What might parliament do with the Article 50 bill?

Meg-Russell

On 24 January the Supreme Court ruled that the government requires parliament’s consent to trigger Article 50 of the EU Treaty and hence begin formally negotiating Brexit. This requires a bill, and the government responded with the European Union (Notification of Withdrawal) Bill – on which debates in the Commons begin today. Meg Russell asks how parliament could respond to the bill – both procedurally, and in terms of the political dilemmas facing members.

In the form it was introduced, the European Union (Notification of Withdrawal) Bill is a very short and simple measure. With just two clauses, it authorises the government to ‘notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU’, stating that this is notwithstanding the 1972 European Communities Act or any other existing statute. Yet its simplicity clearly belies its importance; the decision to trigger Article 50, following the Leave vote in last June’s referendum, has potentially huge ramifications for both the UK’s politics and its economic future. It is well-known that a majority of MPs, and probably an even higher proportion of peers, supported Remain in the referendum. The government’s original starting point was that parliamentary approval of this kind was neither desirable nor necessary. Now that the bill has been published, its passage could present significant political challenges, for government and parliamentarians alike.

This post focuses primarily on the procedural aspects. What are the stages through which the bill will have to pass, and where do the potential obstacles lie? The post focuses in particular on the immediate Commons stages. Having indicated the key steps, it moves on to discuss MPs’ representational dilemmas, and how these could play out. Finally, it provides some brief reflections on the bill’s likely reception in the Lords.

The timetable for the bill in the Commons was set out by David Lidington, Leader of the House of Commons, on Thursday 26 January. Its second reading stage is due to take place on Tuesday and Wednesday this week, with debate today able to last up to midnight. It is then proposed to spend three days in committee, on the floor of the House of Commons, next week, after which it will quickly receive a third reading and (if approved) pass to the House of Lords.

Continue reading

Democracy means democracy: parliament’s role in Brexit negotiations

thumbnail_toby

What role will parliament play in the Brexit negotiations and what does this show about the UK’s ever-changing constitution? On 15 September the Constitution Unit hosted Paul Evans and Christopher Johnson, two experienced clerks at the Commons and Lords respectively. Toby Shevlane reports.

Nothing in politics can be taken for granted in 2016, and perhaps our concept of democracy is no exception. It has always been the case that the democratic process requires compromises to be found between different law-makers, but have UK law-makers ever been forced to compromise so heavily with their electorate? Professor Bogdanor has recently suggested that the referendum introduced a new idea into the UK constitution: the sovereignty of the people. The suggestion is that the people have become a ‘third chamber’ of parliament, at least for constitutional issues. The constitutional division of labour is, therefore, in a state of flux, and it is worth pausing to ask: what role will these different chambers play in the Brexit process? This was the question that Paul Evans and Christopher Johnson sought to answer at a Constitution Unit seminar on 15 September.

Paul Evans

Paul Evans is currently Clerk of the Journals in the House of Commons, and will soon be the clerk in charge of the House’s select committees. He spoke expertly about the role that these committees could play in the Brexit process, especially one that is to be set up to scrutinise David Davis’ Department for Exiting the EU. A deal for such a committee has been agreed between the usual channels, which will involve a committee of 21 members with a Labour chair but a majority of Conservative members. Evans said that how this select committee will operate is yet to be decided. But he stressed the importance of collaboration and inclusiveness: it should form a collaborative relationship with the government and other committees, and the process of Brexit scrutiny should be inclusive of devolved governments and legislatures. Overall, Mr Evans also welcomed the recent high level of public interest in politics, and argued that parliament should find innovative ways of involving the public in the Brexit process as much as possible.

Christopher Johnson

Christopher Johnson is the Principal Clerk to the House of Lords EU Select Committee. He spoke first about the process that the negotiations could follow. Article 50, he said, is expected to be triggered in 2017. Then, formal negotiations will begin with the EU member states, who will be represented by the EU Commission. Mr Johnson explained that these negotiations will produce multiple treaties: a withdrawal treaty (dividing up assets, settling financial relationships, addressing EU research programmes, and deciding the ongoing rights of UK and EU citizens under EU law) as well as at least one treaty that sets out the new relationship between the EU and the UK. He envisaged one such treaty, agreed in preparation for the moment of withdrawal, covering areas where continuity would be important, such as security and fishing rights.

Mr Johnson stressed the breadth and complexity of the negotiations that will take place, and argued that no single committee would be able to scrutinise such a complex and cross-departmental series of negotiations. Mr Johnson also pointed out that the government will need to reinvent large swathes of policy currently covered by EU law, and warned that a legislative bottleneck could form in 2018/19. In response to questions from the audience, he gave his view that the current scrutiny reserve procedure would not be triggered by the negotiations, but noted that it would be open to the government to extend the scope of the current procedure.

Continue reading

The 2016 Queen’s speech and the constitution

20151015-164-copy-150x150

Last week’s Queen’s speech included proposals to bring forward a British bill of rights and a commitment that ministers would ‘uphold the sovereignty of Parliament and the primacy of the House of Commons’. Mark Elliott suggests that if action was taken to implement them these measures would be highly significant. However, there is no sign of developed government thinking in these areas at this stage and so, in practice, they may amount to very little.

This year’s Queen’s speech touches on two possible constitutional reform measures. (I pass over the Wales Bill, which was published in draft in October 2015). The first concerns the replacement of the Human Rights Act 1998 with a ‘British Bill of Rights’, while the second concerns the sovereignty of parliament and the ‘primacy’ of the House of Commons. If implemented, these measures would be highly significant. But the signs are that, for the time being anyway, they may amount to very little in practice – not least because the Government’s thinking in relation to them appears to be undeveloped to say the least.

A British bill of rights

The Conservative Party has for some considerable time said that it wants to replace the Human Rights Act (HRA) with a bill of rights (albeit that exactly what would thereby be entailed has been, and remains, shrouded in uncertainty). Any attempt at reform in this area was stymied in the last parliament by the politics of coalition, the Conservatives’ Liberal Democrat partners being staunchly committed to the retention of the HRA. The most that could be managed then was a Commission on a Bill of Rights, whose proposals, such as they were, came to nothing.

Freed from the shackles of coalition, the Government promised in last year’s Queen’s speech to bring forward ‘proposals for a British Bill of Rights’. This year’s speech contained an almost identically worded undertaking promising ‘proposals’ but not a bill as such. The fact that little, if any, progress appears to have been made in this area is testament to the legal, constitutional and political difficulties that arise (matters that I consider further here). In political terms, the government appears to be divided on the question of whether the UK should remain a party to the ECHR – the Home Secretary thinks not – while the politics of devolution represent a major complication.

Continue reading

Scotland, Wales and Ireland point to how governments should be formed in hung parliaments

robert_hazell (1)

Nicola Sturgeon and Carwyn Jones have this week been re-elected as First Ministers of Scotland and Wales, whilst two week ago Enda Kenny was re-elected as Irish Taoiseach. In each case the newly elected parliament elected the head of the new government. In a new report Petra Schleiter, Valerie Belu and Robert Hazell argue that a similar procedure should be adopted at Westminster, where currently the Queen decides who should be Prime Minister before parliament meets. Robert Hazell explains why.

This week has seen the re-election of Nicola Sturgeon and Carwyn Jones as First Ministers in Scotland and in Wales, following the devolved elections on 5 May. Two weeks ago we witnessed the re-election of Enda Kenny as Taoiseach in Ireland, ten weeks after the Irish election on 26 February. What these three countries have in common is not just that the same leader has been re-elected, but that in their recent elections Scotland, Wales and the Republic of Ireland all saw the return of a hung parliament in which no party gained an overall majority. In these circumstances it does not fall to the Queen to decide who shall be First Minister, or in Ireland to the President; under their constitutions it falls to the newly elected parliament, whose first business (after election of a presiding officer) is to elect the head of the new government.  That is what happened in Ireland on 6 May, in Scotland on 17 May and in Wales on 18 May.

In a report published this week, which I have written with Professor Petra Schleiter and Valerie Belu of Oxford University, we suggest that is what should also happen in future at Westminster. Instead of the Queen having to decide who should be Prime Minister before parliament meets, the first business of a newly elected House of Commons should be to select the Prime Minister, who would then be formally appointed by the Queen.

This may seem unnecessary after elections when a single party wins an overall majority, and it is obvious who is going to be Prime Minister: as happened in the UK in 2015. In those cases the election of the leader of the majority party to head the new government would be a formality.  The value of asking the House of Commons to choose the Prime Minister is when it is not obvious who can command confidence in the newly elected parliament. That is always going to be the case in a hung parliament, especially if it is closely hung. We risk forgetting how narrowly we escaped from having such a parliament after the 2015 general election. In the weeks before the election the polls suggested a very close result, with some forecasting a dead heat between the two major parties. Although the Cabinet Manual says it is for the political parties to work out who can command confidence in the new parliament, there is a risk of confusion and uncertainty if there is a standoff, with both main parties claiming to be able to form a government. The only reliable way to determine who can command confidence in such a situation is a nomination vote in the House of Commons. That would be a quicker and cleaner solution than the traditional vote on the Queen’s Speech as the first test of confidence in a new government.

Continue reading

Reform is needed to restore public and parliamentary confidence in the private members’ bill process

Last month the House of Commons Procedure Committee published a report on the private members’ bill process in which a number of proposals for reform were put forward. The committee’s chair, Charles Walker, offers an overview and argues that the alternative to reform is that more members will abandon the existing process and backbench legislation, as we know it, will cease.

Procedure Committees past and present have examined the private members’ bill (PMB) process and found it gravely wanting. It is becoming more and more evident that parliamentary and public confidence in the process is waning. The current process misleads the general public, often falsely raises expectations about legislative action, and operates under procedures which are too easily gamed to prevent genuine legislative proposals from proceeding. The Procedure Committee undertook its latest inquiry into PMBs in light of experience of the process in this session and increasing dissatisfaction with the House’s procedures for PMBs, building on the work of the predecessor committee in the last parliament.

We identified two fundamental problems with the present process. Our chief concern is the lack of transparency: the process is impenetrable to the general public and too often brings parliament into disrepute. Our second concern is that it is now extremely difficult for a genuine PMB to reach the statute book—increasingly, not because the House as a whole has decided that a bill should not progress, but because a small number of members opposed to a measure can effectively veto it.

Evidence we heard suggests that the public is baffled by the process. Colleagues are frequently lobbied by constituents and others with requests to be present at Westminster on a sitting Friday to support a bill which has little (if any) chance of being debated, let alone reaching the statute book.

Continue reading

In the event of a Leave vote Brexit would dominate Westminster for years

Sir-Robert-Rogers

The Constitution Unit, together with the UCL European Institute, is holding a special series of seminars on the implications and consequences of Brexit. The first, on 21 April, focused on the consequences for Westminster and Whitehall. In this post, adapted from his comments on the night, former Clerk of the House of Commons Lord Lisvane discusses the impact that a vote to leave the EU would have on Westminster in the immediate aftermath of the referendum, during Brexit negotiations and once Brexit has actually taken place.

The immediate aftermath

After a vote to leave there will be immediate pressure for debates in the House of Commons and the House of Lords, probably over two days, to be held as soon as possible. There may even be calls for a rare weekend recall, though this is in the Prime Minister’s hands and I think it very unlikely that he would grant one.

David Cameron’s future will, of course, be high on the agenda. He has said that he would stay on as Prime Minister to oversee the consequences of a vote to leave, but there are Conservative MPs who have suggested that he won’t have the opportunity to do that. Might he throw the dice and have a vote of confidence among members of his own party, or would that be too high risk?

Continue reading

The length of modern legislation means that the effectiveness of parliamentary scrutiny is often compromised

In a new report published by the Centre for Policy Studies Daniel Greenberg identifies a number of trends that he argues are reducing the effectiveness of parliamentary scrutiny of legislation. In particular, he suggests that the length of modern legislation is becoming so great that significant parts of bills often receive no detailed scrutiny at all. Here, he summarises his report and suggests action that might be taken to help remedy the situation.

Recent parliamentary practice discloses a number of dangerous legislative trends that threaten the effective protection of the rule of law, by diluting parliament’s power and influence, and concentrating power in the hands of the executive in general and the civil service in particular.

The length of new bills and the number of clauses that they include has become ever greater over recent decades, and the result of portmanteau bills in particular is that even if parliament wanted to scrutinise them effectively it would be unable to do so.  Over the past 50 years, the number of acts passed by governments has stayed approximately the same. However, the average number of clauses included within them has doubled.

It is still common to describe the committee stage of the examination of bills in both Houses as a ‘line-by-line’ scrutiny process; and parliamentarians on all sides of each House commonly refer to it in that way, and often congratulate themselves on scrutinising and refining bills at great length.  The reality, however, is that the committee stage in particular has become diluted to such a degree that it can no longer be described as taking place in a consistent way.

Continue reading