1 The Contestation of Brexit
The United Kingdomâs (UKâs) 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 peopleâs decision to leave the EU added to a sense of the European integration project being in terminal decline. While âBrexiteersâ 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.
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 Mayâs insistence that âBrexit means Brexitâ could hardly hide the fact that fundamentally different ways of relating to the EU could be chosen after Brexit, from the âsofterâ 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 âhardâ versions of Brexit that would place the UK firmly outside the EUâs 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 EUâsomething that had been ruled out early as a âred lineâ in the British negotiating position. Second, the âopting inâ of Britain into selected EU policies or institutions such as regulatory agencies was not deemed possible without a financial contribution to the EU budgetâagain something the British government could not conceive of. Third, achieving a âhardâ 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 EUâs position in support of Ireland. Furthermore, there have also been serious concerns about the protection of citizensâ rightsâEU citizens resident in the UK as well as UK citizens living in the other member statesâin 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 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 âPeopleâs Voteâ 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 âtraitorsâ.
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 UKâs 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 governmentâs 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 anâarguably surprisinglyâunited EU which maintained remarkable coherence and steadfastness throughout the negotiations. The governments of the remaining 27 member statesâthe EU27 as they became knownâwere represented in the negotiations by a European Commission âTask Forceâ 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 andâto the extent to which these existedâbenefits of Britain leaving the EU were unevenly distributed across the different member states, the EU27 persistently maintained a common line that regarded the four freedomsâthe free mobility of goods, services, capital and personsâas 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 EU27âs 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: âHow deeply and decisively have parliaments been involved in the process?â; âHow effective has their scrutiny of the negotiations been?â and âTo what extent have their formal powers matched their actual influence over the outcome?â
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 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 parliamentsâ 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 EUâs 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 EPâs 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 a...