Parliament and COVID-19: the Coronavirus Bill and beyond

sir_david_natzler.smiling.cropped.3840x1920.jpgThe Coronavirus Bill introduced by the government last week will be debated by parliament in circumstances where it is harder for both Houses to meet, scrutinise and vote than at any time in recent memory. How should parliament respond to both the legislation and the crisis that prompted it? Former Clerk of the Commons David Natzler outlines the key issues facing MPs and peers as they consider how parliament should function in the coming months.

Just as the dust is settling on the first phase of the Brexit marathon, and the Constitution Unit and others are examining the role played by Parliament over the past three years, COVID-19 presents itself wholly unexpectedly as a challenge to all the nation’s institutions. Parliament was settling in for five years of single-party majority government and it looked as if, Brexit deal aside, it would be relatively smooth sailing. Now parliament faces the challenge of fulfilling its role in a COVID-19 environment.

The Coronavirus Bill

The government published its Coronavirus Bill on Thursday 19 March, having already revealed the policy proposals to which it gives effect in its Action Plan (published on 3 March) and a more detailed prospectus (published on 17 March). The bill has 87 clauses and 27 Schedules, totalling 321 pages of legislative text. The Explanatory Notes run to 73 pages, and there is a 31-page long memorandum on the implications for human rights.

Commons scrutiny

The bill is to be debated in the House of Commons on Monday 23 March for a maximum of six hours: up to four hours on second reading and two hours for committee of the whole House and remaining stages. The House decided on 18 March to disapply the EVEL Standing Orders in relation to the bill, so it will be spared the rigmarole of forming a Legislative Grand Committee.

It has been possible to table amendments since the bill was introduced. Four amendments and four new clauses were tabled on the day of its publication, and more may be expected in so-called ‘manuscript’ form on the day. They mainly address the issue of for how long the Act will be in force. The bill establishes that its provisions will apply for two years, with provisions for individual powers to be ‘sunsetted’ earlier or indeed revived if it falls due to a sunset clause. It also provides for a general debate in both Houses after one year. Both the official opposition and a cross-party group are proposing systems of six-monthly debate and renewal only if the House so decides. It is perhaps significant that the Irish parliament last week passed a similar bill and as a result of amendment decided that it should last for one year. This is an area where some change is likely; both the Scottish Government, and independent human rights organisations such as Liberty, have expressed concerns about the sunset and scrutiny provisions as currently drafted. Continue reading

Do we need a written constitution?

image1.000.jpgPrior to the general election, several of the parties’ manifestos called for the creation of a codified constitution for the UK. In December, the Constitution Unit hosted an event to debate the merits and downsides of such an exercise. Harrison Shaylor summarises the discussion.

What did the 2019 Liberal Democrat election manifesto and the Brexit Party’s ‘Contract with the People’ (from the same election) have in common? Both advocate the need for a written constitution in the UK. So too did the Green Party manifesto, and that of the Alliance Party of Northern Ireland. Meg Russell took part in a discussion on a written constitution in The Briefing Room on Radio 4 in September, and on 28 November, the Constitution Unit held its own event entitled ‘Do we need a written constitution?’. Two distinguished law professors – Sionaidh Douglas-Scott of Queen Mary University of London and Nicholas Barber of the University of Oxford – set out the case for and against a written constitution, in a debate chaired by a former Unit Director, Professor Robert Hazell. What follows is a summary of the presentations made by each participant. 

The argument for a written constitution: Sionaidh Douglas-Scott

‘Someone, I haven’t been able to trace whom, once said: Constitution building is a bit like dentistry: there’s never a good time for it; no one does it for fun; but it’s sometimes necessary and, when it’s done right, it prevents greater pain in the future.’

Professor Douglas-Scott explained that a constitution delineates the relationships between the major institutions of state, such as the executive and the legislature, as well as between the state and its citizens. More abstractly, a constitution says something about legitimacy and power. How does the state exercise power? And when is it legitimate for it do so?

The UK is unusual in not having a written constitution, in the sense of not having the fundamental rules of the constitution codified in a single document. It is one of only a few democracies in the world which lacks one, alongside Israel and New Zealand. The reason for this is historical. Since 1688, Britain has not experienced a revolution or regime change – a ‘constitutional moment’ – like the American or the French Revolution, or the withdrawal of colonial rule. Rather, Britain’s constitution has evolved slowly over time under relative stability; it has never been deemed necessary to list the fundamental laws and principles underpinning the country’s polity. As the Constitution Unit website states: ‘What Britain has instead is an accumulation of various statutes, conventions, judicial decisions and treaties which collectively can be referred to as the British Constitution.’

This arrangement, Professor Douglas-Scott argued, is no longer adequate. The current constitution is deficient for three reasons: its lack of clarity; its failure to properly protect fundamental rights; and the inadequacy of the current devolution settlement. Continue reading

Assessing the durability of the Conservative minority government: lessons from New Zealand

Minority government is rare in the UK, but relatively common in many other parliamentary democracies. In this post Jonathan Boston considers the prospects for Theresa May’s government. He draws on the experience in New Zealand, where since becoming the norm in the late 1990s minority governments have proved durable. However, he argues that present circumstances in the UK mean that May’s current government is very unlikely to last a full term.

Minority governments in Britain are relatively rare. But this is not the case in many other parliamentary democracies, especially those with proportional representation voting systems.

During the post-war period, about a third of governments in advanced democracies lacked a parliamentary majority. They were thus dependent on one or more supporting parties, often through a negotiated agreement on matters of confidence and supply. Such agreements vary significantly in policy specificity, consultative arrangements and expected duration.

Minority government in New Zealand can be effective and durable

In New Zealand, there were no post-war minority governments until 1996 when the mixed member proportional (MMP) electoral system was introduced. The impact was immediate and significant: no party has won an overall parliamentary majority since then and during most of these years the party or parties represented in the cabinet lacked a majority.

It has, however, developed some novel governance arrangements to cope with the political exigencies of MMP. In most parliamentary democracies, members of parties supporting a minority government do not hold ministerial office. In New Zealand, by contrast, it is common for only one party to be represented in the cabinet; this party, in turn, is supported by several minor parties, each of which holds a ministerial post outside the cabinet.

Collectively, the government and support parties have a parliamentary majority, but ministers outside the cabinet are not bound by collective cabinet responsibility unless specifically agreed between the parties. There is, in effect, ‘selective collective responsibility’, with ministers able to advance different views publicly on important matters of public policy.

These arrangements have proved both effective and durable: the 1999 Labour-led Government survived three terms in office and the current National-led Government, formed in 2008, is close to completing its third term and will likely retain office after the election in September.

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Draft Constitution for New Zealand proposed in new book

geoffrey-palmer

In a previous blog post former New Zealand Prime Minister Sir Geoffrey Palmer explained why he believes that a single written Constitution for New Zealand is needed. Here, he sets out the key provisions of a draft Constitution included in a new book that he has written with Dr Andrew Butler. Comments on the proposals are now being sought from the general public and it is intended that an amended document will be published in a year’s time.

14359097_1118090968227118_3483734773962979601_nOn 21 September at the New Zealand parliament A Constitution for Aotearoa New Zealand, written by myself and Dr Andrew Butler, was launched by Grant Robertson MP. In the book it is argued that a single written Constitution for New Zealand is needed and a draft is proposed. The effort to create a conversation on these issues flows from the fact that two official reviews of New Zealand’s constitutional arrangements in recent years have produced no change. We think that the absence of a model with which to engage is partly responsible for this situation.

The draft Constitution itself contains 118 articles and the text covers 43 pages. It is called Constitution Aotearoa and is based on ten principles:

  •  Accessibility and certainty
  •  Education
  •  Rule of law
  •  Democratic accountability
  •  Transparency
  •  Protection of the rights of people
  •  A sense of national identify
  •  A New Zealander as Head of State
  •  Protections against the abuse of public power
  •  Recognition that the Constitution belongs to the people

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New Zealand needs a new written Constitution

geoffrey-palmer

The New Zealand Constitution, like that of the United Kingdom, is not written down in one place. In a forthcoming book former New Zealand Prime Minister Sir Geoffrey Palmer and Dr Andrew Butler will argue that this is not good enough and propose their own draft Constitution. In this post Sir Geoffrey Palmer explains why he believes that a single written Constitution for New Zealand is needed and elaborates on some of the detail of what he and Dr Butler are proposing.

The existing New Zealand Constitution derives from the Westminster model. In 1852 the Imperial Parliament enacted the New Zealand Constitution Act 1852. Five years later responsible government was conceded. The 1852 Act lasted until 1986 when New Zealand enacted the Constitution Act 1986. By that time it was reduced to a rump of its former self, with only 12 provisions and these offered few clues on how the New Zealand government actually worked. Nevertheless, over the years on a couple of occasions statutory enactments were held in the courts to be inconsistent with the 1852 Act. The 1986 Act was followed by the New Zealand Bill of Rights Act 1990 that had some influence on the architecture of the United Kingdom’s Human Rights Act 1998. Despite these efforts, most of the New Zealand Constitution, like that of the United Kingdom, is not written down in one place the way most constitutions are.

There have been significant constitutional reforms in New Zealand, beginning with the establishment of the Office of Ombudsman in 1962. Since then the following developments have occurred:

  • The Official Information Act 1982
  • The Constitution Act 1986, which you may think sounds like a Constitution. It sets out the main features of the system. But it is skeletal and does not look like a written Constitution as that term is generally understood
  • The New Zealand Bill of Rights Act 1990
  • Various parliamentary reforms
  • The introduction of the Mixed-member proportional system of electing members of parliament based on the German model
  • Development of measures to recognise the Treaty of Waitangi between Māori and the Crown and to provide for redress of grievances suffered by New Zealand’s indigenous people.

New Zealanders think little about their constitutional arrangements and hardly ever discuss them. There is good reason for this. They cannot find their Constitution. It is not in one place. It is obscure in many respects. The current New Zealand Constitution consists of a hodge-podge of rules, some legally binding, others not. It is formed by a jumble of statutes, some New Zealand ones and some very old English ones; a plethora of obscure conventions, letters patent and manuals, and a raft of decisions of the courts.

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Blowin’ in the wind: a postscript on New Zealand’s flag referendums

Therese-Arseneau

New Zealand recently voted to retain its current flag. Therese Arseneau and Nigel S. Roberts, who examined last year’s first flag plebiscite, now assess aspects of the results of the country’s binding run-off referendum that was held in March.

 

Three months ago we examined the lead-up to, and the results of, the first of two referendums about New Zealand’s flag. In a postal ballot using optional preferential voting, New Zealanders were asked to choose (from among five options) their preferred alternative flag design. Their choice – the Kyle Lockwood black-white-and-blue silver fern flag – was pitted against the current New Zealand flag in a second binding referendum that was held from 3-24 March and was a postal ballot.

Second-flag-referendum-voting-paper-01

The voting paper for the second referendum on the New Zealand flag (click to enlarge)

We ended our article with a prediction of sorts: as political scientists we would be ‘surprised’ if there were to be a vote for change in the second referendum. This prediction, based on reading public opinion polls rather than tea-leaves, was accurate. The status quo prevailed. Just under 57 per cent voted to keep the current flag, and 43 per cent unsuccessfully opted for change.

Just over 2.1 million people (in a country with a total population of only four-and-a-half million) voted in the referendum – a turnout of almost 68 per cent of eligible electors, which was significantly higher than the 49 per cent turnout in the initial indicative referendum. What is more, the ‘informal’ votes in the second referendum constituted a mere 0.2 per cent, in sharp contrast with the 9.7 per cent informal vote in the first referendum, which – as we suggested in our first article – was predominantly a protest vote by people objecting either to the idea of changing the flag or to the process being used.

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New Zealand’s flag referendums: the story so far

Therese-Arseneau

Next month New Zealanders will vote in a postal referendum to decide whether to retain their current flag or switch to a new flag featuring the silver fern symbol. This is the culmination of a lengthy process that has seen more than 10,000 proposed new designs narrowed down first to five and then, through a preliminary referendum late last year, to just one. Therese Arseneau and Nigel S. Roberts discuss the process so far and look ahead to the upcoming ballot.

There has long been debate about New Zealand’s national flag, considered (by some at least) to be confusing and/or inappropriate. It is very similar to the Australian flag, which also has the Union Jack in the top left-hand corner (or canton) and which also depicts the stars of the Southern Cross on the right-hand half of the flag. New Zealand Prime Ministers have been embarrassed on a number of occasions while on official overseas visits to find themselves standing in front of, or being greeted by, Australian and not New Zealand flags.

NZ Aus flags

The current flags of New Zealand (left) and Australia (right)

A growing number of people have argued for a new flag on the grounds of ‘nationhood’. New Zealand is no longer a British colony but is, rather, a proud and independent nation. Because New Zealand is an increasingly multi-cultural, Pacific nation-state, it is claimed that the Union Jack should no longer be a part of the country’s flag. Many in New Zealand were impressed by Canada’s decision in the 1960s to adopt a distinctive new flag that is now widely recognised and praised around the world.

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