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

Crisis, headache, or sideshow: how should the UK government respond to the Scottish parliament’s decision to withhold consent for the Withdrawal Bill?

 

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Different political actors have responded to the decision by the Scottish Parliament to withhold its consent for the UK government’s showpiece EU (Withdrawal) Bill in very different ways. Professor Nicola McEwen discusses the options open to both the Scottish and UK governments. 

After much deliberation, the Scottish Parliament voted by 93-30 to withhold consent for the EU (Withdrawal) Bill, the main piece of UK legislation paving the way for Brexit. Labour, the Liberal Democrats and the Greens accepted the SNP government’s charge that the Bill undermines the devolution settlement and the principles on which it was founded. On the same day, the National Assembly for Wales voted by 46-9 to grant consent for the Bill, with the Welsh government arguing that the amended clause 15 (formerly clause 11) and the agreement they reached with the UK government ‘defended and entrenched’ devolution. Only Plaid Cymru disagreed.

Consent was sought from both legislatures following the convention (usually referred to as the Sewel convention) that the UK parliament will not normally legislate in devolved areas, or alter devolved powers, without their agreement. The Withdrawal Bill alters the devolution settlements by placing a new constraint on devolved legislatures and ministers to avoid acting incompatibly with ‘retained EU law’, even in policy fields which otherwise fall within their remit. In its original form, this constraint was placed upon all retained EU law, with provision to release the constraint once it was agreed that there was no need to preserve a common UK legislative or regulatory framework. In its amended form, the Bill requires the UK government to specify in regulations the areas to which the restriction will apply. It introduced a time limit – UK ministers have two years from Brexit day to bring forward new regulations, and these would last for no more than five years. The amendment also places a duty on UK ministers to await a ‘consent decision’ before tabling the regulations, but herein lies the controversy. Whereas the Sewel convention assumes that consent means agreement, Clause 15 empowers UK ministers to proceed even if the ‘consent decision’ is to withhold consent. Continue reading

Lords Brexit defeats are forcing MPs to face crucial choices

meg-russellOne part of the government’s flagship Brexit legislation is now nearing its parliamentary endpoint after the EU (Withdrawal) Bill completed its report stage in the House of Lords in early May. The UK parliament’s second chamber inflicted 14 government defeats on the bill, which sets out arrangements to facilitate Brexit. It will soon return to the House of Commons for these various issues to be considered. Meg Russell examines some of the issues this may cause for the House of Commons and parliament as a whole.

The Lords’ interventions have led some to claim that this is a “peers versus the people power grab”, or even that the chamber is behaving in an “unconstitutional” manner. But while the current situation may be unusual, it’s not for the reasons many commentators claim.

There have been many past standoffs between governments and the House of Lords, some far more serious than this one. The most famous clashes occurred a century or more ago under Liberal governments, including over the 1832 Great Reform Act and Lloyd George’s 1909 “people’s budget”. The largest recorded annual number of Lords defeats– 126 – occurred under Labour in 1975-76. Defeats under the Labour governments of Tony Blair and Gordon Brown were commonplace – for example there were 12 on the 2005-6 Identity Cards Bill. Continue reading

Monitor 68: A constitution in flux

The latest issue of Monitor, the Constitution Unit’s regular newsletter, was published today. The issue covers all of the major UK constitutional developments over the past four months, a period that has seen the EU (Withdrawal) Bill pass from the Commons to the Lords; the failure of talks in Northern Ireland; and a significant government reshuffle. Abroad, Ireland is considering a permanent constitutional change and Japan has seen a constitutional first as its current emperor confirmed he is to abdicate. This post is the opening article from Monitor 68. The full edition can be found on our website. 

The UK is experiencing a period of deep constitutional uncertainty. In at least four key areas, structures of power and governance are in flux. Screenshot_20180308.210141 (1)

The first of these, of course, is the nature of the UK’s future relationship with the European Union, to which the Brexit negotiations will shortly turn. The degree to which the UK continues to pool its sovereignty with other European countries depends on the form of that relationship: how far, and on what issues, the UK continues to adhere to EU rules, align closely with them, or follow its own separate path. Theresa May set out her most detailed proposals yet in a speech at Mansion House on 2 March, advocating close alignment outside the structures of the EU Single Market and Customs Union. On 7 March, the President of the European Council, Donald Tusk, published draft guidelines for the EU’s position. As before, this emphasises ‘that the four freedoms of the Single Market are indivisible and that there can be no “cherry picking.”’ What deal will emerge from the negotiations is entirely unclear.

The government’s preferred path will face stiff resistance in parliament too. In late February Jeremy Corbyn signalled that Labour wants a UK–EU customs union (an issue also central to the conclusions reached by the Citizens’ Assembly on Brexit). Consequently the government now risks defeat on an amendment to the Trade Bill pursuing the same objective, tabled by Conservative backbencher Anna Soubry. Beyond that, an amendment to the EU (Withdrawal) Bill passed in the House of Commons in December guarantees that the deal between the UK and the EU agreed through the Brexit negotiations will need to be endorsed by an Act of Parliament in the UK. Brexit’s opponents are increasingly vocal and organised, and occupy a strong position in Westminster. The odds remain that Brexit will happen, but that isn’t guaranteed. Continue reading

How the UK and devolved governments can agree on the European Union (Withdrawal) Bill

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With the EU Withdrawal Bill now in the House of Lords, Clause 11 of the bill is expected to be a cause of potential trouble for the government. The Scottish and Welsh governments, as well as the Labour Party, are all currently opposed to the clause as currently drafted and it seems unlikely it will survive the Lords in its present form. Akash Paun explains the concerns of Edinburgh and Cardiff in this blog and proposes a number of possible solutions, each of which will require compromise on all sides.

The UK government is locked in dispute with the Scottish and Welsh governments over Clause 11 of the EU Withdrawal Bill. This clause prevents the devolved administrations from modifying ‘retained EU law’, the term for all the European legislation the bill will bring into domestic law.

The effect would be that all powers exercised in Brussels return to Westminster, at least initially, giving the UK parliament the ability to create binding legal frameworks in place of EU law. The devolved governments say this is unacceptable, and Edinburgh and Cardiff have refused to grant legislative consent to the bill.

The government accepts that Clause 11 needs to be amended, but it has not brought forth alternative proposals, despite promising to do so before the bill left the House of Commons. Meanwhile, the Scottish and Welsh Governments propose that Clause 11 should simply remove the requirement for devolved bodies to act in accordance with EU law. Full control of the 100-plus areas of ‘intersection’ between EU and devolved law would then revert to the devolved level.

In this case, new UK-wide frameworks would have to be negotiated on a case-by-case basis and could not be unilaterally imposed by Westminster. The concern in Whitehall is that this would increase the risks of legal uncertainty and regulatory divergence, and could make it more difficult to implement a new UK-EU economic relationship.

The bill has now entered the House of Lords with the UK and devolved governments still dug into their trenches. Recent reports suggest, however, that a peace deal may be within reach. Continue reading

Parliament and the withdrawal agreement: What does a ‘meaningful vote’ actually mean?

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The government has repeatedly assured MPs that they will get the opportunity to have a meaningful vote on any agreement reached with the EU related to the UK’s withdrawal as part of the Article 50 process. This post by Jack Simson-Caird examines the role of the House of Commons and the House of Lords when it comes to approving and implementing that agreement. 

Since the UK government began negotiations over the withdrawal agreement under Article 50, questions have been raised about how parliament will approve and implement the final agreement.

The government’s stated position has long been that parliament will have the opportunity to approve the final agreement through a motion ‘to be voted on by both Houses of Parliament before it is concluded’. On 13 December 2017 David Davis MP, the Secretary of State for Exiting the European Union, gave details of the procedures for both the approval and implementation of EU Exit Agreements. He explained that the approval process is separate from the process of implementing the agreement through primary and secondary legislation.

Approving the withdrawal agreement

David Davis proposed that the process of approving the withdrawal agreement will take the form of a resolution in both Houses of Parliament. This resolution will cover both the Withdrawal Agreement and the terms for our future relationship”. The Supreme Court noted in Miller in January 2017 that such a resolution does not have any legislative effect, but is nevertheless ‘an important political act’. Continue reading