Five key questions about a further Brexit referendum

alan.jfif (1)meg_russell_2000x2500.jpglisa.james.resized.staff.webpage.jpg (1)Proposals for another Brexit referendum will be at the heart of the election campaign and it is therefore important that the viability of politicians’ plans are thoroughly tested. Drawing on recent research, Alan Renwick, Meg Russell and Lisa James here set out five key questions. They suggest that Labour’s plans for a referendum within six months are challenging, though not necessarily impossible. A poll which pitted Boris Johnson’s deal against Remain would be simpler and quicker, avoiding additional negotiation time. This would also have the advantage of enhancing the referendum’s legitimacy among Brexit supporters. 

The parties are finalising their election manifestos, and several will propose a further referendum on Brexit. These policies will come under close scrutiny during the campaign. This post draws on and updates a detailed report published by the Constitution Unit last year. It sets out the possible routes to a further Brexit referendum, the key choices that would need to be made, and the possible consequences of those choices. It finds that a referendum between Boris Johnson’s deal and remaining in the EU would be both the simplest, and the quickest, option.

How would a referendum come about?

The major unknown – and unknowable – factor at this stage is the outcome of the general election. It is impossible to predict post-election parliamentary arithmetic with any confidence, but it will have a material effect on the probability and form of a referendum.

There are three main possibilities. The first is a Conservative majority, under which a referendum is very unlikely to take place. The second is a Conservative minority government, which might accept a confirmatory referendum as the price of passing its Withdrawal Agreement. The third is a Labour-led government: either a majority government, or a minority government supported by smaller pro-referendum parties. Under this scenario, the Labour leadership proposes to negotiate a new deal with the European Union, and to offer a referendum between their deal and Remain. Continue reading

In defence of the Fixed-term Parliaments Act

The Fixed-term Parliaments Act has come in for a lot of criticism of late, but is it as badly designed and drafted as some commentators would have us believe? The House of Lords Constitution Committee recently commenced an inquiry into the effectiveness of the Act to seek answers to this question. Robert Hazell was one of the first witnesses to give oral evidence to the Committee, and in this blog , written with Nabila Roukhamieh-McKinna, he explains the background to the inquiry, and some of the key issues being addressed.

Background

With perfect timing, the House of Lords Constitution Committee announced on 25 July, the day after Boris Johnson became Prime Minister, that they planned to conduct an inquiry into the Fixed-term Parliaments Act 2011 (FTPA). With even more exquisite timing, the Committee held their first evidence session on 4 September, the day that Johnson tried but failed to persuade the House of Commons to vote for an early general election under section 2(1) of the Act. Robert Hazell gave evidence in that first session on 4 September, supported by Nabila Roukhamieh-McKinna.

The FTPA attracted some controversy when it was passed, and contains a provision for a statutory review after ten years. Section 7 requires the Prime Minister to arrange next year for a committee to carry out a review, with a majority of its members being from the House of Commons. The current inquiry can be seen as the Lords gearing up for the statutory review.

The FTPA has been strongly criticised, and blamed for the deadlock in parliament, where the government remains in office but cannot deliver on its flagship policy. This is largely due to the Act’s stipulation that the support of two-thirds of MPs is required for an early dissolution. Formerly, the Prime Minister could make an issue a matter of confidence, such that its defeat would automatically trigger a general election. Professor Vernon Bogdanor laments this undermining of prime ministerial power, arguing that Theresa May was unable to threaten the Commons with dissolution, unlike Edward Heath in 1972 with the European Communities Bill.

Conversely, Sir Bernard Jenkin MP has accused the drafters of the FTPA of strengthening the Prime Minister. He refers specifically to the ambiguity about the 14-day period after the government loses a vote of no confidence, during which there is no requirement for the Prime Minister to resign. Similarly, Catherine Haddon writes that the Act has ‘done little but to frustrate and confuse,’ given its silence on what should happen during the 14 day period. Such criticisms are not new. In a debate in 2014 Sir Edward Leigh MP argued for its repeal, and Lord Grocott and Lord Desai have both introduced bills providing for such an outcome.

This rush to judgement seems premature, with only limited experience so far of the FTPA. It is also insular. Fixed terms tend to be the norm, in Europe and the Westminster world, and there are lessons to be learned from their experience. Robert Hazell’s written submission to the Lords Constitution Committee summarised the main lessons to be learned from overseas, drawing on the Constitution Unit’s detailed report on Fixed Term Parliaments published in 2010. This blog starts with a summary of the arguments for and against fixed terms, before addressing the main concerns raised about the FTPA. Continue reading

The politics of publishing select committee legal advice

f9pJoDDq_400x400 (1)picture.1257.1530012142Cristina.Leston.Bandeira1Parliamentary select committees at Westminster are assisted in their work by teams of impartial parliamentary staff who fulfil a variety of functions. This can include the provision of legal advice by parliamentary lawyers. In recent years, some committees have chosen to publish that legal advice. Drawing on their ongoing research, Ben Yong, Greg Davies and Cristina Leston-Bandeira examine the practice of publishing legal advice, the reasons behind it and the potential implications for the work of committees and their advisers.

In 2017, the House of Lords European Union Subcommittee on Financial Affairs took a highly unusual step. It published the advice provided by the then EU Committee legal adviser, Paul Hardy, as part of its inquiry on Brexit and the EU Budget. Hardy argued Article 50 of the Treaty on European Union allowed the UK ‘to leave the EU without being liable for outstanding financial obligations under the EU budget’ (p.63). The implications of such advice were politically controversial.

But the act of publishing in its entirety the in-house legal advice provided to the committee, and the legal adviser named, also merits serious attention. There is a small but growing trend of select committees at Westminster publishing the legal advice provided to them by the in-house lawyers of parliament (‘parliamentary lawyers’). The trend raises a number of questions: why are Westminster select committees publishing in-house legal advice; what does this tell us about the internal dynamics of select committees; and what are the implications of publishing internal advice for the House and parliament? This is the focus of our latest article, ‘Tacticians, Stewards and Professionals: The Politics of Publishing Select Committee Legal Advice’ (open access from the Journal of Law and Society).

We have been carrying out a bigger project, funded by the Leverhulme Trust, looking at the provision and reception of legal advice to the four legislatures of the UK. We have now interviewed about 75 individuals, of whom approximately 30 work or worked in Westminster.

Why is this happening?

Select committees will sometimes receive legal advice from the in-house legal services of parliament. In the House of Commons, for instance, much of this comes from the Office of Speaker’s Counsel: a small group of lawyers who are permanent, impartial House staff, employed to provide legal support and advice to the Houses of Parliament. ‘Legal advice’ can cover explanation and information to the application of relevant law to a specific set of facts, and any of the various stages in between. We focus on the more formal side of the spectrum. Continue reading

Reducing the size of the House of Lords: two steps forward, two steps back

downloadThere has for some time been an apparent consensus in parliament and government that the House of Lords has too many members, yet recent efforts to effect reform have made little progress. David Beamish explains how an apparent change of government position and the parliamentary tactics of a determined minority have slowed the pace of change.

There has long been concern, both within parliament and outside it, about the number of members of the House of Lords – currently over 780. The prospect of major reform seems remote. However, there have been two strands of activity to try to reduce the numbers: the proposals of the Lord Speaker’s committee on the size of the House (the Burns committee), and a private member’s bill to end by-elections to replace hereditary peers (the Grocott bill).

In November 2017 I wrote a blog post describing the publication of the report of the Burns committee as ‘a real opportunity for progress on reform’. In July 2018 I wrote another blog post on the continuing hereditary peer by-elections in the House, ending with the comment that, although other issues currently dominate the political and parliamentary agenda, ‘there may nevertheless be some prospect of real progress in relation to both the size of the House of Lords and the ending of the hereditary peer by-elections’. Subsequently there was heartening progress on both fronts, but last month saw two reverses. Continue reading