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

Brexit and parliament: where did it all go wrong?

meg_russell_2000x2500.jpgParliamentary arguments over Brexit may now feel far behind us, but the bitterness of those arguments has left scars on our politics. Meg Russell examines four factors which contributed to the parliamentary ‘perfect storm’ over Brexit, concluding that ‘parliament’ largely got the blame for divisions inside the Conservative Party. This was fuelled by the referendum, minority government and the inability of parliamentary rules to accommodate a minority situation. The populist anti-parliamentary rhetoric which resulted was potentially damaging, with implications for the current Covid-19 crisis, when public trust in political decision-making is essential.

Amidst the current Covid-19 crisis, last year’s Brexit clashes already feel a long time ago. But at the time, they pushed Britain’s politics and constitution to their limits. Parliament was frequently at the heart of these conflicts – with angry headlines suggesting that parliamentarians were seeking to ‘block Brexit’, and branding them ‘wreckers’ or ‘saboteurs’. Twice questions of parliament’s proper role in relation to government ended up in the Supreme Court. Boris Johnson sought a lengthy prorogation of parliament, after which the Attorney General told MPs that they had ‘no moral right to sit’. How on earth did the UK, traditionally the most parliamentary of all democracies, get into such a mess? I dissect this question in a newly-published paper, ‘Brexit and Parliament: The Anatomy of a Perfect Storm’, in the journal Parliamentary Affairs. This post summarises the article’s key arguments. The full version is freely available to read online.

I suggest that four key political and constitutional features, all unusual in the UK context, contributed to this ‘perfect storm’. It was accompanied by a rise in populist and anti-parliamentary rhetoric – of a kind which would be destabilising and dangerous in any democracy, but particularly one based on a core principle of parliamentary sovereignty – as returned to at the end of this post. The four factors were as follows:

The referendum

As charted by the Independent Commission on Referendums, referendum use has grown in UK politics, but can sit awkwardly with traditional parliamentary sovereignty. Arguments for referendums on matters concerning EU powers were made over a long period (somewhat ironically) on the basis of protecting that very sovereignty. The 2016 EU referendum – eventually conceded by David Cameron, under pressure from Conservative Eurosceptics and UKIP – was very unusual, in two important ways. First, it was what the House of Commons Public Administration and Constitutional Affairs Committee (chaired by senior Brexit supporter Bernard Jenkin) criticised as a ‘bluff-call’ referendum: where the government’s purpose was not to seek approval for a change that it supported, but to shut down its opponents’ demands. Second, the referendum was held on a broad proposition (to leave the EU), rather than a detailed prospectus. Hence when the result came in, and was not the one the Prime Minister or most MPs (even on the Conservative benches at that time) wanted, parliament was left to decide how to put it into effect. Such circumstances generated clear tensions between parliamentary and popular sovereignty. Continue reading

Parliament and Brexit: what do the public think?

IMG_20181213_223144Almost four years have passed since the 2016 EU referendum delivered a mandate for Brexit. However, as John Curtice explains in the latest extract from our joint report on Parliament and Brexit, the views of the public on the role of referendums in the Brexit process is heavily influenced by their views on whether Britain should leave the European Union or remain a member.

Though they have been used various times on constitutional matters in the UK, referendums are often thought to challenge traditional notions of representative parliamentary democracy. In the UK’s version of such a democracy, MPs are sent to Westminster to deliberate and exercise their judgement on their constituents’ behalf. Referendums seemingly usurp this traditional role, in an attempt to ascertain ‘the will of the people’.

Nonetheless, survey research has long suggested that referendums are popular with voters – as indeed was the June 2016 EU referendum. A fortnight beforehand, 52% told YouGov that David Cameron was right to hold a referendum on Britain’s EU membership, and only 32% said he was wrong. On the very eve of polling, Ipsos MORI reported that 66% of voters felt the Prime Minister was right to hold a ballot, while only 24% reckoned he was wrong.

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Yet, underneath the surface there were already important differences of opinion. As the first chart shows, Leave and Remain backers had rather different views. According to YouGov, 83% of Leave supporters supported Cameron’s decision, and only 9% thought it wrong. In contrast, 60% of likely Remain voters disliked the decision and only 26% approved. Of course, in calling the referendum Cameron had opened up the possibility that the UK might indeed leave the EU, a prospect that Leave voters were more likely to
embrace. Continue reading

Parliament, politics and anti-politics

meg_russell_2000x2500.jpgThis week, the Constitution Unit and UK in a Changing Europe publish a new report, Parliament and Brexit, which contains expert analysis how parliament has handled Brexit in the near four-year period since the 2016 referendum victory for the Leave campaign. It also includes discussion of parliament’s future scrutiny functions, as Brexit continues to take shape in increasingly difficult political times. In this, the first excerpt from the report to appear on our blog, Unit Director Meg Russell outlines how the tussle between parliament and government over Brexit harmed the former’s reputation, to the detriment of our parliamentary democracy.

Parliament sits at the heart of the UK’s democracy, with core functions of holding the government to account, scrutinising and legitimising its actions. Through local representation and the representation of political parties, it links citizens to the key political decisions that are taken in their name.

In all democracies parliaments are central – it’s impossible to be a democracy without a parliament. But this centrality is particularly so in the UK, for two fundamental reasons. First, as a ‘parliamentary’ (rather than presidential) democracy the government ultimately depends on the confidence of the House of Commons for its survival. Second, the UK puts the principle of ‘parliamentary sovereignty’ at the core of its constitution (as discussed in Barnard and Young’s contribution to the report). Challenges to the authority of parliament are thus challenges to UK democracy, and potentially to our constitution itself. Yet such challenges occurred, increasingly, during the Brexit process.

That process saw unprecedented levels of conflict between government and parliament, and perceived conflicts between ‘parliament and people’, precipitated by a unique chain of events. The 2016 referendum handed voters the in-principle decision over the UK’s membership of the EU, at a time when most MPs supported Remain (see contributions in the report from Philip Lynch and Richard Whitaker). This already promised tensions, given that parliament and government were left to navigate the more detailed questions about the form that Brexit should take. The Conservatives were highly divided on Brexit, while most Labour MPs instinctively opposed it. Delivering such a controversial policy with the narrow parliamentary majority that Theresa May inherited from David Cameron looked risky, so she gambled on a general election in 2017 to improve matters; but this resulted in an even weaker minority government. Her authority was undermined, and parliament more divided than before. Continue reading

Has parliament just got boring? Five conclusions from the passage of the EU Withdrawal Agreement Act

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The 2019 parliament has passed its first statute: the European Union (Withdrawal Agreement) Act 2020. Unusually for a major constitutional bill it was approved unamended. Does this demonstrate the shape of things to come, with an enfeebled parliament under Johnson’s majority government? Lisa James and Meg Russell argue that the WAB was not a typical bill, and the circumstances were far from normal. Even under majority government parliament is far from powerless, and the full dynamics of the new situation may take some time to play out.

1. The Act passed easily – but the circumstances were unusual

The EU (Withdrawal Agreement) Act 2020 (the WAA or – before it gained Royal Assent – the WAB) passed with remarkable ease and speed. A 100-page bill implementing the Withdrawal Agreement, it was packed with detailed provisions on everything from citizens’ rights to the operation of the Joint Committee. Nonetheless, following just 11 days’ scrutiny, it passed wholly unamended: five government defeats in the Lords were swiftly overturned when the Bill returned to the Commons.

Comparison with a key previous piece of Brexit legislation – illustrated in the table below – shows how uneventful the WAB’s passage was in relative terms. The EU (Withdrawal) Act 2018 was similar in scope and complexity, but had a far rockier passage. During 36 days’ scrutiny the government was defeated 16 times, including a rare defeat in the Commons. By the time it passed, it had been so heavily amended – by backbenchers, opposition parliamentarians and ministers themselves – that it was 63% longer than when first introduced.

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Northern Ireland: politics on the move, destination uncertain

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Three years on from the collapse of the Northern Ireland Executive m prompted by the RHI scandal, a power sharing government has returned to Stormont on the back of a deal that promises a ‘new approach’. Alan Whysall analyses the new deal, how it might work in practice and what pitfalls might await the new ministerial team.

We have devolved government in Northern Ireland once more, with a new political deal, New Decade, New Approach. This is a cause for real hope, responding to the public mood, and the politics dictate it must operate for the moment. Many of the underpinnings are, however, fragile. Government and politics need to operate differently if they are to succeed in the longer term.

The last thousand days

Government in Northern Ireland has been in abeyance for three years. In early 2017, one of the two main parties, Sinn Féin, withdrew over the involvement of the other, the DUP, in a mismanaged sustainable energy scheme, the Renewable Heat Incentive. Beneath the surface were other tensions, notably around respect for Irish identity – crystallised latterly in demands from Sinn Féin and others for an Irish Language Act. Division between the parties was sharpened by Brexit, which the DUP favoured but others did not; and later by its Westminster alliance with the May government. 

While devolution operated, parties in government had moderated their language. Once it collapsed, rhetoric, and feeling in parts of the community, became hardened and polarised, reminiscent of the atmosphere before the Good Friday Agreement. The British government, under uninspiring Secretaries of State and writhing in its Brexit agonies, incurred universal mistrust. Relations between London and Dublin became tense. The prospect of Irish unity through a border poll – which the Agreement makes in principle a matter for simple majorities in both parts of Ireland – featured increasingly in Sinn Féin’s approach, and appeared from opinion polling to be growing closer. Paramilitaries on both sides saw opportunities in the political vacuum; last spring dissident Republicans, seeking to kill police officers, murdered a journalist, Lyra McKee.

There was at first remarkable equanimity over the extraordinary situation of Northern Ireland being left without government, beyond civil servants minding the shop. The British government hesitated to impose direct rule, as in the past; its dependence on the DUP would have made such a step destabilising. 

A report late last year by the new Northern Ireland think tank Pivotal shows how seriously Northern Ireland has suffered from inattention to its grave economic and social problems, under devolution and since. Continue reading

Enacting the manifesto? Labour’s pledges and the reality of a hung parliament

professor_hazell_2000x2500_1.jpgmeg_russell_2000x2500.jpgMedia coverage in this election has been dominated by the Conservatives and Labour, and their competing policy plans. But a key difference between the parties is that, while a Conservative majority government is clearly possible based on the polls, a Labour majority government is not. Hence a Labour-led government would need to negotiate its policy with other parties, which would soften its stance. Robert Hazell and Meg Russell reflect on the lack of coverage of these questions, and what a Labour-led government would actually look like – in terms of personalities, policies and style.

Consistent opinion poll evidence during the general election campaign suggests that there are two possible outcomes: a majority Conservative government led by Boris Johnson, or a hung parliament. In the event of the latter, Johnson might still remain Prime Minister, but he has few allies – even having alienated Northern Ireland’s DUP. So a hung parliament might well result in a government led by Labour, even if the Conservatives are the largest party. But one thing is clear: nobody is really expecting a Labour majority government. 

Consequently, particularly as the polls have failed to shift into majority Labour government territory during the campaign, it is strange that so little attention has been given to the question of what a Labour-led government might actually deliver in policy terms. To navigate policy through a hung parliament this would need to be accepted by other parties. In some areas – notably the commitment to a referendum on Brexit – the parties agree; but in other areas there may be less agreement. So whilst significant attention has been paid to the radicalism of Labour’s manifesto, a hung parliament – which might lead to a minority Labour government, or less likely (given statements from the Liberal Democrats and SNP) a formal coalition – would inevitably result in some dilution. As noted in the Constitution Unit’s 2009 report on minority government, hung parliaments ‘[entail] a greater degree of compromise and concession than leaders of governments at Westminster are used to’.

Thus focus on Labour’s economic policy – such as its tax or nationalisation plans – might usefully have been tempered by journalists asking questions of the other parties about the extent to which they would accept such plans, or how they might be softened as a result of negotiation. In a country where hung parliaments are more frequent, debate about the likely compromises between parties would be far more upfront during the campaign. Instead, the UK’s legacy of single-party majority government (notwithstanding the fact that this situation has applied for just two of the last nine years) has led to parties and journalists alike avoiding such questions. This, in turn, risks leaving the public ill-informed about the real prospects post-election. Continue reading

The Mechanics of a Further Referendum on Brexit Revisited: Questions for the New Parliament

A further referendum on Brexit is central to many parties’ general election pledges. Today, the Constitution Unit launches a new report examining how such a vote might come about and what form it might take. This updates previous work conducted last year. In this post, adapted from the report’s final chapter, Alan Renwick, Meg Russell, Lisa James and Jess Sargeant sum up the key conclusions. They find that, though it would not be without difficulties, a vote on Johnson’s deal may be the quickest option and the one most likely to command public legitimacy. 

The Constitution Unit’s latest report, The Mechanics of a Further Referendum on Brexit Revisited: Questions for the New Parliament, is published today. It significantly updates our previous analysis of the mechanics of a further Brexit referendum, exploring the circumstances that might lead to a further referendum on Brexit, and the form that such a referendum might take. The report does not advocate for or against a referendum, or assess the broader impact that such a vote might have. Rather, it explores the practical implications of the different options: in terms of the processes to bring a referendum about, the standards that it should meet, the options for reforming regulation, and, crucially, the timetable.

The minimum timetable from the point at which parliament decides in principle to hold a referendum to the date on which that referendum is held is roughly 22 weeks – or five months. Claims that organising a referendum would take a year or more are therefore overstated. However, very clearly, a decision to proceed with a referendum would require a further extension to the Article 50 period, which currently expires on 31 January 2020. And there are various factors that could put pressure on the minimum timetable, requiring a somewhat longer period of planning and preparation. This post (adapted from the report’s final chapter) considers how the pieces fit together, and what the overall timetable would likely be. The most obvious implication of this is for the length of Article 50 extension which a future government should request if seeking to hold a referendum.

The report considers the factors which could impinge on the timetable in detail, but in brief they include the following:

  • Is the referendum to be held on a pre-existing Brexit deal, or is time required (as Labour’s policy implies) for further renegotiation before proceeding to a referendum?
  • How contentious would the referendum bill be in parliament? This depends partly on the constellation of parties and groups in the House of Commons after the general election, and also on the content of the bill.
  • What form would the referendum question take? This may be one of the points of contention in parliament. We conclude that a three-option referendum is unlikely. Moving to such a format would slow down the process.
  • To what extent would campaign regulation be tightened up and updated via the referendum bill? Some updating is essential, and could be incorporated within the 22-week timetable. Other more major changes might be desirable, but in the interests of speed would likely be set aside.
  • Would the referendum result be made legally binding? This is not essential, but would be beneficial to provide clarity and certainty for voters. Preparing for a fully legally binding referendum would be likely to take slightly more time.

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