The 2016 Queen’s speech and the constitution

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Last week’s Queen’s speech included proposals to bring forward a British bill of rights and a commitment that ministers would ‘uphold the sovereignty of Parliament and the primacy of the House of Commons’. Mark Elliott suggests that if action was taken to implement them these measures would be highly significant. However, there is no sign of developed government thinking in these areas at this stage and so, in practice, they may amount to very little.

This year’s Queen’s speech touches on two possible constitutional reform measures. (I pass over the Wales Bill, which was published in draft in October 2015). The first concerns the replacement of the Human Rights Act 1998 with a ‘British Bill of Rights’, while the second concerns the sovereignty of parliament and the ‘primacy’ of the House of Commons. If implemented, these measures would be highly significant. But the signs are that, for the time being anyway, they may amount to very little in practice – not least because the Government’s thinking in relation to them appears to be undeveloped to say the least.

A British bill of rights

The Conservative Party has for some considerable time said that it wants to replace the Human Rights Act (HRA) with a bill of rights (albeit that exactly what would thereby be entailed has been, and remains, shrouded in uncertainty). Any attempt at reform in this area was stymied in the last parliament by the politics of coalition, the Conservatives’ Liberal Democrat partners being staunchly committed to the retention of the HRA. The most that could be managed then was a Commission on a Bill of Rights, whose proposals, such as they were, came to nothing.

Freed from the shackles of coalition, the Government promised in last year’s Queen’s speech to bring forward ‘proposals for a British Bill of Rights’. This year’s speech contained an almost identically worded undertaking promising ‘proposals’ but not a bill as such. The fact that little, if any, progress appears to have been made in this area is testament to the legal, constitutional and political difficulties that arise (matters that I consider further here). In political terms, the government appears to be divided on the question of whether the UK should remain a party to the ECHR – the Home Secretary thinks not – while the politics of devolution represent a major complication.

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The new opposition: How will SNP MPs influence Westminster politics?

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Louise Thompson argues that the constitutional challenges we will see over the next 5 years will be a product of the changed composition of Parliament. Here, she specifically considers how SNP are likely to try and amend proposed constitutional reforms announced in the Queen’s Speech last week.

We are only a couple of weeks in to the 2015 Parliament, but we can already see signs of big changes from the previous Parliament, as well as some major parliamentary and constitutional challenges ahead. Last week’s Queen’s Speech proved what most commentators had already suspected; the first majority Conservative Government for nearly two decades will oversee a period of major constitutional change. This includes greater devolution to Scotland, Wales and Northern Ireland as well as to English cities and an In-Out referendum on membership of the European Union to be held by the end of 2017. The constitutional ground is beginning to move already. The Prime Minister has already met with the Scottish First Minister Nicola Sturgeon to discuss the devolution of more powers to the Scottish Parliament.

As returning MPs took their seats in the chamber following the Queen’s Speech last week, they were met with a sea of unfamiliar faces as 182 new Members took their seats in the chamber. There is nothing new about a high turnover of MPs – the 2010 General Election saw an even higher turnover of Members. But the composition of the new intake, with record numbers of women and ethnic minority MPs, a massive drop in the number of Liberal Democrat MPs and the arrival of a much larger number of SNP MPs is very different to what the House has seen before. The challenges we will see over the next five years to the government’s planned constitutional reforms are very much a product of this changing composition.

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What the Queen said – and what she didn’t say

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Following yesterday’s Queen’s Speech, Robert Hazell considers the constitutional issues that featured, as well as those which were notable in their absence.

There were few surprises in the Queen’s Speech announcing the new government’s legislative programme. Like his admired predecessor Tony Blair, David Cameron knows that the public have little interest in constitutional issues, so the constitutional items came last, just before foreign affairs. England got mentioned first, with devolution to English cities; then more powers for Scotland, Wales and Northern Ireland; English votes for English laws; the EU referendum; and a British bill of rights. What are the key issues to look out for in relation to each of these items? And what other items didn’t get a mention?

The Scotland Bill will be introduced early, because that was promised in the Vow, and the coalition government published draft clauses in January. It will implement the proposals of the Smith Commission, but go no further. It appears to be a done deal, but will be attacked on both sides. The SNP attack is predictable: they will say their resounding victory in Scotland is a mandate to go much further. But the bill also risks being attacked on the government side. The Smith proposals are based on no underlying principles and were very hurried, with no consultation amongst the political parties and endorsed only by the three main party leaders. When the details are examined, unionists on all sides may start to worry about their feasibility, and compatibility with the union. Whitehall was bounced into Smith like everyone else, and no one can confidently say how the fiscal arrangements will work in practice.

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Once the election results are in, how do we decide who forms the government?

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Robert Hazell summarises the process of government formation that will begin tomorrow.

By Friday morning we should know most of the election results. Assuming the polls are proved correct, with Labour and the Conservatives each having around 270 to 280 seats, and both well short of a majority, what happens next? Answer: this is not a political or constitutional crisis. The parties will negotiate to work out who can command confidence in the new Parliament. That will be formally established in the vote on the Queen’s Speech in 3-4 weeks’ time. In the meantime the Cameron government remains in office as a caretaker government.

Who governs in the meantime?

If Nick Clegg and the Liberal Democrats choose to resign (because they have done badly, or to strengthen their negotiating position) Cameron still remains in office as Prime Minister. He may leave the Lib Dem positions vacant, or fill just a few in case of emergencies (e.g. Energy Secretary). The incumbent government will be able to respond to any emergencies at home or abroad, but otherwise is limited in the decisions it can make. Ministers remain in office, even if they have lost their seats. Under the caretaker convention, the government will try to avoid taking any decisions which might bind the hands of a future government. This means that it should not embark on any new policy, let any major government contracts, or make any senior public appointments. If these are unavoidable, it should consult first with the opposition parties: as Alistair Darling did before going to the ECOFIN meeting on 9 May 2010 to discuss the first Greek bailout.

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How should parliament decide who will be the next Prime Minister: by a nomination vote, or the Queen’s Speech?

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Robert Hazell weighs up options for establishing who can command the confidence of the House of Commons, which will be particularly significant in the likely event of another coalition. This is the fourth in a series of posts about government formation after the election.

The Cabinet Manual explains the rules as follows:

‘… the Sovereign will invite the person who appears most likely to be able to command the confidence of the House [of Commons] to serve as Prime Minister and to form a government’ (para 2.8)

In a hung parliament that appears to require the Queen to play a guessing game. But the Cabinet Manual goes on to say:

‘Where a range of different administrations could potentially be formed, political parties may wish to hold discussions to establish who is best able to command the confidence of the House of Commons and should form the next government. The Sovereign would not expect to become involved…’ (para 2.13).

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Continuing resentment against ‘establishment’ politicians has brought the right of recall back on to the legislative agenda

Robert Hazell discusses the challenges around developing legislation that will permit MPs to be recalled.

It was not a complete surprise to see the right of recall in the Queen’s Speech. The coalition government had kept open the option of legislating in a series of exchanges with the Political and Constitutional Reform Committee over the last two years.  The proposals stem originally from the MPs’ expenses scandal in 2009, which led all three major parties to include almost identical proposals for a right of recall in their election manifestos in 2010.  The precise commitment of the coalition parties in the May 2010 Programme for Government was framed as follows:

Image credit- UK Parliament

Image credit: UK Parliament

‘We will bring forward early legislation to introduce a power of recall, allowing voters to force a by-election where an MP was found to have engaged in serious wrong doing and having had a petition for a by-election signed by 10 per cent of his or her constituents’.

True to its word, in December 2011 the government published a draft bill and White Paper.  But in 2012 the Commons Political and Constitutional Reform Committee (PCRC) produced a very critical report, which led the government to pause.  The committee feared that the restricted form of recall proposed could reduce public confidence in politics by creating expectations that were not fulfilled.  The government’s long pause suggests that it may have shared the committee’s doubts.  But the rise of UKIP in the 2014 elections and continuing resentment against ‘establishment’ politicians tipped the balance: the government felt obliged to be seen to be doing something.

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Constitutional Reform in the Queen’s Speech

Constitutional reform featured strongly in Queen’s Speech today, setting out legislation for the coming session of Parliament. The Unit dissects… 

Lords Reform Bill

This faces massive opposition in both Houses and may fail. The reform proposals are opposed by the Lords itself, and there is so much resistance among Conservative MPs the bill may fail to get through the Commons.

The committee stage of the bill must be taken on the floor of the Commons and could take six weeks or more. Lords reform risks being for Cameron what the Maastricht bill was for John Major: this took 23 days on the floor of the House in committee alone, and saw numerous painful rebellions. At the bill’s Second Reading the rebels will seek to defeat the programme motion on its timetabling. If they succeed, the government will lose control over timing completely – but even if they fail, the bill may still be lost.

There are numerous issues over which the plans may fall apart. Simply to win the programme motion the government may need to concede a referendum on reform, which Nick Clegg doesn’t want. But defeats in the Commons are also likely on the powers of the Lords, the proportion of elected members, the electoral system, the proposed 15 year non-renewable terms, and the presence of the Bishops. Once MPs get hold of it, the bill may suffer a death of a thousand cuts.

Crime and Justice Bill

Of most constitutional relevance are the references to judicial appointments. Appointments are to be made more transparent and more diverse. Diversity is a central issue in judicial appointments, as the principle that appointment should be exclusively on merit is regarded as sacrosanct by the judiciary and many in the legal profession. The Ministry of Justice (which recently held a consultation on appointments) is thought to be frustrated at the slow pace with which minority groups have entered the judiciary.

It will be worth watching how far along the continuum between strictly merit-based appointment and affirmative action appointments are taken.

Draft Communications Bill

The proposed legislation allows intelligence officers real time access to communications of the public without a warrant. However there is growing concern about the potential impact on privacy. Theresa May commented “no-one is going to be looking through ordinary people’s emails or Facebook posts”.  The ICO have confirmed they are monitoring the development of the legislation closely and will press for the appropriate limitations and safeguards and  former head of GCHQ Sir David Ormand has drawn attention to the potential chilling effect that may occur on the use of social media as a source of information.

Electoral Registration and Administration Bill

The draft bill was widely welcomed as a means of tackling electoral fraud, however two particular concerns have also been raised. Scrapping the legal duty to register will cause millions of voters to fall off the register, as will scrapping the 2014 canvass. The Electoral Commission have called for a major public awareness campaign.

Scottish Independence & the Rules of Succession

Both issues had special mention as being actively pursued in the next parliamentary session.

The UK and Scottish governments will start negotiating in the summer and autumn about how to legislate for the independence referendum. The UK government wants there to be a single question, just on independence; while Alex Salmond will hold out for a second question, on Devolution Max. If they cannot agree the UK government may withdraw its offer to legislate for the referendum at Westminster, throwing up the risk that any referendum authorised by the Scottish Parliament is open to legal challenge.

Changing the rules of succession to the throne is much less contentious. To give a lead to the other countries where the Queen is head of state, the UK will want to legislate soon to remove the rule of male primogeniture, that sons come before daughters, and to remove one element of the discrimination against Catholics, that any heir to the throne who marries a Catholic is removed from the line of succession. (Catholics themselves and anyone else not in communion with the Church of England will remain barred from succeeding.)