A Mobile Phone in One Hand and Erskine May in the Other: The European Research Group's Parliamentary Revolution
←
→
Page content transcription
If your browser does not render page correctly, please read the page content below
Parliamentary Affairs (2022) 75, 536–557 doi:10.1093/pa/gsab004 Advance Access Publication 2 March 2021 A Mobile Phone in One Hand and Erskine May in the Other: The European Research Group’s Downloaded from https://academic.oup.com/pa/article/75/3/536/6157032 by guest on 19 July 2022 Parliamentary Revolution C. R. G. Murray1,* and Megan A. Armstrong2 1 Newcastle Law School, Newcastle University, UK; 2 International Relations and International Politics, Liverpool John Moores University, Liverpool, UK *Correspondence: colin.murray@ncl.ac.uk It has become axiomatic that backbench Members of Parliament (MPs) at Westminster have limited the capacity for independent action under the burdens of constituency business and whipped votes. Even the limited avenues available for such MPs to shine, such as select committees, are often illusory because par- liamentarians have little time to prepare the materials or brief themselves on any but the highest profile witnesses. The political parties have benefitted from this state of affairs; docile MPs make for reliable votes. The rise of the European Research Group (ERG) as a parliamentary force disrupts this narrative. Galvanised by single-issue opposition to the UK’s involvement in ‘Europe’, encompassing both the European Union (EU) and the European Convention on Human Rights (ECHR), the Group successfully exploited the balance of power in the Commons during the 2017–2019 Parliamentary Session. This article analyses the methods by which the Group’s members magnified their influence over Brexit debates. Keywords: Brexit, parliamentary procedure, select committees, pooled research services 1. Introduction Parliamentary procedure has been described as ‘one of the most arcane parts’ of the UK constitution (Sumption, 2020, p. 110). In the 19th century, obstruction by Charles Stewart Parnell’s Irish Parliamentary Party (IPP) famously provided the impetus for the ‘transformation of the House of Commons from a kind of club for the self-governing aristocracy into the ruling and controlling body of a modern democracy’ (Strauss, 1951, p. 187). The 1880s saw the development of tools un- known to the first edition of Erskine May; the whipped votes, guillotine motions and closure motions, which would enable the governing party to dominate # The Author(s) 2021. Published by Oxford University Press on behalf of the Hansard Society. This is an Open Access article distributed under the terms of the Creative Commons Attribution License (https://creati- vecommons.org/licenses/by/4.0/), which permits unrestricted reuse, distribution, and reproduction in any medium, pro- vided the original work is properly cited.
A Mobile Phone in One Hand and Erskine May in the Other 537 20th-century parliamentary proceedings (Redlich, 1908, pp. 164–185). Backbench MPs have long complained about their lot under this system, often struggling to make their voices heard under Westminster’s strictures (Russell and Gover, 2017, p. 121). The 2017–2019 Parliament, however, saw these arrangements challenged. Russell (2021, p. 1) contends that four key factors coalesced to produce a parlia- mentary ‘perfect storm’: the fallout from the 2016 referendum on the UK’s mem- Downloaded from https://academic.oup.com/pa/article/75/3/536/6157032 by guest on 19 July 2022 bership of the European Union (EU) (the ‘Brexit’ referendum), a minority government, divided political parties and, most significant for our purposes, ‘the weakness of parliamentary rules in facilitating a solution’. The Brexit referendum outcome offered neither a strong mandate nor clear direction on the shape of Brexit. The resulting tensions in Parliament as whole, and particularly within the Conservative Party, combined with May’s parliamentary minority to produce the dramatic spectacles of government defeats over the proposed UK-EU Withdrawal Agreement in early 2019 (Russell, 2021, p. 9). The European Research Group (ERG) was able to play a decisive role in these events. Like the IPP before it, the ERG cohered around a single issue: a determi- nation to undo the UK’s relationship with the European project. Formed in 1992 by Sir Michael Spicer, at the height of Conservative parliamentary opposition to John Major’s signing of the Maastricht Treaty (Cowley and Norton, 1999), the ERG became an increasingly significant parliamentary force after the 2016 refer- endum, an external ‘shock’ with profound implications for dynamics within the Conservative Party (Harmel and Janda, 1994, p. 265). In this period the Group transitioned from being just one manifestation of Eurosceptic ’tendencies’ within the Conservative Party into the hub around which a distinct ’faction’ of the Party organised itself and leveraged its parliamentary strength (Rose, 1964), becoming ‘May’s primary adversaries’ (Russell, 2021, p. 10). This article explores whether the ERG’s prominence during this period was more than the function of the weakness of Theresa May’s minority government. That weakness undoubtedly contributed to its most dramatic parliamentary suc- cesses, but atomised backbench MPs would have struggled to exert such influence over policy-making (Strom, 1990, p. 39–40). We examine the constraints on indi- vidual legislators within the Westminster system and how ERG coordination en- abled backbench Eurosceptic Conservative MPs in circumventing many of them, even when they were excluded from power centres within their party. We argue that their success was due in large part to their harnessing of the latent power of backbench MPs through organisation, coherent messaging, forensic (and often deliberately disruptive) questioning and focused use of resources. We highlight the range of tools the ERG employed to shape parliamentary discussions of Brexit, examining how its affiliated MPs operated within the Commons Chamber and Select Committees. We conclude by assessing the success of the ERG’s
538 Parliamentary Affairs strategies for obstructing and disrupting established parliamentary politics, and whether this can be replicated by other groups of backbenchers. The empirical data used were composed of publicly available transcriptions and video recordings of select committee oral evidence sessions. Our analysis addresses uses of obscure parliamentary procedure in the Commons chamber by ERG-affiliated MPs and treatment of Select Committee witnesses which were ob- structionist in nature. Obstructionism should not be caricatured as rule violations Downloaded from https://academic.oup.com/pa/article/75/3/536/6157032 by guest on 19 July 2022 (Bell, 2018): ‘it is a conduct which, in formal terms, complies with the procedural rules, but still constitutes an abuse of the forms . . . designed to delay or prevent parliamentary decisions’ (Bücker, 1989). Obstruction thus includes attempts at unsettling or delegitimising expert witnesses based on tangentially related and/or historical information, and employing obscure parliamentary procedure to dis- rupt or derail proceedings. The sessions selected span from autumn 2018 to sum- mer 2019, encompassing some particularly contentious points in the Brexit saga. 2. The rise of the ERG 2.1 The (changing) lot of the backbench MP Backbench MPs have long been characterised as harassed and overworked (Hardman, 2018). Their offices and personal researchers are overburdened with constituency work and most activity in the parliamentary chamber, and especially divisions, is carefully managed by party whips. This state of affairs suits the main political parties; isolated MPs make for pliant MPs (Wright, 2010, p.303). Parliament as a whole appears relatively weak as a policy-making organisation, with an orthodox view being that the executive, not the legislature, is dominant within the UK’s governance order (King, 1976). Some commentators, however, contend that governing-party backbenchers maintain considerable latent power (Russell et al., 2016). The challenge they face is harnessing that power. Backbench MPs remain the keystone to the operation of Parliament. A Government cannot function in the Westminster system without a reliable ma- jority. King (1976, p. 15) notes that there is a complex relationship between back- benchers and ministers and argues that to frame this relationship as dichotomous is misleading. Russell and Gover (2017) identify five interconnecting forms of power exercised by backbench MPs, including influencing the content of bills and pursuing amendments. These reflect some of the ways in which the ERG was able to exert power over May’s government. The Group’s ability to expand its in- fluence illustrates that far from being powerless, governing party backbenchers simply had to find a means to exercise their latent power within the system. Backbench MPs can exert influence through both rebellion and the threat of re- bellion (Russell and Gover, 2017, p. 121). Such rebellions tend to draw upon the
A Mobile Phone in One Hand and Erskine May in the Other 539 support of ‘rebellious elements in the party outside of Parliament’ (King, 1976, p. 16). Thus, Eurosceptic elements within the Conservative Party, which came to be fronted by the ERG, have consistently maintained that they act in accordance with the will of the people as expressed in the 2016 Referendum. In addition to the necessity of backbenchers’ votes to pass government legisla- tion, and the resultant threat posed by rebellions, a range of recent reforms have helped backbenchers to exert pressure on ministers. The Wright Committee Downloaded from https://academic.oup.com/pa/article/75/3/536/6157032 by guest on 19 July 2022 reforms introduced election to each party’s allocation of seats on select commit- tees by secret ballot (Reform of the House of Commons Select Committee, 2009, Rebuilding the House. HC 1117), allowing sufficiently sizable and organised groups of backbench MPs within a party to work collectively to position some of their number on a range of select committees which are important to their cause. Committees thus provide a means by which MPs can influence policy as they scru- tinise initiatives. King (1976, p. 19) offered a particularly optimistic view of com- mittee membership, and other non-party functions within the Commons, arguing that MPs ‘cease to see themselves as members [of a party]’, but rather ‘as back- bench Members of Parliament, concerned with investigating the quality of the per- formance of the executive . . . with protecting the rights of citizens against the executive’. Select Committees provide MPs considerable opportunity to scrutinise the government in light of their own agenda, but their effectiveness often depends upon how well those MPs are resourced and furnished with information. Speaker John Bercow’s approach to Urgent Questions has also assisted organ- ised groups of backbenchers. Under Standing Order 21(2), MPs can apply to the Speaker to request that a minister come before the House to address a question of ‘an urgent character and relates to matters of public importance’. The Speaker determines whether a Question meets the criteria of urgency and public impor- tance. These Questions can challenge a Government’s control of the agenda, as they require an immediate response separate from the standard rota of depart- mental questions. Although previous Speakers had granted few such questions, not permitting more than 14 sessions between 1999 and 2009, Bercow was mark- edly more receptive.1 Their use peaked during the 2017–2019 session, during which 307 Urgent Questions were permitted (Priddy, 2020, p. 4). Individual MPs, however, are rarely in a position to make the best use of these opportunities, having little time to format an Urgent Question according to the Speaker’s strict timetable, or, in the context of select committees, to review docu- ments or to formulate pointed lines of enquiry (Russell and Benton, 2011, p. 92). Although other groups of MPs have organised themselves as alternative power bases within the Conservative Party (e.g. the 92 Group or the Cornerstone Group), these groupings have often become talking (plotting) shops (Peele, 1 John Bercow, HC Deb, vol. 656, col 783 (18 March 2019).
540 Parliamentary Affairs 2017). The ERG’s primary role, as a pooled research service, has enabled it to cap- italise on these reforms. It can turn its research capacity to drafting Urgent Questions and briefing select committee members involved in significant inqui- ries. Although it has sometimes been said that ‘greater backbench independence creates more heat than light’, conservative backbench rebellions over Europe be- came determinative factors in government policy between 2010 and 2019, partic- ularly when retreats are taken into consideration alongside outright defeats Downloaded from https://academic.oup.com/pa/article/75/3/536/6157032 by guest on 19 July 2022 (Russell and Cowley, 2016, p. 125). The relatively weak position of May’s minor- ity government following her decision to call a snap election in 2017 enhanced the ability of backbench MPs to harness these avenues of influence. 2.2 Out of the wilderness It is against this backdrop of contestations over power and backbench agency that the ERG came to prominence. Its ascent began during the 2010–2015 Conservative/Liberal Democrat Coalition Government. The Conservative Party’s Eurosceptic wing gained momentum in October 2011, when 81 Conservative MPs rebelled in support of a public petition calling for a referendum on the UK’s EU membership. This was in spite of what was described as ‘heavy-handed whip- ping’ by the Government.2 Repeated parliamentary challenges to the Coalition Government followed, including a showdown over the Government’s decision to opt back into some EU criminal justice measures in November 2014, having opted out the previous year. Theresa May, as Home Secretary, sought to steer proceedings away from the most controversial issue, the European Arrest Warrant (EAW), by framing the debate around other measures. This provoked the ire of Eurosceptic MPs, with Jacob Rees-Mogg presenting himself as a stalwart defender of the interests of backbench MPs in advocating a specific debate on the EAW, declaring that ‘the Government, having behaved pretty shamefully today, will be facing huge embarrassment if they do not give in to the clear will of the House’.3 He was ultimately joined by 34 other Conservative MPs in voting against the government. Although the stakes surrounding these votes were often low, the impact upon David Cameron’s leadership was palpable; ‘[m]y parliamentary party was becom- ing increasingly restive about the failure to hold a referendum in the past and the need for one in the future’ (Cameron, 2019, p. 406). Eurosceptic MPs were hon- ing their capacity for disciplined action which enabled them to exert collective strength in the Commons chamber. These votes were a warning shot from within 2 Stewart Jackson, HC Deb, vol. 534, col 112 (24 October 2011). 3 HC Deb, vol. 587, col 1260 (10 November 2014).
A Mobile Phone in One Hand and Erskine May in the Other 541 the Conservative parliamentary party, pushing Cameron towards including a ref- erendum pledge in the 2015 Conservative manifesto (Conservative Party, 2015, p. 30). After the 2016 Brexit referendum, the ERG relaunched itself as a bloc advanc- ing the cause of a ‘clean break’ with the EU. Over 60 MPs endorsed the Group’s new mission statement in the Sunday Telegraph in November 2016 that ‘[t]he UK must leave the European Economic Area and the Customs Union’ (Riley-Smith and Yorke, 2016). The ERG undoubtedly became a rallying place for opposition Downloaded from https://academic.oup.com/pa/article/75/3/536/6157032 by guest on 19 July 2022 to Theresa May within the Conservative parliamentary party. It allowed her opponents act in concert against her minority government, and the lack of trans- parency over its membership helped to inflate accounts of its strength. As a re- search service, moreover, the Group gave those who relinquished government roles because of their opposition to May’s Brexit policy the support base and as- sistance they needed to maintain a prominent profile within Parliament. 2.3 Into the limelight The ERG’s move towards a more overt campaigning role during the 2017–2019 Parliament has called into question its status as a pooled research service. In the summer of 2018, for example, members of the Group met secretly with the United States’ (US) National Security Advisor, John Bolton, to discuss a USA– UK trade deal post-Brexit (Busby, 2018). This meeting preceded US President Trump’s declaration that May’s proposed customs arrangement with the EU would threaten a trade deal with the USA (Geoghegan, 2020). It would be impos- sible to envisage any of the other parilamentary research services engaging in such manoeuvres. The ERG’s status was nonetheless both a boon and a handicap, for although it allowed the Group to receive funding through MP expenses claims (IPSA, 2020, para. 7.4(b)), it obliged it to curtail certain activities. Many set-piece ERG events during the period were public launches of policy reports and docu- ments, for example, on the Northern Ireland border, illustrating the extent to which it remained in its DNA a parliamentary think tank. This status, however, did not prevent the Group from organising and campaigning in a clandestine manner, and indeed became part of the justification for some of its modes of operation. There are multiple examples of the ERG’s status shaping its activity. First, it has distanced itself from the politicised activities of those linked to it. The Group’s Senior Researcher from 2015, Christopher Howarth, excludes mention of his employer in the biography for his columns for the ConservativeHome web- site, describing himself as ‘a senior researcher working in the House of Commons’ (Howarth, 2017). Second, much as the Group’s research output is not value-neutral in its account of the UK’s relationship with the EU, it nonethe- less actively seeks to tread the line of producing politically engaged but not party-
542 Parliamentary Affairs political materials. This is in keeping with the other pooled research services, as- sociated with the major Westminster parties, all of which produce materials which make no claims towards impartiality. The Independent Parliamentary Standards Authority (IPSA) must therefore distinguish between a research brief- ing with a particular slant, for which public funding is permitted, and material produced ‘for or at the behest of a political party’ or campaign literature, which cannot benefit from public funding under Political Parties, Elections and Downloaded from https://academic.oup.com/pa/article/75/3/536/6157032 by guest on 19 July 2022 Referendums Act 2000 and the Representation of the People Act 1983 (IPSA, 2020, para. 3.5(b)). To preserve its relationship with the pooled services, given that it has no power to compel them to release unpublished materials, IPSA conducts such assess- ments behind closed doors and resisted a 2018 Freedom of Information request regarding ERG briefings (Freedom of Information Act 2000, Section 36(2)(c)).4 The Information Tribunal, however, in examining this refusal, concluded that ‘[d]emonstrating the rigour of the regulatory process underpinning the work of MPs is of considerable significance’.5 The documents subsequently released revealed that IPSA adopted a formalistic approach to its oversight, assessing a sample of ERG documents on the basis of whether they included ‘party-political’ language. The one document which IPSA criticised, as demonstrated in a released email exchange, included a direct attack on Labour’s Brexit stance.6 IPSA’s priori- tisation of whether material advocates for or against a party position thus allows the ERG to circumvent challenges by using equivocal language when its materials engage with the policy positions of the political parties. The Information Tribunal indirectly condoned IPSA’s approach in an aside in its 2019 ruling; be- cause the ERG’s work remained political and not academic, it is not under obliged to produce work which is ‘high quality, reliable based on identified evi- dence and sources and neutral’.7 IPSA’s public criticism of the ERG has therefore been restricted to guarded comments that its limited ‘formal governance struc- ture and internal controls’ amount to a risk to compliance with the eligibility cri- teria for public funding (IPSA, 2017, para. 90). The Ministerial Code imposed a further break on the ERG’s activity, providing that ‘Ministers should take care to ensure that they do not become associated with non-public organisations whose objectives may in any degree conflict with Government policy’ (Ministerial Code, 2019, para. 7.12). This provision is an 4 Corderoy v Information Commissioner (2019) EA/2018/0299. 5 Ibid., para. 27. 6 Email discussion regarding IPSA assurance review, accessed at https://www.theipsa.org.uk/media/ 184912/r-re-erg-the-european-union-withdrawal-bill.pdf. 7 Corderoy v Information Commissioner (2019) EA/2018/0299, para. 25.
A Mobile Phone in One Hand and Erskine May in the Other 543 offshoot of the constitutional convention of collective cabinet responsibility, which establishes ministers’ duty to maintain agreed cabinet positions on issues (Masterman and Murray, 2018, pp. 273–276). The Code likewise prevents minis- ters from being members of All Party Parliamentary Groups (Ministerial Code, 2019, para. 7.14). Under David Cameron this provision was applied strictly, but Theresa May, facing different parliamentary circumstances after the 2017 general election, adopted a more relaxed approach. Leading members of the ERG, includ- Downloaded from https://academic.oup.com/pa/article/75/3/536/6157032 by guest on 19 July 2022 ing Steve Baker (the Conservative MP for Wycombe) and Suella Braverman (née Fernandes, the Conservative MP for Fareham), were given ministerial positions. Both relinquished their leadership roles within the ERG, but not their member- ship. When this arrangement prompted questions, the Government responded that because the ERG was merely a pooled research service: ‘we do not consider this a ministerial code issue’ (Ramsay, 2018). In light of the ERG’s mobilisation against May’s Government, this position might appear scarcely credible. The Ministerial Code, however, cannot be treated as a legal document; political con- siderations directly influence the meaning of its terms. Its interpretation ulti- mately rests with the Prime Minister, and leaders who cannot afford to alienate an important section of their parliamentary party are in no position to apply the letter of its terms. The ERG provided the vanguard for efforts to bring about Theresa May’s res- ignation, triggering a leadership challenge in December 2018 and finally making her position untenable in May 2019 as it used its strength in the Chamber to re- peatedly block Parliament’s assent to her UK–EU Withdrawal Agreement. In her place Boris Johnson has built an administration with avowedly Eurosceptic cre- dentials, and in which the ERG is well-represented at Cabinet level. Once the ERG felt that it had a hand on the tiller of Government, its leadership became much more explicit about the ERG’s management of its subscribers’ votes in the course of publicly endorsing Johnson’s Withdrawal Agreement in October 2019.8 In December 2019, after the Conservatives general election success, its Chairman and Deputy Chairman even posed for a group photo from a busy ERG meeting. The Group had moved from being coy about its membership to flaunting its par- liamentary strength. The ERG was nonetheless walking a tightrope during the 2017–2019 Parliament, with its efforts to advance its Brexit agenda at times chaffing against the constraints on its status as a pooled service. Although this balancing act was aided by IPSA’s light-touch approach to its oversight function, the weakness of May’s position and the compliant attitude of her successor, the necessity of main- taining its status goes some way to explaining why the ERG continued to operate behind the scenes, even in this period of its exceptional influence over Brexit 8 HC Deb, vol. 666, col 606 (19 October 2019).
544 Parliamentary Affairs policy. The irony of the ERG’s efforts to comply with the strictures upon pooled parliamentary services is that they opened the Group up to accusations that it was operating as a clandestine ‘party within a party’ which had ‘hijacked the show’.9 Such notoriety likely suited the Group’s purposes, raising its media pro- file, but we turn to explore how its research capacity and management of its sub- scriber MPs in Parliament provided the bedrock of for its influence over Brexit policy. Downloaded from https://academic.oup.com/pa/article/75/3/536/6157032 by guest on 19 July 2022 3. A parliamentary revolution 3.1 The Commons chamber The use of Parliament’s own procedure for the purposes of obstructing govern- ment business has a long and colourful history, exemplified by the tactics of the IPP under Charles Stewart Parnell (Thornley, 1960, p. 38). Although the IPP did not invent obstruction (Dion, 1997, p. 192), its use of filibusters and repeated ad- journment motions to slow the passage of the Coercion Bill 1881 prompted a pre- ventative response by the Commons Speaker and Arthur Balfour’s subsequent reforms of parliamentary procedure. These reforms, of course, have made con- temporary obstruction very different from its use in the 19th century, and the attitudes of the IPP and the ERG towards Parliament are, moreover, markedly different. Although Parnell avowed that Irish parliamentarians had no duty to protect Parliament from the implications of its own decadent procedures (Redlich, 1908, pp. 142–143), Jacob Rees-Mogg has wrapped himself in an exag- gerated reverence for the Westminster’s workings. These distinct points of depar- ture, however, should not disguise the underlying similarities between these efforts by parliamentarians to stymie government policy in the Chamber. 3.1.1 Procedural manoeuvrings. Under Rees-Mogg’s leadership the ERG turned to the pages of Erskine May to shape the timing and tenor of debate over the UK’s relationship with the EU. Although its relationship with the Speaker was fre- quently tempestuous, the ERG frequently relied upon Bercow’s receptiveness to their procedural efforts to make prominent interventions. The revival of the humble Address as part of the Brexit debate is illustrative. This mechanism, by which the Commons can seek information from the Government (Jack, 2011, p. 133), is ordinarily ineffective where a Government enjoys a sufficiently secure majority to resist the motion. The ERG, however, cooperated with the opposition 9 Lord Cormack, HL Deb, vol. 795, col 1886 (13 February 2019).
A Mobile Phone in One Hand and Erskine May in the Other 545 parties to employ the humble Address to oblige the Government to reveal Brexit impact assessments in 201710 and legal advice on the draft Withdrawal Agreement in 2018.11 The humble address continued to be an ‘innovative means . . . to extract information from ministers’ (Russell, 2021, p. 11) throughout the Brexit process. Rees-Mogg, in particular, enthused about ‘the use of a 19th cen- tury procedure to hold the Government to account’.12 The ERG was acting for its own ends; seeking, respectively, to expose any backsliding on May’s negotiating Downloaded from https://academic.oup.com/pa/article/75/3/536/6157032 by guest on 19 July 2022 ‘redlines’ and to undermine the Government’s assurances over the legal implica- tions of the draft Withdrawal Agreement’s Protocol on Ireland/Northern Ireland. The ERG also benefitted from Bercow’s openness to Urgent Questions from the Government’s own backbenchers. In an effort to maintain pressure on May’s Government, as the putative ‘Brexit Day’ of 29 March 2019 loomed, the ERG’s Deputy Chairman Mark Francois tabled an Urgent Question on parliamentary oversight of the draft Withdrawal Agreement’s Joint Committee.13 Whether this question was urgent, given that the Agreement’s terms had already been discussed for five months, is debatable. But Brexit-backing MPs lavished praise upon Bercow for granting it.14 The day before he had enjoyed their adulation when he applied Erskine May’s rule against repetitions of the same substantive motion (Jack, 2011, p. 397) to restrict May’s efforts to secure multiple votes on her deal, with Rees-Mogg effusing ‘how delighted I am that you have decided to follow precedent . . . Dare I say that there is more joy in heaven over one sinner who repented than over the 99 who are not in need of repentance’.15 As this response makes clear, however, Rees-Mogg could just as easily upbraid Bercow; tangling with him over Bercow’s definition of ‘forthwith’ in the context of a specific pas- sage in Erskine May (Jack, 2011, p. 458).16 This tension would spill over into outright acrimony after Boris Johnson be- came Prime Minister, particularly with regard to Bercow’s facilitation of the pas- sage of the Benn Act preventing a no-deal Brexit (the EU (Withdrawal) (No. 2) Act 2019).17 This eventual rancour towards the Speaker for supposedly damaging 10 Keir Starmer, HC Deb, vol. 630, col 878 (1 November 2017). 11 Keir Starmer, HC Deb, vol. 649, col 189 (13 November 2018). 12 HC Deb, vol. 630, col 885 (1 November 2017). 13 HC Deb, vol. 656, col 1061 (20 March 2019). 14 See, for example, HC Deb, vol. 656, col 1064 (Iain Duncan Smith) and col 1066 (Owen Paterson). 15 HC Deb, vol. 656, col 778 (18 March 2019). 16 HC Deb, vol. 652, col 374 (9 January 2019). 17 HC Deb, vol. 664, col 210 (4 September 2019).
546 Parliamentary Affairs ‘the standing of the House of Commons amongst the public’ (Rees-Mogg, 2019), should not distract from the extent to which the ERG had hitherto depended upon his desire to empower backbenchers. Indeed, the latitude Bercow extended to the ERG drew an exasperated response from the Scottish National Party’s Pete Wishart, which would not have been out of place at the height of IPP obstruc- tionism; ‘Are there any means available to this House of communicating . . . that we are all now bored and tired of all these points of order?’18 Downloaded from https://academic.oup.com/pa/article/75/3/536/6157032 by guest on 19 July 2022 3.1.2 Exploiting the balance of power in the chamber. In terms of the ERG’s di- rect impact on the shape of Brexit, much has been made of the ability of a core of the ERG to exploit the parliamentary arithmetic of the 2017–2019 session to frus- trate Theresa May’s efforts to secure acceptance of her proposed Withdrawal Agreement (Aidt et al., 2019). The pattern for the showdown over her deal had, however, been set months earlier, when the ERG flexed its parliamentary muscles as she attempted to promote her Chequers proposals. May’s vision of a close fu- ture relationship between the UK and the EU alarmed the ERG, and its leadership quickly found a means to undermine her negotiating position through targeted legislative interventions (Lynch et al., 2019, p. 60). The Chequers White Paper promised a deal which ‘preserves the constitu- tional and economic integrity of the UK’s own Union’ (May, 2019, p. 13). The ERG decided to take May at her word, proposing an amendment to the largely technical Taxation (Cross-Border Trade) Bill, then in its final stages before Parliament, which would prevent the UK Government from negotiating with the EU to create a separate customs territory for Northern Ireland. As Rees-Mogg in- formed the House on moving the amendment, ‘[i]t is clearly Government policy that Northern Ireland should not be removed from the rest of the UK, and I think that to put that in legislation would be beneficial’.19 When the Brexit deal was published in November 2018, it thus contained an arrangement designed to en- sure cross-border cooperation and economic activity on the island of Ireland could continue regardless of the final shape of the relationship between the UK and the EU, the so-called Backstop.20 But because of the terms of the Taxation (Cross-Border Trade) Act, May’s Backstop tied all of the UK into a Customs Union with the EU (Murray and Warwick, 2019, p. 55). The ERG’s amendment had limited May’s room for manoeuvre in the final phase of Brexit negotiations, 18 HC Deb, vol. 652, col 375 (9 January 2019). 19 HC Deb, vol. 645, col 129 (16 July 2019). 20 Agreement on the Withdrawal of the UK of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (25 November 2018), Protocol on Ireland/ Northern Ireland, Article 1(4).
A Mobile Phone in One Hand and Erskine May in the Other 547 preventing her from accepting a Backstop which applied only to Northern Ireland. It thus allowed them to present her deal as ‘Brexit in name only’ in the debates to come.21 The weakness of Theresa May’s position in the House would ultimately allow the ERG to dominate the meaningful votes on her draft Withdrawal Agreement, but it was the foresight of its leadership in boxing her into Backstop arrangements which applied to the UK as a whole which set up this confrontation. There is an Downloaded from https://academic.oup.com/pa/article/75/3/536/6157032 by guest on 19 July 2022 irony that the Protocol which ultimately became part of Boris Johnson’s deal in- volved the de facto separation of Northern Ireland’s customs and regulatory arrangements from the remainder of the UK.22 As such, it permitted much greater divergence between Great Britain and Northern Ireland in its operation than May’s deal had. When the ERG subsequently accepted Johnson’s deal, how- ever, it revealed the extent to which it prioritised the decoupling of Great Britain from the EU over concerns about Northern Ireland’s place in the UK. The ERG was prepared to ‘choke down’ these effects of the Johnson deal’s Protocol, publicly assuaged by his downplaying of the significance of the barriers between Great Britain and Northern Ireland being thereby created (O’Toole, 2019). The Group, moreover, was able to persuade its members that voting in fa- vour of the Protocol not as abandoning their Democratic Unionist Party (DUP) allies on a core issue for that Party (Murphy and Evershed, 2020, p. 469), but sim- ply a matter of biding its time. Its show of reluctant acceptance of the Protocol’s terms gave way to renewed resistance once Brexit had been achieved in January 2020, with ERG-stalwart Sir Bernard Jenkin justifying this approach on the basis that ‘Eurosceptics like me only voted for the Withdrawal Agreement to help the nation out of a paralysing political crisis’ (Jenkin, 2020). As the Johnson deal has come under pressure in its implementation, the ERG has supported efforts to hollow out the Ireland/Northern Ireland Protocol, including Part 5 of the UK Internal Market Bill and the potential invocation of Article 16 of the Protocol, re- building its cooperation with the DUP in this process. 3.2 Select committees Because the number of MPs that the ERG could call upon in the 2017–2019 Parliament never exceeded 100, select committees became an important channel for its influence over parliamentary discourse on Brexit. The development of de- partmental select committees after 1979 has long been regarded as a ‘significant 21 See, for example, Andrea Jenkyns, HC Deb, vol. 657, col 248WH (1 April 2019). 22 Agreement on the Withdrawal of the UK of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (17 October 2019), Protocol on Ireland/ Northern Ireland, Articles 4–5.
548 Parliamentary Affairs structural change’ that allowed backbenchers more direct influence over policy decisions (Jogerst, 1991, p. 22). More recently, the introduction of evidence- gathering from outside experts has transform select committee oversight into ‘a better informed and more rational process’ (Russell and Cowley, 2016, p. 129). Select committee work can thus provide an important outlet for many MPs, and their specific focus ‘align[s] with the way increasing numbers of citizens relate to politics’ (Marsh, 2016, p. 102). The ERG harnessed the Wright reforms to spread Downloaded from https://academic.oup.com/pa/article/75/3/536/6157032 by guest on 19 July 2022 its members across key select committees. Following the 2017 select committee elections, its members were shot through the parliamentary committee system, using these platforms to challenge EU activity in fields from defence to healthcare. But its influence was concentrated in committees that directly shaped the Brexit debate; the Northern Ireland Affairs Committee, the European Scrutiny Committee and the Exiting the EU Committee. The Northern Ireland Affairs Committee was the only one of these committees with a pro-Leave majority. Working in conjunction with the Committee’s DUP membership, and pro-Brexit Labour MP Kate Hoey, the ERG had the opportu- nity to steer a Committee on which the majority of members had been supportive of Brexit from the outset (Lynch and Whitaker, 2019, p. 926). Nigel Mills’ (the Conservative MP for Amber Valley) ERG subscription was a matter of public re- cord in his expense returns. Maria Caulfield, the Conservative MP for Lewes, was also closely connected with the ERG, launching its report on Brexit and Ireland.23 The Committee’s Chair for much of this parliamentary session, Andrew Murrison, the Conservative MP for South West Wiltshire, was a supporter of Brexit (even if there is no direct evidence of his involvement with the ERG). The following detailed analysis will focus on how these Eurosceptic voices combined to leverage their advantages in committee, and how these efforts contributed to ERG opposition to Theresa May’s Withdrawal Agreement. 3.2.1 Committee investigations. Where the ERG lacked the numbers to domi- nate a committee, they had little opportunity to change the overall thrust of an inquiry. Therefore, its MPs often used committee proceedings to attempt to shape the narrative surrounding Brexit, with the Exiting the EU Committee be- coming the focal point of these efforts. Rees-Mogg, for example, famously used the platform provided by this Committee to challenge the Brexit Secretary as to whether the then-proposed transition period after withdrawal would reduce the 23 Maria Caulfield, ‘Maria Caulfield helps launch ERG Northern Ireland border proposal’ (13 September 2018). Available at https://www.mariacaulfield.co.uk/news/maria-caulfield-helps-launch- erg-northern-ireland-border-proposal.
A Mobile Phone in One Hand and Erskine May in the Other 549 UK to a ‘vassal state’.24 At times, the acrimony surrounding Brexit spilled over within this Committee, as seen in the March 2017 walkout by Brexit-supporting Conservatives (Lynch and Whitaker, 2019, p. 931). Although select committee evidence-taking indicates a commitment to pro- viding more rational or evidence-based analysis of policy, the process also allows interest groups and elite actors to influence committee deliberations. Part of the ERG’s narrative-setting strategy was to press for the inclusion of supportive wit- Downloaded from https://academic.oup.com/pa/article/75/3/536/6157032 by guest on 19 July 2022 nesses, exemplified by the evidence presented by the Wetherspoons Chairman Tim Martin to the Environmental Affairs Committee on how Brexit would affect the trade in food. The ERG’s Sheryll Murray (the Conservative MP for South East Cornwall) then encouraged Martin to expound on Brexit’s expected benefits for the pub trade, an exchange extended by the Chair’s clumsy efforts not to let Martin ‘off the hook’ with soft-ball questions.25 However, when much of the ex- pert evidence presented to Brexit-focused select committees could be construed as critical or negative towards the UK’s withdrawal from the EU, the ERG also en- thusiastically adopted Michael Gove’s referendum mantra that the public ‘have had enough of experts’ (Gove, 2016). Some ERG MPs adopted a coordinated approach to such witnesses. On the crucial question of the impact of Brexit upon the border between Northern Ireland and Ireland, ERG subscribers, including Jacob Rees-Mogg in the Exiting the EU Committee,26 and Maria Caulfield27 and Nigel Mills28 in the Northern Ireland Affairs Committee, asked witnesses to define the meaning of a hard bor- der. A variant (and often follow-up) to this question was to ask witnesses what specific World Trade Organisation (WTO) rules obliged border infrastructure.29 Talk of a definition is something of a blind alley; there is no formal concept of a 24 Oral evidence: The Progress of the UK’s Negotiations on EU Withdrawal (24 January 2018), HC 372, Q792. 25 Oral evidence: Brexit—Trade in Food (6 December 2017), HC 348, Q397-Q400. 26 Oral evidence: The progress of the UK’s negotiations on EU withdrawal (24 October 2018), HC 372, Q3025. 27 Oral evidence: Implications of the EU withdrawal agreement and the backstop for Northern Ireland (13 February 2019) HC 1850, Q330. 28 Oral evidence: Implications of the EU withdrawal agreement and the backstop for Northern Ireland (13 February 2019) HC 1850, Q361. 29 See Oral evidence: Implications of the EU withdrawal agreement and the backstop for Northern Ireland (6 February 2019) HC 1850, Q235 (Maria Caulfield); Oral evidence: The progress of the UK’s negotiations on EU withdrawal (24 October 2018), HC 372, Q3025 (Jacob Rees-Mogg) and Oral evi- dence: Implications of arrangements for Ireland—Northern Ireland border for wider UK Trade Policy (13 December 2017) HC 665i, Q11 (Ranil Jayawardena) and Q13 (Nigel Evans).
550 Parliamentary Affairs ‘hard’ border, and witnesses’ responses are necessarily contingent upon whether trade, frontier work or personal journeys are at issue. But the broad range of answers the question elicited could be used to challenge accounts that Brexit threatens the Good Friday/Belfast Agreement’s arrangements for cross-border co- operation (de Mars et al., 2018, p. 50).30 Witnesses who attempted to address dif- ferent aspects of border hardening frequently found their evidence summarily dismissed; ‘A moment ago you said that any checks were wrong, and now you are Downloaded from https://academic.oup.com/pa/article/75/3/536/6157032 by guest on 19 July 2022 saying the checks that are there are not wrong. I just do not see the logic in that’.31 In the WTO variation upon this question, ERG questioners were well- briefed that no specific WTO rule details necessary border infrastructure; it is open for WTO members to impose no tariffs or regulations on imports. But if the UK wants to maintain a trade border post-Brexit, it must operate it in line with the WTO’s rules on discrimination, or face litigation before the WTO’s dispute settlement organs.32 Witnesses who lacked detailed knowledge of the operation of WTO rules, such as Labour’s then Shadow Secretary of State for Northern Ireland, saw their credibility challenged; ‘Do you not think that to be saying that there needs to be a hard border without evidence that that is correct is slightly irresponsible?’.33 If witnesses had an answer to hand, they could nonetheless be dismissed as dealing in hypotheticals; ‘Whether they [border checks] happen in reality is another thing’.34 When one academic witness, Dr Emily Lydgate, challenged Craig Mackinlay on the fact that his framing of a discussion of WTO requirements ‘is quite leading’, the ERG subscriber flashed back, ‘[m]y questions often are’.35 The cumulative effect of these interventions 30 Agreement between the Government of the UK of Great Britain and Northern Ireland and the Government of Ireland (with annexes) (10 April 1998) 2114 UNTS 473, Strand 2. 31 Oral evidence: The progress of the UK’s negotiations on EU withdrawal (24 October 2018), HC 372, Q3040 (Jacob Rees-Mogg). 32 See General Agreement on Tariffs and Trade (1947) 55 U.N.T.S. 194, Article 1; General Agreement on Trade in Services (1994) 1869 U.N.T.S. 183, Article 2; and General Agreement on Trade-Related Aspects of Intellectual Property (1994) 1869 U.N.T.S. 299, Article 4. 33 Oral evidence: Implications of the EU withdrawal agreement and the backstop for Northern Ireland (6 February 2019) HC 1850, Q237 (Maria Caulfield). 34 Oral evidence: The progress of the UK’s negotiations on EU withdrawal (15 May 2019) HC 372, Q4228. See also Oral evidence: The land border between Northern Ireland and Ireland (11 October 2017) HC 329, Q37 (Maria Caulfield). 35 Oral evidence: The progress of the UK’s negotiations on EU withdrawal (15 May 2019) HC 372, Q4229.
A Mobile Phone in One Hand and Erskine May in the Other 551 was to render accounts of post-Brexit hardening of the border between Ireland and Northern Ireland fissiparous. In the committee context, the advantage rests with the questioner; to make their influence felt, well-briefed MPs do not have to be experts across a whole pol- icy area, they only have to master their specific questions. ERG subscribers appeared to use technology to enhance this advantage when confronting wit- nesses they considered unsympathetic. Nigel Mills, phone and tablet visibly in Downloaded from https://academic.oup.com/pa/article/75/3/536/6157032 by guest on 19 July 2022 hand during a Northern Ireland Affairs Committee session, was able to probe specific Twitter posts by one witness before querying a passage from a book which had been co-authored by another witness (one of the authors of this arti- cle).36 Maria Caulfield had previously used a dubious summary of a blog post written several months previously to attempt to get the same witness to recant its supposedly ‘irresponsible’ suggestions.37 As a witness, such a stream of selective quotations can have a disorienting effect, and taken together they appear coordi- nated to challenge the credibility of some of those giving evidence. 3.2.2 Committee reports. The ‘engrained culture of consensus’ (Russell and Benton, 2011, p. 37), which characterises the operation of select committees, also created opportunities for ERG members to disrupt report findings which ran contrary to their vision of Brexit. Because committee reports are ordinarily ap- proved by all members, drawing much of their authority from their cross-party nature, ERG members were able to press for certain passages to be watered down (Northern Ireland Affairs Committee, 2018, p. 58). In one report into Parliament’s oversight of the Brexit process, ERG subscribers on the Exiting the EU Committee objected to any references to extending the Brexit implementa- tion/transition period, and ultimately refused to endorse the report (Exiting the European Union Committee, 2018a, p. 47). Even where this approach did not produce the desired amendments, ERG subscribers’ formally minuted objections could strip away the forcefulness which comes from committee unanimity. At its most extreme, objectors can draft an alternative report, though because the committee chair directs the activities of its clerks responsible for assembling reports, this can be a daunting undertaking for MPs who lack support. Even with the ERG’s researcher capacity, drafting an alternative report was a more resource intensive option than targeted amendments, and was reserved for showpieces. In March 2018, Jacob Rees-Mogg submitted a 169-paragraph alternative draft report 36 Oral evidence: Implications of the EU withdrawal agreement and the backstop for Northern Ireland (13 February 2019) HC 1850, Q362 and Q364. 37 Oral evidence: Implications of the EU withdrawal agreement and the backstop for Northern Ireland (13 February 2019) HC 1850, Q336.
552 Parliamentary Affairs on the potential for achieving a frictionless land border between Ireland and Northern Ireland by means of technology which explicitly drew upon publica- tions by the ERG’s Senior Researcher (Exiting the European Union Committee, 2018b, pp. 56–93). The day before all of the painstaking work on Rees-Mogg’s al- ternative draft report was discussed in the Exiting the EU Committee, however, the Northern Ireland Affairs Committee had accepted that there were no available technological solutions which would prevent friction at the land border; ‘we have Downloaded from https://academic.oup.com/pa/article/75/3/536/6157032 by guest on 19 July 2022 had no visibility of any technical solutions, anywhere in the world, beyond the as- pirational, that would remove the need for physical infrastructure at the border’ (Northern Ireland Affairs Committee, 2018, para. 82). For much of the remainder of this session, as finding a viable alternative to the Backstop became a preoccupation for the ERG, the Northern Ireland Affairs Committee worked to row back on this unhelpful conclusion. It conducted a follow-up to its inquiry, hearing evidence from Lars Karlsson, a customs con- sultant whose support for technological solutions had featured prominently in Rees-Mogg’s alternative draft report. This evidence, coming days after Theresa May’s version of the Withdrawal Agreement was published, and promising an alternative to its Backstop arrangements, electrified the Committee. It swung into action with a new inquiry on the Withdrawal Agreement’s border arrange- ments in early 2019. At the same time the Brady/Murrison Amendment, sup- porting Theresa May’s Withdrawal Agreement shorn of the Backstop, was the only version of a Brexit deal which appeared to enjoy the support of the House of Commons. The Committee’s pro-Brexit elements swung behind its Chair Andrew Murrison and worked assiduously to reverse the findings of their earlier report. Over the objections of other members of the Committee they rushed out an interim report in March 2019, ahead of the third ‘meaningful vote’ on the May deal, which concluded that ‘the balance of the evidence suggests that, far from being a ‘unicorn’, . . . [a technological] solution is possible and that it could be designed, trialled and piloted within the 21-month implementation period’ (Northern Ireland Affairs Committee, 2019, para. 55). For John Grogan, a dissenting Labour member of the Committee, this volte face was ‘aimed largely at wavering Conservative MPs, unsure whether to back the prime minister’ (Campbell, 2019). Having served this purpose, and scup- pered May’s deal, no ‘final’ report was ever produced. The workings of the Northern Ireland Affairs Committee thus provide something of a corrective to exaggerated accounts of the ERG’s influence during the 2017–2019 Parliament. Even where it was able to shape the work of a particular select committee, it failed to exert this influence for much of this Parliamentary Session, with its engagements continuing to be shaped by its leadership’s in- surgent mindset.
A Mobile Phone in One Hand and Erskine May in the Other 553 4. Conclusion Eurosceptic backbenchers would inevitably have played a significant role during Theresa May’s minority government, particularly given the rhetorical weight placed on the notion reflecting the vote on the Brexit referendum. The ERG, however, organised these MPs, enabling them to exert a disproportionate effect upon Brexit debates. Rees-Mogg, so-often revelling in the sobriquet ‘the Honourable Member for the 19th Century’ (Ashcroft, 2019, p. 2), thus restored Downloaded from https://academic.oup.com/pa/article/75/3/536/6157032 by guest on 19 July 2022 the importance of (his faction of) backbenchers within the chamber. This revolu- tion, however, had the defined goals of subverting Theresa May’s leadership and altering the terms of the UK’s withdrawal from the EU. Once Rees-Mogg had been installed as Boris Johnson’s Leader of the House of Commons, he was quick to castigate attempts by rebellious Conservative MPs and the Opposition to wrest control of the parliamentary agenda from the Government under Standing Order 24 as the ‘most unconstitutional use of this House since the days of Charles Stewart Parnell when he tried to bung up Parliament’.38 Even as many of the ERG’s leading lights have followed Rees-Mogg and trans- lated their political capital into ministerial office, imitator groups have emerged within the Conservative Party. Several factors nonetheless make the ERG’s suc- cesses difficult to replicate. The first is that it remains a single-issue group, with its primary mission during the 2017–2019 session being to infuse sufficient Eurosceptism into the political moment to oblige the Government to curtail the UK’s ongoing ties to the EU after Brexit. Lacking the combination of focus and political moment that the ERG enjoyed, imitator groups (even with membership which would appear to substantially overlap with the ERG in some cases) will struggle to exert similar influence over parliamentary debate from the back- benches (Bell, 2020). Moreover, it remains to be seen whether the Common Sense Group, the Covid Recovery Group, the Northern Research Group or China Research Group will be able to gain sufficient MP subscriptions or external sup- port to fund researcher posts. Without building such architecture these imitators will fail to replicate the key features which prevented the ERG from becoming a mere talking shop and enabled it to sustain its existence and expand its influence. Even the ERG has been unable to retain its prominence once Brexit was achieved, thereby diminishing the need for ‘comprehensive and highly detailed information in support of the position that the UK would benefit from ending its membership of the EU’ (IPSA, 2016, para. 157). The ERG’s playbook for interro- gating Committee witnesses, moreover, is a product of its eagerness to challenge what it saw as an established pro-European narrative. It is an iconoclastic path which would prove unattractive to many parliamentarians. Further qualitative 38 HC Deb, vol. 664, col 101 (3 September 2019).
554 Parliamentary Affairs research into the particular motivations and desires of individual members would shed more light on how the actions of the ERG were determined, and what, if any, the potential may be for this kind of rebellion and collective action to yield success on other issues. There also remain lingering questions as to role of popu- list and libertarian narratives in mounting this kind of rebellion, which Geoghegan (2020) argues takes its inspiration from the United States. Indeed, groups of backbenchers wishing to emulate ERG tactics should note with caution Downloaded from https://academic.oup.com/pa/article/75/3/536/6157032 by guest on 19 July 2022 the tendency of such activity to push parliamentary discourse into ever more re- actionary territory. Acknowledgements Our thanks to Sylvia de Mars (Newcastle), Aoife O’Donoghue (Durham), Ben Warwick (Birmingham) for their encouragement and comments upon earlier drafts of this article. Any errors remain our own and we are aware of no conflicts of interest relating to this article. Article updated and hyperlinks last accessed on 10 January 2021. Funding This work was supported by an Economic and Social Research Council Governance After Brexit Grant (ref. ES/S006214/1). Conflict of interest The authors have no conflicts of interest to report. References Aidt, T., Grey, F. and Savu, A. (2019). ‘The Meaningful Votes: Voting on Brexit in the British House of Commons’, Public Choice. 10.1007/s11127-019-00762-9. Ashcroft, M. (2019). Jacob’s Ladder: The Unauthorised Biography of Jacob Rees-Mogg.. Biteback, London. Bell, L. C. (2018) ‘Obstruction in Parliaments: A Cross-National Perspective’, The Journal of Legislative Studies, 24, 499–525. Bell, T. (2020). ‘Northern Research Group: Faction or tendency?’, UK in a Changing Europe, accessed at https://ukandeu.ac.uk/northern-research-group-faction-or-tendency/. Bücker, J. (1989) ‘Report on the Obstruction of Parliamentary Proceedings’, Constitutional and Parliamentary Information, 158, 243–264.
You can also read