Posts Tagged ‘constitutional conventions’
Repeal of the Fixed-term Parliaments Act: draft Bill published
The Fixed-term Parliaments Act 2011 was enacted as part of the agreement reached between the Conservative and Liberal Democrat Parties, when, in 2010, they formed the coalition government led by David Cameron. The idea of fixed-term parliaments had been around for many years. The problem has been that when a political party becomes a government, statutorily fixed-terms reduce the freedom Prime Ministers have long had to decide when they wanted to call an election would be constrained. Those in power have been reluctant to give up this freedom. (There is of course an overall limit – that an election much be called at least every 5 years.)
In 2011, the creation of the Coalition Government changed the political landscape. It was felt that, without setting a timetable for elections, there could be considerabe political instability if the majority partner in the coalition had the freedom to call an election when the opinion polls looked favourable, which could potentiallyhave left the minority in the lurch. The General Election 2015 was conducted within the framework laid down in the 2011 Act.
In 2017, the statutory framework was shown to be considerably less rigid than the title of the Act might have suggested. Mrs May, who had become Prime Minister in 2016, following the Brexit Referendum, thought good polling figures would give her a chance of establishing a more stable Government than that which followed the 2015 election. She was able to hold an election in 2017 because the Act provided that, where the House of Commons voted by a 2/3rd majority in favour of holding an early General Election. The political circumstances at the time enabled her to achieve that result.
In 2019, as the Brexit negotiations were drawing to a close, the Government – now led by Boris Johnson – wanted to find a way of ensuring that it could get a Brexit agreement through the Parliament. The Parliament was so divided on the issue that three attempts to get Parliamentary approval of a draft agreement failed. Mr Johnson thought that one way out of this difficulty would be to be to hold a general election which, if he won, would put the Brexit Agreement at the heart of Government policy. However, he could not do this because the statutory conditions for getting around the Fixed-term Parliaments Act timetable were not met. He did not have a 2/3rd majority in favour of holding a General Election (the route used by Mrs May) nor had he lost a vote of confidence which could also have triggered the calling of an early General Election.
Instead, he tried to prorogue Parliament – bringing one session to an end and starting a new session. But his purported use of the prerogative power to prorogue, which would have resulted in Parliament being totally shut down for 5 weeks, was ruled to be unlawful by the Supreme Court. (See R (on the application of Miller) (Appellant) v The Prime Minister (Respondent) [2019] UKSC 41.) He finally achieved his goal by getting Parliament to sidestep the Act through the enactment of the Early Parliamentary General Election Act 2019.
One item in the Conservative Party’s election manifesto for the 2019 General Election was that, if elected, a Conservative Government would repeal the Fixed-Term Parliaments Act. In December 2020 the Draft Fixed Term Parliaments Act (Repeal) Bill was published.
In fact, the Fixed Term Parliaments Act contained a built-in mechanism for its own review. Section 7, added during its parliamentary passage in 2011, provided that between June and November 2020 the Prime Minister should arrange for a committee to review the operation of the Act. That committee was established in November 2020, with 14 MPs and six members of the House of Lords. It is this Committee, chaired by former Conservative Chief Whip Lord (Patrick) McLoughlin, that is now considering the draft Bill.
Two parliamentary committees had already reviewed the operation of the FTPA: the Lords Constitution Committee (2019), and the Commons Public Administration and Constitutional Affairs Committee (2020). Both raised important questions of principle about the whole idea of creating fixed-term parliaments. Was it right, in principle, that a Prime Minister should have the prerogative power be able to choose an election date? Why should general elections not be held within a timetable agreed by Parliament? The policy arguments in favour of fixed term parliaments as well made in an article by Robert Hazell from the Constitution Unit.
One feature of the draft Bill is that it includes provisions designed to prevent the courts from intervening in any decision taken by a Prime Minister to call an election. Two public lawyers, Professor Elliott and Professor Young, have given their views on the Bill including a consideration of whether the Bill’s attempt to restore the Executive’s prerogative power to determine the date for an election also mean that the potential for a challenge in the courts that an exercise of that power has been unreasonable can be eliminated.
Although the repeal of the Fixed Term Parliaments Act might at first sight seem like a rather narrow issue, it does raise important policy and legal issues which must be considered both while the current Bill is in draft form, and after any legislation has been enacted.
For further information, see the following articles:
By Robert Hazell at https://constitution-unit.com/2020/12/11/the-fixed-term-parliaments-act-should-it-be-amended-or-repealed/
By Professor Elliott at https://publiclawforeveryone.com/2020/12/02/repealing-the-fixed-term-parliaments-act/
By Professor Young at https://ukconstitutionallaw.org/2020/12/04/alison-l-young-the-draft-fixed-term-parliaments-act-2011-repeal-bill-turning-back-the-clock/
A big day in the Supreme Court: R (on the application of Miller) (Appellant) v The Prime Minister (Respondent)
Major cases raising fundamental constitutional issues are rare, which is why 24 Sept 2019 is a significant day. The supreme court ruled that the Prime Minister’s decision to prorogue Parliament for 5 weeks was unlawful.
For the Prime Minister, it was argued, in essence, that the prorogation of Parliament is an act which falls within the scope of the Prerogative (acts formerly taken by the monarch in person, now taken by Ministers). As an essentially political decision, it should not be capable of review by a court – in the technical language it was not ‘justiciable’.
The Supreme Court – sitting with 11 justices – ruled unanimously that it was possible for the courts to judicially review the exercise of prerogative power – to determine whether such exercise fell within the accepted boundaries for the use of such powers. In short, the review of the power to prorogue was a justiciable matter.
That alone did not mean that the Government had acted unlawfully. Prorogation is an important part of the Parliamentary calendar. It brings one Parliamentary session to a close. Ministers then prepare a Queen’s Speech which sets out the Government’s legislative priorities for the coming 12 months. Members of the Supreme Court accepted that a prorogation for a short period was necessary, even though Parliament could not function during that period.
However, the justices accepted evidence (including evidence from the former Prime Minister Sir John Major) that in recent years prorogations tended to be for between 4 and 6 days. That was the average amount of time needed to sort out the Queen’s Speech.
The key point about a prorogation is that it brings all the work that can be carried on in Parliament to a complete standstill. No Committees can work, no Parliamentary Questions can be answered. Prorogation is distinct from recess when Parliament does not sit (e.g. in holiday periods) but other Parliamentary business does continue.
Constitutional conventions
Constitutional conventions are an important features of the UK constitutional settlement. As the conventions are not exactly rules in the normal sense, it can on occasion be hard to know what they are and when they apply. In 2011, the then Coalition Government published a statement of Constitutional Conventions that had been drafted by the then Secretary to the Cabinet Sir Gus O’Donnell. Although the work had been started at the request of the former Prime Minister, Gordon Brown MP, it was thought to be particularly helpful to guide the Coalition Government, led by David Cameron and Nick Clegg. The book was published in October 2011.
Recent events in the House of Lords – where a draft Statutory Instrument (which was designed, as part of the Government’s Welfare Reform plan, to cut tax credits to those in work) were not approved by a majority of the Lords, despite being approved in the House of Commons – have thrown a new spotlight on these conventional rules. (They have also reopened the wider issue of the composition of the House of Lords and whether or not it should become an elected body.)
The specific issue – relating to the approval of the Statutory Instrument already approved in the House of Commons – is to be subject to a review led by Lord Strathclyde.
This incident emphasises the point that while the process of government usually ticks over in a fairly ordered way, the lack of detail written rules can on occasion lead to considerable controversy.
The Cabinet Manual setting out the main laws, rules and conventions affecting the conduct and operation of government is available at https://www.gov.uk/government/publications/cabinet-manual
Turning constitutional conventions into law
During the debate on what became the Scotland Act 1998, Lord Sewel indicated in the House of Lords (H.L. Deb vol. 592 col. 791) that “we would expect a convention to be established that Westminster would not normally legislate with regard to devolved matters without the consent of the Scottish Parliament”.
Clause 2 of the Scotland Bill 2015 inserts a new subsection (8) into section 28 of the 1998 Act so it is recognised in statute that, although the sovereignty of the UK Parliament is unchanged by the legislative competence of the Scottish Parliament, the UK Parliament will not normally legislate for devolved matters in Scotland without the consent of the Scottish Parliament.
For further details see http://services.parliament.uk/bills/2015-16/scotland.html
English Votes for English Laws – EVEL
A consequence of the Referendum on Scottish Devolution was that the Prime Minister, David Cameron, announced that he wanted not only to devolve more legislative power to the Scottish Government, but also wanted to ensure that only English MPs were able to vote on Bills that would only have effect in England.
The issue of English Votes for English Laws has proved to be extremely controversial.
A first attempt to create a new parliamentary procedure for dealing with the issue was set out in a paper published by the Cabinet Office in July 2015.
However it ran into serious difficulties in debate in the House of Commons, and the Government decided to rethink how it was going to implement Mr Cameron’s pledge. Revised proposals are expected in the near future.
The text of the original Cabinet Office paper can be found at https://www.gov.uk/government/publications/english-votes-for-english-laws-proposed-changes
The Scotland Bill 2015
A principal outcome of the Referendum on Scottish Independence was an agreement – the Smith Commission Agreement – that more power should be devolved from Westminster to the Scottish Parliament. The Scotland Bill was published in July 2015 and has started its progress through the Westminster Parliament.
The Explanatory Notes to the Bill summarise the contents of the Bill as follows:
The Bill is an enabling Bill and the majority of the provisions in the Bill set out the powers that are being transferred to the Scottish Parliament and or the Scottish Ministers. In particular the Scotland Bill amends sections of the Scotland Act 1998 and rebalances the devolved and reserved responsibilities between the administrations. The Bill also includes provisions which set out the constitutional relationship of the Scottish Parliament and Scottish Government within the United Kingdom’s constitutional arrangements. It does not amend this relationship.
…[T]he Bill:
• declares that a Scottish Parliament and a Scottish Government are considered permanent parts of the UK’s constitutional arrangements, and that the UK Parliament will not normally legislate in devolved areas without the consent of the Scottish Parliament, whilst retaining the sovereignty to do so;
• gives increased autonomy to the Scottish Parliament and the Scottish Ministers in relation to the operation of Scottish Parliament and local government elections in Scotland;
• gives increased autonomy to the Scottish Parliament in relation to the power to amend sections of the Scotland Act 1998 which relate to the operation of the Scottish Parliament and the Scottish Government within the United Kingdom;
• increases the financial accountability of the Scottish Parliament through devolution of the rates and bands of income tax, Air Passenger Duty and the Aggregates Levy, and assignment of VAT revenues;
• increases responsibility of welfare policy and delivery in Scotland through the devolution of welfare powers to the Scottish Parliament and / or the Scottish Ministers;
• gives significant responsibility to Scotland for areas such as road signs, speed limits, onshore oil and gas extraction, consumer advocacy and advice amongst others by devolution of powers in relation to these fields to the Scottish Parliament and the Scottish Ministers; and
• increases scrutiny for the Scottish Government of specific bodies and increases the ability of the Scottish Government to design schemes relating to energy efficiency and fuel poverty by the devolution of functions to the Scottish Ministers.The Smith Commission Agreement increases the financial accountability of the Scottish Parliament. A new fiscal framework will be agreed for Scotland to accompany the further powers included in this Bill, in order to set and coordinate sustainable fiscal policy for the UK as a whole. This will give the Scottish Government the tools to manage the powers in this Bill while ensuring consistency with the fiscal framework in the rest of the UK. It is intended that that framework will be negotiated in parallel to the passage of this Bill.
There is still considerable political debate as to whether the provisions of the Bill go far enough. The Scottish National Party is arguing for more devolution. The final outcome of this process will be known in 2016.
The Bill and accompanying papers is at http://services.parliament.uk/bills/2015-16/scotland/documents.html
The subject of English Votes for English Laws – EVEL – is considered in a separate note.
The changing constitution – abolition of the Select Committee on Political and Constitutional Reform
Just over a year ago, (October 2014) I published a blog item here on a consultation by the Political and Constitutional Reform Select Committee of the House of Commons in which it explored the arguments for and against the adoption of a Written Constitution. It followed that with a rather anodyne report, published before the dissolution of the Coalition Government, suggesting that more work should be done on this.
It also suggested that the Committee should be reconstituted after the outcome of the 2015 Election was known.
Despite the fact that there is considerable discussion about constitutional change, particularly issues – such as English Votes for English Laws – which came out of the Scottish Referendum, the Select Committee itself has not been reconstituted.
For the Select Committee’s Final Report on this subject go to http://www.publications.parliament.uk/pa/cm201415/cmselect/cmpolcon/599/59902.htm
Under the title ‘Consultation on A new Magna Carta?’ it attaches, as an Annex, a draft accessible summary constitution, with options for reform, written by Professor Robert Blackburn of King’s College London. This is an interesting contribution to a much wider debate.
For more detailed discussion about constitutional developments you need to look at the work of the Constitution Unit, based in University College London. See http://www.ucl.ac.uk/constitution-unit/
Considering the case for a written constitution
In July 2014, the Political and Constitutional Reform Committee of the House of Commons launched an inquiry into the question of whether there is a need for a new Magna Carta. The inquiry follows from research undertaken at King’s College London which lays out three different models – including one fully fleshed out, complete constitution – and sets out some of the arguments for and against codifying the constitution in this way. The following summary is from the Committee’s website.
Arguments for
The King’s research points to the fact that the UK has a “sprawling mass” of common law, Acts of Parliament, and European treaty obligations, and a number of important but uncertain and unwritten “conventions” that govern administration, but the full picture is unclear and uncertain to electors in our democracy. They point to concerns about an “elective dictatorship”, and argue that it has “become too easy for governments to implement political and constitutional reforms to suit their own political convenience”. A written constitution would entrench requirements for popular and parliamentary consent. The present unwritten constitution is “an anachronism riddled with references to our ancient past, unsuited to the social and political democracy of the 21st century and future aspirations of its people. It fails to give primacy to the sovereignty of the people and discourages popular participation in the political process.”
Arguments against
Conversely, the case against a written constitution is that it is unnecessary, undesirable and un-British. The UK’s unwritten constitution is evolutionary and flexible in nature, enabling practical problems to be resolved as they arise and individual reforms made. The research points to concerns that a written constitution would create more litigation in the courts and politicise the judiciary, requiring them to pass judgement on the constitutionality of government legislation (which currently happens only in some contexts, such as compatibility with the Human Rights Act), when the final word on legal matters should lie with elected politicians in Parliament, not unelected judges. There is the simple argument that there are so many practical problems in preparing and enacting a written constitution, there is little point in even considering it. There is no real popular support or demand and, especially given the massive amount of time and destabilising effect such a reform would entail, it is a very low priority even for those who support the idea.
The Committee is currently taking evidence on the issue and will publish a report early in 2015.
For further detail go to http://www.parliament.uk/business/committees/committees-a-z/commons-select/political-and-constitutional-reform-committee/news/report-a-new-magna-carta/
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 