The EU (Withdrawal) Bill raises questions about the role of smaller opposition parties in the legislative process

leston.bandeira.thompson.and.mace (1)The EU (Withdrawal) Bill’s return to the Commons saw SNP MPs protest about their voices having been excluded from the debate. Louise Thompson explains how parliamentary procedures can indeed restrict debate for smaller opposition parties, and considers whether something ought to be done about it.

Following the first session of the EU (Withdrawal) Bill’s return to the Commons, most newspaper headlines focused of the battle between Theresa May and the group of backbench Conservative rebels seeking concessions from the government about parliament’s ‘meaningful vote’ on the Brexit deal. The front page of The National instead highlighted the lack of debate on the devolution clauses within the bill, which was limited to just 15 minutes, as well as the fact that only one SNP MP was able to speak. Just a few hours later, every single SNP MP walked out of the Commons chamber during Prime Minister’s Questions (PMQs) in protest about this issue – and the Speaker’s refusal to allow a vote that the House sit in private to discuss it. It’s not unknown for the SNP to deploy tactics like this in the chamber and it raises interesting questions about the role of smaller opposition parties in the Commons.

The parliamentary position of small ‘o’ opposition parties

When it comes to opposition in the House of Commons, it’s easy to focus attention solely on the ‘Official’ Opposition. But there are four (or five, or six) other opposition parties, depending on where you position the DUP and Sinn Fein. Just as parliamentary architecture in the Commons privileges a two-party system (with the green benches facing each other in adversarial style, the despatch boxes for the use of the government and official opposition party only), parliamentary procedures also help to underpin a system which seems to prioritise the ‘Official Opposition’. Hence, the guarantee of questions at PMQs.

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Crisis, headache, or sideshow: how should the UK government respond to the Scottish parliament’s decision to withhold consent for the Withdrawal Bill?

 

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Different political actors have responded to the decision by the Scottish Parliament to withhold its consent for the UK government’s showpiece EU (Withdrawal) Bill in very different ways. Professor Nicola McEwen discusses the options open to both the Scottish and UK governments. 

After much deliberation, the Scottish Parliament voted by 93-30 to withhold consent for the EU (Withdrawal) Bill, the main piece of UK legislation paving the way for Brexit. Labour, the Liberal Democrats and the Greens accepted the SNP government’s charge that the Bill undermines the devolution settlement and the principles on which it was founded. On the same day, the National Assembly for Wales voted by 46-9 to grant consent for the Bill, with the Welsh government arguing that the amended clause 15 (formerly clause 11) and the agreement they reached with the UK government ‘defended and entrenched’ devolution. Only Plaid Cymru disagreed.

Consent was sought from both legislatures following the convention (usually referred to as the Sewel convention) that the UK parliament will not normally legislate in devolved areas, or alter devolved powers, without their agreement. The Withdrawal Bill alters the devolution settlements by placing a new constraint on devolved legislatures and ministers to avoid acting incompatibly with ‘retained EU law’, even in policy fields which otherwise fall within their remit. In its original form, this constraint was placed upon all retained EU law, with provision to release the constraint once it was agreed that there was no need to preserve a common UK legislative or regulatory framework. In its amended form, the Bill requires the UK government to specify in regulations the areas to which the restriction will apply. It introduced a time limit – UK ministers have two years from Brexit day to bring forward new regulations, and these would last for no more than five years. The amendment also places a duty on UK ministers to await a ‘consent decision’ before tabling the regulations, but herein lies the controversy. Whereas the Sewel convention assumes that consent means agreement, Clause 15 empowers UK ministers to proceed even if the ‘consent decision’ is to withhold consent. Continue reading

Federal reforms in Austria: is now the time to overcome gridlock?

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The promise of ‘change’ was key for the Austrian Christian Democrats’ landslide victory in last year’s general elections. Recent sub-state polls, however, have perpetuated the influence of incumbent governors – and their power to veto the new government’s plans to reform Austria’s federal system. Patrick Utz analyses the links between current electoral dynamics, the country’s corporatist heritage and the potential for federal reforms in Austria.

When in October 2017 the Christian Democrat ÖVP and their 31-year-old leader, Sebastian Kurz, won their first federal elections in 15 years, they did so based on the promise of profound ‘change’. This vaguely defined agenda first materialised when Kurz formed a coalition with the far-right Freedom Party (FPÖ), which brought the long-standing ‘Grand Coalition’ between Social Democrats (SPÖ) and Christian Democrats to an end.

A central element of the new coalition agreement is an administrative reform, which may have far-reaching implications for the country’s federal structure. Unsurprisingly for a state that has been described as a ‘federation without federalism’, the promised reforms will most probably lead to further centralisation at the expense of the nine constituent Länder. Rather than the direction of change, the puzzling question about Kurz’s plans is whether they will occur in the first place.

Deadlock through informal vetoes

Austria’s peculiar system of cooperative federalism, along with the country’s strong corporatist tradition has long been immune to noteworthy changes. In spite of the Länder’s very limited self-rule and quasi-negligible formal mechanisms of shared-rule at the centre, regional political elites have long been able to have their say in federal decision-making. The most visible mechanism of these informal forms of regional interference is the ‘Conference of Governors’: a regular gathering of the nine Länder’s heads of government with no legal status but with very effective veto powers concerning federal legislation. Subtler forms of political influence, particularly through party-internal channels, might have been an even more powerful tool in the hands of regional elites. Continue reading

Clause 11: the Schleswig-Holstein question of the EU Withdrawal Bill

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Today, the House of Lords will continue its scrutiny of the EU (Withdrawal) Bill by discussing Clause 11, which provides that the power to amend retained EU law in areas currently devolved to Edinburgh, Cardiff and Belfast would transfer from Brussels to Westminster, rather than to the relevant devolved body. Jim Gallagher discusses how the UK and Scottish governments are at odds over this issue and offers some potential solutions to a dispute that has now been referred to the UK Supreme Court. 

The current dispute between the Scottish and UK governments is increasingly coming to resemble the Schleswig-Holstein question, in that almost no-one really understands this technical, legal issue, but it has produced some apocalyptic rhetoric. Nicola Sturgeon has said it could ‘demolish’ devolution. Having competing pieces of legislation seeking to preserve EU law after Brexit is said to be a ‘constitutional crisis’. This hyperbole favours alliteration over analysis, but there are some real constitutional issues at stake here, obscured by political noise and intergovernmental argument.

The nub of the argument is quite simple: both sides agree Holyrood’s powers will increase after Brexit, but disagree about when and how. Both governments do have a point. The UK government, overwhelmed by Brexit, want to keep control of some Brussels policies until orderly replacements are settled. The Scottish government stands on the principle that anything affecting Holyrood’s powers requires its specific consent. Reasonable people could do a deal here. The Welsh government already have, and the issue is now being debated in the House of Lords at Report stage of the Brexit Bill. It is worth taking stock of why it matters.

‘Taking back control’ – To Edinburgh, Cardiff and (maybe) Belfast

Back in July 2016, once the first shock of the referendum result was over, I pointed out that Brexit should increase devolved powers, and so in a sense make the UK more federal in nature. Powers ‘taken back’ from Brussels should be distributed amongst the various legislatures of the UK according to the allocation made in the devolution settlements. This will make the devolved administrations more powerful in two ways. Obviously, they will no longer be constrained by EU law, so there would be no more EU law challenges on Scotland’s minimum alcohol pricing. Less obviously, since most EU competences deal with things managed better over large areas, they will work more smoothly at a UK level than as a four nations patchwork. Hence the (shared) desire for ‘UK frameworks’. Given devolution of the policy issues, the devolved administrations will have an effective veto, or at least a strong influence, over these frameworks. During one debate in the House of Lords, Lord Forsyth of Drumlean called that ‘the tail wagging the dog’. Continue reading

The Good Friday Agreement at 20: what’s next for Northern Ireland?

Alan_Rialto2 (1)Yesterday, in the first of two blogs on the Good Friday Agreement, Alan Whysall discussed where the Agreement had gone wrong and the benefits it has brought Northern Ireland since it was signed in April 1998. In this post, Alan looks at the future of the Agreement, a document he was involved in negotiating and implementing during his time as a civil servant at the Northern Ireland Office.

As conflict with the EU mounted over the Northern Ireland issue, some pro-Brexit voices in Great Britain began to argue that the Good Friday Agreement (‘the Agreement’) had ‘run its course’. They proposed no alternatives, however, for a position that broke a 20 year consensus in mainstream British politics.

Few in Northern Ireland, beyond established ultras, have gone so far. But some, predominantly unionists, argue in the short term for direct rule; some for changes to the mechanisms of the Agreement. There is also increasing talk of a border poll opening the way to a united Ireland.

Direct rule

Some see direct rule from Westminster as a good government safety net that Northern Ireland can fall back on, as in the past. From one perspective, it is remarkable that has not happened. Extraordinarily, no one has been in charge of government for over a year, as though having government is discretionary. The civil service carries out the administration on the basis of established policy, in a legal quagmire.

Nonetheless the British government has resisted the temptation to reinstate full-blown direct rule. This is understandable, as its own role would be seriously contested, given its dependence on the DUP for a Commons majority; so would the role the Agreement foresees for the Irish government. Most damagingly, it might be seen as the end of efforts to revive the institutions, unleash further negativity and probably drive the best people from politics. Direct rule, once turned on, is hard to turn off.

The present situation cannot endure indefinitely. At some point, much more government will have to be done. Continue reading

The Good Friday Agreement at 20: what went wrong?

Alan_Rialto2 (1)The Good Friday Agreement (also known as the Belfast Agreement) is 20 years old today, but recent events in Northern Ireland have shown that power-sharing has proven a difficult exercise. Alan Whysall, who was involved in the negotiations that led to the Agreement as well as its implementation, examines what has gone wrong since the Agreement was signed. A second blog, to be published tomorrow, will discuss what can be done to get the Agreement back on track.

Today marks the 20th anniversary of the signing of the Good Friday Agreement, (‘the Agreement’),  but the system of power-sharing government it established in Northern Ireland has not functioned for over a year. It was widely seen in Britain, as elsewhere, as a significant act of statesmanship, supported by both main parties. But it now appears at risk, as the Irish border becomes a critical issue in the Brexit negotiations.

What has gone wrong?

The Agreement was a political construct to underwrite the ending of a conflict and address the divided politics of a divided society. Progress in those three areas – conflict, politics and society – is interlinked. There was a hope that the division would reduce. In society it has, to some degree, though the progress is now in danger; in politics, less so.

The Agreement covered a wide range of matters besides devolved power-sharing government, but the main focus has been on that issue. The institutions were troubled from the start. Power-sharing government was not established until late 1999. Dogged by unionist reluctance to be in government with Sinn Féin while the IRA continued in being, it collapsed in late 2002. Five years’ direct rule followed, during which the IRA declared its war over and decommissioned weapons, and political negotiations culminated in the St Andrews Agreement of 2006 (with minor changes to the Agreement institutions). Re-established in 2007, the institutions functioned for 10 years.

Sinn Féin pulled out of the Executive in January 2017 citing lack of ‘respect’ from the DUP, essentially around Irish identity. Its key demand became an Irish Language Act, much debated though little defined by either proposers or opponents. Political negotiations appeared to be leading to agreement in February this year, when the DUP abruptly pulled out, its base apparently unhappy at the prospect of the (rather modest) language legislation proposed in the draft text.

DUP figures now speak of restored devolution being impossible this year; no further negotiations are in prospect. The new Secretary of State, Karen Bradley, has brought forward legislation at Westminster on the Northern Ireland budget.

Since last January, opinion in Northern Ireland is much polarised; the rhetoric of the parties, and to some degree the print media, has plunged into a partisan downward spiral. The spirit of partnership that was once to the fore in politics, and at times won votes, is withering, with few vocal proponents in the political realm. Continue reading