How long an extension to Article 50 does the UK need?

download.001alan.jfif (1) Despite last-minute additions, Theresa May’s Brexit deal has again been heavily defeated in the Commons. Hence, MPs will need to consider an extension of Article 50. Meg Russell and Alan Renwick argue that for any practical purposes – including renegotiating a deal, or holding a referendum or citizens’ assembly to break the Brexit impasse – the extension previously proposed by the Prime Minister is too short. MPs may now want to press a longer extension on the government.

This week is crunch Brexit decision time for parliament. With the official exit day of 29 March just over a fortnight away, the Prime Minister has been defeated for the second time on her deal, despite some last-minute concessions. She has previously promised MPs further votes on two things: the immediate prospect of a ‘no deal’ exit, or requesting an extension to the Article 50 period. Following tonight’s defeat, MPs will be asked tomorrow whether they wish to exit without a deal on 29 March. If that is defeated, as looks very likely, they will be asked on Thursday whether the Prime Minister should return to Brussels requesting a delay to exit day. Such a decision is at the discretion of the EU27, who must unanimously agree.

The Prime Minister originally proposed that if the Commons supported extending Article 50 she would ask for a ‘short, limited extension’, which should go ‘not beyond the end of June’. But while this might buy the UK time, and avoid the immediate risk of a ‘no deal’ exit, would it really be adequate to resolve the situation? When MPs face this question, there are many reasons to believe that they should demand a longer extension, given how little could be achieved within three months.

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Beyond Brexit: Towards a British Constitution

vb_image_70x90Brexit is a major constitutional change. It creates considerable constitutional uncertainty, but also opportunity. It could prove Britain’s constitutional moment. Vernon Bogdanor argues that just as joining the EU fundamentally altered the UK constitution, so Brexit could, by exposing the very nakedness of Britain’s uncodified arrangements, prove a catalyst for a written constitution.

During the period of membership of the European Communities/European Union, the UK was subject to a written or codified constitution, which was entrenched. Brexit is a process rare if not unique in the modern world, involving as it does disengagement from a codified to an uncodified system. It is just possible indeed that Brexit will lead to a codified constitution for the United Kingdom that would bring us into line with virtually every other democracy in the modern world.

At a seminar at King’s College, London shortly after the 2016 EU referendum, Takis Tridimas, a professor of European Law at King’s said that the result represented the most significant constitutional event in the UK since the restoration of the monarchy in 1660, since it showed that on the issue of Europe, the sovereignty of the people trumped the sovereignty of Parliament. Of course, from a legal point of view, the referendum was merely advisory, but the government committed itself to respecting the result and the outcome was seen by the majority of MPs as decisive. Since June 2016, therefore, both government and parliament have been enacting a policy to which they are opposed. That is a situation unprecedented in our long constitutional history. Europe, therefore, has been responsible for the introduction of a new concept into the UK constitution, the sovereignty of the people. On this issue, the people have in effect become a third chamber of Parliament, issuing instructions to the other two. The sovereignty of Parliament is now being constrained not by Brussels, but by the people.

The effects of the European Communities Act on the UK constitution

The main constitutional consequence of our EU membership was to restrict the sovereignty of parliament. Parliamentary sovereignty must be distinguished from national sovereignty, with which it is often confused. National sovereignty is engaged whenever a country signs a treaty. It is not an absolute, it can be pooled or shared with other countries, and it is a matter of political judgement how far it should in fact be shared. But parliamentary sovereignty – the notion that Parliament can enact any law it chooses – is not like that at all. It is an absolute. One either has it or one does not. One can no more be a qualified sovereign than one can be a qualified virgin. Continue reading

Effective and influential: where next for departmental select committees?

220px.Official_portrait_of_Dr_Sarah_Wollaston_crop_2Forty years after the creation of departmental select committees, it is beyond doubt that they have contributed significantly to the scrutiny of government. But could they be doing more? The House of Commons Liaison Committee has established an inquiry to answer this question. Dr Sarah Wollaston explains that this is a necessary task to ensure that committees continue to innovate and perform their crucial functions with the involvement of MPs, experts and the general public.

It is difficult to imagine a House of Commons without its select committees. They are places where MPs can come together and work across party divides, often showing parliament at its best. They are central to the scrutiny of government. They have the authority to question those with influence and power but are also forums where MPs engage with and listen to a range of voices, and provide a platform to those who might otherwise not be heard. Committee work provides an important focus for the working lives of many MPs, who can use them to develop and deploy their own expertise. But in fact this level and intensity of scrutiny of the government and other agencies of the state by parliament is a relatively recent phenomenon.

The departmental select committee system will celebrate its fortieth birthday in June this year. The Liaison Committee, which is made up of all the Chairs of the select committees, sees this anniversary as providing an unmissable opportunity to take stock and reflect on whether select committees are fulfilling their potential, and if not, to find what is stopping them. Do select committees do the right things, with the right people, resources, powers and outputs? What has worked well, and what could they do better?

The 1979 select committee reforms were heralded at the time as the start of a great new era. Norman St John Stevas, then Leader of the House, stated that the Commons was ‘embarking upon a series of changes that could constitute the most important parliamentary reforms of the century’. Although select committees had a long parliamentary history, their use had declined through the first half of the twentieth century. Writing in 1970, Bernard Crick, the political philosopher, noted that the government had resisted establishing a select committee system:

For one thing, Select Committees on matters of public policy have been thoroughly distrusted and disliked by the Whips; despite government majorities on them, they have an awkward tendency to develop cross-bench sentiment, and a shocking habit of regarding the Executive as guilty until it is proved innocent. Continue reading

Could an ‘indicative vote’ break the Brexit logjam?

albert_weale (1)An indicative vote on the government’s Brexit deal has been suggested as a means of determining which of the options available to parliament has the best chance of securing the support of the House of Commons. In this post, Albert Weale examines how an indicative vote process would work, and whether or not it offers a workable solution to what appears to be a parliamentary impasse.

Pressure is growing for an indicative vote in the Commons to break the Brexit logjam. Such a vote would allow MPs to vote on a number of alternatives to the government’s ‘deal’, as laid out in the Withdrawal Agreement announced in November. The purpose of such a vote would be to see whether there was significant support in the Commons for each of the specified alternatives. A similar exercise was tried in 2003 when the then Labour government was seeking support for reform of the House of Lords, and in particular what balance of elected or appointed members a reformed upper chamber should contain. It did not work then, but could it work in the case of Brexit? Answering this question depends on three things: how many options are voted on, how the votes are counted, and the extent to which MPs engage in strategic voting. All three elements interact in complex ways.

To understand the basic logic, consider a simplified version of the various options that are likely to be proposed. With no abstentions, a majority on a motion in the Commons requires 320 votes to pass. In Figure 1, I have shown five possible motions that could be put to an indicative vote. Other things being equal, the more alternatives there are, the harder it is to obtain a majority for any one of them. Continue reading

Strategies for Success: Women’s experiences of selection and election in the UK parliament

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Earlier this month, The Fawcett Society released Strategies for Success, a new report containing research on women’s experiences of selection and election to the UK parliament. Dr Leah Culhane summarises the key findings and argues that political parties must act to reform their internal structures and tackle discrimination head-on if progress is to be made on women’s representation.

It is 100 years since some women first won the vote and approaching 100 years since the first woman was elected to the House of Commons. While progress has been made since then, parliament remains male-dominated; women make up only 32% of all MPs, with significant variation across political parties.

While men are undoubtedly present in greater numbers, the culture of politics, its rules, norms and expectations also continue to reflect a masculinised way of operating. In recent months, heightened attention has been brought to the culture of sexism within parliament, in light of Dame Laura Cox’s report on bullying and harassment and various allegations of sexual misconduct amongst and towards Commons staff. This follows on from previous reports such as Professor Sarah Child’s Good Parliament report, which details the various ways that the infrastructure and culture of the House of Commons has led to an unrepresentative and exclusive parliament.

The new Strategies for Success report makes further inroads into explaining women’s under-representation. The report aimed to revisit the age old question: what enables some people to get through the ‘eye of the needle’ and succeed in getting elected? Consisting of a survey, focus groups and one-to-one interviews with political activists, aspirants, candidates and MPs, it sought to reveal new insights into the journey to political office.

The research finds that while parliament must change, it is political parties and party gatekeepers that play a pivotal role at every stage of the process. Crucially, it shows that women and other traditionally marginalised groups continue to face obstacles at each stage of the political process and that political parties must look inwards and address their own internal cultures, rules and norms, particularly around recruitment and selection. Continue reading

Punch & Judy Politics? The roles and functions of Prime Minister’s Question Time

ruxandra.serbanIn their recently published book, former Labour advisers Ayesha Hazarika and Tom Hamilton explore the backstage machinery behind Prime Minister’s Question Time. Drawing on her PhD research, which focuses on parliamentary mechanisms for holding prime ministers accountable in parliamentary democracies, Ruxandra Serban reflects on how the book informs wider debates in legislative studies.

Prime Minister’s Question Time does not have a particularly good reputation. Designed as a weekly opportunity for MPs to question the Prime Minister, it is criticised for being noisy, excessively theatrical, scripted, and confrontational. But to what extent does it fulfil its role in holding the Prime Minister to account? What other roles does it perform for parliament and for the political system?

As PMQs provides a forum for the head of government to be questioned publicly and routinely by MPs, its implications for politics and for the workings of democracy are very important. In the recently published Punch & Judy Politics: An Insider’s Guide to Prime Minister’s Questions, Ayesha Hazarika and Tom Hamilton offer useful insights into the procedures and practices for holding Prime Ministers accountable. Drawing on interviews with key players at the centre of politics, as well as on their experience as advisers to several Labour Party leaders, the authors expose the machinery behind the weekly duel between party leaders. In what is a thorough and insightful overview of PMQs, they trace the development of the procedure from its introduction in 1961, document the extensive preparation that goes on both in No 10 and in the Leader of the Opposition’s office, and describe the strategies underpinning questions and answers. In providing such a detailed account, the book in part sets out to understand the roles and functions of PMQs, and contributes to a wider conversation in legislative studies about the functions of parliamentary questions, and of parliaments more generally. Continue reading

The executive’s Brexit: the UK Constitution after Miller

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The judgment of the Supreme Court in R (Miller) v Secretary of State for Exiting the European Union required the government to seek parliamentary approval (through legislation) for the triggering of Article 50, which formally started the Brexit process. In this post, Mark Elliott, Jack Williams and Alison Young argue that parliament has failed to capitalise on the court’s decision and that it is the executive, not parliament, that is truly in control of the Brexit process.

Whether you like your Brexit ‘hard’, ‘soft’, or ‘red, white and blue’, one thing is clear – this will be the executive’s Brexit. Despite the Supreme Court decision in Miller handing parliament a golden opportunity to shape Brexit, Theresa May’s government has been in the driving seat, largely unimpeded, ever since the 2016 referendum in favour of leaving the EU. Parliament has consistently been a passenger.

The first pitstop on the executive’s journey to Brexit was the triggering of Article 50. As is by now well known, the government claimed that it already had the power to trigger the process of the UK’s leaving the EU by virtue of its foreign relations prerogative. Indeed, the government’s initial intention was to trigger Article 50 by the end of 2016, necessitating an expedited process in the Miller litigation, leapfrogging the Court of Appeal to ultimately reach the Supreme Court by the end of the year. If one believes that the triggering of Article 50 (in March 2017) was premature, then it is troublesome to imagine what would have happened if, in the absence of the litigation, it had been triggered six months earlier.  

The Supreme Court came down firmly in favour of parliament, ruling that the government would be able to initiate Brexit only if parliament were to empower it to do so, albeit that the UK parliament could lawfully go ahead and authorise the triggering of Article 50 whether the devolved legislatures liked it or not. This was on the basis that the foreign relations prerogative does not extend, by its very nature, to changing or affecting domestic law or rights. At the time, Miller therefore appeared to be of immense political significance because it put parliament so firmly in the Brexit driving seat. However, 18 months on, the picture looks rather different, and the judgment has proven to be far from the final word on the underlying controversies. Continue reading