The EU (Withdrawal) Bill raises questions about the role of smaller opposition parties in the legislative process

leston.bandeira.thompson.and.mace (1)The EU (Withdrawal) Bill’s return to the Commons saw SNP MPs protest about their voices having been excluded from the debate. Louise Thompson explains how parliamentary procedures can indeed restrict debate for smaller opposition parties, and considers whether something ought to be done about it.

Following the first session of the EU (Withdrawal) Bill’s return to the Commons, most newspaper headlines focused of the battle between Theresa May and the group of backbench Conservative rebels seeking concessions from the government about parliament’s ‘meaningful vote’ on the Brexit deal. The front page of The National instead highlighted the lack of debate on the devolution clauses within the bill, which was limited to just 15 minutes, as well as the fact that only one SNP MP was able to speak. Just a few hours later, every single SNP MP walked out of the Commons chamber during Prime Minister’s Questions (PMQs) in protest about this issue – and the Speaker’s refusal to allow a vote that the House sit in private to discuss it. It’s not unknown for the SNP to deploy tactics like this in the chamber and it raises interesting questions about the role of smaller opposition parties in the Commons.

The parliamentary position of small ‘o’ opposition parties

When it comes to opposition in the House of Commons, it’s easy to focus attention solely on the ‘Official’ Opposition. But there are four (or five, or six) other opposition parties, depending on where you position the DUP and Sinn Fein. Just as parliamentary architecture in the Commons privileges a two-party system (with the green benches facing each other in adversarial style, the despatch boxes for the use of the government and official opposition party only), parliamentary procedures also help to underpin a system which seems to prioritise the ‘Official Opposition’. Hence, the guarantee of questions at PMQs.

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What is the Salisbury convention, and have the Lords broken it over Brexit?

downloadThe European Union (Withdrawal) Bill returns to the Commons today for consideration of the numerous amendments made during its eventful passage though the Lords. Some commentators have accused the Lords of exceeding their constitutional authority, with the Salisbury convention being cited in defence of this position. David Beamish discusses how the convention operates and argues that the Lords have not breached it so far.

The European Union (Withdrawal) Bill has prompted much discussion of the role of the House of Lords in passing legislation, including references such as this to the Salisbury convention:

‘ …the Lords has effectively torn up the Salisbury convention: that manifesto promises by the governing party should not be blocked by an unrepresentative upper house’.

That passage, from an article in The Times by Matt Ridley, who sits in parliament as an elected hereditary peer, relates to the amendments made by the Lords to the Withdrawal Bill and in relation to the proposal for a ‘Leveson Two’ inquiry. A day later, Iain Martin wrote in The Times:

‘This week there was the worst illustration of the problem yet. The Commons thought that it had settled the question of press freedom, when it voted against moves to hold yet another inquiry into the press. But the Lords had another go on voting down the government, in breach of the convention that bills which enact manifesto commitments should be passed by the Lords.’

It is perhaps ironic that this ‘convention’ is now being cited in relation to the difficulties which the House is making for a Conservative government. It was originally introduced by a Conservative opposition which dominated the House of Lords following the election in 1945 of a Labour government with a large Commons majority but only a small representation in the Lords, which then consisted entirely of hereditary peers.  Continue reading

Devolution and the repatriation of competences: the House of Lords Constitution Committee reports on the EU Withdrawal Bill

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The Constitution Committee of the House of Lords today published its report on the European Union (Withdrawal) Bill, which is set to have its second reading in the upper house this week. In this post, Stephen Tierney discusses the report’s findings on the devolution issues raised by the Bill and examines the suggestions for solving some of the problems posed by the legislation as currently drafted.

The House of Lords Constitution Committee has today published a comprehensive and critical report on the European Union (Withdrawal) Bill (‘the Bill’). The Bill’s second reading will begin in the Lords this week, with the government committed to bringing forward amendments to the Bill’s provisions regarding the devolved territories (in particular, the controversial clause 11), but as yet these have not been tabled.

Largely because of the government’s undertakings to change the Bill, and the fact that it trusts proposed amendments will emerge from negotiations between the UK government and devolved administrations, the Committee refrains from making its own detailed recommendations in relation to clauses 10 and 11. The Committee’s overall position is that: ‘the devolution settlements must not be undermined. We welcome the discussions that are currently taking place between the UK government and the devolved administrations to seek consensus on the approach of the Bill to meeting the challenges posed by Brexit.’ Nonetheless, the Committee is also clear that clause 11 as it stands is problematic and that amendments to the provision are ‘imperative’.

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The Lords and the EU Withdrawal Bill: 10 predictions

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The European Union (Withdrawal) Bill has completed its bumpy passage through the Commons and now moves to the Lords, where the government falls well short of a majority. In this post Meg Russell explores what the Lords is likely to do with the bill, making 10 predictions and, in doing so, busting some common myths. She concludes that the bill will be heavily amended, but any suggestion that the Lords will ‘block Brexit’ is misconceived. 

The European Union (Withdrawal) Bill completed its passage through the House of Commons last week. During its two-day second reading, eight days in committee on the floor of the House and two-day report stage, it got a pretty bumpy ride. In a fascinating test for a minority Conservative government, amendments were fended off on a range of issues, but various concessions were also given, and the government suffered one defeat. Now the bill passes to the House of Lords, where the numbers are far more stacked against the government. As of today, the Conservatives held just 248 out of a total 794 Lords seats, with Labour on 197, the Liberal Democrats 100 and independent Crossbenchers 183. In recent years this kind of party constellation has meant that even governments with comfortable Commons majorities have been frequently defeated in the Lords. So what can we expect from the second chamber on this highly sensitive bill? Here are 10 broad predictions:

Amendments are likely, right from the outset

1. There is little doubt that the bill will be significantly amended in the Lords. Even on relatively uncontroversial bills, scrutiny by peers frequently results in changes. But this is precisely the kind of bill that peers get most exercised about. The legal arrangements that it seeks to put in place for Brexit are highly technical and complex. The bill’s central purpose is to repeal the European Communities Act 1972, but at the same time to maintain legal continuity by creating a new body of ‘retained EU law’. This process in itself raises many difficult constitutional points (as indicated further below). In addition, the bill includes extensive ‘delegated powers’, allowing ministers to amend retained EU law with limited parliamentary oversight. This combination of a constitutional focus plus sweeping delegated powers, even leaving aside the disputed context of Brexit, guarantees that Lords scrutiny will be intense. It will almost certainly result in changes.  Continue reading

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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A Code of Constitutional Standards

The Constitution Unit of University College London is today publishing a report which sets out a code of constitutional standards based on the reports of the House of Lords Select Committee on the Constitution. Since 2001 the Committee has made many recommendations in its reports, and the goal of this report was to codify these recommendations in order to make the Committee’s analysis of the constitution more accessible. The report, by Robert Hazell, Dawn Oliver and myself, contains a code of 126 constitutional standards, each of which is relevant to the legislative process, and each of which has been extracted from the 149 reports of the Constitution Committee that were reviewed. The standards are organised into five sections: the rule of law; delegated powers, delegated legislation and Henry VIII clauses; the separation of powers; individual rights; and parliamentary procedure.

The Constitution Committee’s formal terms of reference were set by the House of Lords Liaison Committee when it was established in 2001 and have not changed since then: ‘to examine the constitutional implications of all public Bills coming before the House; and to keep under review the operation of the constitution’. The Constitution Committee decided against drawing up a formalised code of constitutional norms in their first report to inform their bill scrutiny, instead the Committee adopted a pragmatic approach. The Committee identifies the norms that are relevant to each particular bill or inquiry in question. This flexible approach has a number of advantages, but one disadvantage is that the Committee’s conception of the normative foundations of the constitution is not easily accessible.

The first aim of the code in this report is to make the normative foundations of the Committee’s work more accessible. As part of their work, the Committee has made choices about what the constitution means in the context of the legislative process. It is these choices that the code seeks to highlight. It is important to note that the Committee advanced many of the cited standards in relation to particular bills, and did not put them forward as generalised standards. There is little doubt that if the Committee were to advance its own code of constitutional standards, it would look different to the code within this report. Nevertheless, the code does represent an accurate summary of the constitutional norms that the Committee has sought to uphold in its work since it was established in 2001.

In terms of the content of the code, it is noteworthy that many of the standards appear to be derived from the principles that underpin the parliamentary process. For example, standards that seek to regulate the use of fast-track legislation are not just general principles of good governance, nor are they are based on a particular constitutional principle, but rather they are derived from the normative foundations of the parliamentary process itself. Such standards serve to protect the integrity of the parliamentary process. This focus on parliamentary norms demonstrates the value of giving a parliamentary committee the task of assessing the constitutional implications of government bills. It has enabled the Committee to articulate the normative implications of the principles that form the foundations of the parliamentary process.

The second aim of the code is to provide a resource for those involved in the legislative process. It is widely recognised that one of the disadvantages of the United Kingdom’s uncodified constitution is that it is not easily accessible, and within Parliament the task of pointing out the constitutional implications of bills often falls to constitutional experts, particularly in the Lords, and the relevant committees. If the norms of the constitution were more readily accessible, it would be reasonable to expect more parliamentarians to engage with them during the legislative process. By publishing this code, it is hoped that parliamentarians, and others involved in the law-making process will make use of the standards within it during their scrutiny. The code might also be used by the Constitution Committee to develop its own code of legislative or constitutional standards.

The third aim is to contribute to the debate on the value of legislative standards within the legislative process in Westminster. In an earlier blog post, I put forward a critique of the code of legislative standards developed by the House of Commons Select Committee on Political and Constitutional Reform in their report titled ‘Ensuring standards in the quality of legislation’. In that post, I argued that although their code would represent a significant step forward, I thought it did not go far enough. Since that post, the Government has issued its response to the PCRC’s report. The Government could not be clearer – it does not think that a code of legislative standards is a good idea (paras 12-15). It suggests that the Cabinet Guide to Making Legislation is all that is needed for parliamentarians to judge the standard of the Government’s approach. Further, the Government argued that the PCRC’s code would risk encouraging a ‘box-ticking mentality’, and they point out that the code does not provide the ‘degree of objectivity it envisages.’ The latter point is surprising because the PCRC’s code makes every effort to be as ‘neutral’ as possible.

The Government appears to have misinterpreted the rationale for a code of soft law standards. The idea is to stimulate parliamentary debate on aspects of bills to which the standards relate, rather than to introduce an objective box-ticking exercise. The presence of parliamentary sovereignty and the absence of a codified constitution are sometimes taken to mean that Government and Parliament legislate into a normative vacuum. That somehow parliamentary sovereignty means that the government does not have to justify why a bill seeks to depart from the existing norms of the constitution. That idea, as Murray Hunt has recently argued in Parliament and the Law, is antithetical to any meaningful idea of constitutionalism. A code of constitutional standards is designed to challenge the myth of the normative vacuum and to raise the standard of justification within the legislative process, but without legally limiting Parliament’s legislative capacity. In this sense a code of soft law standards does not represent a threat to the political nature of the legislative process, as the code would always the subject of debate, and could be changed by purely political means. Soft law constitutional standards developed within Parliament might even find support from political constitutionalists, because they serve to enhance the quality of parliamentary debate by focusing the minds of parliamentarians on the value of the political process and the norms that form its basic architecture. Even if the standards are prescriptive, this does not mean that they cannot be departed from. The value of a code of soft law standards does not depend on them being complied with all of the time, instead it depends on then being used as the basis for debate and justification within the legislative process.

There seems to be little to lose and everything to gain from making more use of soft law codes of standards in Westminster. As this code demonstrates, committees within Parliament are already articulating the normative standards that are vital to the integrity of the parliamentary process. The challenge is to maximise the benefits of this work by making those standards as accessible and as influential as possible. It is hoped that this code makes a small contribution to this aim.