Bringing together reflections from different members of the Centre for European and Public Law at the University of Bristol Law School, this collection focuses on the legacy of Conservative rule. Phil Syrpis questions how long the question of the UK’s relationship with the EU can be left to one side. Emily Hancox considers the various mechanisms adopted to deal with the legacies of EU law in the UK in the light of broader constitutional trends. Robert Greally reflects on the balance between the ‘politics of power’ and the ‘politics of support’ in the Conservative Party’s constitutional statecraft since 2010.
The remarkable absence of Brexit
Some may be able to forget that the defining slogan of the 2019 General Election was ‘Get Brexit Done’. Boris Johnson won an 80-seat majority, and ‘Got Brexit Done’, negotiating a Withdrawal Agreement, and the Trade and Cooperation Agreement (TCA), with the EU. The opportunities of Brexit were, surely, there to be grasped.
Nearly five years later, the political landscape is much changed. The main protagonists of Vote Leave, Boris Johnson, Michael Gove and Dominic Cummings, have either left, or are now leaving, the political scene. And one of the more remarkable features of the campaign, is that, notwithstanding a brief flurry to mark 8 years since the referendum of 23 June, Brexit is rarely mentioned. The Conservative Party is at best coy about Brexit and, once again, divided about Europe – is it not bizarre that we hear more of furlough, and the return to ‘normal’ levels of inflation, than we do about this government’s signature achievement of the Brexit Holy Grail? The Labour Party has chosen to take the UK’s new relationship with the EU as an immutable fact, proposing only modest moves towards greater cooperation, largely within the TCA framework. The return to the fray of Nigel Farage has been met with a focus on immigration and the European Convention of Human Rights. He does not celebrate Brexit. Instead, he bemoans that it has, apparently, been ‘betrayed’. It falls to the Liberal Democrats, the Greens, the Scottish Nationalist Party and Plaid Cymru to raise the salience of Brexit, and to call, in time, for a reconsideration of our relationship with the EU.
And yet, polls show that a large majority of the population think that Brexit has failed. Economic forecasts, uncertain as they inevitably are, indicate that Brexit has resulted in a long-term loss to GDP of 4%. With the new government looking for every opportunity to stimulate growth, it may not be long before the benefits of a closer relationship with the EU become impossible to ignore.
But while the economics point, fairly unequivocally, towards EU, or single market, membership, the politics of any such rapprochement is far more difficult. One obvious observation, which far too many in the Brexit debate consistently ignore, is that any closer relationship requires a negotiation with the EU and the conclusion of a new agreement with the EU, signed off by all 27 Member States. A warm welcome for the UK from the EU is not a given. Even more significant is the difficulty involved in making the relationship with the EU a political issue in the UK. It is a topic which is divisive, and one which would take up a great deal of political bandwidth. A major question for the years ahead is likely to be whether the new government has the courage to take political risks (not just in relation to Brexit, but also in relation to taxation, housing and the NHS) in pursuit of important social and economic objectives.
Is Brexit finally ‘done’? From retained to assimilated law
What does it mean for Brexit to be ‘done’? Leaving the EU was not enough. For successive Conservative Governments, removing the remnants of EU membership from the UK’s statute book has proved a fractious issue.
Theresa May’s initial priority upon leaving the EU was to ensure ‘maximum clarity’ over the law. Without the EU (Withdrawal) Act 2018 (EUWA), many EU-derived and EU laws would have disappeared following repeal of the European Communities Act 1972. To avoid gaps in the law, the EUWA created a new category of domestic law: retained EU law (REUL). Not only did the REUL save the text of EU and EU-derived laws, but the principles for interpreting EU law were maintained for the sake of legal certainty and maintaining rights protection. Importantly, though, the EUWA also created a springboard for change; new Acts of Parliament could repeal REUL, wide powers were delegated to the executive to amend REUL, and domestic courts could depart from EU case law.
Change did not come fast enough for some. Despite the adoption of several Acts of Parliament (such as the Fisheries Act 2020 and the Trade Act 2021) and over 600 statutory instruments, the Johnson Government soon announced a review of retained EU law and new mechanisms for facilitating reforms. By 2022, the need to re-establish the primacy of Parliament and remove the traces of EU membership became a political priority. One might recall here Rishi Sunak’s unsuccessful campaign to lead the Conservative party in 2022 featuring a video of him shredding EU laws and vowing to ‘keep Brexit safe’.
Under Liz Truss, there came the radical proposed Bill to repeal almost all retained EU law. Despite criticism from within the Conservative Party, Rishi Sunak changed tack. The more moderate Retained EU Law (Revocation and Reform) Act 2023 (RRA) only repealed around 600 pieces of REUL, much of which has been deemed ‘superfluous’. The Act also abolished REUL as a category of domestic law, rebranding what is left as assimilated law. Where the radicalism of the RRA lies is in its grant of broad powers—seemingly involving policy choices—to both the executive and the courts.
What is the result of this struggle to ‘get Brexit done’? According to the Government’s Dashboard of REUL, over 75% remains unchanged. Furthermore, the wide executive powers have largely been used to consolidate and maintain the same level of rights protection as under EU law. Using another metric, that of respect for the rule of law, the impact is perhaps greater. Both the EUWA and the RRA are reflective of a general trend identified by the Delegated Powers and Regulatory Reform Committee for recent Governments to adopt ‘skeletal’ laws. In other words, much of the eventual content of the law is left to the executive with some—albeit limited—Parliamentary scrutiny. We can only hope that the new administration will heed their call to ‘rebalance power between Parliament and the Executive’.
Navigating Constitutional Turbulence: Conservative Party’s Constitutional Statecraft Since 2010
Over the last fourteen years, the various Conservative Governments have faced significant constitutional turbulence. The Conservatives have been buffeted by unforeseen challenges posed by their coalition with the Liberal Democrats, the rise of Scottish Nationalism, and the COVID-19 pandemic. However, they have also added self-inflected upheavals via their hostility towards the Human Rights Act, their approach to the European Union and Brexit and the chaotic premierships of Boris Johnson, Liz Truss, and Rishi Sunak. The Conservative Party was historically positioned as the defender of the Constitution from unnecessary changes. Yet, since 2010, the party has broken with this tradition by pursuing constitutional changes that have exacerbated the ongoing constitutional turbulence.
Successful statecraft necessitates the leadership of any major political party to balance the pressures of both the ‘politics of support’ and the ‘politics of power’ (See Andrew Gamble 1974). The ‘politics of support’ revolves around securing and retaining the support of voters, the political party, and the media. In contrast, the ‘politics of power’ reflects the realities of the formal and material constitution and the domestic and global economic and strategic pressures. The ‘politics of power’ reflects the constraints on the ‘politics of support ‘; what the electorate, the party or the media desires may not always be feasible. This is reflected by the fact that Parliamentary Sovereignty is only a formal legal principle and is effectively constrained by political and economic reality, as well as international politics and law. The politics of power generally discourages constitutional reform unless necessary for ensuring stable governance. The politics of support may only change aspects of politics when a leader develops a clear vision of the necessary changes and secures sufficiently widespread support for their proposals. Margaret Thatcher’s economic reforms and Tony Blair’s constitution reforms are perhaps rare examples of successful statecraft that changed the politics of power moving forward.
The Conservatives’ statecraft can be divided into distinct phases. The first phase, between 2010-2014, represents a coherent and distinctly Conservative attempt to balance the politics of support and power. The Cameron Government accepted constraints imposed upon it by the need to enter into and maintain its coalition with the liberal democrats while simultaneously frustrating the Liberal Democrats’ attempts to deliver electoral reform and introduce an elected House of Lords. Similarly, the Cameron government correctly recognised the political and economic imperative of defending the union from the threat of Scottish independence and convinced the Scottish electorate to reject independence during the 2014 referendum.
However, after 2014, the Conservatives began to increasingly prioritise the politics of support over the politics of power when it came to constitutional questions. In this second phase, the Conservatives’ statecraft became increasingly concerned with responding to increasing instability within its traditional electoral base. Since the mid-1990s, the Conservatives have consistently struggled to increase their vote share in ways that produce a stable parliamentary majority within the House of Commons. Simultaneously, like many centre-right parties in Europe, the Conservatives have been forced to compete with right-wing populist parties: the UK Independence Party, the Brexit Party and currently, the Reform Party. Each populist party has threatened to divide the Conservative Party’s electoral base and as has occurred in many European states, potentially even replace the Conservative Party as the de facto party of the Political Right.
Since 2014, Conservative statecraft has practised the politics of support to contain this threat. As each leader has come under electoral pressure, each has made promises of constitutional reform designed to nullify the populist threat by co-opting populist proposals on questions regarding Sovereignty, immigration, and a general aversion to checks and balances. These have included promises to repeal the Human Rights Act, committing to a hard form of Brexit, the (unlawful) Propagation of Parliament, setting strict immigration targets, the Rwanda Policy, reducing Judicial Review, and threatening to withdraw from the European Convention of Human Rights.
Despite its focus on the’ politics of support,’ the Conservative Party, as the governing party, cannot afford to ignore the challenges imposed by the ‘politics of power.’ The party’s leadership has repeatedly set itself the daunting task of managing the consequences of its proposals, which is comparable to attempting to unscramble the constitutional omelette. As a result, the modern Conservative Party appears less like a defender of the Constitution and more like a constitutional agitator, advocating for profoundly unconservative and ill-defined positions on the Constitution. The recent Conservative constitutional statecraft provides valuable lessons on how not to balance the ‘politics of support’ with the ‘politics of power.’