Legislation at Westminster launch seminar: senior parliamentary figures discuss the impact of parliament on government bills

Meg Russell and Daniel Gover’s new book Legislation at Westminster challenges received wisdom about the UK parliament’s influence on legislation. In contrast to common portrayals of Westminster as having only weak policy influence, Russell and Gover present evidence demonstrating strong influence, exercised in a variety of subtle ways. The findings were discussed at a seminar held in parliament on 15 November. Hannah Dowling and Kelly Shuttleworth report.

The UK parliament is frequently portrayed as little more than an ‘elaborate rubber stamp’ by journalists and even parliamentarians. Academics have tended to offer a slightly more nuanced view but nevertheless often present Westminster as a weak legislature and downplay its policy influence. A ground-breaking new book by Constitution Unit Director Professor Meg Russell and Daniel Gover questions the extent to which these assumptions hold true. The book represents the largest study of its kind for over 40 years.

On 15 November, a seminar was held in parliament to discuss Russell and Gover’s findings. The event was chaired by Lucinda Maer, Head of the Parliament and Constitution Centre at the House of Commons Library. Russell and Gover summarised their findings before responses from Labour peer Baroness (Patricia) Hollis of Heigham and David Natzler, the Clerk of the House of Commons.

Daniel Gover

Daniel Gover introduced the central research question Legislation at Westminster seeks to address: How influential is parliament on government legislation? In order to answer this, Russell and Gover analysed 12 case study government bills in the period 2005–2012 and logged the over 4000 amendments proposed. The bills were selected to represent the range of legislation laid before parliament and accordingly varied by sponsoring department, chamber of introduction, length and profile. A total of 120 interviews with ministers, members of the opposition, backbenchers, civil servants and outside groups were also conducted. Of the 4361 amendments proposed, 886 were government amendments; 95% of these were passed, compared to 4% of non-government amendments. On the face of it, these figures seem to support the popular notion of parliament as weak and dominated by the executive.

However, by dividing the amendments into ‘strands’, i.e. collections of similar amendments made at different stages of the legislative process, Russell and Gover were able to trace their origins, which revealed a more nuanced picture of parliamentary power. There were 2050 strands identified, of which 300 were successful. Of these 300 strands only 55% were government-initiated. When  strands comprising only small technical changes were omitted, this dropped to 45% – with 55% initiated by non-government actors,. Amongst these groups, the opposition initiated the most strands (1604), of which 112 were successful. Although government backbenchers initiated fewer strands, 36 of 304 were successful – a higher success rate than the opposition. There were also 155 strands introduced by non-party affiliated actors, primarily in the Lords, of which 12 were successful. Gover stressed the importance of cross-party work, emphasising that strands demonstrating cross-party support had a higher success rate than those without.

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The EU Withdrawal Bill: parliamentary prospects

The EU (Withdrawal) Bill received its second reading in the House of Commons by a relatively comfortable margin in the early hours of Tuesday morning. During the remainder of its parliamentary passage the government is likely to come under greater pressure, particularly on the issue of the delegated powers in the bill. On 13 September the BBC’s Mark D’Arcy and the Hansard Society’s Ruth Fox spoke about the prospects at the Constitution Unit. Alex Diggens and Jack Sheldon summarise what was said.

The European Union (Withdrawal) Bill looks set to be one of the most significant and controversial pieces of legislation to pass through parliament in recent memory. Ostensibly a bill to repeal the European Communities Act 1972 and manage the process of converting EU law into domestic law, the bill has far greater scope. It hands significant delegated powers to ministers, allowing them to make changes to remedy supposed ‘deficiencies’ in both secondary and primary legislation through statutory instruments (SIs) and to implement the eventual withdrawal agreement. It also has major implications for the devolution settlements, as outlined in a previous blog post.

In the early hours of Tuesday morning the bill received its second reading in the Commons by the relatively comfortable margin of 326 votes to 290. However, the upcoming Commons committee and report stages, as well as the bill’s passage through the House of Lords, are likely to pose much greater difficulty for the government. On 13 September the Constitution Unit held a seminar to discuss the prospects. Chaired by the Unit’s Dr Alan Renwick, the panel comprised two experts on the dynamics at play: Mark D’Arcy, the BBC’s Parliamentary Correspondent, and Dr Ruth Fox, Director of the Hansard Society.

Dr Alan Renwick introduces the seminar

Mark D’Arcy

Mark D’Arcy focused his remarks on the party-political landscape in relation to the bill and the key types of amendments that are being brought forward.

On the party-political landscape, D’Arcy argued that the bill’s passage will be a drawn-out battle, but one that the government go into reasonably confidently. He said that 10 Downing Street is working hard to keep open links with all of the Conservative factions, and that none of them is seeking to kill the bill. The Tory ‘Remain’ contingent in the Commons is small, and they recall the infighting during the Major years; they therefore recognise that actively fighting Brexit would be ‘career death’. D’Arcy suggested that ‘Bregretters’ might be a more accurate term for this group as they do not actually seek to prevent Brexit. The House of Lords have expressed significant reservations about the bill, notably through the influential Constitution Committee, but D’Arcy predicted that they will be constrained by not wanting to be seen fighting against ‘the people’.

As soon as the second reading vote went through the Commons, queues were forming to put amendments forward. The ‘Bregretters’ put down several, led by the former Attorney General Dominic Grieve. The focus of their amendments was on overseeing the technical operation of the bill, particularly on identifying which SIs require thorough parliamentary scrutiny. Another group of amendments comes from the Labour ‘Remain’ group. These tend to be more ambitious – they keep open options for the future, for instance the option to remain in the Customs Union, or perhaps even the European Economic Area. Other groups have more niche concerns – for example, some MPs are pushing to entrench specific rights provided by EU law.

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British politics and what we’ve learned after the 2017 general election

Last month’s general election delivered the latest in a series of political surprises, with the Conservatives falling short of a majority when many had anticipated they would win a landslide. On 21 June the Constitution Unit hosted a panel of election experts consisting of YouGov’s Joe Twyman and academics Justin Fisher, Jennifer Hudson, Philip Cowley and Alan Renwick to reflect on what happened. Fionnuala Ní Mhuilleoir reports.

Although we have become used to political upsets in recent years the outcome of the 8 June election nonetheless came as a surprise to many, including the Prime Minister, who saw her majority disappear when she had hoped to increase it substantially. How did this happen? How did the Conservatives manage to lose the massive lead they held at the start of the campaign, and Labour out-perform all expectations? How did the pollsters do after they had failed to call the 2015 election correctly? And what does the result mean for the government’s position in the new parliament, and for Brexit and beyond? These questions were all discussed at a Constitution Unit seminar held on 21 June, chaired by the Unit’s Director Professor Meg Russell. The panel included YouGov’s Joe Twyman, Professor Justin Fisher from Brunel University and Professor Philip Cowley from Queen Mary University of London. Dr Jennifer Hudson and Dr Alan Renwick from the Constitution Unit completed the line-up.

Joe Twyman

Joe Twyman opened the seminar with a brief post mortem on YouGov’s 2015 general election polling, which had predicted that the Conservatives would be the largest party in a hung parliament. The Conservatives went on to win 330 seats, securing a small but workable majority. YouGov subsequently identified three problems in the 2015 polling process: the samples used by YouGov and other polling companies to measure voting intention were not representative; figuring out whether people will turn out to vote is challenging; seat estimation across 650 constituencies is inherently very difficult.

Twyman then described how YouGov has responded to these issues. First, it has invested heavily in targeted recruitment, spending more than £100,000 in the last year to identify and recruit the types of people who were underrepresented in YouGov samples between 2010 and 2015, particularly those who were not interested in politics. Second, YouGov has updated how it analyses turnout. Thirdly, it has also developed a new seat estimation model.

This seat model, as is now well known, correctly predicted a hung parliament. In the run up to June 8 YouGov faced trenchant criticism, both from established commentators and on social media. Twyman reflected on Paul Krugman’s statement after the US election results that economists and commentators ‘truly didn’t understand the country we live in’. Through the efforts of YouGov, according to Twyman, we do now understand the country we live in a little better.

Justin Fisher

Justin Fisher began his contribution by drawing the audience’s attention to how important lead time ahead of an election is for party campaigns. The national and constituency campaigns have merged, with national campaigns now supporting the constituency effort. Lead time gives parties more time to plan targeting, information distribution, spending and fundraising. In a normal election campaign the critical period is the six-to-nine months before the poll.

The snap election left no opportunity for such advance campaigning. One implication is that this is likely to have been a much less expensive campaign than usual. Another is a shift in emphasis in campaigning techniques from direct mail (which requires lead time) to face-to-face campaigning and e-campaigning, which require much less preparation time. Fisher stressed that the evidence needed to confirm these expectations is still being collected.

Though the 2017 election may have accelerated the shift to e-campaigning, Fisher argued that campaigning techniques were partly heading that direction regardless. He also warned of what he called e-campaigning myths. He debunked the myth that micro-targeting of voters had only just been invented: parties have gathered data from phone calls and indirect mail for years. E-campaigning, therefore, represents evolution rather than a revolution. A further myth is the claim that because parties are using e-campaigning it must be effective. In 2015, research found it to be electorally effective, but less so than face-to-face campaigning. This has yet to be examined for the 2017 election.

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After the general election: what’s next?

Just two days after the general election, Professor Meg Russell, Dr Jennifer Hudson and Dr Alan Renwick of the Constitution Unit spoke at UCL’s It’s All Academic festival about the constitutional and political fallout. Michela Palese summarises what they said.

Theresa May called for a snap election on 18 April in order to increase the Conservative Party’s majority in the House of Commons and give herself a strong personal mandate for the upcoming Brexit negotiations. The election took place on Thursday 8 June, and its results caught both the Prime Minister and the general public by surprise. No party secured an overall majority of seats and the United Kingdom has its second hung parliament in less than a decade. The Conservatives are left relying on the support of Northern Ireland’s Democratic Unionist Party (DUP) to form a government.

On the morning of Saturday 10 June the Constitution Unit hosted an event at UCL’s ‘It’s All Academic’ Festival. In this atmosphere of uncertainty, the Unit’s Professor Meg Russell, Dr Jennifer Hudson and Dr Alan Renwick provided some initial analysis of the results and explored some of the likely challenges facing the new government.

The Unit’s Alan Renwick (left), Meg Russell (centre) and Jennifer Hudson (right)

Candidates and campaign

Jennifer Hudson analysed the election from the point of view of campaigning and the composition and diversity of the new parliament.

She argued that, contrary to the Prime Minister’s expectations, it was hard to make the case that the election was about Brexit. In fact, according to a survey that she had conducted in early May, most people did not seem to have strong feelings towards the Brexit negotiations or leaving the European Union without an agreement.

Figure 1: Feelings of the British electorate on Brexit

As shown in the diagram, around 25 per cent of respondents felt either depressed or angry about the negotiations and the prospect of exiting the EU without a deal, but the general feeling on the topic was of relative indifference. This may reflect a shift in the debate on Brexit, with a majority of ‘remainers’ accepting the result and wishing for negotiations to proceed, and only around 20 per cent continuing to claim that the UK should remain in the EU and that there should be a second referendum.

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Re-assessing the (not so) Fixed-term Parliaments Act

On Monday 22 May the Constitution Unit hosted a debate on the Fixed-term Parliaments Act. Against the backdrop of an early general election and a Conservative manifesto promise to scrap the Act, Carl Gardner and Professor Gavin Phillipson (Durham) argued the merits of the Act and the potential legal implications of its repeal. Kasim Khorasanee reports.

The Fixed-term Parliaments Act 2011 was enacted under the Conservative-Liberal Democrat coalition government to regulate when general elections were held. Previously general elections were required at least every five years but their exact timing was a matter of royal prerogative, in practice exercised by the Prime Minister. The Act fixed the length of each session of the House of Commons, unless an early general election could be called. The Act set out two mechanisms to call an early general election. The first – which was relied upon to call the 2017 general election – required at least two thirds of the Commons (434 MPs) to vote in favour of an early general election. The second was triggered if a no confidence motion was passed by the Commons and not reversed within 14 days.

Carl Gardner

Carl Gardner, a former government lawyer, led the defence of the status quo ante. He began by highlighting the risks in allowing politicians the freedom to redraw constitutional rules – both in terms of unintended consequences and selfish intent. The Act was a key case in point. Nick Clegg, as Deputy Prime Minister, had made the case for the Act by suggesting fixed terms would bring greater stability to the political system and allow politicians to focus on governing by removing the distracting uncertainty around election timings. In practice the intense speculation over whether Theresa May would call a general election in late 2016, followed by her surprise announcement to do so in mid-2017, had demonstrated the flaws in Clegg’s arguments. Gardner drew attention to David Laws’ book 22 Days in May which underlined the fact that the Act had been drawn up as a calculated political compromise designed to stabilise the coalition government in power.

Gardner went on to argue that the British constitution’s complexity and nuance had been underestimated by reformists. He noted that the Prime Minister had never been able to call elections ‘on demand’, they had always required the monarch’s explicit authorisation to do so. Furthermore there had never been popular discontent at the calling of elections or any suggestion of Prime Ministers ‘abusing’ their powers in doing so. The Act had also introduced uncertainty with respect to no confidence motions. Firstly, it was unclear whether in the 14 days after a statutory no-confidence motion the Prime Minister would be under a duty to resign, or whether they would be free to work to reverse the motion. Secondly, votes which previously might have been understood as matters of confidence – budgets, the Queen’s speech, going to war – appeared to have been stripped of this effect. Whereas Tony Blair understood losing the 2003 Iraq War vote would have meant resigning, David Cameron happily carried on after losing the 2013 Syria intervention vote. Gardner suggested that the duty for Prime Ministers to resign once they had lost the confidence of the Commons had been eroded by the Act.

Finally, on the legality of repealing the Act, Gardner asserted that where common law or prerogative powers were overridden by statute, revoking the statute would have the effect of ‘reviving’ the previous common law or prerogative. In support of this he cited the High Court decision in the famous GCHQ Case (R v The Secretary of State for Foreign and Commonwealth Affairs ex parte Council of Civil Service Unions and another [1984] IRLR 309 [73]). Although legislation such as Section 16(1) of the Interpretation Act 1978 appeared designed to prevent this reviving effect, it could be overridden by a clear expression of parliament’s will.

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‘Nationalism should not be confused with patriotism’ – Ruth Davidson delivers the Orwell Prize Shortlist Lecture

On 15 May Scottish Conservative leader Ruth Davidson delivered this year’s Orwell Prize Shortlist Lecture, co-hosted by the Constitution Unit. In the lecture Davidson set out a distinction between ‘patriotism’ and ‘nationalism’, arguing that although many political movements try to ensure that they get confused the two are profoundly different from one another. Thomas Romano reports.

The Orwell Prize is Britain’s most prestigious prize for political writing, awarded every year since 1994 in three categories: one for the best political book, the others for journalism and for ‘Exposing Britain’s Social Evils’. The Prize is awarded to the authors who come closest to Orwell’s ambition ‘to make political writing into an art’. On 15 May the shortlists for the 2017 Prize were announced, the last step before the proclamation of the winners on June 15. The event for the shortlist announcement was co-hosted by the Constitution Unit and the Orwell Foundation with the annual Shortlist Lecture given by Scottish Conservative Leader Ruth Davidson.

The choice of Davidson was in some ways surprising. As she herself noted in her speech, Orwell was ‘a man of the left’. As a matter of fact, Davidson was the first Conservative politician to give the shortlist lecture. Joking, she said that she did not expect him to agree on the choice.

In her speech, however, Davidson chose to draw inspiration from one of Orwell’s works that she could relate to. She drew inspiration from an essay written by Orwell in May 1945, in the immediate aftermath of the Second World War, called Notes on Nationalism. Here, Orwell speculates on some of the driving forces behind the nationalisms, and describes some features of what Davidson named the ‘politics of identity’. As leader of the Scottish Conservative Party, Davidson campaigned for Scotland to stay in the UK in the 2014 Scottish independence referendum, and her party has more generally been a historic supporter of the Unionist case in Scotland. This has placed her in sharp contrast with Nicola Sturgeon’s Scottish National Party.

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Brexit at Westminster: can parliament play a meaningful role?

On March 13 the Constitution Unit hosted a seminar on Brexit at Westminster, exploring the role parliament has played in the lead up to the triggering of Article 50 and that it might play in the forthcoming negotiations. The panel consisted of Hilary Benn, Chair of the House of Commons Exiting the EU Committee; Arnold Ridout, Counsel for European Legislation at the House of Commons; and Baroness (Kishwer) Falkner, Liberal Democrat peer and Chair of the Financial Affairs Sub-Committee of the House of Lords EU Committee. Ascher Nathan reports.

Introducing this seminar on Brexit at Westminster, Constitution Unit Director Meg Russell remarked on the perfect timing: the Article 50 Bill would have its final votes that evening. Despite earlier concerns that parliament would be shut out from any influence over Brexit it has played a central role in the lead up to the triggering of Article 50 through debates, questions, the work of select committees and, following the judgement in the Miller case, the passage of the Article 50 Bill. The next big piece of legislation will be the ‘Great Repeal Bill’. Thus, the answer to the question of whether parliament can play a meaningful role in Brexit should be considered as a resounding ‘yes’ – it has already begun to do so. And yet if the Miller case and subsequent events have been a reminder about the role parliament can play, questions still remain about exactly how it will influence debates going forward.

The three speakers each brought a different perspective. Hilary Benn, Labour MP for Leeds Central, has served as a cabinet and shadow cabinet minister and is now Chair of the House of Commons Exiting the EU Committee. Arnold Ridout is Counsel for European Legislation at the House of Commons, and legal adviser on EU matters to the Commons select committees. Baroness (Kishwer) Falkner, a Liberal Democrat peer, sits on the Lords EU Committee and chairs its Financial Affairs Sub-Committee.

Hilary Benn

Hilary Benn explained that the Exiting the EU Committee was a mixed group of Leavers and Remainers and thus his role as chair was to establish consensus and direct their work in a constructive manner. In what he described as the most complex trade negotiations since the end of World War II, with the Great Repeal Bill to be an ‘enormously daunting task for any government,’ Benn pledged that parliament would ‘not be a bystander’ and intended instead to be a key participant in the policy process. Fundamentally, he challenged the government claim that persistent parliamentary involvement in the negotiations would undermine ministers’ position and lead to bad deals, noting Nick Clegg’s comment that the government’s position implied that only dictatorships were in a position to make treaties.

For Benn, the complexity of Brexit was a great challenge. He talked at length of numerous examples of areas where exiting the EU would prove difficult: passporting for financial services; regulation of medicines (where pharmaceutical companies will seek approval in the largest markets first) resulting in UK patients accessing them later; the regulation of data handling between states. Whilst this is a huge challenge for government, it is equally difficult for the Brexit select committee to address in the limited time available, as well as challenging for the EU. Benn agreed with the government’s position in favouring parallel negotiations for the divorce settlement and the new framework because the eighteen-month window given by Michel Barnier, chief EU negotiator, is so tight. Benn thinks it will be ‘impossible’ to agree a comprehensive trade negotiation in the time available and so called for a transitional agreement to be drafted.

Finally, he discussed the Great Repeal Bill, and the nature of the detail that should be scrutinised. He called for openness by government on both the negotiations regarding transitional arrangements, and the divorce settlement itself (whilst anticipating that much of this information may be gleaned through the ‘leakiness’ of Brussels). He wanted to see a white paper on the Great Repeal Bill, and information on how subsequent legislation will be formulated: will it largely be secondary legislation, authorised by Henry VIII clauses? Benn was concerned by the fact that so far government had had to be ‘pushed and cajoled’ into understanding that parliament would not be bystander: ‘We are not a string, we are very attached to our democracy … and we intend to do our job.’

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