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

Miller 2/Cherry and the media – finding a consensus? 

thumbnail_20190802_092917.jpgprofessor_hazell_2000x2500_1.jpg Despite the UK Supreme Court managing to find unanimity regarding the legality of the attempted prorogation of parliament in  September, the rest of the country, including its national newspapers, appeared to divide along Leave/Remain lines regarding the correctness of the judgment. Sam Anderson and Robert Hazell analyse how the national press discussed the political and constitutional questions raised by the judgment.

The government’s resounding defeat in the Supreme Court is one example of the rolling constitutional drama that breaks in the news almost daily. However, when it comes to media coverage of these stories, the key consideration is almost always ‘What impact will this have on Brexit?’ Issues are reported through the Leave/Remain divide, with popular news outlets framing events for their audiences. This post seeks first to examine the extent to which this has occurred with the prorogation case by looking at eight national newspaper editorials, and the way they have framed the political implications of the judgment. Then, using the same editorials, we will examine whether there is consensus around important constitutional issues that have arisen in this case, such as the proper role of the Court and the importance of the independence of the judiciary. We coded the editorials on both these questions, and found that the case was framed by almost all the papers to some degree through a Brexit lens, and that there is a lack of consensus on the constitutional issues.  

The political questions

The first issue was coded on a scale of -5 to five. Zero reflects the position of the Court: that the judgment concerned the specific prorogation issue, but was neutral with regards to the political implications of the decision. Editorials which argued the judgment would have negative political implications for the government and the Brexit process were assigned a negative number up to -5, depending on the extent they engaged in direct criticism of the judgment, and promoted the government’s policy of getting Brexit done. Editorials that argued that the judgment would have positive political implications for the government and Brexit process were assigned a positive number up to five, depending on the extent to which they were directly critical of the government and its Brexit policies. All eight articles were independently coded by two researchers. Where discrepancies occurred, a mid-point was taken. 

Paper Implications for Brexit 
Sun -5
Mail -4
Express -2
Telegraph  -1.5
Times  0.5
FT  2
Independent 3
Guardian  4.5

 

Looking qualitatively, there were three overarching positions taken. Of the eight publications, four were critical of the judgment and its  potential political implications. The Sun described the Prime Minister as the victim of a ‘staggering legal coup and accused the Court of having done the bidding of Remainers. The Daily Mail was less virulent, but still argued the case was a victory for Remainers, and emphasised how the judgment allowed MPs (including ‘masochistically intransigent Eurosceptic zealots) to continue to try and block the will of the electorate. The Daily Express was less direct but warned politicians that the case should not be used as a way to try to avoid Brexit. The Daily Telegraph made the only substantive comments on the case, noting pointedly that the Supreme Court overruled the High Court’s finding of non-justiciability, and gave some explanation for the prorogation: the government had only been ‘trying to carry out the democratic will’ of the people as expressed in the referendum.  Continue reading

We need to talk about our democracy

me 2015 (large)Meg-RussellRecent days have seen ferocious attacks against the roles of both judges and parliamentarians in our democratic system. Alan Renwick and Meg Russell write that this assault is just the latest in a series of signs that the quality of our democracy is under threat. In light of this they argue for concerted efforts to defend that democracy: by pushing back hard against immediate challenges to the rule of law, resisting the lures of populism, and listening to those tempted by populist and anti-political rhetoric.

Thursday’s High Court ruling on Article 50 (assuming it is confirmed by the Supreme Court), means no more than that the government cannot legally begin formal Brexit negotiations without parliament’s consent. The judges did not question the validity of the referendum result or try to block the UK’s withdrawal from the EU – they just clarified the law. Parliament – as demonstrated by many MPs’ reactions – will almost certainly feel politically bound to respect the referendum outcome and authorise the Article 50 trigger.

Yet, as is now well known, the judgement has unleashed a wave of vitriol from parts of the press, from some politicians, and even from certain government ministers. The Daily Mail labelled the judges who delivered the ruling as ‘enemies of the people’. The Telegraph presented the issue as one of ‘judges vs the people’. Nigel Farage talks of a ‘great Brexit betrayal’. The Communities Secretary, Sajid Javid, referred to the case as ‘a clear attempt to frustrate the will of the British people’. Hearing such reactions, many ordinary citizens are understandably outraged by what they perceive as the scheming duplicity of an arrogant governing elite.

This gross overreaction is deeply worrying and potentially dangerous. We tend to presume that the democratic system in the UK is rock solid. Yet the democracy indices produced by the Economist Intelligence Unit and Freedom House have charted declining democratic quality in recent years in many long-standing democratic countries, including Austria, Belgium, and the Netherlands. In the United States, commentators and senior political scientists are greatly troubled by how Donald Trump’s behaviour and rhetoric of rigged elections could weaken the foundations of the democratic system. Democracy faces similar challenges here in the UK too. In light of this, we need to cool the passions and encourage a national conversation about what democracy is and what sustains it.

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In order to sustain itself, the UK must become a new and different Union

Jim-Gallagher

Jim Gallagher reflects on what the Scotland Bill tells us about the Scotland-UK relationship and devolution more broadly. He argues that the Bill presents a challenge to the unwritten constitution, and that now is the time to clarify and codify the territorial aspects to make a statement about how and why the Union hangs together.

The Scotland Bill calls to mind, irresistibly, the aphorism of Lampedusa: if things are to stay the same, they’ve got to change. If it is to sustain itself as a Union, the UK must become a new and different one. The Scotland Bill should be the catalyst for change, but this isn’t only about Scotland.  It is about how the UK understands itself as a territorial state. Like Scotland, Wales and Northern Ireland understand the UK as a voluntary association bound together by common interests and shared experience, in many ways like a federal country. But too many at the centre of the UK see a unitary state with some untidy territorial edges. In essence this understanding is based on a half-baked notion of parliamentary sovereignty. If the UK wants to stay together, this has to change.

The Scotland Bill makes the nature of Scotland-UK relationship more explicit, and implies similar things about Wales and Northern Ireland too. The UK is a multinational state, an association whose membership is voluntary, and that is now very explicit for both Northern Ireland and Scotland. Scotland has always had its own institutions, separate from the UK’s. For first three centuries after the union, these were Scottish, but undemocratic. For the last 15 years, Scottish institutions have been accountable through the Scottish Parliament. The Scotland Bill puts it beyond doubt that this is irreversible. Devolution is permanent, and the Scottish Parliament is master in its own house: its power is paramount in devolved matters, and it controls its own composition. That is the point of the constitutional provisions of the Bill: statements of the obvious if you like, but that will be true of many constitutions–if you know how the institutions work in practice, you will find the constitutional legislation almost banal.

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Human rights, the judiciary and the constitution: Past and future challenges

juliet-wells-photo

At the Constitution Unit’s 20th anniversary conference Dawn Oliver, Stephen Sedley and Richard Cornes assessed the Unit’s contribution to debates around human rights and the judges in the UK, and how it can feed into the challenges that lie ahead. Juliet Wells offers an overview of the session.

This is the second of a series of posts based on presentations at the Unit’s 20th anniversary conference, held on 23 June 2015.

Professor Dawn Oliver took the lead in the session reflecting on the Unit’s wide-ranging contribution to political and legal discourses on human rights and the judiciary, while the respondents were Sir Stephen Sedley and Richard Cornes (who was unfortunately unable to attend on the day, but sent a statement read by the session chair James Melton). The panel therefore reflected rich expertise across public law and offered a thoroughly engaging range of perspectives on the Unit’s impact, and on the possible future direction of these vitally important areas.

Human rights figured particularly prominently in the discussion, and much was coloured by the existential threat now posed to the Human Rights Act 1998. Looking back, Dawn Oliver emphasised the prescience of Nicole Smith’s 1996 report, Human Rights Legislation, in anticipating not only that the Human Rights Act would need a ‘champion’ in future years if it was to survive in the long-term, but also that the legal implications of repealing the Act and replacing it with a ‘home-grown’ bill of rights would be profoundly complicated by the effects of having incorporated the European Convention on Human Rights into domestic law. In particular, it was identified that the long-term consequences of the relationship between Strasbourg and the domestic courts that the Act set up would generate real controversy, even as it would affirm and entrench the importance of Strasbourg jurisprudence in cases before the UK courts. Looking forward, she reflected on the possible consequences of repeal, as well as on the causes of the apparent ‘tidal wave’ of hostility towards the Act. In considering both of these issues, she suggested that a lack of respect for the rule of law, manifested most conspicuously in the shift towards the view that the courts should not be accorded any responsibility for the UK’s compliance with its international treaty obligations, was at work. This, she thought, could be traced back to the 9/11 attacks, which did much to ‘shake people into hostility’ towards the Human Rights Act. Richard Cornes built upon this by suggesting that enacting a British Bill of Rights, which would in many ways be essentially similar to the Human Rights Act, will serve only to refocus the attention of rights-sceptics onto the UK courts, and thus to intensify claims that judges are ‘self-aggrandising’.

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