Following the Supreme Court ruling, what happens next?

robert_hazell (1)me 2015 (large)

Following today’s Supreme Court judgement, the focus of attention shifts back to parliament.  How long will it take for parliament to pass the necessary legislation? How likely is it that the legislation will be amended? Robert Hazell and Alan Renwick assess the implications for the Brexit timetable, and the government’s negotiating strategy.

What will happen to the government’s timetable?

The government have confirmed that they will introduce a short bill, probably just one or two clauses, which it will seek to pass as a matter of urgency. Bills have occasionally been passed through parliament in a few days, or even a few hours. But that can only happen if both chambers recognise the urgency, and support the bill. Crucially, the government would need to get majority support for a timetabling motion in the House of Commons to expedite the process. That might not be forthcoming in a House where three quarters of MPs voted for Remain. (In 2012 Nick Clegg had to abandon his Lords Reform bill after the government lost the timetabling motion following a big Conservative rebellion).

In the House of Lords, the government has no majority, and no control over time. The Lords Constitution Committee and the Lords EU Committee will both want to scrutinise the bill and its implications. The Lords will not block or wreck the bill, but they will want to give it proper scrutiny; especially if they think the scrutiny in the Commons has been inadequate.

Can the bill be amended?

In November government sources suggested the bill would be ‘bombproof’. Parliamentary officials say that is a fantasy. All sorts of ingenious amendments can be tabled, on process as well as substance: requiring a white paper to be published setting out the government’s negotiating position; seeking a second referendum on the negotiated terms; requiring the government to acknowledge that Article 50 notification is revocable, etc. Debate risks exposing continuing splits within both the Conservative and the Labour parties. Because the referendum specified nothing about what Brexit means, the battle continues between Brexiteers, who mostly support a hard Brexit, and Remainers hoping for a soft Brexit. Meanwhile Labour remains split on how to respond to the referendum outcome – to respect the will of the 52 per cent (who make up a majority in constituencies such as Stoke-on-Trent Central, where the forthcoming by-election will be hard fought), or speak up for the majority of Labour voters, who backed Remain. Speaking in parliament after the judgement, Labour’s Shadow Brexit Secretary, Keir Starmer, indicated that Labour would seek to amend the Article 50 legislation to require a white paper on the government’s plans, stipulate mechanisms for parliamentary scrutiny of the negotiations, and hold a ‘meaningful’ vote on the final deal. Legislation gives all groups in parliament multiple opportunities to table amendments or extract promises or impose conditions on the government during its passage.

Continue reading

Brexit in the Supreme Court, and after: your questions answered

robert_hazell (1)hamish

The Supreme Court will be the centre of political attention this week when the government’s appeal of last month’s High Court ruling on the triggering of Article 50 is heard. Robert Hazell and Harmish Mehta offer an overview of what the case is about, the likely outcome and its implications for the Brexit timetable.

The Brexit appeal to be heard by the UK Supreme Court (UKSC) from 5 to 8 December is the constitutional case of the century. All eyes will be on the Court hearing (which is to be broadcast live). And not just in Britain, but around the world. In recent weeks Robert Hazell has been advising foreign embassies, banks and investment managers from New York to Tokyo about the significance of the case, and the consequences which may flow from the court’s decision. They were particularly concerned about the impact on the timetable, the likelihood of the government getting authorising legislation through parliament, and the possibility of Brexit being delayed or even aborted. Here are some answers to their most frequently asked questions.

What is the case about?

On 3 November the High Court ruled that it was unlawful for the government to use prerogative powers to trigger Article 50 of the Lisbon Treaty to start the negotiations for Brexit, without reference to parliament. The government accepts that the judgement requires legislation to authorise the triggering of Article 50. But it has appealed to the Supreme Court to have the judgement reversed. All 11 Justices will hear the appeal from 5 to 8 December in a packed timetable. Their judgement is expected in January.

What is the likely outcome?

The case has generated huge interest amongst constitutional lawyers. Initial comment was strongly supportive of the High Court judgement, but since then the 30 or so commentaries on the UK Constitutional Law Blog have been more evenly divided. The government is likely to lose the appeal, because it has not significantly shifted its ground from the arguments it advanced in the High Court. In particular, it still maintains that Article 50 is irreversible: once triggered, it leads inexorably to the UK’s departure from the EU. The reasons for that are political: the government does not want to allow the possibility of second thoughts. But it seriously weakens the government’s legal case. It enabled the claimants to show that triggering Article 50 would lead inevitably to the abolition of statutory rights, such as the right to vote in European Parliament elections, and the alteration of UK statutes. They then argued that under a series of cases going back to the seventeenth century, statutory rights can only be abolished and UK statutes can only be altered by another statute, not by the prerogative.

Continue reading

What role will parliament have in triggering Article 50 and shaping the terms of Brexit?

robert_hazell (1)Jack_Sheldon

Constitutional lawyers have been engaged in a major debate over whether parliamentary authorisation is needed for Article 50 to be triggered and the process of negotiating Brexit to formally begin. In this post Robert Hazell and Jack Sheldon move the discussion on, asking how parliament might debate the triggering of Article 50 and, once it has been triggered, what role parliament might play in scrutinising the negotiations that follow.

There has been an outpouring of blog posts discussing whether there is a legal requirement for parliamentary authorisation before the Prime Minister can trigger Article 50 and start the formal negotiations to lead to the UK’s withdrawal from the EU. However, it is probable that regardless of the legal position, the political realities will require some form of parliamentary consent. This post moves the discussion on, to ask in what ways parliament might debate the triggering of Article 50, and, once it has been triggered, what role parliament might play in scrutinising the Brexit negotiations that follow.

Controlling the use of Article 50

Whether the government wants it or not, parliament is likely to have an opportunity to express its support for or opposition to the triggering of Article 50. This could take the form of either legislation, which would formally bind the Prime Minister and government, or a debate on a resolution about the triggering of Article 50 and the conduct of negotiations.

Legislation

Some have argued for the passage of legislation to govern the Brexit process. A court action has been launched to test whether legislation is required before Article 50 can be triggered. Undoubtedly much primary and other legislation will be necessary over the coming years to achieve separation. To explain the different options, this post assumes the court action will fail, so that legislation prior to triggering Article 50 is optional, and not a legal requirement.

Continue reading

Will Theresa May call an early General Election? And would it resolve things if she did?

robert_hazell (1)

Theresa May has ruled out an early general election, but that has not stopped predictable calls for her to trigger one on the grounds that her elevation to the premiership without a general election is undemocratic. Robert Hazell suggests that in saying that an early general election is not necessary she is entirely correct: the idea that Prime Ministers need a personal mandate is a misunderstanding of our parliamentary system. Were she to want to hold an election it would not be impossible for her to do so, but the Fixed-term Parliaments Act makes this more complicated than it has historically been and, in the context of Brexit, it is unclear what an early election would resolve in any case.

Does a new Prime Minister need a democratic mandate?

As soon as it was announced that Theresa May would be elected unopposed in the second stage of the Tory leadership race, and so would become Prime Minister, the predictable cries went up that this was undemocratic. No one had voted for her, it was said, other than the 35,000 electors in Maidenhead who voted for her at the 2015 general election, and the 199 MPs who voted for her in the final ballot amongst Tory MPs. The 150,000 members of the Conservative party had been deprived of any choice in the matter, let alone the 46 million electors in the country at large.

Theresa May has herself ruled out the need for an early election. Constitutionally she is entirely correct: the idea that prime ministers need a personal mandate is based upon a fundamental misunderstanding of our parliamentary system. Only in presidential systems is the head of the government directly elected. In parliamentary systems we elect a parliament, not a government. Parliamentary elections are a two stage process: after we have elected a parliament, the new parliament then determines who forms the government. And it is not uncommon for the head of government to change part way through a parliament, and not to call a general election.That has happened five times since the Second World War: when Harold Macmillan succeeded Eden in 1957, when he in turn was replaced by Alec Douglas-Home in 1963, when James Callaghan succeeded Harold Wilson in 1975, when John Major followed Margaret Thatcher in 1990, and when Gordon Brown succeeded Tony Blair in 2007. So far as I can recall, only in the last case was it suggested that the new Prime Minister needed to call a second election.

Continue reading

Will Brexit lead to the break up of the UK?

robert_hazell (1)

The differing referendum results in the UK’s component parts have led to immediate speculation about a second independence referendum in Scotland and a border poll in Northern Ireland. Robert Hazell assesses the situation.

Scotland (by 62–38) and Northern Ireland (by 56–44) voted to remain in the EU, but were outvoted by England and Wales. This has led to immediate speculation that there might be a second independence referendum in Scotland, and a border poll in Northern Ireland to seek re-unification with the south. Scotland’s First Minister Nicola Sturgeon has said that a second independence referendum is ‘highly likely’, and Northern Ireland’s Deputy First Minister Martin McGuinness has (not for the first time) called for a border poll. How likely is it that a referendum to leave the UK might be held in Scotland, or Northern Ireland; and how likely is it that such a referendum would be carried?

In both countries the two questions are closely connected. Having lost the 2014 independence referendum, Nicola Sturgeon is not going to call for another one unless she is confident that next time it can be won. She is likely to wait until the polls consistently show support of 60 per cent or more for several months. Since September 2014 the polls have suggested that Scotland is divided more or less 50–50, when Scots are asked if they would support independence now. It might be expected that Brexit would give a boost to support for independence, but our Brexit devolution seminar on 19 May suggested several reasons why that might not be the case.

Continue reading

The Queen at 90: the changing role of the monarchy, and future challenges

robert_hazell (1)bob-morris

To mark the celebrations of the Queen’s 90th birthday the Constitution Unit has published a new report that discusses the formal powers of the monarchy, and its wider role and functions. The report concludes by looking ahead to what further changes can be expected in the coming decades. It is summarised here by its authors, Robert Hazell and Bob Morris.

This week the Constitution Unit has published a report to mark the celebrations for the Queen’s 90th birthday, which discusses the formal powers of the monarchy, and its wider role and functions. The report also helps to set the scene for two new projects on the monarchy: the first, led by Bob Morris, is on the next accession and coronation, and the second, led by Robert Hazell, is to be a comparative study of the other monarchies of western Europe.

The changing role of the monarchy

0806161The report records how much the constitutional powers of the monarch have changed during the Queen’s reign, and her lifetime. All the important prerogative powers remaining in the hands of the monarch have been removed or severely restricted. The most important of the personal prerogatives are the power to appoint the Prime Minister; to summon and dissolve parliament; and to give royal assent to bills. We found that in exercising each of these powers, the monarch no longer has any effective discretion:

  • The constitutional conventions about the appointment of the Prime Minister have been codified in the Cabinet Manual, which explains that it is for the parties in parliament to determine who is best placed to command the confidence of the House of Commons, and communicate that clearly to the sovereign.
  • The prerogative power of dissolution was abolished by the Fixed-term Parliaments Act 2011. Parliament is now dissolved automatically after five years, or earlier if two thirds of MPs vote for an early election, or the government loses a no confidence motion. The power for the Prime Minister to ask the Queen for an early election has gone.
  • Royal assent to a bill has not been refused since 1707. It would only be withheld now (as then) on the advice of ministers.  That might happen with a minority government which could not otherwise prevent the passage of legislation against its wishes.

Continue reading

Scotland, Wales and Ireland point to how governments should be formed in hung parliaments

robert_hazell (1)

Nicola Sturgeon and Carwyn Jones have this week been re-elected as First Ministers of Scotland and Wales, whilst two week ago Enda Kenny was re-elected as Irish Taoiseach. In each case the newly elected parliament elected the head of the new government. In a new report Petra Schleiter, Valerie Belu and Robert Hazell argue that a similar procedure should be adopted at Westminster, where currently the Queen decides who should be Prime Minister before parliament meets. Robert Hazell explains why.

This week has seen the re-election of Nicola Sturgeon and Carwyn Jones as First Ministers in Scotland and in Wales, following the devolved elections on 5 May. Two weeks ago we witnessed the re-election of Enda Kenny as Taoiseach in Ireland, ten weeks after the Irish election on 26 February. What these three countries have in common is not just that the same leader has been re-elected, but that in their recent elections Scotland, Wales and the Republic of Ireland all saw the return of a hung parliament in which no party gained an overall majority. In these circumstances it does not fall to the Queen to decide who shall be First Minister, or in Ireland to the President; under their constitutions it falls to the newly elected parliament, whose first business (after election of a presiding officer) is to elect the head of the new government.  That is what happened in Ireland on 6 May, in Scotland on 17 May and in Wales on 18 May.

In a report published this week, which I have written with Professor Petra Schleiter and Valerie Belu of Oxford University, we suggest that is what should also happen in future at Westminster. Instead of the Queen having to decide who should be Prime Minister before parliament meets, the first business of a newly elected House of Commons should be to select the Prime Minister, who would then be formally appointed by the Queen.

This may seem unnecessary after elections when a single party wins an overall majority, and it is obvious who is going to be Prime Minister: as happened in the UK in 2015. In those cases the election of the leader of the majority party to head the new government would be a formality.  The value of asking the House of Commons to choose the Prime Minister is when it is not obvious who can command confidence in the newly elected parliament. That is always going to be the case in a hung parliament, especially if it is closely hung. We risk forgetting how narrowly we escaped from having such a parliament after the 2015 general election. In the weeks before the election the polls suggested a very close result, with some forecasting a dead heat between the two major parties. Although the Cabinet Manual says it is for the political parties to work out who can command confidence in the new parliament, there is a risk of confusion and uncertainty if there is a standoff, with both main parties claiming to be able to form a government. The only reliable way to determine who can command confidence in such a situation is a nomination vote in the House of Commons. That would be a quicker and cleaner solution than the traditional vote on the Queen’s Speech as the first test of confidence in a new government.

Continue reading