In the event of a Leave vote Brexit would dominate Westminster for years

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The Constitution Unit, together with the UCL European Institute, is holding a special series of seminars on the implications and consequences of Brexit. The first, on 21 April, focused on the consequences for Westminster and Whitehall. In this post, adapted from his comments on the night, former Clerk of the House of Commons Lord Lisvane discusses the impact that a vote to leave the EU would have on Westminster in the immediate aftermath of the referendum, during Brexit negotiations and once Brexit has actually taken place.

The immediate aftermath

After a vote to leave there will be immediate pressure for debates in the House of Commons and the House of Lords, probably over two days, to be held as soon as possible. There may even be calls for a rare weekend recall, though this is in the Prime Minister’s hands and I think it very unlikely that he would grant one.

David Cameron’s future will, of course, be high on the agenda. He has said that he would stay on as Prime Minister to oversee the consequences of a vote to leave, but there are Conservative MPs who have suggested that he won’t have the opportunity to do that. Might he throw the dice and have a vote of confidence among members of his own party, or would that be too high risk?

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The length of modern legislation means that the effectiveness of parliamentary scrutiny is often compromised

In a new report published by the Centre for Policy Studies Daniel Greenberg identifies a number of trends that he argues are reducing the effectiveness of parliamentary scrutiny of legislation. In particular, he suggests that the length of modern legislation is becoming so great that significant parts of bills often receive no detailed scrutiny at all. Here, he summarises his report and suggests action that might be taken to help remedy the situation.

Recent parliamentary practice discloses a number of dangerous legislative trends that threaten the effective protection of the rule of law, by diluting parliament’s power and influence, and concentrating power in the hands of the executive in general and the civil service in particular.

The length of new bills and the number of clauses that they include has become ever greater over recent decades, and the result of portmanteau bills in particular is that even if parliament wanted to scrutinise them effectively it would be unable to do so.  Over the past 50 years, the number of acts passed by governments has stayed approximately the same. However, the average number of clauses included within them has doubled.

It is still common to describe the committee stage of the examination of bills in both Houses as a ‘line-by-line’ scrutiny process; and parliamentarians on all sides of each House commonly refer to it in that way, and often congratulate themselves on scrutinising and refining bills at great length.  The reality, however, is that the committee stage in particular has become diluted to such a degree that it can no longer be described as taking place in a consistent way.

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Parliament, government and secondary legislation: Lords select committees respond to the Strathclyde Review

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Two House of Lords select committees have this week published reports that are highly critical of the recommendations of the Strathclyde review into the Lords’ powers in relation to secondary legislation, published in December. Mark Elliott summarises the committees’ findings and welcomes calls for a consensual, reflective approach to be taken.

I wrote in December about the Strathclyde Review, which took place at great speed in the autumn against the backdrop of the House of Lords’ refusal to allow the enactment of secondary legislation on tax credits. The Review – set up by the government – recommended stripping the Lords of its power to veto statutory instruments by investing the Commons with statutory authority to override the Lords in the event of opposition to secondary legislation. Two House of Lords select committees – the Constitution Committee and the Delegated Powers and Regulatory Reform Committee – have now published reports that are highly critical of the Strathclyde proposals.

The report of the Constitution Committee

In its report, the Constitution Committee rejects the notion that the tax credits affair amounted to a ‘constitutional crisis’ and says that a ‘single Government defeat … does not seem a sound foundation upon which to base significant and lasting reform’ in this area. Indeed, the committee argues that the Strathclyde Review ended up – as a result of the terms of reference set for it by the Government – asking the ‘wrong questions’ and framing the issues inappropriately. In particular, the committee takes the view that while the Strathclyde Review approaches the matter in terms of the relationship between the two houses of parliament, the underlying, and far more profound, issue concerns the relationship between parliament and the executive:

Delegated legislation is the product of a delegation of power from Parliament to the Government. Parliamentary scrutiny of secondary legislation is the mechanism by which Parliament assures itself that the Government is exercising that delegated authority in an appropriate way, and in a manner which accords with Parliament’s intentions. Yet Parliamentary scrutiny of delegated legislation is less intensive and arguably less effective than its scrutiny of primary legislation. Statutory instruments cannot be amended, so there is little scope or incentive for compromise. Far less time is spent debating delegated legislation than is spent debating primary legislation. And … it is established practice that the House of Lords does not vote down delegated legislation except in exceptional circumstances. The result is that the Government can pass legislative proposals with greater ease and with less scrutiny if it can do so as delegated, rather than primary, legislation. It is in this context that proposals to weaken the powers of the House of Lords should be considered.

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How parliament influences policy: academic and practitioner perspectives

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There is now a large body of academic research demonstrating that the Westminster parliament has considerable policy influence, yet claims that the UK has an executive-dominated political system persist. On 15 March Professor Meg Russell and Professor Philip Cowley, who between them have carried out much of the key research in this area, spoke at a Constitution Unit seminar on the policy impact of parliament along with Sarah Champion MP, who offered an insider perspective. Ruxandra Serban reports.

Public and media discourse is often shaped by a longstanding assumption that the Westminster parliament is weak relative to the executive – but is this really true? A closer look demonstrates that it is a complex and often misunderstood institution. On 15 March the Constitution Unit, in collaboration with the Hansard Society and the Parliament and Constitution Centre of the House of Commons Library, hosted a seminar in parliament with Professor Meg Russell (Director of the Constitution Unit), Professor Philip Cowley (Queen Mary University of London), and Sarah Champion MP, to discuss parliament’s policy impact.

The legislative process, the Lords and select committees

Speaking first, Meg Russell suggested that the constant portrayal of parliament as a weak institution should be a matter for concern, as perpetuating an inaccurate assumption may drive down trust in the political process. The impact of parliament on policy has been a major strand of the Unit’s research in recent years, including extensive work on the legislative process, the House of Lords and select committees.

Tracing amendments in both chambers on 12 bills (2005-2012) revealed that although at first glance government amendments were much more successful than non-government amendments (94 per cent were passed, compared to 0.7 per cent of non-government amendments), in fact 60 per cent of government amendments that made substantive policy change were traceable to parliamentary pressure, mostly through previous non-government amendments. Select committee recommendations can also lead the government to bring forward amendments of their own , notably including the reversal of the Labour government’s manifesto policy on smoking in public places from a partial to a complete ban. These findings are elaborated in an article by Meg Russell, Daniel Gover and Kristina Wollter, recently published in the journal Parliamentary Affairs.

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EVEL is unlikely to offer a sustainable solution to the West Lothian question

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Last month the House of Commons Public Administration and Constitutional Affairs Committee published a report on English votes for English laws in which significant doubts were raised about whether the new standing orders are a sustainable solution to the West Lothian question. The committee’s chair, Bernard Jenkin, outlines his committee’s findings and argues that the government should adopt a comprehensive strategy for the future of relationships between Westminster and the UK’s component parts.

At the outset of this parliament it was clear that the newly formed Public Administration and Constitutional Affairs Select Committee (PACAC), given its renewed remit in constitutional affairs, would have to look at English votes for English laws (EVEL).

The issue of Scottish MPs influence in Westminster was controversially amplified during the 2015 general election campaign, when the Conservatives focused voters’ minds on the possibility of SNP MPs holding the balance of power. During our evidence sessions, we were told of increasing dissatisfaction with the constitutional status quo in England and the anomaly whereby Scottish, Welsh and Northern Irish MPs can vote on matters affecting voters on England yet are unable to vote on these subjects as they affect their own constituents thanks to devolution.

Evidence suggests that of all the potential remedies to the ‘English question’ that have arisen from devolution, the principle of English votes for English laws commands consistent and substantial popular support, both north and south of the border. However, PACAC’s report ultimately concludes that while this may be true, we have significant doubts that the current standing orders are the right answer to the so-called West Lothian question, or that they represent a sustainable solution. They may be unlikely to survive the election of a government that cannot command a double majority of both English and UK MPs.

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Sunday trading and the limits of EVEL

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Yesterday MPs defeated the government by 317 votes to 286 on its proposals to relax Sunday trading rules. But although the policy would have applied only in England and Wales, the votes of Scottish MPs proved decisive. In this post Daniel Gover and Michael Kenny discuss the territorial dimensions to this episode, and why the recent ‘English Votes for English Laws’ reform did not help the government to pass its legislation.

Yesterday’s decision by MPs to reject government proposals in the Enterprise Bill to devolve Sunday trading rules to local authorities was a rare example of a government defeat on the floor of the Commons. But what makes yesterday’s vote contentious and important is that it brought to the fore a territorial angle to British politics that has already risen in prominence since 2014’s Scottish independence referendum. Earlier this week the Scottish National Party announced that its MPs would vote against the Sunday trading provisions – even though the policy would only have applied in England and Wales (while responsibility for comparable legislation in Scotland is devolved to the Scottish Parliament). In yesterday’s division, MPs voted by 317 to 286 to delete the provisions from the bill. Had Scotland’s 59 MPs not participated in the division, the government would have won by 21 votes.

The Sunday trading vote highlights an anomaly in Westminster representation post-devolution that many assume the current government has resolved. In the 1970s, Tam Dalyell, the Labour MP for West Lothian (and a staunch opponent of devolution), posed his now-famous ‘West Lothian Question’: why should Scottish MPs continue to vote on matters affecting only England, when English MPs cannot participate in comparable decisions affecting Scotland? Following the 2015 general election, Chris Grayling, Leader of the House of Commons, announced that the government was now ‘answering the West Lothian question’ through a package of reforms known as ‘English Votes for English Laws’ (EVEL). He explained to the Commons that the change would give English (and English and Welsh) MPs ‘a decisive say on matters that affect only their constituencies’.

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The draft EU renegotiation deal: do national parliaments have a genuine red card?

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One element of David Cameron’s draft EU renegotiation deal, published on Tuesday, is a so-called ‘red card’ mechanism that would allow national parliaments to get together to block European legislation. Katarzyna Granat analyses the proposal by contrasting them with the mechanisms currently in force under the Lisbon Treaty. She argues that it is a compromise solution which does not threaten to disrupt the EU legislative procedure.

The draft decision of the Heads of State or Government, ‘A New Settlement for the United Kingdom within the European Union’, unveiled by Donald Tusk on February 2 2016 offers the first concrete vision of the changes to enhance the role of national parliaments under the UK’s renegotiation efforts.

Tusk’s proposal (Section C, points 2-3) envisions that reasoned opinions of national parliaments issued under Article 7.1 of Protocol No. 2 of the Lisbon Treaty ‘on the application of the principles of subsidiarity and proportionality’ should be ‘duly taken into account’ by all institutions participating in the EU decision-making procedures. In Tusk’s proposal national parliaments may submit reasoned opinions stating that an EU draft legislative act violates the principle of subsidiarity submitted within 12 weeks from the transmission of that draft. If these reasoned opinions represent more than 55% of votes allocated to national parliaments (i.e. at least 31 of the 56 available votes; two votes for each national parliament; in the case of a bicameral parliament, each of the two chambers has one vote; votes of parliaments of member states not participating in the adoption of the act at stake are not counted), the opinions will be ‘comprehensively discussed’ in the Council. If the EU draft legislative proposal is not changed in a way reflecting the concerns of national parliaments in their reasoned opinions, the Council will discontinue the consideration of that draft.

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