Should we codify the royal prerogative?

com.google.Chrome.vxw6lk.jpgThe recent controversy about the unlawful attempt to prorogue parliament and the judicial review that followed has given rise to renewed calls for the codification of the royal prerogative or the enactment of a written constitution. Anne Twomey argues that there are benefits to a looser prerogative power, and that experience in other countries has shown that codification should be undertaken with caution.

The recent controversy about the prorogation of parliament and the judicial review of its exercise in Miller No 2 (also known as Cherry/Miller) has again given rise to calls for the codification of the prerogative or the enactment of a written constitution.

A written constitution is not necessarily an antidote for ambiguity or interpretative discretion. The same issues that arose in Miller No 2 could also arise under a written constitution. For example, section 5 of the Australian Constitution confers upon the Governor-General of Australia the power to prorogue the federal parliament. In doing so, however, it does not delineate the scope of the power to prorogue and whether there are any internal limits on it. The term ‘prorogue’ would have to be interpreted in its historical context, as a prerogative power, and in a manner that is consistent with the principles that are derived from the constitution, including the principles of responsible and representative government

So what would happen if an Australian government requested the Governor-General to prorogue parliament for a significant period, in circumstances where it appeared to have lost confidence and to be seeking to frustrate the ability of parliament to fulfil is legislative and accountability functions? It is likely that Australian courts would face exactly the same issues as the UK Supreme Court did in Miller No 2, regarding justiciability, the scope of the power to prorogue and the application of fundamental constitutional principles. Simply setting out the existing power in legislation or a written constitution does not, of itself, resolve all questions as to its application.

While most prerogative powers have now been abrogated by legislation, there is usually a good reason while those that have survived as prerogative do so. It may be because of the need to exercise them in a quick and decisive fashion. Sometimes, codifying prerogatives in legislation, particularly where prescriptive conditions are included, can exacerbate problems about their use. Disputes are likely to arise about the interpretation of the application of the conditions, courts are likely to become involved in enforcing them, and the delay involved in litigation is likely to exacerbate any political crisis. Continue reading

From candidate to elected member: will new MPs face a trial by fire after the 2019 Canadian federal election?

Louise.CockramNews.jpgCanadian voters will today cast their votes in a tight federal election, after  which a large number of first-time MPs are expected to take their seats. Following interviews she conducted with sitting MPs and parliamentary staff, Louise Cockram argues that new members are currently forced to rely on their parties to acclimatise to the House of Commons, and that the official House induction has limited impact.

While the UK waits for a possible snap election, Canadians have been in election mode for months in advance of the federal election that will take place today (21 October). Public opinion polls and the backlash to recent controversies suggest that Justin Trudeau’s Liberals may lose some seats, while a third of New Democratic Party MPs plan to leave politics altogether. This means that a fresh crop of MPs will arrive in Ottawa in late October. These rookie MPs will have spent the past few months knocking on the doors of potential voters, attending community events and coordinating campaigns for party members in their constituency. Once elected they will have to adapt to the procedural rules of the House, as well as answer demands from their constituents and party whips. What will it take for these new MPs to transition from being a party candidate to an elected member? 

A joint project between Carleton University and the Crick Centre at the University of Sheffield attempts to answer this very question. As part of the project we have spoken to 26 Canadian MPs who were elected following the 2011 and 2015 federal elections, as well as seven House of Commons staff who are responsible for facilitating the induction of MPs. The purpose of these interviews is to find out how newly elected MPs learn to do the job of an elected representative once they enter the House. The MPs interviewed for the project were from all the major parties in Canada (the Conservatives, Liberals and NDP) and were from different parts of the country. Indeed, due to Canada’s vast geography, many MPs face challenges balancing their constituency and parliamentary duties. It takes a full day for an MP who represents a riding (electoral district) in Northern British Columbia to travel to their constituency from Ottawa. This presents difficulties for the MP not only in terms of their ability to represent constituents but also puts a strain on family life. Continue reading

Transparency, trust and parliamentary expenses: lessons from the International Parliamentary Regulators Conference

0.000Earlier this year, the Independent Parliamentary Standards Authority held the first ever conference for international parliamentary regulators. Here, Vicky Fox discusses how other national regulators operate, and offers an insight into some of the discussions  at the conference by academics, transparency advocates and serving members of the UK parliament.

In March 2019, the Independent Parliamentary Standards Authority (IPSA) hosted the world’s first conference for international parliamentary regulators. We brought together colleagues from 13 parliaments on five continents: Australia, Chile, France, Germany, Hong Kong, Ireland, New Zealand, Norway, Republic of (South) Korea, Scotland, Wales, Zambia and the UK. We talked about transparency and trust – what it means in the parliamentary regulatory sphere and the role that regulators, the media and elected politicians all play in creating trust in democracy.  

IPSA was created in the United Kingdom nine years ago in the wake of the expenses scandal. But there have been similar difficulties in other countries, including in Australia where an Independent Parliamentary Expenses Authority (IPEA) started operations in 2018. Systems of regulation vary across countries with differing degrees of independence from the national parliament. For example in Hong Kong, pay and allowances are set by the Hong Kong government on advice from an Independent Commission, whose members it appoints. The Legislative Council Secretariat processes pay and reimbursement of claims. In Norway MPs’ salary and other expenses are regulated by law and guidelines. MPs’ salary is set by the Storting, the Parliament, based on a recommendation from the Salary Commission. In Wales there is an Independent Remuneration Board which sets the pay and allowances for Assembly Members. And in Zambia, pay and expenses are set out in legislation and administered by the Speaker.   Continue reading