The 2016 Queen’s speech and the constitution

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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.

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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.

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Parliament, government and secondary legislation: Lords select committees respond to the Strathclyde Review

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Two House of Lords select committees have this week published reports that are highly critical of the recommendations of the Strathclyde review into the Lords’ powers in relation to secondary legislation, published in December. Mark Elliott summarises the committees’ findings and welcomes calls for a consensual, reflective approach to be taken.

I wrote in December about the Strathclyde Review, which took place at great speed in the autumn against the backdrop of the House of Lords’ refusal to allow the enactment of secondary legislation on tax credits. The Review – set up by the government – recommended stripping the Lords of its power to veto statutory instruments by investing the Commons with statutory authority to override the Lords in the event of opposition to secondary legislation. Two House of Lords select committees – the Constitution Committee and the Delegated Powers and Regulatory Reform Committee – have now published reports that are highly critical of the Strathclyde proposals.

The report of the Constitution Committee

In its report, the Constitution Committee rejects the notion that the tax credits affair amounted to a ‘constitutional crisis’ and says that a ‘single Government defeat … does not seem a sound foundation upon which to base significant and lasting reform’ in this area. Indeed, the committee argues that the Strathclyde Review ended up – as a result of the terms of reference set for it by the Government – asking the ‘wrong questions’ and framing the issues inappropriately. In particular, the committee takes the view that while the Strathclyde Review approaches the matter in terms of the relationship between the two houses of parliament, the underlying, and far more profound, issue concerns the relationship between parliament and the executive:

Delegated legislation is the product of a delegation of power from Parliament to the Government. Parliamentary scrutiny of secondary legislation is the mechanism by which Parliament assures itself that the Government is exercising that delegated authority in an appropriate way, and in a manner which accords with Parliament’s intentions. Yet Parliamentary scrutiny of delegated legislation is less intensive and arguably less effective than its scrutiny of primary legislation. Statutory instruments cannot be amended, so there is little scope or incentive for compromise. Far less time is spent debating delegated legislation than is spent debating primary legislation. And … it is established practice that the House of Lords does not vote down delegated legislation except in exceptional circumstances. The result is that the Government can pass legislative proposals with greater ease and with less scrutiny if it can do so as delegated, rather than primary, legislation. It is in this context that proposals to weaken the powers of the House of Lords should be considered.

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How parliament influences policy: academic and practitioner perspectives

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There is now a large body of academic research demonstrating that the Westminster parliament has considerable policy influence, yet claims that the UK has an executive-dominated political system persist. On 15 March Professor Meg Russell and Professor Philip Cowley, who between them have carried out much of the key research in this area, spoke at a Constitution Unit seminar on the policy impact of parliament along with Sarah Champion MP, who offered an insider perspective. Ruxandra Serban reports.

Public and media discourse is often shaped by a longstanding assumption that the Westminster parliament is weak relative to the executive – but is this really true? A closer look demonstrates that it is a complex and often misunderstood institution. On 15 March the Constitution Unit, in collaboration with the Hansard Society and the Parliament and Constitution Centre of the House of Commons Library, hosted a seminar in parliament with Professor Meg Russell (Director of the Constitution Unit), Professor Philip Cowley (Queen Mary University of London), and Sarah Champion MP, to discuss parliament’s policy impact.

The legislative process, the Lords and select committees

Speaking first, Meg Russell suggested that the constant portrayal of parliament as a weak institution should be a matter for concern, as perpetuating an inaccurate assumption may drive down trust in the political process. The impact of parliament on policy has been a major strand of the Unit’s research in recent years, including extensive work on the legislative process, the House of Lords and select committees.

Tracing amendments in both chambers on 12 bills (2005-2012) revealed that although at first glance government amendments were much more successful than non-government amendments (94 per cent were passed, compared to 0.7 per cent of non-government amendments), in fact 60 per cent of government amendments that made substantive policy change were traceable to parliamentary pressure, mostly through previous non-government amendments. Select committee recommendations can also lead the government to bring forward amendments of their own , notably including the reversal of the Labour government’s manifesto policy on smoking in public places from a partial to a complete ban. These findings are elaborated in an article by Meg Russell, Daniel Gover and Kristina Wollter, recently published in the journal Parliamentary Affairs.

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The Strathclyde recommendations are based on a false premise that there is a convention that the Lords does not reject statutory instruments

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Lord Norton of Louth argues that the Strathclyde Review recommendations are based on a false premise that there is a convention that the Lords does not reject statutory instruments.  Instead of rushing into wider changes the immediate response to October’s tax credits controversy should be to address the inconsistency in the way Commons financial privilege is recognised in relation to SIs. In the longer term there is a case for a wider review of how both houses deal with secondary legislation.

The report produced by Lord Strathclyde is based on two propositions.  First, that there is a convention that the House of Lords does not vote to reject statutory instruments.  Second, that the problem of the vote on 26 October last year, when the House withheld agreement to the Tax Credits Regulations, is one of failure to comply with that convention.  Both propositions are false, the second necessarily so given that the first has no basis in fact.

There is much misunderstanding of what constitutes a convention.  They are non-legal rules that determine a consistent, indeed invariable, pattern of behaviour.  Those who comply with them do so because they accept that they are, as David Feldman has cogently expressed it, right behaviour.

Conventions do not become such by the words of a particular person, be it Viscount Cranborne in 1945 or Lord Sewel in 1998.  They are not created, but develop.  A convention exists once there is an invariable practice.  That is not the same as standard or usual practice.  If one deviates from it, it is not an invariable practice.  Kenneth Wheare distinguished between conventions and usage.  I think it more appropriate to distinguish between invariable and usual practice.

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Reflections on the Strathclyde Review

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Lord Strathclyde’s report into the House of Lords and secondary legislation, published before Christmas, is to be debated in the Lords today. Ruth Fox and Joel Blackwell from the Hansard Society, which last year published a comprehensive study of the secondary legislation system, respond to Strathclyde and argue that his proposals are no way to undertake reform – an independent inquiry into the legislative process is required.

Following the controversial tax credits regulations vote in the House of Lords last October, the Prime Minister asked Lord Strathclyde to conduct a ‘rapid review’ of Statutory Instruments (SIs) to consider ‘how more certainty and clarity could be brought to their passage through Parliament’ and the primacy of the House of Commons assured. The Strathclyde Review was published before Christmas and will be debated in the Lords this afternoon.

Just over a year ago the Hansard Society published the first comprehensive study of the SI system for nearly 80 years, The Devil is in the Detail: Parliament and Delegated Legislation. In responding to Lord Strathclyde’s report we are thus able to draw on three years of research. Since the start of this new parliamentary session we have also begun to track every SI that is subject to parliamentary scrutiny, enabling us to maintain the most comprehensive and up to date monitor of delegated legislation available each week.

This response to the Strathclyde Review is not a comprehensive analysis of every aspect of the report; rather, it focuses on what we consider to be the key elements of concern, which we hope will inform the debate about it in the House of Lords.

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The Strathclyde report: a threat or an opportunity for the Lords?

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Lord Strathclyde’s report into the House of Lords and secondary legislation, commissioned following the row over tax credits, was published yesterday. Meg Russell discusses his proposals and argues that they may present an opportunity for a deal to be struck between the Lords and government – restraint in the use of Lords’ powers in return for restraint in appointments.

The report from Lord Strathclyde into the powers of the House of Lords was published on Thursday. This was precipitated by October’s row between the government and the Lords over tax credits, where the second chamber voted against a piece of ‘secondary legislation’ (which is frequently used to implement the detail of policy, under powers delegated in primary legislation – i.e. bills). Strathclyde was asked to investigate whether the Lords’ powers over such legislation should be reformed. His report, prepared with the support of a civil service secretariat and input from three former senior officials with specialist knowledge of the legislative process, presents three options for limiting the chamber’s powers. These received a very sceptical response from the opposition, and the legislation proposed by Strathclyde to implement his preferred option could prove very difficult to agree. So how reasonable are these proposals, and how much of a threat do they pose to the Lords? Could the government’s desire to make progress on the powers of the chamber instead be turned into an opportunity, to resolve wider issues of Lords reform?

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