*/
Should MPs be able to legislate contrary to the wishes of the government of the day? The Cooper Bill has raised fundamental questions over the relationship between law and politics in the United Kingdom
Since the House of Commons rejected the Brexit deal in the first meaningful vote in January 2019, a number of MPs have sought to take steps to legislate, against the government’s wishes, to prevent the UK from the leaving the EU without an agreement. On 8 April, these steps culminated with Parliament enacting the European Union (Withdrawal) (No. 5) Bill (the ‘Cooper Bill’). The Cooper Bill has raised fundamental questions over the relationship between law and politics in the UK. The two which I will address here are: whether MPs should be able to legislate contrary to the wishes of the government of the day; and whether it is desirable to use legal means, as the Cooper Bill proposed, to shape the relationship between the Commons and the government.
The role of MPs within the legislative process is conditioned by the fact that the government normally only introduces Bills which it knows will command the support of a majority of MPs. If government Bills were regularly defeated then it would call into question whether the government could continue to govern.
Since the Brexit deal was published in November 2018, the relationship between the government and the House of Commons has not functioned normally. The government has not been able to put forward proposals that reflect what the majority of MPs want. The decision of the Commons to approve the Cooper Bill showed that MPs outside the government could advance a proposal, on the major policy issue facing the country, which could command majority support despite the government’s opposition. Some commentators have argued that those MPs behind the Cooper Bill acted improperly, in constitutional terms, by seeking to legislate against the government’s wishes. However, if the government had followed existing constitutional practice, then once it became clear that a majority of MPs could be in favour of the substance of the provisions in the Cooper Bill, the government should have put forward its own version of the legislation to avoid defeat.
"If the government had followed existing constitutional practice, then once it became clear that a majority of MPs could be in favour of the substance of the provisions in the Cooper Bill, the government should have put forward its own version."
One of the dominant features of the parliamentary debate over Brexit in the 2017 Parliament was the desire of a number of MPs to create a legislative framework to define the Commons’ role in the Brexit process. In 2018, MPs put the government under pressure to create a legal framework to regulate the ‘meaningful vote’ (resulting in s 13 of the EU (Withdrawal) Act 2018). In 2019, MPs have focused their attention on legislating to require the government to request an extension to Article 50 (the Cooper Bill). Both are relatively unusual in domestic constitutional terms for using legislation to direct government policy. Nevertheless, the ticking clock of Article 50 and the resulting instability arguably justify unorthodox constitutional solutions. The problem with legislating in this way is that is very difficult to craft legislative solutions ‘as you go’. Section 13’s requirement that the government responds to the Commons rejection of the deal with a statement within 21 days illustrates the point.
Further, for some observers of the UK constitution, both s 13 of the EU (Withdrawal) Act 2018 and the Cooper Bill go against the grain of the UK’s constitutional tradition, by seeking to provide legal answers to political problems. Proponents of the traditional view argue that legislative constraints on either the government’s or the House of Commons’ discretion are more likely to result in undesirable and unanticipated consequences than improved results. The role of the Fixed-term Parliaments Act 2011 during the Brexit process arguably provides further support for this position.
It is tempting to conclude that had a bespoke framework to regulate the interaction between the Commons and the government over Brexit been in place at the outset, the process may have been less uncertain and fraught. Had the government anticipated MPs’ desire to avoid leaving the EU without an agreement and sought to introduce legislative provisions that could lessen the chances of it happening, perhaps MPs may have been able to focus on finding a compromise on the substance of the Brexit agreements.
Dr Jack Simson Caird is a senior research fellow in Parliaments and the Rule of Law at the Bingham Centre for the Rule of Law. From 2015 to 2018, Jack was a researcher in the Commons Library.
Senior Research Fellow in Parliaments and the Rule of Law at the Bingham Centre for the Rule of Law. From 2015 to 2018, Jack was a researcher in the Commons Library.
Since the House of Commons rejected the Brexit deal in the first meaningful vote in January 2019, a number of MPs have sought to take steps to legislate, against the government’s wishes, to prevent the UK from the leaving the EU without an agreement. On 8 April, these steps culminated with Parliament enacting the European Union (Withdrawal) (No. 5) Bill (the ‘Cooper Bill’). The Cooper Bill has raised fundamental questions over the relationship between law and politics in the UK. The two which I will address here are: whether MPs should be able to legislate contrary to the wishes of the government of the day; and whether it is desirable to use legal means, as the Cooper Bill proposed, to shape the relationship between the Commons and the government.
The role of MPs within the legislative process is conditioned by the fact that the government normally only introduces Bills which it knows will command the support of a majority of MPs. If government Bills were regularly defeated then it would call into question whether the government could continue to govern.
Since the Brexit deal was published in November 2018, the relationship between the government and the House of Commons has not functioned normally. The government has not been able to put forward proposals that reflect what the majority of MPs want. The decision of the Commons to approve the Cooper Bill showed that MPs outside the government could advance a proposal, on the major policy issue facing the country, which could command majority support despite the government’s opposition. Some commentators have argued that those MPs behind the Cooper Bill acted improperly, in constitutional terms, by seeking to legislate against the government’s wishes. However, if the government had followed existing constitutional practice, then once it became clear that a majority of MPs could be in favour of the substance of the provisions in the Cooper Bill, the government should have put forward its own version of the legislation to avoid defeat.
"If the government had followed existing constitutional practice, then once it became clear that a majority of MPs could be in favour of the substance of the provisions in the Cooper Bill, the government should have put forward its own version."
One of the dominant features of the parliamentary debate over Brexit in the 2017 Parliament was the desire of a number of MPs to create a legislative framework to define the Commons’ role in the Brexit process. In 2018, MPs put the government under pressure to create a legal framework to regulate the ‘meaningful vote’ (resulting in s 13 of the EU (Withdrawal) Act 2018). In 2019, MPs have focused their attention on legislating to require the government to request an extension to Article 50 (the Cooper Bill). Both are relatively unusual in domestic constitutional terms for using legislation to direct government policy. Nevertheless, the ticking clock of Article 50 and the resulting instability arguably justify unorthodox constitutional solutions. The problem with legislating in this way is that is very difficult to craft legislative solutions ‘as you go’. Section 13’s requirement that the government responds to the Commons rejection of the deal with a statement within 21 days illustrates the point.
Further, for some observers of the UK constitution, both s 13 of the EU (Withdrawal) Act 2018 and the Cooper Bill go against the grain of the UK’s constitutional tradition, by seeking to provide legal answers to political problems. Proponents of the traditional view argue that legislative constraints on either the government’s or the House of Commons’ discretion are more likely to result in undesirable and unanticipated consequences than improved results. The role of the Fixed-term Parliaments Act 2011 during the Brexit process arguably provides further support for this position.
It is tempting to conclude that had a bespoke framework to regulate the interaction between the Commons and the government over Brexit been in place at the outset, the process may have been less uncertain and fraught. Had the government anticipated MPs’ desire to avoid leaving the EU without an agreement and sought to introduce legislative provisions that could lessen the chances of it happening, perhaps MPs may have been able to focus on finding a compromise on the substance of the Brexit agreements.
Dr Jack Simson Caird is a senior research fellow in Parliaments and the Rule of Law at the Bingham Centre for the Rule of Law. From 2015 to 2018, Jack was a researcher in the Commons Library.
The Chair of the Bar reports back
Clement Cowley, Partner at The Penny Group, explains how global events can influence the performance of pensions and ISAs, and why taking a long-term approach to investing is often the most effective strategy
Mário Barroso, Head of R&D and Method Development at AlphaBiolabs, discusses what family law professionals need to know about hallucinogens, from the main hallucinogenic drugs encountered in family proceedings, to their effects and the testing options available
Harmony Christian Ministries is the latest charity to benefit from a £500 donation from AlphaBiolabs via the company’s Giving Back initiative
By David Green
Mário Barroso, Head of R&D and Method Development at AlphaBiolabs, examines the forensic science underpinning hair drug testing, its evidential scope and limitations, and why it remains the gold standard for evidencing patterns of drug use in family proceedings
Developing a tech start-up demands a different definition of excellence to the Bar, says Saara Idelbi. The co-creator of Advocatr on entrepreneurship, AI advocacy training, and matching the thrill of a killer cross-examination
At the start of her term, Chair of the Bar 2026 Kirsty Brimelow KC set out a series of priorities for the year ahead. One of those priorities was children in the justice system
As the world becomes more digital, Barbara Vinagre Mota examines international research into the mental health consequences of judges’ exposure to graphic and immersive evidence, highlighting the importance of support systems
Reviewed by Daniel Barnett
James McNeill Whistler at Tate Britain until 27 September Rothko in Florence at Palazzo Strozzi until 23 August Reviewed by Stephen Cragg KC
