What might parliament do with the Article 50 bill?

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On 24 January the Supreme Court ruled that the government requires parliament’s consent to trigger Article 50 of the EU Treaty and hence begin formally negotiating Brexit. This requires a bill, and the government responded with the European Union (Notification of Withdrawal) Bill – on which debates in the Commons begin today. Meg Russell asks how parliament could respond to the bill – both procedurally, and in terms of the political dilemmas facing members.

In the form it was introduced, the European Union (Notification of Withdrawal) Bill is a very short and simple measure. With just two clauses, it authorises the government to ‘notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU’, stating that this is notwithstanding the 1972 European Communities Act or any other existing statute. Yet its simplicity clearly belies its importance; the decision to trigger Article 50, following the Leave vote in last June’s referendum, has potentially huge ramifications for both the UK’s politics and its economic future. It is well-known that a majority of MPs, and probably an even higher proportion of peers, supported Remain in the referendum. The government’s original starting point was that parliamentary approval of this kind was neither desirable nor necessary. Now that the bill has been published, its passage could present significant political challenges, for government and parliamentarians alike.

This post focuses primarily on the procedural aspects. What are the stages through which the bill will have to pass, and where do the potential obstacles lie? The post focuses in particular on the immediate Commons stages. Having indicated the key steps, it moves on to discuss MPs’ representational dilemmas, and how these could play out. Finally, it provides some brief reflections on the bill’s likely reception in the Lords.

The timetable for the bill in the Commons was set out by David Lidington, Leader of the House of Commons, on Thursday 26 January. Its second reading stage is due to take place on Tuesday and Wednesday this week, with debate today able to last up to midnight. It is then proposed to spend three days in committee, on the floor of the House of Commons, next week, after which it will quickly receive a third reading and (if approved) pass to the House of Lords.

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The results of the Electoral Commission’s latest survey are in – here’s what the public thinks about voting

thumbnail_phil-thompson-4The results of the Electoral Commission’s latest public opinion survey on the experience of participation in elections have been published today. Phil Thompson, the Commission’s Head of Research, outlines the results. Overall the findings are positive, with confidence that elections are well run increasing by from 66 per cent to 76 per cent in the last year. Satisfaction with the voter registration system has also increased, from 75 per cent to 80 per cent. However, satisfaction continues to be lowest among younger age groups which are the least likely to be registered to vote.

The Electoral Commission aims to put voters’ interests at the centre of everything we do. To achieve this, it’s essential to find out how people think and feel about the electoral process. Like many organisations, we use public opinion research to help us do this.

We conduct a public opinion survey after every poll held in order to monitor the experience of participating in specific elections. In addition, we conduct the ‘Winter Tracker’, an annual UK-wide survey, every December. This covers a range of electoral issues and is designed to provide an overview of public sentiment towards the process of voting and democracy in the UK more broadly.

After the significant polls of 2016, the results this year show that confidence in and satisfaction with the system overall have improved. Three quarters (76 per cent) are confident that elections are well run in Great Britain and Northern Ireland, compared to 66 per cent in 2015. In line with this, 77 per cent said that they are satisfied with the process of voting at elections, up from 68 per cent in 2015.

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As might be expected, those that participate in the electoral process tend to have a more positive view of it than those that do not. Those that say they ‘always vote’ are significantly more likely to say that they are confident that elections are well run (82 per cent) than those that say they ‘sometimes vote’ (62 per cent) and never vote (48 per cent).

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Northern Ireland after the election

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The Northern Ireland Assembly election on 2 March is likely to be followed by a difficult political negotiation. Alan Whysall argues that it must not be mere political sticking plaster. There is no real alternative to the basic architecture of the institutions, but there are fundamental issues to be dealt with about the way they operate. And that is too important to be left to politicians alone: people in Northern Ireland outside politics need to get involved in setting the agenda.

As my previous blog post, published last week, outlined, we are likely to be in a profoundly difficult position after the election on 2 March, whatever the result. The recent departure from the Assembly through ill-health of Martin McGuinness, a figure of stature and experience, will make things no easier. There will be at most three weeks to find a basis for the restoration of devolved government – failing which fresh elections would by law be called. More likely, Westminster would conclude that it had to reimpose direct rule: but that would make reaching a settlement much more difficult and protracted. It is probably the last thing that any of the main parties want, but we may be back to games of chicken; and there is a risk of politics running out of control.

There is likely to be an intensive political negotiation whatever happens. Preferably, it would if necessary take place in parallel with a resumed devolved government, with the parties agreeing to stay until perhaps September – however imperfect from the good government point of view. Here are some thoughts about how it should be approached.

First, flawed though its operation has been, the present set of institutions is the best we can hope for in current circumstances – subject to some adjustments to the way it functions.  So long as the electorate continue to vote largely for parties representing one part of the Northern Ireland community or other, if there is not a form of government that engages the energies of both then constructive politics will be impossible. Nationalists are likely to see attempts to replace mandatory coalition with something else, whatever the safeguards offered, as an unacceptable attempt to undermine their influence.

But the system needs to operate in a new political climate if it is to function stably and effectively: for that it needs new attitudes, new ideas, new people. This is not to dismiss the Northern Ireland political class wholesale: they operate in the environment they are given.

But the present politics yield no vision, hence inspire no-one. Politics in Northern Ireland is probably even more of a bubble activity than elsewhere in the western world. In particular it turns young people off. It discourages reflection about the most important long term problems, fixating on the traditional issues. There is an obsession with scandal, because the system is widely seen as corrupt – probably much more than it in fact is. And people deplore the lack of respect among politicians – witness the widespread welcome when Ian Paisley Jr, unlike others in his party, spoke warmly and decently of the ailing Martin McGuinness.

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Why parliament needs a ‘good Brexit’

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There are two scenarios for the way in which parliament’s handling of Brexit affects its position in the UK’s democratic system – one in which Brexit strengthens the executive, and one in which parliament emerges enhanced. Which of these prevails could have an effect long after the UK leaves the EU, writes the Hansard Society’s Brigid Fowler. If parliament has a ‘good Brexit’, it could strengthen its standing in relation to both the executive and the public.

The UK’s vote to leave the EU was ‘a vote to restore … our parliamentary democracy’, the Prime Minister declared in her January 17 Brexit speech. Theresa May suggested that the UK’s possession of ‘the principle of parliamentary sovereignty [as] the basis of our unwritten constitutional settlement’ was among the reasons the country decided it cannot continue to operate inside a supranational framework. And yet this reaffirmation of the traditional role of the UK parliament, delivered as part of one of the most important prime ministerial policy announcements in a generation, was delivered in a building managed by the Foreign Office, not at Westminster.

The irony has not been lost on many politicians and commentators reacting to Mrs May’s speech, including the Leader of the Opposition. The disjunction seemed to encapsulate one of the central tensions in the Brexit process, namely its potential to either expand or undermine the role of parliament in the UK’s democratic system. Especially now that the arguments about process that surrounded the Prime Minister’s speech have been followed by the Supreme Court’s ruling on the scope of the government’s prerogative powers, they have refocused attention on the implications of Brexit for the legislature.

Regardless of positions on Brexit, and the type of Brexit the Prime Minister has now said she will pursue, the EU referendum and withdrawal process represents a significant challenge to the UK’s traditional system of representative democracy. The UK is now embarked on one of the most consequential policies of its post-1945 history without this ever having been the policy of a government formed as a result of a general election. Before the referendum, EU withdrawal was the official policy of only two of the ten parties represented in the House of Commons (not counting Sinn Féin), mustering nine MPs between them (eight DUP and one UKIP). Taking Conservative, Labour and UUP splits into account, only 158 of 650 MPs – 24% – are reckoned to have backed ‘Leave’. The proportion of peers backing Brexit was probably even lower.

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Following the Supreme Court ruling, what happens next?

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Following today’s Supreme Court judgement, the focus of attention shifts back to parliament.  How long will it take for parliament to pass the necessary legislation? How likely is it that the legislation will be amended? Robert Hazell and Alan Renwick assess the implications for the Brexit timetable, and the government’s negotiating strategy.

What will happen to the government’s timetable?

The government have confirmed that they will introduce a short bill, probably just one or two clauses, which it will seek to pass as a matter of urgency. Bills have occasionally been passed through parliament in a few days, or even a few hours. But that can only happen if both chambers recognise the urgency, and support the bill. Crucially, the government would need to get majority support for a timetabling motion in the House of Commons to expedite the process. That might not be forthcoming in a House where three quarters of MPs voted for Remain. (In 2012 Nick Clegg had to abandon his Lords Reform bill after the government lost the timetabling motion following a big Conservative rebellion).

In the House of Lords, the government has no majority, and no control over time. The Lords Constitution Committee and the Lords EU Committee will both want to scrutinise the bill and its implications. The Lords will not block or wreck the bill, but they will want to give it proper scrutiny; especially if they think the scrutiny in the Commons has been inadequate.

Can the bill be amended?

In November government sources suggested the bill would be ‘bombproof’. Parliamentary officials say that is a fantasy. All sorts of ingenious amendments can be tabled, on process as well as substance: requiring a white paper to be published setting out the government’s negotiating position; seeking a second referendum on the negotiated terms; requiring the government to acknowledge that Article 50 notification is revocable, etc. Debate risks exposing continuing splits within both the Conservative and the Labour parties. Because the referendum specified nothing about what Brexit means, the battle continues between Brexiteers, who mostly support a hard Brexit, and Remainers hoping for a soft Brexit. Meanwhile Labour remains split on how to respond to the referendum outcome – to respect the will of the 52 per cent (who make up a majority in constituencies such as Stoke-on-Trent Central, where the forthcoming by-election will be hard fought), or speak up for the majority of Labour voters, who backed Remain. Speaking in parliament after the judgement, Labour’s Shadow Brexit Secretary, Keir Starmer, indicated that Labour would seek to amend the Article 50 legislation to require a white paper on the government’s plans, stipulate mechanisms for parliamentary scrutiny of the negotiations, and hold a ‘meaningful’ vote on the final deal. Legislation gives all groups in parliament multiple opportunities to table amendments or extract promises or impose conditions on the government during its passage.

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Is Poland’s constitutional tribunal crisis over?

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With one of the judges elected by the current parliament taking over as its new president, and the opposition losing interest in the issue, the political conflict surrounding Poland’s constitutional tribunal is moving into a new phase, writes Aleks Szczerbiak. Although the European Commission is very unlikely to secure support for EU sanctions against Poland, some tribunal members appointed by previous parliaments could boycott cases involving contested judges elected by the new one.

The bitter conflict over the membership and functioning of the constitutional tribunal, a powerful body that rules on the constitutionality of Polish laws, has dominated the political scene since the right-wing Law and Justice (PiS) party came to office following its victory in the October 2015 parliamentary election. The most serious constitutional crisis to affect the country since the collapse of communism in 1989 began almost immediately after Law and Justice took office in November. The new government decided to annul the appointment of five judges to the 15-member body by the previous parliament – dominated by the centrist Civic Platform (PO), the former ruling party – who were to replace those whose terms of office expired that month and in December. Earlier these judges were unable to assume their posts because Law and Justice-backed President Andrzej Duda, who questioned the legality of their appointment, did not accept their oaths of office.

However, the tribunal itself ruled that while the appointment of the two judges replacing those whose terms expired in December was unconstitutional the other three were nominated legally. The government, in turn, argued that the tribunal did not have the right to make judgments about the constitutionality of parliamentary appointments, and Mr Duda swore in five judges elected by the new parliament instead. Tribunal president Andrzej Rzepliński responded by only allowing those two filling the December vacancies to assume their duties.

Law and Justice tried to break this impasse by amending the constitutional tribunal law to increase the number of judges required to make rulings in the most important cases from nine to thirteen; thereby hoping to oblige Mr Rzepliński to recognise all of those appointed by the new parliament. The so-called ‘repair law’ also increased the threshold for tribunal rulings to a two-thirds majority, making the votes of these new appointees more significant. However, in March 2016 the tribunal decided that it was empowered by the Constitution to ignore these amendments and declared the ‘repair law’ unconstitutional. The government, in turn, said that the tribunal had no power to review the law (as the Constitution stipulates its rules are regulated by parliamentary statute), which had come into effect as soon as it was passed, and refused to publish the judgement in the official journal, a necessary step for tribunal rulings to become legally binding.

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Updates from Canada: don’t call it constitutional reform

andrew-cookIn October 2015 a Liberal government took office in Canada with commitments to both electoral and second chamber reform. In this post Andrew Cook provides an update. He reports that so far Senate reform has made the greater progress: following the introduction of a new appointments process, a plurality of Senators are now independents. Although a special parliamentary committee has considered options for electoral reform it remains unclear whether the government will be able to make good on its pledge that future federal elections will be conducted under a system other than first-past-the-post.

The government of Justin Trudeau came to power in October 2015 with a wide-ranging platform that included several propositions touching on the operations of the Canadian constitution. As was outlined on this blog at the time, the proposals range from introducing a dedicated Prime Minister’s Question Period in parliament, to reforms of the electoral process that would increase the autonomy of the Chief Electoral Officer and create an independent commission to organise leaders’ debates during election campaigns. The two most significant, and politically challenging, reforms proposed by the Liberal government were a focus of its agenda in 2016. Both electoral reform and reform of Canada’s second chamber, the Senate, have advanced since October 2015 but in different ways. It is worth reviewing the current state of reform in light of the recent developments on both these files.

Senate reform

Reform of Canada’s appointed Senate has long been discussed, and re-emerged as a key issue in the last federal election as a result of a Senate expenses scandal that eventually led to the resignation of then Prime Minister Stephen Harper’s chief of staff.

Harper’s own relatively modest proposals for reform were previously deemed fundamental to the country’s constitutional framework, and therefore requiring substantial provincial consent, so he abandoned them and simply stopped appointing Senators.

The recent return to constitutional debate, which dominated almost two decades of Canadian political life, has not brought with it a renewed interest in reforming the written constitution. Justin Trudeau has repeatedly stated that he does not want to re-open the constitution, which he rightly fears ‘would require protracted constitutional discussions with the provinces.’ Hence rather than considering large-scale Senate reform, such as introduction of elections, Trudeau has created an Independent Advisory Board on Senate Appointments – an attempt to move towards a non-partisan and merit based appointment process. The board selects five candidates for each Senate vacancy, with the Prime Minister making the final decision on who is appointed.

Because there were so many vacancies left by Harper (22 out of the total 105 Senate seats), new appointments by Trudeau resulted in a plurality of Senators being independents by November 2016. They will work together on matters of Senate rules and logistics but will otherwise vote independently. This new reality will have major impacts on both the operation, and role, of the Senate.

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