Brexit and the renaissance of parliamentary authority
| Author | Damian Chalmers |
| DOI | 10.1177/1369148117723460 |
| Published date | 01 November 2017 |
| Date | 01 November 2017 |
| Subject Matter | Special Issue Articles - Part Two |
https://doi.org/10.1177/1369148117723460
The British Journal of Politics and
International Relations
2017, Vol. 19(4) 663 –679
© The Author(s) 2017
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DOI: 10.1177/1369148117723460
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Brexit and the renaissance
of parliamentary authority
Damian Chalmers
Abstract
With the promised return of Parliamentary powers, Brexit is supposed to be a fillip for representative
democracy. There is a significant danger that will not be so. EU membership weakened the conditions
for representative democracy within those fields governed by the EU. Whitehall will almost be
the central player in the reform of EU-derived law. And policy styles are being developed which
marginalise rather than consolidate UK legislatures in these fields. Restoration of representative
democracy will require a realistic re-evaluation of its virtues so that these can be protected and a
re-imagination of the possibilities and limits of parliaments within such a landscape.
Keywords
citizen initiatives, devolved legislatures, EU-derived law, Great Repeal Bill, impact assessments
Introduction
In her foreword to the Command Paper on the Great Repeal Bill, the Prime Minister set out
one of the great promises of Brexit, its dividend for Parliament and the devolved legisla-
tures, by stating that when Brexit happens, it will ‘be for democratically elected repre-
sentatives in the UK to decide on any changes to that (EU-derived) law’ (Department for
Exiting the European Union, 2017: 5). The assumption behind this dividend is a relatively
seamless replacement of the EU law-making process by domestic representative ones.
However, there are reasons to be sceptical about this assumption. As most EU-derived law
will not take the form of statutes, Whitehall will be the central actor in any reform process.
Parliament’s ability to reassert itself within this context is constrained. EU membership has
weakened both its authority and capacity over those activities governed by EU-derived
law. The government is also increasingly adopting a variety of policy styles in relation to
Brexit, be these managerialist, clientelist or populist ones, which are likely to sideline it.
It does not help to bemoan or ignore this issue. Instead, a commitment to representa-
tive democracy involves reflecting on how to entrench its virtues within such a land-
scape. The claim of this essay is that such a commitment would involve institutionalizing
three beliefs in particular. The first is that representative institutions should be
National University of Singapore and London School of Economics and Political Science
Corresponding author:
Damian Chalmers, Faculty of Law, National University of Singapore, 21 Lower Kent Ridge Rd,
Singapore 119077.
Email: damian.chalmers@nus.edu.sg
723460BPI0010.1177/1369148117723460The British Journal of Politics and International RelationsChalmers
research-article2017
Special Issue Article
664 The British Journal of Politics and International Relations 19(4)
pre-eminent. Second, decision-makers are accountable to those that they represent and
this accountability requires them to take account continually of the interests of the rep-
resented. Third, all decision-makers have a particular quality of political judgment,
which is described as representative judgment in this essay. This judgment involves, on
the one hand, a reflective balance between individual, shared and common interests
and, on the other, expression of this balance in terms of values reflective of the society
rather as interests or abstract ideals.
This article will begin by setting out these virtues at more length. The central part
of this article will then describe how these are threatened by Brexit. It will then finish
by suggesting some reforms, which might temper these threats and protect these three
virtues.
The three virtues of representative democracy
If the Prime Minister’s statement at the beginning of this essay expresses a commitment
to representative democracy, such a commitment only makes sense if representative
democracy is believed to embody certain virtues. There is an extensive and established
literature on the possibilities and limits of representative democracy. It is beyond the
scope of this essay to add it. However, for the purposes of this essay, it will be suggested
that representative democracy involves a commitment to three virtues, in particular.
The first is a commitment to representative institutions having a pre-eminent place
in collective decision-making. They take the collective decisions which matter and they
decide what matters for the purposes of meeting this threshold. They have this pre-
eminence not simply because representatives can be voted in and voted out but also
because of the nature of debate offered by legislatures. More people participate in the
adoption of measures by legislatures than is the case with ministries, courts or agen-
cies. This participation allows for debates to be marked by greater plurality, more arms-
length deliberation between decision-makers and stronger procedural formality to keep
in check so many actors (Waldron, 1995). It also carries over into statutory content. By
virtue of the need to find mutual accommodation between so many actors, statutes may
carry more caveats and qualifications than judgments but may also, as they will be mid-
level agreements, be more general and carry more flexibility than executive acts. To be
sure, the above is a characterisation of legislative debate and statutes which practice
will often not meet (Waldron, 1995: 644). However, it sets out a standard which
Parliament is best placed to meet and against which its behaviour can more easily be
evaluated than is the case with other institutions.
Second, representative democracy involves a commitment that representatives be
accountable to the represented for how they exercise their power. This accountability is
most visibly institutionalised in elections, but these elections may not establish clear
parameters of accountability. Indeed, it is impossible to argue that the 2017 general elec-
tion set such parameters in relation to EU-derived laws as almost no commitments were
made as whether the vast majority would be kept or changed. In such circumstances, a
commitment to representative democracy involves finding other mechanisms, which will
secure that the interests of the represented are taken into account. There must be curbing
of those representative deficits which occur either because representative institutions
have not decided things that they should have or because the quality of reasoning exer-
cised does not meet the ideals of representative democracy, because certain interests were
not represented or certain values not expressed (Disch, 2017).
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