Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Posts Tagged ‘parliamentary procedure

A big day in the Supreme Court

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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.

Thus the issue in the present case was whether a 5-week prorogation was appropriate.
On this the justices were unanimous. They held unequivocally that such a long prorogation prevented Parliament from exercising its constitutional function of holding the Government to account.
The fallout from this decision is far from clear.
The Speaker of the House of Commons has announced that Parliamentary business will resume on Wednesday 25 September 2019. Will the Government take any steps to counter this decision?
One effect of prorogation is that Bills going through Parliament at the time of prorogation fall, and have to be reintroduced or carried over into the following session. (Where there is a general election, ‘carry-over’ is not possible.) What will happen in this instance?
Looking to the longer term, was one of the problems here that we do not have a written constitution in the United Kingdom that might have clarified in a basic law the process for prorogation? There are certainly some influential voices being heard that the time is approaching when we should adopt a written constitution.
All the written submissions made to the Supreme Court have been published on-line – as have all the hearings in the Court. This case will be studied by lawyers and politicians for years to come, and will divide opinion.
You can find all the material relating to the case at
https://www.supremecourt.uk/watch/prorogation/judgment.html,
https://www.supremecourt.uk/cases/uksc-2019-0192.html
https://www.supremecourt.uk/brexit/written-case-submissions.html

English Votes for English Laws

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On 22 October 2015, the UK Parliament agreed new legislative procedures for enacting bills, or provisions in bills, that apply only to England. This has been one of the extremely controversial consequences of the Referendum on Scottish Independence.
The policy paper supporting the changes states:

English votes for English laws addresses the so-called ‘West Lothian Question’ – the position where English MPs cannot vote on matters which have been devolved to other parts of the UK, but Scottish, Welsh and Northern Ireland MPs can vote on those same matters when the UK Parliament is legislating solely for England.

It goes on to say:

These proposals change the process by which legislation is considered by the House of Commons so that MPs with constituencies in England (and where relevant England and Wales) are asked to give their consent to legislation that only affects England (or England and Wales), and is on matters that are devolved elsewhere in the UK. Those MPs will therefore have the opportunity to veto such legislation.

The new process will apply to government bills introduced in the Commons after the new rules are agreed. It will then apply to all parts of government bills which are certified by the Speaker as containing English, or English and Welsh, provisions. It will not apply to routine bills that implement the House’s spending decisions contained in the Estimates. It will also apply to secondary legislation.

The following changes to the legislative process are made:

  • Any bills that the Speaker has certified as England-only in their entirety will be considered by only English MPs at committee stage. The membership of this committee will reflect the numbers of MPs that parties have in England.
  • After the Report Stage, for bills containing English or English and Welsh provisions, there is then a process for gaining the consent of English or English and Welsh MPs. These MPs will form a legislative Grand Committee who will consider a consent motion for any clauses that the Speaker has certified as English or English and Welsh only. This is a new stage to allow all English or English & Welsh MPs either to consent to or to veto those clauses. At this stage no amendments to the text of the bill can be made but specified clauses can be vetoed by amendments to the consent motion. In the case of a bill which is England-only, or England and Wales only, this stage allows those MPs to consent to or veto the whole bill.
  • If clauses of the bill are vetoed by the legislative Grand Committee there is a reconsideration stage when further amendments can be made, to enable compromises to be reached. The whole House can participate in this stage, which is, in effect, a second report stage for disputed parts of the bill.
  • This is followed by a second legislative Grand Committee at which all English or English and Welsh MPs are asked to consent to the amendments made by the whole House. If no agreement is reached at this point, the disputed parts of the bill fall.
  • Following report stage and any consent motions the bill continues to third reading, in which as now all MPs can participate. It then progresses to the House of Lords.
  • The legislative process in the House of Lords is unchanged.
  • If the bill is amended by the House of Lords, then when it returns to the Commons the Speaker is required to certify any motions relating to Lords amendments to the bill, on the same basis as before. Any votes on amendments that have been certified as England or England and Wales only will be subject to a double majority vote. That is to say that such amendments will have to be supported by a majority of English or English and Welsh MPs as well as a majority of all MPs before they can become law.
  • The process for bills that start in the House of Lords is similar, with bills being certified when they first arrive in the House of Commons.

English votes for English laws outline model for bills starting in the House of Commons

Special rules apply to Finance Bills and to Secondary Legislation.

The changes are clearly complex. The Government plans to ask the House of Commons Procedure Committee to review the new procedures after they have been used.

The above is adapted from the Government Policy Paper, available at https://www.gov.uk/government/publications/english-votes-for-english-laws-proposed-changes/english-votes-for-english-laws-an-explanatory-guide-to-proposals

A more detailed guide, as well as the changes to the standing orders of the House of Commons and accompanying Explanatory Notes are available at https://www.gov.uk/government/publications/english-votes-for-english-laws-proposed-changes

An excellent research review prepared by Richard Kelly in the House of Commons Library, which gives a detailed account of the background to the whole issue, is at http://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-7339

Written by lwtmp

October 24, 2015 at 11:55 am