Moving out of the Palace

44101Last 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.

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30 years as a professor

This autumn marked the thirtieth anniversary of my appointment as Professor of Government at the University of Hull.  My claim to fame is that, when I was appdsc02119ointed, I was the youngest professor of politics in the country.  To mark the anniversary, a reception was held at the House of Lords on Monday, attended by parliamentarians and Hull graduates (not mutually exclusive categories).  The picture (right) shows me with three longstanding graduates, Dr Nicholas Baldwin (Dean of Wroxton College), Paul Regan (a senior civil servant in the Home Office) and Neil Medlock (a senior official in RBS).  The picture below shows some of the guests prior to the speeches.

The proceedings were opened by the University Chancellor, Baroness Bottomley.  Her speech can be watched at https://youtu.be/ANHZKSwdYjU    She was followed by the Lord Speaker, Lord Fowler, Cliff Grantham (speaking on behalf of graduates, as he has done at every ceremony since I first got the chair) and me, with another graduate, Ken Batty, concluding the event by announcing that several of my friends had got together, in a remarkably generous gesture, to commission an artist to paint my portrait.   The speeches can be seen at https://youtu.be/S0QPtGNmoZY

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The Speaker, John Bercow, had planned to attend, but was detained in the chamber, but sent a very generous letter, all the more remarkable given that he must have dictated it at very short notice.

In my own speech, I took the theme of continuity and change – continuity in teaching and change in terms of the subject of research.  I seek to enhance my teaching – there are never grounds for complacency – but the fundamentals have not changed.  However, when it comes to the subject of my research, there has been enormous change and, as I argued in my Michael Ryle Memorial Lecture, for Parliament these are the best of times, these are the worst of times.  They are the worst of times in terms of how Parliament is seen. There is plenty to keep me occupied for at least the next decade…

The pictures and videos were taken by the Rev. Dr Amene Mir, who accepted the honorary position of photographer for the occasion and – given the length of the speeches – demonstrated remarkable resilience.

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Why wasn’t the referendum binding?

Ballot-Paper-300x150In 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.

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Inside and outside the chamber

indexA great deal of parliamentary work takes place away from the chamber.  My regular activity tends to be committee focused.  Chamber activity tends to vary depending on the business.  Subjects that fall within my areas of interest can be rather like London buses – there isn’t one for ages and then two come along at the same time.  This past week two debates came along on succeeding days.

On Monday, I was in the chamber for a full day debate on the size of the House of Lords and the need for it to be reduced.  The debate was initiated by the Campaign for an Effective Second Chamber.  It was agreed that Lord Cormack, as Chair of the Campaign, should open the debate and that I, as the Convenor, should wind up as the last backbench speaker, responding to points made.  There was a total of 60 speakers and I was in to listen to all of them.  You can read my speech here.  There was a clear theme throughout the debate: the House is too large and a select committee should be appointed to consider the various options for reducing the size.

On Tuesday, I had to get to the House by 8.30 a.m. in order to chair a breakfast meeting of the Parliamentary University Group.  It was a valuable discussion, addressing the relationship between social media and student mental health.  The main work of the day was being in the chamber for the Second Reading of the Higher Education and Research Bill.  There were seventy speakers and, unlike speakers the day before, a good many overran the advisory speaking time.  (As a result, we rose at 11.00 p.m. rather than the target time of 10.00 p.m.)   I detailed various problems with the Bill, not least in terms of inadequate protection for students and in the proposal for a teaching excellence framework.  The speech was covered on BBC Parliament and you can watch it here.

Wednesday was back to my more usual routine, with time spent primarily in committee rooms rather than the chamber.  The morning was spent in committee.  The Constitution Committee is examining the legislative process and we had a productive evidence-taking session on pre-legislative scrutiny.  (You can watch the session here.)  Lunchtime and early afternoon was spent attending the executive committee of the Association of Conservative peers and then the full meeting of the ACP.  I later attended the 1922 Committee.  (Having written the 90th anniversary history of the 1922 Committee, I am planning to write its centenary history, so being a participant observer is valuable.)  I also had to be in the chamber as there were divisions.  I also attended the  History of Parliament Annual Lecture, given by Lord Morgan, on Asquith, Lloyd George and the Liberal Party.   I am a Trustee of the History (and indeed gave the 2011 Annual Lecture) – it does sterling work in researching the history of the institution.

I was able to get away to catch the last train to Hull, so I could be back for busy teaching days on Thursday and Friday.  I was also committed on Saturday, as I was giving a Culture Café Heritage and History talk on Hull’s political heritage, focusing on its parliamentary representation.  Hull has returned MPs to Parliament since at least the early 14th Century (in the 17th Century, they included Andrew Marvell and in the 18th Century William Wilberforce), but I concentrated on the period since 1900, looking at the extent to which changes in parliamentary representation reflected wider political changes in the country, not least the change to class-based voting.  It was a good session, generating considerable interest and a wide range of questions.

It was a not untypical week in that I thought I was doing well if I got home before 11.00 p.m.   It balanced out in that the first three days it was closer to midnight, but the remaining evenings were the right side of 10.00 p.m.

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The winner is…

DSC_2552There were, as ever, some ingenious entries for the caption competition.  Readers of the blog are clearly original and inventive thinkers.  As tends to be the case, I was spoilt for choice in selecting a winner.  A number of entries were especially funny and demonstrated a close attention to detail, ranging from Ken Wilkinson’s ‘Streaking glove puppet spotted in the Vatican’ to Croft’s ‘Is LN thinking: I could have been the model for Rodin’s The Thinker’.   There were some nice Hull-related entries, especially Nicholas Hackett’s  ‘Hull mafia spotted at organised crime summit’.   A number were also cake, or at least food, related.  Although Richard Quirk got in first with ‘Four hours in and not a single cake in sight!’, he was pipped at the post by Alex M, who offered:

As Baroness Butler-Sloss looks through the menu, Lord Norton of Louth ponders where his cake has gotten to…

If Alex M would like to get in touch, his prize will be on its way.

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Autumn caption competition

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Time for the autumn caption competition.  Regular readers may recognise this as one of the photographs taken when I attended and spoke at the Judges’ Summit on Human Trafficking and Organised Crime held at the Vatican in June.  As usual, the reader who supplies the wittiest and most appropriate caption will be the winner and receive one of my recent publications.

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The High Court judgment: keep calm and carry on…

untitledThe High Court judgment in the Miller case, that notification under Article 50 of the TEU of the UK’s intention to leave the EU cannot be given under the royal prerogative, has attracted intense comment, some of it vituperative and directed at those who gave the judgment rather than the judgment itself.  As I have already tweeted, if you believe (as I do) that the judgment is flawed, you should identify the flaws – not attack the judges.  We are fortunate in the quality of our judiciary and the judges who gave the judgment are rightly among the most eminent.

I am not sure I shall add much to existing commentaries on the case, but here – for what they are worth – are my observations:

This situation could have been avoided.  The fact that the case has arisen is in many respects the consequence of the rush to hold a referendum and not giving adequate thought to possible consequences.  Debate on the EU Referendum Bill focused on issues such as the franchise and the period of official purdah.  I have made the point before that in my Second Reading speech in the Lords, I raised the issue of thresholds.  I also raised the point that it was an advisory referendum.  The minister replying seemed to think that referendums were necessarily advisory, even though I made mention of the fact that Parliament had provided that the 2011 referendum on AV was binding.  Ministers made clear that the Government was committed to implementing the outcome of the EU referendum, whatever it was – there was a manifesto commitment – but made no move to provide in the Bill that if there was a ‘leave’ vote, then notification under Article 50 would be given.  Had such a provision been included, there would have been no court case.

Many speeches in the debate on the Bill, not least in the Lords, focused more on the merits of staying in or leaving the EU rather than on the provisions of the Bill.  As I have pointed out before, institutions and processes are not neutral in their effect, and the Miller case was the consequence of the particular process stipulated by Parliament.  The Bill was as important for its silences as for its particular provisions.

It is about means and not ends.  To go by some media coverage, one would think the High Court had ruled on the merits of EU membership or said that Brexit cannot go ahead.  As it made clear, it was purely concerned with a matter of law.  The issue was not about the merits of leaving the EU, but the means by which that was to be achieved.  The court held that notification could not be given under prerogative powers.  The referendum provided a majority for leaving the EU and Parliament is unlikely to go against that outcome.  (That’s my observation, not the court’s.)  The court quoted Dicey on parliamentary sovereignty, but as Dicey observed, ‘we may assert that the arrangements of the constitution are now such as to ensure that the will of the electors shall by regular and constitutional means always in the end assert itself as the predominant influence in the country’.  (Adding, ‘But this a political, not a legal fact.’)  Furthermore, the case is to be appealed to the Supreme Court.  We need therefore to await the outcome of that appeal.  In short, the media response is totally over the top, as hysterical as it is ill-informed.

The judgment is flawed.  I believe the reasoning of the court is mistaken and is in several respects.  The court proceeded on the basis – accepted by the parties to the case – that notification under Article 50 is irrevocable.  There is nothing in Article 50 to this effect and Paul Craig has argued that the natural textual meaning of Article 50(3) is that a state could decide to change its mind and withdraw from the exit negotiation.  The judgment also accepts the argument that rights created for citizens cannot be taken away by prerogative powers.  As the European Communities Act 1972 created rights, these cannot be removed other than by Parliament.  As Adam Tomkins has noted, this is a judge-based doctrine that did not exist at the time of the 1972 Act.  Furthermore, and this is the core point, the rights, as John Finnis has argued, are treaty-based UK rights and not ‘statutory rights enacted by Parliament’.  Rights created under EU law as it stands ‘from time to time’ can be modified or even removed by the EU, entailing no restraint or authorisation by Parliament.

Even if one disagrees with Professor Finnis’ argument, it is one that needs to be addressed.  The court does not really engage with the Finnis argument, but rather proceeds by accepting that EU law rights are rights enacted Parliament.  (Read in the light of Finnis’ argument, much of the discussion of rights in the judgment loses its force, and as Carl Gardner has argued, the body of rights involved is not as extensive as the court argues.)  The court instead proceeds on the basis of a judicially identified category of statute – ‘a constitutional statute’ – and, having drawn on this concept then concludes that Parliament in 1972 intended that the European Communities Act should be such a statute.  It then goes on, at paragraph 82, to assert: ‘Statutory interpretation, particularly of a constitutional statute which the ECA is for the reasons given at paragraph 43-44, must proceed having regard to background constitutional principles which inform the inferences to be drawn as to what Parliament intended by legislation by legislating in the terms that it did’.  In effect, perceived intent is being built on perceived intent.  We thus have a constitutional statute, background constitutional principles, with those principles to inform the inferences to be de drawn as to what Parliament intended.

The High Court in ex p. Rees-Mogg in 1994 held that ‘When Parliament wishes to fetter the Crown’s treaty-making power in relation to Community law, it does so in express terms, such as one finds in section 6 of the [Parliamentary Elections] Act of 1978.’  The court in Miller argues that this did not provide guidance in the present case as in that case the court did not have to consider whether the Crown’s prerogative powers had been unaffected by the ECA and the present case deals with withdrawal from the relevant EU treaties.  Having decided that the case was not relevant, in then goes on to say that ‘we consider that it is clear’ that Parliament in 1972 intended to legislate so as to introduce EU law into domestic law in such a way that could not be undone by the exercise of Crown prerogative power (para. 92).  It is clear to the court because of the reasoning it has adopted.  That reasoning, though, is in my view, as I have indicated, built on contestable foundations and rather stretched reasoning.  There is solid ground for stating that Parliament intended to legislate so as to give effect to EU law, created under the treaties from time to time, into domestic law, but it does not follow that it intended to do so in such a way that could not be undone by the exercise of the Crown prerogative.

The court was unanimous and robust in expressing its judgment.  However, the judgment is, in my view, for the reasons summarised above, open to challenge.  In saying that, I am not going beyond what some distinguished legal scholars have said (not least in the collection of comments in the Policy  Exchange’s Judicial Power Project collection), but simply adding my voice in support of their arguments.

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