Democracy and the coronavirus: how might parliament adapt?

sir_david_natzler.smiling.cropped.3840x1920.jpgParliament is currently in recess but its work continues, with select committees moving to remote hearings, and the Speaker promising to move, if only temporarily, towards a ‘virtual parliament’. David Natzler, who spent almost 40 years working in the House of Commons, draws on his experience to suggest how issues relating to the remote conduct of oral questions, voting, committees, and other key matters, might be resolved before parliament returns in late April.

In my blog of 23 March, I suggested that parliament would be judged on how well it had dealt with COVID-19. Over the past fortnight parliament has passed the Coronavirus Act and Commons select committees have held several hearings (see below) in procedurally unique circumstances. Developments in other parliaments and institutions have given an indication of how Westminster might adapt in the coming months. And there have been growing calls for business – in  some radically different form – to be resumed well before 21 April, when parliament is due to reassemble following its standard, if slightly extended, Easter break. The proceedings in both Houses on 23-25 March are of course available to read in Hansard. They do not seem to have been widely reported in the press, save for the observation that there were no votes. 

Speaker’s letter of 27 March: Chamber proceedings 

On 27 March the Speaker, Sir Lindsay Hoyle, wrote a letter to all members of the House of Commons. The letter confirmed that he would be considering several practical measures to enable the number of members present in the Commons chamber at any one time to be reduced. These measures included advance publication of the order of speaking in debate, which the Chair has hitherto not revealed, thus requiring members to attend the debate and wait until called. In the past it has been suggested that the draft list be published, as it is in many other parliaments; this already happens in the House of Lords. If this were introduced it could take some persuasion to return to the existing practice, which allows the Chair to show some flexibility in response to debate.

Oral and written questions and statements

The Speaker’s letter also envisages possible adaptations of the oral question regime, conceivably allowing for questions and supplementary questions to be posed remotely by absent members. Advance submission by MPs of their desire to be called to ask a supplementary question following a statement or urgent question is also canvassed as a possible change. And the Speaker gave a strong signal that he would expect the government to allow for answers to written questions to be given during any future extended period of adjournment, much as happened in the mid-2000s when September sittings were abandoned for several years (see Standing Order 22B and Erskine May 22.4, footnote 3). This was repeated in his letter to the Leader of the Commons on 2 April. Continue reading

The invisibility of legal advice given to EU institutions

Leino_Sandberg_P_ivi_2_photo_Linda_Tammisto.jpgWhenever a political institution seeks to rely on legal advice, there are often calls for that advice to be published, so it can be scrutinised. As has been discussed previously on the blog, there are pros and cons to placing material prepared in confidence into the public domain. Päivi Leino-Sandberg argues that in an EU context, such advice is often invisible, to the detriment of the decision-making process. 

Legal advice matters. It may not always decide the fate of nations, as Attorney General Geoffrey Cox’s advice on the Irish backstop may have done, but an astute follower of EU politics may recall times when proposals by the European Commission have hit a legal roadblock. A measure may have been found unconstitutional by the legal service of another EU Institution or a powerful Member State, bringing the political process to a halt. Typically, a flurry of fierce legal wrangling then ensues, during which the offending parts of the proposal are reviewed, removed or modified to reconcile divergent legal views. In most cases, the proposal will eventually re-emerge and is adopted in a revised form. Sometimes, it is quietly buried.

These are the battlegrounds of legal advisers working in the EU Institutions. Their opinions carry significant weight. The Commission Legal Service has enjoyed a de facto veto power over most Commission measures, even though this power has weakened during the Juncker Commission (2014-2019). The Council Legal Service is no less powerful. A Member State legal adviser explains how:

‘if you haven’t either managed to silence the Council Legal Service … or get them onside, forget about it. Because if they come out with something that’s contrary to where you are, they probably have a natural majority of fifteen Member States before you even start. And of the thirteen others, seven or eight will go with them anyway.’

But in spite of its importance, legal advice in the EU remains curiously invisible.

Two recent posts on this blog debated access to legal advice given to parliaments. In the first of these posts, Ben Yong, Greg Davies and Cristina Leston-Bandeira cautioned against publishing UK Parliament select committee legal advice. They concluded that publication of advice personalises and potentially politicises it, and threatens the relationship of trust and confidence between officials and parliamentarians. Publication might also create an exaggerated picture of the role of legal advice in political decision-making. In contrast, Gabrielle Appleby advocated for the publication of such advice to facilitate greater transparency about the influence of legal advice in parliamentary decision-making.

In the EU, legal advice given in the legislative context should, as a rule, be open to public scrutiny. However, it continues to be treated as confidential. I have been examining its use empirically in the Commission, the Council and the European Parliament. Each of these institutions has – in addition to legally trained officials in policy units – a dedicated Legal Service that plays a key role in its legislative work and defends it before the courts. It is these bodies that are tasked to assess the constitutionality of proposed action. They may advise against certain approaches and recommend in favour of others. Continue reading

Negotiating after no deal

kassim.jpg (1)Until now, much of the discussion concerning ‘no deal’ has been about how it might be avoided or how it will affect daily life. However, after a ‘no deal’ Brexit, the EU and UK would not simply go their separate ways. A trade deal will still have to be negotiated. Hussein Kassim shows that the procedures that would come into play are unlikely to favour the UK and sets out how leaving without a deal is likely to affect the negotiating environment.

Much of the discussion about ‘no deal’ has focused on the UK. It has detailed how Number 10 might force ‘no deal’ through, and speculated on the possibilities and prospects of parliament being able to prevent it. The preparedness of the UK, and the fallout on day-to-day life and commercial activity, have also been considered. Although these are obvious concerns, it is important not to overlook other consequences of leaving without a deal. ‘No deal’ will have an immediate impact on negotiations with the EU. Specifically, it will terminate the Article 50 process. While many Brexiteers have never been happy with Article 50, it is not at all clear that bringing it to an end will be to the UK’s advantage. Nor is it obvious, contrary to Foreign Secretary Dominic Raab’s suggestion on BBC Radio’s Today programme on 29 July, that leaving without a deal will strengthen the UK’s position in the negotiation of a future trade agreement. As well as the procedural issues that ‘no deal’ will entail, the relationship between the UK and the EU is unlikely to be improved.

Procedures and processes

The UK’s withdrawal is currently being negotiated under Article 50, which sets out a procedure created specifically for a member state that has decided to leave the EU. Such a state can, at a time of its choosing, open a two-year period of negotiations to settle outstanding liabilities and agree the shape of its future relationship with the EU. Any withdrawal agreement must have the support of a ‘qualified majority’ of the European Council and is subject to the approval of the European Parliament. It does not need to be ratified by national parliaments.

Article 50 is intended to provide for an orderly and minimally disruptive exit. The two-year period it imposes is intended to concentrate minds. But Article 50 also allows the deadline to be extended if requested by the departing member state and agreed unanimously by the other member states, as it has been twice. Moreover, Article 50 negotiations are a matter of high priority for the EU. The European Council, Council of the European Union, and the European Commission have devoted considerable resources to the process, which have been focused on the EU negotiator, Michel Barnier. They have worked closely together with each other and with the European Parliament. The European Council and the European Commission have also been concerned to ensure a continuous flow of communication between the EU institutions and the capitals of the EU27. It is not at all clear that the negotiations would have the same level of priority or resource under another arrangement. Continue reading