A collaboration of academics and parliamentary practitioners has resulted in a new book, the second edition of Exploring Parliament, which seeks to make what can sometimes seem like an arcane and impenetrable institution more comprehensible to students and the general public alike. In this post the book’s editors, Cristina Leston Bandeira, Alexandra Meakin and Louise Thompson, explain why the book is necessary, and what readers can expect from its second incarnation.
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Ending of the hybrid House of Commons breached fundamental democratic principles
Last week Leader of the House of Commons Jacob Rees-Mogg demanded the end of ‘hybrid’ arrangements allowing MPs to participate and vote remotely during the COVID-19 crisis. In this open letter, a group of senior democracy specialists point out this breached the fundamental democratic principle of equality in decision-making, because the MPs most benefiting from remote participation (e.g. due to ‘shielding’) were excluded from the vote. They urge the Leader of the House to reinstate procedures allowing all MPs to participate fully in all Commons business.
MPs queue to vote on Tuesday. Parliamentary copyright images are reproduced with the permission of parliament.
Dear Mr Rees-Mogg
We write to express our very grave concerns about the way in which the ‘hybrid’ House of Commons was suspended. As specialists in the principles and practice of democracy it is clear to us that these actions breached fundamental democratic principles.
The ‘hybrid’ arrangements, allowing for a mix of virtual and in-person participation in parliamentary proceedings were brought about by necessity, to enable the House of Commons to continue to fulfil its essential functions of scrutiny and representation during the coronavirus crisis. Parliamentary accountability is crucial at any time, but more crucial than ever when ministers have taken unprecedented emergency powers, and the broadest possible public consent for health measures, and restrictions on citizens’ usual freedoms, is needed.
At the initial stages of the crisis there were troubling suggestions that parliament might close down completely for up to five months (as reported in The Times on 5 March). Thankfully, attention soon moved on from this drastic (and fundamentally anti-democratic) suggestion, to exploring how parliament could keep working through the crisis.
Parliamentary staff have worked tirelessly to devise innovative technological solutions to allow MPs to contribute virtually, and online select committee meetings began during the Easter recess. The Speaker, and the House of Commons Commission, offered admirable leadership, with essential additional input from the Procedure Committee. At the early stages there was a clear commitment to working on a cross-party basis to ensure that the Commons could continue to function in a way which maintained essential representation and accountability, while protecting public health. The motions on 21 and 22 April to enable members to participate and vote remotely were warmly supported by opposition parties and unanimously agreed. This consultative, cross-party approach was exactly what was needed when bringing about such far-reaching changes to the functioning of our democratic process. It showed inclusivity and maximised the chances of maintaining public trust and support.
The attempt to dismantle the hybrid arrangements has, unfortunately, followed the reverse approach. Through a lack of consultation and cross-party decision-making it has sown unnecessary division. Furthermore, it has breached the fundamental democratic and parliamentary principle of equality in decision-making, excluding many MPs from the choice about how to run their own institution. It has done so to the detriment of some of those who are most vulnerable in this crisis. Continue reading
A case for publishing select committee legal advice
In May, we posted a blog entitled ‘The politics of publishing select committee advice’ in which the authors discussed the potential negative implications of making public the legal advice given to parliamentary committees. Here, Gabrielle Appleby argues that there are in fact benefits to publishing such advice, and that it could be advantageous to parliamentarians and the public if it was done as a matter of course.
The work that has been done by Ben Yong, Greg Davies and Cristina Leston-Bandeira, (as explained in their recent post, ‘The politics of publishing select committee advice,’ and in more detail in their publication in the Law and Society Journal), with their focus on parliamentarians, clerks and parliamentary lawyers, is an important contribution to understanding under-studied constitutional actors. Their work provides more than doctrinal examination or theoretical musing on the work of these actors. It is informed by a rich empirical insight into the phenomenon of the release by parliamentary select committees of in-house legal advice that might have been provided to them to inform their deliberations, which they say is increasing in a concerning manner.
I welcome their general conclusion, that there is a need for ‘written guidance in order to improve consistency’ around the publication of such advice. However, I write to proffer a version of that guidance that is not just more permissive of publication than that alluded to by the authors, but, indeed, actively encourages it.
How should parliamentary committees use legal advice?
As I have written with my colleague Anna Olijnyk, I support a framework in which parliamentary deliberations are informed by legal advice (including the deliberation of parliamentary committees) and that advice should be released as a matter of course.
To justify my position I must first explain my starting point. Like Yong, Davies and Leston-Bandeira, I hold concerns about the juridification of politics, and, more specifically, about the over-reliance on legal advice to inhibit the legitimate development of policies and laws. Responding to that concern in the context of constitutional limits (coming as we do in Australia from a tradition of a written constitution), Olijnyk and I have developed a normative framework for executive and legislative deliberation, which tries to balance the tug of the rule of law towards legally enforced rules and norms against the need for flexibility and innovation in political decision-making. We propose a framework in which the legal position must inform political decision-making, and in some cases will be determinative. But, in many cases of ambiguity and indeterminacy, it will inform without dictating the outcome. Continue reading
The politics of publishing select committee legal advice
Parliamentary 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
Do parliamentary e-petitions debates enhance public engagement?
Over 40,000 e-petitions have been submitted to parliament since the current system was introduced in 2015. Cristina Leston Bandeira and Viktoria Spaiser have conducted research into how the public views the consequent parliamentary discussion of issues raised in these petitions by analysing comments made by those watching the live parliamentary coverage. Their findings lead them to conclude that parliamentary debates should be adapted to be more inclusive of the original petitions’ aims.
Parliament introduced an e-petitions system in 2015 with the aim of enhancing its relationship with the public. The system has seen extraordinary levels of usage, with over 40,000 e-petitions submitted and plenty of other evidence of very considerable engagement from the public, such as petitions debates regularly being the most read debates on Hansard. The extraordinary usage is only one element of this new system, however. At the Centre for Democratic Engagement, we have been investigating it, focusing in particular on the more subtle expressions of engagement, beyond usage numbers. We have interviewed petitioners, developed participant observation, and analysed petitions data, parliamentary documentation and social media activity associated with e-petitions.
Some of this research has now started to come out, namely our latest article in Policy & Internet, where we use natural language processing, machine learning and social network analysis of Twitter data to explore what it shows about the extent of people’s engagement, the contents of Twitter e-petition conversations, who is taking part and how they interact. In this blog post we focus on how the public react to the format of the e-petitions parliamentary debates, through their comments on Twitter whilst they watch these debates. Our findings provide interesting insights into how people perceive the e-petition procedures in terms of fairness and responsiveness, suggesting that petition parliamentary debates could be more inclusive of the original petitions’ aims. Continue reading