The Johnson government’s constitutional reform agenda: prospects and challenges

thumbnail_20190802_092917.jpgThe Conservative Party’s manifesto for the 2019 general election included a commitment to set up a Constitution, Democracy and Rights Commission (as discussed previously on this blog by Meg Russell and Alan Renwick) and engage in a wider programme of constitutional reform. In February, the Unit hosted an event to discuss the new government’s constitutional reform agenda: Sam Anderson summarises the main contributions. 

Page 48 of the Conservative manifesto for the 2019 general election committed to a wide range of constitutional reform proposals – including repeal of the Fixed-term Parliaments Act (FTPA), an ‘update’ of the Human Rights Act (HRA), and the creation of a ‘Constitution Democracy and Rights Commission’ to examine broader aspects of the constitution. On 4 February, the Constitution Unit held an event to discuss the implementation of this agenda, entitled ‘The Johnson government’s constitutional reform agenda: prospects and challenges. The panel consisted of two Conservatives: Lord Andrew Dunlop, a member of the House of Lords Constitution Committee and former Parliamentary Undersecretary of State for Scotland and Northern Ireland; and Chris White, a former Special Adviser to William Hague, Andrew Lansley and Patrick McLoughlin. Professor Meg Russell, Director of the Constitution Unit, chaired the event. The following is a summary of the main contributions. 

Lord Dunlop

Lord Dunlop suggested that the key question for the new government is what ‘taking back control’ means in constitutional terms. The years since the Scottish Independence referendum in 2014 have been incredibly rich for those interested in the constitution. We have seen a deadlocked parliament, an arguably ‘activist’ judiciary, and fracturing Union, whilst foundational concepts like parliamentary sovereignty, the separation of powers, and the rule of law have come under scrutiny. It would be wrong, however, to see the government’s manifesto commitments as simply a direct response to the political and constitutional crisis of last autumn. Brexit placed a number of areas of the constitution under strain, but for Dunlop, it is the long-term context that is key to explaining the proposals in the manifesto. In his opinion, the proposals are not about ‘settling scores’.

For a number of years, EU membership, the devolution settlements and the HRA have all to varying extents limited parliament’s law-making powers. For example, Lord Neuberger, former President of the Supreme Court, has pointed out the profound changes that the HRA has brought to the role of judges in relation to interpretation of statute law, and retired Supreme Court Justice Lord Sumption’s recent Reith Lectures have contributed to a long-running debate about the proper role of judges in a democracy. In Lord Dunlop’s view, the proposals on page 48 of the manifesto reflect the fact that Brexit has put additional pressure on an already strained constitution, and should therefore prompt us to consider whether the constitution is operating as it should.  Continue reading

Labour’s ‘motion for a return’: what and why?

Opposition days have become a source of controversy in the early months of the 2017 parliament, with government MPs repeatedly abstaining on Labour motions. Such motions are usually non-binding. However, last week Labour attempted a different approach, tabling what is called a ‘motion for a return’. Andrew Defty explains what happened.

An opposition day debate last Wednesday saw the Labour Party deploy an obscure piece of parliamentary procedure which may force the government into releasing its Brexit impact studies. By means of a little-known procedure called a motion for a return, Labour transformed a non-binding opposition day motion into a binding resolution of the House. Labour’s approach caused some confusion in the House of Commons and had parliamentary observers reaching for a copy of Erskine May in order to determine what exactly had happened and what it meant. This post examines the background to Labour’s parliamentary trap and the implications for the government.

The government’s approach to opposition days

The background to what happened on Wednesday lies in the government’s approach to opposition day debates in this parliament. Opposition days provide a rare opportunity for opposition parties to set the parliamentary agenda. There are 20 opposition days in each parliamentary session. These are usually divided between opposition parties, in the last session Labour had 17 of these while three were allocated to the SNP. Each day is then often divided in two to allow for more subjects to be debated. On Wednesday last week, Labour tabled two motions for discussion, one dealing with armed forces pay and the other on the release of the Brexit impact studies.

Opposition days provide an opportunity for opposition parties to table a motion on a subject they consider to be important. Government ministers must come to the House and respond to the motion, speaking at the beginning and end of the debate. The government may also table an amendment in an attempt to overturn the motion, usually by changing its meaning. There is usually then a vote. Governments with a majority can usually be assured of defeating an opposition day motion, but even if a government is defeated, opposition day motions are non-binding and the government is not required to respond or make any policy changes as a result.

In the current parliamentary session the government has decided to adopt a strategy of not contesting opposition day motions. Although ministers come to the chamber to respond and Conservative MPs participate in opposition day debates, Conservative MPs, presumably under instruction from the Whips, have not been voting against the opposition motion. The reasons for this are not entirely clear, but are almost certainly a consequence of governing without a majority. It certainly saves the government from going to the trouble of marshalling its MPs into the chamber for a non-binding vote which they are likely to lose anyway. It may also be designed to ensure that Labour’s victory in such votes is somewhat pyrrhic. This point was made by the Conservative MP, Peter Bone, following a government defeat on a recent opposition day motion in which Conservative MPs abstained, when he claimed that although the opposition had won the vote, the Conservatives could not be said to have lost.

This strategy of abstaining in votes on opposition day motions has, however, caused some consternation in the chamber of the House of Commons. Following a government defeat on an opposition day motion on universal credit on 18 October, there was criticism from both sides of the House at the government’s decision not to contest the vote in order to enable it to ignore the outcome. The Conservative MP, Sir Edward Leigh, complained that the government’s approach risked reducing the chamber to the level of a ‘university debating society’, adding, ‘what is the point of the House of Commons if we just express opinions for the sake of it? Surely when we vote, it should have some effect.’ The Speaker was also particularly exercised by the government’s apparent neglect of Parliament, noting that, ‘it is blindingly obvious that this is an unusual situation about which there is strong opinion’ and that it would be ‘respectful to the House’ if a minister were to come to the House and explain the government’s thinking.

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