Tag: Parliament

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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The truth about Crown Consent

The House of Commons’ Political and Constitutional Reform Committee is currently in the midst of an inquiry into one of the more arcane facets of parliamentary practice: Crown Consent.

Crown Consent is distinct from Royal Assent, which is what transforms a bill into an Act of Parliament. Crown Consent is basically an announcement on behalf of the Queen that she has consented to place her prerogative or interest (or both) at the disposal of Parliament for the purpose of a given bill. Similarly, if a bill affects the interests of the Prince of Wales in one of his many capacities, he has to give consent, too. The method of signifying consent and the timing of the announcement varies between the Lords and the Commons, though in both Houses, it must be signified by a Privy Counsellor. If it is not signified, the bill cannot be passed and, in some cases, it cannot even be debated.

The exact test for determining whether or not a bill requires Queen’s or Prince’s Consent is rather murky, though the Cabinet Office has published the internal guidance used by the Office of the Parliamentary Counsel (they’re the ones who draft bills). While some cases are fairly obvious (e.g. the Succession to the Crown Act 2013), others are more obscure (the Animal Welfare Act 2006)

Crown Consent has caused some sturm und drang lately, with some of the more excitable segments of the British press calling it a “secret royal veto.” Of course, like most of the Crown’s powers, the power to grant or withholds consent is exercised on the advice of ministers. Obviously, the government is going to advise the Queen to grant consent for all of its own legislation, and the Office of the Parliamentary Counsel’s guidance makes it clear that the government will recommend that consent be granted even if it opposes a bill (see section 7.4). That being said, there have been times where a government has refused to recommend that consent has been granted because ministers disagreed with a bill, such as the Peerage (Ireland) Bill in 1868 and the Titles (Abolition) Bill in 1964.

One of the most notable cases where Crown Consent was not signified was Tam Dalyell’s Military Action Against Iraq (Parliamentary Approval) Bill in 1999. This has generated a great deal of rather ill-informed commentary from the likes of the Guardian and the Huffington Post (the latter actually went so far as to headline an article “Queen Vetoed the Passing of War Powers to Parliament, Whitehall Documents Reveal”). But while it is true that the Crown Consent was not signified for that particular bill, contemporary press reports indicate that Tam Dalyell deliberately refused to seek consent. The BBC quoted him as saying “I am not going crawling to the Queen. This has nothing to do with her.” Now one might sympathize with his point of view, but the blame for the bill’s failure rests with him, not Buckingham Palace.

During their testimony before the Political and Constitutional Reform Committee, the clerks of both Houses of Parliament said that the requirement to seek Crown Consent is a matter of parliamentary practice, not law, so it can be abolished whenever Parliament wants. Although Crown Consent isn’t as sinister as the Guardianistas would like you to believe, it’s admittedly hard to see why it should continue. Unlike Royal Assent, which at least has a symbolic purpose, Crown Consent is little more than a fussy bit of parliamentary arcana. And although modern convention favors granting Crown Consent whenever necessary, it could still theoretically be used to stifle debate on a measure that the government didn’t like. It will be interesting to see what the committee ultimately recommends.

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.

La Reyne le veult!

Monday saw one of the coolest events in the British parliamentary calendar: prorogation. What is prorogation, you ask? Simply put, it’s the end of a parliamentary session. But unlike here in the US where the legislature expires quietly, Parliament goes out with a ceremony that’s 100% pure awesomeness.

The power to prorogue Parliament is part of the royal prerogative, though nowadays it is only exercised on the advice of the government. In the past, monarchs prorogued Parliament in person, but since the 19th century it has been customary for the sovereign to appoint a commission of peers to perform the ceremony on their behalf. Nowadays, it is also customary for the prorogation ceremony to include the signification of royal assent to any outstanding bills, but the two things are technically separate.[note]Monarchs stopped signifying Assent in person around the same time as they stopped proroguing Parliament. Until 1967, Assent was always signified by the Lords Commissioners. But that eventually proved to be too inconvenient, so Parliament passed the Royal Assent Act, which allowed the Queen to signify her Assent by signing Letters Patent. The older, more formal, is only used at prorogation.[/note]

Illustration of a peerage robe courtesy of Wikimedia Commons.

The ‘Lords Commissioners’ are always chosen from among the ranks of the Privy Counsellors, and usually include the Lord Speaker, the leaders of the main political parties in the Lords, and the Convenor of the Crossbench Peers.[end]The Archbishop of Canterbury and the Lord Chancellor are also named in the Queen’s Commission, but they no longer take part in the ceremony.[/end] At the appointed hour, they put on their parliamentary robes (complete with ermine) and process into the House of Lords, where they take their seats on a bench between the Throne and the Woolsack. The male Commissioners were black bicorn hats, while their female counterparts wear something that looks like a squashed tricorn hat with a gold brooch on the side.[end]The ladies’ headgear seems to be a modern innovation. Traditionally, women wore the same bicorn hats as their male colleagues, and I’m not sure why a change was made. I think it’s fairly recent though.[/end]. The commission is presided over by a Minister of Cabinet rank, usually the Leader of the House.[end] and he’s the only one who gets a speaking role. The rest of the Commission just sits there in silence.

The Leader of the House commands the Gentleman Usher of the Black Rod (who also doubles as the Serjeant-at-Arms of the House of Lords) to summon the House of Commons. When the Commons arrive, they can’t actually enter the Lords Chamber. Instead, they have to stand at the threshold. As they crowd in, they bow three times to the Lords Commissioners, and the Lords Commissioners in turn acknowledge each bow by doffing their hats (though female Commissioners don’t doff their hats for some reason).

Once the Commons are in their place, it is time for the best part of the entire ceremony: the reading of the Queen’s Commission. This is probably one of the most awesomely arcane documents in the British constitutional repertoire. It’s addressed to “Our right trusty and right well beloved the Lords Spiritual and Temporal” and “Our trusty and well beloved the Knights, Citizens, and Burgesses of the House of Commons in this present Parliament assembled,” and contains references to the “fidelity, prudence, and circumspection” of her Commissioners, as well as the “divers (sic) difficult and pressing affairs concerning Us, the State and Defense of Our United Kingdom, and the Church” that caused her to summon Parliament in the first place. At the end of the document, the clerk informs everyone that it’s “signed by the Queen herself, with her own hand.”[note]Those with a hankering for grand legalese can find a sample of the Commission here.[/note]

The commission read, it’s time for the Royal Assent. As the Clerk of the Crown in Chancery reads the short title of each bill, the Clerk of the Parliaments turns to the Commons and pronounces the appropriate Norman French formula (in most cases, it’s La Reyne le veult, which means “the Queen wills it”). That’s right: in Britain, a bill formally becomes an act when a bewigged man shouts at legislators in a dead dialect.

Assent given, it’s time for the Leader of the House to read the Queen’s prorogation speech “in Her Majesty’s own words.” Of course that’s not exactly true: like the Speech from the Throne, this speech is written for her by the government, and it’s basically a boring laundry-list of all the great things the government has done over the past session. When the speech is over, the Leader of the House formally prorogues Parliament to a certain day, and the Commons withdraw. Much more hat-doffing ensues.

Now there are some people who would love to do away with the robes, hats, and Norman French in the name of ‘modernization.’ After all, the prorogation ceremony isn’t necessary. It could be streamlined, or even eliminated. But at the same time, there’s also no real compelling argument for doing so.  Whether it’s fireworks on the Fourth of July or bewigged men shouting in Norman French, there’s nothing wrong with a little spectacle. 🙂

 

Lords Reform: A Real Farce

The Joint Committee on the Draft House of Lords Reform Bill published its report on the government’s proposals yesterday. There weren’t really any surprises: the committee recommended an 80 percent elected/20 percent appointed House of 450 members, each of whom would serve for a non-renewable 15-year-term. The elected members would be chosen using a modified version of the single transferable vote method, while the appointed members would be chosen by a statutory Appointments Commission (though the Prime Minister would retain the ability to nominate a limited number of individuals to serve as Ministers in the House of Lords). The Church of England would continue to be represented by bishops, though their number would be reduced to 12. But I have a feeling that this particular scheme is going to go the way of all the other schemes that have been proposed since Lords reform began in 1911.

As always, the stumbling block will be the issue of the relationship between the two Houses of Parliament. Right now, the House of Lords is subordinate to the House of Commons. The Parliament Acts 1911 and 1949 allow the Commons to pass legislation without the Lords’ consent, while the Salisbury Convention states that the Lords will not reject government bills that arise from manifesto commitments.

But although the Lords can no longer fight the Commons on equal terms, they still play a valuable role as a revising chamber. Unlike in the Commons, where legislation is often nodded through without any real scrutiny, the Lords look at every clause of every bill. The Lords is traditionally a much less partisan place than the Commons, and many of its members have real-world experience beyond the Westminster village. The Lords can look at legislation from a different perspective, and their amendments often go a long way toward improving the final product (in fact, the vast majority of Lords amendments are subsequently agreed to by the Commons).

The main problem with the government’s proposals is that they assume that the reformed House of Lords will remain subordinate to the Commons. But while it makes sense for an appointed body to defer to the will of an elected body, it’s hard to see why an elected House of Lords should have to give way. After all, one could argue that it would have greater democratic legitimacy since its members would be chosen through a form of proportional representation rather than first-past-the-post. It would only be a matter of time before the two Houses came into serious conflict, and it’s difficult to see how the primacy of the Commons could survive. Legislative gridlock is all-too-common here in America, but it would throw a real monkey wrench into the British system.

The government’s proposals face a perilous journey to the statute book. I suspect that, deep down, most MPs are aware of the absurdity of one elected chamber having to kowtow to another elected chamber. There are also many Conservative MPs who would love to torpedo Lords reform in order to give Nick Clegg and the Liberal Democrats a symbolic middle finger. If the newspaper reports are to be believed, there are even Cabinet ministers who are quietly encouraging rebellion. Even if the bill squeaks by the Commons, it faces massive opposition in the Lords. Theoretically, the government could use the Parliament Acts to force the bill onto the statute book, but that would require them to get the bill through the Commons twice. Given how divided the Coalition is on the subject of Lords reform, I’m not sure the government would want to re-fight what’s bound to be a bruising battle.

Despite what Nick Clegg and company say now, I suspect the House of Lords will remain in its current form for many years to come.