Taking back control? Initial thoughts on the Great Repeal Bill white paper

In the newly published Great Repeal Bill white paper, the government makes much of the theme ‘taking back control’. But the paper’s content does little to alleviate the fear that it is the executive, not parliament, that will benefit from the Great Repeal Bill process. The Hansard Society’s Ruth Fox has five initial questions raised by the white paper.

1/ When will the parliamentary votes on any Brexit deal be held?

The white paper seems to reveal confusion in the government’s position regarding the timing of the votes that it has promised both chambers of parliament on the Brexit deal. In the Prime Minister’s Lancaster House speech and at the start of the EU (Notification of Withdrawal) Bill second reading debate on 31 January the government said that the votes would be held before the deal ‘comes into force’. By the second day of the bill’s committee stage on 7 February, the government said that it would bring forward a motion to approve the deal ‘before it is concluded’. In the Prime Minister’s statement yesterday and her foreword to the white paper today, she reverted to the original ‘before it comes into force’ position. But paragraph 1.19 of the white paper reintroduces ‘before it is concluded’. This may be carelessness, but the two phrases could mean very different things. Parliament now needs urgently to clarify with the government when exactly in the process it plans to put any final Brexit deal to the vote.

2/ Is the government’s description of the delegated legislation process accurate?

On page 23 of the white paper, the government states that parliamentary procedures allow parliament to scrutinise as many or as few statutory instruments as it sees fit, and notes that parliament can and regularly does both debate and vote on secondary legislation.

What the white paper omits to mention, however, is that secondary legislation subject to the negative scrutiny procedure (the majority of this type of legislation) can only be debated if an MP ‘prays’ against it via an Early Day Motion (EDM). Even then, whether it is debated lies in the hands of the government, not parliament. Paragraph 3.21 states that under the negative procedure members of either chamber can ‘require’ a debate and if necessary a vote. In fact, they can ‘request’ these, but they cannot ‘require’ them. The government controls the parliamentary timetable in the House of Commons, and it must therefore agree to grant the time for any debate. In the last parliamentary session, MPs debated just 3 per cent of the 585 negative instruments laid before them. And although the Leader of the Opposition and his front bench colleagues tabled 12 prayer motions for a debate, just five were granted.

Sometimes the government doesn’t prevent a debate but runs down the clock and builds in delays that minimise the ability of MPs to revoke a regulation. In the last week alone, the opposition had to secure an emergency debate under Standing Order 24 in order to debate the new Personal Independence Payment Regulations. 179 MPs from eight different parties prayed against the SI via an EDM, but the government only scheduled a debate for 19 April, 16 days after the ‘praying against’ period would have expired. This makes revocation difficult. The emergency debate was a means to air the issues before the annulment period came to an end, but it had no force, as there was no substantive vote on the regulations.

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Brexit at Westminster: can parliament play a meaningful role?

On March 13 the Constitution Unit hosted a seminar on Brexit at Westminster, exploring the role parliament has played in the lead up to the triggering of Article 50 and that it might play in the forthcoming negotiations. The panel consisted of Hilary Benn, Chair of the House of Commons Exiting the EU Committee; Arnold Ridout, Counsel for European Legislation at the House of Commons; and Baroness (Kishwer) Falkner, Liberal Democrat peer and Chair of the Financial Affairs Sub-Committee of the House of Lords EU Committee. Ascher Nathan reports.

Introducing this seminar on Brexit at Westminster, Constitution Unit Director Meg Russell remarked on the perfect timing: the Article 50 Bill would have its final votes that evening. Despite earlier concerns that parliament would be shut out from any influence over Brexit it has played a central role in the lead up to the triggering of Article 50 through debates, questions, the work of select committees and, following the judgement in the Miller case, the passage of the Article 50 Bill. The next big piece of legislation will be the ‘Great Repeal Bill’. Thus, the answer to the question of whether parliament can play a meaningful role in Brexit should be considered as a resounding ‘yes’ – it has already begun to do so. And yet if the Miller case and subsequent events have been a reminder about the role parliament can play, questions still remain about exactly how it will influence debates going forward.

The three speakers each brought a different perspective. Hilary Benn, Labour MP for Leeds Central, has served as a cabinet and shadow cabinet minister and is now Chair of the House of Commons Exiting the EU Committee. Arnold Ridout is Counsel for European Legislation at the House of Commons, and legal adviser on EU matters to the Commons select committees. Baroness (Kishwer) Falkner, a Liberal Democrat peer, sits on the Lords EU Committee and chairs its Financial Affairs Sub-Committee.

Hilary Benn

Hilary Benn explained that the Exiting the EU Committee was a mixed group of Leavers and Remainers and thus his role as chair was to establish consensus and direct their work in a constructive manner. In what he described as the most complex trade negotiations since the end of World War II, with the Great Repeal Bill to be an ‘enormously daunting task for any government,’ Benn pledged that parliament would ‘not be a bystander’ and intended instead to be a key participant in the policy process. Fundamentally, he challenged the government claim that persistent parliamentary involvement in the negotiations would undermine ministers’ position and lead to bad deals, noting Nick Clegg’s comment that the government’s position implied that only dictatorships were in a position to make treaties.

For Benn, the complexity of Brexit was a great challenge. He talked at length of numerous examples of areas where exiting the EU would prove difficult: passporting for financial services; regulation of medicines (where pharmaceutical companies will seek approval in the largest markets first) resulting in UK patients accessing them later; the regulation of data handling between states. Whilst this is a huge challenge for government, it is equally difficult for the Brexit select committee to address in the limited time available, as well as challenging for the EU. Benn agreed with the government’s position in favouring parallel negotiations for the divorce settlement and the new framework because the eighteen-month window given by Michel Barnier, chief EU negotiator, is so tight. Benn thinks it will be ‘impossible’ to agree a comprehensive trade negotiation in the time available and so called for a transitional agreement to be drafted.

Finally, he discussed the Great Repeal Bill, and the nature of the detail that should be scrutinised. He called for openness by government on both the negotiations regarding transitional arrangements, and the divorce settlement itself (whilst anticipating that much of this information may be gleaned through the ‘leakiness’ of Brussels). He wanted to see a white paper on the Great Repeal Bill, and information on how subsequent legislation will be formulated: will it largely be secondary legislation, authorised by Henry VIII clauses? Benn was concerned by the fact that so far government had had to be ‘pushed and cajoled’ into understanding that parliament would not be bystander: ‘We are not a string, we are very attached to our democracy … and we intend to do our job.’

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Brexit presents parliament with daunting challenges but steps are being taken to help it meet them

Brexit presents parliament with daunting challenges, both politically and procedurally. In this post Arnold Ridout, Counsel for European Legislation at the House of Commons, highlights some of these and explains what steps are being taken to held ensure that parliament performs its role effectively. The post is adapted from a talk he gave at a Constitution Unit seminar on ‘Brexit at Westminster’, held on 13 March.

As Counsel for European Legislation in the House of Commons I can be called upon to assist the House or any of its select committees on EU law matters. I have a formal role with the European Scrutiny Committee and the Committee for Exiting the EU, both of which have standing orders explicitly providing for assistance to be given by Speaker’s Counsel. For this purpose I generally represent her.

Uncertainty

I do not know if it is fair to say that parliament as an institution was as ready for the referendum result as the government was. There was a good deal of uncertainty at that time as to the very basics, such as the Brexit process itself and even more as to what role parliament would play. In some ways that might be regarded as an advantage; by leaving a clear field on which parliament could put down its markers, and influence at an early stage the formulation of the process and the policy. On the other hand it created the risk of lack of focus or focus on the wrong issues. In particular, it was unclear what tools were available to parliament to exert its influence. This remains the case to a certain extent.

The government has now committed to putting ‘the final deal that is agreed between the UK and the EU to a vote in both Houses of Parliament’. This is important as having a final say on the outcome could give parliament a real handle on the negotiations. However, if the Article 50 notice is not revocable, or revoked, then the choice for parliament looks like ‘deal or no deal’. Five eminent lawyers disagree and have gone as far as suggesting not only that the Article 50 notice is revocable, but that a further act of parliament is required to either agree the deal or authorise the UK’s departure from the EU without any deal. If correct it means that parliament has a further, and unilateral, chance to decide whether the UK leaves the EU or not even after the Article 50 notice has been served.

The government has committed to ensuring ‘that the UK Parliament receives at least as much information as that received by members of the European Parliament.’ We do not yet know with certainty what that entails, and in particular whether it includes something similar to the arrangement in trade negotiations whereby the European Parliament receives ongoing explanations as to how its view has been put into effect during negotiations.

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What will the Lords do with the Article 50 bill?

Meg-Russell

The bill authorising the Prime Minister to trigger Article 50, enabling the UK to leave the EU, has cleared the Commons. It begins its consideration in the Lords today. In this post Lords expert Meg Russell discusses how the second chamber is likely to treat the bill. She suggests that this illustrates important dynamics between Lords and Commons, which are often disappointingly misunderstood both in the media and inside government.

The European Union (Notification of Withdrawal) Bill is a simple two-clause measure to authorise the government to trigger Article 50 of the Treaty on European Union and thereby begin negotiations on the UK’s exit from the EU. This follows the ‘Leave’ vote in last June’s referendum, followed by the Supreme Court ruling that parliament’s authorisation was required. A previous blog considered the bill’s likely reception in the Commons, where it completed its initial stages on 8 February. Today the bill begins its consideration in the Lords, where it is due a two-day second reading debate, followed by two-day committee stage next week, and a day spent on remaining stages the week after that.

There has been much discussion of how the House of Lords will treat the bill – including wild speculation about possible retribution if peers try to ‘block’ the bill. Much of this fundamentally misunderstands the relationship between the two chambers of parliament, and the constraints within which the Lords always operates. The bill in fact nicely illustrates some of the subtleties of these relationships, and – while unusual in many ways – can serve as a case study of how the dynamics at Westminster work. By setting out how the Lords is likely to respond to the bill, this post seeks to communicate those wider dynamics.

As a starting point, two key features of the Lords are clearly pertinent, and feature prominently in stories about how it might respond to the Article 50 bill. First, the government has no majority in the chamber. As of today the Lords has 805 members, of whom only 252 are Conservatives. Labour has 202 seats, the Liberal Democrats 102, and the independent Crossbenchers – who do not have a whip or vote as a block – 178 (the remainder comprising bishops, smaller parties and other non-aligned members). This obviously, on the face of it, makes things look difficult for the government. Furthermore, the Lords is known to have an innate pro-‘Remain’ majority. The other obvious feature is that the Lords is unelected. This means (as further explored below) that it generally defers to the will of the elected House of Commons. Of course, the Commons also includes an innate pro-‘Remain’ majority. This presented MPs with various representational dilemmas (explored in the previous post) when debating the Article 50 bill. But the great majority concluded that the will of the public as expressed in the referendum must be respected – and hence that the bill should be approved. It passed its second reading by 498 votes to 114, and its third reading by 494 votes to 122. This is the starting point for debates in the Lords.

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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.

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We must address the House of Lords’ size, for the good of parliament

034-lord-speaker

Tomorrow the House of Lords will debate its size, which is widely criticised for having grown by almost 200 since the removal of most hereditary peers in 1999. In this post former Lord Speaker Baroness D’Souza argues that change is urgently required to contain the number of peers, including placing limits on the Prime Minister’s patronage power, in order to maintain both the chamber’s ability to command respect and the wider effectiveness of parliament.

Tomorrow the House of Lords debates a motion ‘that this House believes that its size should be reduced, and methods should be explored by which this could be achieved’. The current membership of the chamber stands at over 800 (and substantially more when those temporarily absent are included). As the Constitution Unit’s work has frequently highlighted, there has been a steep increase in size since the chamber was last substantially reformed by the Blair government in 1999 – of a kind that is frankly unsustainable.

In the decade 1997-2007 a total of 374 new peers were created (i.e. 37.4 per annum). In the six years 2010-16, a further 261 peers entered the House (i.e. 43.5 per annum). Although some peers sadly die each year, and new voluntary retirement provisions were introduced in 2014, the number being appointed by the Prime Minister has far outstripped the number who have departed.

Of course the Lords was far bigger, with over 1,200 members, before the 1999 House of Lords Reform Act which excluded the majority of the hereditary peers from membership. But attendance then was fitful with some peers rarely, if ever, participating. Today with many more younger and active peers attendance it is at an all-time high – for several years now, average daily attendance has very significantly exceeded that  before the 1999 reform.

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Brexit presents an opportunity to move towards a confederal UK

Jim-Gallagher

On the face of it Brexit appears likely to pull Scotland in a direction that it does not want to go. But could Brexit actually create the conditions for a solution that leaves most people happy enough, and does not leave the other side resentful? Jim Gallagher suggests that this is a possibility. The return of powers from Brussels not only to Whitehall, but also the devolved governments, presents an opportunity to move towards a confederal constitution that could satisfy the demands of people in all parts of the Union.

The absence of a coherent strategy for getting the UK out of Europe is becoming increasingly clear. Brexit is construed ever more narrowly as simply a bid for independence, a search for sovereignty (not parliamentary sovereignty, it seems, as parliament will have no say in triggering the negotiations leading to the UK’s departure). This tells us something about referendums as a decision-making device, and points to what a bad idea Brexit as a pretext for another Scottish independence referendum is. But, paradoxically, the government’s post-Brexit destination might just offer the chance of a more constructive resolution for Scottish-UK relations.

It is increasingly clear that Brexit was a nationalist referendum. Both sides would be insulted by the comparison, but Messrs Johnson and Gove spent the campaign singing the same tune as Alex Salmond. Both claimed to be positive, but were essentially negative. They were telling people to vote against a union – European or British. But voting against something is writing a blank cheque for something else. And if you write a blank cheque, somebody else fills it in.

In Whitehall today, the three Brexit ministers can’t agree how to fill that cheque in. That’s hardly surprising, since their pre-referendum promises were inconsistent: we are not going to get the single market without free movement of labour. This shows the first big problem with the referendum as a device. If people vote against something, there is no saying what they will get instead, and when the campaigners aren’t in a position to deliver their promises, the outcome will probably be something the population don’t actually want. Chances are, had it been offered them in terms, a majority of voters would have rejected the Brexit deal we are about to get.

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