I realise I have not yet posted a caption competition this year. I knew it was time for action when an academic colleague asked when the next one would be. The reception in December to mark the thirtieth anniversary of my promotion to professor at the University of Hull generated a good number of photographs, many of them candidates for the competition. This therefore is likely to be the first of several. It shows Ken Batty speaking at the conclusion of the reception. As always, the winning entry will be the one that in my view is the most amusing and fitting. The prize will be one of my recent publications.
As regular readers will know, each year I table a parliamentary question asking how many items of correspondence were received in the Palace of Westminster in the previous year (and, of these, what proportion was received in the House of Lords). The data demonstrate a clear trend. People are no longer writing in such numbers as before. The decline has been especially notable this past year.
The figures for 2005 onwards are (with the percentage going to the Lords in parenthesis):
2005 4,733,000 (estimate) (20%)
2006 4,789,935 (no % given for the Lords)
2007 4,199,853 (20%)
2008 4,135,144 (15%)
2009 3,540,080 (25%)
2010 3,082,187 (25%)
2011 2,691,576 (25%)
2012 2,544,019 (25%)
2013 2,490,256 (25%)
2014 2,234,763 (25%)
2015 2,200,504 (25%)
2016 1,652,317 (30%)
The decline has been consistent over the past decade and now we have a year in which fewer than two-million items of correspondence were received – almost one-third the number received ten years ago.
The decline does not translate to a reduced workload for Members. As I have argued before, the reduction in snail mail has been more than compensated by the rise of e-mail. Figures are not compiled for e-mail traffic, but e-mails are cheaper and more efficient to send than snail mail. A number of campaigning organisations encourage people to e-mail. The change is not only quantitative, but also qualitatively. People who e-mail are more likely to expect a quick response than someone who posts a letter. The burden on MPs, or rather MPs’ offices, can be substantial.
The Supreme Court has issued its judgment in the Miller case and the Government have introduced the European Union (Notification of Withdrawal) Bill. Those are statement of facts. The judgment and the consequences are much debated. The problem is that debate continues to be characterised more by heat than by light.
There is confusion as to what flows from the judgment. One only has to read an article in the Guardian’s ‘Comment is Free’ section by Geoffrey Robertson QC to see the problem. (Readers may wish to see how many factual errors they can identify.) But perhaps most seriously of all is the extent to which the referendum campaign is, in effect, being re-fought and how much the field of debate is populated by Mystic Megs.
I have a principled objection to referendums. However, successive governments have not had such an objection and the consequence is that referendums are now part of our constitutional practice. (The subject was well covered in the Constitution Committee’s 2010 report on referendums.) Parliament passed the European Union Referendum Act 2015 providing for a referendum on whether to leave or remain in the EU. The referendum was not legally binding, but the Conservative manifesto committed the party to implement the result, whatever the outcome. The result was, in rounded terms, 52% for leave and 48% for remain.
There was no threshold to be reached for the vote to take effect. As I have mentioned before, I raised the issue on Second Reading of the Bill, but there was no discernible appetite on the part of the two main parties to pursue the matter.
All that is, as far as I am aware, factually accurate. One may not like having referendums, but we had one. One may not like the result, but there was a result. One may disagree with the judgement of the Supreme Court – I thought Lord Reed’s dissenting opinion was brilliant, but it was a dissenting opinion. The Court has reached its judgment.
We now enter the muddy waters of the continuing debate. I know how people voted. I do not know why they voted as they did. I do not know why people who did not vote failed to go to the polls. It is remarkable how many commentators appear to know what people’s motivation was in voting for ‘leave’ (was it ‘soft Brexit’, was it ‘hard Brexit’?) and what is to be read into non-voting. People who fail to vote are supporting by default the winning side. They may not intend to, they may not like the result, but that is the effect. Saying what proportion of the electorate failed to vote for leave only invites the response that an even bigger majority failed to vote for remain.
All this takes place within a wider debate as to the consequences of withdrawal from the EU. There are two sides, reminiscent of Dad’s Army – ‘Don’t panic’ versus ‘We are doomed’ – again characterised by the presence of a good number of Mystic Megs.
It is not clear where the leadership will come in ensuring that we have an informed debate. Newspapers tend to contribute to heat rather than light. Referring to judges as ‘enemies of the people’ reflects ignorance on stilts and is more of a threat to the constitutional stability of the UK than the judgement of the court, though it is debatable whether the court itself has not raised the temperature unnecessarily by sitting as an eleven-member panel. The onus now rests on both Houses of Parliament, not only in dealing with the EU (Notification of Withdrawal) Bill but also the later Great Repeal Bill. Whether either House is up to the challenge remains to be seen.
One of my colleagues in the Lords, knowing that Donald Trump was to be inaugurated as President of the USA on Friday, asked if the inauguration was determined by the day (Friday) or the date (20 January). It is the date. George Washington was inaugurated in April 1789, but thereafter – up to and including 1933 – the President was inaugurated on 4 March. Since 1937, the date has been 20 January. If 20 January falls on a Sunday (as it did in 2013), the President is sworn in by the Chief Justice in a private ceremony, with a public ceremony the following day.
The longest inaugural address – lasting nearly two hours – was given by William Henry Harrison in 1841. At 68, he was the oldest President to be elected (until Ronald Reagan and now Donald Trump) and it was a bitterly cold day. He caught a cold and is generally believed to have contracted pneumonia. Some sources have argued that he had a bacterial infection. In any event, he fell ill and died a month later, the first President to die in office.
The inauguration ceremony normally takes place on Capitol Hill but on occasion, as when a Vice-President succeeds a President who has died, it has occurred elsewhere and the oath administered by someone other than the Chief Justice. Lyndon B. Johnson (1963) was famously sworn in by District Judge Sarah T. Hughes and the only President to be sworn in aboard an aircraft. Calvin Coolidge (1923) was sworn in by his father, a notary public. Franklin Roosevelt is the only President to be sworn in more than twice, having been elected to four terms, though dying shortly after being sworn in for his fourth term, propelling his new Vice-President, Harry S Truman, into the White House. The Constitution was subsequently amended to prevent a President being elected to more than two terms.
Last September, the Joint Committee on the Restoration and Renewal of the Palace of Westminster issued its report. It drew attention to the fact that, although the Palace of Westminster is structurally sound, the building’s mechanical and electrical services – the basic services enabling the place to operate – are no longer amenable to a ‘patch and mend’ approach and, without an intensive programme, the Palace will become uninhabitable. The infrastructure is basically a mess – it is not clear where all the wiring goes, the whole place is a major fire risk, and there is the danger of catastrophic failure. Anyone who walks round the Palace will see the existing ‘patch and mend’ work going on, which is in itself extensive, but it is not sufficient.
The Joint Committee recommended that in principle the option to be adopted is for both Houses to move out (the full decant option) for about 6 years. Other options would be (a) work taking place on a rolling programme while both Houses remain in place, which would likely take about 32 years, but would still involve both chambers moving out for between two and four years, and (b) each House basically taking it in turn to move out while work is completed, a process likely to take eleven years.
Some parliamentarians are keen on staying put, which I find rather bizarre as well as leaving members open to the accusation of being self-serving. The full decant option is the cheapest of those on offer (though knocking the Palace down and building a new Parliament building would actually be cheaper) as well as being the most sensible. The reasons given by the Joint Committee are to my mind irrefutable:
‘The analysis in the Independent Options Appraisal, and all the independent, expert evidence we have received, have pointed us to one clear conclusion: that a full decant of the Palace of Westminster is the best delivery option in principle. It allows the work to be completed in the shortest possible timeframe, it minimises the risk of disruption to the day-to-day operation of Parliament, it is likely to involve the lowest capital cost, it minimises the risk to safety of construction operatives and occupants, it minimises the risk to the Programme itself, and it provides the greatest scope for meeting the needs of a 21st Century Parliament building.’
We might recognise the difference between the two chambers. The wiring in the Palace does not. The infrastructure is the Palace infrastructure. There is no clear argument for doing it bit by bit. We do know that the place is riddled with asbestos. We cannot be certain what else may be found. The cost of the least expensive option runs to over £3 billion. I am not sure I would be able to persuade the taxpayer of the merits of spending anything from another half-a-billion to £2 billion to avoid MPs and peers having to leave the Palace while work takes place.
Both Houses have yet to take a decision. We were supposed to be taking one by spring of last year. I gather there will shortly be votes. It will take several years to prepare for a decant. The sooner we resolve the matter, the better.
In a previous post, I made the observation that there would not have been a legal challenge to the means of triggering notification under Article 50 of the TEU if the June referendum had been legally binding. Although the Government made a manifesto commitment to implement the result, whatever the outcome, this was not translated into the terms of the EU Referendum Bill. Why not?
One explanation would be that it was the product of ignorance, with the Government proceeding on the basis that referendums were necessarily advisory. As I mentioned in my earlier post, during Second Reading of the Bill in the Lords, the minister said that referendums were advisory, even though I had already pointed out in my speech that the 2011 referendum on an alternative voting system was binding – had there been a ‘yes’ vote, the AV system would have been introduced under section 8 of the Parliamentary Voting System and Constituencies Act 2011. However, the Constitution Committee did subsequently write to the minister to remind her of this and it is unlikely that officials in the Cabinet Office were unaware of such a basic point. The Bill could have included provision for notification to be given under Article 50 in the event of a majority voting for Leave.
The other explanation is that it was by design. Making the result binding would be relevant only in the context of a Leave vote. If electors voted for Remain, then the UK would continue as a member of the EU. To make the result of the referendum binding would in effect concede that there may be a vote for Leave. The Government appeared reluctant to concede such a possibility, hence the regular refusal not to undertake a study of the consequences should the UK leave the EU.
Had the Government accepted the case for making the result binding, giving effect in the Bill to what it had promised in its manifesto, there would have been no basis for resort to the courts. Notification would be the result of an Act of Parliament. As it is, by setting its face against conceding the possibility of anything other than a Remain vote, the Government created a rod for its own back. That rod is now a heavy one.
I have variously made the point that institutions and processes are not neutral in their effect. If there had been no referendum, the UK would continue as a member of the EU. If there had been a referendum, but with a threshold requirement that, say, at least 60% of those voting had to vote Leave for it to take effect, we would continue as a member of the EU. If there was a referendum that provided that, if a simple majority voted Leave, it would be binding (as with a Yes vote in the 2011 referendum), we would be leaving the EU, but in a more conclusive way than is proving to be the case. (This assumes electors voted the same way under such rules as they voted in June.) As it is, we have had a referendum that was not legally binding and without any threshold (or turnout) requirement. As a consequence of a simple majority to Leave, we have challenges to the means of how we leave the EU and with some people, in effect, seeking to replay the referendum and calling for a second referendum.
As I say, institutions and processes are not neutral in the effect.