The process of Brexit: what comes next?

me 2015 (large)

In a new report published jointly by the Constitution Unit and the UCL European Institute, Alan Renwick examines what the process of Brexit is likely to look like over the coming weeks, months, and years. Here he summarises five key lessons.

wp2_arenwick_front_coverThe phoney war around Brexit is almost over. For months, two immediate questions have dominated discussions: How can Article 50 be triggered? And what sort of deal will ministers seek? The Supreme Court’s ruling on 24 January answered the first question. We know much more now about the second through Theresa May’s Lancaster House speech and last Thursday’s white paper. The Article 50 bill is being debate in parliament. By the end of March – if the government gets its way – we will be entering a new phase in the process.

The question is: What comes next? Can the government deliver on its wish list? Can parliament provide effective scrutiny?  Will the courts intervene again? How is Brexit likely to play in the devolved nations? Is a second referendum at all likely?

In a new report, I offer answers to these and related questions. Here I summarise five key points.

1/ The UK government is very unlikely to get what it says it wants.

The government has set out highly ambitious goals. It wants not just a divorce agreement, but also a complex, deep, and bespoke deal on the UK’s future relationship with the European Union, encompassing a comprehensive free trade agreement, a novel form of customs association, and ongoing cooperation in areas including policing, security, and research. Furthermore, it wants all of this to be both negotiated and ratified within two years.

Whether such a deal will emerge is impossible to say; but achieving it within two years certainly looks very unlikely. First, EU leaders (so far at least) have said they will not negotiate on these terms. Rather, they initially want a divorce deal only; once that has been negotiated, they propose a transitional period that preserves many features of EU membership while detailed negotiations on future relations are conducted. Thus, the first round of the negotiations will be a discussion of what the negotiations are actually about.

Second, even if the UK government gets its way in this opening round, the negotiations thereafter will be immensely complex and difficult. They will range across most policy areas. Not only will the UK be negotiating with the EU: in addition, there will be intense negotiations among the twenty-seven remaining member states and between the European Council, European Commission, and European Parliament. Whitehall’s resources for all of this are very tight, and experienced negotiators with relevant expertise are thin on the ground.

Third, a deal such as the Prime Minister proposes will have to be agreed by the European Parliament and ratified by every member state. As the troubles faced in the Walloon parliament by the Canadian free trade agreement show, there is no guarantee that ratification will be smooth. Indeed, in some countries ratification could be subject to a citizen-initiated referendum, as occurred in the Netherlands last April for the EU–Ukraine Association Agreement.

If no deal has been done and ratified within two years, the UK government will have three main options: press for an extension to the negotiation window (which would require unanimous agreement of the member states); accept the EU’s proposed transition phase; or decide that the UK is leaving without any deal. Ardent Brexiteers dislike the first two options. But most observers think the hard and disorderly Brexit implied by the third entirely unpalatable. A government that pursued it could well be forced from office, triggering deep political turmoil.

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Town Hall Transparency?

Our new report on FOI and local government concludes that the FOI Act has made councils more open and transparent. Each year more and more questions have been asked with request numbers rising from around 60,000 a year in 2005 to nearly 200,000 in 2010.

Underneath the media headlines about senior officials’ salaries,  investments and the cost of dying, FOI is being used more quietly, day-to-day, by the public to find out about things that matter to them; allotments, parking, speed bumps etc., as you can see in these records of requests  here and  here (this one also lists requesters by type). Businesses are using it to keep one step ahead of the competition and national and local pressure groups are making FOI requests on all sorts of topics from zoo licences to libraries. It may even have helped to uncover a murder.

Some councils are more open and more at ease with FOI than others. A few have resisted and played games. Many are concerned it’s being ‘abused’ by businesses and journalists. Most of all officials are worried about how they will cope with rising request numbers with fewer resources.

Since January 2011 councils have published all their spending over £500 on their websites (see here). The government hopes this will give transparency an extra push and also motivate ‘armchair auditors’ to check where and how councils are spending and misspending our money. The response has been mixed. Some councils have had no interest in their data, while elsewhere local newspapers have exposed controversial spending on string quartets or libraries , as have a  few national newspapers . One official said the benefits are internal, as it has allowed councillors to understand their own budgets.

FOI and Open Data are working more and more closely with new online innovations, that allow data to be ‘mashed’ and sifted, and hyper local sites that serve as a platform for residents to talk about local issues. However, it remains to be seen if new technology and further local government reform helps or FOI or if it will be undermined by dwindling resources’.

Shining a light or keeping us in the dark?

Letting the light shine out

When it comes to FOI and Parliament, a bit of both really, though more of the latter than you’d expect: that’s the conclusion from our report on the impact of FOI on Parliament, published today. (The two year study also looked at the use parliamentarians have made of the Act, covered in a previous blog post here).

Our main findings are:

  • The focus of FOI requests has always been on the House of Commons, and on MPs (much less so on the Lords)
  • Parliament has released much corporate material about itself through FOI, in contrast to assertions that it is a secretive organisation

Freedom of Information legislation was not originally intended to cover Parliament, but the Act’s greatest impact has been on its oldest institution.

No one expected some of the most important case law around FOI and personal data would come from Parliament, but it did. MPs thought Parliament was open, and it was (and is continuing to get more open). But they didn’t see the collective blind-spot that was the Additional Costs Allowance (expenses) system. The MPs expenses scandal is a classic case of FOI searching out secrecy while the rest of an organisation is open.

So can FOI achieve its democratic goals in an institution like Parliament? MPs divided into competing teams, where officials may be subordinated, where every move covered by an increasingly vociferous press, many decisions protected by Parliamentary Privilege?

We think yes, at least regarding FOI’s main goals of increasing transparency and accountability. While most requests have focussed on individuals of Parliament, both Houses have revealed ‘corporate’ information previously not public through FOI and have had this publicised via the media. Topics include CO2 emissions of its buildings, policies relating to pest control, the costs of construction of the Visitors Centre and the use of parliamentary facilities by outside organisations. Parliamentary Privilege has protected the things that should be protected, and not protected those things that shouldn’t.

FOI has prompted organisational change too: Since last year, MPs and peers have to be domiciled for tax purposes to remain in either House, and is the only way non-bishop peers have been able to leave the House of Lords (apart from death). This is because Lord Ashcroft’s non-dom tax arrangements were revealed through FOI. MPs can’t run up large tabs at parliamentary restaurants anymore, after an FOI request revealed some owed thousands for months.

Most officials and parliamentarians we spoke to (we interviewed 46 people for this project) agreed  that FOI has made Parliament more transparent and accountable albeit for matters that some consider minor or narrow. But the influence of the media means FOI’s other goals like increasing trust or public understanding are difficult to achieve, and may even be negatively impacted. We found many negative headlines when we sampled press stories about Parliament, even when Parliament had handed over information through FOI without fuss or delay.

But the Commons has learned a ‘bunker’ mentality towards FOI isn’t the way to go. The House of Commons Commission agreed last year to begin to publish its own papers and agendas proactively, reversing decades of secrecy. The lessons from the expenses scandal are being learned, and we know more about Parliament and its people today than ever before, in part because of FOI. Its been another step in the openness process Parliament has gone through since the first publication of Hansard in the 19 century. What’s left to find out…?

Strange Love: Or, How Conservatives and Lib Dems Learned to Stop Worrying and Love Coalition Government*

We published our interim report on coalition government Inside Story: How Coalition Government Works [1] a couple of weeks ago, and it behooves me to be grateful for the press our interim report, received. Thus: “How David Cameron and Nick Clegg decide policy – by phone”! and “Lib Dems and Tories get on better than Blair and Brown”!

Alas—that is not quite what the report says. What we say is that formal cabinet government has returned; but that coalition issues are mostly dealt with through informal mechanisms, of which the Cameron-Clegg weekly bilaterals are but one mechanism—to be sure, the most important, but not the only one. None of this means policy is ‘decided on the hoof’: just that coalition issues are decided in informal channels. That’s slightly different.

Do Tories and Lib Dems get on better than Blair and Brown? Well, yes and no. Yes, there are strong relationships within the executive. Yes, it is true that Cameron and Clegg, Letwin and Alexander, work well together. And that makes executive government much smoother. But, but… in Parliament, the parties operate as they always have. The relationship between the parties is cordial at best. And it is at the parliamentary level where problems may emerge.

It’s also important to address a couple of criticisms of our report. One: how can we claim that ‘the coalition is working well’ when a good part of the report is devoted to the problems that the Lib Dems are having? Two: it’s too process-based; too structural. These two criticisms merge into each other.

On the coalition working well: the problem is that there are two measurements of ‘success’ are being run together here. One measure is how well the two parties are working together; the other is the ability to implement party policy and/or the ability to project party distinctiveness. I take the point that perhaps we weren’t clear enough on what our measures of coalition ‘success’ were.

On the first measure, it’s worth bearing in mind that prior to May 2010 coalition government in Westminster was thought to be a recipe for unstable, unworkable or inefficient government: that two national political parties could not work together. But at least in the first year, that doesn’t seem to be so: there is no sign of imminent collapse; and decision-making hasn’t slowed down at all. That is what we meant by ‘working well’. (Yes, now there are the NHS reforms, but is this a coalition issue? There are differing schools: one school pointing to a Lib Dem response following the failure of the AV referendum; the other school suggesting a U-turn from the Conservatives themselves because of a fear of ‘retoxifying’ the Conservative party. And anyway, it’s not clear that this is a systemic problem—yet).

On success in implementing policy—how can we talk of success if the Lib Dems are doing so poorly? And are we not being myopic for simply looking at process over policy? We did say this was not a review of policy. And it seemed to us that there had already been plenty of discussion in the media about the Lib Dems’ failure to have a noticeable impact in government in terms of policy implementation, but very little discussion of some of the very substantial structural problems the Lib Dems have. We thought it worth stressing that the Lib Dems made some crucial choices at the formation of the coalition which continue to hamper their ability to push their policies within government—losing short money, accepting the cap on special advisers, and most of all going for breadth over depth in terms of the allocation of Lib Dem ministers.

But anyway—as I said at the beginning, I’m grateful for the comments and criticisms. We will try to address some of these issues in the next report.

*Next week’s post: Tainted Love: Or, “It’s not you, it’s me”

[1] Thank you to all the interns who have worked on the coalition government project so far. Thanks to Ruchi Parekh (aka: Ms Doubtful), Jessica Carter, Ian Jordan, Alex Jacobson, Patrick Graham, Andreas Kutz and Chris Appleby. Props to y’all—except maybe you, Ian!

Coalition Works! The Independent View

Article from Liberal Democrat Voice

The coalition is working well, but the Lib Dems could do better, is the overall message from the Constitution Unit’s first report on how the coalition works in Whitehall and Westminster. We are conducting a 12 month study, funded by the Nuffield Foundation, with a research team of five, including two former senior civil servants, and one senior broadcaster. David Cameron and Nick Clegg have authorised access to all the key figures in Whitehall, and so far we have interviewed 90 ministers, special advisers, officials, parliamentarians, and external interest groups.

Everyone we interviewed in Whitehall says how much more harmonious the coalition is compared with the rivalries and infighting of the Blair/Brown years. After widespread fears that coalition government would be weak, quarrelsome and divided, in the first year the coalition has proved remarkably stable and united. Cabinet government has been revived; but coalition issues are mainly resolved in informal forums, with weekly meetings between Clegg and Cameron, and regular get togethers between Danny Alexander and Oliver Letwin. The mutual trust and close working relations developed not just between Clegg and Cameron, but amongst all their top advisers, should help the government as it faces tougher times ahead.

And how could the Lib Dems do better? Read the full article at:

http://www.libdemvoice.org/the-independent-view-coalition-works-the-inside-story-from-the-constitution-unit-24357.html

The Inside Story: How Coalition Government Works–A Summary

The Coalition in Whitehall

  • Finding a balance between unity and distinctiveness is the key problem for coalition government. The current coalition has successfully ensured unity, and stability; but struggles to allow the two parties to express their distinctiveness.
  • Formal cabinet government has been revived: Cabinet and cabinet committees now meet regularly, but these are mostly forums for dealing with interdepartmental issues rather than specifically coalition issues.
  • The main forums for reaching agreement between coalition partners are informal. Coalition issues are often dealt with before they reach the formal machinery of government.
  • This informality of coalition decision making is based on high levels of trust between the leadership of the two parties. Trust, and the importance of compatible personalities, are essential for coalition government.
  • However, this informality has one drawback: it means that the Lib Dems are often unable to demonstrate their influence in government.
  • Some machinery has surprisingly not been effective in coalition brokerage—in particular, the Deputy Prime Minister’s Office, special advisers, and Liberal Democrat junior ministers.

The Coalition in Westminster

  • Flexibility within the executive is not always matched by flexibility in parliament. Compromise hammered out in government has led to excessive rigidity when policies are introduced into Parliament.
  • The informality and relatively close relationships in the executive are not matched by similar relationships within Parliament. In both houses, the coalition is tolerated rather than embraced.
  • Coalition governments often lead to a divide between the frontbench and backbench. Rebellions in this parliament are historically at record highs.
  • The parliamentary parties have begun to modify their backbench committees to prevent the divide between frontbench and backbench widening.

The Dilemmas for the Junior Partner

  • The Lib Dems are still reeling from the loss of their state funding, given only to opposition parties. This has led to the loss of many of their staff. It may help explain their under powered performance, particularly with the media.
  • By going for breadth over depth, the Lib Dems have spread themselves too thinly. They need to prioritise. Given the numbers they have, what can they realistically do which will have an impact with the public?
  • In a future coalition, the junior partner might seek to specify the support to be made available to them, in terms of special advisers, expanded Private Offices, and additional support for the parliamentary party.

Press Release: Coalition Works! The inside story from the Constitution Unit

What works, and what doesn’t in the new coalition? A first year report – full version pdf

Despite the political strains which have affected the coalition in recent months, the Constitution Unit’s research on how the coalition works shows that it has functioned very well in its first year. Viewed from inside, the ructions which have dominated the headlines have not destroyed the coalition’s effectiveness.

The Unit’s first year report, Inside Story: How coalition government works, is based upon 90 interviews with senior people in Whitehall and Westminster. The mutual trust and close working relations developed inside the government should help as it faces tougher times ahead.

“People feared that coalition government would be weak, quarrelsome and divided” said the Unit’s director Prof Robert Hazell. “But in the first year the coalition has been remarkably stable and united. Everyone we interviewed in Whitehall says how much more harmonious the coalition is compared with the rivalries and infighting of the Blair/Brown years”.

“Maintaining that unity in government while demonstrating the distinctiveness of the two parties is the key challenge going forward” Prof Hazell added. “This is particularly difficult for the Lib Dems as the junior partner. Instead of spreading themselves thinly across the whole of government, they need to prioritise their effort on areas where they can clearly have an impact”.

“An interesting development is the Lib Dems’ backbench committees” said the project’s lead researcher Dr Ben Yong. “It is a sign of how stretched the Lib Dems are for resources that these have been created. But it is also a way of preserving their distinct identity, and gives backbenchers regular contact with the frontbench. Conservatives we interviewed have been rather envious, and they have now started their own backbench policy committees”.

The report’s findings and recommendations include:

  • The Lib Dems did well in the coalition negotiations, with 75% of their manifesto items going into the coalition agreement compared with 60% of the Conservative manifesto. But in any future coalition, they should focus as much on the division of office as the division of policy. It is through ministerial leadership that coalition partners have visible impact.
  • By going for breadth over depth in their selection of ministerial posts, the Lib Dems risk spreading themselves too thinly. They may have achieved hundreds of small policy wins, but their influence is invisible to the public
  • Cabinet committees deal mainly with interdepartmental issues. Coalition issues are resolved in half a dozen informal forums, and are dealt with before they reach the formal machinery of government.

Notes for Editors

  • This is an initial report from a 12 month study of how the coalition works, funded by the Nuffield Foundation. The project runs until December.
  • Access to Whitehall interviewees has been authorised by the Prime Minister, Deputy Prime Minister and Sir Gus O’Donnell. So far the project team have interviewed 90 officials, ministers, special advisers, parliamentarians and outside groups.
  • Robert Hazell is available for interview this weekend, tel 020 7679 4977 (Friday), 020 7267 4881 (Sat and Sunday).
  • Browse the coalition government project pages

Press Release: Senior figures call for immediate halt to Lords appointments

Press Notice: for immediate release
Wednesday 20 April 2011

Senior figures call for immediate halt to Lords appointments

Today the Constitution Unit publishes a report, House Full, with the backing of 18 senior parliamentarians and independent experts, including a former Commons Speaker, a former Leader of the Lords, a former Lord Chancellor, and three former members of the House of Lords Appointments Commission. They come from different parties and none, and have differing views on the long-term future of the Lords and its reform, but are united in raising the alarm about the current rate of appointments, and calling for immediate changes.

A draft Lords reform bill is expected shortly after 5 May. But even if it succeeds it will be four years before reform happens. Meanwhile David Cameron has added 117 new peers in less than a year, an unprecedented figure in recent times. The report argues that this has damaged the chamber’s functioning, and that any further increase risks rendering the House unable to do its job. It sets out why the coalition’s aim to establish proportionality between the parties in the Lords is unworkable: requiring 269 additional peers, which would take the chamber’s membership to 1100. It is already 831, up from 666 10 years ago.

The report’s supporters call for three things:

  • An immediate moratorium on Lords appointments, to be lifted only when the number of members has dropped below 750. Thereafter 750 should be an absolute cap on its size.
  • Allowing retirements from the Lords, as proposed recently by a House of Lords Leader’s Group chaired by Lord Hunt of Wirral.
  • Any future appointments to be put on a more transparent and sustainable basis, with the independent House of Lords Appointments Commission determining how many vacancies exist, and inviting nominations from the parties.

Commenting on publication of the report, Constitution Unit Deputy Director Meg Russell said: “It is unusual for a group of such senior figures to come together on a cross-party basis to call for change, but there is huge concern in the House of Lords about this issue. The fear is that David Cameron may unwittingly destroy the Lords through this volume of appointments. We await Lords reform, but in the meantime we must maintain a functional parliament. The risk is that reform fails – as it often has before – but that meanwhile the Lords has become bloated and dysfunctional”.

Notes for editors

  • The report House Full is available on the Constitution Unit website at http://www.ucl.ac.uk/constitution-unit/publications/tabs/unit-publications/152.pdf. It is written by Meg Russell, with support from Lord Adonis, Graham Allen MP, Baroness Boothroyd, Lord Butler of Brockwell, Baroness Dean of Thornton-le-Fylde, Lord Dholakia, Baroness D’Souza, Lord Forsyth of Drumlean, Robert Hazell, Baroness Jay of Paddington, Lord Mackay of Clashfern, Lord Norton of Louth, Donald Shell, Lord Steel of Aikwood, Lord Stevenson of Coddenham, Baroness Williams of Crosby, Lord Woolf, and Tony Wright.
  • Meg Russell is available for interview and can be contacted on 0207 679 4998. In addition, Brian Walker is the Unit’s Press Officer and can be contacted on 07802 176347.
  • The Constitution Unit is an independent and non-partisan research centre within the Department of Political Science at University College London.

Media

Goats were thrown to the Wolves under Labour

Press Release: Goats were thrown to the Wolves under Labour

The experience under Labour of appointing some ministers from outside Parliament suggests no easy answer to a new call from MPs to reduce the number of ministers in the so-called “ payroll vote” in the Commons. The recommendation is made today (Thursday 10 March) in a report, “Smaller Government: What Should Ministers do?” by the Commons Public Administration Select Committee.

In the last Labour government, ministers appointed from outside Parliament were given little or no induction and many of them were critical of the lack of clear delegation or objectives. The result was sheer overload—one former minister describing office as “the most exhausting job I’d ever done. It was relentless.”

This is the main finding of the Constitution Unit’s report Putting Goats amongst the Wolves: Appointing Ministers from outside Parliament just published. The study takes its starting point Gordon Brown’s decision to appoint half a dozen Ministers from outside Parliament in order to build a ‘government of all the talents’ – leading such Ministers to be called ‘Goats’. The study set out to explore the arguments for appointing ministers from outside Parliament, and to study the experience of such appointees.

Dr Ben Yong, co-author of the report along with Professor Robert Hazell says: “Under the coalition, there are currently only a small number of ‘outsider ministers’ in the Lords, and it seems unlikely that David Cameron will make more appointments in the numbers seen under Gordon Brown.”

Yong adds: “More thought needs to be given to what ministers can realistically be expected to do, and what they should not do. We have been told of ministerial overload, while on the other hand, former ministers such as Chris Mullin have talked of ‘empty’ ministerial posts. The need to define more clearly the functions of junior ministers especially has become even more pressing, given the government’s plan to reduce the number of MPs from 650 to 600. In such circumstances, will it still be necessary to have 123 ministers, or one-fifth of Parliament in government?”

The report was funded by Peter Scott QC. It can be found here:

http://www.ucl.ac.uk/constitution-unit/publications/tabs/unit-publications/151-cover.pdf

Notes for Editors

  • The Public Administration Select Committee is currently holding an inquiry on ‘Smaller Government: What do Ministers do?’, with the final report due to be published shortly.
  • Brian Walker is the Unit’s Press Officer who can be contacted on 07802 176347.
  • The Constitution Unit is an independent and non-partisan research centre within the Department of Political Science at University College London.

Constitutional reforms hit trouble in Parliament

The flagship constitutional reforms of the new coalition government are running into serious parliamentary trouble. They have all been the subject of scathing reports from parliamentary committees: in particular for their haste, and lack of pre-legislative scrutiny or public consultation. Two have been subject to defeat in the Lords, but none has yet completed all its stages. If the Lords share the criticisms voiced by the Select Committees they will want to make significant changes.

 

The vanguard bill is the Parliamentary Voting System and Constituencies Bill, which completed all its Commons stages on 2 November, and by Christmas had been in Committee for six days in the Lords. The bill provides for a referendum in May to change the voting system for the House of Commons to AV, and for boundary changes to reduce the size of the House to 600 in time for the next general election planned for 2015. For the AV referendum to be held on 5 May the bill needs to be passed by early February, allowing just three months for the referendum campaign.

 

The bill was the subject of critical reports by the new Political and Constitutional Reform Committee in the Commons, chaired by Graham Allen MP (HC 437, October 2010), and by the Lords Constitution Committee chaired by Baroness Jay (HL 58, November 2010). Both committees strongly criticised the government for its haste, and for combining in one bill two issues which should have been considered separately. The timetable for the referendum is particularly tight. There was no time for consultation with the devolved administrations, who are dismayed that the referendum is being held at the same time as the next devolved assembly elections. And there was no time for considering alternative approaches, or the option of PR. If the Lords make major amendments, the referendum may have to be postponed. The Lords have already amended the bill to provide for that.

Parliamentary debate on the plans to reduce the size of the House of Commons exposed the absence of any rationale for the new figure of 600 MPs; and the absence of any plan to reduce the number of Ministers, or the payroll vote (the new government had a record 46 PPSs). The government have said there will be a reduction, but not through this bill. Concerns were also expressed at the abolition of local inquiries into the results of boundary reviews (to be replaced by a 12 week written consultation period); at the spurious precision of equal sized constituencies based upon outdated (2010) electoral registers, from which 3.5m voters are said to be missing; and at 18 months being insufficient time for political parties to form new local associations and to choose candidates for the new constituencies.

The Fixed Term Parliaments Bill is next in line. Introduced in July, it had its Commons Second Reading in September, and by Christmas had undergone just two days in Committee (of the whole House). This bill has also been the subject of a quick report from the Commons Political and Constitutional Reform Committee (HC 436, September 2010), and a detailed inquiry by the Lords Constitution Committee (HL 69, December 2010). Both committees suggested a four rather than a five year term. On the wider issue, the Lords Committee were not convinced that a strong enough case had been made for fixed term Parliaments. The Committee also criticised the date clash with the devolved elections in May 2015, and every 20 years thereafter. It also pointed out that the Parliament Acts cannot be applied to the Fixed Term Parliaments Bill, so the Commons cannot override the Lords.

The third bill in trouble is the European Union Bill, which aims to strengthen the UK procedures for agreeing EU decisions and Treaty changes. It provides a sovereignty clause confirming that ultimate legal authority remains with Westminster; and for a referendum lock on any Treaty transferring further powers to the EU. The sovereignty clause was strongly criticised by the Commons European Scrutiny Committee, chaired by Bill Cash MP (HC 633-I). After taking evidence from EU and constitutional legal experts, the committee concluded that the legislative supremacy of Parliament was not under threat from EU law; so the sovereignty clause was unnecessary. It was also unlikely to have any effect, not least since it could be repealed by any future parliament. This second argument will also apply to the provisions for a referendum lock, to which the committee will return at a later date.

Finally there is the Public Bodies Bill, which started in the House of Lords in October. Following the Cabinet Office review of public bodies, led by Francis Maude MP, the bill allows Ministers to make orders abolishing, merging or modifying a wide range of public bodies. The Lords Constitution Committee issued a powerful warning in November about the extraordinary scope of the Henry VIII powers in the bill (HL 51, November 2010), repeated by the Lord Chief Justice when he gave evidence before them in December (see page 00). Labour opposition peers are ensuring that the bill makes painfully slow progress: so slow that the government may start all night sittings. The bill’s opponents will be further encouraged by the damning report of the Commons Public Administration Committee, whose chair Bernard Jenkin MP described the government’s bonfire of the quangos as ‘botched’ (HC 537, January 2011).

These bills will provide an early test of the extent to which the Lords are willing to vote down legislation of the coalition government. With Lib Dem peers committed to support the coalition, it should be in a stronger position than its Labour predecessor. The Crossbenchers now hold the swing votes.  But in the first 31 divisions in the Lords the government has been defeated eight times: much the same rate as under the previous government. And with the government’s decision to extend the first session for two years the Parliament Act is a weaker instrument, increasing the Lord’s powers of delay.

The fate of this legislation also provides an early test of Nick Clegg as leader of the coalition’s constitutional reform programme. There was no need to introduce these bills at quite such reckless speed. More deliberation would have allowed for consultation, long term planning, and better crafted legislation. The AV referendum is likely to be lost because of the mad rush. The plans for 200 state funded primaries are being shelved, as the government realises the consequences for 650 MPs competing for re-selection in new constituencies. It is not a good omen for the forthcoming plans for Lords reform. But having learnt some painful lessons, the government may now be willing to move more slowly.

This is the lead article in the Unit’s newsletter, the Monitor, now available to view on our website at the link below. It includes further reports on parliament, freedom of information, the executive and the judiciary.

http://www.ucl.ac.uk/constitution-unit/publications/tabs/monitor-newsletter/monitor47.pdf