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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More than just populism: Renzi, the Italian Senate referendum and the perils of second chamber reform

Roberta Damiani passport-styleMeg-RussellOn 4 December Italians decisively rejected Matteo Renzi’s proposed constitutional reforms, which centred on reforming the Senate – leading to his resignation as Prime Minister. The international media widely reported this as a victory for populism. In this post Roberta Damiani and Meg Russell argue that the referendum result was more complex than that. It demonstrated the perils of referendums on detailed constitutional matters and in particular – with echoes of Nick Clegg’s experience in the UK – of attempted second chamber reform.

Italian ‘perfect’ bicameralism has dodged another bullet. After a long, fragmented, and highly personalised referendum campaign, on 4 December the Italian electorate voted against Prime Minister Matteo Renzi’s constitutional reform by 59 per cent to 41 per cent, on a turnout of 65 per cent. The main elements of the reform would have been to drastically cut the powers of the upper chamber (the Senate), reduce its membership from 315 to 100, and turn it from a directly elected chamber into an indirectly-elected one, comprising representatives of the regions. Vincenzo Scarpetta has previously described what else the reform entailed on this blog.

Opinion polls over the last few months showed a shift towards a No outcome. The latest, published before the two-week ‘electoral silence’, indicated that 54 per cent of respondents would vote against the reform. This time, the polls showed the correct outcome. Prime Minister Matteo Renzi, who had linked the passage of this reform to his government’s survival, resigned the following day. In an emotional speech delivered on the evening of the defeat, he claimed: ‘I wanted to get rid of some seats in Italian politics. I failed, and hence the only seat I can get rid of is my own’.

Many commentators described the possibility of a No victory as the third anti-establishment vote of the year, following the Brexit vote and Donald Trump’s election. The main reason for this interpretation was that Renzi, a little too confident of the merits of his reform, highly personalised the campaign, and bet his political career on it. This naturally meant that his opponents would vote against him, and turned the referendum into a protest vote against the government. Renzi eventually personalised the loss just as much as the campaign: ‘To all my friends from the Yes front I say that you didn’t lose. I lost’, he said in his speech.

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What might an English Parliament look like? The Constitution Unit is consulting on the design options

Jack_SheldonMeg-RussellThe Constitution Unit has recently begun work on a new project examining the design options for an English Parliament. This was once seen as an unrealistic proposal but support has grown in recent years and it therefore now deserves to be taken more seriously. Nonetheless many major questions about what an English Parliament might actually look like remain unaddressed. In this post Jack Sheldon and Meg Russell set these questions out and invite views on them through a consultation that is now open and will close on 27 January 2017.

Calls for an English Parliament have long existed, but frequently been rejected by academics and mainstream politicians. Although a Campaign for an English Parliament was set up in 1998, as the devolved institutions were being established for Scotland, Wales and Northern Ireland, the idea did not get off the ground. A central argument has been that such a parliament, thanks to representing almost 85 per cent of the UK’s population, would, in the words of the 1973 Kilbrandon Commission on the Constitution, result in a Union ‘so unbalanced as to be unworkable’ (para 531). As critics such as Vernon Bogdanor (p. 13) have pointed out, no major existing federation has a component part this dominant, and unbalanced federal systems (e.g. the former USSR and Yugoslavia), have tended to fail. Elites have thus often proposed devolution within England, rather than to England as a whole, as the preferred solution to the ‘English question’, and considered an English Parliament an unrealistic proposal. As the Constitution Unit’s Robert Hazell wrote in 2006, ‘An English Parliament is not seriously on the political agenda, and will never get onto the agenda unless serious politicians begin to espouse it’.

Growing salience of the English question

But various factors have increased the salience of questions around England’s place in the devolution settlement, and the idea of an English Parliament has gained new friends as a result. One factor is the gradually greater powers of the Scottish Parliament and the Welsh Assembly beyond those bestowed in the 1990s – including legislative powers in an increasing number of fields and significant tax-raising powers. This means that a growing amount of business at Westminster concerns England (or sometimes England and Wales) alone. In turn, this brings the famous ‘West Lothian question’, concerning the voting rights of MPs elected from the devolved nations, more to the fore. The Conservative government consequently introduced a form of ‘English votes for English laws’ (EVEL) in 2015, through changes to House of Commons standing orders. But the new arrangements have been rejected by opposition parties, so might not survive a change of government. Furthermore, the version of EVEL that has been introduced does not actually prevent Scottish, Welsh and Northern Irish MPs from vetoing English-only legislation. It is therefore far from clear that this will prove to be a satisfactory long-term solution.

Another contributing factor is growing interest in the future of the Union pre- and post- the 2014 Scottish independence referendum. Various unionist politicians, pundits and other political observers have considered how Scottish demands for greater autonomy may be satisfied within the UK, and federalism is being increasingly discussed. The EU referendum result has led some such as Professor Jim Gallagher (Director-General, Devolution Strategy at the Cabinet Office from 2007–10) to suggest that the devolved nations, whilst remaining within the UK, might each pursue different relationships with the EU post-Brexit. Heavyweight political support for something similar has come from former Prime Minister Gordon Brown and former Shadow Foreign Secretary Douglas Alexander. The threat of a second Scottish independence referendum, announced by First Minister Nicola Sturgeon in the immediate aftermath of the Brexit vote and repeated since, means the government needs to take such proposals seriously. This would clearly require the consequences for England to be addressed.

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We need to talk about our democracy

me 2015 (large)Meg-RussellRecent days have seen ferocious attacks against the roles of both judges and parliamentarians in our democratic system. Alan Renwick and Meg Russell write that this assault is just the latest in a series of signs that the quality of our democracy is under threat. In light of this they argue for concerted efforts to defend that democracy: by pushing back hard against immediate challenges to the rule of law, resisting the lures of populism, and listening to those tempted by populist and anti-political rhetoric.

Thursday’s High Court ruling on Article 50 (assuming it is confirmed by the Supreme Court), means no more than that the government cannot legally begin formal Brexit negotiations without parliament’s consent. The judges did not question the validity of the referendum result or try to block the UK’s withdrawal from the EU – they just clarified the law. Parliament – as demonstrated by many MPs’ reactions – will almost certainly feel politically bound to respect the referendum outcome and authorise the Article 50 trigger.

Yet, as is now well known, the judgement has unleashed a wave of vitriol from parts of the press, from some politicians, and even from certain government ministers. The Daily Mail labelled the judges who delivered the ruling as ‘enemies of the people’. The Telegraph presented the issue as one of ‘judges vs the people’. Nigel Farage talks of a ‘great Brexit betrayal’. The Communities Secretary, Sajid Javid, referred to the case as ‘a clear attempt to frustrate the will of the British people’. Hearing such reactions, many ordinary citizens are understandably outraged by what they perceive as the scheming duplicity of an arrogant governing elite.

This gross overreaction is deeply worrying and potentially dangerous. We tend to presume that the democratic system in the UK is rock solid. Yet the democracy indices produced by the Economist Intelligence Unit and Freedom House have charted declining democratic quality in recent years in many long-standing democratic countries, including Austria, Belgium, and the Netherlands. In the United States, commentators and senior political scientists are greatly troubled by how Donald Trump’s behaviour and rhetoric of rigged elections could weaken the foundations of the democratic system. Democracy faces similar challenges here in the UK too. In light of this, we need to cool the passions and encourage a national conversation about what democracy is and what sustains it.

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Reducing the size of the House of Lords: here’s how to do it

Meg-Russell

The House of Lords has faced increasing criticisms over its size – now well over 800 members – and David Cameron was criticised for his excessive peerage appointments. We now not only have a new Prime Minister, but a new Lord Speaker who has spoken out clearly about the need to reduce the size chamber to below that of the House of Commons. But what are the right mechanisms to achieve this, and to ensure that similar problems do not simply recur? Meg Russell analyses the options.

The growing size of the House of Lords has become increasingly controversial. Under David Cameron’s premiership, membership rose from just over 700 members to well beyond 800 in just six years, and he appointed to the chamber at a faster rate than any other prime minister since life peerages began (see page 13 here for figures to 2015). Both the Lords’ size and rate of appointments have frequently attracted fierce press criticism. Public figures expressing concern in recent months have included the Chair of the Committee on Standards in Public Life, Lord Bew, and the outgoing Lord Speaker, Baroness D’Souza.

Just in case Prime Minister Theresa May was in doubt about the strength of feeling on this issue, the incoming Lord Speaker Lord (Norman) Fowler began his term by strongly speaking out for change. Fowler was formerly a cabinet minister under Margaret Thatcher, and party chairman under John Major, so has significant gravitas in Conservative circles. In a BBC interview on 16 September he suggested ‘that by the next election, [the Lords] should be at a number that is just less than the House of Commons’, emphasising how the current situation is damaging to parliament’s reputation. A particularly sensitive contextual issue is that the Commons is itself due to shrink in 2020, from 650 MPs to 600, under the government’s proposed boundary changes. In an interview for the House Magazine (reproduced on Politics Home) Fowler commented that ‘I don’t think that we can justify a situation where you have over 800 peers at the same time as you’re bringing down the Commons to 600 MPs’. Conservative chair of the House of Commons Procedure Committee Charles Walker has gone further, suggesting that getting the Lords below 600 should be made a condition for voting the boundary changes through. A cross-party group of peers is pressing for the Lords to vote on the principle of being no larger than the Commons in the near future (notably the UK is the only bicameral country in the world where the second chamber is larger than the first). Conservative chair of the Public Administration and Constitutional Affairs Committee, Bernard Jenkin, has meanwhile asked his committee to launch an inquiry into Lords numbers and appointments.

So this appears to be a reform whose time has come. But the key question is how best to reduce from 800+ members to 600. To succeed, any such reduction must be both sustainable and seen to be fair. Here I argue that this requires four interconnected things: a large number of departures before 2020, a long-term cap on the size of the House, limitations on future appointments, and an agreed principle of balance between the parties (and other groups). Without all four, any attempted reform is doomed to fail.

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Parting shots from the Lord Speaker: Baroness D’Souza reflects on the House of Lords and its future

raffaella-breeze-300x300Jack_Sheldon

On Wednesday 20 July the Constitution Unit and the House of Lords authorities hosted a special event at which Baroness D’Souza reflected on her five years as Lord Speaker in conversation with Professor Meg Russell. The conversation covered the highs and lows of her tenure, as well as the issues of the size, composition and reputation of the House. Raffaella Breeze and Jack Sheldon report on the event.

At an event held on 20 July, organised by the Constitution Unit and the House of Lords authorities, the outgoing Lord Speaker Baroness D’Souza reflected on the highs and lows of her five years in the role in conversation with Professor Meg Russell, Director of the Constitution Unit. Baroness D’Souza also used the opportunity to address the pressing issues of the size and reputation of the House of Lords, indicating her own preferences for a cap on the size of the House and restrictions on Prime Ministerial patronage.

Baroness D’Souza is the second peer to hold the position of Lord Speaker, established under the Constitutional Reform Act 2005. Both Baroness Hayman, the inaugural holder of the office, and Lord Fowler, the former Conservative cabinet minister who will take on the role in September, were also present at the event. Baroness D’Souza recalled her objectives when she took office in 2011: to guard the reputation of the House, to expand its outreach programme outside of the UK, and to strengthen the relationship with the House of Commons. If Baroness Hayman’s role had been to create the position, hers was to develop and consolidate it.

The growth of the international outreach programme has been a particular feature of Baroness D’Souza’s tenure. She emphasised the vital importance of building institutional links with other parliaments, for example through exchanges of officials with parliaments in developing democracies, and opening up second channels of communication with countries where bilateral relations have gone sour, such as Russia and Taiwan. Baroness D’Souza spoke about how the international outreach programme had allowed her to pursue some of her other interests, such as promoting the role of women in politics. As Lord Speaker she had also pressed for more efficient, focused meetings of organisations such as the Inter-Parliamentary Union and Commonwealth Parliamentary Association.

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