Tag: Britain

The Parliament Acts and the EU Referendum Bill

A while back, David Cameron told his backbenchers that he was prepared to use the Parliament Acts on the European Union (Referendum) Bill. Although this announcement won plaudits from many Tory MPs, using the Parliament Acts to get the bill onto the statute book will be highly problematic.

The Parliament Acts 1911 and 1949 allow for laws to be made without the consent of the House of Lords in certain circumstances. In order to qualify, a bill must be rejected by the Lords in two successive sessions of Parliament, and at least a year has to elapse between the bill’s second reading in the Commons during the first session and its third reading by the Commons during the second session (yeah, it’s complicated). Use of the Parliament Acts is incredibly rare–they’ve only been used seven times since 1911 (the last time was in 2004 when the Blair government used them to get the Hunting Act onto the statute book).

By JLogan (Own work), via Wikimedia Commons


Time is not on the European Union (Referendum) Bill’s side. It’s currently in the House of Lords, where a second reading debate has been scheduled for January 10. If it receives a second reading (and it almost certainly will–the Lords rarely reject bills outright), convention dictates that at least two weeks should elapse between second reading and the start of committee stage in order to give peers plenty of time to table amendments. Committee might take a while (the Lords consider every amendment, and the bill’s opponents will likely table a lot of them to slow things down), and another fortnight will have to elapse between the end of committee stage and report stage. Then three days have to elapse between the end of report and third reading/passage.

However, there’s a very important catch: if the Lords amend the bill (which seems likely, given the number of Europhile peers), the bill will have to return to the Commons so they can vote on the Lords’ amendments. But since the bill is a private member’s bill rather than a government bill, the amendments can only be considered on certain Fridays, the last of which is February 28. I highly doubt that the Lords will be finished by then–I suspect that an alliance of Labour and Europhile peers will do everything they can to prolong the proceedings (and unlike our Senate, there’s no “nuclear option” to curtail debate!). If the Commons can’t find the time to consider the Lords amendments, the bill will automatically fall when Parliament is prorogued ahead of the State Opening of Parliament in May.

David Cameron seems to think that, if the European Union (Referendum) Bill is reintroduced in the next session, the Parliament Acts can be used to force it onto the statute books. But as I mentioned earlier, the Parliament Acts can only be used if a bill has been rejected in two successive sessions of Parliament. Section 2(3) of the Parliament Act 1911 states that “A Bill shall be deemed to be rejected by the House of Lords if it is not passed by the House of Lords either without amendment or with such amendments only as may be agreed to by both Houses.” But it’s not clear if that would apply in a situation where the Commons didn’t even consider the Lords’ amendments due to procedural restrictions. Calling that a “rejection” by the Lords would seem rather perverse!

This is uncharted territory. In the past, the Parliament Acts have only been used for government bills, so finding legislative time was never an issue. Ultimately, it will be up to Speaker John Bercow to decide whether or not the Parliament Acts can apply.

There’s another potential catch: even if a bill meets the requirements of the Parliament Acts, the Commons can decline to present it for Royal Assent.[note]See section 2(1) of the Parliament Act 1911.[/note] This has never happened before, so it’s not clear how this discretion would be exercised in practice. In the past, it’s been a moot point since the Parliament Acts have only been used for government bills, and the government obviously has a majority in the Commons. But Cameron is in a coalition, and his Liberal Democrat partners are strongly Europhile. If they were to join forces with Labour, they could outvote the Tories and prevent the bill from being presented for Royal Assent under the Parliament Acts.

I suspect that Cameron would personally prefer to let the European Union (Referendum) Bill die out rather than open an enormous can of worms by invoking the Parliament Acts. But Europe continues to be a festering boil on the body of the Conservative Party, and he might decide that it’s best to lance it once and for all, even if it results in a lot of sturm und drang.

 

There’s another potential catch as well.

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Lords reform looks close to death

It looks like Nick Clegg’s proposals to reform the House of Lords are about to be consigned to the scrapheap. Although the government won the vote on second reading by 462 to 124, they had to withdraw the program motion that would have set the timetable for the rest of the bill’s journey through the Commons. Labour had promised to vote against it, and with around 100 Tory MPs threatening to rebel, it didn’t stand a chance of passing.

Labour claims that they opposed the program motion because it didn’t allow enough time for debate, but I suspect they’re more interested in exacerbating tensions between the Tories and the Lib Dems. It sure seems to be working.

Now the government is in a terrible pickle. Theoretically, they could just take the bill through the rest of its parliamentary stages without any preset time limits, but their rebel backbenchers would almost certainly end up filibustering it. The government will be all too aware that an earlier attempt at Lords reform, the Parliament (No. 2) Bill of 1968, died because MPs on both sides were able to slow proceedings to a crawl until ministers finally gave up.

If the Lords Reform Bill is going to make any progress, there has to be a program motion. David Cameron has hinted that he won’t negotiate with Labour, which means he’ll have to appease his own backbenchers. The Daily Telegraph has reported that Cameron is offering extra days in committee, or a reduction in the number of elected peers. But since they want the entire bill scrapped, it seems doubtful that those concessions will win him many votes. Interestingly, the Telegraph is also reporting that Cameron has indicated that, if he can’t win over his backbenchers by the end of the summer, he will abandon the entire bill. That would place a huge strain on the coalition, and I suspect a messy divorce would soon follow.

Still, I hope Cameron does come to his senses and jettison this atrocious bill. It really is a dog’s breakfast. Nick Clegg and friends have repeatedly said that they want the second chamber to be more accountable, yet they’ve proposed a body whose members would serve a 15-year term without the possibility of re-election.If you never have to face the voters again, you don’t have to worry about what they think.

The bill also seeks to ensure that the reformed Lords remains subordinate to the Commons. But that convention only really makes sense when the Commons has an electoral mandate and the Lords doesn’t. Requiring an elected chamber to kowtow to another elected chamber is an exercise in constitutional fundamentalism.

The way the government has tried to secure the primacy of the Commons seems poorly thought out. Clause 2 says that the Parliament Acts 1911 and 1949 will continue to apply to the reformed House of Lords. Those acts are what allow the House of Commons to pass legislation over the Lords’ veto. But they still allow the Lords to delay non-financial legislation for about a year. Until now, the Lords has usually given way in the end, which is why the Parliament Acts have only been used a handful of times. Would an elected chamber be equally self-denying? I doubt it.

Then there is the Salisbury-Addison convention which states that the Lords won’t reject government bills that arise from manifesto commitments. That convention was negotiated back when the House of Lords was filled with hereditary peers, most of whom supported the Conservatives. Why should it apply to an elected chamber whose political complexion reflects the will of the people?

On the plus side, the wrangle over Lords reform has helped convince me that Britain probably needs a written constitution. The idea of effecting constitutional change of this magnitude through a mere Act of Parliament is troubling, to say the least.

The Diamond Jubilee

Today marked the end of the Diamond Jubilee festivities in Britain. Over the past four days, millions of Britons took to the streets to celebrate the sixty-year reign of Her Majesty the Queen. On some level, the idea of millions of people turning out to fete an 86-year-old grandmother is rather strange. Then again, the whole institution of the British monarchy is built on paradox. On paper, the Queen has vast powers. Describing Queen Victoria’s powers in the 19th century, the constitutional scholar Walter Bagehot said:

[s]he could dismiss all the officers, from the General Commanding-in-Chief downwards; she could dismiss all the sailors too; she could sell off all our ships of war and all our naval stores; she could make a peace by the sacrifice of Cornwall, and begin a war for the conquest of Brittany. She could make every citizen in the United Kingdom, male or female, a peer; she could make every parish in the United Kingdom a “university”; she could dismiss most of the civil servants; she could pardon all offenders. In a word, the Queen could by prerogative upset all the action of civil government within the Government, could disgrace the nation by a bad war or peace, and could, by disbanding our forces, whether land or sea, leave us defenceless against foreign nations.[note]The English Constitution, Introduction to the Second Edition, pg. 32[/note]

The current Queen may share many of those powers, but she can only exercise them on the advice of ministers accountable to Parliament. There are a few instances where the Queen retains personal discretion, but they are few and far between. She does, however, retain the right to be consulted, to encourage, and to warn her government. Because communications between monarch and minister are confidential, it is difficult for us to understand the extent to which the Queen has influenced her governments. That won’t become clear until the relevant documents are declassified after her death. Judging from the odd tidbits that have entered the public domain, it’s clear that she is an astute observer of the political scene.

But that’s not why millions of Britons have come out to cheer her. I’d wager that most of them couldn’t care less about her role as head of state; they’re cheering for her as head of the nation. They’re cheering for her because she stepped up to the plate after her father’s untimely death and immediately set about discharging a difficult job with dignity and grace. They’re cheering for her because she has walked the fine line between clinging to the past and embracing the future. They’re cheering for her because she has worked to recognize the many unsung heroes of British society–the dinner ladies, the crossing guards, and the jumble sale volunteers. They’re cheering for her because, at 86, she still carries out over 400 official engagements per year.

Over the past six decades, the Queen has shown herself to be one of the greatest Britons. I may not be one of her subjects, but I have no problem joining with them as they cry “Vivat Regina!”