MPs are right. Parliament has been sidelined

Backbench rebellion over parliament’s sidelining during the COVID-19 pandemic seems set to reach a critical point this week. Meg Russell and Lisa James argue that parliament’s crisis-era marginalisation is real, and part of a longer-running trend. So while government concessions now look likely, MPs should accept them only if they are genuine and comprehensive.

Backbench unease over the government’s treatment of parliament during the COVID-19 pandemic is coming to a head. On Wednesday, MPs will debate a motion to renew the government’s powers under the Coronavirus Act. But Conservative MPs’ frustration over the government’s handling of the crisis, and particularly its tendency to bypass parliamentary scrutiny, is increasingly evident. 

Earlier this month Charles Walker, joint Vice Chair of the 1922 Committee and former Chair of the Commons Procedure Committee, accused the government of treating its backbenchers like dogs. Similar concerns have appeared in the Telegraph and the Times. Now more than 40 Tory MPs have signed an amendment proposed by 1922 Committee Chair Graham Brady to Wednesday’s motion. This would make continuation of ministerial powers conditional on MPs getting a vote on any future coronavirus-related restrictions – whether made under the Coronavirus Act itself or other legislation (such as the Public Health (Control of Disease) Act 1984). The amendment may have no formal legal force, and for procedural reasons might ultimately not be voted upon; but its political significance is clear.

Parliament has been sidelined

MPs have genuine cause for complaint: parliament has been consistently sidelined during the pandemic. The most frequent criticism is over the government’s use of delegated legislation. Numerous coronavirus restrictions have been imposed through regulations subject to limited parliamentary oversight, with debate often scheduled long after the restrictions themselves were announced or came into force. A critical report from the Commons Public Administration and Constitutional Affairs Committee (PACAC) noted how the requirement to wear masks on public transport was announced in a Downing Street press conference on 4 June, coming into force 11 days later; yet it wasn’t debated in the Commons until 6 July. Only yesterday regulations on self-isolation were published, coming into effect just seven hours later, and imposing potential £10,000 fines; yet, despite media briefings 8 days previously, these were not debated in parliament. Such cases raise clear political questions, but also legal ones: as the Bingham Centre for the Rule of Law points out, the underlying legislation allows ministers to bypass parliament only if a measure is so urgent that there is no time for debate.

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Will the Lords block the UK Internal Market Bill?

Parliament will this week begin debating and scrutinising the UK Internal Market Bill, which the Northern Ireland Secretary has already acknowledged will, if passed in its current form, place the UK in breach of international law. When the bill reaches the upper chamber, what sort of treatment will it receive? Might the Lords block it? Unit Director and Lords expert Meg Russell offers her view.

Widespread shock greeted this week’s news that Boris Johnson hopes to set aside elements of the Withdrawal Agreement related to Northern Ireland – particularly when Northern Ireland Secretary Brandon Lewis admitted to the House of Commons that the UK Internal Market Bill drafted to achieve this ‘does break international law’. Former Conservative Prime Ministers Theresa May and John Major, and senior government backbenchers, loudly protested. Former Conservative Solicitor General Lord (Edward) Garnier expressed surprise that the government’s law officers – those ministers expressly charged with protecting the rule of law – hadn’t resigned.

After an emergency meeting, the European Commission vice-president demanded that the UK withdraw the plans. The Irish Taoiseach described them as ‘extremely divisive – and dangerous’, while the US House Speaker Nancy Pelosi warned that breaching international law would mean ‘absolutely no chance of a US-UK trade agreement’.

There are clear questions over whether such a controversial bill – whose Commons second reading is on Monday – can secure parliamentary approval. Specifically will it, as some suggest, be blocked by the House of Lords? A prior question is whether these provisions will make it through the House of Commons. Despite Johnson’s majority, Conservative dissent is unusually intense. This is unsurprising since, as many have recently quoted, that most iconic of Conservative prime ministers Margaret Thatcher consistently emphasised respect for the rule of law as a core Conservative value.

There is actually a prior question even to this, regarding whether the Commons will actually be asked to approve the offending clauses. In parliament the ‘law of anticipated reactions’ generally applies: sensible governments facing a likely Commons defeat will retreat on legislation if they can. When Charles Walker, vice-chair of the backbench 1922 Committee, was asked whether Conservative MPs would vote against the bill (21:18), he responded ‘I doubt we are to get to the stage where we are asked’. This implied that the Prime Minister would hear the drumbeats, and back down.

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Boris Johnson and parliament: an unhappy tale in 13 acts

meg_russell_2000x2500.jpgParliament returns from its summer break today. During Boris Johnson’s 13 months in office as Prime Minister his relationship with parliament has often been rocky. In this post, Unit Director Meg Russell reviews 13 episodes during these 13 months which illustrate Johnson’s difficult relationship with parliament. His Number 10 has often resisted parliamentary oversight, and faced down significant parliamentary opposition – including from his own backbenchers. With growing indications of backbench discontent, she explores the dangers of this situation.

As the Commons reassembles today, it’s a good moment to reflect on the relationship between Boris Johnson’s government and parliament so far. Johnson has now held office for just over a year, and rumours are emerging of significant discontent on the Conservative backbenches. From the outset, Johnson’s relationship with parliament has been beset with controversy. As he enters his second parliamentary year, what have been the key flashpoints, and what do they add up to collectively?

This post looks back at 13 episodes in the past 13 months, before reflecting on what they teach us, and what the future may hold. It suggests that while existing flashpoints have resulted from Number 10’s bold assertions of executive power, there are risks for Johnson that the tables could soon start to be turned.

1. The first day: two hours of scrutiny before recess

Boris Johnson became Prime Minister on the afternoon of 24 July 2019, following his victory in the Conservative leadership contest. On that day, Theresa May took her final Prime Minister’s Questions. Johnson thus had just one day to face parliament, which was about to break for its summer recess. The hot topic was Brexit; May had been forced out after failing to gain adequate support from her own MPs for her Brexit deal, which was defeated three times in the Commons between January and March. Johnson had been among those voting against it. The big question was how he could succeed where Theresa May had failed. On 25 July there was a brief potential window for MPs to quiz him on his Brexit strategy. But he chose instead to make a far more general statement on ‘priorities for government’. After two hours of questions ranging across all policy topics, the Commons moved to adjourn until September. An attempt by MPs to delay adjournment had failed, as did a later attempt to recall parliament over the summer to discuss progress on Brexit. Recall is impossible without the agreement of the government. Continue reading

Coronavirus and the hybrid parliament: how the government moved the Commons backwards on remote participation

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Image Credit: Return of the House of Commons rehearsal (CC BY 3.0) by UK Parliament

sir_david_natzler.smiling.cropped.3840x1920.jpgIn recent weeks, the government has taken the Commons from an acceptable hybrid system to the current confused regime of limited virtual participation and proxy voting. As David Natzler has outlined in previous posts, during the coronavirus lockdown the Commons moved with surprising speed and unity to create a hybrid parliament in which MPs could participate remotely, with the same speaking and voting rights as members present in the chamber. Here David outlines how the Commons moved so fast and so far backwards on virtual involvement for MPs. 

In this blog I intend to summarise the confusing developments in the past three weeks in the regime for doing parliamentary business in the House of Commons, and to analyse some of the reasons for the almost daily change of regime and the emergence of a new temporary hybrid regime. 

The first regime of virtual participation: 21 April to 20 May

On 21 and 22 April, on its return from the Easter recess, the House agreed to several government motions which established a temporary regime allowing for virtual participation by members in hybrid scrutiny and substantive proceedings, and for remote voting, to endure until 12 May. The regime was founded on a resolution of general principles also agreed on 21 April, including a requirement for parity of treatment between members participating virtually and those participating in person. Virtual select committee proceedings had already been established under a separate and longer-lasting order. On 12 May the House agreed to extend the debating and voting regimes until 20 May. 

Non-renewal of the regime

This regime operated successfully for the best part of a month, until the House rose on 20 May for the Whitsun recess, at which point the detailed operative Orders agreed on 21 and 22 April, but not the resolution setting out the founding principles, lapsed. It became known on 11 and 12 May through the government strategy statement and remarks by the Leader of the House, Jacob Rees-Mogg, that the government had no intention of renewing the regime of virtual participation, on the grounds that it was time for parliament to ‘get back to business’. But the government offered no opportunity over the next few days, before the House rose on 20 May, for the Commons to give its positive assent for letting the regime lapse. Continue reading

Remote sittings for Ireland’s parliament: questionable constitutional objections

david_kenny_02.jpg_resized.jpg (1)As a result of the temporary measures taken by the UK House of Commons, MPs as far away from London as Orkney have been able to contribute to parliamentary proceedings remotely. The same has not been true of Ireland, where legal objections have been raised. David Kenny argues that those objections can be easily overcome and that there is no good reason why Ireland’s elected representatives should not be able to attend the Oireachtas remotely. 

Ireland’s recent general election, as well as producing deep political uncertainty, has produced several fascinating and strange constitutional questions: what happens when a candidate dies (not, it turns out, what the law clearly required). Can the Seanad (Senate) legislate when no Taoiseach (Prime Minister) has been appointed to nominate 11 of its members? What are the limits of the accountability of acting ministers?

The strange circumstances of the pandemic have thrown up yet another constitutional issue, one which is arising around the world: where and how can the legislature sit? With social distancing in a parliamentary chamber or committee room difficult, this has a profound effect on how the legislature can function at a time where the agglomeration of executive power in response to the crisis requires acute parliamentary oversight. 

At present, despite emergency legislation giving sweeping powers to the executive to combat COVID-19, neither house of the Irish parliament is meeting in anything other than the most limited form. For limited purposes, such as attempting to nominate a Taoiseach, a very large space such as Dublin’s Convention Centre can be rented to allow socially distant attendance from all 160 members of the Dáil (the equivalent of the UK’s House of Commons). But this is not intended to be a regular arrangement, and is not planned for other parliamentary activities, such as committee meetings. There are limited sittings in the Dáil Chamber, with a select groups of members in attendance, and meetings of a special COVID-19 Committee in the chamber also. It would seem that virtual/remote meetings would be essential to allow sufficient parliamentary oversight in these circumstances. But constitutional objections to this have been raised. Continue reading