Boris Johnson and parliament: misunderstandings and structural weaknesses

On 21 January Unit Director Meg Russell appeared on a panel with two former Conservative Chief Whips, reflecting on Boris Johnson’s troubled relationship with parliament as Prime Minister. In this post she presents her central arguments – that the Johnson government in its early months has seemed to demonstrate some basic misunderstandings about parliament and its role; but also the government’s behaviour has highlighted some of parliament’s key weaknesses.

In early September 2020 I wrote a blogpost on Boris Johnson and parliament, which documented 13 unhappy episodes in 13 months. I had originally aimed at producing a list of 10 such episodes, but found that there was just too much material. Some of the incidents were obvious – such as the attempted prorogation the previous September, ultimately ruled unlawful by the Supreme Court. Others have continued to bubble along unhappily in the subsequent months – including the persistent refusal by Leader of the House of Commons Jacob Rees-Mogg to provide time for MPs to debate and agree proposals from the Procedure Committee to allow them to work virtually during the pandemic (frequently covered on this blog – see here and here), and the sporadic suggestions from government sources that the House of Lords should move to York. Some incidents were more obscure, but worth recalling for the record – such as Downing Street’s attempt to impose Chris Grayling as chair of the Intelligence and Security Committee (which rather dramatically backfired).

Of course that post was written five months ago, and the list continues to gets longer. It predated, for example, the dramatic showdown with former Conservative leaders over the government’s Internal Market Bill. It predated the announcement of the new Christmas lockdown rules during Commons recess, and the government’s refusal to allow a recall to debate them – despite protests by numerous Conservative backbenchers. It noted Johnson’s excessive first round of Lords appointments, but not his second within six months – both in clear breach of the Lord Speaker’s hardfought attempts to control the size of the chamber. It predated Johnson’s overruling of the House of Lords Appointments Commission’s recommendations on propriety, for the first time by any Prime Minister in the Commission’s 20-year existence.

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Parliaments and COVID-19: principles and practice; challenges and opportunities

Unit Director Meg Russell analyses the challenges and opportunities for reform facing parliaments during the COVID-19 pandemic, which has raised complex questions about how to balance the different functions of parliaments and their need to operate effectively.

In the UK and around the world parliaments have had to adjust their practices to the unexpected new environment of COVID-19. This has brought major challenges but, some suggest, also opportunities in terms of suggesting future means for parliaments to adapt. This post starts from the core principles of parliamentary functioning, briefly reviews practice under COVID-19, and considers the primary opportunities and challenges presented. It concludes that the future lessons from this unique period reinforce some familiar themes; but they also raise significant conundrums and trade-offs between the different essential principles of what parliaments are there to do.

Principles

Stripping back to the basics, what are parliaments for? Legislative studies scholars have suggested various overlapping lists of functions. For example in the Oxford Handbook of Legislative Studies, Amie Kreppel provides a list of four, which I will boil down to three: 

  • Representation takes many forms, often including – as is central to the UK House of Commons – geographic representation. Numerous, diverse, individuals participate in the legislature, underpinned by a crucial democratic principle of equality, where each ultimately has an equal vote.
  • Linkage is closely connected to this – as parliamentarians provide a voice in parliament to their voters, and remain accountable to them.
  • Policy-making – for example through approving bills – is perhaps what parliaments are best known for. Connectedly, they have a control function in holding executives to account. For simplicity, I treat these two functions together.

Other terms often mentioned in such classifications include deliberation –much of which takes place publicly – and legitimation, meaning all of parliaments’ functions help them generate broad public support for policy.

Practice

It is easy to see how the circumstances of COVID-19 have challenged some of these principles.

The threats to representation were pretty immediate and obvious. With limits on travel, requirements for social distancing, and heightened risks for people with certain health conditions, parliamentarians gathering from all over the country immediately became a problem. Some legislatures responded by limiting the number who could participate – with those decisions often taken by leaders and whips. Others moved their proceedings online. The UK House of Commons initially did the latter, but then rolled this back in a quite problematic way which breached principles of equal participation.

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Braking the law: is there, and should there be, an executive veto over laws made by parliament?

During the Brexit crises of 2019, something exceptionally rare happened twice in less than six months: parliament passed legislation without the government’s consent. But are there constitutional veto mechanisms that governments can use to prevent this? In a new Unit report, Paul Evans explores this question in detail. He summarises his conclusions here.

What do executive vetoes look like? 

Many constitutional democracies include mechanisms whereby a head of state can veto a law made by the legislature, but few of these are absolute vetoes. Most are suspensory, inviting the legislature to think again, but giving it the last word. The US Constitution is the most obvious example of such an arrangement. France has a broadly similar system but, as with many if not most such vetoes, it isn’t used. Some states (for example Iceland) enable the president to put a law to a referendum. Others (such as Ireland) leave the last word with a constitutional court, but only on matters of constitutionality, not on grounds of political disagreement.

In the UK (and most of the old dominions which retain the Queen as head of state) such an arrangement looks impossible. The executive and the legislature are fused – they can’t have different views. The executive as a lawmaker in the UK only exists as an element of the sovereign parliament (the somewhat misleadingly titled ‘Crown-in-Parliament’). The sovereign has no personal stake in the making of law. They must do as parliament decides. As long ago as 1867, Walter Bagehot expressed this constitutional fact with typical rhetorical brio:

The popular theory of the English Constitution involves two errors as to the Sovereign. First, in its oldest form at least, it considers him as an ‘Estate of the Realm’, a separate co-ordinate authority with the House of Lords and the House of Commons. This and much else the Sovereign once was, but this he is no longer. That authority could only be exercised by a monarch with a legislative veto. He should be able to reject bills, if not as the House of Commons rejects them, at least as the House of Peers rejects them. But the Queen has no such veto. She must sign her own death warrant if the two Houses unanimously send it up to her. It is a fiction of the past to ascribe to her legislative power. She has long ceased to have any.

Withholding of royal assent

Nonetheless, when the first stirrings of what was to become the Cooper-Letwin Act (the European Union (Withdrawal) Act 2019) began in the Commons in early 2019, it was suggested in some quarters that ministers could advise the sovereign to refuse royal assent to an Act agreed upon by parliament. The same argument re-emerged six months later in relation to the Benn-Burt Act (the European Union (Withdrawal) Act (No. 2) 2019), which Boris Johnson insisted on referring to repeatedly as the ‘Surrender Act’. But, despite these theoretical arguments, subsequent events appear to have confirmed that this concept of a royal veto is definitely a dead letter. Queen Anne was the last sovereign to decline the royal assent to an Act passed by parliament – in 1707 (or 1708 if you prefer to apply retrospectively the change of the new year from 25 March to 1 January in 1752). 

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Will the Lords block the UK Internal Market Bill?

Parliament will this week begin debating and scrutinising the UK Internal Market Bill, which the Northern Ireland Secretary has already acknowledged will, if passed in its current form, place the UK in breach of international law. When the bill reaches the upper chamber, what sort of treatment will it receive? Might the Lords block it? Unit Director and Lords expert Meg Russell offers her view.

Widespread shock greeted this week’s news that Boris Johnson hopes to set aside elements of the Withdrawal Agreement related to Northern Ireland – particularly when Northern Ireland Secretary Brandon Lewis admitted to the House of Commons that the UK Internal Market Bill drafted to achieve this ‘does break international law’. Former Conservative Prime Ministers Theresa May and John Major, and senior government backbenchers, loudly protested. Former Conservative Solicitor General Lord (Edward) Garnier expressed surprise that the government’s law officers – those ministers expressly charged with protecting the rule of law – hadn’t resigned.

After an emergency meeting, the European Commission vice-president demanded that the UK withdraw the plans. The Irish Taoiseach described them as ‘extremely divisive – and dangerous’, while the US House Speaker Nancy Pelosi warned that breaching international law would mean ‘absolutely no chance of a US-UK trade agreement’.

There are clear questions over whether such a controversial bill – whose Commons second reading is on Monday – can secure parliamentary approval. Specifically will it, as some suggest, be blocked by the House of Lords? A prior question is whether these provisions will make it through the House of Commons. Despite Johnson’s majority, Conservative dissent is unusually intense. This is unsurprising since, as many have recently quoted, that most iconic of Conservative prime ministers Margaret Thatcher consistently emphasised respect for the rule of law as a core Conservative value.

There is actually a prior question even to this, regarding whether the Commons will actually be asked to approve the offending clauses. In parliament the ‘law of anticipated reactions’ generally applies: sensible governments facing a likely Commons defeat will retreat on legislation if they can. When Charles Walker, vice-chair of the backbench 1922 Committee, was asked whether Conservative MPs would vote against the bill (21:18), he responded ‘I doubt we are to get to the stage where we are asked’. This implied that the Prime Minister would hear the drumbeats, and back down.

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