Moving Westminster into a multi-parliament world: the Commons takes a fresh look at devolution

Posted on October 8, 2020 by The Constitution Unit

The UK’s devolved institutions in Northern Ireland, Scotland and Wales celebrated their twenty-first anniversary this year. Their powers have changed several times since their creation, but much of this has occurred in an ad hoc way, without deep consideration at UK level of the overall devolution framework. Paul Evans explains how a new Procedure Committee inquiry into how the House of Commons should adapt to the ‘territorial constitution’ presents an opportunity to give some key devolution issues the attention they deserve.

Devolution in the UK turned 21 this year, and watching it grow has been a fascinating study in making up the constitution as you go along. The Scotland Act 2016 and the Wales Act 2017 (each of them the third major reworkings of the statutory basis of devolution in those nations in less than 20 years) declared the devolved legislatures there, along with their governments, to be a permanent part of the UK’s constitutional arrangements, which could be abolished only with the consent of the people in a referendum.

In both those nations 16- and 17-year olds have been newly enfranchised and will participate in the elections of their parliaments next year. The Northern Ireland Assembly restarted (once more) in January after a three-year absence, and in May the Welsh Assembly renamed itself the Welsh Parliament (or Senedd Cymru if you prefer to use the UK’s – so far – only other official language).

All in all, the journey towards a pragmatic form of de facto federalism in the UK has been a remarkably peaceful and generally good-natured velvet revolution. So perhaps it’s not so surprising that the House of Commons Procedure Committee has not felt the need to have a major review of the implications of devolution for the workings of the Commons since 1999.

Watching its progeny develop their own values and make their own decisions has, nonetheless, been a challenging learning experience for Westminster. The assertions of devolution’s permanency and its implication of equality of esteem between the four legislatures of the UK has often appeared more rhetorical than real. Whitehall seems never to have fully come to terms with the loss of centralised control which devolution necessarily entails. But, collectively, the elected members of the four legislatures have done little better in opening up and sustaining channels of communication – though some good work has been done at the margins.

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The Constitution Unit turns 25!

Posted on June 15, 2020 by The Constitution Unit

This year, 2020, marks a full 25 years since the foundation of the Constitution Unit. It has been a hugely eventful period, both in terms of real-world constitutional change and controversies, and in terms of the Unit’s own work. To mark our silver anniversary, we are celebrating some of the key ways in which the Unit has contributed to public debates, and helped to inform policy change, over this period. What better way to celebrate 25 years than with 25 of our most notable achievements?

Note that this post reproduces the text from a new page on our website celebrating our 25 years. That contains a full set of 25 images, so some readers may prefer to access the website version.

1. Hitting the ground running

Robert Hazell founded the Constitution Unit in 1995, with funding from six charitable trusts, to help with detailed planning for big constitutional reforms following a possible change of government. The initial research team included Graham Leicester (from the Foreign Office), Nicole Smith (Home Office) and Katy Donnelly. The Unit published seven book-length reports the following year: the first on how to prepare and deliver a big constitutional reform programme, and others on devolution to Scotland, Wales and the English regions, reform of the House of Lords, human rights legislation, and the conduct of referendums (the latter recommending the establishment of an Electoral Commission). From 1997, the new Labour government began to implement its constitutional reform programme, which often reflected Unit recommendations. Responding to the intense reform activity in government, the Unit published 17 further reports in 1998 and 20 more in 1999.

2. Monitor goes to print

In September 1997 the Unit published the first issue of Monitor, its regular bulletin of constitutional news. Monitor continues today to provide an essential digest of political and constitutional changes three times a year, valued by over 4800 subscribers – if you are not among them, you can sign up here.

3. Reform of the House of Lords

From its earliest years, the Unit has fed in regularly to debates about reform of the House of Lords. It published ten briefings for the Royal Commission on the Reform of the House of Lords in 1999, several of them authored by the Unit’s future Director Meg Russell and drawing on analysis of overseas experience. In 2000, she published the book Reforming the House of Lords: Lessons from Overseas. This body of comparative research has influenced debates on second chamber reform in various other countries as well as the UK – including Canada, Italy and Japan. Meanwhile Meg’s 2013 book The Contemporary House of Lords is today’s definitive work on the chamber, underpinned by research funded by the ESRC.

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Brexit and parliament: an end of term report

Posted on August 6, 2019 by The Constitution Unit

On 22 July, the Unit, in association with The UK in a Changing Europe, hosted four experts on the legislative process, including our Director, Professor Meg Russell, for a panel discussion of parliament’s handling of Brexit. Sam Anderson summarises the main contributions.

On 22 July, the Constitution Unit held a packed event entitled ‘Brexit and Parliament: an end of term report’. As well as launching Unit Director Professor Meg Russell’s new Senior Fellowship with The UK in a Changing Europe, it offered a key opportunity to reflect on parliament’s recent performance on Brexit and what may lie ahead. The other contributors were Hilary Benn MP, Labour Chair of the Commons Exiting the European Union Select Committee; Chris White, Managing Director of Public Affairs at Newington Communications and former adviser to two Conservative Leaders of the House; and Dr Brigid Fowler, Senior Researcher at the Hansard Society, who leads its work on parliament and Brexit. The event was chaired by Dr Daniel Gover, Research Fellow at the Constitution Unit and Lecturer in British Politics at Queen Mary University of London. The discussion included whether parliament had used some of its more innovative procedures appropriately, potential next steps in the backbench fight to stop ‘no deal’ and public perceptions of how parliament is performing in the Brexit process.

Meg Russell

Meg Russell gave an overview of the three key research areas that her new fellowship will focus on.

1. How direct and representative democracy relate to each other in the UK

This has been one of the main issues raised by the 2016 referendum. The centrality of parliamentary sovereignty in the UK constitution means that there is a natural tension between representative democracy – where decisions are made by parliament – and direct democracy, involving the use of referendums. Referendums can undoubtedly create tensions with parliament’s representative function; however the Unit’s Independent Commission of Referendums concluded that in certain circumstances referendums can usefully complement parliamentary sovereignty.

The concepts of direct democracy and the overriding mandate of the referendum have fed debates about the role of parliament that have taken a ‘darker turn’ in recent months. Challenging parliament’s decisions is legitimate in a democracy, but threatening the right of parliament to sit and perform its constitutional and legal functions is something we never expected to see. This rhetoric seeks ‘to pit the people against parliament’, with the ‘worrying implication that the executive should cut loose’ of the accountability that lies at the heart of our system, in the name of the people. For example, many responses to a recent tweet from former Conservative MP Nick Boles, in which he expressed concern about the government ‘muzzling’ parliament, invoked ‘the will of the 17.4 million’, with some suggesting that the will of MPs no longer matters. Prorogation has been advocated by a number of Brexiteer MPs, to prevent parliament blocking a ‘no deal’ Brexit. However it has been criticised by other prominent Leavers, such as Sir Bernard Jenkin, Chair of the Commons Public Administration and Constitutional Affairs Committee, and Andrea Leadsom, former Leader of the Commons.

2. The power of parliament over government policy

Professor Russell’s previous work has looked at the ways parliament exercises its power, including through select committees and the legislative process. Parliament is more powerful – and exercises that power in more subtle ways – than many often assume. The Brexit process has demonstrated this in a high profile way. A number of established patterns have continued: one is the anticipatory influence that the Commons has on government, such as when Theresa May offered MPs a vote on ‘no deal’ in March to avoid it being forced upon her. In addition, the Commons and the Lords have largely worked together as partners not rivals; the scrutiny role of select committees and the Commons chamber have been shown to play an important role in testing the claims and policies of ministers; and opposition days have been used in a number of ‘imaginative’ ways. Continue reading →

Pressures to recall parliament over Brexit during the summer seem likely – what if they occur?

Posted on July 23, 2019 by The Constitution Unit

A new Prime Minister is expected to be appointed tomorrow, the day before MPs break up for the summer recess. With just 14 weeks remaining before the current Article 50 deadline, the Commons is then not due to meet for almost six weeks. This creates some very obvious scrutiny gaps. Meg Russell and Daniel Gover suggest that pressures for a Commons ‘recall’ during the summer recess seem likely, but that this will revive difficult questions about who can, and should be able to, recall MPs.

On Thursday, MPs are due to leave Westminster for the summer recess. Yet, barring mishaps, a new Prime Minister is expected to be installed in Downing Street only the preceding day, making immediate parliamentary scrutiny of the new government’s key decisions all but impossible. An added pressure, of course, comes from the Brexit context. The current Article 50 deadline for the UK to depart the EU is 31 October, but parliament is due to remain closed for around half that time – for almost six weeks initially, until 3 September, followed by another break for the party conferences. During this period, calls for parliamentary scrutiny of the new government – most obviously over Brexit – seem very likely to grow.

In this post we examine the pressures that may build for a recall of parliament during the summer, and what mechanisms exist for MPs if they do. Crucially, a formal Commons recall can only be initiated by the government – which may push parliamentarians towards innovative solutions. In the longer term, pressures for reform of the recall process may well be revived.

Why there may be pressures for recall

Demands for the Commons to be recalled from a recess are not unusual, as discussed below. However, they seem especially probable this year. MPs are set to break up just one day after the new Prime Minister takes office, while the tensions over Brexit and how he intends to handle this (particularly if the winner is Boris Johnson) are running high.

An initial challenge, raised in another recent post on this blog, is whether it will even be possible to know that the new Prime Minister and his government enjoy the confidence of parliament. The first action of a new premier is to appoint a cabinet, followed by junior ministers. Within the 24 hours available to the House of Commons, this process may not be complete. As the Commons’ confidence depends not only on the personality of the Prime Minister, but the personalities and balance of the whole government, this could well be brought into doubt. Additionally, there will be very little time under current plans for parliament to quiz the Prime Minister on his Brexit strategy. A statement on Wednesday afternoon or Thursday is possible, but not assured – and if MPs are dissatisfied there will be very little time to respond. The immediate start to the recess hence already looks problematic, and MPs may depart amidst claims that the new Prime Minister is dodging scrutiny. Continue reading →

175 not out: the new edition of Erskine May and eight years of constitutional change

Posted on July 2, 2019 by The Constitution Unit

In March, Sir David Natzler retired as Clerk of the Commons after over 40 years in the House. Now, he is the co-editor of Erskine May, the 25th edition of which is the first new edition in eight years, and is freely available to the public: a significant change. Here, Sir David discusses some of the key changes to the text after what can only be described as an eventful eight years for the Commons.

The years since the last edition of Erskine May in 2011 have been pretty turbulent by any standards. We have had three types – coalition, majority and minority – of government, two general elections, three national referendums and numerous constitutional statutes of real significance. So it was plainly time for a new edition of this timeless work, which is often referred to but rarely read.

The new Erskine May is exciting to me because, as its co-editor, I had the happy task of reading through the chapters as they emerged from the efforts of many of my former colleagues. We all had to ask ourselves: is this a clear and honest account of parliamentary procedure and practice, and if not, how far can we go in recasting it? It is not a new book; but nor is it merely a historical text with minor amendments for the benefit of a modern audience. New content has been added, but nothing has been asserted without due authority, and we also recognise that some assertions of the past are too precious to be excised. Paragraph 21.4 on the rule against reading of speeches is as good an example as any: the principle remains valued by some MPs but it would be idle to pretend that it is rigorously observed in practice. There has to be some wishful thinking.

Who is this edition of Erskine May for? Plainly for practitioners, meaning the occupants of the Chair (such as the Speaker and Deputy Speakers), those who advise them, MPs and officials. But it is not just for them. Recent controversy over decisions by the Speaker on procedural issues related to Brexit and threats of early or extended prorogation by some candidates for leadership of the Conservative Party have served to remind all of us that parliamentary procedures are not some sort of secret masonic ritual to be understood only by a priestly caste of clerks and a handful of others, but are as integral to a parliamentary democracy as electoral rules. And it is not just for Westminster: one of my great pleasures as Clerk was to receive emails from colleagues around the Commonwealth seeking elucidation of a procedural – and usually political – issue where their knowledge of what was said in Erskine May was far in advance of my own!

Fortunately this edition has been preceded by two very different works which help set it in context. In 2018 the Commons authorities published a Guide to Procedure which is intended to help those involved in its day to day work, set out in plain English. It is of course available online. And secondly, at the end of 2017 Hart Publishing produced a book of essays – edited by current Clerk of Committees Paul Evans, entitled Essays on the History of Parliamentary Procedure: In Honour of Thomas Erskine May, to mark the great man’s 200th birthday in 2015. Continue reading →

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Moving Westminster into a multi-parliament world: the Commons takes a fresh look at devolution

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The Constitution Unit turns 25!

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Brexit and parliament: an end of term report

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Pressures to recall parliament over Brexit during the summer seem likely – what if they occur?

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175 not out: the new edition of Erskine May and eight years of constitutional change

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