I thought it may be time for a bit of light relief with another caption competition. This picture shows me being interviewed recently by DeHavilland on the constitutional implications of the UK exiting the EU. When I saw the picture, I realised it had a number of features that may render it appropriate for a caption competition. As usual, the winner will be the reader who comes up with what in my view is the wittiest and most appropriate caption. The prize will be one of my recent publications.
Yesterday, I and my colleague Lord Parekh were installed as Honorary Freemen of the City of Kingston upon Hull. It was a remarkable honour in its own right, made all the more so by the fact that very few people have been accorded the freedom of the city. Those that have been include Nelson Mandela, Desmond Tutu and, earlier last century, Thomas Ferens (the subject of my Founder’s Day Lecture last year). The award recognised the link between university and city and the fact that Lord Parekh and I have between us almost eighty years of service to the university.
My appointment was proposed and seconded by former students of mine and the citation was extremely generous, noting that the freedom was conferred ‘in appreciation of the eminent and valuable service rendered by him to the City in the fields of constitutional affairs and the British constitution, and in recognition of the high esteem in which he is held across the political spectrum as one of the United Kingdom’s foremost constitutional experts, enhancing the prestige of our University in Parliament and encouraging generations of his students in a deep appreciation and understanding of the political arts, to the great advantage of Kingston upon Hull.’
The ceremony itself was impressive occasion.
As to the question I have been most asked, no, I have not acquired the right to herd my sheep through the city.
I spoke in two debates in the Lords this week following the EU referendum on 23 June. One point was common to both speeches. On Tuesday and Wednesday, we had a debate on the outcome of the referendum. I was speaker number 105, out of 115, but I like to think I still had something to add to the debate. I was at least the only speaker to cite Anthony Downs, A. V. Dicey, and the ruling of the Chairman of Ways and Means, Sir Robert Grant-Ferris, on 29 February 1972. In the speech, I developed three themes, on the referendum campaign, the referendum result, and whether primary legislation was necessary to trigger a notification under Article 50 of the Treaty on European Union.
The point I made about the referendum was that while it may not be binding, in that there is no statutory obligation on government to trigger an Article 50 notification, it is misleading to refer to it as advisory. During the course of the debate, some peers were arguing that as it was advisory, and as only a minority of the total electorate had voted for the UK to leave the EU, we should consider ignoring the result or hold a second referendum. I was keen to knock this idea on the head. We invited electors to vote on whether to remain in or to leave the EU. The majority who voted went for the leave option. That is a result which there is no legal obligation to fulfil, but where there is clearly a political obligation. The distinction is one recognised by Dicey. We cannot apply rules retrospectively. If we wanted a threshold requirement, we needed to stipulate that at the time. I raised the issue of a threshold on second reading of the EU Referendum Bill, but there appeared no appetite to pursue it. We therefore were left in a situation where a simple majority suffices. That may not be desirable, but it is the reality.
I returned to the point the following day, when Baroness King of Bow (Oona King) had a question for short debate, asking the Government whether it had made an assessment of the case for a second referendum on membership of the EU. She said she was making the case for a later referendum once the terms of exit were known, but her argument was based on the outcome of last month’s referendum, in effect arguing that the electors had got it wrong. In my short speech (given the number of speakers, we only had three minutes each), I reprised various of the points I made the previous day, but stressed that rerunning the referendum would convey the impression that the political class was not prepared to accept what the electors had decided. That would undermine trust in the political process when that trust is already fragile.
There may be a case for a referendum later when the terms are known (though there is a debate to be had as to what the question would be, and whether a binary question would suffice), but to challenge the result of last month’s referendum is naïve and dangerously so. We may not like it, but we have the result and we have to stick to the rules as they existed and were understood by the electors.
What have John Humphreys, Frank Field, and friends of Boris Johnson got in common? They all believe that a new Prime Minister could call an early general election. John Humphreys raised the prospect of the PM going to the Palace to ask the Queen to dissolve Parliament. ‘The new Prime Minister’, wrote Frank Field in The Times this morning ‘will call an immediate general election.’ The new Prime Minister, whoever is chosen to succeed David Cameron, may be wonderful, but he or she is unlikely to be able to perform miracles. The Prime Minister can no longer call an early election. The power disappeared in September 2011 when the Fixed-term Parliaments Act came into force. The Queen retains no residual powers in respect of the dissolution of Parliament.
The title of the Fixed-term Parliaments Act is something of a misnomer. It is essentially a Semi-fixed Parliaments Act. It stipulates that there will be a general election every five years, on the first Thursday in May. However, an early election may take place if either of two conditions is met:
(1) If the House passes the motion (and, if divided on, is supported by two-thirds of all MPs, not just two-thirds of those voting) ‘That there shall be an early general election’.
(2) If the House passes the motion ‘That this House has no confidence in Her Majesty’s Government’ and if, after 14 days, a new or reconstituted government has not achieved a motion of confidence from the House.
The first of these ensures an early general election, but imposes a high threshold: basically both main parties have to vote for it. The second is achievable through a simple majority, but does not automatically trigger an election: there is the 14-day delay, to allow time for a different government to be formed and gain the confidence of the House.
If a Government wished to engineer an early election and do so without the support of the Opposition, it would have to get its own supporters to vote for a motion expressing no confidence in their own Government. (If the Opposition voted against, necessitating all MPs on the Government benches voting for it, this would entail ministers expressing no confidence in themselves.) The Government could then use its majority to ensure that the 14-day period passed without a confidence motion being carried in any alternative Government.
A number of people have asked if Parliament could not simply repeal the Act. Some appear to assume a repeal could take place by a single vote. The Act can only be repealed by Parliament passing an Act of repeal. The new measure would state what would replace the 2011 Act. It could be a reversion to what existed before 2011 or it could be a new system. The provisions would be embodied in a Bill which would have to go through all the usual legislative stages in both Houses. Unless there was agreement between the parties, this could not be rushed. If there was agreement between the parties, then introducing a Bill would seem unnecessary, since one could use the procedure under the 2011 of passing a motion stating that there would be an early general election.
In short, an early election is possible, but is not straightforward – and is not in the sole gift of the occupant of 10 Downing Street.
In the post-war era, the issue of European integration has been a fault line of British politics. Both main parties have been divided internally and both have changed their stance on the issue. However, there has been no formal requirement for a referendum on the issue. Harold Wilson used a nation-wide referendum, a constitutional innovation, in 1975 in order to resolve conflict within the Labour Party. David Cameron moved to initiate one in response to conflict within Conservative ranks. The roots are to be found in the last Parliament. Details can be found in the chapters by Phil Cowley and me in Seldon and Finn’s The Coalition Effect.
There was no commitment in the Conservative 2010 manifesto to a referendum on continued membership of the EU. The crucial development was the decision of the newly-formed Backbench Business Committee to schedule a debate, initiated by Conservative MP David Nuttall, in October 2011, calling for a referendum on the UK’s membership of the EU. Had the Committee not come into existence the previous year, with responsibility for scheduling debates (which it did on the basis of proposals from private Members), there would almost certainly not have been a debate – the Government would not have found time for it. Despite a heavy whipping operation against the motion, 81 Conservatives voted for it.
The size of the rebellion clearly alarmed No.10. Having worked to keep his Liberal Democrat allies on side, David Cameron now moved to keep his own backbenchers on side. He made the case for negotiating reform within the EU and putting the terms to the people in a referendum. However, committed Eurosceptic backbenchers wanted legislation to provide for a referendum in the next Parliament. They took the remarkable step of moving an amendment to the Queen’s Speech in 2013 regretting the absence of any mention of a referendum Bill. To assuage the rebels, the leadership changed tack and offered support for a Private Member’s Bill on the subject. Despite this, the rebels divided the House on the amendment. Although defeated by 277 votes to 130, a total of 114 Conservatives voted for it. This spurred No. 10 to further action, producing a draft Bill, which backbencher James Wharton, successful in the ballot for Private Members’ Bills, introduced. A Conservative, but not a Government, three-line whip was issued in support of the measure. (Contrast this with a three-line whip against Nuttall’s motion.) The PM held a barbecue for Tory MPs and peers and tried to do what he could to facilitate the Bill’s passage. He was, in effect, committed. There was little likelihood of the Bill getting through – a combination of Labour and Liberal Democrat peers saw to that – but the PM had little option but to pursue the issue. It became a commitment in the party’s 2015 manifesto (an in-out referendum by 2017), the party won the general election and the rest is now, well, history.
We may have ended up sooner or later with a referendum, but had the Backbench Business Committee not selected David Nuttall’s motion for debate when it did, then the course of history may have been different. And don’t say what happens in the House of Commons doesn’t matter.
Institutions are not neutral in their effect. They operate on the basis of processes and rules. What those rules are can affect outcomes. Had the Labour Party adopted the same rules for electing the leader as the Conservative Party, Jeremy Corbyn would likely never have become party leader. Under the Conservative rules, MPs reduce the number of candidates to two (assuming more than two are nominated) and those two names are put to the party membership. Jeremy Corbyn is not likely to have been in the top two selected by Labour MPs.
The rules for electing the Conservative leader are about to be employed. There is much talk of Boris Johnson as the successor to David Cameron as party leader. However popular he may be among party members, he has first to make it to the last two selected by MPs. There are other potential candidates who have been busy building a parliamentary base. Johnson may have built up support in recent months, but he did not appear to have much of a following last year. There is talk of an ABJ (Anyone but Johnson) movement, which may mobilise behind a particular candidate. It is always possible he may suffer the fate of Michael Portillo, just being squeezed out from being in the last two. I am not saying that will happen, but rather emphasising the importance of the rules.
The same applies in the context of the EU referendum. Parliament legislated for it and stipulated the question. (I have previously commented on the significance of the wording.) However, there were no rules laid down as to a threshold for turnout or what proportion of the electorate needed to vote for the result to take effect. One could argue that formally no such rules were necessary, given that the referendum was advisory. However, without any such qualifications, it is not politically feasible to act other than in accordance with how a simple majority voted. Had there been a requirement, say, that a two-thirds majority was required for a major constitutional change (not unusual with some organisations) or that all parts of the United Kingdom had to vote to withdraw from membership of the EU, then the outcome would have been different.
The appalling death of Jo Cox, the MP for Batley and Spen, generated considerable reflection on the role of an MP. There was recognition that MPs are generally dedicated public servants. Jo Cox was a remarkably able and dedicated Member. She was one of many. There has been a tendency to generalise from the unworthy few rather than the hardworking many. MPs work long and unsocial hours and the demands of the job have got greater over time. If there is one positive thing that may possibly come out of this tragedy (other than the amazing public response in donating to Jo Cox’s favoured charities) is a better public awareness of what MPs do. It may provide some balance to the cynical and generally ill-informed view taken of MPs and the work they undertake.
The other reflection has been on the specific constituency work of the MP, not least casework undertaken through constituency surgeries. Such surgeries are a post-war development. They are taken now as a given part of an MP’s role. Discussion in recent days has focused on whether or not security at surgeries should be stepped up. Jo Cox was not the first MP to be physically attacked at a surgery, nor the first to be killed at a surgery. MPs are reluctant to have too much overt security, as they don’t want to put up barriers between them and their constituents.
This discussion, though, is premised on the value and continued existence of such surgeries. Constituents look to MPs to put the constituency first. Constituency work takes up an increasing volume of an MP’s weekly schedule. However, there is a difference between pursuing constituency interests and the interests of particular constituents. MPs are well placed to make the case for the economic, environmental and social benefit of their constituencies. Constituents look to them also to take up their particular grievances, even if not related directly to matters for which government has responsibility. Demand is matched by supply. MPs are reluctant to say no to constituents. They see casework as keeping them aware of the problems faced by constituents – it keeps them in touch with the real world. However, most MPs are not trained social workers. Many of the problems brought to them could be better dealt with by professional agencies or by individuals trained to deal with such issues. Insofar as issues could still be pursued via Members, there may be a case for more resources to hire additional caseworkers or someone trained to refer the constituents to the most appropriate authorities. As things stand, the more constituency casework an MP takes on, the less time there is to devote to the particularly important cases and to pursuing the interests of the constituency. There is also an opportunity cost in terms of fulfilling the tasks which only MPs collectively can fulfil and that is calling government to account and scrutinising legislation.
I am not saying MPs should give up constituency casework. (Many years ago I encountered an MP who argued that MPs should be statute-barred from undertaking constituency casework. He was subsequently deselected.) However, given the increasing pressures of such work, and the sheer demands it makes of Members, I think there is a case for a serious discussion as to whether MPs should simply continue on their present trajectory of dealing with all the matters brought to them by constituents. We need to stand back and think about an MP’s role rather than simply plough on regardless.