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

Pressures to recall parliament over Brexit during the summer seem likely – what if they occur?

meg_russell_2000x2500.jpgIMG_20190723_020219.jpg (1)A new Prime Minister is expected to be appointed tomorrow, the day before MPs break up for the summer recess. With just 14 weeks remaining before the current Article 50 deadline, the Commons is then not due to meet for almost six weeks. This creates some very obvious scrutiny gaps. Meg Russell and Daniel Gover suggest that pressures for a Commons ‘recall’ during the summer recess seem likely, but that this will revive difficult questions about who can, and should be able to, recall MPs.

On Thursday, MPs are due to leave Westminster for the summer recess. Yet, barring mishaps, a new Prime Minister is expected to be installed in Downing Street only the preceding day, making immediate parliamentary scrutiny of the new government’s key decisions all but impossible. An added pressure, of course, comes from the Brexit context. The current Article 50 deadline for the UK to depart the EU is 31 October, but parliament is due to remain closed for around half that time – for almost six weeks initially, until 3 September, followed by another break for the party conferences. During this period, calls for parliamentary scrutiny of the new government – most obviously over Brexit – seem very likely to grow. 

In this post we examine the pressures that may build for a recall of parliament during the summer, and what mechanisms exist for MPs if they do. Crucially, a formal Commons recall can only be initiated by the government – which may push parliamentarians towards innovative solutions. In the longer term, pressures for reform of the recall process may well be revived. 

Why there may be pressures for recall 

Demands for the Commons to be recalled from a recess are not unusual, as discussed below. However, they seem especially probable this year. MPs are set to break up just one day after the new Prime Minister takes office, while the tensions over Brexit and how he intends to handle this (particularly if the winner is Boris Johnson) are running high.

An initial challenge, raised in another recent post on this blog, is whether it will even be possible to know that the new Prime Minister and his government enjoy the confidence of parliament. The first action of a new premier is to appoint a cabinet, followed by junior ministers. Within the 24 hours available to the House of Commons, this process may not be complete. As the Commons’ confidence depends not only on the personality of the Prime Minister, but the personalities and balance of the whole government, this could well be brought into doubt. Additionally, there will be very little time under current plans for parliament to quiz the Prime Minister on his Brexit strategy. A statement on Wednesday afternoon or Thursday is possible, but not assured – and if MPs are dissatisfied there will be very little time to respond. The immediate start to the recess hence already looks problematic, and MPs may depart amidst claims that the new Prime Minister is dodging scrutiny. Continue reading

175 not out: the new edition of Erskine May and eight years of constitutional change

sir_david_natzler.smiling.cropped.3840x1920.jpgIn March, Sir David Natzler retired as Clerk of the Commons after over 40 years in the House. Now, he is the co-editor of Erskine May, the 25th edition of which is the first new edition in eight years, and is freely available to the public: a significant change. Here, Sir David discusses some of the key changes to the text after what can only be described as an eventful eight years for the Commons. 

The years since the last edition of Erskine May in 2011 have been pretty turbulent by any standards. We have had three types – coalition, majority and minority – of government, two general elections, three national referendums and numerous constitutional statutes of real significance. So it was plainly time for a new edition of this timeless work, which is often referred to but rarely read.

The new Erskine May is exciting to me because, as its co-editor, I had the happy task of reading through the chapters as they emerged from the efforts of many of my former colleagues. We all had to ask ourselves: is this a clear and honest account of parliamentary procedure and practice, and if not, how far can we go in recasting it? It is not a new book; but nor is it merely a historical text with minor amendments for the benefit of a modern audience. New content has been added, but nothing has been asserted without due authority, and we also recognise that some assertions of the past are too precious to be excised. Paragraph 21.4 on the rule against reading of speeches is as good an example as any: the principle remains valued by some MPs but it would be idle to pretend that it is rigorously observed in practice. There has to be some wishful thinking.

Who is this edition of Erskine May for? Plainly for practitioners, meaning the occupants of the Chair (such as the Speaker and Deputy Speakers), those who advise them, MPs and officials. But it is not just for them. Recent controversy over decisions by the Speaker on procedural issues related to Brexit and threats of early or extended prorogation by some candidates for leadership of the Conservative Party have served to remind all of us that parliamentary procedures are not some sort of secret masonic ritual to be understood only by a priestly caste of clerks and a handful of others, but are as integral to a parliamentary democracy as electoral rules. And it is not just for Westminster: one of my great pleasures as Clerk was to receive emails from colleagues around the Commonwealth seeking elucidation of a procedural – and usually political – issue where their knowledge of what was said in Erskine May was far in advance of my own!

Fortunately this edition has been preceded by two very different works which help set it in context. In 2018 the Commons authorities published a Guide to Procedure which is intended to help those involved in its day to day work, set out in plain English. It is of course available online. And secondly, at the end of 2017 Hart Publishing produced a book of essays – edited by current Clerk of Committees Paul Evans, entitled Essays on the History of Parliamentary Procedure: In Honour of Thomas Erskine May, to mark the great man’s 200th birthday in 2015. Continue reading

Looking forward, looking back: an evening with Sir David Natzler

IMG.2771On 19 March, the Unit held an event: ‘Challenges for Parliament: Looking Back, Looking Forward’, at which Sir David Natzler – who retired as Clerk of the House of Commons in February – spoke to Professor Meg Russell about his 40-year career in parliament. The discussion was both entertaining and informative; Dave Busfield-Birch summarises the key points.

Early days

Sir David first started working in the House of Commons in 1975, at what he called an ‘exciting time’, just two years after the UK had joined what was then known as the European Communities. His first assignment was as clerk to the European Legislation Committee, which was facing the novel challenge of sifting through the legislation passed by an unelected Council of Ministers sitting in the capital city of another country, and recommending which measures should be debated.

Parliament was unsurprisingly a very different place in the early years of Sir David’s Commons career. Talking of the key differences, he first spoke of how ‘expectations’ had changed significantly since then. For example, there were no limits on how long a Member could speak in those days. Whereas the Speaker (or one of the Deputy Speakers) can now impose relatively short time limits for MPs wishing to speak, that was not the case in 1975. Sir David considered this ‘almost one of the biggest changes’ of the past two or three centuries; that speaking for a long time can no longer be used to ‘destroy business’.

One of the other key differences between then and now is that the House of Commons lacked fiscal independence when he first started working there. It was instead reliant on the government for finance, thereby limiting its ability to take crucial decisions such as whether or not to recruit more staff. The Treasury hence had control of the Commons until the establishment of the House of Commons Commission in 1978, at which point the Commons became fiscally independent. 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

Parliamentary reform and The Constitution Unit

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In the last of our series of posts adapted from presentations at the Unit’s 20th anniversary conference Tony Wright reflects on 20 years of parliamentary change and reform. He argues that parliament has become a good deal better over the past two decades, and points to Unit research as making a major contribution to bringing this about.

I am struck by the fact that if you want to campaign for office in the United States, you have to campaign against Washington. Every candidate has to be going to Washington to sort them out, to break the Washington consensus. What I notice is that this has now started to happen here. Everybody campaigning for office here seems to have to attack Westminster, or the ‘Westminster elite’. This was standard fare in Nicola Sturgeon and Nick Clegg’s general election speeches, and in the Labour leadership contest. Now this is an interesting development, and it is certainly different from twenty years ago. Even at this event today, we have been encouraged by Vernon Bogdanor to organise our thoughts around the idea that parliamentary sovereignty is a busted flush, and the serious ways that power has been cut into pieces. I would actually put a more positive spin on it, and say that there has been accountability explosion over the last twenty years. If you think back about the accountability environment then, and what it is now, we are in a different world. In that respect there is much to put in the positive ledger.

But the problem is where does parliament fit in to that changed environment? The health of our representative institutions is something that matters and getting the right relationship between the old forms of representative democracy and the new forms that we might want to develop is where the challenge comes. The mistake we make is how we think we can embrace new forms, and simply forget about these old institutional bits, when the health of our representative institutions actually matters profoundly. And in some respects – and this is why I react against this Westminster elite trope – parliament has got a good deal better over these last 20 years.

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Farewell to the Commons: Reflections on parliamentary change over 40 years

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On 4 March Jack Straw and Sir George Young spoke at a Constitution Unit valedictory event where they considered how parliament has changed since the 1970s. Sam Sharp offers an overview of the discussion.

Jack Straw and Sir George Young have 77 years of parliamentary experience between them – Straw was first elected in 1979, and Young in 1974. With both set to retire in May, they reflected on how parliament has changed since they joined in the seventies. The event was chaired by Tony Wright, while Meg Russell provided a ‘myth busting’ role. Both speakers described a parliament that has changed for the better, in both its culture and efficiency.

For Jack Straw one of the biggest changes has been in the atmosphere of the House of Commons. He remembered previously having to ‘swim through thick clouds of smoke’, with the chamber itself being the only complete escape. Alcohol abuse was also prevalent and Tony Wright recalled actually once carrying a passed out member through the division lobby. In general, parliament was very white and male with a Gentleman’s Club culture and the few women present were very much made to feel like outsiders. Straw argued that the change in the gender balance, although ‘not far enough’, has ‘actually changed how the House feels’.

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