- Theresa May has a mountain of Brexit-related legislation to get through Parliament.
- MPs, the House of Lords, and devolved administrations could cause May difficulties.
- Public opinion about leaving the EU may change in coming years.
- Pressure to delay or even reverse Brexit may become overwhelming.
LONDON — Can Brexit be stopped? Until now the conventional wisdom has been that the answer to this question is ‘no’. However, following May’s failed attempt to win a “Brexit mandate” in the general election it is worth looking at the factors that could potentially force Britain to change course.
Several outlets report today that Scotland will have a ‘veto’ on aspects of Brexit, raising the prospect of Members of the Scottish Parliament holding up Britain’s exit from the EU.
“Scotland could block Brexit,” reports the Independent, citing comments from the prime minister in parliament yesterday that “a legislative consent motion may be required in the Scottish Parliament”.
The Sun agrees, reporting that: “Mrs May also conceded the Scottish Parliament will have to consent to the Great Repeal Bill, set to shift EU legislation into UK law. It could see the SNP-dominated chamber vote down major elements applying to Scotland.”
But is there really a Scottish veto on Brexit?
So is it true? Will Scotland really be able to hold up Brexit? Well not really. Legislative consent motions relate to the convention that devolved administrations must give consent to legislation on matters that they would ordinarily have sovereignty over, under the so-called “Sewel Convention”.
However, this is just a convention, it is not legally binding. The UK parliament has legislative supremacy over all of the devolved administrations. If the Scottish Parliament refuse to sign any legislative consent motions relating to Brexit, the UK parliament can simply ignore it and push ahead anyway.
The real Brexit veto lies in Westminster
While the Scottish Parliament could cause May some embarrassment, the real power to veto aspects of Brexit lies not in Holyrood, but in Westminster. Over the next two years, May plans to implement a total of eight Brexit-related bills. That would be a struggle under any circumstances, let alone under a minority government in a fragile yet-to-be-signed deal with the DUP.
On Wednesday Sky News reported that around 30 MPs have made it clear that they will not support May’s position on leaving the EU without a deal. When May returns to Parliament after Brexit negotiations have concluded, her insistence that “no deal is better than a bad deal” would almost certainly fail to win the backing of Parliament, even with the support of the DUP.
However, the more pressing problem will come with the Great Repeal Bill.
What is the Great Repeal Bill?
The Great Repeal Bill is the means through which Britain will convert all European law into British law before Britain leaves the EU. While the process looks simple on paper, in practice it will be fiendishly difficult both to implement and even to get through parliament. It is likely to face major challenges, not just from MPs, but from the House of Lords.
Surely peers can’t block the will of the people on Brexit?
Under ordinary political circumstances, peers are prohibited by the so-called Salisbury Convention from blocking the manifesto commitments of a governing party. However, there is intense disagreement over whether the convention applies in a hung parliament.
Professor of Public Law at the University of Cambridge, Mark Elliott, has said that “the governing criterion is ultimately what members of the relevant political community think” while the Liberal Democrats’ Shadow Attorney General, Lord Thomas, believes that it does not apply in a hung parliament.
This is a grey area. The convention treats a manifesto as a binding document, yet the government’s failure to win a majority has thrown that into doubt. On Wednesday Theresa May ditched large swathes of her manifesto, effectively breaching her promises to the country on day one of her government. Peers will likely argue that if the prime minister herself doesn’t feel bound by her own manifesto, why should the House of Lords either.
There is a precedent here. During the last coalition government between the Liberal Democrats and the Conservatives, the House of Lords did attempt to block legislation on several occasions, despite the Salisbury convention but ultimately failed. There is a good chance that they may well succeed during this parliament.
The real forces that can block Brexit
Ultimately though, Britain will be leaving the EU in March 2019 unless a political decision is made in government to either pause or reverse course. While at the moment that may seem unlikely, there are several good reasons to believe that the political landscape will change over the next 21 months.
We may have a new government
May’s government does not currently look like it is built to last. If over the coming months May does face a leadership challenge then there would be huge pressure for a second general election before Brexit. If that did happen then the new government may decide to either delay or reverse Brexit altogether. This may seem a distant possibility but who thought we would be where we are now before Britain voted in the referendum?
The economy may collapse
As Brexit approaches, there is a non-negligible chance that the economy will suffer a major Brexit-inspired downturn. All of the polling during the referendum campaign and since suggests that people are in favour of Brexit and in favour of dramatically reducing immigration only if it doesn’t personally hit their pockets. As the economic reality of leaving the Single Market and the Customs Union becomes clear, the calls for a second referendum on leaving the EU may become hard to stop.
As the economic reality of leaving the Single Market and the Customs Union becomes clear, the calls for a second referendum on leaving the EU may become hard to stop.
Negotiations may fail.
The supreme difficulty Britain will face in getting its way in Brexit negotiations was clear after just the first day of talks when the Brexit secretary was forced to capitulate to EU demands on the timetable for negotiations. Those difficulties are only likely to increase as the question of the huge ‘divorce bill’ Britain is expected to be charged comes under discussion. After months of tortuous negotiation, in which the EU is unlikely to budge, the question of whether it may just be better to stay where we are could start to become unavoidable
The political costs of staying in may become lower than the costs of leaving
Both the government and the opposition remain committed to leaving the EU, but that may change. We are in politically febrile times and only a fool would predict with any certainty what the landscape will look like in 2019. If by then public and political opinion has shifted on Brexit then whoever is prime minister may decide that a rethink on Brexit would be less damaging than simply pushing ahead.
Both France and Germany have already indicated that the door would be open for Britain to think again on Brexit. We shouldn’t completely rule out the possibility that this may happen.
Ultimately though, if there is a veto over Brexit, it will be because of a deliberate political choice. It will not be through any ‘veto’ from Scotland, MPs or peers.
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