Braking the law: is there, and should there be, an executive veto over laws made by parliament?

During the Brexit crises of 2019, something exceptionally rare happened twice in less than six months: parliament passed legislation without the government’s consent. But are there constitutional veto mechanisms that governments can use to prevent this? In a new Unit report, Paul Evans explores this question in detail. He summarises his conclusions here.

What do executive vetoes look like? 

Many constitutional democracies include mechanisms whereby a head of state can veto a law made by the legislature, but few of these are absolute vetoes. Most are suspensory, inviting the legislature to think again, but giving it the last word. The US Constitution is the most obvious example of such an arrangement. France has a broadly similar system but, as with many if not most such vetoes, it isn’t used. Some states (for example Iceland) enable the president to put a law to a referendum. Others (such as Ireland) leave the last word with a constitutional court, but only on matters of constitutionality, not on grounds of political disagreement.

In the UK (and most of the old dominions which retain the Queen as head of state) such an arrangement looks impossible. The executive and the legislature are fused – they can’t have different views. The executive as a lawmaker in the UK only exists as an element of the sovereign parliament (the somewhat misleadingly titled ‘Crown-in-Parliament’). The sovereign has no personal stake in the making of law. They must do as parliament decides. As long ago as 1867, Walter Bagehot expressed this constitutional fact with typical rhetorical brio:

The popular theory of the English Constitution involves two errors as to the Sovereign. First, in its oldest form at least, it considers him as an ‘Estate of the Realm’, a separate co-ordinate authority with the House of Lords and the House of Commons. This and much else the Sovereign once was, but this he is no longer. That authority could only be exercised by a monarch with a legislative veto. He should be able to reject bills, if not as the House of Commons rejects them, at least as the House of Peers rejects them. But the Queen has no such veto. She must sign her own death warrant if the two Houses unanimously send it up to her. It is a fiction of the past to ascribe to her legislative power. She has long ceased to have any.

Withholding of royal assent

Nonetheless, when the first stirrings of what was to become the Cooper-Letwin Act (the European Union (Withdrawal) Act 2019) began in the Commons in early 2019, it was suggested in some quarters that ministers could advise the sovereign to refuse royal assent to an Act agreed upon by parliament. The same argument re-emerged six months later in relation to the Benn-Burt Act (the European Union (Withdrawal) Act (No. 2) 2019), which Boris Johnson insisted on referring to repeatedly as the ‘Surrender Act’. But, despite these theoretical arguments, subsequent events appear to have confirmed that this concept of a royal veto is definitely a dead letter. Queen Anne was the last sovereign to decline the royal assent to an Act passed by parliament – in 1707 (or 1708 if you prefer to apply retrospectively the change of the new year from 25 March to 1 January in 1752). 

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Boris Johnson’s 36 new peerages make the need to constrain prime ministerial appointments to the House of Lords clearer than ever

meg_russell_2000x2500.jpgBoris Johnson’s long-awaited list of new peerage appointments was published today, and includes 36 names. Instantly, by appointing such a large number of new members to the Lords, Johnson has undone years of progress in trying to manage the size of the chamber down – returning it to over 800 members. Here, Meg Russell, a leading academic expert on the Lords and adviser to two different parliamentary committees on the chamber’s size, analyses the numbers – showing the detrimental effects on both the chamber’s overall membership and its party balance. She argues that Johnson’s new peerages make it clearer than ever that constraints must be placed on the Prime Minister’s power to appoint to the Lords.

News reports about Boris Johnson’s first major round of Lords appointments have focused largely on personalities – the appointment of cricketer Ian Botham, the return to the fold of Conservative grandees such as Ken Clarke and Philip Hammond, who Johnson stripped of the party whip last year, and his reward of former Labour Brexiteers. But while some of these names may be notable, the bigger and more important issue is how Johnson’s new appointments will affect the Lords as a parliamentary chamber, and how they show up – yet again, and powerfully – the problems with the largely unregulated appointment process.

It is remarkable that in 2020 there are still no enforceable constraints on how many peers a Prime Minister can appoint to the second chamber of the UK legislature. Formally appointments are made by the Queen, but convention requires her to act on prime ministerial advice. The Prime Minister can choose when to appoint, how many to appoint, and what the party balance is among new members. A House of Lords Appointments Commission (HOLAC) was created in 2000, but has very limited power. It merely vets the Prime Minister’s proposed nominees for propriety (e.g. ensuring that their tax affairs are in order), and recommends an occasional handful of names for appointment as independent members. It can do nothing to police the numbers, or even the broader suitability of the PM’s own appointees. In theory, a Prime Minister could simply appoint hundreds of members of their own party (indeed, during the Brexit debates there were threats to do so both from the now Commons Leader Jacob Rees-Mogg and from Johnson himself). Appointees could even all be personal friends of the Prime Minister. The sole constraint is HOLAC’s propriety check (which is rumoured to have angered Johnson by weeding out some of his nominees) and any fear of media or public backlash. This unregulated patronage is one of the last vestiges of pure prime ministerial ‘prerogative’ power. Following last year’s Supreme Court case, even the previously unregulated power to prorogue parliament now exists within some legal constraints.

Aside from general concerns about patronage, there are two main interconnected problems caused by unregulated appointments on the House of Lords. First, the ever growing size of the chamber. Second, the lack of any rational basis for its party balance.  Continue reading

Brexit and parliament: treaties beyond the EU

In the latest extract from our joint report on Parliament and Brexit, Jill Barrett argues that the need for effective scrutiny of post-Brexit trade deals is high, and that parliament needs to develop mechanisms to better scrutinise the deals made by the government.

Leaving the EU means the UK is not only leaving the EU trading bloc and negotiating a new future relationship with the EU, but also leaving its global network of trade treaties – which consists of 41 trade agreements covering 72 countries. All of these will cease to apply to the UK at the end of the transition period (31 December 2020, unless extended by agreement). The UK’s trade with other World Trade Organization (WTO) member countries will then take place on WTO terms, except where there is a new trade agreement in place.

The UK government is seeking to ‘roll over’ the 41 existing EU agreements, by negotiating similar new agreements with the third states concerned. So far, only 19 replacement agreements have been signed and a further 16 are ‘still in discussion’. In some cases, notably Japan, the other state is not willing simply to replicate the terms that it has with the EU, but is seeking further concessions from the UK. Achieving a deal in all cases by the end of 2020 will be extremely challenging, and some may well take considerably longer.

Now the UK has an independent trade policy it can also seek new trade relationships with states that are outside of the EU’s treaty network. The government has announced that its priority is to negotiate bilateral trade treaties with the USA, Australia and New Zealand, and one may expect the next phase to include negotiations with major emerging economies such as China and India. All of these will raise matters of intense interest to parliament and the public.

What is parliament’s role in relation to the making of treaties? Treaties are negotiated, adopted, signed and ratified by the government using royal prerogative (executive) powers. In legal terms, parliament has two distinct roles. First, the government is obliged to lay a new treaty before parliament for 21 sitting days prior to ratification, under the Constitutional Reform and Governance Act 2010 (CRAG). In theory, this gives parliament the opportunity to scrutinise the treaty and object to ratification, by passing a resolution. An objection by the House of Commons (but not by the Lords) would block ratification. Secondly, if implementation of the treaty requires new legislation, parliament has the power to pass or defeat that legislation (or amend it, if it is a statute). If essential implementing legislation is blocked, this would normally stop the government ratifying the treaty. Continue reading

The government’s proposed Constitution, Democracy and Rights Commission: what, why and how?

meg_russell_2000x2500.jpgalan.jfif (1)The Conservative Party manifesto promised a ‘Constitution, Democracy and Rights Commission’, but as yet little is known about the government’s plans. Meg Russell and Alan Renwick reflect on what such a Commission might look at, and how it might go about its work. They conclude that a long-term perspective is important, so that the Commission is not just ‘fighting the last war’ over Brexit. Given the fundamental nature of the questions that may be asked, citizens should be fully involved.

Page 48 of the Conservative Party manifesto committed the government to establishing a ‘Constitution, Democracy and Rights Commission’ within its first year. This could have a far-reaching remit, covering ‘the relationship between the Government, Parliament and the courts; the functioning of the Royal Prerogative; the role of the House of Lords; and access to justice for ordinary people’, plus the operation of the Human Rights Act. Creation of such a body is clearly an ambitious enterprise, with potentially long-lasting effects – but, as yet, very little is known about the government’s plans for the Commission. This post first explores the ‘what and why’ of the Commission: which issues might it need to address, and what is the motivation behind it? Second, we consider the ‘how’: specifically, in terms of how the public could and should be involved.

What will the Commission review, and why?

The list of topics potentially ascribed to the new Commission is long, and covers some absolute fundamentals of the constitution. While the UK has seen much constitutional change in recent decades – most obviously Labour’s post-1997 programme, which included devolution and Lords reform, and the subsequent Constitutional Reform Act 2005 which established the Supreme Court – these developments involved no formal review of the core relationships between different constitutional branches. Indeed, Labour’s programme was often criticised as piecemeal, and for failing to go back to first principles. In some ways, a review of these fundamentals is therefore refreshing. But questions such as the proper balance of power between government, parliament and courts, and the role of the monarchy are also extremely big, complex and delicate.

So why are such challenging questions being asked now? This is where the Commission’s potential role gets more troubling. The UK has recently witnessed an exceptionally turbulent period in constitutional terms, with the referendum vote for Brexit followed by a significant struggle over its implementation. Particularly during 2019, tensions ran very high between government and parliament, with the Supreme Court becoming involved via the prorogation case. That these tensions helped motivate the proposed Commission seems clear from other words in this section of the manifesto, which suggest that ‘The failure of Parliament to deliver Brexit… has opened up a destabilising and potentially extremely damaging rift between politicians and people’. Leaving aside the question of which parliamentarians exactly were responsible for blocking Brexit, this statement highlights how concerns about the most recent period (including the Supreme Court’s role) have driven some on the Conservative side to seek reform.  Continue reading

Can Boris Johnson simply repeal the Fixed-term Parliaments Act?

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The Conservative manifesto pledged to repeal the Fixed-term Parliaments Act, but was silent about what, if anything, would replace it. Robert Hazell argues that it is not enough to simply repeal the Act; new legislation will have to be drafted, parliamentary scrutiny will have to take place, and the options for reform should be properly considered.

Can the Fixed-term Parliaments Act simply be repealed? The short answer is: no. As always, it is more complicated than that. But the commitment in the Conservative manifesto was unambiguous: ‘We will get rid of the Fixed Term Parliaments Act [sic] – it has led to paralysis at a time the country needed decisive action’ (page 48). And decisive action is what the government hopes to display through early repeal of the FTPA. It does not seem to be one of the issues to be referred to the new Constitution, Democracy and Rights Commission, since they were mentioned separately in the Queen’s Speech. So — unless the government has second thoughts — we can expect early legislation to be introduced to repeal the FTPA.

The government may feel that it can press ahead with little opposition, since the Labour manifesto contained an equally unambiguous commitment to repeal: ‘A Labour government will repeal the Fixed-term Parliaments Act 2011, which has stifled democracy and propped up weak governments’ (page 81). But there is no need for urgent legislation: this is not a pressing issue, and with a government majority of 87, we are not going to see motions for early dissolution or ‘no confidence’ any time soon. And there are good reasons for taking it more slowly: not least, that there is provision for a statutory review of the FTPA in section 7 of the Act, due to be initiated in 2020. In anticipation of that review, the Lords Constitution Committee is already conducting an inquiry into the operation of the Act, due to conclude in around March.

The evidence submitted last year to the Constitution Committee (in 14 written submissions, and four sessions of oral evidence) has brought out many of the difficulties involved. These are both political and technical. The main political difficulty is that repeal of the Act would return us to the situation where the incumbent Prime Minister can choose the date of the next election. No one disputes the potential advantage that confers: in Roy Jenkins’s famous phrase, uttered during a Lords debate on 11 March 1992, it is equivalent to deciding ‘to give the pistol in a race to one of the competitors and encourage him to fire it whenever he thinks that the others are least ready’. It also enables the government to time the election when they are doing well in the opinion polls, and to stoke up their support through good news announcements and giveaway budgets. Petra Schleiter’s research shows that this confers a significant electoral advantage: in the UK since 1945, the average vote share bonus realised on calling an early election was around 6%, and it doubled the likelihood that the incumbent PM survived in office.

Electoral fairness is the main argument for fixed terms, but not the only one. Other reasons include better planning in Whitehall because of greater certainty, less risk of losing legislation to a snap election, more clarity for the Electoral Commission and electoral administrators, and for the political parties. It is true that electoral certainty has not been much in evidence in recent years, with two early elections in 2017 and 2019. But it would be wrong to judge the FTPA solely on the basis of the extraordinary Brexit parliaments of 2015 and 2017. It is too early to rush to judgement, and it is too insular: most of the Westminster world, and almost all European parliaments have fixed terms, so there is plenty of wider experience to draw upon. A more balanced approach would ask – as the Lords Constitution Committee has done – whether the FTPA needs fine tuning, and if so what amendments are required, rather than rushing straight to repeal. Continue reading