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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A ‘dual mandate’ English Parliament: some key questions of institutional design

meg_russell (1)Jack.000Almost 20 years after the creation of the devolved governments in Scotland, Wales and Northern Ireland, England is the only country of the United Kingdom without its own devolved executive and legislative body. Meg Russell and Jack Sheldon offer their view on whether or not a dual mandate English Parliament is desirable or if it has the proper characteristics to be considered a parliament at all. 

Calls for establishment of an English Parliament have been made for years, particularly following Labour’s devolution in the 1990s to Scotland, Wales and Northern Ireland. Initially such proposals were largely confined to the right of politics, and appeared a relatively fringe interest. But in the aftermath of the Scottish independence referendum, and the new powers devolved to the Scottish Parliament, proposals have also begun to be heard from the political left. Nonetheless, advocates have rarely elaborated on their proposals in detail, and there are many unresolved questions relating to the likely powers, functions, structure and composition of such a body. Since autumn 2016, the Constitution Unit has been working on a research project exploring the options, and a detailed report is due to be published shortly. This post will concentrate primarily on the key institutional questions raised by what is known as the ‘dual mandate’ model for an English Parliament, which some proponents suggest could be implemented as an incremental next step from ‘English votes for English laws’ (EVEL). We ask whether this model for an English Parliament is as innocuous as it looks, and indeed whether what it proposes is a parliament at all.

Models for an English Parliament

The most instinctively obvious model for an English Parliament is to create a completely new body, elected separately from the House of Commons, to mirror the legislatures in Scotland, Wales and Northern Ireland. Variants of this separately-elected model have been proposed by such figures as David DavisFrank Field and Paul Nuttall. It is also favoured by the Campaign for an English Parliament, founded in 1998. Establishing such a body would be a big decision, entailing significant political upheaval and cost. The idea has many opponents, including experts such as Vernon Bogdanor and Adam Tomkins. A key concern is that a new elected body representing 85% of the UK population would, in the words of the House of Lords Constitution Committee, “introduce a destabilising asymmetry of power”. For all of these reasons, adoption of this proposal continues to appear politically unlikely.

The second model is what we call the dual mandate model, which is presented as a more incremental change. Here Westminster MPs representing English constituencies would meet as an English Parliament at certain times. Proponents see this as building on the existing EVEL procedures, creating a far clearer delineation at Westminster between England-only and UK business (and thus dealing once-and-for-all with the famous ‘West Lothian question’). The most prominent supporter has been John Redwood, but similar arrangements have also been proposed by MP Andrew Rosindell, Welsh AM David Melding, journalist Simon Heffer and writers from the Adam Smith Institute think tank. Nonetheless, this model is rejected by the Campaign for an English Parliament as ‘English Parliament lite’. Continue reading

Addressing the constitutional flaws in the EU Withdrawal Bill: The view of the Constitution Committee

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Today sees the start of two days of debate in the House of Lords as the EU (Withdrawal) Bill has its second reading stage. Ahead of that debate, the Constitution Committee of the House of Lords has produced a report on the legislation. In this blogpost Baroness Taylor, who chairs the committee, explains that the Bill as currently constituted has major flaws that could cause serious constitutional problems if left unamended.

Brexit presents an unprecedented constitutional challenge for the UK. In order to achieve a smooth departure from the European Union, it is essential that there is legal certainty and continuity on exit day. The European Union (Withdrawal) Bill (the Bill) is the government’s attempt to achieve this. It attempts to deliver certainty by preserving existing EU law as it currently applies in the UK and converting it into domestic law. This is a legal undertaking of a type and scale that is unique and it poses significant challenges for both parliament and the government.

The House of Lords Constitution Committee gave early consideration to these challenges in its ‘Great Repeal Bill’ and delegated powers report and its interim report on the Withdrawal Bill itself. We are disappointed that the Government has not addressed our earlier concerns and recommendations and, as it stands, the Bill raises a series of profound, wide-ranging and interlocking constitutional concerns. The Committee’s latest report, published yesterday, explores the constitutional deficiencies of the Bill in detail, and offers a number of constructive solutions to improve this essential legislation.

At present, the Bill risks fundamentally undermining legal certainty in a number of ways. The creation of ‘retained EU law’ (existing EU law in a new domestic form) will result in problematic uncertainties and ambiguities as to what it contains and how it relates to other domestic law. The Bill fails to give sufficient clarity and guidance to the courts as to how retained EU law is to be interpreted after the UK leaves the European Union and it seeks, unsuccessfully and erroneously, to perpetuate the ‘supremacy’ of EU law post-Brexit. Continue reading

The Constitutional Standards of the Constitution Committee: how a code of constitutional standards can help strengthen parliamentary scrutiny

The Constitution Unit has today published a third edition of its report on the Constitutional Standards of the House of Lords Constitution Committee. The report contains a code of constitutional standards based on past Constitution Committee reports, which provide detailed guidance on the application of constitutional principles to legislative proposals. Robert Hazell and Dawn Oliver argue that such a code is particularly needed in the 2017 parliament and could have significantly improved the drafting of the European Union (Withdrawal) Bill.

Today the Constitution Unit has published a third edition of its report on the Constitutional Standards of the House of Lords Select Committee on the Constitution. The report contains a code of constitutional standards based on almost 200 reports from the Constitution Committee, published between its creation in 2001 and the end of the last (2016–17) parliamentary session. The standards provide detailed guidance on the application of constitutional principles to legislative proposals, and cover a range of subjects, including the rule of law, delegated legislation, the separation of powers and individual rights.

The use of a code of soft law constitutional standards is particularly needed in the 2017 parliament. Standards of the type set out in our report could have significantly improved the drafting of the European Union (Withdrawal) Bill. Such a code could also be used by parliamentary committees of either House to enhance the scrutiny of the delegated legislation needed to prepare the statute book for Brexit.

The European Union (Withdrawal) Bill

The European Union (Withdrawal) Bill is providing a showcase of parliament’s ability to scrutinise constitutional legislation. It is packed with provisions that raise matters of fundamental constitutional principle, from the rule of law to Henry VIII powers to devolution. A good number of the amendments reflect arguments made by the Constitution Committee, which unusually reported before the bill received its second reading in the Commons.

The government has been criticised by some, including Hannah White from the Institute for Government, for failing to engage meaningfully with parliament before the bill was introduced to the Commons. The government is now making concessions in order to avoid defeats. Engagement with an officially recognised code of standards could have enabled the government to avoid these difficulties. The Constitution Committee’s recommendations are rarely framed in absolute terms. Many of the standards demand forms of justification for departures from constitutional principles. Even when the committee’s standards go beyond justification, they often demand changes that relate to drafting or the inclusion of safeguards, neither of which normally frustrates the policy aims of a bill.

The basic case for the use of standards is that it can enable basic constitutional concerns to be addressed systematically at the earliest possible stage. This was a point made by the Constitution Committee itself in its recent report on the legislative process:

We continue to believe that there would be merit in producing a set of standards that legislation must meet before it can be introduced.

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House of Lords Constitution Committee reports on ‘English votes for English laws’

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The House of Lords Constitution Committee reported on the first year of the House of Commons’ ‘English votes for English laws’ procedure last week. The committee took the view that it is as yet too early to fully evaluate the impact of EVEL, especially as the current government has a majority of both the whole House of Commons and constituencies in England and Wales. It is therefore recommended that an extended trial should take place for the remainder of this parliament, with a final review by a joint committee early in the next parliament. Mark Elliott and Stephen Tierney offer an overview of the report.

The House of Lords Constitution Committee issued its report on ‘English votes for English laws’ (‘EVEL’) last Wednesday. The report examines the new arrangements for the passage of legislation introduced by the government in July 2015 and agreed by the House of Commons twelve months ago. The committee was asked to review the constitutional implications of these procedures by the then Leader of the House of Commons, Chris Grayling, and to report in the autumn of 2016, its conclusions feeding into the government’s own review of the new system.

In this post we reflect upon the evidence gathered by the committee and the report’s main conclusions. We do so in the context of the committee’s recent reports on devolution, in particular its inquiry into the Union and Devolution, published during the last parliamentary session, where the committee considered issues relating to the governance of England while also criticising the ‘ad hoc, piecemeal’ approach to devolution in the UK.

Reviewing the new ‘EVEL’ arrangements

The particular anomaly which the EVEL system is intended to address is of course the West Lothian question, whereby, in the words of the new report, ‘MPs representing the devolved nations are able to debate and vote in the House of Commons on laws only affecting England, while MPs for English constituencies cannot debate or legislate on devolved matters in the other nations.’ Various proposals have been put forward in recent years to deal with this issue, most nobably the recommendations of the McKay Commission which were in the end not implemented. It was not until the 2014 Scottish independence referendum that the issue of lopsided parliamentary representation was addressed. Speaking on the day after the referendum Prime Minister Cameron declared: ‘We have heard the voice of Scotland – and now the millions of voices of England must also be heard. The question of English votes for English laws – the so-called West Lothian question – requires a decisive answer.’

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The government must fundamentally reassess its approach to devolution to safeguard the integrity of the Union

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Last week the House of Lords Constitution Committee published a major report on ‘The Union and devolution’. Mark Elliott and Stephen Tierney summarise the report, in which it is suggested that the government should fundamentally reassess its approach to devolution and that, in future, any new proposals for devolution ‘should be considered within an appropriate framework of constitutional principles that safeguard the integrity of the Union’.

The House of Lords Constitution Committee’s report on ‘The Union and devolution’, published last week, declares the Union to be ‘under threat’, and recommends that the United Kingdom government ‘needs fundamentally to reassess how it approaches issues relating to devolution.’ The report is the culmination of a major inquiry which began taking evidence in October last year. The committee heard from 66 witnesses including academics, think tanks, the chairs of commissions on devolution, the UK and devolved governments, as well as party representatives from across the UK and a wide range of civil society groups. The committee also held evidence sessions in Cardiff and Edinburgh.

In its 142 page report the committee takes stock of the United Kingdom’s territorial constitution. Its assessment of the lack of vision with which devolution has been allowed to develop is particularly hard-hitting:

‘Power has been devolved to Scotland, Wales and Northern Ireland in an ad hoc, piecemeal fashion. Successive Governments have taken the Union for granted. Proper consideration of the cumulative impact of devolution on the integrity of the Union itself has been lacking.’

Nor does the committee see any convincing evidence that the UK government has now come to appreciate the difficulties inherent in this casual approach to constitutional design. It concludes that Oliver Letwin, the minister responsible for constitutional reform, ‘does not recognise the concerns expressed by this Committee and many others at the pressures being placed on the UK constitution by the manner in which the devolution of powers has taken place’. The committee is clear that this approach must end:

‘An inattentive approach to the integrity of the Union cannot continue. Following the significant changes that the territorial constitution has undergone in recent years, the time has come to reflect and take stock. While the constitution should reflect the wishes and interests of the nations and regions, that must not be at the expense of the stability, coherence and viability of the Union as a whole. Should any proposals for further devolution arise in the future, they should be considered within an appropriate framework of constitutional principles that safeguard the integrity of the Union.’

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Is David Cameron actually seeking to destroy the Lords?

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Yesterday’s new peerage appointments attracted almost universal criticism for further adding to the inexorable growth in size of the House of Lords under David Cameron. But could the gradual erosion of the Lords’ reputation actually benefit the government by weakening parliament? Might it even be a deliberate plan? And – given that the Prime Minister holds all the cards – what can be done about it? Meg Russell comments.

Click here to access a printer-friendly PDF of this post.

This post has an eye-catching title, but it isn’t a joke – my question is deadly serious. David Cameron’s list of 45 new appointments to the Lords, announced this week, has attracted predictable wails of outrage – from the media, from opposition parties , and indeed from myself. His Lords appointments in the last five years have been completely disproportionate. As I demonstrated in a report earlier this year, he has created new peers at a faster rate than any other Prime Minister since life peerages began in 1958. Although growth in the size of the chamber has always been a problem, since 2010 it has escalated to new proportions. As is clear from my well-rehearsed graph, updated for this week’s appointments, the upward trajectory increased sharply from 2010. In the 11 years of Labour government from 1999-2010 the chamber grew by 40-70 members (depending how you measure it); in the five short years since Cameron took office, it has grown by two to three times as much.

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Note: ‘Actual eligible membership’ includes those on leave of absence and otherwise temporarily excluded from the chamber, all of whom could potentially return. Source: House of Lords Information Office figures from January each year, updated with 2015 appointments.

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