The passage of the EU Withdrawal Bill marks the end of a more than three-year period of great uncertainty in British politics. The UK’s new relationship with the EU remains to be negotiated. Nevertheless, the government has a comfortable majority in the House of Commons. The question is how far we should now expect politics in the UK to return to ‘normal’, or to ‘business as usual’, as it used to be prior to the referendum vote on Brexit in 2016.
Something has changed
There are three reasons for thinking that what that will come to be seen as the ‘new normal’ will not look like the ‘old normal’, and that something has fundamentally changed in UK political practices. First, referendums have gained authority. Secondly, judicial review by a Supreme Court has been asserted as a prominent part of the new normal. Thirdly, the ethos of the civil service has been shaken with a likely long-term impact on its composition.
The UK has relatively little experience with referendums. Tradition has strongly favoured representative politics rather than direct democracy. The representative tradition is expressed in the mantra of ‘parliamentary sovereignty’. Moreover, the six referendums that had been held prior to the Brexit vote, either ratified the status quo, or endorsed moderate change, supported by Parliament, in the form of regional devolution.
The Brexit vote was different. It involved fundamental change in the UK’s governing arrangements and in the UK’s position in the world. Furthermore, it flew against the opinion of the majority of elected politicians in the House of Commons. The struggle between direct expression and the representative tradition did not end until the 2019 conservative victory, in favour of ‘getting Brexit done’, provided a vote and parliamentary majority that confirmed the referendum result.
It is unlikely that referendums can be put back in their box to be used by governments of the day for the purpose of endorsing what they, or Parliament, want. They will now be seen as ways through which voters can get what their government does not want to give them. Their status will eventually be tested again in Scotland. Whatever new relationship the government negotiates with the EU over the coming year, or any failure in the negotiations, might also be put to the referendum test. The doctrine of ‘parliamentary sovereignty’ now belongs to the past.
On the whole this is a good thing. People have got used to a fast, directly responsive internet market for meeting their regular needs in life. As citizens, they don’t want to have to rely exclusively on the indirectness, slow and uncertain responsiveness of old-style electoral politics. Expressions of direct democracy will be part of the new ‘normal’.
The UK’s Supreme Court asserted its role in exercising judicial review of decisions by the executive in two important cases during the Brexit battle. The court is relatively new, having been established in 2009, although its function of helping to ensure government under the law is not new. It took the opportunity to make its presence felt.
Democracy theorists have long noted that the function of judicial review by a Supreme Court is not ‘law’ as we know it, but, involves a special kind of political and social judgement dressed in legal clothes. In this light, the reviewing Court has not only to make a decision on the merits of the case, but also on whether or not to take up the case being brought to its attention, (ripeness) and in what circumstances it should defer to the political branches of government (deference).
In the case of the UK, the Court has yet to establish a track record on decisions about ripeness, or a doctrine on deference. It has chosen simply to assert itself. It is unfortunate that its two key judgments rested on a view of parliamentary sovereignty that already is out of date. Its judgments therefore do not appear safe, or likely to stand the test of time.
In the aftermath, there is some talk about the manner of appointments to the Court. Appointment by the government would impair the independence of the Court. However, the law should not appoint its own. Some kind of lay assessment of potential appointees seems necessary.
Even though the Supreme Court has much further work to do in order to establish its reputation, its role is here to stay. Future governments will have to look over their shoulder more than they have done in the past.
The civil service
The civil service has been widely believed to have been against Brexit. Brexit has thus been a challenge to its carefully cultivated reputation of ‘impartiality’. Distrust of the civil service seems to be one factor in the formation of a joint group of special advisors for Prime Minister and Chancellor of the Exchequer.
There is also talk of a need to rely less on ‘generalists’ and to bring in more specialists and experts. The new blood will, allegedly, be better able to link what we observe in the outside world with new and up-to-date understandings drawn from the social and natural sciences.
What seems likely to emerge over the long term is a strengthening of the trend away from ‘career’ or life-time civil service employment to greater reliance on short, fixed-term appointments. A civil service job will be seen as just one step on a wider career ladder. What is lost in this process is institutional memory.
Panic in the Palace?
One of the features of the last 12 months has been a carefully orchestrated campaign by ‘the Palace’ to make clear the line of succession from the Queen. It seems as though there may have been a fear that, in uncertain times, the House of Commons might assert a role in appointing a future head of state.
Change in the EU?
While the UK has been going through its own form of Brexit trauma, the EU also appears keen to put Brexit behind it and to address its other concerns. These include, finding new tax and spending instruments for the budget, the promotion of further capital market and cross-border banking integration, an ambitious ‘green’ agenda, a more assertive foreign policy and developing a common defence capability. A conference on the Future of Europe is to be held.
In setting these goals the EU is following its old path of what is termed ‘neo-functionalism’ where new policy goals drive political and institutional change towards a form of European ‘state’. However, what is not clear is how far this old recipe will still work. Even with Brexit out of the way, politics in the EU remains fractious. The EU may itself have to consider changes to its established mode of operation and political ambitions. The Conference on the Future of Europe needs to consider a range of alternative future structures and the scope for greater flexibility in its internal arrangements.