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 [1], 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 [3], 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.

 

19th July 2016

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 [1], 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 [3], 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.

 

19th July 2016

Talking to the Guardians: The Constitutional Role of the House of Lords

The 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.

19th July 2016

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.

19th July 2016

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. 

13th July 2016

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.

 

13th June 2016

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.

by Sir Malcolm Jack and Richard Reid. 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.

 

13th June 2016

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). 

19th December 2015

Evidence from The Constitution Society published by House of Lords select committee inquiry into ‘The Union and Devolution’

The House of Lords Constitution Committee has recently published evidence submitted by The Constitution Society, as part of its inquiry into ‘The Union and Devolution.’

The published evidence can be viewed online here.

A full list of evidence published by the select committee as part of this inquiry can be viewed here. 

17th October 2015

‘Constitutional Standards, Constitutional Change and EVEL’: A blog by Dr. Jack Simson Caird

Today the Constitution Unit UCL, with the support of the Constitution Society, is publishing the second edition of ‘The Constitutional Standards of the House of Lords Constitution Committee’. The report, by Robert Hazell, Dawn Oliver and myself, contains a code of 140 constitutional standards, covering five areas: the rule of law, delegated powers, the separation of powers, individual rights and parliamentary procedure. The second edition extracts and codifies standards from all 168 reports of the House of Lords’ Constitution Committee published from its inception in 2001 to the end of the 2010-2015 Parliament.

When the first edition of the code was published in January 2014, I made the basic case for the use of a code of constitutional standards within Parliament. In this post, I focus on the role that a code of constitutional standards could play in the specific circumstances facing Parliament today: that of the first parliamentary session of a newly elected government intent on making major constitutional changes. In particular, I will examine the introduction of English votes for English laws (EVEL) as an example of constitutional change, and explore how the use of this code in both Houses of Parliament and in government could enhance the scrutiny of those proposed changes to parliamentary procedure.

A defining feature of the UK’s constitution is that a government fresh from the polls can use its majority in the House of Commons to implement major constitutional change in their first parliamentary session. If the policy was in the manifesto of the winning party then the Salisbury Convention means that it will not be blocked in the second chamber. And the change will be able to ‘bed down’ during the whole of the Parliament. In one sense this is a strength of the UK constitution. A weakness of this arrangement is that it can result in changes being made to the constitution without the detailed analysis and scrutiny within Parliament that they deserve. This is where a code of parliamentary constitutional standards, such as the one included in this report, could make a difference. Read more ›

27th August 2015