Slip of the tongue…

On occasion, speakers experience a slip of the tongue.  In yesterday’s debate on the Queen’s Speech in the Lords, it happened twice.  The minister, Lord Ahmad of Wimbledon, in opening the debate made what is now the classic slip in discussing withdrawal from the EU:

‘supporting trade and investment in least-developed countries by maintaining duty-free access after breakfast –

Noble Lords: Oh!

Lord Ahmad of Wimbledon: Sorry, after Brexit – and after breakfast.  If you stand here for 20 minutes, you start thinking about breakfast…’.

However, the most distinctive slip came from Lord Cormack:

‘I would like to say something that I have advocated since the Monday after the Reformation –

Noble Lords: Oh!

Lord Cormack: – not quite that long ago, but after the referendum I advocated, as noble Lords know. having a Joint Committee of both Houses..’.

Lord Cormack has been a member of the House for some years, but not quite so long as his original comment would suggest.

Any interruption during a speech, be it laughter, murmurs of dissent or other noises, are simply recorded in Lords Hansard as ‘Oh’ or ‘Oh!’  Commons Hansard are more likely to include the nature of the interruption in parenthesis: [laughter][interruption].   Readers with a long memory may recall that I have only once achieved an ‘Oh’ – during my speech in the Second Reading of the Marriage (Same-sex Couples) Bill.  I did, though, get the accolade of an exclamation mark.

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What is a vote of no confidence?

I see there is now talk of opposition parties seeking to move a vote of no confidence in the government, but one that does not engage the provisions of the Fixed-term Parliaments Act.  For a motion to trigger the provisions of section 2 0f the Act, the motion ‘That this House has no confidence in Her Majesty’s Government’ has to be passed.  Any other wording does not qualify.  It is possible to put down a motion expressing a lack of confidence in the government, but in a different form of words.

As I explained in my 2016  article, ‘The Fixed-term Parliaments Act and Votes of Confidence’,  published in Parliamentary Affairs, the Act affected only part of the constitutional convention governing votes of confidence.  It removed the capacity of the Prime Minister to declare a vote one of confidence and to say that, if lost, an election would ensue.  If the vote was lost, the Prime Minister would still, by convention, be expected to resign.

In summary, a government for its continuance in office rests upon the confidence of the House of Commons.  If that confidence is withdrawn, it cannot continue in office.  That withdrawal of confidence may be expressed through an explicit vote of no confidence.  If expressed in the words stipulated in section 2(4) of the Fixed-term Parliaments Act, the 14-day period is triggered, within which if a government does not achieve passage of the motion ‘That this House has confidence in Her Majesty’s Government’ then a general election ensues.  (The Act is silent on who can form the government for the purpose of seeking that vote of confidence.)  It may be expressed by a motion stating no confidence, but in a different form to that stipulated in the Act.   By convention, the government would then be expected to resign, the Act having removed the option of seeking a dissolution.

There are discussions reported to be taking place among opposition parties as to an alternative Prime Minister.  Voting no confidence in the government does not entail voting confidence in anyone else.  The Leader of the Opposition is designated as such because s/he leads the party that stands ready to form a government in the event of the existing government ceasing to govern.  However, it is not clear that the Leader of the Opposition at present could mobilise a majority.

We are thus in stormy waters, where the charts as to the way out are not as comprehensive as one may wish.

For more, read the article….

Alice in Wonderland, or more on the Fixed-term Parliaments Act

As readers will be well aware, I have done various posts on the consequences of the Fixed-term Parliaments Act, including one at the beginning of the month.  In 2017, some thought the ease with which Theresa May gained a two-thirds majority for an early election meant that section 2 was a dead letter and that a Prime Minister could get an election whenever s/he wanted.  However, events this year have borne out what I wrote in my 2016 Parliamentary Affairs article.  The Opposition, and backbenchers, are, in effect, veto players.

They can prevent a two-thirds majority being reached for the motion ‘that there shall be early parliamentary general election’ and may do so by abstaining, as long as there is a division.  The opposition has utilized this power twice recently.

Opposition parties can also opt to abstain in a vote on the motion ‘That this House has no confidence in Her Majesty’s Government’.  By convention, if the Leader of the Opposition tables such a motion, the Government finds time for it to be debated.  It is not obliged to find time if the leader of a third party tables such a motion and has previously declined to find time.

We are now in a bizarre situation in which we have a Prime Minister trying to provoke the tabling of such a motion and – with Labour leader Jeremy Corbyn declining to do so – indicating that, if a third party tables it, time will be found to debate it.  Bear in mind that a motion of no confidence requires only a simple majority to carry.  There is no threshold or turnout requirement.  A confidence vote normally maximizes turnout, but it could be carried on low vote.

In present circumstances, we could thus end up in the situation where Government backbenchers are being encouraged to vote for a motion of no confidence in their own government and the opposition mobilizing its MPs to vote against to prevent it being carried.  They may need to do so in some numbers if it looks as if the SNP will vote for the motion.  Do ministers then vote for the motion as well – i.e. vote no confidence in themselves – to try to ensure it is carried?

Is Parliament the winner?

The Supreme Court decision in Cherry/Miller (No. 2) raises questions as to whether it constitutes an attack on Parliament or serves to protect it.  Some MPs have assailed it as undermining Parliament.  Is Parliament a winner in the light of the judgment?  The answer is both yes and no.

It is a winner in constitutional terms.  The judgment is crafted in order to protect Parliament from executive overreach.  The nature of the judgment is encapsulated in Sionaidh Douglas-Scott’s article in Prospect: ‘An extraordinary judgment or constitutional orthodoxy?  The Supreme Court’s ruling is both’.  Mark Elliott argues a similar point in his blog ‘Public Law for Everyone’: ‘while the judgment develops and applies relevant elements of UK public law in sometimes novel ways – and certainly in novel circumstances – it is rooted in well-established constitutional principles’.  The Court distinguished parliamentary sovereignty from parliamentary accountability, concluding that the effect of an extended prorogation was to prevent Parliament fulfilling its duty as the body responsible for ‘the supervision of the executive’.  The exercise was thus one, as Jeremy Waldron has noted, not of a judicial review of legislation, but judicial review of the lawfulness of executive action.  The Court was upholding, not challenging, the longstanding constitutional position of Parliament.  The judgment was exceptional – a ‘one off’ as Lady Hale put it – but one exercised in defence of the institution,

Parliament is, however, a loser in political terms.  The judgment means that Parliament continues to sit to debate and process measures.  The problem is that when it sits, especially to consider Brexit-related matters, it impacts negatively on public perceptions.  The Hansard Society Audit of Political Engagement shows that the proportion of respondents who feel that the system of governing needs ‘quite a lot’ or ‘a great deal’ of improvement stands at 72 per cent, the highest level it has been in the Audit series.  Only 25 per cent have confidence in the Members of the House of Commons in handling Brexit; 73 per cent have not very much or no confidence.  Furthermore, 42 per cent of those questioned agree with the statement ‘Many of the country’s problems could be dealt with more effectively if the government didn’t have to worry so much about votes in Parliament’.  This is a remarkable finding, impossible to imagine in earlier decades.

We thus have a somewhat ironic situation in that the body working to protect the institution of Parliament is the Supreme Court, whereas those undermining it in terms of public trust are the very members of the institution.  Rather than engaging in displacement activity, criticising judges, MPs may need to reflect on how their own behaviour is impacting on public perceptions.

Perpetual rewriting….

In 1982, I published The Constitution in Flux, covering different aspects of constitutional change.  One senior lawyer in reviewing the book did offer the view that it was prescient.  I have not written a second edition as such, in part because of the problem of devising a title as good as the original.  Readers have on occasion offered suggestions!  Perhaps best not to repeat what Professor Phil Cowley recommended.

As regular readers will know from an earlier post, I am now working on the manuscript for Governing Britain: Parliament, ministers and our ambiguous constitution, to be published next year by Manchester University Press.  As explained in the earlier post, it is not designed as an update of the 1982 volume, but rather a series of essays addressing different aspects of our ambiguous constitution.  It will overlap with some of the topics covered then, but the focus of several of the chapters will be even more relevant than I anticipated to current events, not least the twin pillars of the constitution (parliamentary sovereignty, rule of law), the relationship of the courts, Parliament, and the executive, and Parliament, the EU and Brexit.  The only problem is that it is a case of almost literary Trotskyism – perpetual rewriting.  One event, such as the Miller/Cherry case, impacts on more than one chapter.  The challenge will be to identify a time at which it is possible to stop and actually submit the manuscript.

One encouraging point, though, is that when I tweeted I was having to revise the manuscript, the number of ‘likes’ was such as to suggest there is a notable market for the book.  Well, I hope that is the correct interpretation.  The Constitution in Flux remained in print for many years…

Do we need a ‘written’ constitution?

Calls for a ‘written’ constitution for the UK are being increasingly heard.  Before addressing the argument, there are two preliminary points that need to be made.  First, most of our constitution is written.  It is embodied in a range of statutes, such as the Bill of Rights 1689, the Parliament Act 1911, the Human Rights Act 1998, and the Fixed-term Parliaments Act 2011.  It is thus not unwritten.  Even to say it is uncodified has to be qualified by the fact that we are subject to a form of codified constitution in the shape of the treaties of the European Union.  The situation we face in respect of Brexit derives from the provisions of the Treaty on European Union.  Second, for nations with codified constitutions, the constitution extends beyond the document.  Written, i.e. codified, constitutions are complemented by statutes, judicial decisions, and convention.  The constitution has to be interpreted, practices develop into conventions.  The document is the core source, but not the only source.  You can read the document to know what it says, but you may need to wait for a court opinion to know what it means.

Arguing the case for a ‘written’ constitution is very much in vogue at the moment.  The danger is one of what amounts to a moral panic inducing us to move in that direction, though how one achieves a codified constitution given our extant constitution is another issue.  The case for it is not so much made on its merits, but rather as a means to an end.  A ‘written’ constitution is a modern-day form of constitutional snake oil.  It is advanced as a cure for a range of constitutional ills.  ‘Our rights are under threat, especially if we leave the EU, let us have a written constitution’.  ‘The Union of the UK is under threat – let us have a written constitution’.  ‘Politicians are charlatans, on the make, the Speaker is overstepping the mark – let us have a written constitution’.  These are not made-up examples, but drawn from arguments made recently.  None starts from first principles.

These calls are made on the basis that the content will comply with what the particular advocate wants, but what is sought by some conflicts with what is demanded by others.  Should it provide, as some US state constitutions do, for referendums (and, if so, on what issues and under what conditions) or should it be like the US Constitution and not do so?  (An attempt to amend the US constitution to provide for a US-wide referendum on issues of war – the Ludlow amendment – failed in the 1930s.)  And would, as some advocates claim, a written constitution make clear the rights of citizens?  If they are to be living documents, the bill of rights sections of constitutions have to be crafted in broad terms.  We already have the principal provisions of the ECHR embodied in the Human Rights Act, so it not clear how the argument of clarity applies.  The difference lies in the extent of entrenchment.  It is ultimately the courts that decide and, if the document is entrenched, their judgment will be difficult to overturn (which is the point of entrenchment, privileging certain values over a transient majority of parliamentarians or majority of electors).  The US Supreme Court, in the Heller case in 2008, interpreted the 2nd Amendment to give individual citizens the right to bear arms.  That conflicts with how courts previously interpreted it and appears at odds with what the founding fathers intended, but it is what the highest court says that counts, however poor the reasoning.  As Brice Dickson has observed in Writing the United Kingdom Constitution, it is entirely possible to envisage cases where a court judgment would generate an outcry in the media.  As he notes, we saw such an instance in the Miller case, with judges branded ‘enemies of the people’.  An earlier example is to be found  in the Hirst case in which the European Court of Human Rights held that the UK’s blanket ban on prisoners being able to vote in elections breached Convention rights.  This led to a standoff between the courts and the UK government and House of Commons.  No right is absolute unto itself, so it puts the courts in a powerful position not only to interpret each, but also to determine superiority in the event of conflict, such as a right to privacy versus freedom of the press.  And what about the right to life versus a right to determine when to end one’s life in the form of assisted dying?  The point here is not so much the merits, but the political reality.  A codified constitution may not so much settle matters as invite conflict.

It is not that clear that the present conflicts besetting the UK, especially in respect of Brexit, would be that much different if we had a codified constitution.  Political controversy over the use of the power to prorogue the legislature is not exclusive to the UK and the prerogative power of prorogation could have been left unaffected by a codified document, as it was by section 6(1) of the Fixed-term Parliaments Act.  If the document embodies the doctrine of parliamentary sovereignty, it will still need to be interpreted.  If it embodies the provisions of the Fixed-term Parliaments Act – and, if it does not, what would be the provisions governing general elections and the executive maintaining the confidence of the House of Commons? – we would be encountering the same problems we have at the moment.  The Fixed-term Parliaments Act demonstrates some of the problems of translating constitutional conventions into hard legal form, in this case, statute, but it would be exactly the same with a codified constitution.  Arguably, it would be worse in terms of effect, in that problems could not be so easily rectified if the document is entrenched.

Advocating a codified constitution appears in many respects displacement activity.  It avoids addressing the actual messy and serious issues we face.  Politicians who advocate it are basically denying responsibility for their actions in dealing with current issues.  ‘Not my fault, we need a written constitution’.  There is also an intrinsic conundrum.  Pressure for a codified constitution derives in part from current conflicts.  The very fact of the conflicts make it difficult to see how one will reach agreement on everything to be included.  What provision do we make for referendums and fixed-term Parliaments?  And it is what is left out that leads to conventions and practices developing.

Advancing the merits of a codified constitution against the demerits of an uncodified one is to skew the discussion.  The merits of one have to be set alongside the merits of the other.  Sir Sidney Low, in The British Constitution in 1928, wrote: ‘In England we often do a thing first and then discover that we have done it’.  We are in danger of rushing in to craft a codified constitution without thinking through the consequences.  If we then find we have done it and made a hash of it, there is little we can do to correct the situation.

I have argued the case before that we do not need a constitutional convention to tell us where we should be going.  We need a constitutional convocation to make sense of where we are.

Being geeky…

My post likening Brexit to an aircraft crash landing got noted in The Daily Mail, mainly as a peg for an old joke.  Having once been described in the Evening Standard as a Tory grandee, here I am described as ‘geeky’.  I checked the dictionary definition, not least given that nowadays a number of terms are used in popular discourse that I am not quite sure what they mean.  A geek is someone who is regarded as somewhat eccentric.  I am conscious that at times what seems to me quite natural behaviour, not least in terms of working habits, is distinctive.  However, according to the dictionary I consulted, geek is also slang for a carnival performer noted for biting the heads off animals.   I may be slightly eccentric, but I am not that odd.

On the post itself, the pilot has temporarily stalled the engines and passengers appear to be getting increasingly worried and frustrated.