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

Parliament, spin and the accurate reporting of Brexit

lisa.james.resized.staff.webpage.jpg (1).pngmeg_russell_2000x2500.jpgParliament has been the site of many of the key Brexit battles, and political journalists play a vital role in reporting such developments and holding politicians to account. But unfamiliarity with the workings of parliament can leave them vulnerable to spin. Lisa James and Meg Russell argue that when it comes to key aspects of parliamentary procedure, the present climate of anonymous briefings and counter-briefings may make reporters’ traditional sources less trustworthy than usual. But there are other sources to which they can, and should, be turning.

Parliamentary reporting has rarely been more exciting or important. From the ‘meaningful votes’ on Theresa May’s Brexit deal to the first Saturday sitting since 1982, parliament has been the site of ever-more suspenseful Brexit episodes. These have been narrated and analysed by reporters in real time – and followed by record audiences.

Recent weeks have seen a growing chorus of concern about the relationship between the Johnson government and the media, with the perceived misuse of anonymous briefing and spin coming under pointed criticism from senior journalists and former Conservative MPs. In this environment, parliamentary battles and controversies pose particular challenges for journalists. The more politics is played out in parliament, rather than around the cabinet table or in TV studios, the more important an understanding of parliamentary procedure becomes.

Raw politics of course is important in driving parliamentary outcomes. But parliamentary procedure sets the framework within which political questions are negotiated and resolved. It can determine which actors will have most influence and when. Hence if journalists misunderstand procedure, or are deliberately misled, they risk misrepresenting which political outcomes are likely to happen, and indeed which are even possible. 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

How to make the select committee system more effective and influential

220px.Official_portrait_of_Dr_Sarah_Wollaston_crop_2Dr Sarah Wollaston, Chair of the Liaison Committee, discusses its new report into how the system of select committees can operate more effectively, both in terms of their place within the House of Commons and their external impact. New ways of working and more powers are suggested, such as taking a ‘digital first’ approach to reports and formalising formalising further the arrangements for the Prime Minister to appear before the Liaison Committee.

Even at times of deep political division, select committees often show parliament at its best. MPs work together across party lines to reach consensus and to hold the government of the day to account. This June marked the fortieth birthday of the departmental select committee system. The Liaison Committee, which is made up of the chairs of all select committees, took the opportunity to review what select committees do and how they do it, publishing our recommendations on 9 September, in a report entitled The effectiveness and influence of the committee system.

Our report introduces a new set of aims and objectives that better reflect the work of modern select committees. From climate change to social care, the impact of Brexit to fake news, select committees have become a driving force for investigation into emerging issues of the day. They have always been a place where the administration, policies and spending of government has been scrutinised. Since the banking crisis of 2008, they have increasingly become a place where those outside government who hold significant public roles or power over people’s lives can be held publicly to account. We recognise this role in investigating areas of public concern in our new aims and objectives and call for it to be reflected in our formal remits.

The new objectives talk about what we do; they also talk about how we do it. We have made progress in hearing from more diverse groups of people and engaging directly with the public in new and more inclusive ways. The Health and Social Care and Housing, Communities and Local Government Committees, which worked alongside a Citizens’ Assembly on Social Care, and the Petitions Committee’s inquiry into the online abuse of disabled people, are exemplars of how committees are increasingly engaging with people outside the usual groups who contribute and including those who have lived experience. Continue reading

Miller 2/Cherry and the media – finding a consensus? 

thumbnail_20190802_092917.jpgprofessor_hazell_2000x2500_1.jpg Despite the UK Supreme Court managing to find unanimity regarding the legality of the attempted prorogation of parliament in  September, the rest of the country, including its national newspapers, appeared to divide along Leave/Remain lines regarding the correctness of the judgment. Sam Anderson and Robert Hazell analyse how the national press discussed the political and constitutional questions raised by the judgment.

The government’s resounding defeat in the Supreme Court is one example of the rolling constitutional drama that breaks in the news almost daily. However, when it comes to media coverage of these stories, the key consideration is almost always ‘What impact will this have on Brexit?’ Issues are reported through the Leave/Remain divide, with popular news outlets framing events for their audiences. This post seeks first to examine the extent to which this has occurred with the prorogation case by looking at eight national newspaper editorials, and the way they have framed the political implications of the judgment. Then, using the same editorials, we will examine whether there is consensus around important constitutional issues that have arisen in this case, such as the proper role of the Court and the importance of the independence of the judiciary. We coded the editorials on both these questions, and found that the case was framed by almost all the papers to some degree through a Brexit lens, and that there is a lack of consensus on the constitutional issues.  

The political questions

The first issue was coded on a scale of -5 to five. Zero reflects the position of the Court: that the judgment concerned the specific prorogation issue, but was neutral with regards to the political implications of the decision. Editorials which argued the judgment would have negative political implications for the government and the Brexit process were assigned a negative number up to -5, depending on the extent they engaged in direct criticism of the judgment, and promoted the government’s policy of getting Brexit done. Editorials that argued that the judgment would have positive political implications for the government and Brexit process were assigned a positive number up to five, depending on the extent to which they were directly critical of the government and its Brexit policies. All eight articles were independently coded by two researchers. Where discrepancies occurred, a mid-point was taken. 

Paper Implications for Brexit 
Sun -5
Mail -4
Express -2
Telegraph  -1.5
Times  0.5
FT  2
Independent 3
Guardian  4.5

 

Looking qualitatively, there were three overarching positions taken. Of the eight publications, four were critical of the judgment and its  potential political implications. The Sun described the Prime Minister as the victim of a ‘staggering legal coup and accused the Court of having done the bidding of Remainers. The Daily Mail was less virulent, but still argued the case was a victory for Remainers, and emphasised how the judgment allowed MPs (including ‘masochistically intransigent Eurosceptic zealots) to continue to try and block the will of the electorate. The Daily Express was less direct but warned politicians that the case should not be used as a way to try to avoid Brexit. The Daily Telegraph made the only substantive comments on the case, noting pointedly that the Supreme Court overruled the High Court’s finding of non-justiciability, and gave some explanation for the prorogation: the government had only been ‘trying to carry out the democratic will’ of the people as expressed in the referendum.  Continue reading

Female leaders can amplify the voices of other women in politics

avatar.jpgIt has long been said that women in politics act as role models and influencers for the women that come after them. But what is less clear is whether or not there is a causal effect on the impact of female MPs as a result of having female ministers in charge of government departments. Jack Blumenau has analysed two decades of parliamentary data and argues that women don’t just inspire other women, they amplify their voices and increase their impact on parliamentary debates and outcomes.

In an interview in 2013, Betty Boothroyd – the first female Speaker of the House of Commons – paid tribute to her political mentor, Barbara Castle. Castle holds an important position in the history of British political feminism not only because of her promotion of seminal legislation such as the Sex Discrimination and Equal Pay Acts, but also because she was the first woman to lead a series of important government departments, including Overseas Aid, Transport, and Employment. In her interview, Boothroyd pointed to the important effect that Castle’s leadership had on her own career: ‘She was my role model because I felt, well, if Barbara can do it then I can do it.’

As key figures in the legislative process, female cabinet ministers seem natural candidates to be “role models” to other women in UK politics. Historically, women have been under-represented in cabinet positions and so the appointment of a female cabinet minister might help to break down gendered sterotypes about the policy areas to which women are entitled to contribute. Similarly, there is also evidence from previous research that female politicians employ a distinct political style which is more cooperative and encouraging than that of their male colleagues. If these behavioural differences persist amongst leadership figures, the appointment of a female cabinet minister may promote a culture that is more conducive to, and encouraging of, the participation and influence of other female MPs.

In a recently published article, I investigate whether there is systematic evidence for the type of female leadership effects described by Boothroyd. In particular, I focus on the relationship between female cabinet ministers and other female MPs in UK politics, and look for evidence of these effects by examining parterns of participation in nearly 15,000 parliamentary debates between 1997 and 2017.

Parliamentary debates matter because they represent the main opportunity for MPs to express their positions on different policy options. If some types of MP routinely speak at greater length than others in debate, or are systematically more influential in their spoken contributions, then this could have important consequences for the representational function of our parliamentary system. Continue reading

Holding a Queen’s Speech in October risks heaping more embarrassment on the Queen

professor_hazell_2000x2500_1.jpgAfter its first attempt at proroguing parliament was found to be unlawful by a unanimous Supreme Court, the government now seems set on a shorter prorogation, to be followed by a Queen’s Speech. Robert Hazell argues that a Queen’s Speech is not just unnecessary, it is also undesirable if the government wants an early election.

In the past couple of weeks the Queen has been wrong-footed by two of her Prime Ministers. On 19 September there was the disclosure by David Cameron in his memoirs that he had sought the Queen’s help when he feared the Scottish independence referendum might be lost. And on 24 September the Supreme Court delivered its judgment declaring that Boris Johnson’s advice to the Queen to prorogue parliament for five weeks had been unlawful. It followed that the Order made by the Queen in Council to prorogue parliament was itself unlawful, null and void. 

Buckingham Palace indicated its ‘displeasure’ at the first episode. On the second, the Palace has maintained a dignified silence; but it is said that when Boris Johnson phoned the Queen upon his early return from New York, he apologised for giving her unlawful advice. Although that in itself provoked a constitutional thunderclap, there may be even bigger thunder clouds to come if Johnson persists with his plans for a Queen’s Speech in mid-October, while also calling for early elections.

Few commentators have remarked on this, but there is an inherent contradiction between these two objectives. A Queen’s Speech usually follows an election, rather than preceding one. If it is delivered in mid-October, and is swiftly followed by an election in November, then the Queen’s Speech will be not so much the government announcing the legislative programme for the next session, but more of an election manifesto. The Queen will have been used to make a Conservative party political broadcast.  Continue reading