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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Boris Johnson and parliament: an unhappy tale in 13 acts

meg_russell_2000x2500.jpgParliament returns from its summer break today. During Boris Johnson’s 13 months in office as Prime Minister his relationship with parliament has often been rocky. In this post, Unit Director Meg Russell reviews 13 episodes during these 13 months which illustrate Johnson’s difficult relationship with parliament. His Number 10 has often resisted parliamentary oversight, and faced down significant parliamentary opposition – including from his own backbenchers. With growing indications of backbench discontent, she explores the dangers of this situation.

As the Commons reassembles today, it’s a good moment to reflect on the relationship between Boris Johnson’s government and parliament so far. Johnson has now held office for just over a year, and rumours are emerging of significant discontent on the Conservative backbenches. From the outset, Johnson’s relationship with parliament has been beset with controversy. As he enters his second parliamentary year, what have been the key flashpoints, and what do they add up to collectively?

This post looks back at 13 episodes in the past 13 months, before reflecting on what they teach us, and what the future may hold. It suggests that while existing flashpoints have resulted from Number 10’s bold assertions of executive power, there are risks for Johnson that the tables could soon start to be turned.

1. The first day: two hours of scrutiny before recess

Boris Johnson became Prime Minister on the afternoon of 24 July 2019, following his victory in the Conservative leadership contest. On that day, Theresa May took her final Prime Minister’s Questions. Johnson thus had just one day to face parliament, which was about to break for its summer recess. The hot topic was Brexit; May had been forced out after failing to gain adequate support from her own MPs for her Brexit deal, which was defeated three times in the Commons between January and March. Johnson had been among those voting against it. The big question was how he could succeed where Theresa May had failed. On 25 July there was a brief potential window for MPs to quiz him on his Brexit strategy. But he chose instead to make a far more general statement on ‘priorities for government’. After two hours of questions ranging across all policy topics, the Commons moved to adjourn until September. An attempt by MPs to delay adjournment had failed, as did a later attempt to recall parliament over the summer to discuss progress on Brexit. Recall is impossible without the agreement of the government. Continue reading

Boris Johnson’s 36 new peerages make the need to constrain prime ministerial appointments to the House of Lords clearer than ever

meg_russell_2000x2500.jpgBoris Johnson’s long-awaited list of new peerage appointments was published today, and includes 36 names. Instantly, by appointing such a large number of new members to the Lords, Johnson has undone years of progress in trying to manage the size of the chamber down – returning it to over 800 members. Here, Meg Russell, a leading academic expert on the Lords and adviser to two different parliamentary committees on the chamber’s size, analyses the numbers – showing the detrimental effects on both the chamber’s overall membership and its party balance. She argues that Johnson’s new peerages make it clearer than ever that constraints must be placed on the Prime Minister’s power to appoint to the Lords.

News reports about Boris Johnson’s first major round of Lords appointments have focused largely on personalities – the appointment of cricketer Ian Botham, the return to the fold of Conservative grandees such as Ken Clarke and Philip Hammond, who Johnson stripped of the party whip last year, and his reward of former Labour Brexiteers. But while some of these names may be notable, the bigger and more important issue is how Johnson’s new appointments will affect the Lords as a parliamentary chamber, and how they show up – yet again, and powerfully – the problems with the largely unregulated appointment process.

It is remarkable that in 2020 there are still no enforceable constraints on how many peers a Prime Minister can appoint to the second chamber of the UK legislature. Formally appointments are made by the Queen, but convention requires her to act on prime ministerial advice. The Prime Minister can choose when to appoint, how many to appoint, and what the party balance is among new members. A House of Lords Appointments Commission (HOLAC) was created in 2000, but has very limited power. It merely vets the Prime Minister’s proposed nominees for propriety (e.g. ensuring that their tax affairs are in order), and recommends an occasional handful of names for appointment as independent members. It can do nothing to police the numbers, or even the broader suitability of the PM’s own appointees. In theory, a Prime Minister could simply appoint hundreds of members of their own party (indeed, during the Brexit debates there were threats to do so both from the now Commons Leader Jacob Rees-Mogg and from Johnson himself). Appointees could even all be personal friends of the Prime Minister. The sole constraint is HOLAC’s propriety check (which is rumoured to have angered Johnson by weeding out some of his nominees) and any fear of media or public backlash. This unregulated patronage is one of the last vestiges of pure prime ministerial ‘prerogative’ power. Following last year’s Supreme Court case, even the previously unregulated power to prorogue parliament now exists within some legal constraints.

Aside from general concerns about patronage, there are two main interconnected problems caused by unregulated appointments on the House of Lords. First, the ever growing size of the chamber. Second, the lack of any rational basis for its party balance.  Continue reading

How has the House of Lords adapted to the coronavirus crisis?

beamish.jpg (1)Since the passage of the Coronavirus Act 2020 and the UK ‘lockdown’, there has been much debate on this blog and elsewhere about how the House of Commons should function during a period of ‘shielding’ and ‘social distancing’. Little attention has been paid, by contrast, to the procedures and practices adopted by the House of Lords. As David Beamish explains, the Commons has tried to return to ‘normality’, whereas the Lords has embraced hybrid proceedings and remote voting in a way that may leave it irrevocably altered.

On 9 March the House of Commons Commission and House of Lords Commission issued a short joint statement following a meeting ‘to discuss Parliament’s response to Coronavirus’. On 11 March the World Health Organization declared a pandemic, and on 13 March the Speakers of the two Houses, Lindsay Hoyle and Lord (Norman) Fowler, sent a joint letter to all members about restrictions on parliamentary travel and visitors to the parliamentary estate in order to reduce the risk of infection from COVID-19. They sent another joint letter on 17 March, announcing more stringent restrictions on access to the estate. Since then, however, the approaches taken by the two Houses have diverged significantly. The Commons initially introduced hybrid proceedings in April, while the Lords introduced a mix of virtual-only and physical-only proceedings, subsequently moving to a hybrid model only this month – just as the Commons ended its own hybrid arrangements. David Natzler’s blog post of 13 May set out what the House of Commons had done to enable MPs to operate remotely, and the dismantling of those arrangements has since caused significant controversy. This post looks at what has been happening in the House of Lords, which has attracted far less public attention. As things stand, the Lords seems to have now instituted the very kinds of proceedings that many MPs are pressing to see reinstated.

The Lord Speaker works from home

On 19 March the 82-year-old Lord Speaker made a personal statement, announcing that he would ‘withdraw from the House for the time being’, and that he would be ‘working from home’ – with his Woolsack duties to be carried out by his deputies.

The average age of the Speaker and his 23 deputies was at that point 76, with only four aged under 70. So it was unsurprising that on 23 March the House agreed to a motion that ‘until 21 July 2020, and notwithstanding the normal practice of the House, any member of the House may perform the duties of a Deputy Chairman without further motion’. Five additional members took on this role, and on 21 April were formally appointed, at once reducing the average age of the panel by over three years.

Initial restrictions on business in the chamber

On Thursday 25 March, before the House adjourned for an extended Easter recess (which had been due to start at the close of business on 1 April), it agreed to a business motion restricting until 21 May (the start of the Whitsun recess) the kinds of business which could be taken: there would be no Private Members’ Bills, balloted debates or Questions for Short Debate. In moving this motion the Leader of the House (Baroness Evans of Bowes Park) announced that for the first three weeks after the return of the House on 21 April it would sit only on Tuesdays, Wednesdays and Thursdays. On Tuesdays it would meet at 1pm (instead of 2.30pm) and on Wednesdays at 11am (instead of 3pm); Thursday sittings would begin at 11am as usual. She also announced ‘that a working group of senior officials from both Houses and the Parliamentary Digital Service has been set up to develop effective remote collaboration and videoconferencing’.

When the House returned at 1pm on Tuesday 21 April, the scene in the chamber was strikingly different from normal, with only about a dozen ‘socially distanced’ members physically present. The first business was the introduction of two new life peers, Lord Grimstone of Boscobel and Lord Greenhalgh, who had quietly been appointed ministers in March. They did not wear robes and did not have the usual two supporters. Continue reading

Can Dominic Cummings defy the political laws of gravity?

meg_russell_2000x2500.jpgRecent news has been dominated by Dominic Cummings’ lockdown trip to Durham. As a serial rule-breaker, he seems intent on flouting the maxim that ‘when the adviser becomes the story, the adviser must go’. But with MPs returning today, other fundamental political rules may not be so easily broken, writes Meg Russell. All Prime Ministers depend on their backbenchers for support and, with Conservative MPs in open revolt over Cummings, Johnson’s backing for him may yet become untenable. In the Westminster system MPs are ultimately in charge, and there are ways in which they could assert their position.

The Prime Minister’s adviser Dominic Cummings doesn’t like to follow the rules. That’s not necessarily a statement on his lockdown-breaking trip to Durham – disdain for established rules, and specifically for conventional wisdom that can’t be directly enforced, is what Cummings has long been known for. For some, it’s seen as part of his ‘genius’. From flying a giant inflatable white elephant over the north-east during a referendum that destroyed Labour’s plans for English regional devolution, to the audacious ‘£350 million a week’ for the NHS on the Vote Leave battlebus, to the long-planned ‘people versus parliament’ election of 2019, his boundary-stretching has often proved a winning formula, and delivered for Boris Johnson.

Cummings has long shown particular disdain for traditional political institutions, and their old ways of doing things. He’s well-known for wanting to pursue radical reform of the civil service. Conservative Brexiteer MP Steve Baker, who was among the first to call for him to quit, credits Cummings with Johnson’s attempt to prorogue parliament for five weeks, which was overturned in the Supreme Court. That move, like several others associated with Cummings, indicated his view that conventions, or the ‘accepted way of doing things’ count for nothing, while all that matters is the letter of the law. Other examples include suggestions to ‘pack’ the House of Lords with hundreds more Brexit-supporting peers, or to advise the Queen not to sign a rebel bill into law. Indeed ‘Downing Street sources’ went even further late last year, suggesting that Johnson might refuse to abide by a law passed by parliament. Continue reading

Coronavirus and the Commons: how the hybrid parliament has enabled MPs to operate remotely

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It has now been three weeks since the House of Commons agreed to operate on a hybrid basis, with many MPs contributing remotely and the Commons holding its first remote votes. Former Commons clerk David Natzler assesses how the virtual parliament has been operating, and asks if and when the Commons will return to its pre-hybrid state.

The three weeks since the return of parliament from the Easter break have seen the rapid emergence of a virtual parliament, but asymmetrically between the two houses. The Lords has followed a twin track: ordinary chamber proceedings whenever a decision of the House is required, and ‘Virtual Proceedings’ for questions, statements and debates where participation is restricted to those peers not in the chamber. In separate orders agreed on 21 and 22 April the Commons decided that both scrutiny (questioning) and substantive (decisive) proceedings would be ‘hybrid’, meaning that members could take part whether in the chamber or not, and that each group would be treated with strict equality. All categories of business can now at least in theory be dealt with. For example, the report stage of the Agriculture Bill is scheduled for 13 May. On 11 May two pieces of internal business were dealt with: a personal statement from Greg Hands was made remotely, and Conor Burns was suspended from the Commons for seven days, both following reports from the Committee on Standards: evidence that the House has still been able to exercise its powers during these unusual times.

Lists of questioners are compiled and published in advance, on the parliamentary website, indicating whether the member intends to attend in person or remotely. Virtual contributions are denoted in Hansard with a ‘V’ by the speaker’s name. That all is proceeding smoothly is due not only to the staff of the House but also to its political leadership, which has created a broad consensus in a way that seemed unlikely a few weeks ago. The Westminster parliament is now something of a market leader: the senior official overseeing the changes, Matthew Hamlyn, gave evidence on 30 April to the Canadian House of Commons Procedure and House Affairs Committee, along with representatives of other parliaments, on the new arrangements.

Who still attends in the Commons – and why?

The lead minister responsible for the department answering questions,  making a statement or introducing legislation generally, but by no means always, attends. Indeed, the first minister to answer departmental questions, Simon Hart, the Secretary of State for Wales, participated remotely. Junior ministers often attend physically if they have more than one question to answer. The presence in the chamber of the answering minister does give general confidence that their replies will be audible whatever minor gremlins get into Zoom. Most but not all opposition frontbenchers attend in person, although Lisa Nandy and Ellie Reeves both made their frontbench debuts remotely

By now the overwhelming majority of backbenchers participate remotely. A handful of members choose to attend in person, some travelling from far away; but as the new temporary regime has developed the numbers seem to be dropping. In the short debate on a pension enrolment instrument on 4 May there were no participating members physically present. By contrast debates on some specific local or sensitive topics seem to have more physical participants. Mark Garnier said that he had made a 300-mile round trip by car ‘to speak here in person’ on a harrowing case of domestic abuse, during the second reading debate on the Domestic Abuse Bill. Some members may still feel that a 10-minute speech in an important debate carries more weight if delivered in the chamber, while a 30 second question can be posed remotely without loss of impact. That said, Sara Britcliffe made the first virtual maiden speech remotely from Lancashire. But there is no prospect of Lancashire’s proud son in the Speaker’s chair presiding from Chorley. Continue reading