Leiden Law Blog

Brexit, General Election and Legitimacy

Posted on by Manel Moya Noguera in Public Law
Brexit, General Election and Legitimacy

The UK recently went to the polls, although in a normal situation there would have been no election until 2020. The country is currently experiencing an exceptional situation where it is on the verge of final negotiations for the withdrawal agreements with the institutions of the EU.

The undeniable fact is that Theresa May has lost her absolute majority in a country unaccustomed to hung parliaments. It all began when David Cameron, forced by different circumstances, called for the promised referendum in 2016 in which 17,410,742 people backed the “leave option” while 16,141,241 preferred to stay. In light of the results, David Cameron, who opposed Brexit, resigned in the ultimate expression of political responsibility. May succeeded Cameron as the Conservative choice to lead the negotiations to get Britain out of the EU.

Obviously, such exceptional negotiations require unsurpassed negotiators. The UK government will negotiate in Brussels but it is the UK parliament that will have the final say on Brexit. That is why assessing parliamentary legitimacy to agree the Brexit deal is so important. The previous House of Commons was the result of the election held on 7 May 2015 where none of the major parties supported the withdrawal of the UK, except UKIP which only had one MP, though it achieved a high 12.6% of the vote share. The Labour Party achieved 30.4 % of the votes and 232 seats, with a clear pro-EU position as evidenced in its manifesto by stating that “our membership of the European Union is central to our prosperity and security”. The pro-EU Scottish National Party and the Liberal Democrats also received high percentages, 4.7 % and 7.9 % leading to 56 and 8 seats respectively. The Conservative Party won the election with 36.9 % of the votes and a majority of 331 seats. We should not forget that the party did not officially campaign to leave the EU, but to hold a referendum on the issue. In the Conservative Manifesto the Tories only committed themselves to giving the British people “a say over whether we should stay in or leave the EU, with an in-out referendum by the end of 2017”.

As for the legitimacy of the previous Government in office to lead the Brexit negotiations, in addition to what was previously stated on parliamentary legitimacy, the fact of having in office a Prime Minister who succeeded to the position through the resignation of her predecessor could be added. Although May did not come to power immediately after a general election, she was to lead arguably one of the most important negotiations in the country’s contemporary history.

After the recent election, we now have a hung Parliament but with a majority in favour of Britain’s exit from the EU. Whether this election was good for the country or not remains a point of debate. The fact is that May’s government now depends on other political forces to stay in power. May was called to be in charge of the Brexit, as all major parties accepted the outcome of the referendum. But what does Brexit mean? We can all agree that there are a lot of different Brexit options. Theresa May was clearly the representative of the “hard Brexit”, stating on  several occasions that “Brexit means Brexit”. She called for the early election to get a clear mandate from the British people to support her in proceeding with the hard Brexit strategy.

Despite May’s intentions and the consequences for the political stability of the country, this election was of vital importance since it allowed the formation of a parliamentary chamber elected after a campaign where “Brexit” was the main subject and where the candidates had to take a stance. The British people could vote for the different political options and they did it by delivering May with a hung Parliament. Some analysts could say that May’s “hard Brexit” is now not easily achievable and softer positions will need to be considered. This election, though, was constitutionally necessary in order to reveal a picture of British society on Brexit. Legally speaking, May could have avoided calling for an early election and getting a hard Brexit deal in Brussels passed by Westminster. But would that have been legitimate?

Recalling the validity of representative democracy, and despite the valuable opinion of the people in the EU June 2016 referendum, the definite and binding opinion is that of the Members of Parliament. Members, by the way, who will not only have to supervise and control the negotiations of British ministers in the European institutions, but also to consent to the final agreements. In the absence of parliamentary consent, the agreements will never enter into force and may lead the country into unknown waters. In my opinion, the previous Parliament was not fully legitimised to agree a Brexit deal as the campaigns of the major political parties, except that of UKIP, did not focus on Brexit. Obviously, I do not question the legal authority of Parliament which, before and now, can adopt a sovereign and final binding decision on every matter following the principle of parliamentary sovereignty of Westminster.

The general election of June 2017 has served to renew the contract of the representatives and constituents in these changing times and to give Brexit parliamentary legitimacy. The “leave option” is now more legitimised than it was before the general election, not only directly through the 2016 referendum but also indirectly through the recent election. We will see what Brexit will finally look like after the cross-party negotiations.

However, May’s position is undeniably weaker than it was before the election as she did not get the strong mandate she had requested from the British people. Elizabeth II delivered the Queen’s Speech on 21 June (which states the government’s policies and proposed legislative programme for the new parliamentary session) and in the coming days Westminster will be debating its contents. Theresa May’s first parliamentary test during the Queen’s Speech debates is expected to pass since a deal with DUP was finally agreed last 26 June.

In a matter of one year, the EU referendum took place, a Prime Minister was replaced, Brussels was notified of the triggering of article 50 TEU (29 March 2017) and a new election was held showing the plurality of British society on Brexit. A new minority government has been formed and EU negotiations started on 19 June as scheduled. If no exceptional circumstances arise or both parties agree otherwise, the UK will be out of the EU by the end of March 2019. The Westminster system has proven to be a century-old democracy that knows how to reinvent itself and navigate through turbulent waters without making the system collapse. The Brexit negotiations will go ahead, and time will tell what kind of Brexit we will have and if May will still be in charge.

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