Shortly after the opening of the debate on the Queen’s Speech on 18 May, rumours began to circulate about a controversial amendment to the traditional, formulaic Motion for an Address of thanks that was going to be tabled. That in itself is unexceptional: the Official Opposition and other parties always table and, if possible, to press for a vote on amendments to express regret that the Government’s programme, as set out in the Gracious Speech, does not include measures which they would like to highlight as the distinctive features of their alternative political programme. What made the rumours of an amendment to the 2016 Address interesting to the Lobby was the likelihood that it would attract support from Members on the Government side who were at odds with the Government’s policy on continued membership of the European Union. (It should be recalled that on 15 May 2013 a rebel Conservative backbench amendment to the Address, regretting the absence of a Bill to hold a referendum on membership of the EU, was defeated by 277 votes to 130, with the official opposition largely abstaining on what was seen as an internal coalition battle.) Read more ›
- APPG (6)
- Constitutional Convention (0)
- Constitutional Round-up (11)
- Devolution (23)
- Electoral Reform (53)
- Europe (16)
- Executive (23)
- House of Lords (32)
- Judiciary (12)
- Legislative Standards (6)
- Local Government (7)
- Monarchy (5)
- Parliament (50)
- Parliament and Party Politics (16)
- Publications (20)
- Scottish Referendum (12)
- Select Committees (11)
- Young People and the Constitution (5)
New paper by Dr. Andrew Blick & Richard Gordon QC: Using the Prerogative for Major Constitutional Change: The United Kingdom Constitution and Article 50 of the Treaty on European Union
The Constitution Society Paper, ‘Using the Prerogative for Major Constitutional Change: The United Kingdom Constitution and Article 50 of the Treaty on European Union’, by Dr. Andrew Blick & Richard Gordon QC, is available online.
In the wake of the ‘leave’ outcome of the European Union (EU) referendum on 23 June, a key focus of interest is upon the manner in which the United Kingdom (UK) can give constitutional as well as legal effect to that outcome. Law is a necessary constituent element of our constitutional arrangements although notions of constitutionality and legality do not always dovetail. The most likely means of giving effect to the referendum result is within the framework provided by the Treaty on European Union (TEU). Article 50 TEU provides that a member state may decide to leave ‘in accordance with its own constitutional requirements’ (Article 50 , TEU). After a two-year period, unless all member states have agreed to an extension, the state in question ceases to be a member of the European Union (Article 50 , TEU). If an exit agreement comes into force sooner, EU membership can potentially end before two years.1 The negotiations taking place during this period and their outcomes are clearly matters of critical importance. So too is the conceptual conflict between principles of direct democracy as manifested through the referendum, and representative democracy, of which the UK Parliament is the primary organ. But the present paper focuses on the most immediate issue: the ‘constitutional requirements’ that apply in the UK to the instigation of the Article 50 process.
New Research Paper by Lucy Atkinson: ‘Talking to the Guardians: The Constitutional Role of the House of Lords’
New Constitution Society Research Paper: ‘Talking to the Guardians: The Constitutional Role of the House of Lords’, by Research Fellow Lucy Atkinson, is available online.
This paper builds on existing academic research suggesting that the House of Lords performs a specific ‘constitutional guardianship’ role. Based on interviews conducted with fifteen selected members of the House of Lords, it explores the constitutional work undertaken in the second chamber from the perspective of the Peers themselves. It seeks to uncover who is engaged in the exercise of this constitutional function, how they go about doing so, and what they hope to achieve. More specifically, it tests the hypothesis that there is a self-aware sub-group of Peers within the House of Lords performing the constitutional functions of the Lords on behalf of the House as a whole. The research reveals a multitude of formal and informal mechanisms utilised by a wide range of members of the House. Although respondents referred to the significance of the permanent and ad hoc select committees and formal debating system in constitutional oversight, they also alluded to more amorphous means and forums through which Peers involve themselves in constitutional matters. This paper stresses the importance of the informal networks utilised by a variety of Peers. The paper concludes with some suggestions for further avenues of research.
New Research Paper by Professor George Jones: ‘The Power of the Prime Minister: 50 Years On’
New Constitution Society Research Paper: ‘The Power of the Prime Minister: 50 Years on‘, by Professor George Jones.
With a new Prime Minister taking office today, The Constitution Society is publishing a pamphlet providing a timely discussion of the nature of the British Premiership.
A little over 50 years ago in 1965 the journal Parliamentary Affairs published an article by George Jones titled “The Prime Minister’s Power”. He wrote it against a then fashionable view. According to this outlook the British Constitution had radically changed. It was held that the power of the prime minister had grown to such an extent that it had supplanted cabinet government with a system of almost presidential government or of an elected monarch. Contrary to such theses Jones concluded “The Prime Minister is the leading figure in the Cabinet whose voice carries most weight. But he is not the all-powerful individual which many have claimed him to be. His office has great potentialities, but the use made of them depends on many variables, the personality, temperament, and ability of the Prime Minister, what he wants to achieve and the methods he uses. It depends also on his colleagues, their personalities and temperaments and abilities, what they want to do and their methods. A Prime Minister who can carry his colleagues with him can be in a very powerful position, but he is only as strong as they let him be.” This last sentence has been much quoted in later years, especially by students writing their essays. This pamphlet updates the Jones thesis. Taking into account all that has transpired in the intervening period, it concludes that the basic principle Jones advanced in 1965 remains true.
“The EU referendum and some paradoxes of democratic legitimacy” – by Nat le Roux of The Constitution Society
In a parliamentary democracy, referendums are potentially destabilising because they generate alternative, competing, sources of democratic legitimacy. A majority of elected representatives may hold one view on a matter of major national importance. If a referendum demonstrates that a majority of the public hold the opposite view, which manifestation of democratic legitimacy should trump the other?
In Britain, Parliamentary Sovereignty is the governing norm of the Constitution: it would seem to follow that a Parliamentary majority can always overturn a referendum result. The reality, at least in the particular circumstances of the EU referendum, is less clear cut:
New paper by Sir Malcolm Jack and Richard Reid: ‘Financial Privilege: The Undoubted and Sole Right of the Commons?’
The Constitution Society Paper, ‘Financial Privilege: The Undoubted and Sole Right of the Commons?’, by Sir Malcolm Jack and Richard Reid, is available online.
Since ancient times the House of Commons has claimed privilege in respect of financial legislation, whether over bills dealing with taxation or the granting of money to the Executive. Conventions governing the way restrictions apply to the House of Lords in handling such bills have grown up over a long period and are regulated by the Parliament Acts, 1911 & 1949. In 2015 the Lords delayed the draft Tax Credits Regulations, a statutory instrument dealing with fiscal legislation that had passed the Commons. The Government claimed that Commons’ financial privilege had been infringed and subsequently set up the Strathclyde Review to examine the ‘constitutional crisis’ that had arisen and to make recommendations. Since then a number of parliamentary committees have made critical reports of the Review.
In this paper the authors examine the historical origin of the Commons’ privilege, consider the provisions of the Parliament Acts and how they apply to the passage of financial bills between the Houses before turning to the subject of statutory instruments and the Executive’s increasing reliance on them as a means of legislating. They conclude by examining the issues brought out by the Strathclyde Review and endorse the position of the parliamentary committees in recommending that a Joint Committee of both Houses be established to inquire into the whole area of secondary legislation and financial privilege. They stress that this is a matter for Parliament and it should act before Government takes any further steps.
This pamphlet presents the personal views of the authors and not those of The Constitution Society, which publishes it as a contribution to debate on this important subject.
New Paper by Lewis Baston: ‘Pushing The Boundaries of Democratic Practice: Individual Registration and Boundaries, Revisited’
New Constitution Society pamphlet: ‘Pushing The Boundaries of Democratic Practice: Individual Registration and Boundaries, Revisited’, by Lewis Baston.
This paper by Lewis Baston follows up on his previous Constitution Society pamphlet, Electoral Collision Course, published in 2014. The 2014 report dealt with the interaction between two apparently unrelated changes to electoral law. These were the transition to Individual Electoral Registration (IER) which was then underway, and the new mechanism for distributing and designating parliamentary constituencies established under the Parliamentary Voting System and Constituencies Act 2011. Baston warned then that: ‘If the register numbers in December 2015 are inaccurate, the boundary review will contaminate the entire basis of the electoral system.’ In this paper he argues this has duly come to pass.
This paper presents the personal views of the author and not those of The Constitution Society, which publishes it as a contribution to debate on the subject.
See the earlier Lewis Baston pamphlet on this subject here.
New Paper by Richard Gordon QC and Rowena Moffatt: ‘Brexit: The Immediate Legal Consequences’
The Constitution Society Paper, ‘Brexit: The Immediate Legal Consequences’, by Richard Gordon QC and Rowena Moffatt, is available online.
The outcome of the referendum on 23 June 2016 will, in practice, bind the government on the question of whether or not the United Kingdom will remain in the EU. This paper does not engage in the issues about ‘remain’ or ‘leave’ about which it is neutral. But if there is a vote for Brexit the legal implications of such an outcome will suddenly occupy centre-stage. Thus far, they have hardly been addressed. Here, the authors explore the two pressing and immediate legal consequences of Brexit. Part 1 examines the constitutional consequences of a vote to leave the EU and Part 2 focuses on the consequences of such a vote for EU citizenship rights. The thesis presented is that identifying the immediate legal effects of Brexit can neither be avoided nor deferred and that, once identified, they need to be planned for well in advance of any exit from the EU. Constitutionally, these legal challenges encompass the uncertainties surrounding the operation of Article 50 TEU regulating the exit of member states, the complexities of uncoupling EU law from domestic law, and the implications of Brexit for devolution including the engagement and justiciability of the Sewel Convention. There are also likely to be substantive legal effects on EU citizenship rights that are vested and that may become the subject of legal proceedings either in the UK or elsewhere in the EU.
This pamphlet presents the views of the authors and not those of The Constitution Society, which publishes it as a contribution to debate on this important subject.
The Constitution Society paper, ‘The Crisis of the Constitution’ (2nd Edition) by Professor Vernon Bogdanor, is available online.
The general election of 2015 answered conclusively, to the surprise of most commentators, the question, ‘Who governs Britain?’ by yielding a single-party government with an overall majority in the House of Commons. But it did not answer two of the fundamental constitutional questions facing Britain. The first is how Britain is to be governed in an era of party fragmentation in which the electoral system, even when, as in 2015, it produces a single-party majority government, yields one enjoying just over one-third of the popular vote.
The second and even more fundamental question is – will there still be a Britain to be governed, will the United Kingdom remain in being, or has the outcome of the election in Scotland, where 56 of the 59 seats were won by the SNP, given an irreversible push to separatism. Read more ›
New paper by Professor Dawn Oliver: ‘Constitutional Guardians’
The Constitution Society paper,‘Constitutional Guardians: The House of Lords’ by Professor Dawn Oliver, is available online.
This pamphlet explores the arrangements for guardianship of the UK constitution and its values and the role of the House of Lords in particular.
Effective constitutional guardianship is important in any liberal democracy. In most democracies the courts have important roles in deciding whether laws breach the constitution and striking them down if so. This is not a role that the courts are able to perform in respect of legislation passed by the UK Parliament, since it possesses legislative supremacy. Protection of constitutional values in the UK is therefore essentially a matter for parliamentarians, and particularly a responsibility of the second chamber and its committees: party political partisanship is less strong there than in the Commons, the government does not have a majority in the House of Lords, and an independent and professional element in the membership of the Lords enables that chamber to carry out its guardianship roles authoritatively and fairly. However the composition of that chamber presents political problems for the guardianship role which need to be overcome.
(This pamphlet presents the personal views of the author and not those of The Constitution Society, which publishes it as a contribution to debate on this important subject).