parliamentary reforms have been introduced, including the election for the first time of the Ceann Comhairle (speaker of the Dáil), selection of committee chairs via the d’Hondt system, the assignment of the Taoiseach’s former prerogative of setting the Dáil agenda to a new Business Committee and a more generous approach to private members’ bills. Accurate assessment of the impact of these changes should probably await the election of a majority administration. Insofar as passing legislation is concerned however, the 32nd Dáil (which was elected in February 2016) has shown itself considerably less efficient than its predecessors (MacGuill 2017). It is into this context that the political hand grenade of the United Kingdom (UK) referendum vote to leave the EU was lobbed on 23 June 2016. Remarkably, the economy predicted to be most negatively impacted by Brexit is not that of the UK. It is that of Ireland. Ireland’s close trading relationship with the UK makes it peculiarly vulnerable to any deterioration in the commercial relations now safeguarded by the common participation of both states in the EU’s single internal market and customs union (Kelly 2018a). Ireland also has the only land border with the UK, separating it from Northern Ireland, the focus of a conflict which led to 3500 deaths, which ended formally only with the 1998 Good Friday Agreement. Given also the close linguistic, cultural and historical ties and the existence of a common travel area between Ireland and the UK, the ramifications of Brexit for Ireland go well

6  Such agreements are deployed in parliaments based on the Westminster system in order to enable minority governments to function. Opposition parties either abstain or vote with the government in votes on Cabinet appointments, no confidence motions and budgetary/ appropriation votes, but otherwise vote according to their own preferences.

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beyond the merely economic, and at any rate are greater than those for any of the other 26 member states which will remain in the European Union after Brexit occurs in March 2019. The attention of Irish politicians and the public unsurprisingly focused (largely with concern and dismay) on the prospect of Brexit even before the referendum vote. This article seeks to examine how such concerns have been reflected in the activities of the Irish parliament. It asks, inter alia, what, if any, influence Irish parliamentarians have exercised on the Irish position regarding Brexit and indeed what added value the legislature has brought.

2   Brexit and the Oireachtas: The Constitutional Dimension In this section, a number of questions are posed. First, how has the executive-­legislative relationship played out over Brexit to date—in other words, is Brexit just one more example of the ‘same old scene’, parliamentarily speaking? Or are there ways in which the Government-Oireachtas relationship differs from the norm when it comes to Brexit? 2.1  The Executive-Legislative Relationship and Brexit A chronological overview of the main aspects of Oireachtas activity relevant to Brexit seems an appropriate starting place. First, a few parliamentary Committees have produced reports. A rapid start was made with the publication by the Joint Committee on European Union Affairs on 23 June 2015 (i.e., precisely one year before the date of the UK referendum) of its report UK-EU Future Relationship: Implications for Ireland (see Oireachtas 2016.) The report, while expressing respect for the right of the British people to decide whether or not to remain in the EU, concluded unambiguously that an EU without the UK would weaken both Ireland and Europe. It recommended Irish Government engagement with the UK and the EU in order to reflect the special relationship that exists between the UK and Ireland. The report, already unusual in that it concerned the topic of a referendum in another country, was launched in the UK with the assistance of the Irish Embassy and given much publicity. There was also an active campaign by the executive to encourage Irish voters in the UK referendum to vote against Brexit in June 2016 (Anon 2016; Wintour 2016).

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The Committee’s conclusions corresponded with the Irish government position,7 and the Committee’s efforts to publicise its report were encouraged by the Department of Foreign Affairs.8 The report, however, was the work of the Joint EU Affairs Committee in the 2011–16 parliamentary period, and to some extent, it proved a false dawn. At the time of writing, rather remarkably, no report relating to Brexit has been produced by the Joint Oireachtas Committee in the subsequent parliamentary period, although over two years have now passed since the Brexit referendum.9 Some sectoral committee reports concerning Brexit have also been produced in the new parliamentary period, that is, since February 2016. The number has been surprisingly small, however: five in total, two of which were produced by the same Joint Oireachtas Committee (the Committee on the Implementation of the Good Friday Agreement) and one of which was produced by a Committee of the Seanad (Senate or upper House) set up to look at Brexit. Tremendous work was put into some of these reports (one of the Good Friday Committee reports runs to an impressive 452 pages). However, given the widespread concerns which have been expressed by parliamentarians about Brexit, it seems remarkable that this has translated into reports by only a tiny minority of the now-32 sectoral Committees.10 (See Table 8.1 for details.) A second Brexit-related activity took place shortly after the referendum, when in advance of the new parliamentary period, the Dáil Business Committee hosted a symposium on the economic implications of Brexit for Dáil, Seanad and European Parliament members. Leading economic, diplomatic, business and union figures addressed the symposium—held in Dublin’s Mansion House (i.e., away from the parliament buildings)—on 22 September 2016. The idea was that of informing debate: parliamentarians thus constituted the audience. Thirdly, the Joint Oireachtas Committee on European Union Affairs sought to inform itself on the Brexit process (and engage in relationship building) by undertaking a visit to Brussels in February 2017 (assisted by the Oireachtas National Parliament Office in Brussels (Barrett 2018a, 261–2)). The visit involved, among other things, meetings with, Michel  Oireachtas official interviewed 29 June 2018.  Ibid. 9  The time of writing is September 2018. 10  Including expired committees, there have been 42 Oireachtas committees to date in the 32nd Dáil period. 7 8

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Table 8.1  Brexit-related reports produced by Oireachtas committees in post-­ February 2016 parliamentary perioda Joint Committee on Agriculture, Food and the Marine Joint Committee on Jobs, Enterprise and Innovation Joint Committee on the Implementation of the Good Friday Agreement Seanad Special Select Committee on the Withdrawal of the UK from the EU Joint Committee on the Implementation of the Good Friday Agreement

Impact of the UK Referendum on Membership of the European Union on the Irish Agri-Food & Fisheries Sectors (February 2017)b (124 pp.) The Likely Economic Impact of Brexit with Particular Emphasis on Jobs and Enterprise (March 2017)c (48 pp.) The Implications of Brexit for the Good Friday Agreement: Key Findings (June 2017)d (46 pp.) Withdrawal of the United Kingdom from the European Union Brexit: Implications and Potential Solutions (July 2017)e (80 pp.) Brexit and the Future of Ireland Uniting Ireland & Its People in Peace & Prosperity (August 2017)f (452 pp.)

As of 20 August 2018

a

b

(32/AFM/04)

(32 JEI 004)

c

d

(32/JCIGFA/01)

(32/SSSCWUKEU/01)

e

(32/JCIGFA/02)

f

Barnier, EU Chief Negotiator and head of the Task Force for the Preparation and Conduct of the Article 50 Negotiations with the UK (who expressed interest in hearing suggested solutions to anticipated difficulties in the negotiations) and Guy Verhofstadt, the European Parliament’s representative in the Brexit negotiations.11 The Committee on Agriculture, Food and the Marine also visited Brussels in December 2017. This visit was less Brexit-­focused, however and since then, no other Oireachtas sectoral committee has visited Brussels by the time of writing. Fourthly, work has been done by Committees other than that involved in producing reports. If reports are few, debate has nonetheless been plentiful— a search on the parliamentary website for Committee debates on Brexit yielded no less than 4843 results and 243 pages of links to debates. Further, some (extremely limited) accountability is sought to be exerted on Irish ministers participating in General Affairs Council meetings through the mechanism of the Joint Oireachtas Committee on European Affairs being briefed  Oireachtas official interviewed 26 June 2018.

11

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publicly by the Minister for Foreign Affairs and Trade or the Minister of State for European Affairs on some upcoming such meetings.12 Because of the sensitivity of the Brexit negotiations, there have also been private briefings. A fifth way in which Brexit has received consideration has been through debates in plenary sessions of both Houses. A search for parliamentary debates in both the Dáil and Seanad using ‘Brexit’ as a search term by this writer yielded over 6000 returns (with the list of links stretching over 309 pages), indicating plentiful interest in the topic. Brexit-level activity of this kind goes beyond set-piece debates. Brexit can and has been discussed, for example, in statements by ministers; in ‘topical issue’ debates; debates on private members’ motions; in questions to ministers; and in discussing the Order of Business in each House. Brexit issues are also often raised at Leaders’ Questions: since this allows party leaders to question the Taoiseach without notice of the topic, this can allow for freer discussion. Another particularly Brexit-focused forum consists of the Taoiseach’s ex ante and ex post statements on European Councils (which are followed by an opportunity for each of the Opposition parties to make statements) and which invariably see Brexit discussed, due to its propensity to feature either in the agenda or as a marginal issue in European Councils. Sixthly, the setting up of a Seanad Special Select Committee on the Withdrawal of the UK from the EU demonstrated the taking of a novel approach by the upper House. This Committee sought to approach Brexit strategically and to seek solutions for potential problems. It also attempted to fill in perceived gaps in work by earlier parliamentary Committees. Hearings were organised on Thursdays, with former high office holders, including former Irish premiers and a former European Parliament president, various industry representatives, social partners and some academics being given a public platform to reflect publicly on Brexit. The Committee also sought to involve Northern Irish participants mirroring the equivalent organisations and individuals from the Republic.13 The Committee 12  At the time of writing (21 August 2018), there have been 37 General Council meetings (29 formal) in the lifetime of the 32nd Dáil, 35 (28 of them formal) have taken place since the election by that Dáil of the Taoiseach on 6 May 2016. In all that time, there have been just seven ministerial briefings of the Joint Committee on EU Affairs concerning such Councils, three of which have been ex ante, two ex post and two simultaneously both ex ante and ex post briefings. In this period, 184 Council meetings took place. No other Council meetings are the subject of as many parliamentary committee briefings as are General Council meetings. 13  Northern Irish interests appreciated this. Given the ongoing collapse of the Northern Ireland Assembly in January 2017, they lack public fora in which to articulate their concerns (Oireachtas official interviewed 29 June 2018).

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then produced an 80-page report Withdrawal of the United Kingdom from the European Union Brexit: Implications and Potential Solutions. Since then, however, it has not engaged further, although it may seemingly renew its activities in the future.14 Seventhly, the encouragement by Commission President Jean-Claude Juncker to Commissioners to visit national parliaments15 has also had Brexit-related consequences for the Oireachtas: on 21 February 2017, European Commission Vice-President Frans Timmermans addressed a Joint Sitting of the Joint Committee on Foreign Affairs and Trade, and Defence and the Joint Committee on European Union Affairs on the topic of Brexit, and engaged in dialogue with its members. An eighth feature of parliamentary activity has been the appearance of prominent speakers on Brexit appearing in the chamber of the lower House. The form of appearances differed, but all addressed gatherings full of Irish parliamentarians. EU chief Brexit negotiator Michel Barnier addressed a Joint Committee Sitting of both Houses in a crowded Dáil chamber on 11 May 2017. Barnier’s address followed an opening statement by the speaker of the lower House and was followed by statements by party and group leaders and a closing address by the speaker of the upper House. European Parliament Brexit Coordinator, Guy Verhofstadt, also addressed a full Dáil Chamber on 21 September 2017, focusing on Brexit negotiations and the future of Europe. Formally, this differed from the Brexit visit in being a meeting of three parliamentary committees—the Joint Committee on European Affairs, the Joint Committee on Foreign Affairs and Trade and Defence and the Joint Committee on the Implementation of the Good Friday Agreement. This was reflected in party leaders being preceded in responding to Verhofstadt’s address by the chairs/representatives of the committees (several of whose members also participated in the ensuing discussion). Subsequently, European Commission President Juncker also addressed a full Dáil chamber on the topic of Brexit on 21 June 2018, reassuring his listeners of Commission support for Irish interests in the negotiations. Formally, this differed from the previous two events in being a joint sitting of both Houses. It was commenced and closed by the speaker of the Dáil, with 14  Oireachtas official interviewed 29 June 2018; Oireachtas official interviewed 26 June 2018. 15  In the three years before 13 September 2017, this occurred 650 times (see Anon 2017).

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President Juncker’s address being followed by statements by party and group leaders or representatives and a statement by the speaker of the Seanad. Ninthly—apart from the foregoing well-publicised events, in the background, other Brexit-related occurrences are taking place. Many parliamentary delegations from other EU member states have been visiting the Oireachtas, partly because resolving the Irish border issue is key to the success of the Brexit negotiations. Visitors have included both the House of Lords’ EU Select Committee, which has visited twice (see House of Lords’ EU Select Committee 2016, 2018), and the House of Commons’ Exiting the European Union Committee (Anon 2018). Among other member state parliaments to have sent visiting delegations are those of Germany, France, Latvia and the Czech Republic.16 Irish parliamentarians have also undertaken some visits abroad. Apart from the visits to Brussels chronicled above, Brexit has featured as an issue in fora including the Conference of Parliamentary Committees for Union Affairs of Parliaments of the European Union (COSAC), the Conference of Speakers of EU Parliaments and the Meeting of the Secretaries General of EU Parliaments, all of which have recently had Oireachtas-based speakers. Such events are however focused on networking and information-sharing and generate little publicity. What conclusions are to be reached regarding the foregoing? In terms of its normal level of activity, Ireland’s parliament may be said to have engaged actively regarding Brexit. Constitutionally, however, the Governmentparliament relationship in the context of Brexit has not diverged in any meaningful way from the normal state of affairs. Nor, arguably, is parliament making optimum use of the potential that exists for it to play a role in the Brexit crisis. The proportion (and absolute number) of parliamentary questions relating to Brexit is high. The effect is that both the Taoiseach and his deputy (the Tánaiste) are interrogated week in, week out, about various aspects of Brexit—the level of domestic preparedness, the current status of negotiations, where tensions are emerging and so on. Taken as a whole, this has constituted a ‘deep dive’ into the subject, involving hundreds of Brexit-related questions over time.17 Parliament has therefore not been inactive. And yet more might have been expected. It seems remarkable, for example, that no special parliamentary Brexit committee or sub-committee has been created. This  Oireachtas official interviewed 29 June 2018.  Department of Foreign Affairs official interviewed 27 June 2018.

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omission might possibly be because no Brexit Department or Minister was created by the Government. It nevertheless contrasts strikingly with the more dynamic approach taken to the political crisis caused by the 2008 referendum rejection of the Lisbon Treaty. That crisis led to the establishment of a parliamentary Sub-Committee on Ireland’s Future in the European Union chaired by the then Senator Paschal Donohue, which issued a very well-regarded report in November 2008.18 A similar reaction to Brexit might have been hoped for either from the Joint Committee on European Affairs or perhaps the Joint Committee on the Implementation of the Good Friday Agreement. The establishment, hearings and report of the Seanad Special Select Committee on Brexit were novel and useful, and the few other reports compiled by parliamentary committees have been generally substantial and useful. However, more engagement on Brexit itself, the domestic response thereto might have been expected from parliamentary committees as a whole. 2.2  Brexit: Opportunity for the Oireachtas to Gain New Influence over EU Affairs, or a Path to (Further) Marginalisation? Traditionally, it has been a struggle to interest Irish parliamentarians in European affairs, attracting as such issues do little voter interest and hence having little relevance to re-election prospects. Brexit has changed this. Issues are now being considered (such as the customs union, the single market and the Common Travel Area) which do not normally attract much public attention, because the threat of Brexit has highlighted their very real economic consequences for constituents (particularly in border areas). The level of Irish parliamentarians’ interest in the speeches by Barnier, Verhofstadt and Juncker testifies to the political salience of Brexit. All three spoke to packed Dáil chambers, when in earlier times a mere Committee room might well have sufficed to accommodate all of those interested in any EU-related issue.19 The interest of constituents and parliamentarians alike in Brexit is clear. The question is of whether parliament has used the 18  Ireland’s Future in the European Union: Challenges, Issues and Options (27 November 2008). 19  In 2015, the Commissioner for Trade, Cecilia Malmström addressed the Joint Committee on European Union Affairs and the chairs and members of two other Oireachtas committees, plus several MEPs (27 March 2015), an event accommodated in a Committee room.

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political opportunity thus generated to gain new influence over EU affairs, or whether parliament has been marginalised in the Brexit process. Parliamentary involvement in the Brexit process appears largely to correspond to what might have been expected on the basis of parliament’s previous behaviour. Brexit has very much been a case of ‘business as usual’. Neither parliamentary powers nor influence have increased much, if at all. Insofar as the operation of the Committee structure is concerned, parliament has actually disappointed with its lack of systematic Brexit-related reporting activity. There has, however, been much activity in terms of parliamentary questions and debates and—both via debates in plenary proceedings and committee proceedings—parliamentarians have increased their understanding of Brexit. The Seanad Special Select Committee on the Withdrawal of the UK from the EU provided a public forum for debate by expert speakers and addressed questions of strategy regarding Brexit. The Oireachtas has also made itself a forum for prominent speakers and has been used to this end by the European institutions in turn so as to provide much-needed reassurance on Brexit directly to Irish parliamentarians and voters. The pre-­Brexit Joint Committee on EU Affairs report was also an innovative attempt to influence the outcome of a referendum in another jurisdiction—even if its success was clearly limited. However, parliament has also found itself marginalised in a number of ways. Thus, as a public forum (see Rozenberg and Hefftler, 33), its role has to some extent been assumed by the All-Island Civic Dialogue on Brexit set up by the Government in November 2016 in order to bring the debate on Brexit to a wider range of participants, including, insofar as possible, Northern Ireland parties. The Civic Dialogue, which has a ‘town hall meeting’ nature, held its fourth plenary meeting in Dundalk on 30 April 2018 with EU Chief Negotiator Michel Barnier delivering the keynote address and meeting key Brexit stakeholders. Since the Dialogue was initiated by the government, over 500 representatives of political parties, business groups, trade unions, non-governmental organisations and civic society groups from both the Republic and Northern Ireland have participated in four plenary meetings. Additionally, there has been a series of sectoral consultation events in which government ministers engaged directly with stakeholders (e.g., industry and civic society groups) in many locations around the country on the implications of Brexit. Topics for such events (some of which have had over 200 participants in attendance) have included, for example, agri-­ food, energy, transport, tourism and hospitality, higher education and

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research and human rights under the Good Friday Agreement. The All-­ Island Civic Dialogue has been described by the Government itself as ‘an important part of the Government’s response to Brexit and…stakeholder engagement continues to be invaluable in shaping the Government’s approach’ (Department of Foreign Affairs 2018). Not only parliament’s communication role has to some extent been marginalised, however. In its role as a producer of expertise on EU matters (see Rozenberg and Hefftler 2015, 33), parliament has also been to some extent sidelined. Other entities in Ireland such as, inter alia, the Economic and Social Research Institute, the Institute of International and European Affairs, the Nevin Economic Research Institute, InterTrade Ireland, Tourism Ireland, the Department of Finance, Bord Bia, the employers’ group IBEC and academics in various universities have produced research on Brexit and its impact on Ireland in large volumes. (This is without even looking at relevant material produced abroad by e.g. the House of Lords.) The net effect may have been to deter the Oireachtas from engaging in the same exercise: for whatever reason, the latter’s output in terms of committee reports has been—as has been seen—very limited. The output of the Oireachtas committee system in no way compares for example with that of UK parliamentary committees concerning Brexit, even taking into account the very different resources available within the two jurisdictions. The role of parliament as a forum either for influencing government positions (see Rozenberg and Hefftler 2015, 31) or even merely for extracting information from the executive has also been somewhat marginalised by the creation of a ‘Brexit stakeholders’ forum’ by the Government, chaired by the Tánaiste (deputy Taoiseach) and meeting every 6–8 weeks. Participants include representative groups, agencies and some academics, giving these an opportunity to be briefed in private and to express their views behind closed doors rather than on the floor of ­parliament.20 Private bilateral meetings briefing the Opposition leaders are also held, further avoiding an Oireachtas role. Politicians may also gain information by going to the UK or to Brussels or in interparliamentary meetings such as those of the British–Irish Parliamentary Assembly (BIPA), a deliberative body with members from the UK, Irish and Scottish parliaments, and the National Assembly of Wales and the British crown dependencies, Jersey, Guernsey and the Isle of Man.  Department of Foreign Affairs official interviewed 28 June 2018.

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Overall, the prospect of parliament’s benefiting from the opportunities presented by Brexit for increased influence has been hindered by a lack of ambition,21 a lack of an overarching strategy, competition by other fora and perhaps too by the perennial difficulty of parliamentarians’ electoral interests residing in local constituency issues rather than general national strategies.

3   The Procedural Dimension of Brexit as Reflected in Parliament This section seeks to look at the procedural dimension of Brexit. Issues addressed include the balance between formal and informal arrangements in parliamentary Brexit scrutiny and whether the effect of procedural rules is to empower parliament or the opposite. The section also addresses the question of whether parliamentarians influence the process and direction of negotiations. 3.1  Irish Parliamentarians and Influence over the Process and the Direction of Negotiations Any consideration of the influence which Irish parliamentarians are capable of exercising over the Article 50 negotiations is framed by the reality that the Irish state is not a direct party to them. Rather they are between the EU and the departing member state. Conducted by the Commission, they will be concluded on behalf of the Union by the Council, acting by a qualified majority after obtaining the consent of the European Parliament. The qualified majority system implies that individual member states like Ireland have no legal veto.22 Individual states themselves—let alone parliaments—are therefore to some extent marginalised in the negotiations. At the time of writing, it was not clear that a parliamentary vote on the outcome of the Article 50 negotiations would occur in Ireland. None had either been called for by parliament or promised by the Government. It was anticipated this might change as the end of 2018 approached and the substantive outcome of the negotiations emerged. Whether a parliamentary vote happened then would be a political decision.23 Given the provisions of Article 50, of course, even if the

21  Leading to excessive focus of committees on mere networking and information gathering (Oireachtas official interviewed 29 June 2018). 22  Article 50 TEU. 23  Readers should note that shortly before this article went to press, a Governmentproposed motion supporting the draft withdrawal agreement published on 14 November,

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Irish government votes on the basis of any parliamentary vote, this may not be decisive regarding the outcome of the negotiations. The question over whether Ireland will be given a political veto over the outcome of the negotiations is ultimately up to the other member states. The Commission President, the President of the European Council and the EU Chief Negotiator for Brexit have all indicated at various times however that a deal will not be done in defiance of Ireland’s wishes concerning the need for a frictionless Northern Irish border, and to date, this position appears to have the support of the other member states (O’ Regan and O’Halloran 2018; Kelly 2018b; Barnier 2018). The Irish government of course has its own position regarding Brexit. The minority character of the government in office since 2016 and the fact that it retains its grip on power thanks only to a confidence-and-supply arrangement with the Opposition put the latter in a strong position to exert influence and give the government a strong incentive to keep it informed about Brexit negotiations and to take Opposition views carefully into account. Thanks to the political circumstances then, influence is capable of being exerted on the government by Opposition parties. The channels of such influence tend not to be parliamentary proceedings, however, but rather the confidential channels of private meetings between party leaders and the (closed-door) stakeholders’ forum.24 There is however broad cross-party consensus on the objectives which should be sought in the Brexit negotiations (focusing largely on the need to avoid a ‘hard’ border with Northern Ireland). In consequence, by and large, the concerns of the Government have not differed to date from those of the Oireachtas. 3.2  Balance Between Formal and Informal Arrangements in Scrutiny of Brexit The use of various formal avenues open to parliament, via plenary and committee proceedings, has been noted, and the view expressed that the opportunities offered by the existence of sectoral committees could have been deployed more extensively, particularly through writing reports and holding hearings. However, committees also have a less formal aspect to them in that rather than being directed at the production of reports on Brexit, they can and have been used as fora for discussions and for committee members to 2018, including the draft Protocol on Northern Ireland which formed an integral part of this) was in fact overwhelmingly approved by the Dáil (21 November 2018). 24  Department of Foreign Affairs official interviewed 28 June 2018.

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inform themselves. Furthermore (as already noted), the unstructured use of parliamentary questions to keep parliamentarians abreast of Brexit-related developments has been considerable. (This follows the strong tradition in the Dáil of the use of this technique to exact accountability and obtain information in relation to EU issues (Barrett 2018a, 239–252).) The use of more informal non-parliamentary arrangements, for example, private briefings for Opposition party leaders (incentivised on the Government side by the need to sustain the supply-and-confidence agreement with the leading Opposition party on which the Government depends for its survival), and a specially created stakeholders’ forum has also already been noted. Parliamentarians also participate in the All-Island Civic Dialogue on Brexit which has the twin advantages of its ‘town hall meeting’ style and of including participants from Northern Ireland. At international level, the Oireachtas has been able to rely upon formal international organisations and structures (such as COSAC, BIPA,25 the Conference of Speakers of the European Union Parliaments and the Meeting of the Secretaries General of the European Union Parliaments and the Oireachtas National Parliament Office in Brussels) to keep itself informed of Brexit-related developments, but has also used the informal networking and dialogue opportunities provided by the same activities and combined them with other informal approaches such as hosting a steady stream of Brexit-related visits from parliamentarians from other states and parliamentarians and occasionally committees undertaking visits to Westminster and Brussels. Some politicians have organised Brexit seminars for their constituents, rather than merely rely on little-reported Oireachtas committee meetings to communicate developments. One official commented to the author that ‘there is a lot of politicking and media briefing going on around Brexit, but not so much of it on the floor of the Oireachtas’.26 3.3  Procedural Rules: Empowering or Disenfranchising the Oireachtas? In some respects, the Oireachtas is procedurally weakly armed to enforce executive accountability, having at its disposal neither the mandate system seen in parliaments such as that of Denmark nor the scrutiny reserve system seen, for example, in the Westminster parliament. 25  In which Brexit has been described as ‘at risk of dominating the agenda’. BIPA provides a useful forum in particular for Northern Ireland assembly members to discuss Brexit issues (Oireachtas official interviewed 29 June 2018). 26  Department of Foreign Affairs official interviewed 28 June 2018.

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The Irish state itself does not have a legal veto over the outcome of the Brexit negotiations, but rather merely voting rights under the qualified majority voting system, under which Ireland can be outvoted. On the other hand, the other member states may be willing to concede what in effect is a political veto to Ireland in relation to the issue of ensuring a frictionless border with Northern Ireland. One way or another, and whatever the status of the Irish government’s position on the Article 50 Brexit negotiations, the absence of a mandate system in relation to them means that the Oireachtas has no procedural guarantee of helping determine that position. As already noted, it is not clear if there will be a parliamentary vote (either ex ante or ex post) on any eventual Article 50 agreement which the Government chooses to vote for. Should there be, it might well be regarded as politically binding, but would certainly not legally require Government compliance. That much said, the minority status of the government (provided this continues) requires a respectful attitude to be taken to any Opposition concerns that may emerge. Once again, however, such concerns seem as likely to be communicated via the informal channels of the Brexit Stakeholders Group or private briefings as via parliamentary proceedings. The nature of Brexit as a political issue counts for a great deal. A strong degree of consensus between all political parties exists regarding Brexit, and further (and perhaps more importantly) the economic importance of an Article 50 agreement between the EU and the UK is so great that a Dáil vote against the Government’s approving an Article 50 deal seems somewhat unlikely (in the event that a Dáil vote is actually held). This is more particularly the case given the economically disastrous alternative to any deal that a ‘no-deal’ Brexit would constitute (although it must be said that a deal which results in a significant hardening of the Northern Ireland border would likely increase parliamentary opposition). This degree of consensus concerning Brexit is so great that even existing procedural rules are not being used to challenge the Government. Hence, motions challenging or condemning Government’s negotiating strategies are not regularly being put forward by Opposition parties. A private member’s motion entitled ‘Brexit and Special Designation for the North’,27 moved by Sinn Féin, was voted on in the Dáil on 16 February  Moved by Sinn Féin leader Deputy Gerry Adams TD.

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2017. Although rejected by the Dáil, a Fianna Fáil party amendment to it28 calling on the Government, inter alia, ‘to report to the Houses of the Oireachtas, on a quarterly basis, regarding developments in the Brexit negotiations with a specific sectoral analysis to inform public debate and ensure genuine accountability’ was accepted. Although the Government has subsequently been occasionally accused in debate (in particular by Sinn Féin) of having ignored this motion, it appears that such accusations are made with little forcefulness, a phenomenon probably explained by the degree of political and public consensus on the issue of Brexit.29 A Danish-style mandate system has never been seriously contemplated in Ireland. A scrutiny reserve system, in contrast, has been urged by parliamentary committees three times (Oireachtas 2008, 2010 and 2014; Barrett 2018a, chapter 6). Its non-introduction apparently reflects both opposition within the executive and a lack of serious interest in such a development by parliamentarians. The absence of a scrutiny reserve may be irrelevant during the Article 50 negotiations, since these should not automatically lead to EU legislation. However, its absence could become felt in a number of situations. One is if the Council, beyond reaching an Article 50 agreement, additionally produces heads of agreement for an EU-UK trade agreement, and enshrines these in a regulation. Another is if and when EU legislation needs to be amended because the UK is no longer a member state. Another is if any EU-UK trade agreement is subsequently implemented via EU legislation.30 The establishment of the future EU-UK relationship is likely to be highly contentious, given the varied economic and other interests involved. Any future-relationship agreement itself will require ratification by all member states if (as expected) it is a ‘mixed’ agreement. Such a ratification process may involve some parliamentary participation: Article 29.5.1 of the Constitution requires every international agreement to which the State becomes a party to be laid before the Dáil.31 If it involves any charge on public funds, then to be binding, its terms must also be approved by the Dáil. Furthermore, in the dualist system contemplated by Article 29.6  Moved by Fianna Fáil’s then Brexit spokesperson Stephen Donnelly TD.  Oireachtas official interviewed 29 June 2018. 30  It should be noted that a scrutiny reserve system, while capable of controlling the national position regarding EU legislation, will not be capable of blocking its adoption at EU level if the legislative procedure involves qualified majority voting. 31  Involving a process of formal submission, which need not however involve any debate. 28 29

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of the Constitution, international agreements become part of Irish domestic only to the extent determined by the Oireachtas. Procedural rules have not been allowed to prevent speakers addressing parliamentarians in unprecedented ways. Special motions were thus adopted by both Houses to facilitate the addresses by Michel Barnier, Guy Verhofstadt and Jean-Claude Juncker. On the other hand, procedural arrangements may have indirectly and negatively affected the parliamentary performance regarding Brexit in more indirect ways. Thus, the mainstreaming from 2011 on of European affairs to various sectoral committees, if arguably part of a necessary process of maturation of the Oireachtas committee structure, has equally arguably defanged the Joint Committee on European Union affairs by preventing it from exercising leadership regarding various substantive areas affected by Brexit.32 In practice, the EU Committee has largely confined itself to relationship building, examining the negotiation process, and considering Irish Brexit preparedness. Similarly, conferring the role of ‘committee’ stage consideration of legislation on Oireachtas committees from 2011 on33 has filled the agenda of the justice, agriculture and finance committees in particular,34 inevitably leaving them with less time to consider strategic issues like Brexit. In practice, many committees are very domestically focused in their outlook.35 Another procedural arrangement indirectly affecting the committee performances is the appointment procedure for Oireachtas committees. Essentially, this task is delegated to political parties, with their choice then rubberstamped by a Selection Committee. However, since each political party nominates its committee member without knowledge of what other parties are doing, this in effect moulds committee construction in the interests of political parties without anyone looking after the general public interest in optimising competence or expertise.36 Moreover, the choice 32  The Committee has apparently also seen a reduction in its relative prestige: political parties showed relatively little interest in providing a chair for it in July 2016, under the d’Hondt system (Oireachtas official interviewed 29 June 2018). 33  Prior to this, the ‘Committee’ stage was deliberated upon by a Committee of each House. 34  The Joint Committee on EU Affairs performs very little legislative scrutiny (Oireachtas official interviewed 29 June 2018). 35  Oireachtas official interviewed 29 June 2018. 36  Or gender balance: the Joint Committee on European Union Affairs has no female members.

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of committee chairs via the d’Hondt system, whatever its merits in terms of representativity, is not a system calculated to see chairs appointed on basis of merit or interest in a given committee’s subject field.

4   The Party-Political Dimension of Brexit as Reflected in the Oireachtas The issue of the party-political dimension to Brexit involves addressing the extent to which the governing Fine Gael party and opposition parties approach Brexit scrutiny differently, the opportunities provided by Brexit for opposition parties to exert influence they might otherwise not have, and the issue of whether Brexit is providing opportunities for Eurosceptic parties to mobilise opposition to the EU, or for pro-European parties to marshal support for further integration. 4.1  Do Governing and Opposition Parties Approach Brexit Differently? The degree of consensus with which governing and opposition parties approach Brexit in Ireland has been surprising: it is far less contentious than many other issues. The deep divisions found, for example, within parliamentary committees at Westminster regarding Brexit are not found in Dublin. Such consensus seems explicable by reference to a number of factors. First, the economic and political importance of Brexit to Ireland’s future militates against its being made a political football. Secondly, the consensus reflects public opinion, which appears both strongly supportive of EU membership and strongly concerned about the implications of Brexit for Ireland.37 A further factor is that the Government’s stated priorities themselves are politically uncontroversial, consisting, in its own words, of ‘minimising the impact on our trade and economy, protecting the peace process and the Good Friday Agreement, maintaining the Common Travel Area with the UK, and securing Ireland’s future in a strong European Union’ (Irish Government 2017, 4). The lack of political difference may also derive from the limited and indirect role which the Government has in the Brexit negotiations, where the main roles belong 37  See, for example, the findings of the May 2018 Red C opinion poll, commissioned by European Movement Ireland.

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to the UK on the one hand and the Commission on the other. Finally, the Government’s minority status may have reduced the intensity of Opposition criticism, as the leading Opposition party is keeping it in power with a ‘supply and confidence’ agreement. The degree of public consensus on Brexit seems remarkable given the Government’s rather high-risk strategy has of refusing to approve any settlement involving a ‘hard’ border between Ireland and Northern Ireland, even though such a stance (if respected by the other remaining member states) carries with it serious risks of Article 50 negotiations collapsing. At the time of writing, some limited dissent appears to be emerging regarding Government tactics (as opposed to objectives). Rather remarkably, the Government has tended to be accused not of being insufficiently insistent on its high-risk ‘frictionless border’ demands, the implication being that the UK Government might be facilitated in resiling from guarantees about the border given in the agreed December 2017 Joint Report on the Article 50 negotiations (Joint Report 2017; Article 49; Anon 2018; but cf. O’Brien 2018; Barrett 2018b). 4.2  Opportunities for Opposition Parties to Exert Influence They Might Not Otherwise Have Opportunities exist for Opposition parties to exert influence on the Government position on Brexit. Three points can be made here. First, key here is not the particular issue of Brexit, but rather the minority status of the Government, which requires it to be particularly sensitive to Opposition feelings, including however regarding Brexit. We have seen that there are special closed-door fora for dialogue with the Opposition regarding the Brexit issue—namely, the Brexit stakeholders’ forum and special private briefings. The Government’s minority status leaves it vulnerable to the Opposition flexing its muscles. In practice, however, the degree of consensus on the issue has meant that the Opposition has not done this. Secondly, the invitation of key actors in the Article 50 drama (i.e., Barnier, Juncker and Verhofstadt) to address the Oireachtas membership (and Irish MEPs) has also provided Opposition parties with both a direct source of information and an opportunity for direct dialogue with key players regarding Brexit. Thirdly, political opportunities can also exist in the form of telling political arguments. As has been seen, the Government’s hardline approach regarding the so-called December backstop has not been subjected to sustained

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criticism. That however may change if it appears that rather than block the introduction of a hard border, the Government’s position is simply preventing an Article 50 agreement being reached or at least failing to prevent the introduction of border controls with Northern Ireland. A linked line of attack might then also be Government overselling of the December agreement. Moreover, if a ‘no deal’ or hard Brexit occurs, the adequacy of contingency preparations for Brexit also seems likely to be challenged. 4.3  Brexit: An Opportunity for Eurosceptic Parties or for Pro-­ European Parties? To date, the net political gains of Brexit have been made by the pro-­ European side. The shambolic nature of Britain’s exit process and widespread concern about the potential economic damage Brexit will wreak on Ireland have driven EU popularity to unprecedented heights, with appreciation having grown of the benefits of its protective embrace. In a May 2018 poll, a remarkable 92% of respondents agreed that Ireland should remain a member of the EU.38 The Brexit debate has provided an opportunity to discuss the benefits of integration and has allowed otherwise potentially controversial integration steps to be taken: for example, participation by (neutral) Ireland in Permanent Structured Cooperation (PESCO), a framework for structural integration forming part of the EU security and defence policy. To this generally rosy picture, at least two important caveats must be added. First, recent poll figures notwithstanding, the EU still suffers from a popularity hangover from the economic crisis, in which Irish banks were bailed out of their self-inflicted crisis at enormous expense to Irish taxpayers, assisted by EU and IMF loans. The painful bailout process may have been inevitable, but its timing and strict conditionality were effectively determined by the EU, which in exchange harvested an arguably unfairly large share of the odium attached to it (see Donovan and Murphy 2013). Secondly and more seriously, if the Article 50 negotiations go badly wrong, leading to a hard border or, worse, a ‘no deal’ Brexit and hence difficult trading conditions with the UK, with which Ireland has a strong trading relationship, it may well be that this will have negative repercussions for the popular perception of the EU and lead to a growth in Euroscepticism.  Ibid.

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5   National and Territorial Interests and Brexit Three questions are addressed here: first, whether parliamentary activity reflects Irish national interests? Secondly, whether there is evidence of organised interests within Ireland advancing particular societal or commercial interests? Thirdly, whether the involvement of parliamentary actors in Ireland has potential to disrupt the common EU27 position on Brexit? Parliamentary activities appear to represent major national concerns. For example, the topics of parliamentary committee reports on Brexit concern issues of general concern including the Brexit’s implications for peace in Ireland and more sectoral concerns such as its implications for the agri-food and fisheries sectors. Speakers visiting parliament have also tended to concentrate on strategic interests of concern to Ireland. An unusual feature of the Irish situation is that the issue given the most importance concerns not only the interests of the Republic but also a region of the neighbouring (exiting) jurisdiction—Northern Ireland. Interestingly, Irish parliamentary activities often seek to give a voice to Northern Irish interests. Hence, the Seanad Special Select Committee on Brexit gave a hearing not only to groupings representing the Republic but also to their Northern Ireland homologues. The same goes for the extra-­ parliamentary All-Island Civic Dialogue on Brexit. For political reasons, Northern Ireland Unionists frequently decline to cooperate with such activities, but economic and civil society actors tend to be more appreciative of such efforts towards inclusivity. 5.1  Organised Interests Numerous commercial, business and civil society groups have been active in the Brexit debate and engage in lobbying, campaigning, advocating and providing information about Brexit, including by organising seminars and producing research papers. Many have engaged with Oireachtas committees including the Seanad Special Select Committee on Brexit, as well as with the All-Island Civic Dialogue on Brexit, and have lobbied the Government in support of their aims. Many also lobby the Dáil or parliament generally: an August 2018 search revealed some 220 persons or entities had registered themselves as having lobbied either or both regarding Brexit.39 Some groups have additionally been involved in the Brexit stakeholders’ forum.40 Such  Accessed 25 August 2018.  Department of Foreign Affairs official interviewed 27 June 2018.

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activities can be expected to intensify if an Article 50 agreement is reached and attention turns to the future EU-UK trading and broader relationship. Among active participants in Brexit-related activities are the Irish Farmers’ Association, IBEC, human rights groups, Science Foundation Ireland, the Irish Universities Association, the aviation sector, the Irish Fisheries Organisation, the Irish Congress of Trade Unions, the Irish Exporters Association, the Irish Road Haulage Association, the pharmaceutical industry and the retail sector. If there is still great uncertainty concerning Brexit, the lobbying register has at least made clearer the identities of many of those campaigning for particular responses to Brexit. 5.2  Has Oireachtas Activity the Potential to Disrupt the EU27’s Common Position? A concluding issue is whether parliamentary activity has the potential to disrupt an EU27 common position. Although the conclusion of an Article 50 agreement requires only a qualified majority from Council (which in turn means that each individual state of the 27 has only limited legal capacity to disrupt matters), it is possible that an effective political veto will be accorded by the other member states to Ireland over Irish opposition to the creation of a hard border with Northern Ireland. In addition, if a subsequent ‘future relationship’ agreement with the UK is a mixed agreement, this would involve each EU member state having a veto over its conclusion—including Ireland. This situation too would involve the possibility of Irish disruption of a common position by the EU27. However, given the ongoing closeness of the views of the Irish parliament and executive on Brexit, it seems probable that any future disruption will be at the behest of the Government rather than that of the Oireachtas. As one Irish official put it to this writer, ‘the Opposition will not bring down the Government over Brexit’.41

6   Conclusion: A Comparative Note Ireland’s parliamentary approach to Brexit shows many similarities to that of other EU member states examined in this volume. Overall, the telling remark of a Belgian parliamentarian that ‘we can organise as many debates  Department of Foreign Affairs official interviewed 28 June 2018.

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as we want…but we shouldn’t kid ourselves, it’s the [government] who will decide on a position in the end’42 applies equally in Ireland, where (as elsewhere) the Brexit negotiations are executive-dominated. Parliament’s role is, as in Poland and Spain, mainly limited to monitoring and receipt of government information, with relatively few Brexit-related reports being produced. Nonetheless, the Oireachtas is obtaining at least some of what most EU parliaments sought in the 27th COSAC report (COSAC 2017): regular information about Brexit negotiations, and the opportunity to ask questions (if not of the negotiating team, then at least of government) s­ upplemented by visits by major players in the Brexit negotiations. If the number of Oireachtas visits of Commission officials/Commissioners has been less than in larger countries like Spain and Germany, it has nonetheless included a Commission President, Vice-President and the Chief Brexit Negotiator. Moreover, the Irish, like the Spanish (Bar Cendón 2019, in this volume), parliament cannot be accused of inactivity or indolence regarding Brexit. It has manifested considerable interest (so that while Michel Barnier’s appearance in Poland was before the EU Affairs Committee, in Ireland he filled the lower House chamber). However, such interest frequently finds expression through parliamentary questions—a parliamentary tool easy to deploy, difficult for party leaderships to control, and yet not particularly powerful. The description of the Czech chamber as ‘an active scrutiniser without actual attempts to influence the Government or the European Commission’ (Buth et al. 2019, in this volume) is not wholly applicable to the Oireachtas. Nonetheless, Oireachtas attempts at exerting influence (e.g., via reports) have been rare, and overall, evidence of actual parliamentary influence on Governmental positions appears, as in Spain, to be practically nil. Part of the reason is probably that such widespread parliamentary consensus exists concerning national Brexit-related priorities (as in Germany, the Czech Republic,43 Luxembourg and Spain, but unlike the UK where an open power struggle is being conducted involving parliament and government). Furthermore, much (though not all) Irish parliamentary intervention has been reactive rather than proactive—a phenomenon also seen in Germany, the Czech Republic and Luxembourg.  See chapter on Belgium, in this volume.  Not extending in this case to EU affairs generally.

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Ireland arguably does better in securing accountability in Brexit-related European Council meetings than either Poland (Borońska-Hryniewiecka 2019, in this volume) or Spain. But it could also learn from its Continental counterparts. Ireland has not managed to put into place a Brexit sub-­ committee like Spain (even if the latter has underperformed). And in seeking to upgrade its output of Brexit-related parliamentary reports and research, the Oireachtas could arguably do worse than put into place an equivalent of the Polish Department of European and International Law in its Bureau of Research.

References Anon. (2016, June 16). Brexit Most Important Vote in 50 Years – Taoiseach. RTE. ie News. Anon. (2017, September 13). Jean-Claude Juncker’s State of the Union Speech, Annotated. Financial Times. Anon. (2018, July 19). Northern Parties Criticise Lack of Progress on Brexit Issues. Irish Times. Auel, K., Rozenberg, O., & Tacea, A. (2015). Fighting Back? And, If So, How? Measuring Parliamentary Strength and Activity in EU Affairs. In C. Hefftler, C.  Neuhold, O.  Rozenberg, & J.  Smith (Eds.), The Palgrave Handbook of National Parliaments and the European Union (p. 60). Houndmills: Palgrave Macmillan. Bar Cendón, A. (2019). The Spanish Parliament and Brexit. In T. Christiansen & D. Fromage (Eds.), Brexit and Democracy: The Role of Parliaments in the UK and the European Union. London: Palgrave Macmillan. Barnier, M. (2018, April 30). Speech at All-Island Civic Dialogue. Dundalk. Barrett, G. (2012). The Oireachtas and the European Union: the Evolving Role of a National Parliament in European Affairs. Dublin: Houses of the Oireachtas. Barrett, G. (2018a). The Evolving Role of National Parliaments in the European Union. Manchester: Manchester University Press. Barrett, G. (2018b, May 22). Mutually Assured Destruction? Understanding the UK and Ireland’s Standoff Over the Northern Irish Border. LSE Europp blog. Available at http://blogs.lse.ac.uk/europpblog/2018/05/22/mutually-assured-destruction-understanding-the-uk-and-irelands-standoff-over-the-northern-irishborder/ Borońska-Hryniewiecka, K. (2019). The Polish Parliament and the Scrutiny of Brexit in Poland. In T.  Christiansen & D.  Fromage (Eds.), Brexit and Democracy: The Role of Parliaments in the UK and the European Union. London: Palgrave Macmillan.

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Buth, V., Högenauer, A.-L., & Kaniok, P. (2019). The Scrutiny of Brexit in National Parliaments: Germany, Luxembourg and the Czech Republic Compared. In T.  Christiansen & D.  Fromage (Eds.), Brexit and Democracy: The Role of Parliaments in the UK and the European Union. London: Palgrave Macmillan. House of Lords EU Select Committee. Committee Visits Belfast and Dublin for Brexit: UK-Irish Relations Inquiry. Published on the Committee’s Website on 14 October 2016 at https://www.parliament.uk/business/committees/committees-a-z/lords-select/eu-select-committee-/news-parliament-2015/ireland-inquiry-visit/ House of Lords EU Select Committee. Committee Visits Dublin, Belfast and Derry/Londonderry for UK-Irish Relations Follow Up. Published on the Committee’s Website on 25 January 2018 at https://www.parliament.uk/ business/committees/committees-a-z/lords-select/eu-select-committee-/ news-parliament-2017/ireland-visit-jan-2018/ Joint Report from the Negotiators of the European Union and the United Kingdom Government on Progress During Phase 1 of Negotiations under Article 50 TEU on the United Kingdom’s Orderly Withdrawal from the European Union (TF50 (2017) 19, 8 December 2017). COSAC. (2017, May 28–30). Twenty-Seventh Bi-annual Report: Developments in European Union Procedures and Practices Relevant to Parliamentary Scrutiny. Valletta. Costa, O., & Rozenberg, O. (2008). Parlementarismes. In C. Belot, P. Magnette, & S.  Saurugger (Eds.), Science Politique de l’Union Européenne. Paris: Economica. (see House of Lords EU Select Committee 2018 and 2016). Department of Foreign Affairs Website https://www.dfa.ie/brexit/governmentengagement/all-island-dialogue-process/. Accessed 12 Sept 2018. Donovan, D., & Murphy, A. (2013). The Fall of the Celtic Tiger: Ireland and the Euro Debt Crisis. Oxford: Oxford University Press. Kelly, F. (2018a, February 24). Classified Report Shows Brexit Will Hit Ireland Worse Than UK. Irish Times. Kelly, F. (2018b, March 8). Ireland Comes First in Brexit Talks: Tusk. Irish Times. Irish Government. (2017, May). Ireland and the Negotiations on the UK’s Withdrawal from the European Union Under Article 50 of the Treaty on European Union – The Irish Government’s Approach (Position Paper). Kiiver, P. (2012). The Early Warning System for the Principle of Subsidiarity: Constitutional Theory and Empirical Reality. Abingdon: Routledge. Maurer, A., & Wessels, W. (2001). National Parliaments after Amsterdam: From Slow Adapters to National Players. In A. Maurer & W. Wessels (Eds.), National Parliaments on their Ways to Europe: Losers or Latecomers? (p.  425). Baden-­ Baden: Nomos.

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MacGuill, D. (2017, March 19). One Year In, Is This Really a “Do-Nothing” Dáil? Journal.ie. O’Brien, Dan. (2018, September 23). A No-Deal Brexit is the Most Likely Outcome in March. Sunday Independent. O’Regan, M., & O’Halloran, M. (2018, June 21). Juncker Accepts There May Be No Deal with UK on Brexit. Irish Times. Oireachtas. (2016, June 23). EU Affairs Committee Launches Key Report on ‘UK-­ EU Future Relationship: Implications for Ireland. Press Release. Oireachtas Joint Committee on European Union Affairs. (2014, April). Assessment of Current Structures for Oireachtas Scrutiny of EU Affairs. Dublin: Houses of the Oireachtas. Oireachtas Joint Sub-Committee on the Review of the Role of the Oireachtas in European Affairs, Report of the (July 2010). Oireachtas Sub-Committee on Ireland’s Future in the European Union. (2008, November). Ireland’s Future in the European Union: Challenges, Issues and Options. Rozenberg, O., & Hefftler, C. (2015). Introduction, Chapter 1. In C. Hefftler, C.  Neuhold, O.  Rozenberg, & J.  Smith (Eds.), The Palgrave Handbook of National Parliaments and the European Union (Vol. 1). Houndmills: Palgrave Macmillan. Wintour, P. (2016, June 20). Irish PM Enda Kenny Issues Border Warning Over Brexit. The Guardian.

CHAPTER 9

The Spanish Parliament and Brexit Antonio Bar Cendón

1   Introduction The Spanish parliament—Cortes Generales—is a bicameral parliament, made up of two houses, one of popular representation, the Congress— Congreso de los Diputados—and one of territorial representation, the Senate—Senado. In the Spanish Parliament, the European affairs are dealt with in a joint committee made up of representatives of the Congress and of the Senate, the Comisión Mixta para la Unión Europea (Joint Committee for the European Union; hereinafter JCEU). In general terms, the JCEU is in charge of supervising the Government activities concerning the relations between Spain and the EU and, since the entry into force of the Treaty of Lisbon, it is also responsible for the control of compliance with the principle of subsidiarity by the EU legislation, thus exercising the powers that correspond to the Spanish parliament in this area. Therefore, the JCEU is the main body of the Spanish parliament in charge of dealing with Brexit and all other relating issues, except for those cases in which—as we will see in the following pages—the law requires the Cortes to act in a different manner.

A. Bar Cendón (*) Faculty of Law, University of Valencia, Valencia, Spain e-mail: [email protected] © The Author(s) 2019 T. Christiansen, D. Fromage (eds.), Brexit and Democracy, European Administrative Governance, https://doi.org/10.1007/978-3-030-06043-5_9

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Until very recently, the Spanish Parliament was not very demanding in the control of the Government activities neither as regards international relations, in general terms, nor as regards very specifically the relations between Spain and the European Union (hereinafter EU). And this was like this due mainly to three factors: first, because the current rules and regulations only oblige the Government to inform the Cortes about its activities within the European Council and the Council, but it does not allow the Cortes to give the Government a negotiating mandate which it should respect in the negotiations within those institutions; second, because the governments formed up until now in Spain have always had a parliamentary majority large enough to be able to govern and to enact their political options without major parliamentary obstacles; and, third, because—at least up until now—European issues have generated, in general terms, a broad consensus in Spain. However, the last two general elections, in 2015 and 2016, have meant a radical change in the political scenario, one which makes that, on the one hand, governments have no longer such large parliamentary majorities—and, of course, of a single political colour—and, on the other hand, the consensus on European affairs has been somehow weakened and it is no longer as uncritical as in the past. It is in this new context that the Spanish parliament addresses the Brexit issue, an issue that carries for Spain an added problem—the question of Gibraltar. Therefore, this chapter analyses how the Spanish Parliament has dealt so far with Brexit, taking into account the conditioning factors of both a legal-constitutional nature and a political one. In this sense, this chapter will analyse how the Government-Parliament relations have play out over Brexit; how the JCEU has centralized these relations, except for those cases in which the plenary of the Congress was involved; how, in any case, Parliament’s influence on the Government’s position in the negotiations with the EU has been practically nil; how, in general terms—with some exceptions—the Government has informed the Cortes about the matters dealt with both before and after the meetings of the European Council and/or the Council; how the position of the political parties with respect to Brexit did not show great differences—the common position being one of rejection; and, finally, how the Cortes have tried to keep informed about public opinion and particular interests through the appearances of experts and professionals, as well as public officials and representatives of various social groups—business sector, trade unions, consumers—summoned to appear before the JCEU and to report to it to this effect.

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On the other hand, this chapter is based on a research founded mainly on direct sources on the subject—Spanish and European official ­documents and legislation. In fact, although the literature about the Spanish parliament and its participation on European issues is quite abundant, mainly as regards the control of the principle of subsidiarity—as it is also that about the regional parliaments’ involvement—it is rather scarce when it comes to the analysis of its relation to the Brexit issue and the way in which it has been dealing with it, both in institutional-procedural terms and in political ones. For instance, few works have studied the JCEU in specific terms (Viciano 1999; Delgado-Iribarren 2011; Laso Pérez 2010; Esteve and Illamola 2012; Ferrer 2013; Sánchez de Dios 2013; Piedrafita 2014; Fromage 2017), and none—so far—have studied the subcommittee for the study of the consequences of the United Kingdom (UK) withdrawal from the EU established in 2016. This analysis is organized in six sections, including this one. In Sect. 2, I will describe briefly the legal setting that rules the role of the Cortes and the relationship Government-Cortes concerning mainly the Brexit issue. In Sect. 3, I will specifically describe the relationship parliament-­government concerning Brexit. In Sect. 4, I will summarize these parliament-­ government relations in statistical terms. In Sect. 5, I will describe the position of the political parties concerning Brexit. And finally, in Sect. 6, I will try to provide some clarifying conclusions about the whole issue.

2   The Legal Setting The Spanish Constitution establishes that the Congress and the Senate have a different composition: the Congress, the lower house, is composed by 350 deputies, elected by a proportional representation system, in fact the D’Hondt formula, while the Senate, the upper house, is composed by 265 senators, elected through a double system: on the one hand, 208 senators are elected directly by the citizens, by a majority system of multi-­ member constituencies (each constituency elects 4 senators, although citizens may vote only for 3), while—at present—57 senators are elected by the parliaments of the regions—Comunidades Autónomas—depending on their population (Andalusia, the largest Community, elects 9 senators, while Cantabria, Navarra and La Rioja, the smallest ones, elect only 1 senator each). This makes that the political majorities existing in each house are frequently different after each general election. However, as regards the powers of each house, from a constitutional point of view, they are not very

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different, except in what refers mainly to the political ­relationship between the Government and the Cortes and to the legislative procedure, in which the Congress takes precedence. In this respect, although both houses may control the activity of the Government—they may ask questions, make interpellations, submit motions or establish committees of enquiry—only the Congress may grant or withdraw its political confidence to the Government, by a vote of confidence at the beginning of its mandate—in fact, a vote of investiture of the President of the Government—or by a non-confidence vote—motion of censure—that could put an end to its mandate at any time. In fact, this has happened on 1 June 2018, when the Government of the Popular Party (PP), presided over by Mariano Rajoy, was outset by a motion of censure tabled by the socialist party (PSOE), with the support of other small parliamentary groups, a motion of censure that put Pedro Sánchez at the presidency of the Government. As regards foreign relations and, very specifically, the relationship with the EU, the powers of the two houses are almost identical.1 This is what, at the moment of the entry of Spain in the European Communities and in order to simplify the process and avoid duplications,2 took to the establishment of a joint committee made up of representatives of both houses of the parliament. This joint committee was initially called Comisión Mixta para las Comunidades Europeas (Joint Committee for the European Communities), and since 1994, Comisión Mixta para la Unión Europea (JCEU).3 In general terms—as we saw before—the JCEU is in charge of supervising the Government activities concerning the relations between 1  Although the Spanish Constitution does not foresee any difference between the powers of the Congress and those of the Senate in the field of international relations, the Government tends to favour the Congress when it comes to reporting on these issues. On the other hand, the Spanish Constitution does not foresee either any specific provision concerning the EU, therefore one should assume that the provisions governing the relationships of Government and Cortes concerning the EU are the same as those governing international relations. 2  The Treaty of Accession of Spain was signed on 12 June 1985, and the accession entered into force on 1 January 1986. 3  The Joint Committee for the European Union was established by Art. 5 of the Ley 47/1985, 27.12.1985, de Bases de Delegación al Gobierno para la aplicación del Derecho de las Comunidades Europeas, amended later on by the Ley 18/1988, 1.7.1988, and by the Ley 8/1994, 19.5.1994, por la que se regula la Comisión Mixta para la Unión Europea, which established the Joint Committee in its present form. This last Law has also been amended by the Ley 24/2009, 22.12.2009, which adapted it to the provisions of the Treaty of Lisbon, and by the Ley 38/2010, 20.12.2010, which extended the competences of the Joint Committee.

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Spain and the EU and, since the entry into force of the Treaty of Lisbon, it is also responsible for control of compliance with the principle of subsidiarity. Nevertheless, the role of JCEU does not exclude the possibility of the control by any of the two houses of the parliament of the Government activities concerning the EU, or the control of the observation of the principle of subsidiarity by the EU. Therefore, these powers may be directly exercised, at any time, also by the plenary of any of the two houses which may call back or reserve for themselves those powers, as it happened more than once. At present, the JCEU is composed by 36 members, out of which 17 are members of the Congress and 19 are senators.4 Within the JCEU, a subcommittee was appointed in 2016 to study specifically the consequences derived from the UK withdrawal of the EU; this subcommittee is composed by ten parliamentarians, five representing the Congress and five representing the Senate.5 The subcommittee (hereinafter SCEU) was initially created for a short period of time, until 30 June 2017, but its existence was since then extended twice, the last time until 31 December 2018. In fact—as we will see in Sects. 4 and 5—the SCEU has not performed as one should have expected and its role seems to have been almost irrelevant. In general terms, the main objective of the JCEU is thus to be the body through which the Spanish parliament participates in the scrutiny of legislative proposals initiated by the European Commission, issuing on behalf of the Spanish Parliament reasoned opinions on the observance of the principle of subsidiarity by these proposals, in accordance to the provisions of Protocol N° 2, on the application of the principles of subsidiarity and proportionality, annexed to the Treaties. But, it is also a principal objective of JCEU to be informed by the Government of the political lines informing its policies concerning the EU, the decisions adopted by the Council and, in general terms, all the information that the Government has on the activities of the EU institutions. In this line, the Law that rules the JCEU establishes specifically a Government’s double duty: firstly, the Government’s duty to send to the parliament—both houses—prior to 4  About establishment of the Joint Committee for the EU, see Diario de Sesiones de las Cortes Generales, XII Legislatura, Comisiones Mixtas, Sesión núm. 1, 16.11.2016. 5  This subcommittee has a long name: “ponencia para el estudio de las consecuencias derivadas de la salida del Reino Unido de Gran Bretaña e Irlanda del Norte de la Unión Europea” (Diario de Sesiones de las Cortes Generales, XII Legislatura, Comisiones Mixtas, Sesión núm. 2, 22.11.2016).

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each ordinary meeting of the European Council, a written report on the events and activities of the EU during the Presidency that concludes with the relevant European Council (Art. 3(e) of the Law 8/1994); and, secondly, the Government’s duty to appear before the plenary of the Congress after the meetings of European Council, to report on what has been decided and to hold a debate with the parliamentary groups (Art. 4 of the Law 8/1994). In specific terms, the Law 8/1994, after its amendments of 2009 and 2010, establishes the duty of the Government to inform the JCEU about (a) the activities of the institutions of the EU of which it is knowledgeable; (b) the decisions and resolutions adopted by the EU Council of Ministers; (c) the decisions adopted by every European Council—ordinary or extraordinary—after each meeting (information which, in fact, must be provided to the plenary of the Congress, not to the JCEU); (d) the progress made during the six-month rotatory presidency of the EU Council at the end of each presidency; (e) the political lines inspiring the Government’s EU policy; (f) the legislative decrees enacted pursuant to EU law; and, finally, despite the above-mentioned confusing wording of the relevant precept, it could be said that it is also a duty of the Government (g) to report to the JCEU about the issues that are going to be considered by the European Council, prior to every European Council meeting. Finally, it must be highlighted here that—as we have already seen— although there is a general duty of the Government to inform the parliament—and very specifically the JCEU and the plenary of the Congress—about the European Council meetings, both before and after they take place, there is no any provision that would allow the parliament—neither the JCEU nor the plenary of the Congress—to issue biding mandates or instructions that would force the Government to abide by them in the meetings of the European Council and, therefore, to give explanations about its positions in those meetings and about any deviation from the parliamentary mandate after them. It does exist though such a duty for the Government in the case of its relationship with the Spanish regions—the Autonomous Communities (hereinafter CCAA)—and their participation in EU affairs. Thus, in 1994, the then called Conferencia para Asuntos Relacionados con las Comunidades Europeas (Conference for European Communities Affairs), now called Conferencia para Asuntos Relacionados con la Unión Europea (Conference for European Union Affairs), established a detailed procedure according to which the Government was not only obliged to inform the CCAA, within

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the framework of the respective Sectoral Conference,6 about European issues that affected competences of the CCAA; but, in the cases in which those issues affected exclusive competences of the CCAA, the Government had to abide by the opinion expressed by the CCAA on the issue within the relevant Sectoral Conference, provided that the CCAA had managed to agree on a common position on the matter. In this case, the Government had to defend the common position of the CCAA in the European instances and if, for some reason, the position of Spain were to diverge from the common position initially adopted by the CCAA, the Government had to report about it to the CCAA and give explanations about the modifications and the agreement finally adopted. In the event that the CCAA failed to agree on a common position in the relevant Sectoral Conference, the Government had only the obligation to take into account the arguments expressed by the CCAA. However, the fact is that this procedure has rarely been used properly, in all of its terms; and this, not so much because the Government had ignored its duties, or due to the inadequate functioning of the Sectoral Conferences, but mainly because of the difficulties found by CCAA themselves to reach the required common position in most of the cases. But, this is a question that is far from the main objective of this chapter, since Brexit is not an issue directly related to the powers and competences of the CCAA or to the sectoral formations of the Council in which they are present; therefore, the Government has never consulted with them the question of Brexit before any meeting of the Council, or of the European Council.

3   The Practice 3.1  Government Reporting The general practice that has been followed so far, although with some exceptions, is that the Government goes to the parliament first, before each one of the meetings of the European Council, in order to inform it about the topics included in the agenda, and then, after the meeting, to report about the matters that have been discussed and the agreements that have been reached. 6  The sectoral conferences are administrative bodies made up of representatives of the central government and of the governments of the CCAA for the purpose of cooperation and coordination of the relevant policies. The Conference for EU Affairs is made up of the Minister of Foreign Affairs and members of the regional governments in charge of external affairs. At present, there are 47 sectoral conferences, including the Conference for EU Affairs.

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The general rule has also been that these appearances of the Government before the Cortes have taken place in two different parliamentary bodies and have been carried out by two different kind of government representatives: first, the Secretary of State for the EU goes to the JCEU, to inform it about the content of the agenda of the next European Council, before the meeting; and then, after the meeting, the President of the Government attends a plenary session of the Congress to report about what has been discussed and agreed in that meeting. Normally, the appearance of the President of the Government before the Congress takes place on Wednesdays, which is the day specially assigned for the control of the Government. This is the general rule that has been followed so far and that adheres in principle to the provisions established by the above-mentioned Law 8/1994, after its amendments of 2009 and 2010; however, there have been several exceptions in this general practice, both as regards the appearances themselves, and also the Government representative in charge of reporting. Throughout the X legislature (13 December 2011–13 January 2016), which is the period of larger duration and of greater political stability of the three legislatures under study here,7 there were 22 sessions of the European Council, and in all cases, with the exceptions mentioned below, there has been an appearance by the Government before the JCEU prior to the next European Council meeting, to inform it about the matters included in its agenda; and also an appearance by the Government before the plenary of the Congress after the European Council meeting, to report on the results of the meeting (see Table 9.1). With regard to the appearances before the European Council meetings, in all cases the government representative was the Secretary of State for the EU, except in one case, in which the reporter was the Minister of Foreign Affairs (Congress seating of 26 June 2012, to inform about the European Council that was going to take place on 28–29 June 2016). There was no previous appearance of any government representative in three cases (European Council of 1–2 March 2012, European Council of 26–27 June 2014 and European Council of 17–18 December 2015), although in all three cases, there was an appearance of the President of the Government after the European Council meeting (the plenary seating of the Congress of 14 March 2012, of 9 July 2014 and of 6 April 2016, respectively). 7  During the period covered by the X legislature—which lasted the foreseen four-year mandate—there was a stable Government with a large parliamentary support: the Popular Party had then 41.89% of the vote and 48.57% of the seats, while the second party, the PSOE, had only 25.32% of the vote and 27.42% of the seats.

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Table 9.1  Government appearances before the Parliament concerning European Council meetings (2011–2018) Total number of EUCO meetings (2011–2018)a X Legislature (2011–2016) Number of EUCO meetings   (ordinary: 19; special 3) Appearances prior to and after EUCO meetings Appearances only prior to EUCO meetings Appearances only after EUCO meetings No appearances XI Legislature (2016) Number of EUCO meetings   (ordinary: 3; special: 1) Appearances prior to and after EUCO meetings Appearances only prior to EUCO meetings Appearances only after EUCO meetings No appearances XII Legislature (2016–present) Number of EUCO meetings   (ordinary: 8; special: 10b) Appearances prior to and after EUCO meetings Appearances only prior to EUCO meetings Appearances only after EUCO meetings No appearances

44 22 15 1 3 3 4 1 – – 3 18 4 10 1 3

Last EUCO meeting considered: 28–29 June 2018

a

b

It includes EU27/Art. 50 meetings

As regards the appearances after the European Council meetings, the reporting government representative was in all cases the President of the Government. There was though no subsequent appearance of any government representative in the case of the European Council of 15 October 2015 (although there was a previous appearance by the Secretary of State in the JCEU, at its meeting of 8 October 2015) because the parliament had been dissolved on 26 October. And, finally, there was no appearance of any government representative, neither before nor after the European Council meeting, in three cases, two of which were actually special meetings of the European Council convened with the purpose of appointing the new President of the European Council and the new High Representative of the Union for Foreign Affairs and Security Policy. In

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both cases, the European Council was dealing with a quite relevant issue, but—as we see—the Spanish Parliament was not duly informed by the Government about it. (See an analysis similar to this one, but for a much shorter period of time in Wessels et al. 2013). The XI legislature (13 January 2016–18 July 2016) was a very short and exceptional parliamentary period since it lasted only one year and it was not even able to form a stable Government. This meant that the Government in office was the same Government of the previous legislature—the PP’s Government of Mariano Rajoy—which was kept in office in its condition of caretaker Cabinet. During this period, there were four meetings of the European Council, and one of them, that of 19 June 2016, was an informal meeting in which precisely the European Council took note of the result of the British referendum that had taken place six days before, on 23 June. The exceptional political circumstances of this period affected also the Government’s reporting to the parliament about EU affairs and very specifically about the Brexit issue which started precisely then. Consequently, in only one case, there were appearances of the Government before the parliament both prior to and after an European Council meeting (that of 17–18 March 2016). In the remaining three cases, there was no any appearance of the Government before the parliament neither prior to nor after the European Council meetings (see Table 9.1). It must be underlined here that among those cases in which the Government did not report to the parliament were relevant meetings of the European Council, such as that of 18–19 February 2016 and that of 28–29 June 2016. In the first one, the European Council reached an agreement between the EU and the UK on “a new settlement for the United Kingdom within the European Union”, an agreement which met the demands presented by the PM Cameron in his letter of 10 November 2015, and which allowed him to call the referendum on the UK’s membership of the EU.  And the second one took place shortly after the 23 June referendum and at that meeting the European Council adopted a formal declaration on the dramatic decision of the British citizens. On the other hand, the “informal” meeting on 29 June is also quite significant because it was the first European Council meeting to be held without the presence of the UK. Therefore, once again, the Spanish parliament remained uninformed and could not give an adequate opinion on the first steps taken in the

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process of the UK’s withdrawal from the EU and which took place during the period of the XI legislature. Nevertheless, it must be said that in these cases the lack of reporting was not due to laziness of the Government but due to the inexistence of a fully appointed Government (European Council of 18–19 February 2016) or the unavailability of the parliament following its dissolution of 3 May 2016 (European Council of 28 June 2016 and informal meeting of 29 June 2016). Finally, the general elections of 26 June 2016 gave way to the XII legislature (19 July 2016–present). This parliamentary period is neither less difficult nor less unstable than the previous one. During this legislature, two consecutive governments have been appointed, both of them with a very weak and heterogeneous parliamentary support: the first one was formed by the PP and presided over again by Mariano Rajoy, after the general elections of 26 June 2016 (the PP had then 31.27% of the vote and 36% of the seats in the Congress), and the second one was formed by the PSOE after the non-confidence vote approved by the Congress on 1 June 2018, and it is presided over by Pedro Sánchez (in 2016 elections, PSOE got 19.53% of the vote and 21.42% of the seats in the Congress). During the period covered by the XII legislature and up to the moment of finishing this chapter (July 2018), the European Council held 18 meetings,8 out of which 8 were formal-ordinary meetings, and 10 were special meetings held in what was initially called “EU27” format and then, after the activation by the UK of the procedure foreseen in Art. 50 of the TEU, “European Council Art. 50” meetings; that is to say, meetings that were held without the presence of the UK and specially addressed at dealing with issues related to the UK’s withdrawal from the UK. The appearance of the Spanish Government before the parliament concerning the European Council meetings of this period was very irregular. In fact, in only four cases did the Government appear before the parliament prior to and after the meeting of the European Council. These were the cases of the European Council of 9–10 March 2017 (in its two formats of regular EUCO on 9 March, and informal meeting on 10 March) and of the 8  The last meeting of the European Council that has been considered for this research was the meeting of 28–29 June 2018. For statistical purposes, I consider the second part of these European Council meetings in which the Council met informally or in EU27/Art. 50 formats, as separate meetings.

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European Council of 28–29 June 2018 (in its two formats of regular EUCO on 28 June, and of Art. 50 format on 29 June). The peculiarity here lies on the fact that the report to the parliament was given by the President of the Government, both prior to and after the European Council meetings, and it was given to the plenary of the Congress in both cases. As regards the other European Council meetings of this period, the Government appeared before the parliament only prior to EUCO meetings in ten cases (always the Secretary of State for the EU and before the JCEU); it appeared before the parliament only after the EUCO meeting in just one case (special Art. 50 meeting of 29 April 2017)9; and it made no appearance at all in three cases (see Table 9.1). Among the European Councils about which the Government did not report to the parliament after the meeting are European Councils as important as that of 15 December 2016, in which the procedure for the negotiations with the UK and the basic principles that should guide them were agreed; that of 14–15 December 2017, where the European Council took account of the progress achieved in the first phase of the EU-UK negotiations, as reflected in the Communication from the Commission and the Joint Report of the negotiators, and decided that it was sufficient to move to the second phase of the negotiations,10 adopting guidelines for this purpose11; or that of 22–23 March 2018, where the guidelines for the conduction of the second phase of the EU-UK negotiations on the future relationship were adopted.12 And among the European Councils about which the Government did not report to the parliament at all, neither before nor after the relevant meeting are the Bratislava Summit, on 16 September 2016, in which the Road Map and the Declaration of Bratislava were adopted; the European Council of 20–21 October 2016, which dealt mainly with the EU’s global migration policy; and the European Council “Art. 50” of 29 April 9  The peculiarity here lies on the fact that the subsequent report to the parliament was given by the Secretary of State for the EU, not the President of the Government, and it was given to the JCEU, not the plenary of the Congress. 10  Communication from the Commission to the European Council (Article 50) on the state of progress of the negotiations with the United Kingdom under Article 50 of the Treaty on European Union (COM(2017) 784 final, Brussels, 8.12.2017), and Joint report from the negotiators of the European Union and the United Kingdom Government on progress during phase 1 of negotiations under Article 50 TEU on the United Kingdom’s orderly withdrawal from the European Union (TF50 (2017) 19, 8.12.2017). 11  European Council (Art. 50) meeting, 15 December 2017, Guidelines (EUCO XT 20011/17, Brussels, 15.12.2017). 12  European Council (Art. 50), 23 March 2018, Guidelines (EUCO XT 20001/18, Brussels, 23.3.2018).

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2017. The latter is especially relevant for the purposes of this study, since it was the first European Council to meet after the British Government submitted the formal letter notifying its will to leave the EU, and it was also the meeting in which the first guidelines for the EU-UK negotiations were adopted. Guidelines in which Spain had succeeded to introduce a very important point for the Spanish interests concerning Gibraltar.13 Once again, in all of the last three cases, the Government of Spain was in a difficult political situation that prevented it from adequately addressing issues related to the EU: in the first two cases, that of the Bratislava Summit and that of the European Council of October 2016, the Congress was then immersed in the process of appointing a new Government (Mariano Rajoy was finally voted as President of the Government with a small parliamentary support on 29 October 2016); and, in the third case, that of the Council of April 2017, the Government was involved in the negotiation of the general budget, which it finally presented to parliament a few days later, on 3 May 2017. In fact, in the latter case, it cannot be said that the debate about the general budget is an excuse enough to prevent the Government from dealing with other important issues such as those related to the EU and to appear before the parliament to report about them; nevertheless, this is what in fact had happened. 3.2  The Subcommittee for the Study of the Consequences of Brexit A separate consideration here is required by the Subcommittee for the Study of the Consequences of Brexit (SCEU).14 As we saw in Sect. 2, the SCEU was created by a decision of the JCEU of 22 November 2016. According to the decision establishing it, the SCEU—as its name clearly indicates—was meant to study the consequences caused by the UK’s withdrawal from the EU and also to request documents or information and to 13  The “Guidelines following the United Kingdom’s notification under Article 50 TEU”, paragraph 24, establish that “[a]fter the United Kingdom leaves the Union, no agreement between the EU and the United Kingdom may apply to the territory of Gibraltar without the agreement between the Kingdom of Spain and the United Kingdom” (Special meeting of the European Council (Art. 50), 29 April 2017, Guidelines (EUCO XT 20004/17, Brussels, 29 April 2017)), p. 9. 14  Due to its long official name—Ponencia para el estudio de las consecuencias derivadas de la salida del Reino Unido de Gran Bretaña e Irlanda del Norte de la Unión Europea—we use here the acronym SCEU, for Subcommittee for the European Union.

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propose appearances which could take place either before the JCEU or before the SCEU itself.15 The SCEU was created only for a short period of time—until 30 June 2017—nevertheless its existence was already extended twice, the last time until 31 December 2018.16 One would expect that a parliamentary body such as this one, with a reduced and selected number of members, ten in total—five representing the Congress and five representing the Senate—added to the fact that its existence has been extended already twice, would have come to enhance the role of the JCEU, providing it with substantive information, reports or qualitative data. Nevertheless, this has not been the case, according to the existing and accessible records.17 Thus, according to these records, the SCEU has not been very efficient: since its first constitutive meeting on 29 November 2016, it has met ten times, and out of them, seven have been dedicated to organizational affairs (“ordenación de los trabajos de la ponencia”), and only three sessions have been dedicated to appearances. These appearances included the hearing of three officials (among them the Spanish Permanent Representative before the EU, the Ambassador of Spain in the UK and a Counsellor of the Spanish REPER in Brussels) and of four experts, all of them members of the Spanish think-tank Real Instituto Elcano (see Table  9.2). Further to the official records, only a brief mention in the media gave notice of a single activity of the JCEU: a visit of its president to the Spanish-Gibraltar border area—Campo de Gibraltar—an economically depressed area which will be affected by the withdrawal of the UK.18 Therefore, there is no evidence of any other relevant work or the production of any study or report that would have 15  Boletín Oficial de las Cortes Generales, Sección Cortes Generales, Núm. 13, 29.11.2016, p. 1. 16  Diario de Sesiones de las Cortes Generales, XII Legislatura, Comisiones Mixtas, Sesión núm. 22, 13.12.2017. 17  In Spain, the work and meetings of this kind of subcommittee are not public, unless they produce a report or any official document, in which case it would be published in the official journal of the parliament. In this case, the SCEU has not produced so far any such report or official document. The records I am referring to are the schedule of meetings published in the website of the Senate (http://www.senado.es/web/actividadparlamentaria/sesionescomision/detallecomisiones/sesionescomision) 18  “La Delegación de la Ponencia para el Estudio de las Consecuencias Derivadas del Brexit conoce las inquietudes de la comarca”, Radio Bahía Gibraltar, 2 May 2018 (http://radiobahiagibraltar.es/la-delegacion-la-ponencia-estudio-las-consecuencias-derivadas-del-brexitconoce-las-inquietudes-la-comarca)

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Table 9.2  Activities of the Subcommittee for the study of the consequences of the UK’s withdrawal from the EU. XII Legislature (November 2016–July 2018) Number of meetings   (for organizational purposes: 7)   (for appearances: 3) Appearances   (of public officials: 3)   (of experts: 4) Reports/studies

10

7

0

honoured the long name of the SCEU itself. It seems like the SCEU is more an administrative-organizational body established to help the JCEU in the organization of its activities—appearances and so on—than an engine aimed at mobilizing and guiding the JCEU.19 3.3  Brexit as the Issue In previous pages, we put the focus on the way in which the Government conducted its relationship with the Parliament, how it reported to the Parliament about EU-related issues, specifically to the Congress and to the JCEU.  However, this information included a broad thematic spectrum and was not always related to the Brexit question. Indeed, this analysis began in the period covered by X legislature of the Spanish Parliament (2011–2016), long before the beginning of the Brexit process; but the referendum of 23 June 2016, coincided with the short XI legislature (2016) and the submission of the letter notifying the UK’s decision to leave the EU, on 29 March 2017—which triggered the separation procedure of Art. 50 of the TEU—took place already in the period covered by the XII Legislature (2016–present). In this sense, it can be said that the parliamentary activity and the Government-Cortes relations concerned with Brexit took place mainly during the XII legislature of the Spanish Parliament. A detailed analysis of the substantial content of the Government-­ Parliament relations in the periods covered by the XI and the XII legislatures reveals that out of the four appearances of the President of the 19  The Senate records state that at least three of the meetings of the SCEU took place at the end of the relevant meeting of the JCEU.

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Government before the plenary of the Congress concerned with European affairs—mainly reporting about the outcome of European Council meetings—only one dealt to some extent with the problem of the UK’s withdrawal of the EU.20 However, if we look at the appearances before the Parliament of other members of the Government, the perspective is quite different. In this case, practically all the parliamentary appearances were directly addressed at tackling the Brexit question. In this vein, the two appearances of the Minister of Foreign Affairs before the JCEU, in March 2017 and March 2018, dealt almost exclusively with Brexit, its possible consequences and the future of the EU.21 And out of the six appearances of the Secretary of State for the EU before the JCEU, five were devoted almost entirely to dealing with the UK’s withdrawal of the EU. If we look at the other parliamentary activities and appearances before parliamentary bodies, mainly the JCEU and the SCEU, we notice that a large number was also concerned with Brexit. Among them, the two appearances of the chief negotiator, Michel Barnier, which took place before the JCEU on 10 May 2017 and on 23 January 2018, deserve to be highlighted. In the first appearance, Barnier explained the context of the EU-UK negotiations and the guidelines adopted by the European Council; and, in the second, Barnier described how the negotiations had proceeded in their first phase and which were the issues that should be addressed in the new phase that was about to be opened then. It is interesting to note that in his two appearances, Barnier had to answer questions made by the Spanish parliamentarians about the Gibraltar question. However, Barnier was very concise about this question and tried to evade it saying that it was not in the agenda of the negotiations under his responsibility since the EU had decided—at the request of Spain—that this matter be referred to the bilateral relationship of Spain and UK, although no agreement between the EU and the UK would apply to Gibraltar without a prior agreement between Spain and the UK.22 20  Rapport by M. Rajoy before the plenary of the Congress on the European Council of 9–10 March 2017 (Diario de Sesiones del Congreso de los Diputados, Pleno y Diputación Permanente, XII Legislatura, Sesión plenaria núm. 36, celebrada el miércoles 15 de marzo de 2017). 21  Diario de Sesiones de las Cortes Generales, Comisiones Mixtas, Comisión Mixta para la Unión Europea, XII Legislatura, Sesión núm. 10, celebrada el miércoles 29 de marzo de 2017; and Sesión núm. 26, celebrada el martes 20 de marzo de 2018. 22  Diario de Sesiones de las Cortes Generales, Comisiones Mixtas, Comisión Mixta para la Unión Europea, Sesión núm. 23 (extraordinaria), celebrada el martes, 23 de enero de 2018, p. 13.

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Table 9.3  Activities of the Joint Committee for the EU. XII Legislature (July 2016–July 2018) Number of meetings Appearances by the Minister of Foreign Affairs   (at the request of the parliamentary groups: 1) Appearances by the Secretary of State for the EU   (at the request of the parliamentary groups: 2) Appearances by the Chief Negotiator M. Barnier Appearances by members of the European Commission Appearances by other high officials of the Commission Appearances by non-officials   (representatives of interest groups: 6)   (experts: 3) Questions to the Government with answers Non-legislative motions Files scrutinized under the principle of subsidiarity

30 2 6 2 9 1 9

3 4 102

Ten members of the European Commission also appeared before the JCEU (nine Commissioners and one Director General); however, only one of these appearances, that of the First Vice-President of the Commission, Frans Timmermans, referred specifically to the Brexit problem.23 The other members of the Commission dealt exclusively with the specific issues of their portfolio. But, the JCEU invited also other personalities to participate in its hearings, including six representatives of interest groups and three academic experts; in all of these cases, the subject was entirely the consequences of the UK’s withdrawal from the EU (see Table 9.3). Finally, the activity of the SCEU must also be mentioned here. As we have already seen, the SCEU invited to participate in its hearings seven people, out of whom three were diplomatic representatives and four were academic experts; and, once again, the subject of these reports was the consequences of the UK’s withdrawal from the EU (see Table 9.2). A separate question, although closely related to the Brexit issue, that deserves to be highlighted here is that of Gibraltar. Apart from the historical and symbolical significance of Gibraltar for Spain, the main issue here is now the border between Spain and Gibraltar which raises similar problems 23  Diario de Sesiones de las Cortes Generales, Comisiones Mixtas, Comisión Mixta para la Unión Europea, Sesión núm. 11, celebrada el jueves 30 de marzo de 2017, pp. 2–16.

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to those of the border between the Republic of Ireland and Northern Ireland. In the Gibraltar case, the main problem is the hundreds of workers that cross the border every day, the rights and interests of whom could be seriously damaged if the outcome of the EU-UK negotiations means a closure or the hardening of that border. But, for Spain, it is also important to make sure that any possible agreement between the EU and the UK does not undermine its right to a future recuperation of the sovereignty over that territory. This is why—as we saw before—Spain forced the inclusion of paragraph 24 of the guidelines for the negotiations, which establishes that no agreement between the EU and the UK may apply to Gibraltar without a prior agreement between the Spain and the UK.24 Nevertheless, the question of Gibraltar has not been placed very high in the agenda of the parliament-government relationship; in fact, it has been mentioned only three times in the appearances before the parliament analysed here: two times by Barnier—as we saw above—and one time by the Secretary of State for the EU in his appearance before the JCEU on 21 March 2018. The Secretary of State said then that there were negotiations between Spain and the UK and that they were progressing smoothly, the aim of Spain being to reach an agreement soon so this agreement could be included as a part of the general EU-UK agreement.25 The rest of the activities of this period, encompassed by the parliament-­ government relationship referring to the EU, did not include any reference to Brexit.

4   Some Statistical Data Never mind the government’s actions—or inaction—and the breaches of the rules and practices that it might have done along these years in its relationship with the parliament as regards the EU policies and decisions and, very specifically, the Brexit question, the Spanish parliament cannot be accused of being indolent or inactive. On the contrary, a quantitative analysis of parliamentary activity relating to European affairs during these years tells us that the Spanish parliament, overcoming the existing difficulties,

 Special meeting of the European Council (Art. 50), 29 April 2017, Guidelines, cit.  Diario de Sesiones de las Cortes Generales, Comisiones Mixtas, Comisión Mixta para la Unión Europea, XII Legislatura, Sesión núm. 27, celebrada el miércoles 21 de marzo de 2018. 24 25

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has not only been active in this field, but it has also manifested specific interest on the Brexit issue. As regards the Government appearances before the parliament—of which we have given a detailed account in Sect. 4 of this chapter—out of the 23 appearances of the President of the Government before the plenary of the Congress, 4 of them were at the request of parliamentary groups. Out of the five appearances of the Minister of Foreign Affairs, one of them was at the request of a parliamentary group, in the XII legislature. And out of the 22 appearances of the Secretary of State for the EU, 4 were at the request of parliamentary groups (2 during the X legislature, and another 2 during the XII legislature). In total, nine Government appearances before the parliament took place at the request of the parliamentarians themselves. As we have also seen before, the appearances of the President of the Government have always taken place before the plenary of the Congress, while the appearances of the Minister of Foreign Affairs and those of the Secretary of State for the EU have taken place only before the JCEU. On the other hand, what is surprising—really striking—in this data is the low participation of the Minister of Foreign Affairs in these parliamentary activities: only 5 appearances, compared to the 22 appearances of the President of the Government and the also 22 appearances of the Secretary of State for the EU. It does not seem very logical that the member of the Government specifically in charge of foreign relations—including the EU— is the government official that appeared less frequently before the parliament to report on these issues, leaving this reporting mainly in the hands of the President of the Government and of the Secretary of State for the EU. Concerning the other activities related to the EU and, very specifically, the Brexit issue, I believe we should highlight here the activities carried out by the JCEU during the XII legislature, precisely after the referendum of 23 June 2016 on the UK’s membership of the EU.  Since then—as reflected in Table 9.3—the JCEU has done a very active and autonomous work, regardless of the initiatives and appearances of the Government and, therefore, at the initiative of the parliamentarians themselves. In this line, the JCEU met 30 times and, among its activities, it is worth highlighting the appearance of nine members of the European Commission, which included the appearance of the first Vice-President of the Commission, Frans Timmermans, and that of the Vice-Presidents Andrus Ansip and Jyrki Katainen. The EU chief negotiator, Michel Barnier, also appeared before the JCEU, and he did it twice. In addition to this, the JCEU kept

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on carrying out its main task of monitoring the observance of the principle of subsidiarity by the EU legislation, which meant the analysis of 102 files. On the contrary, we cannot say the same about the Subcommittee for the study of the consequences of the UK’s withdrawal from the EU. As we can see in Table 9.2, it has not been a very active and efficient subcommittee. It met ten times, but only three of those meetings were organized for the purpose of hearing the opinion of experts; and, so far, it did not produce any substantive report or study (see a detailed analysis of the SCEU in Sect. 4).

5   Political Positions If there is any subject on which there is a general consensus in Spanish politics, this is the EU. It is true that not all the positions of the political groups are exactly the same and there are big differences when it comes to issues such as the economic policy, the social policy, defence or immigration. However, when it comes to European values, the rights of citizens or the very need to preserve the process of European integration or even to deepen it in order to create “an ever closer union among the peoples of Europe”, as established by Art. 1 of the TEU, the coincidence among all the political groups represented in the parliament is absolute (Bar Cendón 2018). And this is precisely the framework within which Brexit issue falls. In this vein, from the very first moment of this process, when Prime Minister Cameron officially announced in Parliament, on 27 May 2015, that he planned to renegotiate the terms of the UK’s accession to the EU and to call an in-out referendum on UK’s membership of the EU before the end of 2017, the general reaction was a total rejection of such plans. In this sense, for instance, when the Secretary of State for the EU—then Íñigo Méndez de Vigo, who would be later Minister of Foreign Affairs in the PP Government of Rajoy—appeared before the JCEU to report about the European Council of 25–26 June 2015, where Prime Minister Cameron had formally informed his colleagues about his plans, the toughest position against such plans did not come from the Secretary of State himself, but from the opposition parties. For example, the socialist representative in the JCEU, the Catalonian Meritxell Batet—now Minister for Territorial Policy and Public Administration of the Socialist Government of Pedro Sánchez—argued forcefully that “the Treaties should not and cannot be modified by the wish of a single Member State […] the European

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Union must not be a political organization à la carte, in which each Member State adopts what is convenient for it and rejects what does not interest it”.26 This has been the line followed, in general terms, by all the political groups in each and every one of the parliamentary meetings that took place since then and, very specifically, in the plenary of the Congress and in the JCEU. The position of Spain in this respect was, therefore, very clearly established from the beginning of the Brexit process, both by the Government and by the opposition parties, which expressed their support to the Government in almost all of the concerned issues. Perhaps, the most revealing speeches made by members of the Government before the parliament on this problem are the long speech of the then President of the Government, Mariano Rajoy, before the plenary of the Congress on 15 March 2017, to report about the European Council of 9–10 March 2017; and the similarly long speech of the then Minister of Foreign Affairs, Alfonso Dastis, before the JCEU, on 29 March 2017. Both appearances took place at very significant moments, and hence their content. The first, speech, that of President Rajoy, was made to report about the European Council which was addressed at preparing the Rome Summit of 25 March 2017, meant to celebrate the 60th anniversary of the EU; therefore, Rajoy made then an effort to clarify the Spanish position in this respect and as regards the future of the European integration.27 And the second one, by Minister Dastis, took place precisely on the same day that the British Government submitted the formal letter stating its will to leave the EU; he tried then to clarify the different aspects and consequences of Brexit and the Spanish position concerning each of them.28 From then on, the Government appearances before the parliament—and the corresponding parliamentary responses—lacked similar political character and became 26  Original Spanish: “los Tratados no deben ni pueden ser modificados por el deseo de un solo Estado miembro […] la Unión Europea no debe ser una organización política a la carta, en la que cada Estado miembro adopta lo que le conviene y rechaza lo que no le interesa” (Diario de Sesiones de las Cortes Generales, X Legislatura, Comisiones Mixtas, Comisión Mixta para la Unión Europea, Sesión núm. 66, 22.6.2015. p. 2 ss). 27  Diario de Sesiones del Congreso de los Diputados. Pleno y Diputación Permanente, XII Legislatura, Sesión plenaria núm. 36, 15.3.2017, p. 4 ss. 28  Diario de Sesiones de las Cortes Generales, XII Legislatura, Comisiones Mixtas, Sesión núm. 10, 29.3.2017, p. 2 ss.

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more technical, since most of them were concerned only with the complex and technical terms of the negotiations between the EU and the UK. In this line, the Secretary of State for the EU—then Jorge Toledo— was the Government official in charge of reporting to the JCEU about all of these technical aspects, but his speeches gave also interesting accounts of the internalities of the EU-UK negotiations. The appointment of Pedro Sánchez as President of the Government, on 1 June 2018, following a non-confidence vote, opened a new phase in Spanish politics. A phase characterized by the existence of a Government supported by an ample but too heterogeneous majority in the Congress; this—added to the fact that the Senate is still controlled by the PP with a large majority (55.5% of seats)—means that the Government has to make every possible effort to keep this majority united and its weak support going as smoothly as possible, and this, of course, has given the parliament a new reinforced role. Nevertheless, it is still too soon to make any prognosis on how this could develop in the future and affect the parliamentary control of government on issues such as foreign relations and, very specifically, EU affairs. Concerning the objective of this chapter, this new parliamentary scenario is what made Sánchez—as we saw in Sect. 4—appear before the plenary of the Congress and report about the European Council of June 2018, both before and after the meeting. In his long speech of 17 July, after the European Council meeting, he explained the outcome of that meeting and, at the same time, he also explained his programme of government, putting thus the two subjects—the EU affairs and the internal affairs— in a close and interdependent relationship. Therefore, we could say that the political dimension has returned to the parliamentary debates on the EU; however, Sánchez kept the line and the pro-EU integration narrative used by previous governments. Nevertheless, surprisingly, he did not make a single mention to relevant issues such as Brexit or Gibraltar.29 Therefore, there is neither a strong anti-European feeling in Spain nor a right-wing populist-nationalist movement capable of mobilizing the society in favour of its radical interests, using the Brexit problem as an instrument. There is though a large far-left populist movement and periph Diario de Sesiones del Congreso de los Diputados, Pleno y Diputación Permanente, Núm. 138, Sesión plenaria núm. 133 (extraordinaria), 17.7.2018. 29

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eral far-left and far-right nationalist-separatist movements; however, all of these radical movements claim to support the need for European ­integration and the substantive European values, never mind their harsh criticism of the EU economic policies, immigration policy and so on (Gómez-Reino and Plaza-Colodro 2018). But, as regards the Brexit and the traditional British positions on issues such as social policy, citizens’ rights or the deepening of the integration process, the common position has always been one of rejection; and this has been maintained both at the national parliament and at the European Parliament. Therefore, their position does not diverge from that of the Spanish governments, both those of the socialist party and those of the popular party.30

6   Conclusion In short, the legal framework ruling government-parliament relations on European issues puts the Spanish government in a position of superiority, since although the Government is obliged to inform the parliament both before and after the meetings of the European Council, it does not allow the parliament to issue a negotiating mandate or to set binding stances which the Government must comply with. Nevertheless, the Spanish government has reported to the parliament on issues related to the EU—and also to the Brexit issue—with some regularity, and if this reporting did not take place on more occasions—as we have seen in previous pages—this was due not so much to negligence of the Government, or to lack of interest on the part of the parliament, but to the problematic political circumstances which Spain has undergone—it is still undergoing now—in the last two legislatures. Thus, in the short period of two and a half years, from December 2015 to July 2018, there have been in Spain two general elections; three governments, one of them resulting of a non-confidence vote; a long period of one year with a caretaker Government with limited powers; and a parliament with long periods of inactivity between elections and, consequently, also with a reduced capacity of control of the Government. In short, this has not only affected the parliament-government relations, but it has also meant that the Brexit issue has not been addressed perhaps with the attention and intensity that 30  The recent electoral emergence of the far-right party Vox could mean a radical change in this scenario in the near future.

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the subject required. Like in the German Bundestag and in the Irish parliament though (Buth et al. 2019 and Barrett 2019, in this volume), we observe that the Spanish parliament had direct contacts to the Commission chief negotiator Michel Barnier. On the other hand, it is also true that the radical change that has taken place in the Spanish political scenario since the 2015 and 2016 general elections, which has meant mainly a re-equilibrium of the political representation in the lower house, the Congress, could mean a significant reinforcement of the role of the parliament.31 In fact, should this scenario be permanent in the future, the Government would be forced to look more frequently for parliamentary support and to take more into account the different political positions of the various political groups. All of this would affect not only the Spanish relationship with the EU but also the Spanish foreign policy at large and, of course, all the national policies—as it is now affecting them already. These circumstances have not allowed for the existence of a social pressure or specific interest groups concerned particularly with the Brexit issue. However, Brexit poses serious problems to Spain that have been the subject of extensive debate in the parliament and, very specifically, within the JCEU—as we have seen. Spain has extensive economic, commercial, cultural, tourist and human links with the UK,32 and it also has the problem of Gibraltar; nevertheless, like in Belgium (Sierens and Brack 2019, in this volume), all of this has not disturbed the general consensus existing in relation to the EU, and the position of the Government in Europe has been, in general terms, unanimously supported both inside and outside the parliament.

 In the 2015 general election PP and PSOE got altogether 54.2% of the seats in the Congress, and in the 2016 election they got 63.4% of the seats, whereas in the 2011 election they got 84.5%, and in the 2008 election they got 91.7%. 32  Spain has a large colony of British citizens with permanent residence in the country, which is the largest in Europe (240,394 citizens), and the UK has also a large colony of Spanish citizens with permanent residence in the country, which is the largest group of Spanish expatriates in Europe (127,920 citizens). (Instituto Nacional de Estadística, Población extranjera en España, y Población Española residente en el extranjero, data of 1 January 2018). 31

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References Bar Cendón, A. (2018). España y la UE: Objetivo ideológico y proyecto político (1978–2018). Revista de Derecho Político, 101, 777–818. Barrett, G. (2019). The Irish Parliament and Brexit. In T.  Christiansen & D. Fromage (Eds.), Brexit and Democracy: The Role of Parliaments in the UK and the European Union. London: Palgrave Macmillan. Buth, V., Högenauer, A.  L., & Kaniok, P. (2019). The Scrutiny of Brexit in National Parliaments: Germany, Luxembourg and the Czech Republic Compared. In T.  Christiansen & D.  Fromage (Eds.), Brexit and Democracy: The Role of Parliaments in the UK and the European Union. London: Palgrave Macmillan. Delgado-Iribarren, M. (2011). Veinticinco años de funcionamiento de la Comisión Mixta para la Unión Europea. In I. Molina, M. Salvador, & M. Kölling (Eds.), Democracia parlamentaria, subsidiariedad e integración europea. Madrid: Centro de Estudios Políticos y Constitucionales. Esteve, F., & Illamola, M. (2012). El control de la subsidiariedad y de la proporcionalidad por las Cortes Generales –Comisión Mixta para la UE– y por los parlamentos autonómicos de España. In A.  Olesti (Ed.), La administración autonómica y el Tratado de Lisboa (pp. 153–222). Valencia: Tirant lo Blanch. Ferrer, C. (2013). La Comisión Mixta para la Unión Europea. Sus nuevas competencias tras el Tratado de Lisboa y la influencia de los factores constitucionales del Estado español en su eficacia. Revista de Derecho Comunitario Europeo, 45, 631–658. Fromage, D. (2017). Executive Accountability to National Parliaments in Post-­ crisis EU Affairs. The Persistent Shortcomings in the Council and European Council Oversight. In D. Jančić (Ed.), National Parliaments After the Lisbon Treaty and the Euro Crisis: Resilience or Resignation? (pp. 159–175). Oxford: Oxford University Press. Gómez-Reino, M., & Plaza-Colodro, C. (2018). Populist Euroscepticism in Iberian Party Systems. Politics, 38(3, Special Issue on The Populist Politics of Euroscepticism in Times of Crisis), 344–360. Laso Pérez, J. (2010). Spain: Parliamentary Control of European Union Affairs: From a Slow Adapter to a National Player? In G. Rodriguez Iglesias & L. Ortiz Blanco (Eds.), The Role of National Parliaments in the European Union (pp. 427–476). Madrid: Faculdad de Derecho Universidad Complutense. Piedrafita, S. (2014). The Spanish Parliament and EU Affairs in the Post Lisbon Treaty Era: All Change? Journal of Legislative Studies, 20(4), 451–472. Sánchez de Dios, M. (2013). Spain. In W. Wessels et al. (Eds.), Democratic Control in the Member States of the European Council and the Euro Zone Summits (pp. 134–138). Brussels: European Parliament.

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Sierens, V., & Brack, N. (2019). National and Regional Parliaments in the Context of Brexit: The Case of Belgium. In T.  Christiansen & D.  Fromage (Eds.), Brexit and Democracy: The Role of Parliaments in the UK and the European Union. London: Palgrave Macmillan. Viciano, R. (1999). La Comisión Mixta para la Unión Europea: algo más que un mero instrumento de control parlamentario. Parlamento y Constitución. Anuario (Cortes de Castilla-La Mancha), 3, 69–96. Wessels, W., et al. (2013). Democratic Control in the Member States of the European Council and the Euro zone summits (European Parliament, Directorate General for Internal Policies).

PART III

Brexit, the European Parliament and EU Citizens

CHAPTER 10

The European Parliament in the Brexit Process: Leading Role, Supporting Role or Just a Small Cameo? Monika Brusenbauch Meislova

1   Introduction The chapter researches the role of the European Parliament (EP) in the politically charged Brexit process and outlines the opportunities and challenges that it implies. The EP’s role is explored within four specific dimensions: (1) constitutional dimension, (2) procedural dimension, (3) party-political dimension and (4) national-interest dimension. Within the constitutional dimension, the analysis focuses firstly on how the EP has reacted institutionally to Brexit (i.e. in terms of setting up special committees or working groups) and secondly on the relationship between the EP and other European Union (EU) institutions, reflecting on the interinstitutional balance and dynamics in the withdrawal process. The procedural dimension concentrates on the extent to which the EP has been able to influence the withdrawal process as opposed to only giving or withholding its consent to any final deal negotiated between the British government and the European Commission. In this context, attention is paid also to the balance between the EP’s formal and informal role(s) in the M. Brusenbauch Meislova (*) Masaryk University, Brno, Czech Republic © The Author(s) 2019 T. Christiansen, D. Fromage (eds.), Brexit and Democracy, European Administrative Governance, https://doi.org/10.1007/978-3-030-06043-5_10

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Brexit process. Within the party-political dimension, the chapter discusses the partisan influence, exploring if and how party-political ties impact EP’s performance vis-à-vis Brexit. Finally, the national-interest dimension addresses the extent to which members of the parliament (MEPs) are (or are not) split along national lines when it comes to taking positions on the UK’s withdrawal from the EU. In order to assess the EP’s role in  Brexit, the inquiry draws upon insights from the actorness theory. This concept has occupied a prominent place in the debates on EU foreign policy, with majority of the extant literature examining the actorness of the EU as a whole (Kaunert et al. 2015, p.  360). But, as Christian Kaunert and other scholars have shown, the actorness framework “can be used in more creative ways and applied to EU institutions and bodies” (Kaunert et al. 2015, p. 360). The chapter therefore aligns itself with this understanding of actorness, falling within the category of studies which have applied the actorness framework to the EP (see Kaunert et  al. 2015; Pufleau 2017; Vlassis 2015; Yan 2015 as examples). It is argued here that given its flexibility, the actorness framework is adequate to assess the role of the EP in the Brexit process, as it concerns, in essence, withdrawal of a member state which will soon become a third-party state to the EU. With actorness defined as “the capacity to behave actively and deliberately in relation to other actors in the international system” (Sjöstedt 1977, p. 16 in Kaunert et al. 2015, p. 360), scholars have identified different sets of criteria to evaluate it. This chapter follows the work by Caporaso and Jupille (1998) who conceptualize actorness on the basis of four criteria: (1) authority (the legal competence to take action in a given subject matter), (2) autonomy (independence and distinctiveness from other actors), (3) cohesion (the degree to which an entity can formulate and articulate internally consistent policy preference) and (4) recognition (acceptance of the competence to act by other actors) (cf. Kaunert et al. 2015, p. 361). For the sake of this chapter, these criteria will be operationalized as follows: authority as the legal competence of the EP to act in the Brexit process; autonomy as the EP’s independence and distinctiveness from other EU institutions in Brexit; cohesion as the extent to which the EP has articulated its policy preferences vis-à-vis Brexit; and recognition as the acceptance of the EP’s competence to act in the withdrawal process by other EU institutions and the British authorities. With its four criteria, such a framework will allow for a sophisticated evaluation of the EP’s role in the Brexit process.

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2   Constitutional Dimension Starting with the criterion of authority, the EP’s role in the Brexit process stems from its constitutional mandate and functions vested in it by the EU Treaties (Stoll 2017, p. 13). As is widely known, the procedure for an EU member state to withdraw from the EU, if it should wish to do so, is laid down in the Article 50 Treaty on European Union (TEU). The Article 50 recognizes a specific role for the EU’s parliamentary body, according to which the Council needs to obtain its consent before it can conclude the withdrawal agreement. Ultimately, it is this right to withhold consent to the final agreement that offers the EP political leverage to influence the negotiations, effectively making it a veto player (European Parliament 2018a). With the EP’s consent being by no means automatic, it represents a primary source of parliamentary influence on Brexit negotiations. Indeed, the EP has not been afraid to exercise its power of veto and refuse to ratify agreements that did not reflect its preferences, such as the Anti-­ Counterfeiting Trade Agreement (ACTA) or the Terrorist Finance Tracking Program (TFTP) agreement (Armstrong 2016; De La Baume 2017b; Eckers 2015). Parliament’s consent power is, however, not devoid of ambiguities, as it will mean a vote by 751 MEPs, including also the outgoing 73 members from the UK. What is more, the EP must be kept regularly informed about the state of play of the negotiations. More specifically, the Framework Agreement on relations between the European Parliament and the European Commission stipulates that “the Commission keeps the EP informed, and the Commission undertakes to take due account of what the EP says” (De La Baume 2017b). Within the Brexit context, the right to be informed was further elaborated in the statement of 15 December 2016 issued after the informal meeting of EU’s 27 heads of state or government which proclaimed that the EP would be “closely and regularly informed” during all phases of the negotiations: “In particular, the Council presidency will be ready to inform and exchanges views with the EP before and after each meeting of the General Affairs Council” (European Council 2016). It also stated that EP representatives would be invited to the preparatory meetings (Sherpa meetings) ahead of European Council meetings (European Council 2016). In what follows, the chapter will consider how the EP has reacted institutionally to Brexit and then it will reflect on the dynamics between the EP and other EU institutions vis-à-vis Brexit.

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2.1  Brexit Coordinator and Brexit Steering Group The EP has appointed its own coordinator for the negotiations on the UK’s withdrawal from the EU. At the 8 September 2016 meeting of the Conference of Presidents (CoP), Guy Verhofstadt, Chair of the Alliance of Liberals and Democrats for Europe (ALDE) group and former Prime Minister of Belgium, was given this role, with the CoP stressing “the importance of this decision as crucial to guaranteeing the Parliament’s involvement throughout all stages of the future negotiations” (Carmona et  al. 2017, p.  16). According to McGowan (2018, p.  82), by appointing Verhofstadt the EP “signalled its intentions to be centrally involved as a ‘key player’ in Brexit negotiations”. Needless to say, Verhofstadt’s appointment attracted Europe-wide coverage. Occupying a crucial position in the EP’s collective decision-making on Brexit, Verhofstadt’s mandate involves keeping the powerful CoP (made up of the EP President and political group leaders) fully informed on the status of negotiations. He works closely with all political group leaders, the Chair of the Constitutional Affairs Committee and other committees whenever it is necessary to shape the EP’s position. Each of the committee secretariats also has a person who is specifically in charge of Brexit. Alongside this, Verhofstadt chairs the influential Brexit Steering Group (BSG) which was established to prepare and coordinate deliberations, considerations and resolutions on Brexit across the whole Parliament. Working under the CoP’s aegis, it comprises six members, all of them prominent parliamentarians: besides Verhofstadt, it is Elmar Brok (European People’s Party, EPP), Roberto Gualtieri Progressive Alliance of Socialists and Democrats, S&D), Philippe Lamberts Greens/European Free Alliance, Greens/EFA), Gabriele Zimmer European United Left–Nordic Green Left, GUE/NGL) and Danuta Hübner (EPP). As we can see, the BSG comprises only five major political groups within the Parliament, whilst excluding the less influential fringe groupings. The BSG regularly publishes comments on the Commission’s position papers or the UK’s position papers as well as statements on various issues. Verhofstadt is also accompanied by two lead representatives, Brok and Gualtieri, to Sherpa meetings where sensitive debates and political decision-making on Brexit take place. 2.2  Interinstitutional Dynamics As for the criterion of autonomy, the EP does act independently and autonomously in the Brexit process, whereas simultaneously cooperating with other EU institutions. In the immediate aftermath of the British

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r­eferendum, the EP expressed a strong preference for the European Commission to be the EU’s primary negotiator, as the Commission has traditionally led complex negotiations such as those on accession treaties (European Parliament 2016). Indeed, it was already in the resolution adopted by the EP at a special plenary session as early as five days after the British referendum that the EP invited the Council to appoint the European Commission as a negotiator. In addition, there is a close alliance between the EP (and Verhofstadt in particular) on the one hand and the European Commission on the other. EU’s chief Brexit negotiator, Michel Barnier, has been regularly invited to relevant CoP meetings and the EP’s Conference of Committee Chairs, briefing leading MEPs before and after each round of negotiations (Carmona et al. 2017, p. 17; De La Baume 2017b).1 The author’s interviews with MEPs2 revealed that the interinstitutional exchanges with regard to Brexit are in no small measure perceived as conducted in the good spirit, with an apparent commitment on all sides to conduct the procedure in a transparent manner. All EU institutions seem to have very similar understandings of where the Brexit process is heading. This cooperation allows for a continuous exchange of views throughout the procedure, thereby ensuring that the Parliament’s concerns are known to the Council and the Commission during the preparation of the text that would ultimately be submitted for a vote of consent. Regarding the recognition criterion, other EU institutions (and British authorities alike) frequently acknowledge the EP’s key part in the Brexit process as well as its legitimate right to scrutinize it. Their acceptance of the validity of its role and arguments is corroborated in various types of pronouncements in which they increasingly identify the EP as a significant actor whose opinion must be taken into account. Most prominently, Barnier has repeatedly underscored assembly’s powers in Brexit, repeatedly claiming that nobody should underestimate it. As De La Baume and Herszenhorn (2017) opine, Barnier is “aware he needs to bring the Parliament with him and has carefully courted his former colleagues

1   Some commentators even talk about “the Verhofstadt-Barnier dream team—a Eurosceptic’s nightmare” (Cooper 2016). 2  Interviews and email correspondence with seven MEPs (belonging to ALDE, EPP, S&D, ECR, GUE/NGL and EFDD political groups) were held from January to April 2018. The interviewees wished to remain anonymous.

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throughout the entire process” which goes to testify the symbolic recognition achieved by the EP in the Brexit negotiations. In terms of demonstrating distinctiveness from other actors, the EP’s position does not deviate from the European Commission’s or the Council’s one in any significant way. As will be seen further below, policy preferences of the three institutions are largely aligned on Brexit. Yet, there is one topic that the EP has been prioritizing and that, to a degree, distinguishes its position from the others, thus helping crystallize parliamentary identity vis-á-vis Brexit negotiations. From the outset, the EP  portrays itself as a force for and guardian of British citizens’ rights protection in the EU. Reflective of the level of interest that this issue has generated within the EP is not only the number of special statements on BSG’s red lines on the UK nationals’ rights proposals but also the fact that a Task Force on the rights of EU citizens in the UK and UK citizens in the EU was set up within the EP by Sophie In ‘t Veld. The EP also initiated a meeting with the European Council to scrutinize “how far EU countries are in the preparations for U.K. nationals living in the EU” (De La Baume 2018). This strongly conforms not only to the fact that the EP has long understood itself as the champion and protector of citizens’ interests (Roederer-Rynning 2017, p.  522) but is also in line with its persistent attempts to reduce the gap between EU institutions and citizens. Its efforts to be seen as a democratic body that wants to get the best result for all EU citizens, including the British, might be thus interpreted as a way to improve its popular standing (cf. Gostyńska-Jakubowska 2017, p. 10). After all, out of all EU institutions, the EP is the most responsive one to pressures from the general public (Farrand 2015, p. 497). As Roederer-­ Rynning (2017, p.  510) further argues, “[A]s the only EU institution elected by direct universal suffrage, the EP is not only a ‘policy-maker’ […] but also can pretend to ‘interpret’ the will of EU citizens. The EP’s survival and development are linked to its ability to give plausible expression to the idea of popular representation”.3 The EP seems, indeed, rather confident of its democratic credentials within the Brexit process. Portraying itself as the true embodiment of the citizens’ will, the EP has positioned itself as a moral authority on Brexit which tries to ensure that the negotiations are made in a transparent and politically inclusive manner. 3  This also relates closely to the EP’s longstanding need for institutional assertion and legitimacy and the limited basis of its popular mandate (in a sense of the low turnout at the EP elections) (Roederer-Rynning 2017, p. 510).

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In another example of the assembly’s distinctive position towards Brexit, the EP’s April 2017 Resolution on the state of play of negotiations—in a minor departure from the Council’s text and facing opposition from Barnier—hinted at the possibility for the UK to reverse Brexit, emphasizing nonetheless that this would be possible only with the approval of EU27. This move was aimed at “strengthening the hand of the 48 percent of Britons who voted against Brexit”, indicating that the door was “open if Britain changes its mind” (Guarascio 2017). Further to that, the BSG also regularly issues its comments on the Commission’s position papers in which it pinpoints the topics that are subject to discussion, presents remarks and questions, calls for further clarifications and/or specific guiding principles from the Commission on various issues, recommends specific references or proposes additions and concrete wordings (see e.g. Brexit Steering Group 2017b, c, d). No less importantly, one can detect certain interinstitutional rivalries between the EP and other EU institutions vis-à-vis Brexit, too. A few examples illustrate this point. The EP, for instance, boasts about being “the first EU institution to adopt its position on Brexit negotiations in April 2017” (EPP Group 2018). Its former President, Martin Schulz, argued in relation to Brexit that the European Council President had not understood that the EP was not an obstacle but a partner on the same equal footing (Macdonald and Guarascio 2016). He also explicitly expressed his disappointment that the first draft statement of 27 heads of state and government on the Brexit negotiation process relegated the EP to a secondary role (Schulz 2016). Schulz and Verhofstadt even threatened that if the EU27 did not involve the EP in Brexit negotiations from “day one”, MEPs might open their own bilateral negotiations with the British government (Gostyńska-Jakubowska 2017, p. 8). Further to this, the EP became to be viewed, at the later stage of negotiations, as the most conciliatory and accessible EU institution in the Brexit context. In early March 2018, two documents on the future framework of EU-UK relationship were introduced in Brussels: Motion for a resolution to wind up the debate on the framework of the future EU-UK relationship by the EP and the draft negotiating guidelines by the European Council. Out of these two, it was the EP’s text that was considered much closer to the UK’s vision on the future relationship (even though it did contain a host of proposals that ran counter to the UK’s preferences). With the EP proposing an association agreement as an appropriate framework for the future relationship, stating the necessity for close cooperation

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in areas such as public health and medicines and leaving the door opened to sustained UK cooperation with certain EU bodies, its approach was seen as far more conciliatory, allowing for a closer, more dynamic and flexible relationship than the one on offer from the European Council (McTague and Herszenhorn 2018). The EP has thus started to position itself into the role of the most responsible EU institution to put forward a concrete proposal for the EU-UK future relationship. Such a transformation into a potential British ally represented “a remarkable turnabout” (McTague and Herszenhorn 2018) and contrasted starkly not only with the Council’s language but also with the EP’s previous harder-line approach to Brexit (for more on this, see Chap. 3). It even prompted many to accuse the EP for giving the UK “a cudgel to use against the Council and the EU negotiators in the European Commission”, with some observers interpreting this shift as some kind of assembly’s “revenge” for being declined a seat at the negotiating table (and thereby a direct influence over the negotiations) (cf. Gostyńska-Jakubowska 2017, p. 5).4

3   Procedural Dimension Based solely on the wording of the Article 50(TEU), the EP’s formal role in Brexit is rather limited. Yet, instead of waiting till the end of the negotiation process and seeking its retrospective approval (and taking a risk that it will be denied), the institutional practice has shifted in ways that give the EP influence over the mandate already during the negotiation phase (Armstrong 2016). Indeed, Brexit has been high on the assembly’s agenda, with the EP devoting a great amount of attention to and exerting influence over withdrawal negotiations as they go along by utilizing several existing procedures and practices in place. Crucially, to set out the EP’s position and provide ex-ante guidance, MEPs regularly adopt resolutions on Brexit. The first one was adopted on 5 April 2017, generally showcasing the EP’s “uncompromising approach toward the UK” (De La Baume 2017a). Setting out the EP’s preconditions for its final approval of any UK-EU withdrawal agreement, the

4  A British tabloid, The Daily Express, ran a piece on this titled “Splits emerge in European Parliament as Guy Verhofstadt goes against Tusk” (Thalassites 2018). Yet, for completeness’ sake let us recall that interinstitutional rivalries form an inherent part of Brussels politics (Macdonald and Guarascio 2016; cf. Horten 2017; The Business Times 2016).

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assembly’s views largely echoed the sentiments of the Commission and the European Council on a wide range of matters, including sequencing of negotiations and the rejection of parallelism, citizens’ rights and the Irish border (European Parliament 2017b). The second resolution on the state of play of negotiations with the UK was adopted on 3 October 2017, specifying the EP’s red lines and emphasizing that the British government’s progress on Brexit was insufficient. It underlined the same three key issue areas as the Commission and the Council did, that is, the financial settlement, the future rights of EU citizens and the Irish border (European Parliament 2017a). The third resolution was voted on by a large majority on 13 December 2017, signalling the EP’s support for the European Commission and the European Council and recommending the European Council to move on to the second phase of Brexit negotiations. In the Parliament’s opinion, five outstanding issues needed to be fully addressed before a final withdrawal agreement might be approved, including citizens’ rights and ensuring that commitments made with respect to Northern Ireland were fully enforceable (European Parliament 2017c). The EP issued its fourth resolution on 14 March 2018 with an aim to feed into the guidelines on the framework for the future EU-UK relationship that the European Council adopted at its 22–23 March 2018 meeting. In this latest account of the Parliament’s thinking, the assembly suggested concrete proposals for the future EU-UK relationship. More specifically, it proposed an association agreement that would be based on four pillars: trade and economic relations, foreign policy, internal security and thematic cooperation (e.g. on cross-border research and innovation projects) (European Parliament 2018c). Even though the EP resolutions may seem “largely symbolic” (Archick 2014, p. 16), they do serve substantively important purposes. In principle, they have been primarily designed to function as a signal on MEPs’ preferences with regard to Brexit negotiations. As such, they represent an advance alert device that the EP successfully uses to exert pressure on the rest of EU institutions and the UK to take notice of parliamentarians’ wishes before deciding whether to approve the withdrawal agreement or not (for a discussion on MEPs’ voting behaviour on these resolutions see also the following section, “Party-Political Dimension”). Apart from resolutions, the EP can influence negotiations by what Danuta Hübner, the Chair of the Constitutional Affairs Committee, calls “specific sectorial resolutions” on various areas, such as budgetary issues,

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transport or citizens’ rights (De La Baume 2017b). Indeed, given the complex and complicated nature of Brexit, an important component of the EP’s autonomy is development of high-quality, reliable and evidence-­based inhouse knowledge. MEPs therefore draw on the expertise of the parliamentary committees which have produced and commissioned a host of detailed expert studies which address Brexit implications in a broad range of policy areas and which benefit not only MEPs themselves but also the broader public. Interestingly, the knowledge-building process has been much faster than, for instance, in the case of the Comprehensive Economic and Trade Agreement (CETA) negotiations (cf. Roederer-­R ynning 2017). As already hinted at, the Parliament has also become a prominent public venue for the debate on the terms of Brexit. In order to reduce the risks of a negative plenary vote at the end of the process, the EP liaises extensively with other EU institutions, key figures in the negotiations process as well as those who will be affected by Brexit. This activity comprises various exchanges of views, informal diplomatic visits, hearings and enquiries of the EP committees and the BSG which look into how Brexit might impact the EU and Europe. In a clear sign of recognition of the EP’s powers, Barnier is a regular presence in the EP, including the plenary sessions in Strasbourg. He meets frequently with the EP leaders and the BSG, giving them oral briefings and answering their questions. On top of that, the EP has been also inviting top British officials—such as David Davis, British Secretary of State for Exiting the European Union—to testify before MEPs at plenary sessions. Last but not least, endowed with the hard power of consent, the EP has been acting as a threat to strengthen its soft power to influence the negotiation phase. In fact, it uses basically every chance to emphasize its role in the Brexit process, with some statements being indeed interpreted as thinly veiled threats. MEPs have recurrently accentuated the necessity for the EP to be adequately engaged in the Brexit policy-making at the earliest possible stage, reiterating that its early involvement was vital to facilitate its later consent in the ratification phase. Also, all four resolutions on Brexit strongly implied (albeit differing slightly in the exact wording) that the EP might not give its consent to the withdrawal agreement if its concerns were not addressed.

4   Party-Political Dimension Regarding the criterion of cohesion, as is apparent from Table 10.1, all four EP resolutions on Brexit were passed with an overwhelming majority which points to a considerable degree of consensus within the assembly.

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Table 10.1  Voting record of the EP’s resolutions on Brexit

Resolution 04/2017 Resolution 10/2017 Resolution 12/2017 Resolution 03/2018

The total number of MEPs present

Outcome

699

516

73.8

133

19.0

50

7.2

678

557

82.1

92

13.6

29

4.3

686

556

81.1

62

9.0

68

9.9

705

544

77.2

110

15.6

51

7.2

Votes for

Votes against

Abstentions

Absolute Relative numbers share (% of the present MEPs)

Absolute Relative number share (% of the present MEPs)

Absolute Relative number share (% of the present MEPs)

Likewise, many MEPs that the author interviewed or had a correspondence with congruently referred to the unusually strong common accord that the Parliament has been showing as far as Brexit and its proceedings are concerned. In essence, this unity strengthens the bargaining leverage that the EP can (and does) mobilize vis-à-vis other Brexit stakeholders, showing that it is prepared to go to great lengths to force concessions from them. In substantive terms, the EP has generally taken a rather hard line on Brexit. In fact, it indicated its hard-line approach early on, signalling clear willingness to use all the powers at its disposal during the Brexit negotiations. Most profoundly, at the end of March 2017, the EP “showed its readiness to take a lead in a possible Brexit battle with the U.K.” (De La Baume 2017a), with Pedro Lopez de Pablo, EPP group’s spokesman, memorably claiming that “[t]he Parliament is ready to play the bad cop […] We are going to be those who will complain about almost everything” (Robinson 2017). In De La Baume’s (2017a) words, MEPs made it clear early on that the Parliament was “ready to disrupt the talks by leaning on its veto power over the Brexit deal if London doesn’t respect the principles the European Union is founded on” (De La Baume 2017a).

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As McGowan (2018, p. 82) avers, “Some of the views from the mainstream parties do not make comfortable listening for London”.5 That this is the case can be illustrated by MEPs’ criticism directed at British attempts at cherry-picking or accusations of not negotiating in good faith. Typical of this tendency was MEPs’ disapproval of Davis’ December 2017 claim that the outcome of the first phase of the negotiations was merely a statement of intent without legal backing, accusing him of damaging trust in Brexit (Rankin and Boffey 2017; Waterfield and Coates 2016). In response, Verhofstadt declared that such a statement was “unacceptable”, adding that, in consequence of Davis’ comments, he saw “a hardening of positions” in the Council and that there would be a hardening of positions in the Parliament as well (Rankin and Boffey 2017). Even though Davis was not formally required to take the EP’s opinion into account, he immediately backtracked and watered down his initial statements. The assembly’s straightforward approach towards the UK is further evident also from the BSG’s comments on UK position papers which tend to return a rather critical feedback. For instance, in its assessment of the Safeguarding the position of EU citizens living in the UK and UK nationals living in the EU paper of 26 June 2017, the BSG criticized that the UK did not “respect the principles of reciprocity, symmetry and non-­discrimination”, thus reducing the rights of EU citizens in the UK to “a level lower than third country nationals in the EU” (Brexit Steering Group 2017a). Besides, the EP has also set a direct dialogue with the UK, as documented, for instance, by its letters to the British Secretary of State for the Home Department in April and July 2018 or newspaper articles (see e.g. the July 2017 Guardian article by Verhofstadt titled Improve the Brexit offer to EU citizens, or we’ll veto the deal, which stated that “The British proposal treats EU citizens in the UK less favourably than even the Vote Leave manifesto did. In the European parliament, we can’t accept this” [Verhofstadt 2017]). This said, however, MEPs are not unanimous in their approach to Brexit, far from it. Views on Brexit naturally vary widely across the chamber which is evident, more often than not, in the EP’s plenary sessions. Some have even indicated that it is its diverse political makeup that makes the EP an unpredictable player in the approval process (Casert and Moulson 2016).

5  Generally speaking, it is especially Verhofstadt that has been made “something of a villain in the British press” (De La Baume and Herszenhorn 2017).

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All political groupings in the EP have established their own special working groups on Brexit that issue their own statements on various Brexit-related issues and outline the group’s red lines. Overall, while those political groups represented in the BSG tend to be generally supportive of the EP’s official approach, others try harder to set themselves apart. For instance, GUE/ NGL’s Brexit working group states that whilst “[e]ach political group in the European Parliament has set up a Brexit Working Group”, GUE/NGL MEPs are “the only ones who truly stands up for citizens’ rights after Brexit, as well as the special status of the North of Ireland and Brexit’s ramification for its citizens, plus The Good Friday Agreement” (GUE/NGL 2018). It also listed explicitly as its aim to be “the most transparent group in the European Parliament as to where GUE/NGL stands during every step of the negotiations” (GUE/NGL 2018). Unsatisfied with the EP’s general approach to Brexit, also the Europe of Freedom and Direct Democracy (EFDD) group of Eurosceptic MEPs, which includes the United Kingdom Independence Party, tabled its own statement which declared that “leaving the EU has great economic and democratic potential” (European Parliament (2017d). Some MEPs from the European Conservatives and Reformists (ECR) group also publicly complain that the group has not been consulted on the EP’s resolutions on Brexit (De La Baume 2017c). Furthermore, interviews and correspondence with MEPs have yielded mixed results when it comes to their personal views and assessments of Verhofstadt himself. On the one hand, some perceive him as the right man for the job, appreciating him as an excellent speaker and praising him for his charisma, openness and energy. On the other hand, he seems to irritate many parliamentarians with his “fanatic federalist” views, eccentric approach, flamboyance and lofty ideas of the EU. Many also criticize his huge ego, his tendency to “impose a position on MEPs” as well as the fact that his appointment was not voted on by the plenary session and that he only uses Article 50 negotiations as a platform to lift his profile. Indeed, the very setup of the BSG was seen by many as a move to “clip Verhofstadt’s wings”, with the control of political groups promising to “steal some of the limelight” from him (De La Baume 2017c). He has been also condemned by fellow parliamentarians for his tendency to punish Britain and make it a cautionary tale for other EU member states. At the same time, some MEPs tend to tone down Verhofstadt’s importance, claiming that he has no real influence over the Brexit process whatsoever.6 6  Deliberations within the CoP have not been devoid of internal tensions vis-à-vis Verhofstadt either.

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Let us now have a closer look at MEPs’ voting behaviour during roll call votes from the plenary sessions during which the four resolutions on Brexit were debated and voted on. As illuminated by Table 10.2, by far the strongest opposition against the EP’s Brexit resolutions has come from the Europe of Nations and Freedom (ENF) group, with 94 per cent of its members rejecting the first and fourth resolution and 86 per cent voting against the second and the third one. Non-Inscrits (NI; MEPs not sitting in any of the recognized political groups) rank a distant second, rejecting the resolutions on average by 51.2 per cent of their “members”, followed closely by the EFDD group (with 50.6 per cent of its delegates voting on average against the resolutions). The opposition coming from the ECR group has been distributed less evenly, ranging from 75 per cent of its delegates voting against the first resolution over 45 per cent in case of the fourth and 38 per cent in case of the second resolution to mere 3 per cent in case of the third one. By contrast, none of EPP or ALDE MEPs has ever voted against any of the four resolutions and also S&D (with one member [0.5 per cent] voting against one of the resolutions) and the Greens/EFA (with 4 per cent voting against the first resolution and 2 per cent against the fourth one) groups have stood strongly behind the resolutions. In this context, it is worthwhile to note that many MEPs vote in favour of the resolutions despite having previously expressed reservations about them. For instance, the EPP group distanced itself from the part of the EP’s April 2017 resolution which touched upon the possibility of reversing the Brexit process, with the group’s leader, Manfred Weber, insisting that “Leave means leave” (Guarascio 2017). Yet, in the end, the group unanimously supported the resolution as a whole. The main ideological divide within the EP on Brexit therefore seems to be between those political groups represented in the BGS (EPP, S&D, ALDE, Greens/EFA and GUE/NGL) and those outside it (ECR, EFDD, ENF and NI). Also, the draft resolutions were always co-signed by the five major political groupings represented in the BSG only. These findings show that ideological preferences, indicated by membership in political groups, are a relatively strong predictor of MEPs’ voting on Brexit.

5   National-Interest Dimension Turning to the national-interest dimension, it is especially the British MEPs that stand out from other national delegations vis-à-vis Brexit, often tabling various alternative amendments to the EP resolutions that

0 0 53 0 9

2

21 34 14 133

219 189 71 68 52

51

44 36 21 751

EPP S&D ECR ALDE GUE/ NGL Greens/ EFA EFDD ENF NI Total

Absolute number

Number of MEPs

Political group

47.73 94.44 66.67 17.71

3.92

0.00 0.00 74.65 0.00 17.31

Relative share (% of the group)

Resolution 04/2017

22 31 9 92

0

0 0 27 0 3

Absolute number

50.00 86.11 42.86 12.25

0.00

0.00 0.00 38.03 0.00 5.77

Relative share (% of the group)

19 31 9 62

0

0 1 2 0 0

Absolute number

43.18 86.11 42.86 8.26

0.00

0.00 0.53 2.82 0.00 0.00

Relative share (% of the group)

Resolution 12/2017

Votes against

Resolution 10/2017

27 34 11 110

1

0 0 32 0 5

Absolute number

61.36 94.44 52.38 14.65

1.96

0.00 0.00 45.07 0.00 9.62

Relative share (% of the group)

Resolution 03/2018

Table 10.2  MEPs’ voting behaviour on EP’s resolutions on Brexit (by party groups)

50.57 90.28 51.19 13.22

1.47

0.00 0.13 40.14 0.00 8.17

Average value (relative share during all four votes)

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usually get rejected. For instance, in case of the April 2017 resolution, British Conservative MEPs proposed two almost identical amendments that would have added a reference to the resolution emphasizing that Gibraltar voted decisively to stay in the EU. They also suggested that a similar reference to Gibraltar should be made in the paragraph on Scotland’s and Northern Ireland’s pro-EU vote. Yet, the major political groups refused this change on the grounds that they did not “agree to give to the Gibraltar issue the same importance as Scotland’s and Northern Ireland’s”. Likewise, other amendments proposed by the United Kingdom Independence Party, criticizing Council’s guidelines on Gibraltar, were also widely refused (Guarascio 2017). British national delegations within political groups also issue their own statements and press releases on specific Brexit-­related issues, as exemplified by Labour MEPs’ statement on UK’s participation in the EU digital single market after Britain leaves the EU (S&D 2018). Some MEPs have even expressed their concerns that their British fellows might attempt to obstruct the EP’s work on Brexit, for instance, by leaking information about the EU27’s negotiating tactics to the British government or to the public. Pro-EU MEPs have been “particularly distrustful of Tory MEPs who voted to leave and are likely to remain loyal to their political leadership at home” (Gostyńska-Jakubowska 2017, p. 8). As Table 10.3 makes it clear, the British MEPs are also the ones voting most strongly against the resolutions (in average, 40 per cent of British MEPs voted against the four resolutions on Brexit), which lends support to the claim that they pursue policy preferences consistent with the needs of their country which are, inevitably, different from the rest of the EU.  France ranks second, with 27 per cent of French MEPs voting on average against the resolutions, followed by Greece (19 per cent), the Netherlands (18 per cent) and Denmark (17 per cent). Conversely, Slovenian, Estonian, Luxembourgian and Maltese MEPs have been, so far, always uniformly in favour of the resolutions. Also Romania has been very strongly in favour, with only 1 per cent of its MEPs voting on average against them, and so has been Ireland, Spain (both 2 per cent) and Cyprus (4 per cent). This suggests rather limited fragmentation of the EP along national lines and it seems that—with the exception of British MEPs—its role as a force in Brexit negotiations has not been moderated by member state interests in any significant way. It therefore seems reasonable to assume that, on the evidence so far, party cohesion among EP political

Germany France Italy United Kingdom Spain Poland Romania Netherlands Belgium Czech Republic Greece Hungary Portugal Sweden Austria

10 21 8 33

4 20 0 4 1 3 5 3 3 3 4

96 74 73 73

54 51 32 26 21 21

21 21 21 20 18

Member state Number Absolute of MEPS number

23.81 14.29 14.29 15.00 22.22

7.41 39.22 0.00 15.38 4.76 14.29

10.42 28.38 10.96 45.21

Relative share (% of the national)

Resolution 04/2017

4 0 2 2 0

0 8 0 6 1 1

7 19 6 25

Absolute number

19.05 0.00 9.52 10.00 0.00

0.00 15.69 0.00 23.08 4.76 4.76

7.29 25.68 8.22 34.25

Relative share (% of the national)

Votes against

Resolution 10/2017

3 1 0 1 1

0 3 0 4 1 1

5 17 6 19

Absolute number

14.29 4.76 0.00 5.00 5.56

0.00 5.88 0.00 15.38 4.76 4.76

5.21 22.97 8.22 26.03

Relative share (% of the national)

Resolution 12/2017

4 2 3 2 4

1 3 1 5 1 3

7 22 5 39

Absolute number

19.05 9.52 14.29 10.00 22.22

1.85 5.88 3.13 19.23 4.76 14.29

7.29 29.73 6.85 53.42

Relative share (% of the national)

Resolution 03/2018

Table 10.3  MEPs’ voting behaviour on EP’s resolutions on Brexit (by member states)

(continued)

19.05 7.14 9.52 10.00 12.50

2.31 16.67 0.78 18.27 4.76 9.52

7.55 26.69 8.56 39.73

Average value (relative share during all four votes)

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Bulgaria Denmark Slovak Republic Finland Ireland Croatia Lithuania Latvia Slovenia Estonia Cyprus Luxembourg Malta Total

1 2 3

2 0 1 1 1 0 0 0 0 0 133

17 13 13

13 11 11 11 8 8 6 6 6 6 751

Member state Number Absolute of MEPS number

15.38 0.00 9.09 9.09 12.50 0.00 0.00 0.00 0.00 0.00 17.71

5.88 15.38 23.08

Relative share (% of the national)

Resolution 04/2017

Table 10.3 (continued)

1 1 1 1 1 0 0 1 0 0 92

2 2 1

Absolute number

7.69 9.09 9.09 9.09 12.50 0.00 0.00 16.67 0.00 0.00 12.25

11.76 15.38 7.69

Relative share (% of the national)

Votes against

Resolution 10/2017

0 0 0 0 0 0 0 0 0 0 62

0 0 0

Absolute number

0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 8.26

0.00 0.00 0.00

Relative share (% of the national)

Resolution 12/2017

1 0 0 0 0 0 0 0 0 0 110

1 5 0

Absolute number

7.69 0.00 9.09 0.00 0.00 0.00 0.00 0.00 0.00 0.00 14.65

5.88 38.46 0.00

Relative share (% of the national)

Resolution 03/2018

7.69 2.27 6.82 4.55 6.25 0.00 0.00 4.17 0.00 0.00 13.22

5.88 17.31 7.69

Average value (relative share during all four votes)

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groups holds greater explanatory power, suggesting that the most influential factors are ideological rather than territorial.7 An additional—rather self-evident but important—point is that specific reasons for voting against the resolutions naturally vary from one MEP to another. Taking the floor debate on the March 2018 resolution as an example, MEPs gave miscellaneous reasons ranging from accusations that the EP was only trying to escalate the situation before the final vote or that it was ignoring the parameters set out by the British Prime Minister or that the EP’s proposal was calling for EU membership in everything but name (European Parliament 2018b). Some MEPs also criticized the EP for being too subservient to the wishes of the Council.

6   Conclusion The Brexit process constitutes one of the most significant and politically sensitive tasks to ever face the EU and its institutions, including the EP.  Brexit has taken the EU’s assembly into an uncharted territory, enabling a means of extending parliamentary scrutiny and oversight to a new area. As we could see, the EP’s formal role in the Brexit process is rather limited, as it can only give or withhold its consent to the final withdrawal agreement (but cannot amend it) and receive regular information on the progress of negotiations.8 In this sense, it is the ability to withhold its consent (and its readiness to do so, as shown by previous rejections of agreements brokered down by the Commission) that gives teeth to the assembly’s involvement in Brexit policy-making and that represents the primary source of parliamentary influence in this area. At the same time, the chapter revealed that even though the EP is not a negotiating party as such, it does have certain ways of leveraging influ-

7  It is interesting to reflect that these findings stand in stark opposition to the opinions of some interviewed MEPs who are convinced that, apart from the UK, it is especially Ireland and Spain that break the EP’s unity during the votes on Brexit. Likewise, the MEPs are divided over whether the debate and voting on Brexit in the EP proceed along national or ideological lines. 8  What is important to note in this context is that the EP has been also a kind of a role model for the British Parliament in the Brexit process, with Theresa May promising that the UK Parliament will be kept at least as well informed as the EP (Armstrong 2016; Miller et al. 2017, p. 21).

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ence throughout the negotiation phase of the withdrawal agreement. Indeed, having created capacities for internal scrutiny of the Brexit process, the EP utilizes its consent power to make claims, condition Brexit negotiations and gain greater presence, visibility and influence in the EU politics. In other words, as a watchdog and a veto player, the EP utilizes this power strategically to impose ex-ante constraints and affect the preferences in the Brexit policy-making, thereby expanding its informal influence as such. Significantly, to make its voice heard and ensure that the consent procedure is more than a mere “take it or leave it” exercise, the EP has been actively issuing various statements, considerations and—what have amounted to advisory—resolutions on Brexit. In all of them, the EP took a pro-active role and presented a coherent set of arguments, with the individual resolutions building on previous EP positions on Brexit. With the exception of British MEPs, the debate on Brexit within the EP does not seem to be nationalized in any significant way. Indeed, the analysis of voting behaviour on Brexit highlighted the relative importance of ideology over national interests. Yet, as the chapter also made it clear, the fact that MEPs are often split on how to approach Brexit does not prevent the EP from reaching a clear position, which can be (and is) communicated to third parties. Equally important, the EP has also become a prominent forum for the exchange of information on Brexit. As we could see, the EP regularly questions and presses views on leading actors in the withdrawal process who frequently interact with the EP and periodically appear before its MEPs. Parliamentarians therefore often act as arbiters by conducting inquiries and passing political verdicts on Brexit which may induce executive outcomes through informal pressure. As such, they do not stop at scrutinizing the Brexit process, but go well beyond it, in an attempt to leave a deep mark on its final outcome. Taken together, the EP has succeeded in asserting itself in the Brexit process (see especially Bressanelli et al. [forthcoming] who also arrive at similar conclusions). The account of the developments in last two years demonstrates very clearly how seriously it has become with it and how salient the comprehensive agenda of Brexit is for the EP. Endowed with the hard power of consent in the final phase of the withdrawal agreement, it has been acting as a threat to strengthen its “soft power” to influence negotiations. Notably, the EP uses basically every chance to recall that it will be the MEPs who will decide independently whether the final negoti-

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ated withdrawal agreement is acceptable or not and that its consent for the agreement is linked to respecting the principles set out in its resolutions. Thus, with its keen interest in the Brexit process, the power of veto and its continuous influence-seeking activism, the EP has been playing a considerably more pro-active role in the withdrawal negotiations than the TEU envisaged (cf. McGowan 2018, p.  82).9 In light of the above, it seems reasonable to argue that the four criteria for actorness (authority, autonomy, cohesion and recognition) have been largely fulfilled, lending support to the claim that the EP is a significant (albeit not central) actor in the field of withdrawal negotiations. As we are nearing the end of the chapter, it is worth bearing in mind that Brexit talks have been taking place against the backdrop of the post-­ Lisbon continuous empowerment of the EP in international negotiations. And even though one “cannot compare the withdrawal talks with the UK with any other international negotiations the EU has conducted since the Lisbon treaty entered into force” (Gostyńska-Jakubowska 2017, p. 5), it is useful to draw some comparisons nevertheless. To begin with, it is obvious that the increased participation rights of the EP following the Lisbon Treaty have made the EP more assertive in expressing its views and c­ oncerns (Frennhoff  Larsen 2017, p.  3), with this evergrowing assertiveness being strongly reflected in its “Brexit experience”. Most importantly, MEPs have developed robust procedures for ex-ante scrutiny of the EU’s international negotiations, and the EP has applied this practice (arguably with even more vigour and eagerness) to withdrawal negotiations as well (cf. Gostyńska-Jakubowska 2017, p. 3). The EP has also continued in its practice of shifting its formal and informal powers in order to exert influence and control over the proceedings of the negotiations. This is well in line with the EP’s long track record of “inventively using existing rules and procedures to expand its powers beyond its constitutionally granted perimeter” (Roederer-Rynning 2017, p. 511). Indeed, its hitherto experience with international negotiations (especially in the trade area with agreements such as ACTA, TTIP, 9  It is also worth recalling that the EP has been trying to secure a much bigger role than it had during the EU renegotiations with the UK. As Neil Nugent (2017, p. 176) states in this context, the EP felt heavily sidelined during the renegotiations process: “it exercised no influence on the contents of the proposed reformed UK membership terms” and was therefore “dissatisfied with its role”, especially because of “its exclusion from high-level, intergovernmental deliberations and decision-making”.

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CETA or the so-called SWIFT) show how the EP, “not satisfied with the new formal ex post control mechanism (ratification)”, made use of day-today decision-making to expand widely its informal participation beyond its formal treaty power to ratify international agreements (Meissner 2016; Servent 2014). In Servent’s (2014, p. 578–579) words, by “re-interpreting the formal rules of the Treaty”, the EP “shifted its role from that of a veto player (i.e., able to block international agreements during the ratification stage) to that of an agenda-setter able to influence [...] negotiations. As such, these negotiations set an important precedent that the EP has been exploiting in the case of Brexit. Moreover, unlike the previous international negotiations, such as on SWIFT or ACTA agreements in which case the EP’s assertiveness took many by surprise (see e.g. Servent 2014 on this), its role in Brexit has been much less of a shock. The knowledge-building process has been much faster and the European Commission has shifted to a more proactive, earlier and in-depth engagement strategy with the EP. The EP’s clear involvement in Brexit also seems to reduce the legitimacy concerns that were associated with negotiations on ACTA or TFTP. To sum up, the findings in this chapter complement the literature on the EP’s empowerment as such (see e.g. Beach 2007; Dinan 2014; Kaeding and Obholzer 2012; Richardson 2012; Rittberger 2003; Rosén 2015; Scotti 2016 amongst others) and can be perceived as a case study in the EP’s enhanced post-­ Lisbon role. The EP’s role in Brexit also gives us some clues about its strategies and practices in future international negotiations—especially in terms of its willingness to become more than a mere veto player, its early involvement and increased capacity to influence and control EU international negotiations, robust knowledge-building, readiness to assert its ambitions vis-à-­ vis the Commission and the Council as well as its eagerness to secure its position as an agenda-setter capable of steering the EU negotiators’ agenda. Its involvement and activism at all stages of negotiations can only be expected to increase as the EP’s experience and expertise of international negotiations deepens, its knowledge and institutional memory in this area thickens and the negotiations become more politicized in future. Congruently, we might also expect other EU institutions to attach more importance to coordination with the EP during international negotiations and to engage with the EP at early stages of the negotiation process.

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Kaunert, C., et al. (2015). The European Parliament in the External Dimension of EU Counterterrorism: More Actorness, Accountability and Oversight 10 Years on? Intelligence and National Security, 30(2–3), 357–376. Macdonald, A., & Guarascio, F. (2016, December 15). EU parliament Warns Talks Plan Risks Brexit Deal Veto. https://www.reuters.com/article/us-britain-eu-parliament/eu-parliament-warns-talks-plan-risks-brexit-deal-vetoidUSKBN1441LG Meissner, K. (2016). Democratizing EU External Relations: The European Parliament’s Informal Role in SWIFT, ACTA, and TTIP. European Foreign Affairs Review, 21(2), 269–288. McGowan, L. (2018). Preparing for Brexit: Actors, Negotiations and Consequences. London: Palgrave Macmillan. McTague, T., & Herszenhorn, D. (2018, March 9). UK’s New Brexit Best Friend … Guy Verhofstadt. Politico. https://www.politico.eu/article/brexit-negotiation-uk-open-to-eu-association-agreement/ Miller, V., et al. (2017). Brexit: How Does the Article 50 Process Work? Research Briefing–Parliament. http://researchbriefings.parliament.uk/Research Briefing/Summary/CBP-7551#fullreport Nugent, N. (2017). The Crisis and the EU’s Institutions, Political Actors and Processes. In D. Dinan et al. (Eds.), The European Union in Crisis (pp. 167–188). Basingstoke: Palgrave Macmillan. Pufleau, M. V. (2017). The Impact of Parliamentary Diplomacy, Civil Society and Human Rights Advocacy on EU Strategic Partners: The Case of Mexico. In S.  Stavridis & D.  Jančić (Eds.), Parliamentary Diplomacy in European and Global Governance. Diplomatic Studies Series (Vol. 13, pp. 134–155). Leiden: Brill Nijhoff. Rankin, J., & Boffey, D. (2017, December 12). David Davis Scrambles to Salvage EU Relations After ‘Damaging Trust’. https://www.theguardian.com/politics/2017/dec/12/david-davis-has-damaged-trust-in-the-uk-for-brexit-talkssays-verhofstadt Richardson, L. (2012). The Post-Lisbon Role of the European Parliament in the EU’s Common Commercial Policy: Implications for Bilateral Trade Negotiations (EU Diplomacy Paper 05). Brugge, College of Europe. Rittberger, B. (2003). The Creation and Empowerment of the European Parliament. Journal of Common Market Studies, 41(2), 203–225. Robinson, D. (2017, March 29). Trigger Morning. Financial Times. https:// www.ft.com/content/ce8db6bd-e45c-389e-9889-115ad1ff8484 Roederer-Rynning, C. (2017). Parliamentary Assertion and Deep Integration: The European Parliament in the CETA and TTIP Negotiations. Cambridge Review of International Affairs, 30(5–6), 507–526. Rosén, G. (2015). EU Confidential: The European Parliament’s Involvement in EU Security and Defence Policy. Journal of Common Market Studies, 53(2), 383–398.

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S&D. (2018, March 4). Labour MEPs: UK Must Keep New EU Rule Enabling Travellers to Watch Netflix and Other Digital Subscriptions Abroad. http:// www.socialistsanddemocrats.eu/newsroom/labour-meps-uk-must-keep-neweu-rule-enabling-travellers-watch-netflix-and-other-digital Scotti, V. R. (2016). The European Parliament and Counterterrorism in the Euro-­ Mediterranean Area. Mediterranean Quarterly, 27(4), 81–99. Schulz, M. (2016). Speech of the President of the European Parliament, Martin Schulz at the European Council of 15 December 2016. http://www.europarl. europa.eu/former_ep_presidents/president-schulz-2014-2016/de-en/pressroom/speech Servent, A.  R. (2014). The Role of the European Parliament in International Negotiations After Lisbon. Journal of European Public Policy, 21(4), 568–586. Stoll, P. T. (2017). The Role and Powers of the European Parliament in the Brexit Process. European Parliament, Directorate General for Internal Policies: Policy Department A Economic And Scientific Policy. Thalassites, J.  (2018, March 13). BREXIT News: Splits Emerge in European Parliament as Guy Verhofstadt Goes AGAINST Tusk. The Daily Express. https://www.express.co.uk/news/uk/930950/brexit-news-guy-verhofstadteuropean-parliament-EU-association-agreement The Business Times. (2016, December 15). EU Parliament Warns Talks Plan Risks Brexit Deal Veto. The Business Times. http://www.businesstimes.com.sg/government-economy/eu-parliament-warns-talks-plan-risks-brexit-deal-veto Vlassis, A. (2015). The European Parliament Within the Global Governance of Culture: Voice and Influence. CONGRES AFSP Aix 2015 ST 43: Le Parlement européen, acteur international et institution parlementaire international (IPI): exemples et comparaisons avec d’autres IPIs. https://orbi.uliege.be/bitstream/2268/183739/1/ST43Vlassis.pdf Waterfield, B., & Coates, S. (2016, December 13). Theresa May Must Stop David Davis Becoming a Threat to Brexit Talks, Say MEPs. The Times. https://www. thetimes.co.uk/article/theresa-may-must-stop-david-davis-becoming-athreat-to-brexit-talks-say-meps-3lx60399c Yan, S. (2015). The Actorness of the European Parliament in EU-China Bilateral Investment Treaty Negotiations. EU-China Observer, 3, 23–28. + interviews and correspondence with selected MEPs. (January–April 2018).

CHAPTER 11

The Impact of Brexit on the European Parliament: The Role of British MEPs in Euro-Mediterranean Affairs Jan Claudius Völkel

1   Introduction The Brexit referendum on 23 June 2016 also marked a watershed for the European Parliament (EP), culminating year-long heated parliamentary debates about the United Kingdom’s (UK) European Union (EU) membership. Especially deputies of the UK Independence Party (UKIP), the largest UK EP faction since the May 2014 elections, marked EP plenaries with strong anti-EU rhetoric. Yet, also Tory MEPs (members of the EP) had increasingly taken over EU critical stances since the late 2000s already, leading to their exit from the rather pro-EU  group “European People’s Party  – European Democrats” (EPP-ED) in 2009 (Lynch and Whitaker 2016, pp. 125–126) and their creation of the rather EU-sceptical “European Conservatives and Reformists” (ECR). With the 2014 elections, ECR bypassed the EU-supportive “Alliance of Liberals and Democrats in Europe” (ALDE) as the third largest faction in the EP for the first time (Whitaker et al. 2017a, p. 492). J. C. Völkel (*) Institute for European Studies, Vrije Universiteit Brussel (IES-VUB), Brussels, Belgium e-mail: [email protected] © The Author(s) 2019 T. Christiansen, D. Fromage (eds.), Brexit and Democracy, European Administrative Governance, https://doi.org/10.1007/978-3-030-06043-5_11

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The growing number of EU-sceptical MEPs also from other countries set the perfect stage for UKIP MEPs, who used the EP plenary as their main stage for self-promotion, due to their lack of success in the first-past-­ the-post elections for the Westminster parliament. They brought debates around Brexit from the UK public into the EP, and vice versa. Brexiters’ key request of “sovereignty”—epitomised in their infamous “take back control” slogan (Hix 2018, p. 7)—became a key variable for UKIP-MEPs’ statements and actions. UKIP’s most prominent representative, Nigel Farage, MEP since 1999, perfectly mixed the rejection of any EU powers with a demonisation of the EU’s Schengen policies as a major incentive for more migrants coming into the UK. His “Breaking Point” poster sparked outrage as a “blatant attempt to incite racial hatred” (Stewart and Mason 2016), accused of referencing Nazi propaganda. Besides, the poster’s sub-slogan “How the EU has failed us all” suggested that the EU was intentionally behind the high numbers of refugees coming from Africa and the Middle East to Europe in 2015. The message was clear: “staying in the EU means Britain will soon be overwhelmed by unwashed hordes of brownish immigrants from exotic and violent locales” (Shapiro 2016). Indeed, the EU’s relations with the Middle East and North Africa (MENA) triggered many, if not most, of the Brexit disputes. Particularly immigration, connected with economic, but also cultural and security-­ related implications (Applebaum 2017, pp. 53–54; Norris 2018), “appears to have been the deciding factor for one third of those who voted to leave the EU” (Ker-Lindsay 2018, p.  11). Besides, the looming accession of Turkey to the EU was a major point of controversy. Brexiters argued “that the accession of Turkey would give millions of migrants the right to live and work in the UK” (Swinford 2016). Exactly out of this fear, the UK government under the then Prime Minister David Cameron had already changed its traditional pro-­ enlargement stance to a more hesitant one (Milevska 2013), bending in to the increasing EU-sceptical voices from UKIP and his own party. Cameron refused, however, to promise a public referendum on a potential Turkish accession, “which would have left Turkey out of the Brexit question”, a pro-EU UK-MEP mentioned in a personal interview in Brussels on 25 April 2018. Acknowledging the close links between Brexit and MENA issues, this contribution analyses how UK-MEPs discussed core developments within the UK, the EU and MENA before and after the Brexit referendum in

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plenary debates during their (presumably) last tenure in the EP (i.e., the EP’s 8th legislature 2014–2019, EP8).1 The 73 UK-MEPs were particularly disunited about whether borders for refugees should be open or closed and whether Muslims posed a threat or enrichment for Europe, how to encounter Islamist terrorism, and to what extent the EU should be an actor in international relations per se. Resulting from a qualitative assessment of several hundreds of speech acts in the EP’s plenary, parliamentary questions and written explanations of vote by 15 selected UK-MEPs (i.e., 20% of the total UK-MEPs), and interviews, this chapter will illustrate that pro-Brexit UK-MEPs mostly used MENA-related debates to foster their prime intention (namely, proving the EU’s illegitimacy and irrelevance), while EU-sceptical and EU-supportive UK-MEPs discussed EU-MENA policies with a genuine topical interest. It builds especially on the extensive analyses by Simon Hix (and others) of UK-MEPs’ behaviour and influence in general, and specifically on Nathalie Brack’s (2015) classification of EU-sceptical MEPs.

2   UK-MEPs in EP8: Losing Relevance by Moving Right Into the Offside In EP8, the UK was one of the EU member states with the highest share of EU-sceptical MEPs. In Brack’s (2015, pp.  339–342) categories, the 24 UKIP members could be divided into “absentees” and “public orators”: all reject the EU as such, and therefore either refuse any parliamentary involvement whatsoever (“absentees”) or use their prominence as MEP for criticising the EU on every occasion (“public orators”), mainly in the plenary where television cameras livestream into the internet, and the resulting videos get massively shared on social media. ECR members in their vast majority, and a certain part of Labour MEPs, could be classified as “pragmatist” and “participant” EU-sceptical MEPs: while critical towards (certain aspects of) the EU, they are still constructive MEPs, based on “a desire to be influential” (Brack 2015, p. 345). They engaged in lengthy legislative processes in committee meetings, took over responsibilities in exposed roles and positions and conveyed to their voters a more balanced view of the EU. The remaining pro-EU MEPs can likewise be understood as “participants”, as they have an intrinsic motivation to get involved in the EP’s activities. 1

 The analyses of speech acts in this chapter stretch until 13 March 2018.

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UKIP’s success in the 2014 EP elections, with 26.77% of votes  the strongest UK party (Labour 24.74%, Conservatives 23.31%), indicates what Hix et al. (2018, p. 52) describe as shift from the classical right/left divide in the EP to a pro/anti-EU divide. When taking seats, the 24 UKIP deputies joined the anti-EU “Europe of Freedom and Direct Democracy” (EFDD) group, while 20 Labour members joined the pro-EU S&D (Group of the Progressive Alliance of Socialists and Democrats), and the 19 Conservatives joined—along with James Nicholson of the Ulster Unionist Party (UUP)—the EU-sceptical ECR. Three MEPs of the Green Party (GP), two from the Scottish National Party (SNP) and one of Plaid Cymru—the Party of Wales (PL-PW), joined The Greens/European Free Alliance (Greens/EFA). Martina Anderson of Sinn Feín joined the GUE/ NGL faction (European United Left/Nordic Green Left), and Catherine Bearder of the Liberal Democrats Party (LDP) joined ALDE.  Diane Dodds, successful candidate of the Northern Irish Democratic Unionist Party (DUP), remained non-affiliated. During EP8, UKIP lost six of its members (see Table  11.1): Amjad Bashir returned to the Conservatives (to which he had belonged until 2012 already) in January 2015, Janice Atkinson was expelled in March 2015 after financial irregularities and joined the “Europe of Nations and Freedom” (ENF) group since. Steven Woolfe and Diane James left in October/November 2016 in the turbulent UKIP internal struggles after the resignation of Nigel Farage as party chairman, just as Jonathan Arnott in January 2018 (who yet remained EFDD member) and James Carver in May 2018, who sits as an Independent since. Two ECR members whom VoteWatch Europe (2016) had just identified as “UK’s most influential MEPs” resigned during EP8: Timothy Kirkhope (November 2016, replaced by John Procter) and Vicky Ford (June 2017, replaced by John Flack). In February 2018, Julie Girling and Richard Ashworth swapped to the pro-European EPP for their anti-­Brexit stance. In EP8, EPP and S&D have, in alliance with ALDE, joined forces more than ever to develop the EU further and to defend it from massive criticism of the rising anti-EU voices, be they coming from nationalist (i.e., ECR, EFDD, ENF; see, on their congruence, McDonnell and Werner 2018) or leftist groups which predominantly see the EU as a neoliberal entity (i.e., GUE/NGL). This has not least been played out in EP decisions regarding EU foreign policies, where pro-EU forces have often voted in favour, but anti-EU forces against specific EU external actions (Hix et al. 2018, p. 56).

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Table 11.1  UK-MEPs in the 8th European Parliament (as of 31 July 2018, sorted by EP group and alphabet) Group

Name

EFDD

John Stuart AGNEW Tim AKER Jonathan ARNOTT

M UKIP Eastern

1949 2009

M UKIP Eastern M – North East

1985 2014 1981 2014

Gerard BATTEN Louise BOURS Jonathan BULLOCK David COBURN Jane COLLINS

M UKIP London F UKIP North West M UKIP East Midlands M UKIP Scotland F UKIP Yorkshire & the Humber M UKIP South West

1954 2004 1968 2014 1963 2017 Replaced Roger (Aug) HELMER 1959 2014 1962 2014

2 3

4 5 6 7 8 9

10 11 12 13 14 15 16 17 18 19 ECR

2

Party Constituency Born MEP since

William (The Earl of) DARTMOUTH Bill ETHERIDGE M UKIP West Midlands Nigel FARAGE M UKIP South East

1949 2009

Raymond FINCH M UKIP South East Nathan GILL M UKIP Wales Mike HOOKEM M UKIP Yorkshire & the Humber Paul NUTTALL M UKIP North West Patrick O’FLYNN M UKIP Eastern Margot PARKER F UKIP East Midlands Julia REID F UKIP South West Jill SEYMOUR F UKIP West Midlands Amjad BASHIR M Cons Yorkshire & the Humber

1963 2014 1973 2014 1953 2014

David CAMPBELL BANNERMANN

1960 2009

M Cons

Eastern

Remarks

Left UKIP in January 2018 but remained EFDD member

1970 2014 1964 1999

Since January 2017 EFDD chair

1976 2009 1965 2014 1943 2014 1952 2014 1958 2014 1952 2014

Sunni Muslim born in Pakistan; left UKIP in January 2015 UK-Born in India

(continued)

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J. C. VÖLKEL

Table 11.1 (continued) Group

Name

Party Constituency Born MEP since

3

Daniel DALTON

M Cons

4

Nirj DEVA

5 6

M Cons

West Midlands South East

1974 2015 (Jan) 1948 1999

John FLACK

M Cons

Eastern

F

Cons

North West

7 8 9

Jacqueline FOSTER Ashley FOX Daniel HANNAN Syed KAMALL

1957 2017 (Jun) 1947 1999

F Cons M Cons M Cons

South West South East London

10

Sajjad KARIM

M Cons

North West

11

Emma McCLARKIN Anthea McINTYRE Rupert MATTHEWS Baroness Nosheena MOBARIK James NICHOLSON John PROCTER

F

Cons

F

Cons

East Midlands West Midlands East Midlands Scotland

12 13 14

15 16 17 18 19 EPP 2

Kay SWINBURNE Charles TANNOCK Geoffrey VAN ORDEN Richard ASHWORTH Julie GIRLING

M Cons F

Cons

Remarks Replaced Philip BRADBOURN† Christian, born in Sri Lanka For Vicky FORD

1969 2009 1971 1999 1967 2005 Sunni Muslim of (May) Indo-Guyanese origin, Co-chair ECR Group 1970 2004 Sunni Muslim of Pakistani origin 1978 2009 1954 2011 (Dec) 1961 2017 (Jun) 1957 2017 (Sep)

Lisbon Treaty late-joiner Replaced Andrew LEWER Sunni Muslim born in Pakistan, for Ian DUNCAN

M UUP Northern 1945 1989 Ireland M Cons Yorkshire & 1966 2016 For Timothy the Humber (Nov) KIRKHOPE F Cons Wales 1967 2009 M Cons

London

1957 1999

M Cons

Eastern

1945 1999

M Cons

South East

1947 2004

F

South West & Gibraltar

1956 2009

Cons

Took on Irish citizenship ECR Vice chair Left ECR 28 Feb 2018 Left ECR 28 Feb 2018 (continued)

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Table 11.1 (continued) Group

Name

S&D

Lucy ANDERSON Paul BRANNEN Richard CORBETT Seb DANCE Neena GILL

2 3 4 5

6 7

Party Constituency Born MEP since F

Lab

M Lab M Lab M Lab F Lab

Remarks

London

1965 2014

North-East Yorkshire & the Humber London West Midlands

1962 2014 1955 1996 For Kenneth (Dec) STEWART† 1981 2014 1956 1999 India-born, MEP 1999–2009 and since 2014 1962 2014 1952 2000 For Pauline (Feb) GREEN 1958 2017 For Anneliese (Jun) DODDS 1979 2017 Sunni Muslim, (Jun) replaced Afzal KHAN 1977 2014 UK-Born in Tanzania

North West London

8

Theresa GRIFFIN F Lab Mary F Lab HONEYBALL John HOWARTH M Lab

9

Wajid KHAN

M Lab

North West

10

F

Lab

North-East

11

Jude KIRTON-­ DARLING Linda McAVAN

F

Lab

12 13

David MARTIN Alex MAYER

M Lab F Lab

14 15 16

Clare MOODY Claude MORAES Rory PALMER

F Lab M Lab M Lab

17

Siôn SIMON

M Lab

Yorkshire & 1962 1998 For Norman the Humber (May) WEST Scotland 1954 1984 Eastern 1981 2016 Replaced Richard (Nov) HOWITT South West 1965 2014 London 1965 1999 East 1981 2017 For Glenis Midlands (Oct) WILLMOTT West 1968 2014 Midlands Scotland 1973 1999

18

Catherine STIHLER 19 Derek VAUGHAN 20 Julie WARD Greens Jill EVANS /EFA 2 Ian HUDGHTON

F

Lab

South East

M Lab

Wales

1961 2009

F F

North West Wales

1957 2014 1959 1999

Scotland

1951 1998 For Allan (Nov) MACARTNEY†

Lab PL-­ PW M SNP

(continued)

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J. C. VÖLKEL

Table 11.1 (continued) Group

Name

3 4

Jean LAMBERT Molly SCOTT CATO Alyn SMITH Keith TAYLOR

Party Constituency Born MEP since London South West

1950 1999 1963 2014

M SNP M GP

Scotland South East

GUE Martina /NGL ANDERSON ENF Janice ATKINSON

F

SF

F

–

Northern Ireland South East

1973 2004 1953 2010 (Jun) 1962 2012 (Jun) 1962 2014

ALDE

F

Lib

South East

1949 2009

NI

Catherine BEARDER James CARVER

1969 2014

2

Diane DODDS

F

DUP

3

Diane JAMES

F

–

West Midlands Northern Ireland South East

4

Steven WOOLFE

M –

North West

1967 2014

5 6

F F

GP GP

M –

Remarks

For Caroline LUKAS For Bairbre de BRÚN Expelled from UKIP in March 2015

Left UKIP in May 2018

1958 2009 1959 2014

Left UKIP in November 2016 Left UKIP in October 2016

†Deceased

Generally, EP8 has been marked by a growing polarisation between pro-EU MEPs in its core (EPP, S&D, ALDE) and anti-EU MEPs around, compared to the previous EP terms (Whitaker et al. 2017b). Remarkably, from the UK, only the current 20 Labour MEPs, the two EPP members and the one Liberal Democrat belong to the influential factions in the EP; all others sit in rather isolated groups (Hix et al. 2016, p. 7). UK-MEPs’ isolation had a limiting effect on their access to influential positions within the EP, which are mainly allocated through the EP’s groups. Only UK-MEPs from the pro-EU groups have occupied influential positions, with S&D’s Claude Moraes one of the most influential UK-MEPs: Named “MEP of the Year 2011” by the Parliament Magazine, he became chair of the Committee on Civil Liberties, Justice and Home Affairs (LIBE) in July 2014. Linda McAvan (S&D) has chaired the Committee on Development (DEVE) since 2014, and Catherine Bearder (ALDE) got elected as quaestor into the EP’s Bureau. Apart from these exceptions, UK-MEPs have suffered a downward trend in relevance (Hix and Benedetto 2016a, b). Besides the rise of

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UKIP, this resulted mainly from the switch of UK Conservatives from the leading EPP to the rather sidelined ECR group in 2009, making “the British Conservative Party … the only major government party in the EU to have flirted with, and eventually embraced, Hard Euroscepticism (sic!) as an important component of its ideology” (Taggart and Szczerbiak 2018, p. 1203). Data from Hix (2015a, b) show that UK-MEPs in the EP7 (2009–2014) were most often on the “losing side” of plenary decisions among all national groups, illustrating their considerable isolation. Only Labour and Liberal Democrat MEPs belonged to the “winning side” in the clear majority of cases (Hix 2016). But even Labour MEPs often opposed their own group position (Hix 2015a). The focus of the following analysis is directed towards those UK-MEPs that had particular relevance for EU-MENA policies. They have been primarily those who have been involved in theme-related committees or geographic delegations. Committees dealing with Mediterranean affairs are primarily AFET (Foreign Affairs), LIBE, DROI (Subcommittee on Human Rights), SEDE (Subcommittee on Security and Defense), DEVE and TERR (Terrorism). Here, a number of UK-MEPs were involved as chairs (C), vice-chairs (VC), members (M) or substitutes (S) (see Table 11.2). Geographically oriented delegations are the Delegation for the Mediterranean (DMED), for the Maghreb (DMAG), the Mashreq (DMAS), Israel (D-IL), Palestine (DPAL) and Turkey (D-TR). Only two UK-MEPs were full members of these delegations: Amjad Bashir (ECR) in DMAS and Mary Honeyball (S&D) in DMED.  Besides, seven UK-MEPs served as substitute members. Strikingly, no British EFDD member has been identified as quantitatively relevant for Mediterranean issues. Except for James Carver (who left UKIP in May 2018 for the party’s perceived growing anti-Islam stance), they participated only in the LIBE committee, which deals with internal security and EU border protection, hence one of UKIP’s prime foci. As “public orators” or even “absentees”, EU foreign relations were only of subordinated concern for them.

3   UK-MEPs’ Stances and Statements on Mediterranean Affairs How UK-MEPs perceive the EU in general basically determines how they position themselves regarding Mediterranean affairs: rejecting the EU as such means largely abstaining from the thematical discussions, except for blaming the EU for its (perceived) misdeeds. However, if UK-MEPs did

Amjad BASHIR James CARVERa S&D Wajid KHAN S&D Clare MOODY Greens Alyn SMITH ECR Charles TANNOCK ECR Geoffrey VAN ORDEN ECR Nirj DEVA S&D Neena GILL S&D David MARTIN ECR Baroness Nosheena MOBARIK ECR David CAMPBELL BANNERMAN S&D Linda McAVAN ALDE Catherine BEARDER S&D Seb DANCE S&D Claude MORAES GUE Martina ANDERSON EFDD Gerard BATTEN ECR Daniel DALTON EFDD Raymond FINCH EFDD Tim AKER ENF Janice ATKINSON

ECR

Delegations

S

C M M M M S S

V

S

S

C S S

V

S

M

S V

M S

S

M

M

M M M M M M M S S S

M

S

S

(continued)

S

TERR LIBE DEVE SEDE DROI AFET DMAG DMAS DMED D-TR D-IL DPAL

Committees

Table 11.2  UK-MEPs in MENA-related committees (as of 31 July 2018)

272  J. C. VÖLKEL

Jean LAMBERT Margot PARKER John PROCTER Siôn SIMON Mary Honeyballb Keith Taylor Alex Mayer Timothy Kirkhope Afzal Khan Richard Howitt

Delegations

M

S S S S

M M

S M S

S S

TERR LIBE DEVE SEDE DROI AFET DMAG DMAS DMED D-TR D-IL DPAL

Committees

Bold UK-MEPs are involved in at least two committees or delegations (or, as is the case with Linda McAvan, hold the chair in one committee); italic MEPs left the EP during the 8th legislative term) a James Carver left UKIP and EFDD on 27 May 2018 and works as independent MEP since b Mary Honeyball also served as the only UK member in the Parliamentary Assembly of the Union for the Mediterranean (PA-UfM)

Greens EFDD ECR S&D S&D Greens S&D ECR S&D S&D

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J. C. VÖLKEL

not question the EU per se, then political differences were brought into the discussions. As shown, this has been particularly the case regarding the long-burning question of Turkey’s EU accession and, during EP8, the high number of refugees from Syria and elsewhere coming to Europe, connected with debates about appropriate border control measures. Pro-­ Brexit MEPs used both issues to show that the UK is better off without the EU. 3.1  Anti-EU “Public Orators”: Defaming the EU Whatever the Topic While Brack’s (2015) identified “absentees” do not play a role in the following analysis, due to their lack of relevant oral or written contributions to the EP’s debates, UKIP’s “public orators” have been even more important, due to their outspoken rhetoric on many MENA-related topics. The pattern of argument they typically used consisted of a short political evaluation of a certain problem, which was then immediately followed by a hint that UKIP would reject the EU as such, and therefore also vote against any EU action on the respective matter. UKIP’s anti-EU discourse (often combined with harsh criticism of the UK government) was largely built on Turkey’s looming membership. Nigel Farage found such a step mad. It is the most dangerous decision the European Union has yet taken. I am sure the British Prime Minister will be delighted. He has campaigned for this since 2005. To me, without any of the other debates, if there was one single reason why Britain should in this referendum vote to leave the European Union, it is the folly of political integration with Turkey. It is not only stupid: it is damned dangerous. (B02/12/2015)2

Similarly, Raymond Finch stated “the fact that you consider yourselves advocates for human rights across the world but support the principle that a Turkey, led by Mr Erdoğan, can become members of your club, smacks of hypocrisy” (S22/11/2016), and attested in the best UKIP terms that “the cowardly, self-delusionary posturing of the EU towards Turkey is an utter disaster, and the accession process must end soon” (S13/09/2016). 2  References to MEP speeches consist of the date (dd/mm/year), preceded by S for Strasbourg or B for Brussels, depending on the respective location. Three dots … indicate own omissions.

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Gerard Batten showed one of the perceived consequences of uncontrolled immigration from Turkey and other Islamic countries, namely, rising antisemitism within the EU. While he admitted that “[a]ll Muslims are not fundamentalists and terrorists” (S15/03/2017), he alleged that “studies show that European Muslims are 10 times more likely to hold very unfavourable views about Jews than non-Muslims” (B31/05/2017). Ergo, “importing millions more people from Islamic countries” (S24/11/2015) posed a direct risk to the life of ordinary Europeans, as it “is nothing short of playing Russian roulette with the lives of our citizens” (S14/12/2015). Also in other Mediterranean issues, UKIP representatives usually used their talking time for the combination of their short political assessment of the issue at stake, followed by continuous EU criticism. In a debate about the proposed Africa Trust Fund, meant to help reducing emigration from Africa, Gerard Batten, for instance, stated, first, that “the last thing that we should do is give money to … irredeemably corrupt leaders and governments” (S25/11/2015), and that the fund, second, “calls on Member States to contribute more money to African EU projects and wants to influence the day-to-day running of African governments. UKIP does not support increased EU influence” (S13/09/2016). Similarly, with regard to Palestine, he stipulated that UKIP supports international and regionally led initiatives to find a viable solution to the Israel-Palestine conflict as long as the sovereignty and integrity of Israel is maintained. However, we do not support any foreignpolicy role for the European Union, or the two Common Security and Defence Policy missions in the region. (Written explanation of vote, 18/05/2017)

Raymond Finch, when criticising the construction of a “luxurious presidential palace near Ramallah at a cost of GBP 8 million” (written question to the Commission, 16/03/2016), asked how the Commission intended to make sure that no EU money was used for this project, and challenged the Commission as the biggest funder of the UN Relief and Works Agency (UNRWA) in Palestine after reports had been launched that “at least ten different teachers from … UNRWA are using social media to incite Palestinian knife attacks against Israeli Jews, describing them as ‘apes and pigs’, with one calling on Facebook to ‘stab Zionist dogs’” (written question to the Commission, 08/12/2015).

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Nigel Farage used the ongoing state collapse in Libya for a comprehensive critique of the EU’s and her member states’ prior Mediterranean policies: [F]our years ago I stood here and said that bombing Libya would be a huge mistake, but of course the UK Parliament and this Parliament were desperate. There was a clamour to go to war. So now we have a failed state of Libya, which is now a conduit being used for criminal trafficking gangs trying to bring people to Europe. (S29/04/2015)

He connected Europe’s prior involvement in MENA countries with their consequent collapse: If you look at Afghanistan, if you look at Iraq, if you look at Libya, and if you look at the attempt to back the rebels in Syria – many of whom have now morphed into ISIS – you will see that our recent foreign military interventions have made things worse, not better. (S11/03/2015)

Raymond Finch drew the conclusion “that rather than dilute our sovereignty further by joining up with the doomed-to-fail EU mission, the UK Government instead learn from its mistakes and stop rushing in to remove leaders without considering the consequences” (S03/02/2016). Another prime example of UKIP-MEPs’ rhetoric strategy showed Gerard Batten in a debate about Saudi Arabia’s and Iran’s involvement in the Yemeni crisis; after joining other MEPs in expressing his concerns over both countries’ military engagement, he reiterated that UKIP by principle “cannot support the use of EU mechanisms to address the issue” (S04/02/2016, in writing), later concluding that “we are critical of arms sales to Saudi Arabia, this should always remain a matter for the British Government and not the Commission” (written explanation of vote, 15/06/2017). 3.2  EU-Sceptical “Pragmatists” and EU-Supportive “Participants”: Struggling About Policies Those UK-MEPs that did not fundamentally negate an EU role in the Mediterranean were to some extent affected by the UK’s distinctive history as an influential former colonial power in the region. UK-triggered

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initiatives during and after World War I, like the McMahon-Hussein Correspondence (1915–1916), the Sykes-Picot Agreement (1916), the Balfour Declaration (1917) and the Treaty of San Remo (1920), which are all seen as major roots of today’s regional instabilities (Fawcett 2017), were largely commemorated on the occasion of their 100th anniversaries during EP8, and sometimes referred to by UK-MEPs. Such UK legacies relate particularly to the Israel/Palestine conflict. Alyn Smith (SNP), who spent parts of his childhood in Saudi Arabia, linked the conflict back to his own Scottish identity: My own country, Scotland – and indeed the UK – has a bounden moral duty of obligation to the peoples of this region. … [In] 1917, Balfour, a Scotsman, contemplated two states in the Balfour Declaration. The UK’s own White Paper of 1939 read ‘the objective of His Majesty’s Government is the establishment within 10 years of an independent Palestine State’. In Scotland today we support recognition, government and parliament, alongside many other countries. (S26/11/2014; own addition)

In particular, leftist UK-MEPs from Scotland and Northern Ireland (hence those who did not belong to the governing Conservative party) relatively  often referred in their argumentation to their specific origin. Pro-EU Alyn Smith, for instance, recognised in a debate regarding the Iranian nuclear agreement (Joint Comprehensive Plan of Action, JCPOA) the notable diplomatic achievement of the EU: “[T]his was the EU acting as the EU for perhaps the first time, where we played a significant central role that nobody else could have done in bringing this deal home” (S09/09/2015); but he also recalled that “a clear majority of the people of Scotland are very strongly in favour of the abolition of nuclear weapons … so it is all the more of a democratic outrage that Scotland hosts the entire UK nuclear arsenal” (S09/09/2015)—note how he speaks for the “people of Scotland”, not the British citizens in general! Smith also based his plea for open European borders vis-à-vis refugees on his Scottish and European identity: This is our chance to show the world that the EU is committed to the principles of liberty, democracy and respect for human rights – the freedoms we all hold dear. While the UK Government struggles to show leadership, Scotland stands ready to offer sanctuary to refugees. (S09/09/2015)

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And also his request “that counter-terrorism measures may never be abused to repress legitimate dissent” (S11/03/2015) can be read against his defence of the Scottish’s right to express dissent with the UK government. He criticised the UK government for selling weapons to Saudi Arabia worth GBP 5.6 billion, giving “the impression that diplomatic relations and arms sales trump the lives of Yemen’s children” (S19/01/2016), and demanded that “we must … scrutinise the Saudi-led coalition, and we must scrutinise the actions of it, not least because many of our Member State governments – not least the United Kingdom – are assisting in every way possible, short of actual military intervention” (S08/07/2015). Her own biography and origin has been a dominating driver also for Martina Anderson, Sinn Féin member from Northern Ireland. She repeatedly accused the UK government of breaching human rights in her home region, such as in a debate about the “Protection of Victims of Terrorism”, when she reminded that [t]he recent conflict in Ireland saw the British state apparatus kill with impunity. … Reports from Iraq and Libya – and now Syria – demand that this Parliament end the double standards and condemn all acts of terrorism. As a Member State and signatory of the European Convention of Human Rights, the British Government has failed to deal with its Article 2 obligation: the right to life. (S14/12/2015)

Martina Anderson approached many Mediterranean issues through her specific Northern Irish lens. Discussing the conflict about Cyprus, she identified “many similarities between Cyprus and Ireland: both are island nations that suffer from the legacy of partition, foreign occupation and conflict. Therefore, truth and reconciliation is as important to Cyprus as it is in Ireland” (S12/02/2015). When demanding that Turkey should acknowledge the Armenian genocide of 1915, Anderson drew her position from “[d]ealing with the past and truth recovery are vital to any meaningful reconciliation process, a fact we in Sinn Féin are keenly aware of given our own post-conflict situation in Ireland” (B15/04/2015). Rejecting any EU military involvement, she condemned that “Westminster is voting tonight on whether to drop more bombs in Syria. That is neither the answer nor the solution” (B02/12/2015). In that spirit, she claimed in a debate about appropriate counterterrorism measures that “increased repression is more likely to fuel further acts

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of violence than to reduce them. And limiting civil rights and freedom of expression will not make society safer” (S15/02/2017). For this, she condemned the EU for still considering Egypt a “strategic partner for trade and security” (S15/01/2015), and rejected any cooperation with authoritarian regimes in order to bring down the numbers of refugees: “Fortress Europe … is complicit in serious human rights abuse” (S16/12/2015). The Northern Irish experience made Anderson an enthusiastic supporter of the Palestinians. In a debate about West Bank displacement and demolitions, she addressed the High Representative directly: “The Palestinian people need your help, Ms Mogherini, they need more than words: they need action, and they need it now” (S10/05/2016). Anderson criticised double standards in EU policies, as Russia got sanctioned after its annexation of Eastern Ukraine, while Israel was left “with impunity for more than two decades. When it comes to diplomacy, it certainly seems that the EU saves the carrot for Israel and the stick for Russia” (S10/06/2015). Therefore, Israel must be put under actual pressure, not just words. EU-Israeli relations must be made conditional on respect for, and compliance with, international law. The EU must suspend the EU-Israeli Association Agreement until Israel dismantles the illegal settlements, ends the occupation of Palestine and begins a genuine peace process for a lasting peace and a sustainable two-­ state solution. (S22/11/2016)

But instead, “[f]or months in this Chamber I have heard MEP after MEP defending human rights and international law. Fine words, yet some MEPs act as spectators too, or worse, defenders of unacceptable breaches of such international and humanitarian law” (S10/02/2015). Due to this, “the EU stands accused, unfortunately, of being complicit in crimes against humanity” (S18/09/2014). Scottish Labour MEP David Martin, longest-serving UK-MEP since 1984, did not seem to be driven primarily by his Scottish identity, except for a statement he made when speaking about Brexit, namely that “[t]he overwhelming feeling in Scotland is that we are being dragged out of the European Union against our will” (S15/04/2017). Otherwise, he rather followed the official Labour positions, calling upon “the EU to use its leverage with key regional actors, especially in the Middle East, to play a greater role in conflict resolution” (S14/12/2016, in writing). For instance, the EU should be more generous with Jordan, which “is facing

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a very serious financial and economic crisis brought on by the instability in the region and the refugee flows coming from that” (S23/11/2016), and also with Lebanon: Jordan and Lebanon’s handling of the refugee crisis should put us in Europe to shame. Our inability to cope with one million refugees really should make us worry and be humbled compared to what the Lebanese and the Jordanians have been able to do. (S10/05/2016)

More economic support would also be necessary for Tunisia, for which “we have to open up our markets more than we demand them opening up their markets because of the precarious economic situation in that country” (S06/06/2016). After the July 2013 coup, he reminded “the Egyptian Government that the long-term success of Egypt and its people depends on the protection of universal human rights and on the establishment and anchoring of democratic and transparent institutions” (S15/01/2015). On Israel/Palestine, David Martin defended the two-state solution as the only possible scenario, yet demanded more pressure by the EU on Israel to stop attacking Palestinians in Gaza and the West Bank: [U]ntil Israel shows it is clearly determined to move down a path of peace, we have to suspend that Association Agreement. … Until Israel gets the message that the EU is prepared to act it will not listen to our words. (S17/09/2014)

Overall, UK-MEPs agreed on the two-state solution as the only viable option, yet disagreed about whom to blame for the hitherto nonattainment. While leftist UK-MEPs primarily criticised Israel’s human rights abuses against the Palestinians, Conservatives like Geoffrey van Orden lauded Israel as “the one example in the region of exceptional stability, democracy, freedom of religion and economic vitality” (S14/02/2017). As an EU-sceptical MEP, he combined his criticism of Palestine with a critique of the EU Commission: We continue to pour money into the Palestinian areas with little input on the political situation. … I do not want to reduce this whole tragic and serious matter to one of pounds, shillings and pence but it is an area that is very important and I hope the next Commission will exercise proper control over

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EU money and make sure that it is well spent and does not help to fund terrorism. (S16/07/2014)

While acknowledging the evolving humanitarian disaster, when debating the fate of Syrian refugees, Geoffrey van Orden kept the well-being of Europe in priority: Despite [o]ver nine million people hav[ing] left their homes in Syria … [t]he first priority of EU policy should be the security and cohesion of our countries and the rights of our own citizens … We must help people fleeing persecution, but above all we must protect our democracies. (S08/09/2015)

To achieve this, in charge of security must remain “our democratically-­ elected governments – possibly assisted in limited areas by the European Union” (B28/01/2015). In a similar manner, Charles Tannock evaluated certain Mediterranean issues from a distinctively European perspective, especially when it came to security-related questions: “Allowing Libya to fall into chaos will result in it becoming a failed state and a safe haven for jihadi terrorism very close to our own borders” (S11/03/2015). To prevent this, European states— including the UK—should also consider military actions “as we were active in Libya when the Gaddafi regime fell” (S03/02/2016). Despite this neorealist approach, Charles Tannock has certainly been an atypical ECR member, due to his fervent EU support. After the Brexit decision was taken, he obtained Irish citizenship in 2017, famously stating, “I am quite ashamed to be British in many ways” (Hickey 2017). Tannock, who also chaired the EP’s “Friends of Kurdistan” group, was one of ECR’s most outspoken detractors of Turkey for non-aligning with EU expectations: “It is time that EU leaders called on Turkey to live up to its NATO and EU candidate commitments” (S20/01/2016). While initially he found Turkey as a NATO member and EU candidate country “too important and too close to Europe to simply ignore” (S05/07/2017), he later became more outspoken when claiming that Turkey has been moving in the wrong direction for an EU candidate country for some time under President Erdoğan and, sadly, the war in Syria and the July 2016 coup attempt have provided ample opportunity for a more openly hostile approach by the AK Parti to Western democratic norms. We therefore see today a Turkey that openly violates civil and human rights at

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home and pursues a foreign policy objective directly opposed to the aims of its EU and NATO allies abroad. (S06/02/2018)

Given the increasingly authoritarian tendencies of Turkish President Recep Tayyip Erdoğan, he repeatedly criticised that his Justice and Development Party (Adalet ve Kalkınma Partisi, AKP) had become a member of ECR’s overarching “Alliance of Conservatives and Reformists in Europe” (ACRE) in 2013 (Yinanç 2013), and officially called upon “the Conservative Party leadership … to expel the AK Party as soon as possible” (S05/07/2017). Indeed, ECR MEPs found themselves in a specific dilemma since AKP had joined ACRE—balancing between their official (though increasingly sceptical) pro-Turkey course and the rejection of Erdoğan’s authoritarian leadership. Amjad Bashir recognised that “Turkey plays a crucial role geopolitically in the region and we need its help to tackle systematic issues which are of enormous concern to everyone” (S13/04/2016), and alerted that “constantly boxing Turkey out has frustrated Turkish moderates and fostered the isolationist sentiment the many in this House are so quick to condemn” (S20/05/2015). Therefore, “[w]hilst we must be careful not to give Turkey a free pass, enhanced cooperation in critical areas, from the fight against terrorism to the migrant crisis, should be seen as an opportunity to breathe life into our relationship” (S13/04/2016). Similarly, Geoffrey van Orden, substitute member of the EP’s Delegation for Turkey, warned that if, over many years, we treated Turkey with disrespect and disdain, we should not now be surprised if she should give up her Western orientation … It would be a gross strategic error for the EU itself to slam the door in the face of Turkey, a country of crucial geo-strategic importance, a staunch NATO ally for 64 years, a crucial partner in combating jihadists, and with so many positive links to Western Europe. (S22/11/2016)

As a concrete example, he criticised that “urging Turkey to recognise the ‘Armenian genocide’, is deliberately and unnecessarily provocative and could undermine EU-Turkey relations at a time when we need to be encouraging Turkey’s democratic and liberal instincts” (S10/06/2015). Also, regarding the conflict with Cyprus, where the UK still holds strategically important oversea territories, he found it not helpful “to place all the blame on Turkey and the Turkish Cypriots” (B12/11/2014).

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The question of Turkey being the EU’s friend or foe clearly got a downward turn with the attempted coup in June 2016, that is, roughly in the middle of EP8. Gürkan (2018, p. 11), after interviews with MEPs in 2015 and 2016, was still able to identify “that the majority of MEPs are in favour of Turkey’s accession”; this positive attitude palpably deteriorated following the excessive police violence and legal punishments against government’s opponents apparently in retaliation for the coup. Siôn Simon called “the EU to freeze accession talks with Turkey in response to Ankara’s recent crackdown on political opposition and freedom of press” (S24/11/2016), and Labour MEPs “voted in favour of suspending accession negotiations with Turkey if it goes ahead with constitutional reforms that threaten the rule of law and separation of powers” (written explanation of vote, 06/07/2017). Wajid Khan renewed Labour’s demand that “Turkey must meet its human rights obligations and guarantee humanitarian assistance to all” (S06/02/2018). However, Linda McAvan admitted that in light of the refugee crisis, “we have to talk to Turkey, because without Turkey we are not going to get a solution to the problem” (S06/10/2015), and Alyn Smith argued that “[t]he EU has very close ties with Turkey, but our cooperation and friendship shouldn’t stop us from openly criticising our partners when such criticism is due” (S20/01/2016). The assessment of the regime of President Abdel Fattah al-Sisi showed the same dilemma: How to deal with authoritarian leaders that do not reflect European values but reign important countries in the EU’s neighbourhood? Charles Tannock, despite seeing Egypt as “a strategic partner of the European Union” (S14/12/2016), later admitted that “[t]he continuing use of military courts for trying civilians, the reported use of torture to obtain confessions and the increasing use of capital punishment are all causes for grave concern” (S08/02/2018). Amjad Bashir, one of four British Sunni Muslims within ECR, meanwhile, considered Egypt since the military coup against former Islamist President Mohamed Morsi in July 2013 as “one of the worst countries in terms of free society” which “lacks any religious liberty” (S15/01/2015). He sarcastically mentioned that “[t]he role of the army is to defend the nation, not to kill their fellow citizens” (S17/07/2014). Debates about the right approach towards Iran and Saudi Arabia were often brought up in the framework of JCPOA and the wars in Syria and Yemen. Siôn Simon stressed that

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we would like to see Saudi Arabia as a partner and help international efforts to solve the conflicts in Yemen, Syria and elsewhere, but … as long as Saudi Arabia continues to have this level of disregard for the Yemeni people, it should not receive our support. (B25/02/2016)

On the other side, Charles Tannock confessed that Iran’s “support for terrorist groups in the Middle East is well documented and must be thoroughly condemned. Its continued engagement in a regional, sectarian battle for supremacy with Saudi Arabia creates instability and should be strongly discouraged” (S12/12/2017). Clearly, ECR members, traditionally close to Israel, remained more hesitant regarding a rapprochement with Iran. They tended to evaluate Saudi Arabia more positively, despite its insufficient human rights record and involvement in the Yemen war (VoteWatch Europe 2017). ECR, along with EPP, refused to support an EP resolution for a weapon embargo against the Wahhabi kingdom in February 2016 “in an attempt to protect the EU’s relations with Saudi Arabia” (ibid.). Geoffrey van Orden clarified: “[A] ban on arms exports to Saudi Arabia? No, I don’t support that” (S12/09/2017). This notwithstanding, the EU as a “normative power” remained a strong factor for many UK-MEPs also in Mediterranean affairs, though mainly for the leftists. Siôn Simon claimed that “[h]uman rights should be upheld throughout the world, with the EU setting the standard” (S09/07/2015), supported by Claude Moraes, who demanded that “Europe must … promote its fundamental values” (S19/01/2016). After terrorists had attacked the Bardo Museum in Tunis and a beach in Sousse in March and June 2015, respectively, he called for stronger security cooperation on the EU level, yet within the limits of the law: “In fighting violent extremism and terrorism we should use our existing tools effectively before creating new tools, and in doing so we should not undermine the very fundamental values that terrorists wish to violate” (S07/07/2015). This should be done through an updation of the Schengen Information System, an extension of the European police record index system and the establishment of permanent joint investigation teams, as well as the realisation of a passenger name record database. 3.3  EU Migration Policies as Preeminent Litmus Test for UK-MEPs’ “Europeanness” The 2015 migration peak was probably the policy field where pro- and anti-EU UK-MEPs most clearly differed. Those who basically conceded

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an “EU actorness” were willing to exchange political arguments about the right answer to the refugee challenge without giving up fundamental principles of the EU, such as the control-free travel within the Schengen area; the others, meanwhile, demanded to give sovereignty over borders back to the nation states, implying the abolishment of the Schengen system. One of the controversially discussed topics was the renewed idea of increased border cooperation with external governments. The EU’s “Turkey Statement” (2016) and the “EU Emergency Trust Fund for Africa” (2015) showed southern governments that high sums were to earn only if they sufficiently sealed their borders towards the European continent (Völkel 2017). Claude Moraes, who had worked many years with immigrants in the UK before becoming MEP, found it “disappointing … that Member States (including the UK Government) have not matched the EU’s efforts in contributing to the trust fund” (S13/09/2016). He demanded a revision of the Dublin III agreement, “to ensure that Member States meet their responsibilities” (S15/11/2017), and regretted “that we do not have implementation of our Common Asylum System” (S25/11/2014)— an EU cooperation the UK had always opted out from. Also, Martina Anderson stressed that “[w]e need EU governments to increase the number of resettlement places, humanitarian admissions and visas for people in need of international protection” (S20/05/2015), and Linda McAvan warned that “[w]e have got to be very careful not to … use our development policy as a kind of carrot and stick, introducing a new kind of creeping conditionality into it, linked to returns and border controls” (S13/09/2016). Nigel Farage, meanwhile, fear-mongered that the Turkey Statement promised “visa-free access for 75 million Turks from June of this year. In theory, they can stay for 90 days. In practice, many will disappear or, of course, claim family reunion. The numbers will go sharply up” (S09/03/2016). While Mary Honeyball defended family reunion of refugees “as essential human right” (S08/03/2016), Gerard Batten speculated—after many Turks in Europe had supported Erdoğan in the April 2017 referendum—that “[p]erhaps those Turkish voters living in Europe might vote for a form of Islamic authoritarianism in Europe, given the chance” (B26/04/2017). He surmised that “[t]he EU Schengen Area and open borders policy has helped to create an immigration and asylum racket: get the children in first and then the families can follow” (B01/03/2017).

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Geoffrey van Orden supported the argument that “[t]he Schengen open borders system has encouraged entry” (S08/09/2015). David Martin, however, did “not believe the main problem with Schengen is the rules but the failure of political will in a number of Member States” (S02/02/2016). But Gerard Batten opined that returning “border controls to nation states would discourage and hamper the movement of criminals, illegal migrants and terrorists” (S07/07/2015). In his understanding, the UK would be negatively affected by the Schengen system even after Britain had left the EU: When Britain leaves the European Union – when that happy day arrives – then we will actually be a third country. Biometric data on our citizens will be gathered and will be shared with the EU’s Member States and its crime agencies. This biometric data can be accessed by all EU countries, as well as by those crime agencies. Some of those countries are deeply and institutionally corrupt and untrustworthy. … UKIP is not opposed to countries having biometric data systems, but they should be under the control of national governments, and they should only be shared with foreign states where we can be reasonably assured that that information will not be misused. We certainly cannot say that about this system. (S25/10/2017)

Nigel Farage, who insinuated that “the idealised Schengen area lead [sic] to the free movement of Kalashnikovs” (B02/12/2015), did not shy away from abusing terrorist propaganda as an argument against refugee reception: “When ISIS say they want to flood our continent with half a million Islamic extremists, they mean it … we face a direct threat to our civilisation if we allow large numbers of people from that war-torn region into Europe” (S29/04/2015). This stood in stark contrast to Alyn Smith, who self-critically assessed that, [f]aced with the most dangerous border crossing in the world, Europe is deciding to make that journey even more dangerous – betting that, if we make it hopeless enough, no one will attempt to cross. This ‘cruel to be kind’ approach means politicians get to look tough on ‘illegal’ immigration for political benefit back home, but the transformation of the EU into a fortress has created the conditions that have led to deaths along its borders. (S25/11/2014)

In sum, a clear difference between anti-EU and pro-EU UK-MEPs became visible: while the former focused on preserving the integrity of the

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UK society, untouched from unwanted immigration, the latter rather focused on the refugees’ integrity, hence the well-being of individual persons.

4   Conclusions During its 8th legislative term, the EP has become an important scene for the drama that arose around the Brexit referendum in June 2016. Being the place where UKIP deputies found their most eminent stage for spreading their anti-EU ideology, Mediterranean affairs gained particular prominence for the actual dispute about staying or leaving the EU. The perception of refugees and immigrants from Muslim-dominated countries as threat for Europe turned the questions of Turkey’s EU membership and how to deal with refugees from Syria and other places into questions about the EU’s very essentials: how much competences should it have, and should core achievements of the European integration process such as the Schengen agreement be kept alive? Brack’s classification of Eurosceptical MEPs into “absentees”, “public orators”, “pragmatists” and “participants” has proven particularly useful for analysing UK-MEPs’ oral and written contributions to these debates: • Brexiters (here mainly understood as “public orators”) reject any role for the EU in Mediterranean affairs for fundamental reasons. EFDD members’ mantra: it is none of the EU’s business, was their typical argumentation line. They also criticised David Cameron for blindly following the EU. • EU-sceptical UK-MEPs (most often acting as “pragmatists”) used the debates for occasional criticism of (certain aspects of) the EU too, but in a less infringing rhetoric. Particularly the debate on Turkey revealed one underlying intention of most ECR members, namely to weaken the EU through the inclusion of Turkey, which eventually would lead to a merely economic European cooperation. Exemplarily, Geoffrey van Orden’s request not to keep Turkey at a distance for not fulfilling political criteria, but to offer vibrant economic relations with a pruned EU: I have to say that many – not just in my own country but across Europe – would like to see a fundamentally different sort of European Union: a less tightly knit community of sovereign nations, with overlapping circles of engagement, an end to ever closer union, and a primary focus on making a

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success of the single market. I would suggest that this is the sort of European Union that would be far more hospitable to Turkey. (S20/05/2015)

• “Participants”, that is, EU-supportive UK-MEPs, finally used MENA debates to exchange their ideas about appropriate answers to the multiple challenges in the region, yet without questioning the overall EU system. As a convinced EU supporter, Alyn Smith exemplarily wished to see the EU “play a much greater role in brokering a political solution within Syria” (S30/04/2015). As it looks for now, UK-MEPs will leave the EP in 2019. This, on the one hand, will lower a distinctive opposition voice and take away a “balancing faction” between the French and German MEPs (personal interview with a pro-EU UK-MEP, Brussels, 25 April 2018). However, as UK-MEPs belonged to the least influential ones in the past, with particularly EFDD and ECR MEPs very often belonging to the “losing side” of parliament, the factual impact on the EP’s decision-making might be limited; no wonder if EFDD would completely disappear (or merge with ENF) and ECR, then diminished, would be more dominated by Polish Prawo i Sprawiedliwośc ́ (Law and Justice, PiS) MEPs. S&D will certainly struggle to fill the 20 Labour seats with deputies from other countries, given the current weakness of Socialists in almost all EU member states. Meanwhile, EPP’s current two UK members will hardly make a difference. Brexit notwithstanding, current predictions expect a sharp shift to the populist ends of the political spectrum in many of the remaining EU27, seeing that EP9 will host even more populist MEPs than did EP8 (de la Baume 2018). This could, on the one hand, complicate decision-making within the EP, and make debates and discourses more arduous. On the other hand, a stronger presence of EU-sceptical populists within the EP could also lead to an even closer cooperation among those who support the EU and want to develop it further—this could become the chance for EPP, S&D and ALDE to renew their overall agreement towards core EU plans and achievements. Yet, either way, the future development of the EU will increasingly be co-determined by populist deputies from the left and the right—never mind they then will have any but a British passport. Acknowledgement  This work was supported by a Marie Skłodowska-Curie Individual Fellowship of the European Commission [grant number 706113].

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References Applebaum, A. (2017). Britain After Brexit: A Transformed Political Landscape. Journal of Democracy, 28(1), 53–58. Brack, N. (2015). The Roles of Eurosceptic Members of the European Parliament and Their Implications for the EU. International Political Science Review, 36(3), 337–350. de la Baume, M. (2018, June 4). Populist Plan for 2019 Election Puts EU in Crosshairs. Politico. https://www.politico.eu/article/populist-plan-for2019-election-puts-eu-in-cross-hairs/ (9 August 2018). Fawcett, L. (2017). States and Sovereignty in the Middle East: Myths and Realities. International Affairs, 93(4), 937–948. Gürkan, S. (2018). The Role of the European Parliament in Turkey-EU Relations: A Troublemaker or a Useful Normative Actor? Southeast European and Black Sea Studies. https://doi.org/10.1080/14683857.2018.1431515. Hickey, S. (2017, September 4). Conservative MEP Among New Recipients of Irish Passport. The Irish Times. https://www.irishtimes.com/news/world/ uk/conservative-mep-among-new-recipients-of-irish-passport-1.3208089 (29 March 2018). Hix, S. (2015a, December 17). British MEPs Lose Most Often in the European Parliament. LSE Blog. http://blogs.lse.ac.uk/europpblog/2015/12/17/ukinfluence-in-europe-series-british-meps-lose-most-often-in-the-european-parliament/ (1 August 2018). Hix, S. (2015b, December 17). How Often Do UK MEPs Get Their Way? The Guardian. https://www.theguardian.com/news/datablog/2015/dec/17/ how-often-do-uk-meps-get-their-way (20 March 2018). Hix, S. (2016, January 20). The Policy Successes (and failures) of British MEPs. LSE Blog. http://blogs.lse.ac.uk/politicsandpolicy/the-policy-successes-andfailures-of-british-meps/ (1 August 2018). Hix, S. (2018). Brexit: Where Is the EU–UK Relationship Heading? Journal of Common Market Studies, online first, 1–17. https://doi.org/10.1111/ jcms.12766. Hix, S., & Benedetto, G. (2016a, February 4). Do UK MEPs Get Key Positions of Power in Europe? The Guardian. https://www.theguardian.com/news/ datablog/2016/feb/04/do-uk-meps-get-key-positions-of-power-in-europe (21 March 2018). Hix, S, & Benedetto, G. (2016b, February 5). Do British MEPs Win Key Positions of Power in the European Parliament? LSE Blog. http://blogs.lse.ac.uk/europpblog/2016/02/05/uk-influence-series-do-british-meps-win-key-positionsof-power-in-the-european-parliament/ (1 August 2018). Hix, S., Hagemann, S., & Frantescu, D. (2016, April 19). Would Brexit Matter? The UK’s Voting Record in the Council and the European Parliament. VoteWatch

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Europe. http://60811b39eee4e42e277a-72b421883bb5b133f34e068afdd7cb11.r29.cf3.rackcdn.com/2016/04/VoteWatch-Report-2016_digital.pdf (2 August 2018). Hix, S., Noury, A., & Roland, G. (2018). The Changing Battle Lines in the European Parliament. In N. F. Campos & J.-E. Sturm (Eds.), Bretton Woods, Brussels, and Beyond: Redesigning the Institutions of Europe (pp.  51–60). London: Centre for Economic Policy Research. Ker-Lindsay, J.  (2018). Turkey’s EU Accession as a Factor in the 2016 Brexit Referendum. Turkish Studies, 19(1), 1–22. Lynch, P., & Whitaker, R. (2016). Continuing Fault Lines and New Threats: European Integration and the Rise of UKIP. In G. Peele & J. Francis (Eds.), David Cameron and Conservative Renewal: The Limits of Modernization? (pp. 121–138). Manchester: Manchester University Press. McDonnell, D., & Werner, A. (2018). Respectable Radicals: Why Some Radical Right Parties in the European Parliament Forsake Policy Congruence. Journal of European Public Policy, 25(5), 747–763. Milevska, T. (2013, December 21). UK No Longer Advocates for EU Enlargement. Euractiv. https://www.euractiv.com/section/enlargement/news/uk-no-longer-advocates-for-eu-enlargement/ (18 March 2018). Norris, P. (2018, July). Understanding Brexit: Cultural Resentment Versus Economic Grievances. Harvard Kennedy School Faculty Research Working Paper 18–021. https://research.hks.harvard.edu/publications/getFile.aspx?Id=1686&_ ga=2.129635852.1839846068.1533216647-859360323.1533216647 (2 August 2018). Shapiro, J. (2016, June 20). British MP Jo Cox’s Murder Brought Civility to the Brexit Debate. It Won’t Last. Vox. https://www.vox.com/2016/6/20/ 11963894/british-mp-jo-cox-death (18 March 2018). Stewart, H., & Mason, R. (2016, June 16). Nigel Farage’s Anti-Migrant Poster Reported to Police. The Guardian. https://www.theguardian.com/politics/2016/jun/16/nigel-farage-defends-ukip-breaking-point-poster-queueof-migrants Swinford, S. (2016, September 27). Boris Johnson Says Britain Will Now Help Turkey Join EU Despite Using Prospect to Help Win Referendum. The Telegraph. https://www.telegraph.co.uk/news/2016/09/27/boris-johnsonsays-britain-will-now-help-turkey-join-eu-despite/ (18 March 2018). Taggart, P., & Szczerbiak, A. (2018). Putting Brexit Into Perspective: The Effect of the Eurozone and Migration Crises and Brexit on Euroscepticism in European States. Journal of European Public Policy, 25(8), 1194–1214. Völkel, J. C. (2017). When Interior Ministers Play Diplomats: Fatal Ambiguities in Europe’s Securitised Migration Policy. In A.  Jünemann, N.  Fromm, & N. Scherer (Eds.), Fortress Europe? Challenges and Failures of Migration and Asylum Policies (pp. 83–103). Wiesbaden: Springer.

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VoteWatch Europe. (2016, September 12). Top 10 Most Influential UK’s MEPs (September 2016). http://www.votewatch.eu/blog/top-10-most-influentialuks-meps-september-2016/ (13 May 2018). VoteWatch Europe. (2017, July 4). This Is Why the EU Lacks a Position on the Middle East Crisis. http://www.votewatch.eu/blog/this-is-why-the-eu-lacksa-position-on-the-middle-east-crises/ (27 March 2018). Whitaker, R., Hix, S., & Zapryanova, G. (2017a). Understanding Members of the European Parliament: Four Waves of the European Parliament Research Group MEP Survey. European Union Politics, 18(3), 491–506. Whitaker, R., Hix, S., & Dreyer, P. (2017b, February 22). MEPs’ Attitudes in the 2014–19 European Parliament: Key Findings from the European Parliament Research Group’s Survey. MEP Survey Data. https://mepsurvey.eu/uncategorised/meps-attitudes-in-the-2014-19-european-parliament-key-findings-from-the-european-parliament-research-groups-survey/#.W2IF7i2B3_Q (1 August 2018). Yinanç, B. (2013, November 19). By Abandoning Conservatives AKP Helps Anti-­ Turkey Bloc in EU. Hürriyet Daily News. http://www.hurriyetdailynews. com/opinion/barcin-yinanc/by-abandoning-conservatives-akp-helps-antiturkey-bloc-in-eu-58139 (27 March 2018).

CHAPTER 12

Facilitating the Participation of EU Citizens in the Brexit Negotiation Process Natassa Athanasiadou

1   Introduction: What Role for Citizens? The negotiations on the withdrawal of the United Kingdom (UK) from the European Union (EU) under Article 50 of the Treaty on the European Union (TEU) constitute an unprecedented situation (see for the procedure Craig 2017, p. 50). The main particularity of Brexit lies in the fact that the negotiation process is not about designing new policies or building new international relations but managing the disentanglement of the UK from the EU. Given this divorcing character of the process, its outcome will necessarily affect established legal situations and acquired rights. Particularly affected will be citizens of other EU Member States residing in the UK as well as UK citizens residing in other EU Member States. As a result, the so-called Brexit negotiations have generated strong public interest from citizens, public authorities and stakeholders across Member States. Against this background, it comes as no surprise that throughout the Brexit negotiations EU citizens and other stakeholders have not merely relied on the established mechanisms of representative democracy, through N. Athanasiadou (*) Faculty of Law, Maastricht University, Maastricht, The Netherlands e-mail: [email protected] © The Author(s) 2019 T. Christiansen, D. Fromage (eds.), Brexit and Democracy, European Administrative Governance, https://doi.org/10.1007/978-3-030-06043-5_12

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the national governments participating in the European Council, the European Parliament (EP) and the national parliaments (see Brusenbauch Meislova 2019, in this volume; Buth et al. 2019, in this volume), but have been seeking and actively using any available means for information and direct participation. This quest for direct participation in the Brexit negotiations appears like a corresponding counterforce, since the UK’s withdrawal decision was triggered through means of direct democracy. The UK referendum brought back to the surface the old question of whether complex and multidimensional issues, such as the EU membership of a country, should be the object of popular votes or they should be primarily addressed through channels of representation (see Mendez and Mendez 2017). Similar questions may be posed as regards the Brexit negotiation process and more specifically whether the general public should be involved in the process or whether only the established representative institutions may guarantee the interests of the EU as a whole. Given the significant future impact of Brexit on citizens’ rights, the EU institutions have acknowledged already at an early stage the need for enhancing the legitimacy of the negotiation process through citizens’ participation. The Council, the institution in charge of issuing negotiating directives and ultimately concluding the withdrawal agreement with the UK on behalf of the EU,1 invited at the beginning of the process the European Commission, which acts as EU negotiator (European Council 2017a), to provide timely and directly accessible information to the public and to reach out to citizens and stakeholders (Council of the EU 2017b). In response to this, the European Commission committed itself to enhanced transparency and stakeholder outreach (European Commission 2017a, b). It is thus evident that in the case of Brexit, representative and participatory democracy intertwine in an unprecedented way. This contribution aims to examine the available mechanisms for citizens and representative associations to scrutinise and participate in the Brexit negotiations at the EU level. Effective citizen scrutiny and participation presuppose first transparency and access to information (Curtin 1991, p.  445). It will therefore be assessed what means were used in order to ensure that the public sphere was informed throughout the process. After having examined the transparency requirements, the contribution will address the ­different institutional forms of EU citizens’ direct participation that are 1

 See Art. 50(2) TEU in conjunction with Art. 218(2) TFEU.

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being applied in the context of the Brexit negotiations. As an overall aim, this chapter will assess the standards which the Brexit negotiations have set, and the shortcomings that remain, with respect to openness, transparency and citizens’ involvement at the EU level.

2   Transparency As Prerequisite of Participation 2.1  General Obligation of Transparency Transparency is a multidimensional concept, which appears in the EU Treaties as a recurring requirement, and is linked with various EU law principles and fundamental rights. Conceptually, transparency and citizen participation constitute the main facets of an “open” governance (Organ 2017, p. 1716). The first Article of the TEU declares in a solemn way that in this ever-closer Union, decisions are taken as openly as possible and as closely as possible to the citizen. In the relevant chapter of the TEU on the democratic principles on which the EU is founded this requirement of openness is reiterated and linked with the right of every citizen to participate in the democratic life of the EU (Art. 10(3) TEU). The contours of openness are drawn through subsequent provisions which set the standards for the functioning of EU institutions and their communication with citizens. More specifically, the institutions shall maintain an open, transparent and regular dialogue with representative associations and civil society (Art. 11(2) TEU). The European Commission, entrusted with the right of legislative initiative, shall carry out broad consultations with parties concerned in order to ensure that the Union’s actions are coherent and transparent (emphasis added) (Art. 11(3) TEU). The Treaty on the Functioning of the European Union (TFEU), which contains more detailed rules on the operation of the EU institutions, bases the concept of “good governance” on transparent procedures, citizen participation and rules enabling access to documents (Art. 15(1) and (3) TFEU). The importance of the possibility of access to documents for the transparent functioning of the EU led to its construction as a fundamental right enshrined in the EU Charter (Art. 42 EU Charter). In its landmark judgment in case Sweden and Turco v Council, the European Court of Justice (ECJ) held that the transparency of the process followed by a public authority for the adoption of a measure, including the possibility of access to documents, contributes to that authority acquiring greater ­legitimacy and to ensuring that the authority is more accountable to citi-

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zens in a democratic system.2 Arguably, transparency should guarantee not only the possibility of access to documents through an application, but also the pro-active duty of the administration to publish in an easily accessible way comprehensive information on its actions (Curtin and Meijer 2006, p. 109). These wide-ranging requirements of primary law are rendered more concrete through the rules of procedure of the EU institutions, as well as internal guidelines and other documents such as communications.3 In particular, as regards the right to access to documents of the EP, Council and Commission, Regulation (EC) No 1049/2001 sets out the conditions for its exercise. To complement this right, various documents are published proactively on the dedicated websites of the EU institutions with a view to implementing the general transparency requirement.4 A further important step towards enhanced transparency has been the introduction of the so-called Transparency Register. Since 2011, the Commission and the EP have been operating a joint, public and voluntary Register of all interest groups and self-employed consultants engaging in activities carried out with the objective of influencing the law-making and policy implementation processes of the EU institutions (European Parliament and European Commission 2011). The aim of the register is to offer citizens a profile of actors interested in influencing the decision-­ making process of the EU.  These organisations register voluntarily and agree to respect a code of conduct established by the EP and Commission jointly. Both the EP and the Commission offer incentives to interest representatives for being registered, which render registration de facto mandatory (Bunea 2018, p.  399). Registration is a precondition for organisations and self-employed individuals whose representatives have been invited to speak at committee hearings of the EP or who seek ­facilitated access to its premises. The European Commission enforces the so-­ called rule of no registration, no meeting with Commissioners,  Case C-39/05 P and C-52/05 P, Sweden and Turco v Council, EU:C:2008:374, para 45.   For example, European Transparency Initiative, Green Paper, COM(2006) 194; Follow-up to the Green Paper “European Transparency Initiative” (Communication), COM(2007) 127; Better Regulation Agenda, COM(2015) 215 and Communication on its completion, COM(2017) 651; Better Regulation Guidelines, SWD(2017) 350. 4  For example, Art. 9 of the Commission Detailed Rules for the Application of Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents, annexed to the Rules of Procedure of the Commission (C(2000) 3614). 2 3

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Members of their Cabinets or Directors-General. These actors are required to publish information on their meetings with interest representatives and more specifically, the date of the meeting, the location, the names of the participants as well as the subject of discussion. A proposal for a mandatory Register was introduced in 2016 by the Commission with the aim of extending the register also to the Council, rendering its character mandatory and reinforcing the existing provisions. No political consensus has so far been reached. Even if this proposal is accepted in the end, shortcomings will remain. The obligation to register meetings with interest representatives, as contained in the proposal, continues to capture only the highest level of the EU institutions’ political actors and senior managers (European Commission 2016, Art. 5), while meetings held between lobbyists and case handlers or middle managers will remain unregistered, although they often play an important role in influencing policy-making. Subsequently, it will be examined how these general transparency requirements were implemented in the case of the Brexit negotiations, after it is shown how the precedent of the negotiations for the Transatlantic Trade and Investment Partnership (TTIP) has paved the way for enhanced transparency in the field of international relations.

3   The TTIP Precedent According to Article 50(2) TEU, the withdrawal agreement between the UK and the EU shall be negotiated in accordance with Article 218(3) TFEU on the basis of the guidelines submitted first by the European Council. Article 218 sets out the procedure for the negotiation of international agreements with third countries, which thus applies mutatis mutandis also in the case of a Member State’s withdrawal from the EU. Pursuant to this provision, the Commission submits recommendations to the Council, which subsequently adopts a decision authorising the opening of negotiations and nominating the EU negotiator. In the case of the Brexit negotiations, the Commission was nominated by the Council as the EU negotiator (European Council 2017a). On the basis of these provisions, the Brexit negotiation process resembles the negotiation of international agreements and therefore it can be argued that the transparency standards applied to the Brexit process have to be at least equivalent to those leading to the adoption of an international agreement. The most recent example, which generated a heated

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debate as regards the transparency standards which should apply to it, is the negotiation process of the TTIP. The Court has recognised that in the context of international negotiations certain documents may remain confidential.5 Convincing arguments can be put forward for the non-­disclosure of documents relating to negotiations while they are ongoing. However, such arguments must be specific in nature, relating to the content of a document and the negotiating context, with particular emphasis on the timing of disclosure.6 In the case of TTIP, the first year of the negotiations were carried out in a culture of secrecy (Organ 2017, p. 1720). The negotiating directives issued by the Council were not made public, neither proactively nor following requests for access to documents. As a result, the European Ombudsman (EO) started an own initiative inquiry (European Ombudsman 2014a) and urged the Council to publish the negotiating directives, which it ultimately did (European Ombudsman 2014b).7 In parallel to its correspondence with the Council, the EO made concrete recommendations to the Commission as to how to improve transparency in its role as negotiator (European Ombudsman 2015). These recommendations can be divided in two categories: the first category concerns the negotiating documents, whereas the second concerns information on meetings held by the Commission with interest representatives. As regards the negotiating documents, according to the EO, the Commission has to carry out an assessment whether a document can be made public or not as soon as the document in question has been finalised internally. If no exception applies, the document in question should be published proactively by the Commission. If a document cannot be made public proactively, the document reference and, if possible, its title should be made public, along with an explanation as to why the document cannot be made available. The Commission should publish on its website all documents related to the negotiations it has already released in response to access to documents requests. Overall, the Commission should make sure that the list of documents available on its dedicated website on trade policy is comprehensive and user friendly.

 See Case C-350/12 P, Council v Sophie in ‘t Veld, EU:C:2014:2039, para 90.  See Case C-350/12 P, Council v Sophie in ‘t Veld, EU:C:2014:2039, para 66. 7  The Council’s negotiating directives to the Commission on the TTIP negotiations were issued in June 2013 and published in October 2014. 5 6

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As regards information on meetings held by the Commission with interest representatives, the EO suggested that the Commission should extend the transparency obligations also to officials not covered by the aforementioned Transparency Register, notably Directors, Heads of Unit and negotiators. Furthermore, it also recommended that the Commission should proactively publish meeting agendas and records of meetings it holds with interest representatives. In particular, as regards the submissions from stakeholders made in the context of the TTIP negotiations, the Commission was required to publish them unless the sender gives good reasons for confidentiality and provides a non-confidential summary for publication. The EO also requested that documents that are released to certain third-party stakeholders are released to everyone, thereby ensuring that all citizens are treated equally. These recommendations made by the EO bear significant importance, because they specify how the rather vague obligation of transparency and openness enshrined in primary law should be implemented in the concrete context of international negotiations. The emphasis lies in essence in the active information obligation of the Commission in the sense of proactively informing the public in anticipation of their need for access to documents, while at the same time protecting the negotiation position of the Union following the conditions developed by the case-law.

4   Transparency in the Context of Brexit Following the experience of the TTIP negotiations, in the case of the Brexit negotiations the EO was alerted from the very beginning. After the UK referendum and shortly before the official notification of the UK’s intention to withdraw from the EU, the EO urged appropriate transparency arrangements in the context of the Brexit negotiations (European Ombudsman 2017a). More specifically, the EO suggested that the Commission adopts a proactive approach from the outset and gives citizens access to relevant information and documents at the appropriate time and without the need to ask for them. This approach would highlight, according to the EO, the Union’s determination not only to respond to, but also to anticipate, citizens’ legitimate need for information on the negotiations. With a view to ensuring this aim, the EO suggested that the Commission sets out in advance the transparency arrangements and announces which types of information and documents it intends to publish and when. The

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EO addressed also at this early stage the arrangements for stakeholder consultations and suggested that the Commission informs stakeholders in advance that their submissions will be published unless the sender gives justified reasons for confidentiality and provides a non-confidential summary for publication. In parallel, the EO with a letter to the Secretary-­ General of the Council of the EU underlined the importance of publishing the guidelines of the European Council and the negotiating directives of the Council as well as any amendments or additions made during the overall process (European Ombudsman 2017b). It is particularly interesting in these first recommendations that the EO sets the standards for what can be called “transparency of transparency”. In other words, the EO requires that the Commission announces in advance to both citizens and interest representatives what the transparency arrangements governing the Brexit negotiations will be. Such announcement from the outset serves the purpose of legal certainty, but also enables that any (potential) criticism of the Commission’s approach is made at an early stage, so as to have a settlement of the transparency arrangements before the feverish period of the negotiations starts and the citizens are in need of information. This quest could set a precedent for the establishment of ex ante transparency arrangements also in future negotiations. Both the Council and the Commission responded positively to the EO’s invite. The guidelines of the European Council and the Council’s negotiating directives were made public. The tone was already set with the European Council’s guidelines mentioning transparency of the negotiations as one of the guiding principles for the EU negotiator, the European Commission (European Council 2017). The Council published on 22 May 2017 “guiding principles on transparency” inviting the EU negotiator to reach out to citizens, national parliaments and stakeholders, and to provide timely and directly accessible information to the public throughout the negotiation process (Council of the EU 2017b). The Commission made also a separate statement on transparency noting that given the unprecedented nature of the Brexit negotiations it has decided to adopt a tailor-made approach to transparency, enabling as much public access to the negotiating documents as possible (European Commission 2017a). Throughout the process, the Commission has published a wide range of negotiating documents on the website of the Task Force for the preparation and conduct of the negotiations with the UK under Article 50 TEU (TF50), including position papers on all disentanglement issues, meeting agendas for the different rounds of the

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negotiations, joint technical notes in which progress on citizens’ rights after each negotiation round is described and the draft withdrawal agreement indicating which Articles have been agreed between the EU and UK negotiators. Part of the Commission’s transparency policy is to publish the list of meetings of the Chief Negotiator M. Barnier, head of the TF50, with interest representatives. Comparing the transparency arrangements of the Brexit negotiations with the previous ones, in the context of the TTIP negotiations, it is apparent that both the Commission and the Council adopted a much more proactive approach, disclosing a wide range of documents on their websites and thus limiting even the need for requests for access to documents. Looking at the aforementioned recommendations made by the EO on the TTIP negotiations, it is to be noted that the Commission followed these recommendations with respect to transparency of the negotiating documents, but shortcomings remain as regards the information available on the meetings held by the Commission with interest representatives. As mentioned above, the EO had suggested to the Commission in the context of TTIP to extend the registration of meetings besides Commissioners, Cabinet Members and Directors-General also to other key officials involved in the negotiations. The Commission has retained its restricted approach also in the Brexit negotiations and continues to publish only the meetings held by the Chief Negotiator, whose rank is equivalent to a Director-General, but not those held by the Deputy Chief Negotiator or the other members of the TF50. Furthermore, unlike the EO’s recommendations in the context of TTIP, the information provided on the meetings held by the Chief Negotiator is rudimentary. As subject matter of all meetings is merely listed “Meeting with the TF50”.8 Potential documents submitted by the interest representatives are not proactively disclosed. Such documents could be obtained through requests of access to documents, as long as no exceptions with respect to professional secrets and personal data apply. Minutes of the meetings could also be obtained through such requests but only as long as they exist, since requests of access to documents do not oblige the administration to create a new document if a meeting was held orally and has left no trace.9 8  See the list of meetings under http://ec.europa.eu/transparencyinitiative/meetings/ meeting.do?host=fa02e4e1-d738-413e-8b4e-ed8381a90e86, visited on 30 August 2018. 9  See Art. 2(3) Regulation (EC) No 1049/2001 and its interpretation by the judgment in case C-127/13 P, Strack v Commission, EU:C:2014:2250, para 38.

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Given these shortcomings, the EO addressed a new letter to the Commission President in February 2018 urging for more transparency (European Ombudsman 2018). The EO acknowledged the very high level of transparency achieved in terms of disclosure of negotiating documents but noted that more can be done in the area of transparency of the meetings with interest representatives in line with what she had already suggested in the context of TTIP. In particular, the EO asked for proactive publication of the activities of the deputy Chief Negotiator and the meetings of all members of the TF50. Furthermore, the EO recommended that more context on the meetings should be provided by publishing participant lists, agendas, minutes or other documents exchanged during the meetings. Should there be reasons for not disclosing any of this material in full, in line with Regulation 1049/2001, appropriate reductions should be considered. The Commission President responded in April 2018 that the Commission has disclosed the list of meetings with Members of the TF50 in reply to requests for access to documents (European Commission 2018b). Minutes of meetings cannot be published while negotiations are ongoing. Moreover, such meeting reports may contain sensitive information and commercial data, as well as personal data, disclosure of which is subject to exceptions laid down in Regulation (EC) No 1049/2001. The President reassured that the Commission’s representatives at these meetings have not shared any other documents with stakeholders than those already published on the dedicated website. In relation to the request of publishing the activities of the deputy Chief Negotiator, the President responded that these are mainly of an institutional nature, dominated by negotiations with the UK representatives and exchanges and discussions with other EU institutions, Member States and Commission services. The President invoked no reason for not publishing the meetings of the other members of the TF50. From this response, two important legal questions arise. The first one is whether there is a valid general presumption of non-disclosure of the minutes of the meetings with interest representatives while the ­negotiations are ongoing. The second one concerns the rank of EU officials which should be covered by the transparency obligation of publishing information on their meetings. As regards the disclosure of the minutes of meetings with interest representatives, the President in his reply seems to suggest that the minutes could be disclosed only after the end of the negotiations and provided that

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they do not contain personal data or commercial secrets. According to Article 4(1)(a), 3rd index, Regulation (EC) No 1049/2001, the institutions may refuse access to a document where disclosure would undermine the protection of international relations. The institutions enjoy a wide discretion when applying this exception and may not disclose documents which might reveal the strategic objectives pursued by the EU in the negotiations.10 However, the case law has not accepted a general presumption that revealing internal documents while the negotiations are ongoing might affect the negotiating position of the EU. Concrete arguments on how certain documents could specifically and actually undermine that position are needed.11 For these reasons, an abstract reasoning that all minutes of all meetings may not be published while the negotiations are ongoing is not legally convincing. The TF50 should therefore proactively publish meeting reports or minutes, in line with the EO’s recommendations, and refrain from such publication only if it is in a position to provide specific arguments on why disclosure would undermine the negotiating position of the EU, in particular if a document (or parts of it) contain(s) strategic elements of the negotiations.12 Such a risk of that interest being undermined must, in order to be capable of being relied on, be reasonably foreseeable and not purely hypothetical (see Abazi and Hillebrandt 2015, p. 825; Organ 2017, p. 1721).13 Regarding the second issue of the rank of EU officials who should be covered by the obligation of publishing information on their meetings with interest representatives, it is true that the current rules require such publication only from Commissioners, their Cabinet Members  and from Directors-General or equivalent.14 This means that only the head of the TF50, who is ranked as Director-General, has this obligation. However, given the importance of the powers vested in the TF50, the role of the members of the Task Force can be assimilated to that of Cabinet Members of a Commissioner. The rationale for obliging Cabinet Members to disclose their meetings is that they regularly meet with organisations or self-­ employed individuals, in order to learn about the difficulties they are  Case C-350/12 P, Council v. Sophie in’t Veld, EU:C:2014:2039, para 73.  Ibid., para 103 et seq. 12  Ibid., para 101. 13  Ibid., para 96 and 105. 14  See Art. 1(2) Commission Decision (EU) 2014/838 and Commission Decision (EU) 2014/839. 10 11

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confronted with and to understand their views on EU policies and legislation.15 Since the members of the TF50 are also regularly reaching out to stakeholders, as explicitly stated on the relevant webpage (see European Commission 2017b), the rules on the publication of information on meetings should be interpreted teleologically. As a result, members of the TF50 should be legally treated as Cabinet Members, given their specific tasks involving meetings with interest representatives. To conclude with, in line with the recommendations of the EO, the Commission should undertake concrete steps in order to raise the transparency standards as regards contacts with interest representatives. Enhanced transparency in this respect would not only enable public scrutiny but also facilitate effective participation. The following section assesses the available means of citizen participation and their use in the context of Brexit.

5   Forms of Participation According to Article 10(1) TEU, the functioning of the EU shall be founded on representative democracy. However, participatory democracy is also explicitly mentioned among the democratic principles of the EU, thus constituting a complementary source of democratic legitimacy next to representation (see Cuesta Lopez 2010; Mendes 2011). Article 11 TEU was added with the Lisbon Treaty and provides for the principle mechanisms giving effect to participatory democracy. It partially crystallised existing institutional practices (Art. 11 (1-3) TEU) and partially introduced a new legal instrument, the European citizens’ initiative (Art. 11 (4) TEU) (see Mendes 2011, p. 1854). The pre-existing mechanisms consist of exchange of views with citizens and representative associations and consultations with concerned parties (Kutay 2015, p. 803). The new instrument of the European citizens’ initiative goes a step further and gives the opportunity to citizens to submit a proposal to the Commission for a legal act of the Union. Besides the mechanisms explicitly mentioned in Article 11 TEU, other forms of participation linking citizens with the EU governance are spread throughout the Treaties, such as the right of any resident of the EU to petition the EP or to refer to the EO cases of maladministration in the

 See recital 2 Commission Decision (EU) 2014/839.

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activities of the Union’s institutions, bodies, offices or agencies.16 These rights do not constitute participatory rights in the narrow sense, because their principle aim is to remedy a situation that affects the petitioners/ complainants (see Curtin 1991, p.  460), but their exercise might still bring about change in fields of general interest (Bonnor 2006, p. 141). Another way of more institutionalised participation is through the Economic and Social Committee (ECSC) in charge of giving advisory opinions in the legislative process. It is however acknowledged that through the ECSC participation is more channelled and filtered than through other more direct forms (Curtin 1991, p. 460). The common characteristic of all forms of citizen involvement and participation at EU level is that none of them has a decisive or binding effect. Unlike the Constitutions of many Member States (see Morel 2018, p. 27; Qvortrup 2018, p. 19), the EU Treaties do not provide for an EU wide referendum or any other form of binding plebiscite which would oblige the institutions to take action in the direction of the citizens’ will. This constitutes a fundamental constitutional choice vesting representative institutions with all decisive powers. Given this choice, while at Member State level discussions on whether or not fundamental political decisions should be left to institutions of direct democracy are heated in the post-­ Brexit era, at EU level such discussions remain mild and concern primarily an eventual constitutional change so as to bring closer the EU to its citizens (Fabbrini 2017, p. 287). However, the main critique concerning the participatory mechanisms at EU level relates to their representativity and inclusiveness. More specifically, the institutionalised dialogue and consultations with representative associations is often perceived as an integration of corporatist conceptions in the EU governance, in the sense of opening the decision-making process to powerful elites and industry lobbies, while the general public remains disconnected (Magnette 2006, p.  32; Kirste 2018, p.  137). In the Brexit era, the discussion on whether or not the existent consultation processes allow for equal representation of different societal interests has revived. In the following section, the functioning of the main participatory mechanisms at EU level will be outlined and their use in the context of the Brexit negotiations will be assessed.

 See Art. 20(2) (d) TEU, Art. 227-228 TFEU and Art. 43-44 EU Charter.

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6   Dialogue and Consultations 6.1  General Practice Article 11(1) TEU requires that the institutions give, by appropriate means, citizens and representative associations the opportunity to make known and publicly exchange their views in all areas of Union action. They shall also maintain an open, transparent and regular dialogue with representative associations and civil society (Art. 11(2) TEU). The wording of these provisions seems to guarantee both a horizontal dialogue of citizens and representative associations among themselves and a vertical dialogue of such actors with the institutions through suitable channels and fora (Kirste 2018, p.  136). Wide discretion is left to the institutions to determine the means through which such exchange of views and dialogue takes place. Due to the vagueness of the phrasing of the obligations, it is difficult to deduct therefrom a legally enforceable right to participation (Mendes 2017, p. 387). The institutions have implemented this obligation through various ways, including both formal and informal means, such as consultations, dialogues, bilateral meetings, surveys and permanent platforms for exchange of views. As concrete examples, it can be mentioned that the EP organises public hearings with representative associations, academics and civil society and the European Commission under the Juncker Presidency has been organising dialogues with citizens in various cities of the EU.17 In particular, as regards the European Commission, Article 11(3) TEU contains a more specific obligation of carrying out broad consultations with parties concerned in order to ensure that the Union’s actions are coherent and transparent. “Stakeholder consultation” has been evolved as a formal process through which the Commission collects information and views from stakeholders about its policies and proposals. Commission services are obliged through internal guidelines to carry out such formal stakeholder consultations when preparing a Commission legislative or policy initiative (European Commission 2017c, p.  67). The internal guidelines also require that feedback is given to respondents about how and to what extent their input has been taken into account and why certain suggestions could not be taken up in the policy formulation (European 17  Commission Work Programme 2018, An agenda for a more united, stronger and more democratic Europe, COM(2017) 650, p. 9.

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Commission 2017c, p. 86). Such formal consultations are complemented with the Commission’s broader interaction with stakeholders through informal means, such as meetings or exchanges or through existing permanent platforms for dialogue (European Commission 2017c, p. 68). 6.2  Use in the Context of Brexit In the context of the Brexit negotiations, the EO addressed already in February 2017 the need for stakeholder consultations and asked the Commission to announce how it plans to secure and structure the input it needs from stakeholders in order to inform its negotiating position throughout the process (European Ombudsman 2017a). The Commission published in March 2017 on the dedicated website for the TF50 that the Chief Negotiator and the other members of the Task Force will be engaging in bilateral meetings with a variety of stakeholders, mainly responding to meeting requests by business associations, trade unions, environmental and consumer organisations, university associations and think tanks, as well as non-governmental organisations. It was also stated that the TF50 encourages public interest-oriented associations to voice their concerns, in order to ensure that stakeholders representing a wide range of views are listened to. As mentioned above, from these meetings only those held by the Chief Negotiator himself are registered in the EU Transparency Register. It is evident from this succinct public statement that in the context of the Brexit negotiations the Commission has not followed its general guidelines, which require the design of a fully-fledged consultation strategy. Such a strategy presupposes the determination of suitable consultation methods and tools and the publication of a roadmap of the different consultation stages (European Commission 2017c, p. 73). In the case of the Brexit negotiations, the Commission has enabled bilateral meetings of stakeholders with the TF50 in response to meeting requests but has not proceeded to a real outreach of a proactive nature. After the end of the first phase of the negotiations in December 2017,18 the EO corresponded with the Commission President and expressed certain concerns as regards the representativity of the conducted stakeholder 18  On the outcome of the first phase of negotiations, see the Joint Report of the negotiators of the EU and the UK, available under https://ec.europa.eu/commission/sites/betapolitical/files/joint_report.pdf, last visited on 30 August 2018.

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consultations (European Ombudsman 2018). More specifically, the EO observed that the majority of meetings have been with interest representatives from the business community. The EO assumed that requests for meetings with the TF50 have come predominately from businesses and noted that it is quite understandable that there had been a high level of interest from economic actors. Nevertheless, the EO asked the Commission to make plans to secure and structure the input it needs from all stakeholders, especially in the second phase of the negotiations addressing the future framework of the relations between the UK and the EU. Such plans should include efforts to broaden consultations, so as to ensure more diverse representation. The Commission President responded in April 2018 that the TF50 has in general responded positively to all requests for bilateral meetings and has encouraged public interest-oriented associations to voice their concerns in order to ensure that stakeholders representing a wide range of views are listened to (European Commission 2018b). As a general observation, the President pointed out that the negotiations on the UK’s withdrawal are of an unusual nature, because the process is not about designing new policies but managing the disentanglement of the UK from the EU. Usually, the purpose of stakeholder consultation is to inform policy-­ making. In the case of the UK’s withdrawal from the EU, the scope for stakeholder input on the policy approach chosen is limited, since the Commission is negotiating on the basis of the European Council Guidelines and the Council’s negotiating directives. Assessing the Commission President’s reply, it is to be recalled that the formal stakeholder consultation procedure is indeed used on the basis of Commission internal guidelines when preparing a Commission legislative or policy initiative (see European Commission 2017c). However, looking at the wording of Article 11(3) TEU, it can be observed that the provision links the Commission’s obligation to carry out broad consultations with “all Union’s actions” and not only with its role as initiator of the legislative procedure. It is true that the Commission enjoys a wider margin when designing new policies and thus in this action area stakeholder consultations may have a stronger impact. Nevertheless, even in areas, in which the Commission acts in its executive role, such as when assuming the role of EU negotiator, consultations of interested parties may be meaningful and are indeed covered by the wording of Article 10(3) TEU. For this reason, the Commission continues to be under the obligation of carrying out appropriate consultations and ensuring a wide range of representativity of

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the involved stakeholders also in its current role as EU negotiator for Brexit. Besides these mechanisms of informal exchange of views, a more structured way of making a policy suggestion to the Commission has also been used by citizens in the context of Brexit, the mechanism of the European citizens’ initiative. Subsequently, it will be sketched how this instrument functions and what role it has played so far in relation to the Brexit negotiations.

7   European Citizens’ Initiatives 7.1  Legal Framework and Practice The European citizens’ initiative is an instrument of participatory democracy introduced by the Lisbon Treaty (Art. 11(4) TEU) aiming at reinforcing the involvement and influence of citizens over the legislative agenda of the EU (see Sipala 2007, 367; Dougan 2011, p.  1708).19 Pursuant to Article 11(4) TEU, not less than one million citizens who are nationals of a significant number of Member States may take the initiative of inviting the European Commission, within the framework of its powers, to submit any appropriate proposal for a legal act of the EU. This provision thus enables the involvement of citizens in the decision-making process at EU level, while requiring that they come together with citizens from other Member States and present a proposal not of national but of European interest. It thus encourages transnational participation presupposing cross-cut links among the European peoples (Salm 2018, p. 14). The right to put in place a European citizens’ initiative as enshrined in Article 11(4) TEU was rendered concrete through Regulation (EU) 211/2011, which was adopted on the basis of Article 24, paragraph 1, TFEU and entered into force on 1 April 2012. The procedure which citizens have to follow contains several steps: as a first step, the organisers of an initiative who must be EU citizens and residents of at least seven different Member States (Art. 3) are required to apply for registration in the Commission’s online register by submitting information on the subject matter and the objectives of the proposed initiative (Art. 4). The Commission has two months to examine the proposed initiative and check whether certain admissibility conditions are fulfilled, in particular whether  Art. 11(4) TEU echoes Art. I-47(4) of the non-ratified Constitutional Treaty.

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there is a legal basis in the EU Treaties to support the subject matter of the initiative (Art. 4(2)). If the initiative is found admissible and is registered by the Commission, the signature collection process begins (Art. 5). The organisers must collect within 12 months at least one million signatures from at least one quarter of Member States (Art. 7). Once all the conditions relating to the collection of signatures have been fulfilled and verified (Art. 8), the organisers may submit the initiative to the Commission for its consideration (Art. 9). The Commission publishes it and receives the organisers who can now explain in detail their proposal (Art. 10(1)(a) and (b)). In addition, a public hearing is organised at the EP with the participation of other institutions, the Commission included (Art. 11). Finally, within three months following the submission, the Commission sets out in a communication its legal and political conclusions on the initiative, the action it intends to take, if any, and its reasons for taking or not taking that action (Art. 10(1)(c)). From this brief outline of the procedure, it becomes apparent that the role of the Commission is crucial at two stages, at the very beginning, at the stage of the admissibility check, and at the very end, when the Commission decides which action it intends to take in order to give effect to a successful initiative (follow-up stage) (see Dougan 2011; Kaufmann 2012). The Commission has no legal obligation to make a proposal for a legal act of the Union, even if an initiative reaches the necessary number of signatures. This was confirmed by the recent judgment in the case “One of Us” and is justified on the basis of the Commission’s institutional role as guardian of the Union’s interests.20 The impact of European citizens’ initiatives has been so far assessed as limited (European Commission 2018a, p.  2) and the European Commission has been reproached for applying the admissibility test in a very rigid way and for not providing effective guidance to organisers (see Salm 2018, p.  11 et. seq.). Following two important judgments of the General Court21 and under pressure by the EP,22 the EO23 and other

 See Case T-561/14, One of Us v Commission, EU:T:2018:210, para 111 and 122.  See Case T-646/13, Minority SafePack v Commission, EU:T:2017:59; Case T-754/14, Efler v Commission, EU:T:2017:323. 22  See the Resolution of the European Parliament of 28 October 2015, (2014/2257(INI)), P8_TA(2015)0382. 23   See the own initiative report of the European Ombudsman of 4 March 2015, OI/9/2013/TN. 20 21

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stakeholders,24 the Commission has revisited its application practice, towards a more flexible admissibility check (see European Commission 2018a. p. 2), as it will be shown later on. In addition, it has submitted a proposal for a new Regulation governing the European citizens’ initiative with a view to rendering this instrument more user-friendly and accessible to citizens.25 The Commission’s new approach is reflected in the way it has treated the initiatives put forward in the context of the Brexit negotiations. 7.2  Use in the Context of Brexit The EU citizens from different Member States have used the instrument of the European citizens’ initiative in order to bring forward their claim that citizens whose country withdraws from the EU retain their rights. Four initiatives with this content were registered by the European Commission from March 2017 until July 2018. The first initiative registered as “European Free Movement Instrument” (known also as the “Choose Freedom initiative”) aimed at giving UK nationals EU passports in the form of a unified laissez-passer document,26 similar to the laissez-passer document currently issued for EU officials and other staff members of the EU.27 According to the Commission’s press communication, the College of Commissioners decided to register this initiative, concluding that a legal act of the EU with the content of this initiative could indeed be adopted under the current Treaties.28 The justification of this positive decision is not evident, especially if it is taken into account that the legal basis of issuance of the current laissez-passer documents is Protocol No 7 on the privileges and immunities of the EU, which 24  See for instance the opinion of the European Citizen Action Service (ECAS), 20.04.2017, www.euractiv.com/section/politics/opinion/revising-the-eci-how-to-make-it-fit-for-purpose/, visited 20 July 2018. 25  COM(2017) 482. On 12 December 2018, it was announced (press release IP/18/6792) that the European Parliament and the Council reached a provisional political agreement on the Commission Proposal. The new Regulation on the European Citizens’ Initiative is expected to start applying as of 1 January 2020.  26  All initiatives mentioned can be found at http://ec.europa.eu/citizens-initiative/public/welcome 27  See Council Regulation (EU) No 1417/2013 of 17 December 2013 laying down the form of the laissez-passer issued by the European Union. 28  Brussels, 21 December 2016, IP/16/4436.

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aims to facilitate the functioning of the EU institutions, by conferring inter alia certain rights to their staff members. It is thus left unanswered under which basis a legal act of the Union conferring EU passports to non-EU citizens who are not employees of the institutions could be adopted. This decision is diametrically opposed to the previous Commission practice, during which the Commission was examining in a very thorough and detailed way the possible legal bases for an initiative, without taking positive registration decisions in abstract terms, that is, without having concretely identified at least one legal basis which could support the aim of the initiative.29 On this point, it needs to be underlined that “generosity” at the registration phase is not necessarily supportive of the effective use of citizens’ initiatives, if the admissibility problems re-emerge at a later stage, especially after the citizens have gathered the necessary number of signatures. This new approach towards showing considerable openness when assessing whether the Treaties contain a legal basis which could support the object of the initiative was confirmed among others30 also in three subsequent initiatives related to Brexit and citizens’ rights. With the initiative “EU-citizenship for Europeans: United in Diversity in Spite of jus soli and jus sanguinis” (informally known as “Flock Brexit”) the organisers aimed at separating EU citizenship and nationality. In a similar vein, the aim of the initiative “Retaining European Citizenship” was to “retain the rights of EU citizenship for all those who have already exercised their freedom of movement prior to the departure of a Member State leaving the EU, and for those nationals of a departing State who wish to retain their status as EU citizens”. The organisers of the initiative “Retaining European Citizenship”, after having failed to gather one million signatures within one year, started anew an almost identical initiative with the title “Permanent EU Citizenship”, inviting the Commission to assure all EU citizens that, once attained, the fundamental status of EU citizenship is permanent and their rights acquired.

29  See also the facts mentioned in Case T-44/14, Constantini and others v Commission, EU:T:2016:223, para 54, as regards the Commission’s detailed assessment of possible legal bases. 30  See for example the Commission decision C(2018) 4584, which accepted the registration of the initiative “Stop starvation for 8% of the European population” whereby implicitly acknowledging in the recitals of the registration decision (in particular recital 6) that there is no legal basis in the EU Treaties which could support the aim of the initiative in its exact current form.

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All three initiatives aim(ed) in essence at the adoption of an act which would enable citizens whose countries withdraw from the EU to retain their rights and status of the EU citizenship. In all three cases, the Commission responded in its registration decisions that it cannot propose an act of the EU aiming at granting the citizenship of the Union to persons who do not hold the nationality of a Member State. However, it accepted registration of the initiatives based on the understanding that they aim at ensuring that following the withdrawal of a Member State its citizens continue to benefit from similar rights compared to the EU citizens.31 This means that although the subject matter of all three initiatives, as initially submitted by the organisers, falls outside the powers of the Commission under the current Treaties, the Commission “re-qualified” their subject matter in a way that would allow acceptance for registration and collection of signatures. This openness and cooperative spirit demonstrate a clear change of the Commission’s practice and enable a more effective use of the instrument. However, the Commission has not so far ensured in cases of such “re-­ qualification” of content or in cases of partial registration that the information on an initiative made available to potential signatories and the public corresponds to the exact scope of the registration by the Commission. In all cases, the title and main aims of the initiatives, as displayed in the official Commission register and on the webpages where electronic signatures could/can be gathered, have not been adjusted to the Commission’s “requalification” and feature(d) the initial inadmissible aim to decouple EU citizenship from nationality. The webpage of the official register contains a disclaimer that the content of the page of the register dedicated to each initiative is the sole responsibility of the organisers of the initiatives. However, this general approach leads to the result that the official register does not provide a clear image of the admissible content of registered initiatives. Three out of the in total four Brexit-related initiatives whose deadline for collection of signatures has expired have not managed to gather sufficient popular support in all Member States in order to reach the required one million signatures and be able to request from the Commission a possible follow-up action in line with their aims. They gained certain popularity in essence only in the UK and did not manage to create a transnational movement, which constitutes the added value of the European Citizens’ Initiative (Salm 2018, p. 14).  See in particular the recitals of Commission Decisions C(2017) 2001, C(2017) 2002 and C(2018) 4557. 31

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Different reasons can be evoked in order to justify this failure. An important reason could be the loss of faith from citizens in the potential of the instrument of citizens’ initiatives, given the limited action taken by the Commission so far in response to existing initiatives (see Karatzia 2017, p. 177; Vogiatzis 2017, p. 250). Another reason, connected also with the non-adjustment of the content of the initiatives, could be the lack of credibility of these initiatives, which, at least by their titles and main objectives, appear not to be in line with the current Treaties, since they aim at decoupling EU citizenship from nationality. Practical aspects could also have played a role, such as perhaps the limited network of the organisers or the fragmentation of signatures among similar initiatives. Apart from reasons which concern more the inherent characteristics of the instrument of the European citizens’ initiative, the particular context of the Brexit negotiations needs also to be looked at. The negotiation of the Brexit withdrawal agreement is an ongoing and fast-moving procedure and it is timewise very difficult for a European citizens’ initiative to influence it, since the collection of signatures has no suspensive effect on the actions of the Commission as negotiator and of the Council as the competent institution to adopt negotiating directives and authorise the conclusion of an agreement (Art. 218(2) TFEU). Given this context, citizen associations may indeed take the view that influencing the ongoing negotiations by using the available possibility of a bilateral meeting with the Commission’s negotiating team can be probably more effective than setting up a citizens’ initiative, which requires a lengthy and cumbersome procedure. Citizen associations such as “the three million” (t3  m) or “British in Europe” (BiE) have indeed held meetings in the last year with the Chief Negotiator according to the Commission’s transparency register. This being said, Brexit-related initiatives might gain popularity again for aims not adequately achieved through the negotiations, in particular for issues where citizens feel that their (acquired) rights are not sufficiently protected. It remains to be seen what the fate of the initiative “Permanent EU Citizenship” will be, which is still open for collection of signatures. However, taking into account the fate of the previous similar initiatives, it can be anticipated that also this initiative would gain popularity only among UK citizens. This can be explained through the content of such initiatives, aiming in essence at securing the rights of UK citizens and therefore being supported mainly by possibly affected people. Such a stance also reveals the lack of a strong bond and solidarity sentiments

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among the EU peoples in the sense that the citizens of other Member States would not get easily mobilised with a view to securing the rights of citizens whose country withdraws from the EU, if their own rights are not affected (see Kroeger 2013, p. 583).

8   Conclusions The Brexit negotiations and the strong public interest they have generated have brought anew to the surface the old questions on the role of citizens in the EU governance and the effectiveness and representativity of the available participatory instruments. The relationship between representative and participatory mechanisms is clearly defined at the EU level, since the EU Treaties vest representative institutions with all decisive powers and participation functions (only) as a complementary source of democratic legitimacy. Despite this inherent constraint of having a merely informative or consultative character, citizen participation in the democratic life of the EU is constructed as a right and the institutions are therefore obliged to provide the procedural and organisational preconditions for its effective exercise. Fundamental preconditions of effective participation constitute the transparent functioning of the EU institutions and the accessibility of information to the general public. In the context of the Brexit negotiations, a lot of progress has been made in terms of transparency standards, in particular compared to the recent TTIP negotiations. Enhanced transparency has indeed been achieved through the proactive publication of the negotiation mandate and relevant documents throughout the negotiation rounds. The area in which more transparency is still needed is the relations of the TF50 with interest representatives. As it has already been pointed out by the EO, the Commission has not provided sufficient information on the meetings with representative associations. Currently, only the list of meetings with the Head of the TF50 is published, without any further information on their content. The Commission applies a general presumption that revealing internal documents while the negotiations are ongoing might affect the EU negotiating position. It is argued in this contribution that this approach is not in line with the case-law and that minutes of meetings or position papers of interest representatives should be proactively published unless there are specific reasons to justify that their disclosure could undermine the EU negotiation position. Furthermore, the

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obligation of registering meetings with interest representatives should be extended to all the members of the TF50, who should be legally assimilated to Cabinet Members of Commissioners also having this obligation. The last point on which more transparency is required is on the influence achieved by interest groups. Currently, there is no visibility as to which points stemming from interest representatives have been taken on board by the negotiators. The avenues for direct participation in the Brexit negotiations can be assessed as limited, despite the very intense public interest. The Commission perceives the Brexit negotiations not as a regular policy-making process, for which a fully-fledged consultation would apply, but as a disentanglement process, during which the Commission does not enjoy a policy-­ making margin, but follows the Council negotiating directives. For this reason, the Commission has not designed a consultation strategy in order to identify which stakeholders and society groups to target and how to ensure representativity, as is normally the case. The main participatory tool used in the context of the Brexit negotiation process have been bilateral meetings between the TF50 and representative associations following the requests of the latter. This means that civil society has reached out to the Commission and not vice versa. Such a primarily “responsive approach” from the Commission’s side does not ensure balanced societal and interest representation, which has already been pointed out by the EO. Besides the avenue of bilateral meetings with the TF50, citizens have also made use of the mechanism of the European citizens’ initiative in order to achieve more visibility for their claims and prompt a formal answer from the Commission. Citizens’ initiatives have mainly brought forward the claim that citizens whose country withdraws from the EU should retain their rights and their status as EU citizens. The Commission, with a view to enabling more citizen participation, has accepted registration of these initiatives, although it acknowledged that only part of the citizens’ claims falls within its competencies. This more open approach reflects a new era in the Commission’s administrative practice. While this approach is more citizen-friendly and enables the registration of more initiatives, the problem it creates is that the registered content of an initiative, which serves for the collection of signatures, does not reflect what the realistic potential of the initiative is, thus creating false expectations both to the organisers and signatories. In any event, the Brexit-related initiatives have not managed to gain popularity among non-UK citizens, revealing anew a

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lack of solidarity among the EU citizens, who would not get easily mobilised for issues not of their direct concern. To conclude, the Brexit negotiations mark an era of enhanced transparency in the EU international negotiations, an area dominated by secrecy in the past. The institutions have made an unprecedented coordinated effort to keep the public sphere informed throughout the process. These high standards of transparency constitute the first step to effective public scrutiny and participation. However, the avenues for real direct input from the general public have remained limited and have fallen short of achieving a diverse and inclusive participation. In times of political tiredness, enabling effective participation from the general public could address the disconnect of citizens with the EU and reinforce their trust in representative institutions, which remain the driving force of the EU project.

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Index1

A Accountability, 4, 6, 36, 37, 179, 180, 184, 193, 195, 203 Agreement, vi, vii, 2, 3, 5, 6, 8, 9, 18, 21, 37, 45, 46, 52, 56, 59, 60, 68, 71, 75, 87, 88, 108, 111, 115, 120, 124, 134, 136, 156, 157, 160, 170, 181, 181n6, 193–196, 198, 199, 201, 213, 216, 219n13, 222, 224, 237, 241–244, 253–256, 277, 288, 297, 314 Article 50, vi, vii, 1, 29, 30, 37, 38, 46, 52, 68–71, 74, 81, 86, 87, 90–92, 90n9, 95, 116, 134, 143, 184, 191, 194, 195, 198, 199, 201, 218n10, 219n13, 237, 242, 247, 293, 297, 300 B Backbench, 10, 14, 43, 53, 55, 61, 65, 67, 74, 76, 89, 89n8

Belgian parliaments, 8, 127, 128, 133–150, 201 Belgium, viii, 15, 19, 20, 122, 133–150, 230, 238, 251 Bundesrat, 111, 112, 114, 115, 117, 120, 121, 126, 127 Bundestag, 111, 112, 114–118, 120, 126, 127 C Citizens, vii, 2, 9–11, 13, 16, 17, 90, 91, 99, 112, 116, 122, 122n6, 125–127, 138, 143n5, 155, 157, 160, 165, 166, 170, 175, 209, 216, 226, 229, 230n32, 240, 243, 244, 246, 247, 275, 277, 281, 283, 286, 293–317 Civil society, 200, 295, 306, 316 Council of the EU, 294, 300 Czech government, 14, 202 Czech Parliament, 107–129, 167, 187, 202 Czech Republic, 10

 Note: Page numbers followed by ‘n’ refer to notes.

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INDEX

D Democracy, vii, 5, 11–13, 82, 101, 124, 180, 266, 277, 280, 293, 294, 304, 305, 309 E Elections, vii, 2, 14, 18, 52, 54, 60, 62, 64, 65, 67, 74, 76, 81, 86, 88–90, 89n7, 92–96, 98, 117, 123, 124, 138, 144, 155, 169, 173, 180, 181, 185n12, 208, 209, 217, 229, 230, 230n31, 240n3, 263, 264, 266 Euro-Mediterranean relations, 263–288 European citizens’ initiative (ECI), 11, 304, 309–316 European Commission, 3–6, 8, 16, 108, 109, 116, 117, 120, 134, 140, 163, 170n13, 186, 202, 211, 223, 225, 235, 237, 239, 240, 242, 243, 256, 294–297, 300, 302, 304, 306–311 European Council, 3, 3n1, 6, 30, 109, 113, 117, 119, 120, 126, 136, 157, 158, 161, 163–166, 168, 172, 174, 180, 185, 192, 203, 208, 212–219, 217n8, 218n10, 219n13, 222, 222n20, 226–229, 237, 240–243, 294, 297, 300, 308 European parliaments (EP), vii, 5–7, 9, 11, 13, 16–19, 21, 95, 107, 108, 110, 137, 138, 173, 183–186, 191, 229, 235–256, 263–288, 294, 296, 296n4, 304, 306, 310 Executive-legislative relations, 12–14, 20, 74, 109, 135–138, 168, 182–188

G German government, 114, 117 German parliament, 111, 119, 122 Germany, 8, 10, 140, 175, 187, 202, 251 H House of Commons, vi, 10, 14, 18, 29–46, 52, 54–57, 59, 60, 62, 64, 71–74, 82, 84, 85, 88, 89, 91, 92, 94, 96n14, 187 House of Lords, 10, 14, 18, 19, 31, 34, 35, 53, 57, 57n1, 63, 65, 68, 81–102, 167n6, 187, 190 I Internal Market, 2–4 Ireland, viii, 2, 4, 10, 15, 44, 55, 56, 59, 65, 68, 70, 71, 84, 92, 95, 96, 101, 119, 125, 127, 149, 165, 180–182, 187–195, 193n25, 197–203, 224, 243, 247, 250, 253n7, 277, 278 Irish parliament, 127, 128, 230, 243 L Luxembourg, 10, 107–129, 150, 175, 202 Luxembourg parliament, 14, 107–129, 150, 167, 202 M Majority, vi, vii, 2, 3, 5, 12, 14, 18–20, 52, 56–58, 60, 61, 65, 70, 74, 82, 84, 85, 88, 89, 92–96, 99, 100, 102, 127, 134, 144, 155, 173, 175, 179, 180n5, 181, 191, 194, 195n30, 201, 208, 209, 228, 236, 243, 244, 265, 271, 277, 283, 308

 INDEX 

Members of the European Parliament (MEPs), 6, 9, 12, 16, 18, 19, 188n19, 198, 236, 237, 239, 239n2, 241–255, 253n7, 263–288 Middle East and North Africa (MENA), 16, 264, 265, 271–274, 276, 288 Minority, 14, 17, 38n3, 39, 52, 53, 68, 71, 74, 75, 92, 96, 138, 172, 181, 181n6, 183, 192, 194, 198 N National parliaments, vii, 4, 7–14, 17–19, 21, 62, 107–129, 133–150, 157, 158, 167, 167n6, 169, 170, 174, 179, 180, 183, 186, 193, 229, 294, 300 Notification, 3, 9, 13, 14, 29, 30, 37, 46, 68, 82, 87, 88, 90–92, 96, 98, 99, 121, 163, 219n13, 299 P Poland, 10, 15, 20, 128, 140, 150, 155–175, 202, 203 Polish parliament, 15, 127, 155–175, 202 R Regional governments, 140 Regions, 16, 135–142, 145, 149, 150, 200, 209, 212, 275–278, 280, 282, 286, 288 S Scrutiny, vii, viii, 4–22, 29–46, 59, 63, 67, 68, 73, 75, 76, 91, 99, 100, 107–129, 149, 155–175, 180, 191–193, 195, 195n30, 196n34, 197, 211, 253–255, 294, 304, 317

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Spain, viii, 10, 150, 202, 203, 207, 208, 210, 210n2, 211, 213, 219, 219n13, 220, 220n17, 222–224, 227–230, 230n32, 250, 253n7 Spanish parliament, 15, 127, 128, 150, 202, 207–230 T Taskforce, vii, 116, 184, 240, 300, 303, 307 Transitional agreement, 87 Transparency, 4, 16, 17, 21, 36, 41, 68, 157, 158, 294–304, 307, 314–317 U UK government, 3, 9, 30, 59, 264, 274, 276–278, 285 UK parliament, 4, 10, 11, 13, 17, 19, 21, 32, 276 United Kingdom (UK), vi–viii, 1–4, 9–11, 13, 15–22, 29–32, 34, 36, 38, 46, 51–76, 81, 82, 84, 86, 87, 90, 92, 95, 96, 98, 107, 115, 116, 118, 119, 122, 122n6, 125, 126, 128, 133, 137, 140, 143, 149, 155, 156, 156n1, 158, 163–166, 168, 170, 172–174, 181, 182, 184, 189, 190, 194, 195, 197–199, 202, 209, 216–218, 218n10, 219n13, 220–226, 228, 230, 230n32, 237, 238, 240, 242, 246, 247, 250, 263, 264, 276, 278, 293 W Withdrawal Agreement, vi, 9, 57, 58, 86, 87, 95, 102, 156–158, 237, 242–244, 253–255, 294, 297, 301, 314