Advising second chambers

This has been a fairly busy week – although the House of Commons was not sitting, the House of Lords was.  However, the highpoints for me were not related to sittings of the House, but giving evidence to two parliamentary committees.   The subject was essentially the same as that on which I gave evidence in January to the Public Administration and Constitutional Affairs Committee in the House of Commons, namely the role of the House of Lords.

On Tuesday, I gave evidence, with Lord Cormack, to the House of Lords Lord Speaker’s Committee on the Size of the House.  We appeared on behalf of the Campaign for an Effective Second Chamber, which was responsible for achieving a debate in the House last December, when the House resolved that it was too large and that steps should be taken to see how the size could be reduced.  The result was the Lord Speaker’s Committee, chaired by Lord Burns.  We spoke to a discussion paper we had produced, which identified ways in which a reduction in numbers may be achieved in the short term (without legislation) and in the long term (by legislation).  The committee plans to report by the summer recess.

On Wednesday, I gave evidence, alongside Lord Wakeham and Professor Meg Russell, to the Special Senate Committee on Senate Modernisation of the Canadian Parliament.  The Committee is addressing ways of reforming the Senate and was keen to examine the role of the Lords and its relationship to the Commons.   The evidence was given by videolink and the session was broadcast.  (You can watch the proceedings here.)  In my opening remarks, I stressed the extent the relationship is shaped by the second chamber accepting the supremacy of the elected chamber and seeking to fulfil a role that complements the Commons, fulfilling functions that the Commons may not have the time, political will, or possibly resources to carry out.  There is a recognition that the Lords does a good job and in my view this is attributable to the composition of the House (collectively – no party having a overall majority – and individually, being able to draw on peers with experience and expertise) and its procedures, which differ in crucial respects to those of the Commons.  The questions focused not least on the Salisbury convention.

There was also a concluding question about the greater voting independence of members in the UK Parliament.  I drew attention to the evidence I gave to the McGrath Committee of the Canadian House of Commons in 1984, arguing that members needed to recognise that not every vote should be treated as one of confidence.  In the UK, we got away from that erroneous view many years ago.  Canadian parliamentarians have yet to do so.

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Hull’s finest – Class of ’98

I have been sorting through some of the paperwork that has accumulated over some years – several boxes still to go – and in the course of doing so discovered some old attendance registers, including for the class of ’98.  This coincided with having been sent recently a picture of the British Politics and Legislative Studies (BPLS) Class of ’98, courtesy of Dean Bullen.

The picture shows, from left to right, Mark Davis, Christopher Rumfitt, Robert Rand, Dean Bullen, Jonathan Whitehouse, John Quinn (largely obscured by me), Rachel Carson, David Russell, Helen Simpson, Stuart Quayle, Andrew Kennedy, and Alexis Wayne.  Missing from the picture is Suzanne Norton (no relation).   Another student who did the Parliament course, but was a law and politics finalist and so joined these students in classes in 1995-6, was Tracey Crouch, now the Sports Minister.

The photograph certainly brings back memories.  I know what several of these graduates presently do, not least because I follow them on Twitter, but it would be interesting to hear from any that have not been in contact much since they graduated.

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A tragic week

The security services do a remarkable job and have managed to prevent a number of attacks on Parliament.  There is always the danger that one or more will succeed.  Wednesday saw such an attack, with a tragic loss of lives.   Whenever such attacks happen – the Palace has witnessed IRA bomb attacks as well as the assassination of MP Airey Neave within the precincts – there is a review of security, but with the recognition that Parliament has to continue operating as a Parliament and be accessible to the public.   There is the obvious concern not only with the Palace itself, but also the surrounding area.  One aspect to be considered is pedestrianizing the area around the Palace, not least St Margaret’s Street and part of Parliament Square.  As for immediate changes, these will be operational matters for the security services.

I had a fairly packed programme lined up for the week.  On Tuesday, I had my students down to Westminster for the principal field trip of the year.  It encompassed a range of events.  It is an annual event and for as long as I can remember I have organised it for a Wednesday.  This year I decided to switch it to a Tuesday as it reduced clashes with other events.  By the end of Wednesday, I was more than relieved that I had made the switch.

On Wednesday morning, the Constitution Committee took evidence from the Lord Chief Justice, Lord Thomas.  His comments attracted considerable media attention.  (You can watch his evidence here.)   After lunch I had a meeting of the Executive of the Association of Conservative Peers and then a meeting of the Association.

It was when I got back to my office after the ACP meeting that I saw on the TV screens the events unfolding outside.  We got instructions to remain in our present location.  There were three of us in the office, soon joined by a fourth colleague.  We were in lock down for about four hours.  We were told to stay away from the windows, though given the size of the windows one didn’t need to be near them to see outside.  Eventually, armed police arrived to escort everyone on our floor to Westminster Hall.  A good many parliamentarians, staff and visitors had been taken there much earlier and then to Westminster Abbey.  (I kept getting text messages from a friend in the Abbey.)  I anticipated we may be in the Hall until  late in the evening and was just planning to send messages cancelling classes in Hull the following day when we were told it was possible to leave.  It was just in time to enable me to get to the station in time for the last train.  I decided to travel back, though did wrestle with whether that was the right decision and whether it would be more appropriate to stay, not least to be in the chamber for the following morning.

Parliament is obviously an iconic target and needs protecting.  PC Keith Palmer gave his life protecting it.  Three others died not because they were in Parliament, but because they were making their way across Westminster Bridge.   We have to do what we can to prevent such attacks and that obviously entails changes, but at the same time we have to try to ensure that we do not make them on such a scale that it means that those who seek to terrorise succeed in their aims.

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Here we go again…

Over the course of the past few weeks, given developments in respect of the EU, the Lords, and claims about Parliament by MP Mhairi Black, the media have been churning out claims that would do justice to Donald Trump.  Fact-checking is not the strong suit of some political correspondents.  For the record:

The Prime Minister cannot ‘call’ a ‘snap election’.   As I have explained before, and more than once, what she can do is ‘call for’ an ‘early election’.  The terminology is important.  It may well be that the PM could achieve an early election under either section 2(2) or 2(4) of the Fixed-term Parliaments Act, but it is no longer in the gift of the PM to go to Buckingham Palace and invite the Queen to dissolve Parliament and call a new election.  The Queen retains no residual powers in respect of dissolution.  Under s2(2) the PM is essentially dependent on the Opposition to agree to an early election and under s2(4) she is dependent on the House of Commons to pass a vote of no confidence in the government.   Some newspapers, including now The Times,  do acknowledge the provisions of the Act, but one still sees speculation as to whether the PM ‘will call a snap election’.  Aargh.

Mhairi Black is not the youngest MP in 350 years.  As I have previously reported, again more than once, she is the youngest MP since 1832.  It was not unusual before then for MPs, such as Charles James Fox, to be elected under age.  Minors were not formally permitted to be Members, but took their seats ‘by connivance’.  Between 1790 and 1810, at least 29 MPs were elected under age.  ‘Viscount Jocelyn, returned in 1806, was barely 18 years old’ (R. G. Thorne, The House of Commons 1790-1820, p. 278).

Electing a second chamber is not self-evidently ‘the democratic option’.  Critics of the House of Lords trip out that we need an elected second chamber and justify this on the grounds that it is obviously the democratic option.   I have variously explained that this is not self-evidently the case.  I developed the point recently in my speech in the Second Reading debate of a Private Member’s Bill to provide for election.  Democracy is about how people choose to govern themselves.  In the UK, the choice is made through elections to the House of Commons.  A party is elected to government on the basis of a particular programme, seeks to implement that programme – parties, contrary to some popular perceptions, do not have a bad track record of implementing manifesto promises – and are then answerable to electors at the next election.  Election day, in Karl Popper’s words, is ‘judgment day’.  We have core accountability.  If one elects a second chamber, there is then the prospect of divided accountability, denying electors a body they can hold to account for the outcomes of public policy.   My colleague, Professor Colin Tyler, who specialises in democratic theory, made this point also and rather pithily in his evidence (p. 200) to the Joint Committee on the Draft House of Lords Reform Bill.

It was notable in the Second Reading debate that proponents of electing a second chamber really had no answer to my point, relying instead on claims that electing a second chamber was a feature of a ‘modern democracy’, failing to identify how this differed from ‘democracy’ and indeed failing to define their terms at all.

Perhaps I should start inviting readers to identify when these claims get rehashed in the media so that we can compile a list of shame…

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The Great Repeal Bill

Much attention is presently focused on the European Union (Notification of Withdrawal) Bill as it makes its way through Parliament.  However, the most substantial work for Parliament will come later.  The Government proposes to introduce a ‘Great Repeal Bill’ next session to repeal the European Communities Act 1972 and at the same time maintain in UK law existing law deriving from EU membership until such time as decisions can be made as which provisions should be repealed, amended or retained.  The Great Repeal Bill (as the foregoing indicates, the title is something of a misnomer) will itself create great challenges for Parliament, as will dealing with the subsequent legislation – primary or delegated – that is introduced to remove or amend measures kept in place by the measure.

The nature of the problems facing Parliament is addressed in the latest report of the House of Lords Constitution Committee.  The report is, in my view, one of the most important reports published by the committee in its sixteen-year existence.  It clarifies the nature of the problems:

First, there is a major and unique challenge in converting the body of existing EU law into UK law, given that ‘EU law’ derives from a range of sources – UK primary legislation, secondary legislation, EU regulations (having direct effect and therefore not embodied in any UK Act), judgments by the Court of Justice of the European Union and by UK courts, and rulings by regulatory agencies.   The Bill will need to capture EU law at a particular moment, in itself problematic given that EU law is constantly evolving.

Second, there is the challenge of determining how to confer on Government relatively wide delegated powers to convert EU law into UK law, while making sure the powers cannot be used to implement new policies favoured by Government.  The Committee makes recommendations as to how to ensure that Government does not use secondary legislation to go beyond what is necessary to adapt EU law to fit UK domestic law and to implement the results of the UK’s negotiations with the EU.

Third, there is the challenge of scrutinising measures to remove or amend law introduced subsequent to and under the provisions of the Great Repeal Act.  This is going to be a major, continuing and time-consuming exercise, essentially dominating the parliamentary timetable for some years.

For dealing with secondary legislation laid under the provisions of the Act, the Committee makes a number of recommendations, including a new or enhanced scrutiny process and a committee to examine the Government’s recommendation as to the appropriate level of parliamentary scrutiny.  The Committee is alert to the resource implications of undertaking scrutiny of what is likely to be a massive volume of secondary legislation.  It also notes the need for the UK Government to make clear what it sees as the role of the devolved institutions in the process of domesticating EU law.

The report is in my view invaluable in alerting Parliament (and Government) to the complexity and scale of the problem and helps provide some framework for addressing it.  It clarifies the nature of the problem in time for Parliament to put in place mechanisms for dealing with what is an unprecedented situation.   The situation we face is both constitutionally and politically challenging.  Time is of the essence.

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Conventions, codes and practices

There is a great deal of confusion as to what constitutes a constitutional convention.  The confusion has become greater in recent years because of the ‘Sewel convention’, which has been incorporated in the Scotland Act and the Wales Act, and by Lord Strathclyde publishing a report on the convention that the Lords does not normally reject statutory instruments.  The problem is that neither constitutes a convention.

There was a Joint Committee on Conventions which reported in 2006, but it failed to define its terms.  It adopted the ‘elephant definition’ of a convention – we know one when we see one.  The problem is that we don’t know one when we see one.  There is a tendency to think we do, but conventions get confused with other terms.

In a recent talk, I distinguished conventions, codes and practises.

Conventions.  These are non-legal binding rules of behaviour, complied with because those at whom they are directed accept that they constitute, in David Feldman’s words, right behaviour.  The key point is that they are binding.  They may be flexibility as to the contours of a convention, but not as to its applicability.

Codes.  These comprise clear sets of rules, distinguishable from conventions in that they are, as the name reveals, codified and compliance is ensured through a superior authority, such as the Prime Minister in respect of the ministerial code.  Andrew Blick in his recent book, Codes of the Constitution, includes manuals, notably the Cabinet Manual, but I treat manuals as descriptions of practices.

Practices (or what Kenneth Wheare referred to as usage).  These comprise non-binding rules of behaviour.  They are rules normally complied with, but not invariably.  They are usually qualified by the use of terms such as ‘normally’ or ‘other than in exceptional cases’.  A practice develops, but those who follow it do not feel they have a moral obligation to adopt it regardless.

The Sewel convention is a misnomer.  It was referred to as a convention when it was not a convention, then developed into a convention, but then ceased to be a convention when it was embodied in the Scotland Act.  The statement of Lord Sewel at the despatch box in 1998 referred to a practice: ‘we would expect a convention to be established that Westminster would not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish parliament’.  The inclusion of ‘normally’ disqualified it as a convention.  So even though it became known as the Sewel convention it was a practice.  However, it developed as a convention when there was no deviation from it.   So in effect ‘normally’ moved to ‘invariably’.  However, the words of Lord Sewel, including the word ‘normally’, were put into the Scotland Bill, under the heading the Sewel Convention,  even though  the wording – and the fact that it was embodied in legislation – disqualified it as a convention.  So we now have the situation that there is a practice embodied in statute under the heading of a convention.  Despite it being embodied in statute, the Supreme Court in the Miller case recognised that it did not come within the ‘constitutional remit of the judiciary’.

The Strathclyde review was premised on there being a convention that the Lords does not reject a statutory instrument, other than in exceptional circumstances, and that the convention had been breached when the House of Lords in 2015 rejected the statutory instrument on tax credits.  The problem with this is twofold.  The House did not actually reject the statutory instrument and there is no convention.

Lord Strathclyde opened his review by defining a convention, doing so in the terms in which I have described it, but then in effect ignored that very definition, recognising that what was being considered was a practice. The fact that there is no convention is borne out in the words of Lord Strathclyde in the course of asserting that there is.

Confused?  There is, in short, a need for greater clarity as to what constitutes a constitutional convention or rather a greater awareness of the differences between conventions, codes and practices.

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