Brexit and the constitution: seven lessons

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The process of exiting the European Union has revealed that the relationship between law and politics was perhaps not as sound as it might once have appeared. Jack Simson Caird believes that we are in the midst of a constitutional moment that has taught us seven key lessons.

Brexit can plausibly be described as a ‘constitutional moment’. The decision to leave the EU will shape the UK constitution over the coming decades. Even if the full extent of the constitutional changes that will flow from Brexit are not yet known, future Prime Ministers will be defined (in part, at least) by their ability to oversee successful constitutional reform. The post-referendum period has revealed a great deal about the relationship between the UK’s political system and its constitutional framework. Those responsible for changing the constitution moving forward will need to learn the lessons from this tumultuous period.

1. Governing without a majority needs a change of approach

One of the principal causes of the current crisis has been the way in which Theresa May’s government approached the task of governing without a majority. In the immediate aftermath of the referendum, members of the government stressed the need to deliver on the referendum result without delay. The overwhelming sentiment was that the government, led by the Prime Minister and her Cabinet, should be left to get on with the task of negotiating a deal: a majoritarian mindset disconnected from the reality of a divided Cabinet and parliament. Instead, the government should have sought to build a majority for its proposed approach to delivering Brexit before it triggered Article 50 (or at the beginning of the 2017 Parliament).

Any future government that wishes to deliver constitutional change without a majority should look to the example of 2010 Coalition government. The coalition agreement struck between the Conservative and Liberal Democrats specified the constitutional changes that the two parties would agree to support. Theresa May’s government should have done the same and at the outset sought support for the substance of its approach for delivering Brexit.

2. Identify processes that can help to build consensus

The domestic process by which Brexit was to be delivered was not given sufficient attention early enough. Constitutional change gives rise to cross-cutting issues deserving of a special form of public and parliamentary scrutiny. In the absence of a rock-solid parliamentary majority, a special process needed to be constructed to deliver the constitutional transformation of the scale required by Brexit. The commitment to construct such a process at an early stage would have sent a positive message to other parties – and to the public – that the government was committed to finding a compromise that commanded wide support.

In the absence of a formal agreement with another party, the government could have sought to construct a bespoke process that might have facilitated cross-party support for delivering Brexit.

In the early stages of the process, suggestions that parliament should have more input in the negotiations were rejected on the basis that the government should not have its hands tied. Rather than treating these suggestions as an opportunity to bring MPs onside, they were treated as threats that could derail the process. Theresa May’s government only resorted to indicative votes and cross-party talks after the negotiations with the EU finished (and her deal or no deal strategy had failed) which did little to inspire the sense that the desire to engage was genuine.

3. Parliament needs to develop new forms of influence

The Article 50 process has demonstrated that parliament is a powerful constitutional actor. Since the Withdrawal Agreement was published in November 2018, the majorities against the Withdrawal Agreement and against a no deal exit shaped the debate. However, the Article 50 process has also shown that parliament’s influence on the substance of treaty negotiations and the legislative process is limited. Over the course of the 2017 parliament, the House of Commons inched its way to more control through innovative uses of parliamentary procedure, such as through business of the House motions and the Humble Address. The problem is that MPs only realised the extent of their power when it was too late. This meant that compromises were put together and agreed in haste. Essentially, backbench MPs made the same mistake as the government by not prioritising their influence over the process at an earlier stage.

4. The values of liberal democracy should be robustly defended

During the Brexit process, parliamentary scrutiny and debate has been characterised by some as anti-democratic. However, one of the central tenets of liberal constitutionalism is that proposals to change the constitution should be subject to scrutiny and debate. Constitutional democracy is in a very difficult place if this scrutiny and debate is not valued and defended. The core of the case for a carefully constructed procedure for constitutional change is that it enhances the democratic legitimacy of the end-product. How can constitutional reformers build the case for properly constructed change, if deliberation itself is undervalued in UK political culture?

The House of Commons and the Civil Service are restricted in their ability to defend their constitutional role by the requirements of impartiality. So, advocates of constitutional democracy need to robustly defend the role that institutions play in empowering citizens through democratic deliberation. No one is suggesting that politicians or institutions should be free from criticism (on the contrary, criticism is critical to their health and development). However, Brexit has highlighted a need for the values that underpin the basic elements of the democratic process to be defended far more vigorously.

5. Reframe the language of constitutional democracy

Prior to the referendum vote, the Vote Leave campaign demonstrated that a constitutional argument could be framed and communicated in a way that could cut through. Restoration of sovereignty (‘take back control’) was central to the Vote Leave campaign narrative. However, in the post-referendum period, the government has struggled to find a way of communicating the message that leaving the EU with a deal would empower ordinary citizens.

Of course, the reality of constitutional change is more complex than the messaging during the referendum campaign conveyed. However, it is clear that the constitutional ambition of the government was limited by its ability to communicate the value of democratic institutions. Implementing Brexit through radical constitutional change (by, for example, devolving power to English regions) would have required innovative ways of communicating this change to voters – and the government did not have this capacity.

6. Bring law and politics closer together

The Brexit process has exposed a fairly dysfunctional relationship between law and politics in Westminster. Parliamentarians have often been called out for misunderstanding some of the legal fundamentals of the Brexit process. The level of understanding of international law and EU law has been particularly problematic (although this perhaps reflects the limited incentives that parliamentarians have so far had to engage with either of these areas of law). At the same time, it is important to recognise that lawyers are not best equipped to engage with politics. As a result, the Brexit process has often been characterised by a frustratingly circular discourse. To improve the quality of debate over constitutional change, we need to bridge the gap between law and politics.

7. We need politicians that want to build a constitutional consensus

It may be that the UK’s constitutional democracy is in such difficulty that it cannot be repaired through piecemeal change. However, a more radical constitutional overhaul (perhaps in the form of a written constitution) will require politicians that are willing to prioritise finding a new constitutional settlement to resolve the post-Brexit divisions. At present, there are very few frontline politicians that prominently advocate constitutional change. It is not a message that seems to garner support.

Professor Jeff King’s inaugural lecture – delivered at University College London in April 2018 – persuasively argued that moving towards a written constitution in the UK would provide a means for citizens to take ownership over the UK’s constitutional democracy. In order to revitalise constitutional democracy in the UK post-Brexit, political leadership will need to harness this insight and communicate it to the public at large.

This article originally appeared in the June issue of Counsel and is reprinted with permission.  

About the author

Dr Jack Simson Caird is Senior Research Fellow in Parliaments and the Rule of Law at the Bingham Centre for the Rule of Law. He tweets as @jasimsoncaird

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The politics of publishing select committee legal advice

f9pJoDDq_400x400 (1)picture.1257.1530012142Cristina.Leston.Bandeira1Parliamentary select committees at Westminster are assisted in their work by teams of impartial parliamentary staff who fulfil a variety of functions. This can include the provision of legal advice by parliamentary lawyers. In recent years, some committees have chosen to publish that legal advice. Drawing on their ongoing research, Ben Yong, Greg Davies and Cristina Leston-Bandeira examine the practice of publishing legal advice, the reasons behind it and the potential implications for the work of committees and their advisers.

In 2017, the House of Lords European Union Subcommittee on Financial Affairs took a highly unusual step. It published the advice provided by the then EU Committee legal adviser, Paul Hardy, as part of its inquiry on Brexit and the EU Budget. Hardy argued Article 50 of the Treaty on European Union allowed the UK ‘to leave the EU without being liable for outstanding financial obligations under the EU budget’ (p.63). The implications of such advice were politically controversial.

But the act of publishing in its entirety the in-house legal advice provided to the committee, and the legal adviser named, also merits serious attention. There is a small but growing trend of select committees at Westminster publishing the legal advice provided to them by the in-house lawyers of parliament (‘parliamentary lawyers’). The trend raises a number of questions: why are Westminster select committees publishing in-house legal advice; what does this tell us about the internal dynamics of select committees; and what are the implications of publishing internal advice for the House and parliament? This is the focus of our latest article, ‘Tacticians, Stewards and Professionals: The Politics of Publishing Select Committee Legal Advice’ (open access from the Journal of Law and Society).

We have been carrying out a bigger project, funded by the Leverhulme Trust, looking at the provision and reception of legal advice to the four legislatures of the UK. We have now interviewed about 75 individuals, of whom approximately 30 work or worked in Westminster.

Why is this happening?

Select committees will sometimes receive legal advice from the in-house legal services of parliament. In the House of Commons, for instance, much of this comes from the Office of Speaker’s Counsel: a small group of lawyers who are permanent, impartial House staff, employed to provide legal support and advice to the Houses of Parliament. ‘Legal advice’ can cover explanation and information to the application of relevant law to a specific set of facts, and any of the various stages in between. We focus on the more formal side of the spectrum. 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

Notre Dame: A wake-up call for the Palace of Westminster?

images.001download.001News reports suggest that the long-delayed Restoration and Renewal of the Palace of Westminster will be accelerated in response to the devastating fire at Notre Dame. Alexandra Meakin and Alexandra Anderson discuss why progress has been slow and the need for action to address the fire risk in Parliament.

The devastation at Notre Dame in April 2019 is a stark reminder of the dangerously high fire risk facing the Palace of Westminster. The home of the UK Parliament has been very lucky to escape its own catastrophe, with ‘sixty-six incidents that had the potential to cause a serious fire’ since 2008. Wardens have been patrolling the Palace 24 hours a day in order to mitigate the major fire risks and to address the inadequate fire alarm systems. Part of the problem is due to the very structure of the building, as after the devastating fire which destroyed the old building in 1834, the rebuilt Palace included an extensive ventilation system that ‘unintentionally create[d] ideal conditions for fire and smoke to spread through the building’.

Speaking in the House of Commons on Thursday 25 April, the Labour MP Chris Bryant highlighted the Notre Dame fire in order to call attention to the urgent need for the Restoration and Renewal of the Palace of Westminster (R&R) to be carried forward as soon as possible. Bryant, a long-running campaigner for rebuilding the Palace of Westminster (and potential candidate for Speaker should a vacancy arise during the current parliament), noted that while the fire in Paris had caused unimaginable destruction, there had been no fatalities. It would, he warned, be very different if such a fire was to take hold in the Palace of Westminster, where 9,000 people work every day and one million people visit each year.

The fire risk in Westminster has been well-known for years. A 2012 report set out the need for the major refurbishment programme in order to address the fire and flooding risk caused by the buildings’ dilapidated infrastructure that is decades past its expected lifespan. Four years later, the Joint Committee on the Palace of Westminster emphasised the growing risk to the building, warning that:

‘there is a substantial and growing risk of either a single, catastrophic event, such as a major fire, or a succession of incremental failures in essential systems which would lead to Parliament no longer being able to occupy the Palace.’

The Committee called for action without further delay, to ‘restore and renew this historic building for the future, and to ensure that the Palace of Westminster is preserved for future generations’. Continue reading

How the new Sub-Committee on Disinformation can help strengthen democracy in the digital age

Michela.Palese (1)In April 2019 the Commons Digital, Culture, Media and Sport select committee established a sub-committee to continue its inquiry into disinformation and data privacy in the digital age. Michela Palese considers the motivations underlying the establishment of this sub-committee, its stated priorities, and how it can help confront the challenges and threats to our democratic processes arising from online campaigning.

Last month the Digital, Culture, Media and Sport (DCMS) select committee launched a new Sub-Committee on Disinformation. Its task is to become ‘Parliament’s institutional home’ for matters concerning disinformation and data privacy; a focal point that will bring together those seeking to scrutinise and examine threats to democracy.’

The new sub-committee promises to offer an ongoing channel through which to gather evidence on disinformation and online political campaigning, and to highlight the urgent need for government, parliament, tech companies and others to take action so as to protect the integrity of our political system from online threats.

Damian Collins, chair of the DCMS committee, explained that the sub-committee was created because of:

‘concerns about the spread of disinformation and the pivotal role that social media plays. Disinformation is a growing issue for democracy and society, and robust public policy responses are needed to tackle it at source, as well as through the channels through which it is shared. We need to look principally at the responsibilities of big technology companies to act more effectively against the dissemination of disinformation, to provide more tools for their users to help them identify untrustworthy sources of information, and to provide greater transparency about who is promoting that content.’

The sub-committee follows up on the significant work conducted as part of the DCMS committee’s long-running inquiry into Disinformation and ‘Fake News’, whose final report was published in February 2019.

This inquiry ran for 18 months, held 23 oral evidence sessions, and took evidence from 73 witnesses: its final report contained a series of important conclusions and recommendations.

Among these, the report called on the government to look at how UK law should define ‘digital campaigning’ and ‘online political advertising’, and to acknowledge the role and influence of unpaid campaigns and Facebook groups both outside and during regulated campaign periods. It also advocated the creation of a code of practice around the political use of personal data, which would offer transparency about how people’s data are being collected and used, and about what messages users are being targeted with and by whom. It would also mean that political parties would have to take greater responsibility with regards to the use of personal data for political purposes, and ensure compliance with data protection and user consent legislation. Continue reading

Reducing the size of the House of Lords: two steps forward, two steps back

downloadThere has for some time been an apparent consensus in parliament and government that the House of Lords has too many members, yet recent efforts to effect reform have made little progress. David Beamish explains how an apparent change of government position and the parliamentary tactics of a determined minority have slowed the pace of change.

There has long been concern, both within parliament and outside it, about the number of members of the House of Lords – currently over 780. The prospect of major reform seems remote. However, there have been two strands of activity to try to reduce the numbers: the proposals of the Lord Speaker’s committee on the size of the House (the Burns committee), and a private member’s bill to end by-elections to replace hereditary peers (the Grocott bill).

In November 2017 I wrote a blog post describing the publication of the report of the Burns committee as ‘a real opportunity for progress on reform’. In July 2018 I wrote another blog post on the continuing hereditary peer by-elections in the House, ending with the comment that, although other issues currently dominate the political and parliamentary agenda, ‘there may nevertheless be some prospect of real progress in relation to both the size of the House of Lords and the ending of the hereditary peer by-elections’. Subsequently there was heartening progress on both fronts, but last month saw two reverses. Continue reading

Article 50: two years on


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On 29 March, The UK in a Changing Europe published Article 50 two years on, summarising what has happened during the Article 50 process, where we are now, and what might happen in the future. Here, its director Anand Menon offers his own view of how Brexit has been handled since Article 50 was invoked by the government, and offers an insight into some of the topics contained in the report.

Two years on. So little progress made. As metaphors go, watching parliament hold a series of eight votes and fail to muster a majority on any of them was not too bad at all.

And yet, and yet. For all the outward signs of chaos emanating from Westminster, things are moving. It was never going to be easy for MPs to ‘take control’ of Brexit, if only because all they control even now is the parliamentary diary. Parliament isn’t set up to make it easy for MPs to both set their own agenda and make decisions.

Moreover, it strikes me as slightly misguided to criticise the House of Commons for failing to come to a clear decision on Brexit. For on this if on nothing else, our MPs represent us faithfully. Like the public at large, they are deeply divided on the question of leaving the European Union, and therefore – again like us – it is not clear which if any of the possible outcomes a majority of them might agree on. Continue reading