Parliament and the Law 9781509934126, 9781509934096, 9781509934102

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FOREWORD It is with great pleasure that I write this foreword to the latest edition of Parliament and the Law – a series of books that have become a key reference in the analysis of the relationship between the institution of Parliament and the law of the land. As Chair of the Study of Parliament Group, I am particularly pleased to support its publication, as it aligns with our aims of advancing a better understanding of Parliament and supporting a critical analysis of the institution for the benefit of the community as a whole. Researching the workings of Parliament and disseminating the findings stemming from this research is a core part of why the Study of Parliament Group exists. The last edition of Parliament and the Law came out in the post 2016 EU referendum period, a time of considerable divisions and controversy and a testing time for the relationship between Parliament, government and the law. This new edition has been written in a ‘post- Brexit’ period and with a Parliament with a solid majority – one would have thought a more stable time. However, the controversies in the relationship between Parliament and the law have been many. As I type this foreword, the government has just U – turned following a damaging vote it insisted upon to reform the current procedures to maintain standards of conduct in Parliament, following a specific decision of the Commons Committee on Standards. As the Chair of the Committee on Standards in Public Life, Lord Evans, would say in a speech the day after the vote, this was ‘a very serious and damaging moment for Parliament and for public standards in this country’. An emergency debate on the topic will follow in Parliament and the Speaker will announce a review of processes. But what all of this indicates is that we should never take for granted the processes and institutions underpinning our democracy. Other controversies testing the boundaries between political will and its underpinning legal frameworks have abounded during this period, from the limited powers of select committees to the significant use of delegated legislation by the government. Besides a post – Brexit time, this has been a pandemic time. The pandemic has provided the context and justification for extensive emergency powers and delegated legislation with limited parliamentary scrutiny all over the world, and the UK has been no different. This has also tested the relationship between Parliament and the law – what should by law be scrutinised, and what falls within government’s strict purview? The relationship between Parliament and the law was tested to its limit in September 2020 when the Northern Ireland Secretary would admit in a Commons debate that the newly proposed UK Internal Market Bill did ‘break international law in a very specific and limited way’.

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This has also been a period in which a second MP (Sir David Amess) has been killed within just over five years: a tragic reminder of the frailty of our democracy and the pressures on those serving in public life in an increasingly unsafe environment. And as we reflect on what public service means and about the pillars of legitimacy of our democracy, we are also reminded of the still ongoing discussions surrounding the renewal of the Palace of Westminster – perhaps the one element to not have changed much since the last edition of Parliament and the Law. Parliament faces very considerable challenges in the times ahead. Publications such as Parliament and the Law are critical to advance the understanding of our institutions and processes – and to better address future challenges, since, as recent times have shown, the robustness of parliamentary democracy should never be taken for granted. Cristina Leston-Bandeira Professor of Politics, University of Leeds Chair of the Study of Parliament Group November 2021

ACKNOWLEDGEMENTS This is the third, and final, edition of Parliament and the Law that I shall edit. I was first invited to be involved with this project in 2011 at the Study of Parliament Group annual Oxford Conference, by Dawn Oliver and Gavin Drewry, to whom I am extremely grateful. I would also like to use this opportunity to thank my wife, Collette, who has displayed saintly patience over the last decade, whilst I have been editing these volumes; and my parents, John and Esther, who encouraged and supported my desire to pursue a career in the law, even when success appeared elusive. Finally, I would like to thank my two excellent co-editors, Ben and Louise – I leave knowing that the book is in great hands going forward; my current and former co-authors, each whom has been a pleasure to work with; and all the fantastic contributors over the years. AH The editors would like to thank all the contributors to this volume for their chapters and their patience; and Professor Cristina Leston-Bandeira (President of the Study for Parliament Group) for providing a foreword to this book. Louise and Ben would like to thank Alex for inviting them to become co-editors on Parliament and the Law. It has been a fun project! AH, LT and BY

CONTRIBUTORS Graeme Cowie is Senior Library Clerk, House of Commons Library. Gavin Drewry is Emeritus Professor of Public Administration at Royal Holloway, University of London. Richard Ekins is Professor of Law and Constitutional Government at the University of Oxford. Alexander Gask is Deputy Counsel to the Joint Committee on Human Rights. Graham Gee is Professor of Public Law at the University of Sheffield. Samantha Granger is Deputy Counsel to the Joint Committee on Human Rights. Alexander Horne is Counsel at Hackett & Dabbs LLP; Visiting Professor at Durham; and was former Legal Adviser to the House of Lords EU Committee. Eleanor Hourigan is Counsel to the Joint Committee on Human Rights. Chris Johnson is Clerk of the Journals, House of Lords. Arabella Lang is Head of Research at the Public Law Project and was formerly Senior Library Clerk at the House of Commons Library. Phil Larkin is Policy Analyst at the House of Commons Public Administration and Constitutional Affairs Committee. He is Honorary Research Fellow at the Mile End Institute, Queen Mary, University of London. Colin Lee is Managing Director, Select Committee Team, House of Commons. Cristina Leston-Bandeira is Professor of Politics at Leeds University. Alexandra Meakin is a lecturer in Politics at the University of Leeds. Her PhD on the governance of the Restoration and Renewal of the Palace of Westminster was awarded by the University of Sheffield in 2019. Mario Mendez is a Reader in Law at Queen Mary University London. Lord Norton is Professor of Government at the University of Hull. Eve Samson is Clerk of the Journals, House of Commons. Jack Simson Caird is Assistant Counsel, House of Commons Justice Committee. Patrick Thomas is Constitution Specialist, House of Commons.

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Louise Thompson is Senior Lecturer in Politics at the University of Manchester. Hannah White is Deputy Director of the Institute for Government. Ben Yong is Associate Professor of Public Law and Human Rights at the University of Durham. Alison L Young is the Sir David Williams Professor of Public Law at the University of Cambridge and a legal advisor to the House of Lords Constitution Committee.

LIST OF TABLES AND FIGURES Table 2.1 Table 3.1

Complaints received and investigated by Compliance Officer for IPSA 2015/16-2019/20 ....................................................................52 Timetable for determining the House budget ....................................76

Figure 3.1 Figure 3.2 Figure 3.3 Figure 3.4

The House of Commons Governance Arrangements .......................72 The House of Lords Governance Arrangements ...............................73 House of Commons: administration estimate 2011–21 ...................80 House of Lords estimate 2011–20 ........................................................81

Introduction ALEXANDER HORNE, LOUISE THOMPSON AND BEN YONG

This book is an edited collection of essays which is designed to provide a wideranging overview of the ways in which the law applies to Parliament and an analysis of recent constitutional innovations in the UK in this field. It is aimed at legal academics, practitioners, political scientists and parliamentarians who have an interest in the relationship between Parliament and the law. That it is the third edition of Parliament and the Law in a decade speaks to the fact that the laws and conventions relating to Parliament have been in flux for some time. The first edition of this book was published in 2013, when Parliament was still languishing under the shadow of the Expenses Scandal; and during a period of coalition government. The second edition, published in 2018, followed swiftly on from the decision to leave the European Union (although the editors at the time were not so prescient as to predict this eventuality) and dealt with a period of minority government. This volume was drafted during the midst of the COVID-19 pandemic, which not only had a significant impact on people’s everyday lives, but also on the running of Parliament. It was produced at a time when we began to see the impact of Brexit on the UK’s Constitution, and when, for the first time in many years, a single party government held a substantial majority in the House of Commons. The original idea of compiling a collection of essays on Parliament and the Law, drafted by lawyers (both practitioners and academics), political scientists and parliamentary officials was conceived at the Study of Parliament Group (SPG) annual conference in January 2011 and followed on from an earlier volume entitled The Law and Parliament, edited by Dawn Oliver and Gavin Drewry, which was published in 1998. The SPG was originally founded in 1964 by Bernard Crick and Michael Ryle as a forum where scholars and officials could meet and discuss the workings of Parliament under the Chatham House Rule. The book is designed to distil the various types of discussions that would happen at the annual conference and elsewhere, on legal and constitutional issues, into a more easily digestible form. This is the first time that the book has been published without the involvement of either Dawn, or Gavin, in an editorial capacity. However, the editorial team has been supplemented with the addition of Ben Yong, a public law scholar at Durham University and Louise Thompson, a political scientist at the University of Manchester.

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Alexander Horne, Louise Thompson and Ben Yong

As with the previous editions, the book is planned around a consistent framework, which examines issues including parliamentary privilege, members’ conduct, select committee powers, devolution, parliament and human rights, and parliamentary sovereignty. As before, the editors have also commissioned chapters on new developments. In this edition, these include issues such as the budget of Parliament, the Restoration and Renewal of the Palace of Westminster, Parliament’s engagement with treaties, the Fixed-term Parliaments Act 2011 and its repeal, and, of course, the impact of Brexit. The book is divided thematically into four sections. The first examines internal affairs; the second how Parliament seeks to hold the government to account; the third is focused on Brexit and considers both the relationship between Parliament and the courts and how Parliament scrutinised the Brexit process. The final part is the most wide-ranging and examines rights, parliamentary sovereignty, devolution and accountability for the administration of justice. A number of key themes run through this book. First, we see the ongoing impact of the UK’s withdrawal from the European Union on the way in which Parliament and its Members carry out their core functions. The use of the treaty power to leave the European Union and the flurry of delegated legislation which withdrawal necessitated signalled the importance of Parliament’s scrutiny role in two areas which have often been neglected. The involvement of the courts in overturning Boris Johnson’s proroguing of Parliament in September 2019 further underlined the importance of protecting the institution’s legislative scrutiny role. Second, we see how the coronavirus pandemic reinforced and in some cases exacerbated existing tensions between government and Parliament, while at the same time bringing longstanding questions about the institution into sharp relief. The government’s continued reliance on secondary legislation in its response to the pandemic is an obvious example of this, at times hindering Parliament’s ability to scrutinise new lockdown rules in the way that it would have liked to. These tensions extended into the way in which the institution functions, with the introduction, adaptation and suspension of hybrid proceedings driven firmly by the executive. The Restoration and Renewal project sat somewhat in the shadows during this period, yet the lessons learned from the period of hybrid parliamentary governance will be pivotal to any future redesign programme. Third, since the publication of the previous volume of this book, we can see a growing recognition of the importance of the relationship between Parliament and the people it represents. Changes in the area of Members’ conduct have enabled voters in both Peterborough and in Brecon and Radnorshire to remove their sitting MP. Large expenditure, whether this be the funding of Parliament or the restoration of the Palace of Westminster itself, continues to be constrained by fear of public disapproval. The ramifications of the Sue Gray interim report into alleged lockdown parties will underline this even further, making parliamentarians more conscious than ever of accusations of a Westminster bubble.

Introduction 3 Fourth, and as one would expect in a volume looking at both Parliament and the law, there is the ongoing relationship between ‘law’ (or the world of the legal) and ‘politics’. It is clear that contributors have different views on how this relationship should be managed, and where the boundaries should be set. Some see law tempering the excesses or potential excesses of politics; others see law as potentially threatening or stifling the more important sphere of politics; others still see law and politics in meaningful dialogue, mutually dependent upon each other. There is no end to this debate: the state of the relationship is contingent upon culture, history and events. Finally, several of the chapters in this volume illustrate the difficult choices that parliamentarians continually face – between the potential for short-term political gain to themselves and their parties, and the possibility of long-term gain to the institution of Parliament itself and future generations of parliamentarians. In almost all the chapters, but perhaps most noticeable in terms of Members’ conduct, Restoration and Renewal, budgeting, and even privilege, parliamentarians have too often opted for immediate gains or the path of least resistance over options which may be more difficult, or bring less immediate results, but which might ultimately benefit everyone working in Parliament, and allow the institution to better carry out its core functions.

1 Privilege, Exclusive Cognisance and the Law EVE SAMSON

I. Introduction The boundaries of parliamentary privilege have long been set by the law and seen through the lens of the law, common and statutory. This chapter gives a frankly expansive and parliamentary view of privilege, as something that is necessary to allow parliamentary practice to develop and adapt to changing circumstances. It also notes the inherent tension between Parliament and the courts, given that they each approach questions of rights and law in different ways and by different methods.1 The legislation Parliament passes sets the balance between individual and collective rights. But that very legislation has increased the courts’ responsibility for assessing that balance. Moreover, this has happened with a separation between the courts and Parliament, both in the gradual reduction of interchange between the bench and the green benches and in the changing position of the Lord Chancellor, has reduced the capacity of the two institutions to understand one another.2 Courts and Parliament approach questions of ‘good government’, which concerns them both, in very different ways. The courts deal with the individual case, however important the wider constitutional and policy issues it may raise. They have strict rules of evidence, and proceed by clear reasoning. There are very clear routes and rules for appeal. In contrast, the very institution of Parliament is hard to define. The word can be used for the Crown in Parliament, for a body which comprises the two Houses, 1 I am grateful to colleagues, in particular Liam Laurence Smyth, for their comments on drafts of this chapter. The views within it are my own. 2 This shift has been referenced in many places: a very good summary of some of the key arguments is P Norton, Governing Britain: Parliament, Ministers and Our Ambiguous Constitution (Manchester, Manchester University Press, 2020) ch 6. An account of the decline in interchange between politics and the bench is in D Howarth, ‘Lawyers in the House of Commons’, in D Feldman (ed), Law in Politics, Politics in Law (Oxford, Hart Publishing, 2013) 41.

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but not the Crown, or even, speaking imprecisely, the House of Commons. Each House, particularly the Commons, is a diffuse organisation where what happens outside proceedings will influence the final decisions reached. In making law it is as concerned about those who will not use the courts as much as those who will (indeed, a good law might be one so clear that there were no cases brought). It brings to bear a much wider body of ‘evidence’ on its decisions than do the courts, but there can be no clear indication of precisely why a representative body chose to make the decisions it did. Some Members will put their reasons on record, but the majority will simply vote. Given this overlap in responsibility and these differences in functions, methods and outlook, it is hardly surprising there can be disagreement, but both institutions are necessary, and each deserves the respect of the other.

A. What is Privilege? It is worth remembering there is nothing exceptional about parliamentary privilege. Privilege – privatus lex – might be described as a system of necessary exceptions to the general law. Legal professional privilege, for example, is required to ensure that individuals can obtain legal advice, without fear that their communications with their legal representatives will later be used against them. It is equally normal for those taking part in parliamentary proceedings to have some sort of protection to ensure they have the freedom to express their views and fulfil their mandate without political or legal interference. In many jurisdictions this takes the form of broad personal immunity.3 In contrast, Westminster style jurisdictions have narrower protection arising from the related concepts of parliamentary privilege, most usually related to freedom of speech, (which cannot be waived) and exclusive cognisance (the right of control of proceedings and precincts). Commonly the term privilege is used to cover both privilege and exclusive cognisance.

B. The Source of Privilege: Constitutional Function or Necessary Protection? The first question is what does privilege rest on: is it inherent in the legislative body, or is it limited to what is necessary to preserve its functions? In the Canadian case of Vaid, the Speaker’s chauffeur brought a claim for unfair dismissal, and which was resisted on the grounds that privilege applied, the court rested

3 Contrast, for example, Art 26 of the current French Constitution www.conseil-constitutionnel. fr/le-bloc-de-constitutionnalite/texte-integral-de-la-constitution-du-4-octobre-1958-en-vigueur (accessed 12 July 2021) with privilege in the UK and many other Westminster jurisdictions.

Privilege, Exclusive Cognisance and the Law 9 privilege partly on history, but also on necessity, which was described as ‘the foundation of all parliamentary privilege.’4 This argument is not universally accepted. While in the UK the 2013 Joint Committee on Parliamentary Privilege accepted the doctrine of necessity,5 the New Zealand Parliamentary Privilege Act of 2014 expressly rejects it. It requires that the Act must be interpreted so as to promote the principle of comity ‘that requires the separate and independent legislative and judicial branches of government each to recognise, with the mutual respect and restraint that is essential to their important constitutional relationship, the other’s proper sphere of influence and privileges’6 and specifies that ‘In determining under subsection (1) whether words are spoken or acts are done for purposes of or incidental to the transacting of the business of the House or of a committee, no necessity test is required or permitted to be used.’7 The idea that Parliament has its own special sphere is not solely parliamentary. Many judgments are based on the view most elegantly expressed by Sedley J (as he then was) of the relationship between Parliament and the courts as ‘a mutuality of respect between two constitutional sovereignties’.8 So, we have two concepts of parliamentary privilege. The first focuses on the minimum needed to ensure a parliament can function effectively, and considers that it is for the courts to define that minimum in any cases of doubt. There is a more expansive view, in which Parliament should have its own ‘proper sphere of influence and privilege’ and it is not for the courts to interfere therein (nor for Parliament to interfere with the courts’ business). This is nuanced: the Canadian judgment in Vaid recognised the existence of undoubted privileges, where ‘it is for Parliament, not the courts, to determine whether in a particular case the exercise of the privilege is necessary or appropriate’9 but within this nuance is a very real difference in outlook.

II. Privilege in a Changing Constitution At the beginning of each Parliament the Speaker lays claim to ancient rights and privileges, particularly the freedom for speech in debate, freedom from arrest, freedom of access to Her Majesty and that the most favourable construction should be placed on all their proceedings. The ancient claim of the Speaker attests

4 Canada

(House of Commons) v Vaid [2005] 1 SCR 667; 2005 SCC 30. Committee on Parliamentary Privilege, Parliamentary Privilege (HL 2013–14, Paper 30; HC 2013–14, 100) para 12. 6 Parliamentary Privilege Act 2014; Public Act 2014 No 58, s 4. 7 ibid, ss 10(5), 4(1)(a). 8 Cited in R(Al-Fayed) v Parliamentary Commissioner for Standards [1997] EWCA Civ 2448. 9 Vaid (n 4), para 9. 5 Joint

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to the evolutionary nature of the British Constitution. Only freedom of speech now seems pertinent. It is now most often referred to in the formulation of the Bill of Rights 1689 ‘That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament’.10 Freedom from arrest was important when arrest on civil suit was common – it ensured Members could attend Parliament. It is now almost irrelevant, as such arrest is practically unthinkable.11 It is limited to a prohibition on the physical service of court papers on the estate when the House is sitting. The related exemption from jury service was swept away by the Criminal Justice Act in 2003, and all that remains is guidance to summoning officers.12 The courts are expected, but not required, to recognise the constitutional reality that Members of Parliament may have important duties elsewhere.13 The greatest shift has been in the diminution of the monarchical powers which made it expedient to emphasis freedom of access to the monarch, and favourable construction (by the monarch) of debates. Over the centuries, power has flowed from the monarch to the Executive, directed by the Crown’s ministers, to the Commons, since ministers now hold office by virtue of the government’s power to control the House of Commons, and ultimately to the electorate since government depends on success at the ballot box. Nonetheless, as we shall see in the discussion of the two Miller cases, prerogative powers do still have political salience, and judicial control of such powers can impact on Parliament. There have been many other constitutional shifts, not all driven by government or Parliament. The most notable is in the increasing use of administrative law as a means of holding the government, and other bodies, to account. That means that ministers are increasingly accountable to both the two Houses of Parliament and to the courts.

III. The conflict Over Privilege: Who Decides? Dispute over whether the courts, or each House, decides on whether privilege exists and/or the extent of that privilege has heightened or diminished over time, but there is nothing new about it. The current view is that it is for the courts to determine the boundaries of privilege, but history has to some extent been wrenched into place to support 10 Note

the privilege of freedom of speech was recognised by the Bill of Rights, not created by it. principle, the protection from arrest in civil suit does remain. 12 See TE May, A Treatise on the Law, Privileges, Proceedings and Usage of Parliament 25th edn (London, LexisNexis, 2019) 14.11. Subsequent references will be to ‘Erskine May’ together with the edition number. 13 In 2013 the Joint Committee on Parliamentary Privilege recommended reinstating a right to exemption from jury service, but this has not been enacted. See Joint Committee on Parliamentary Privilege, Parliamentary Privilege (2013–14) (n 5) para 253. 11 In

Privilege, Exclusive Cognisance and the Law 11 that. Erskine May’s Parliamentary Practice states baldly ‘it was agreed in 1704 that “neither House of Parliament hath any power, by any vote or declaration, to create to themselves any new privilege that is not warranted by the known laws and customs of Parliament”’.14 This is a prime example of the way in which the present rewrites the past. From at least the early seventeenth century some considered that the law and custom of Parliament were of a special nature, to be dealt with by Parliament, not the courts. As Sir Edward Coke averred ‘whatever arises concerning either House of Parliament, ought to be discussed and adjudged in that House to which it relates, and not elsewhere’.15 This view was not universal. The counter was that the law and custom of Parliament might be a specialised branch of law, but it was law nonetheless. In the late seventeenth and early eighteenth centuries the Lords were expanding their role as ultimate court of appeal, a role resisted by the Commons.16 Matters came to a head in the early 1700s, in the case of the Aylesbury men. Although the Commons claimed jurisdiction over elections, in Ashby v White the House of Lords had held that electors had a right to bring cases against returning officers.17 The Commons declared that such actions were a breach of privilege. When the five ‘Aylesbury men’18 brought such actions, the Commons locked them up, and also proceeded to act against their lawyers. Attempts to free them by bringing writs of habeas corpus enraged the Commons still further.19 It was in fact the Lords Spiritual and Temporal which invited the Commons to agree to the proposition cited by Erskine May: That neither House of Parliament hath any Power, by any Vote or Declaration to create to themselves any new Privilege that is not warranted by the known Laws and customs of Parliament, Resolved, That every Freeman of England, […] has a right to seek Redress by Action at Law.

The Commons’ response was vigorous. Insofar as they agreed with the Resolution, it was not in the measured terms one might expect from the summary in May: As the Commons have guided themselves by this Rule, in asserting their privileges, so they wish, your Lordships had observed it in all your Proceedings … That would

14 Erskine

May (n 12) 25th edn, 12.9. in Erskine May (n 12) 1st edn, 48. 16 It was not until 1876 that this was given a statutory basis, in the Appellate Jurisdiction Act. 17 House of Lords Journal, 1704, 527–535. 18 Daniel Horne, Henry Basse, John Paton jr, Henry Paty and John Oviat. 19 The first Commons action was to agree an Address to the Queen ‘… that she will not give Leave for the bringing any Writ of Error in this Case, which will tend to the overthrowing the undoubted Rights and privileges of the Commons of England’. The Queen wisely ducked, expressing her care for the Commons but concluding ‘But this Matter, relating to the Course of judicial Proceedings, being of the highest Importance, her Majesty thinks it necessary to weigh and consider very carefully, what may be proper for her to do in a Thing of so great Concern.’ House of Commons Journal, 1704, 549–550. 15 Cited

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Eve Samson effectually put an end to that Encroachment in Judicature, so lately assumed by your Lordships, and so often complained of by the Commons ….

The rejoinder continued for nearly five furious folio pages.20 The dispute was only concluded by the prorogation of Parliament. The ‘agreement’ that privilege cannot be created by Resolution solves nothing: it leaves the main problems, of the definition of privilege, and who decides on privilege boundaries as a continuing source of dissent. The Commons’ objection to the evolution of the legal system – ‘the Encroachment in Judicature’ – echoes in some debates today. A similar clash occurred in the 1830s case of Stockdale vs Hansard, in which the nineteenth-century judiciary ruled that freedom to speak within Parliament did not extend to the freedom to publish parliamentary papers without liability for what was within them.21 The Commons again attempted to assert that: by the law and privilege of Parliament, this house has the sole and exclusive jurisdiction to determine upon the existence and extent of its privileges; and that the institution or prosecution of any action, suit or other proceedings, for the purpose of bringing them into discussion or decision before any court …. Is a high breach of privilege, and renders all parties concerned therein amenable to its just displeasure, and to the punishment consequent thereon.22

The Commons’ contention was that parliamentary free speech extended to parliamentary publications as much as to reports made to Parliament or speeches made therein. The court ruled that only parliamentary speech or printing for internal parliamentary use was protected, and there was no need for constituents to know what was said in or reported to Parliament. The court of the Queen’s Bench definitively asserted its jurisdiction over privilege. The then Solicitor General considered that the effect of the judgment was that the Commons ‘was no longer, according to the judgment of the court, a co-ordinate authority with the House of Lords’, since that would have been the route for appeal.23 The relationship between the courts and the House of Commons became so conflicted that Sir Thomas Erskine May noted the logic of the Commons’ position was that ultimately all those acting in the case before the courts should be imprisoned.24 In 1840 the Parliamentary Papers Act was passed to give protection to those who published papers by order of either House.

20 Ibid 559–563. The whole episode is traced in the House of Commons Journal, and is well worth a read for those interested in vigorous disagreement. 21 Stockdale v Hansard (1839) 9 Ad & Ell 96; 112 ER 1112: the case concerned a report by an Inspector of Prisons which characterised an illustrated book on the generative system, circulating within Newgate Prison, as ‘of a most disgusting nature’; and described the plates as ‘indecent and obscene in the extreme’. Stockdale, the publisher sued for defamation. 22 House of Commons Journal, 1839, 502. 23 See Hansard 5 March 1840, c 964. Although the Appellate Committee was not established until 1876, the Lords had been operating as a court of appeal long before that – to some Commons resentment, as described above. 24 Erskine May (n 12) 1st edn, 129.

Privilege, Exclusive Cognisance and the Law 13 What can we draw from this? First, that potential conflict between the courts and the executive and the courts and Parliament is not new: vigorous dialogue is simply part of normal operating practice. Second, the importance of interpretation after the fact. One can extract the proposition that both Houses agree that there is no power to create new privileges by simple Resolution from the episode of the Aylesbury men, but this is to wrench the material out of context. The Commons’ central claim was that it was the guardian and interpreter of its privileges, and that its actions in defence of privilege should be dealt with by petition to itself, not by seeking the intervention of the courts. Given this, the concession that it could not create new privilege was no concession at all. In Stockdale v Hansard, the Commons claim is far wider: it was to ‘the sole and exclusive jurisdiction to determine upon the existence and extent of its privileges’.25 Neither of the cases above could arise now: questions of electoral law have long since been handed to the courts, and the 1840 Parliamentary Papers Act settled the issue of publication by order of Parliament. Nonetheless, significant areas of uncertainty and conflict remain.

IV. Privilege Today A. Privilege and Representation It is notable that in both the cases above the Commons was maintaining the importance of privilege to it, as the elected House, the ‘representative portion’ of Parliament. Stockdale v Hansard was centred on the extent to which the proceedings of Parliament should be accessible to the public: the problem was not that the report as presented to Parliament was defamatory, but that it was on public sale. It is now recognised that there is a public interest in letting the public know about what happens within legislatures.26 Even so, questions of privilege still remain most acute in the House of Commons, perhaps because of its representative role, and are most robustly defended by that House as essential to its functions. Leaving aside the key role of the House of Commons in determining who governs, the Westminster Parliament can be described as having the following functions: • •

Authorisation of expenditure and taxation (for the Commons). Acting as the ‘grand inquest of the nation’ – the arena in which social concerns surface, are discussed and might be resolved.

25 Stockdale 26 Wason

(n 21). v Walter (1868–69) 4 QB 73, and Defamation Act 2011, s 15 and Sch 1.

14 • • •

Eve Samson Scrutinising and approving legislative proposals, from government or elsewhere. Other scrutiny, primarily of government. Representing the public interest and (for the Commons) representing constituents.

Parliamentary functions change in importance according to political and constitutional circumstances. While the Commons control of taxation and expenditure continue to underpin the House’s ability to decide who should form a government or remain in power, the time spent on the Finance Bill and the Estimates has decreased. As ideas about government responsibility have widened, scrutiny of policy, and representation of constituents have become more important. Select Committees, which generally have power only to make representations, have become increasingly important. New ways of connecting with the public, such as the establishment of the Petitions Committee and debates on e-petitions have been developed. The desire to increase trust in the parliamentary disciplinary process has meant that people who are not MPs now play an active role on bodies whose proceedings are considered as privileged.27 As a result of these changes the current focus on privilege tends to be on freedom of speech, for all those who participate in proceedings; and on exclusive cognisance, each House’s right to control its precincts and proceedings.

V. Exclusive Cognisance The existence of exclusive cognisance is not disputed, although there can be contested boundaries. It is established that the courts will not question the procedure by which the House has come to its decision, or look behind legislation.28 At the individual level, Members should only be controlled in what they do or say in their respective Houses by those Houses themselves. This principle has very wide application. An attempt by a firm of solicitors to restrain a Member from raising a matter in the Chamber was considered a contempt by the House of Commons.29 The principle is also judicially recognised, in a line of cases which exemplify the difficulties in splitting the Executive from Parliament. Attempts to oblige ministers to introduce legislation have been rejected on the grounds that ‘the introduction of a Bill into Parliament forms part of the proceedings within Parliament.

27 Lay members of the Committee on Standards now have voting rights. The Independent Expert Panel which deals with complaints of bullying and sexual misconduct contains no MPs. 28 Pickin v British Railways Board [1974] AC 765. 29 Committee on Standards and Privileges, Privilege: John Hemming and Withers LLP (2009–10 HC 373).

Privilege, Exclusive Cognisance and the Law 15 […] It is done by a Member of Parliament in his capacity as such, not in any capacity he may have as a Secretary of State or other member of the government’.30 In R(Unison) v Secretary of State for Health, Mitting J extended this principle to deny Unison’s claim it had a legitimate expectation of full consultation before legislation on health service reform was brought forward: The courts cannot question the legitimacy of an Act of Parliament or the means by which its enactment was procured: see British Railways Board v Pickin […]. Nor may they require a bill to be laid before Parliament […] The converse must also be true. The courts cannot forbid a Member of Parliament from introducing a Bill.31

Nonetheless, as we shall see in the analysis of the Miller cases, the fact that the Executive is also part of the legislature within the UK system causes the courts some difficulty. It may be possible to draw an intellectual distinction between a minister’s capacity as a Member of one or other House and their capacity as a member of the government, but they remain the same person. Moreover, ministers are currently drawn from Parliament, and laws are made, as the enacting formula says, ‘by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled’.32

A. Legislation and Parliament Exclusive cognisance means that the Houses’ rights to control their own proceedings can extend to the interpretation of statute. The Parliamentary Oaths Act 1866 provides that those who take part in proceedings in the House without having taken the oath are subject to a £500 fine and, more significantly, that if they do so, their seat is vacated, as if they were dead. In the 1880s the House of Commons prevented Charles Bradlaugh, an avowed atheist, from taking the Oath. The courts declined to intervene. They held while they had the right to take action if a complaint was made that Mr Bradlaugh had sat without taking the oath, and that a resolution of the House of Commons could not alter the law, it was within the Commons’ right to deny Mr Bradlaugh the opportunity to take that oath, and it would be wrong for the courts ‘to suggest or assume that the House acted otherwise than in accordance with its own view of the law; and, as we know not what that view is, nor by what arguments it is supported, we can give no opinion upon it’.

30 Wheeler

v Office of the Prime Minister [2008] EWHC 1409 Admin, [49]. EWHC 2655 (Admin), [8]. 32 Another fine ambiguity about whether the Queen is or is not part of the Parliament. 31 [2010]

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In an echo of the case of the Aylesbury Men, and the Commons’ concerns about further appeal in Stockdale v Hansard, Stephen J considered the dangers if the court became a court of appeal from the Commons: We should provoke a conflict between the House of Commons and this Court, which in itself would be a great evil; and […], an appeal would lie from that decision to the Court of Appeal, and thence to the House of Lords, which would thus become the judge in the last resort of the powers and privileges of the House of Commons.33

In 1934 in R v Graham Campbell ex p Herbert it was held that in permitting the sale of liquor in the precincts of the House without a licence, the House was acting in a matter which fell within the scope of its internal affairs of the House so that no court of law had jurisdiction to interfere.34 The courts were similarly restrained in the Zircon affair in 1987, declining to grant an injunction to prevent a film subject to a D-notice being shown in the House of Commons, since the matter should be under control of the House authorities (the Speaker forbade the film to be shown).35 There is no doubt that laws may extend to either or both Houses of Parliament. There is confusion about which laws do so extend. At some points there has been a presumption in legislative drafting that Acts would apply to Parliament unless the contrary was expressly stated; at other points has been a presumption that Acts would not apply without such express provision.36 The two Houses have now each agreed a resolution that ‘legislation creating individual rights which could impinge on the activities of the House should in future contain express provision to that effect’.37 While neither House can alter the law by resolution, it is to be hoped that these resolutions can be considered as a guide in future statutory interpretation. This is not an assertion of Parliament as a ‘statute free zone’ so much as a requirement that exclusive cognisance should only be displaced by express provision.

B. Exclusive Cognisance, Civil Liability and Criminal Law Privilege has never been used to displace criminal liability except when it related to freedom of speech. As Stephen J said: I know of no authority for the proposition that an ordinary crime committed in the House of Commons would be withdrawn from the ordinary course of criminal justice.38

33 12

QBD 271. 1 KB 594. 35 See Erskine May (n 12) 25th edn, 16.12. 36 ibid 11.17. 37 ibid; see also G Lock, ‘Statute law and case law applicable to Parliament’, in D Oliver and G Drewry (eds), The Law and Parliament (London, Butterworths, 1998) 48. 38 Bradlaugh v Gosset, [1884] 12 QBD 271, and Joint Committee on Parliamentary Privilege, Parliamentary Privilege (2013–14) (n 5), paras 208–227. Space does not permit exploration of the effect of privilege on criminal investigations. See S Lipscombe and A Horne, ‘Parliamentary Privilege 34 [1935]

Privilege, Exclusive Cognisance and the Law 17 Nonetheless, there have been attempts to use privilege as a shelter from the law. In the Chaytor case the courts considered that the fact the House of Commons expenses system was founded on resolutions of the House of Commons was no bar to the prosecution of Members for fraudulent claims.39 In 2013 the Committee on Standards noted: In Chaytor it was held that original documents, such as invoices or claims forms, did not form part of proceedings in Parliament. They would not become so simply because they had been reproduced or referred to in a report.40

The Parliamentary Corporate Bodies Act of 1992 established corporate officers of the House of Commons and the House of Lords ‘having perpetual succession, an official seal and power to sue and be sued under that name like any other corporation sole’.41 Not only was there no question that exclusive cognisance might prevent action being taken against the Corporate Officer of the House of Commons in relation to the procurement of fenestration for Portcullis House, some of the papers of the Administration Committee, which had an advisory role, were considered as part of the background to the case.42

VI. Freedom of Speech Article 9 of the Bill of Rights is not the basis of the right to free speech in Parliament, but, as the statutory formulation of that right, it is central to the way in which it has been interpreted. The provision that ‘That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament’ is, of course, full of ambiguity. What is a ‘proceeding’? What is a ‘court or place out of Parliament’? What is ‘impeaching’ or ‘questioning’? Despite these ambiguities, the protection of freedom of speech has been strong and enduring. It has been upheld at the European Court of Human Rights, in A v UK.43 There has also been strong protection against using parliamentary materials in circumstances where the honesty of what is said in Parliament might be called into question.

and the Criminal Law’, in A Horne, G Drewry and D Oliver (eds), Parliament and the Law (Oxford, Hart Publishing, 2013) 67 for a discussion of searches on the Parliamentary estate, and for a general view, the Committee on Standards Seventh Report of Session 2013–14, The House of Commons Code of Conduct and the Criminal Law, HC(2013–14) 903. 39 R v Chaytor [2010] UKSC 52. 40 Committee on Standards, The House of Commons Code of Conduct and the Criminal Law (HC 2013–14, 903) para 7. 41 Parliamentary Corporate Bodies Act of 1992, ss 1.1 and 2.1. 42 Harmon CFEM Facades (UK) Ltd v The Corporate Officer of the House of Commons (1999) 67 Con LR 1. 43 A v United Kingdom (App No 35373/97) (2002) 36 EHRR 917, ECtHR.

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A. The Courts and Freedom of Speech: Sub Judice and Non-liability The most controversial use of freedom of speech is when it affects the rights of individuals outside Parliament, or cuts across the role of other constitutional actors, most notably the courts. Both Houses have agreed to limit their free speech through sub judice resolutions, which prevent reference to cases which are active in the UK courts, balancing the right of Parliament to discuss any matters it pleases, with a concern not to interfere in the work of the courts. The rule is not absolute. In the Commons, it is subject to the discretion of the Chair44 and may be waived when matters of national importance are in question. It does not apply when a case concerns a ministerial decision as the courts and Parliament both have an interest in ministerial accountability, an exemption of increasing significance as judicial review increases. The rule is also ‘subject to the right of the House to legislate on any matter’, which is interpreted broadly to disapply the rule in debates on legislation. Controversially, the rule does not apply when matters have been decided by the courts, even if an injunction or other order has been granted. Members of one or other House have breached such injunctions when they considered there was a public interest in releasing the information. Concerns about the development of super injunctions – prohibiting not just disclosure of names, but of the existence of the injunction itself – and the breaches of those injunctions in Parliament was particularly acute around 2010. In consequence the then Master of the Rolls, Lord Neuberger of Abbotsbury, established (and chaired) a Committee on super injunctions, composed of lawyers, and Parliament established a Joint Committee on Privilege and Injunctions. The Committee on Super Injunctions recognised the importance of Article 9, which it considered of ‘the highest constitutional importance’ and concluded that ‘No super-injunction, or any other court order, could conceivably restrict or prohibit Parliamentary debate or proceedings.’45 It also noted that reports of those proceedings might not attract privilege,46 (indeed although a recent use of privilege to name ‘Soldier F’ was widely reported, the name itself was not carried in the mainstream press.) The (parliamentary) Joint Committee took a similar line: ‘The threshold for restricting what members can say during parliamentary proceedings should be high. We do not believe that the threshold has yet been crossed.’47 44 This formulation recognises that there may be occasions when the person chairing in the Chamber or a Committee has to decide matters quickly, but where possible, the Speaker is asked to rule on such matters in advance. 45 Committee on Super-Injunctions, Report of the Committee on Super-Injunctions: Super-Injunctions, Anonymised Injunctions and Open Justice (2011) vii. 46 ibid. 47 Joint Committee on Privacy and Injunctions, Privacy and Injunctions (HC 2011–2012, 1443) para 230.

Privilege, Exclusive Cognisance and the Law 19 This matter is once again live, since Lord Hain’s breach of an injunction on the floor of the House of Lords is being litigated at the European Court of Human Rights.48 It remains to be seen whether the Court will continue to affirm, as it did in A v UK, that a rule of parliamentary immunity, which is consistent with and reflects generally recognised rules within signatory states, the Council of Europe and the EU, cannot in principle be regarded as imposing a disproportionate restriction on the right of access to a court as embodied in Article 6(1). Legally binding agreements can be made without court orders. As part of its evidence gathering in an inquiry into the use of Non Disclosure Agreements (‘NDAs’) in discrimination cases the Women and Equalities Committee (‘WEC’) took evidence which would, without privilege, have breached such agreements.49 The argument for restrictions on the ability of parliamentarians to set aside orders of the courts, or legal agreements entered into by consenting adults is obvious. But the WEC inquiry sprang from concerns about the imbalance of power between employer and complainant, and fears that the threat of court proceedings for breach of NDAs prevented investigation of illegal behaviour. Uses of privilege to look behind legal agreements or rulings can be seen as a necessary relief valve, a counterpart to the courts’ accepted ability to define the limits of privilege, allowing intervention when it is felt that the courts are being used in ways which are against the wider public interest. It would be naïve not to recognise that access to the courts can depend on financial resources, and the wealthy can use the law in ways which others cannot. There is a public interest in having an arena where, if it is considered important, someone can say the otherwise unsayable.

VII. Wider Implications of Article 9 The protection given by Article 9 does not simply extend to preventing cases being brought against people for what they say within Parliament. It can also prevent parliamentary proceedings being used to justify statements made outside Parliament.50

A. Individual Waiver in Defamation Proceedings In Prebble v Television New Zealand: Lord Browne-Wilkinson considered that parliamentary materials could not be used to defend a defamation action brought

48 Green

v the United Kingdom (App No 22077/19. and Equalities Committee, The Use of Non-Disclosure Agreements in Discrimination Cases (HC 2017–19,1720). 50 Prebble v Television New Zealand Ltd [1993] UKPC 55. 49 Women

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in respect of words spoken outside Parliament: the opposing party would have to impeach or question the proceedings within Parliament to establish the true meaning of the statements outside it. Similar rulings in the UK meant that actions for defamation had to be discontinued.51 There was a short-lived attempt in section 13 of the Defamation Act 1996 to enable a person (not necessarily an MP or peer) to waive parliamentary privilege so far as he or she was concerned, for the purposes only of defamation proceedings. In 199952 and again in 201353 a Joint Committee on Parliamentary Privilege concluded this undermined the basis of privilege as freedom of speech is the privilege of the House as a whole and not of the individual member in their own right. Both Committees recommended repeal. This shortlived potential waiver of privilege was repealed by paragraph 44 of Schedule 23 to the Deregulation Act 2015.54

B. Effective Repetition Parliamentary privilege does not extend to the repetition outside Parliament of statements made within parliamentary proceedings. In a twentieth century version of Stockdale v Hansard, the Judicial Committee of the Privy Council held in Buchanan v Jennings55 that the ‘effective repetition’ of words in Parliament outside Parliament did not enjoy privilege (a Member had said he ‘did not resile from’ a statement made within the New Zealand Parliament which would have been defamatory if made outside it). The case of Makudi v Triesman both confirmed that the Privy Council’s ruling held in English law, and carved out an exception to it.56 Lord Triesman had made allegations about international football governance to a select committee, and was then asked to attest to a FIFA Investigatory tribunal. He did so by reference to the evidence given to the Committee. In this case the court held that repetition could enjoy privilege where there was a public interest in repetition of the public utterance, and there was a close nexus between the parliamentary utterance and its subsequent repetition. Makudi v Triesman is a slight loosening of Buchanan, provided through case law. The courts did not hold that the public interest in the right to know what was going on in Parliament extended to allowing otherwise actionable claims to be repeated. In contrast, when the

51 Hamilton

v The Guardian (1995) Times Law Report, 8 June 1995. Committee on Parliamentary Privilege, Parliamentary Privilege (HL 1998–99, Paper 43-I; HC 1998–99, 241-I) paras 67 and 68. 53 Joint Committee on Parliamentary Privilege, Parliamentary Privilege (n 5), paras 169 and 170. 54 A Horne and O Gay, ‘Waiving good riddance to section 13 of the Defamation Act 1996?’ (2015) 83 The Table 45. 55 Buchanan v Jennings [2004] UKPC 36; [2005] 2 All ER 273. 56 [2014] EWCA Civ 179. 52 Joint

Privilege, Exclusive Cognisance and the Law 21 New Zealand Parliament legislated on privilege, one of the aims of the legislation was to reverse Buchanan.57 As described in the privilege matter of the Actions of Sussex Police,58 section 2 of the Parliamentary Papers Act 1840, which provides that proceedings in respect of a copy of a parliamentary paper will be stayed on production of an affidavit that the copy is correct, might be used to convey what was said in Parliament without exposure to legal liability. It also demonstrates the danger that the freedom of speech in Parliament may be undermined by lack of awareness. An MP set out the reasons why he would no longer deal with a constituent in a speech in Parliament and sent the constituent a copy of the entire day’s Hansard. The constituent complained to Sussex police, who promptly issued the MP with a Police Information Notice (‘PIN’) – an extra-statutory device developed by the police to warn the recipient that a complaint of harassment has been made and there may be proceedings if further complaints follow. The Committee was particularly concerned that the police had recorded a speech in the House as a racist incident (although it was prepared to consider this was not a contempt, as it could not have obstructed or impeded parliamentary functions as only the police were aware of the record). The Committee was highly critical of the decision to issue the PIN: A threat of legal action arising from the content of a speech made in the House and published by Order of the House is clearly a contempt. The ability of those who speak in Parliament to speak freely is a fundamental part of our democracy. The prospect that there may be legal proceedings in consequence of the making of or simple publication of, such a speech is likely to have a chilling effect on MPs and on others who take part in official proceedings.59

The case is a reminder that even in a liberal western democracy, the freedom of speech in Parliament can be undermined by law enforcement authorities of the state itself.

VIII. Use of Parliamentary Material by the Courts There is consensus that proceedings encompass all those who take part in them, witnesses as well as Members, and that there is protection from liability. But over the course of the late twentieth and early twenty-first century, the courts have broadened the ways in which they consider proceedings can be used without breach of Article 9. 57 Parliamentary

Privilege Act 2014 (NZ), s 15 of Privileges, First Report of 2013–14, Actions of Sussex Police, HC 1021. para 34.

58 Committee 59 ibid,

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A. Previous Restrictions on the Use of Parliamentary Material in the Courts Until 1980, in theory at least, while proceedings could be used to establish matters of fact (eg, if someone were in Westminster, they could not be somewhere else) parliamentary material was not generally permitted to be used in court. There is some obscurity in the nature of this rule. While the courts consider that the rule was a self-imposed one,60 until 1980 the House of Commons required that the House had to be petitioned for leave to use privileged material. But in 1980, the House agreed to ‘get rid of some cumbersome and unnecessary formalities’ and abolish the requirement.61 The then Leader of the House was confident that It in no way affects the House’s right of free speech. Nor does it alter the legal position with regard to the restrictions on the use of references to the Official Report or reports and evidence of Committees which can be put in the courts.62

Despite that, the use of parliamentary proceedings by the courts rapidly increased, even though, as the list of cases in Erskine May shows, the courts had used parliamentary material before 1980. Since there is no longer any requirement to petition, the House has no knowledge of the volume of such references, and does not always have the opportunity to intervene.63

B. Government Accountability – Accountability to Whom The growth of judicial review has meant the courts have increasingly turned to ministerial speeches for an explanation of policy. In 1991, in the case of ex parte Brind, the government used excerpts from the Official Report to explain why it had prohibited broadcasters from showing terrorists making statements in support of their aims. The privilege implications of using this material were not even discussed, even though Lord Ackner’s use of parliamentary materials extended far beyond ministerial statements and included consideration of back bench speeches justifying the policy.64 60 See,

eg, Wilson v Secretary of State for Trade and Industry (Appellant) [2003] UKHL 40, [58]. (1979–80) 823; HC Deb, 3 December 1979, cols 167–197 and 31 October 1980, cols 879–916. The motion arose because Mr Prior MP had attended the ABC trial, and raised the use of Hansard in those proceedings, without a petition, as a matter of privilege. In response, the Committee of Privileges recommended abolition of the petition for leave in respect of Hansard, and the government agreed and widened the scope of the motion to include committee proceedings: a classic of unintended consequences. 62 HC Deb 3 December 1979, col 169; it is notable that leave was not given for the use of parliamentary materials in legal cases relating to the publication of the Crossman diaries. 63 Although the requirement to petition was not always observed before 1980. 64 R v Secretary of State for the Home Department (Respondent) ex parte Brind and others (Appellants) [1991] UKHL 4. 61 CJ

Privilege, Exclusive Cognisance and the Law 23 When the Attorney General in Pepper v Hart objected to the use of parliamentary material as an aid to statutory interpretation, he did so at the instigation of the Clerk of the House of Commons.65 The leading judgment was given by Lord  Browne-Wilkinson, and deserves study, both as a history of the exclusionary rule, and a piece of careful constitutional analysis. He pointed out that the Crown itself had used parliamentary materials in Brind, and had not objected to their use in other cases (he did not canvas the possibility that the Crown might, unbeknown to the House authorities, use material in ways which the House would consider improper).66 He carefully distinguished between impeaching (exposing persons to legal liability for what they have said in Parliament) and questioning (criticising statements or the reasoning therein). It was decided that although parliamentary material could be used as an aid to interpretation when necessary, its use should be limited and ‘should only be permitted where such material clearly discloses the mischief aimed at or the legislative intention lying behind the ambiguous or obscure words’. In Toussaint v Attorney General of St Vincent and the Grenadines the Judicial Committee of the Privy Council held that the Prime Minister’s statement to the House of Assembly of St Vincent and the Grenadines could be used in evidence, as this was necessary for Mr Toussaint’s right of access to the courts.67 The issue was whether the reason given for the compulsory purchase of Mr Toussaint’s land, ie, that it was needed for an Education centre, was accurate. The assertion was the Prime Minister’s explanation to the House, which dealt with Mr Toussaint’s relationship to the previous administration at length, suggested it was not. The Board of the Privy Council considered ‘ministerial statements to Parliament constitute a type of evidence, the importance of which is evident and well-recognised in the context of applications for judicial review’.68 In addition to the ministerial statement, other proceedings, such as the Report from the 1999 Joint Committee on Parliamentary Privilege were also used. The Judicial Committee concluded: While no suggestion may be made that the Prime Minister misled the House by his statement, Mr Toussaint also remains free to deploy any evidence available to him on the issue whether the public purpose recited in the declaration was a sham […]. The Prime Minister’s statement to the House is potentially relevant to Mr Toussaint’s claim as an admission or explanation of the executive’s motivation. If the Prime Minister were to suggest that he expressed himself incorrectly, and did not intend to say what he said, then it would not be Mr Toussaint who was questioning or challenging what was said to the House.69

65 Pepper

(Inspector of Taxes) v Hart [1992] UKHL 3. an example see, Bradley, Regina (on the Application of) v Secretary of State for Work and Pensions [2007] EWHC 242 (Admin), [25]. 67 Toussaint v Attorney General of Saint Vincent and the Grenadines (Saint Vincent and the Grenadines) [2007] UKPC 48. 68 ibid, [29]. 69 ibid, [30]. 66 For

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An alternative view is that the prohibition on impeaching and questioning is not limited to the person who brings an action, but to all involved in it. Toussaint should not be overstated – the analysis is based on rights conferred by the Constitution of St Vincent, rather than on Article 9. Nonetheless, from a parliamentary point of view, it is problematic. First, there is the reliance on the Joint Committee report, which is cited as if it had parliamentary approval, although few of its recommendations were implemented. Second, it does not give due attention to the difference between political and judicial accountability, or to the effect that use of proceedings in this way may have upon political accountability. If what is said in Parliament is to be used by the courts, the effect may be that rather than Parliament being a source of ‘the best possible contemporaneous evidence, made in the most responsible context where a frank explanation would be expected’70 it becomes a place where ministers are reluctant to be frank, because of the potential legal consequences.71 A further extension of the use of proceedings took place in Wilson and others v Secretary of State for Trade and Industry, in which Lord Nichols considered that the Human Rights Act 1998 entrusted the courts with a new duty to assess the proportionality of legislation.72 In doing this, parliamentary proceedings could be used to establish the background to the legislation, and what the mischief was that the law was intended to remedy. While this was an extension of the use of parliamentary material, the House of Lords overturned the approach of the lower court, which had attempted to find some clear justification for the legislation in parliamentary debate, and had been distressed at its inability to do so. The House of Lords judgment implicitly recognised the difference between the way in which a minister might put a case to the Commons, and the way in which counsel for the government might put a case to a court: The proportionality of a statutory measure is not to be judged by the quality of the reasons advanced in support of it in the course of parliamentary debate […] Lack of cogent justification in the course of parliamentary debate is not a matter which ‘counts against’ the legislation on issues of proportionality.73

Article 9 does not of course bind the European Court of Human Rights which can and does look at parliamentary debates as part of its assessment of proportionality. Its ability to do so is fully accepted. While some UK commentators would like UK courts to follow this approach,74 routine evaluation of parliamentary debates

70 Toussaint

[2007] UKPC 48, para 30. eg, HC Deb, 14 Sept 2021, col 816 and col 820, where the Secretary of State for Health is very guarded about the ‘commercial reasons; for cancelling a contract. 72 Also commonly referred to as Wilson v First County Trust; [2003] UKHL 40, [61]–[67]. 73 ibid. 74 see J King, ‘Deference, Dialogue and Animal Defenders International’ (UK Constitutional Law Association) ukconstitutionallaw.org/2013/04/25/jeff-king-deference-dialogue-and-animal-defendersinternational/ (accessed 15 January 2022). The recent and relevant case of R (on the application of SC and others) v Secretary of State for Work [2021] UKSC 26 is dealt with later in this chapter. 71 See,

Privilege, Exclusive Cognisance and the Law 25 as a way of assessing the proportionality of legislation might oblige Parliament to hold debates to satisfy the courts, rather than to press for policy changes Members considered more important. The reactions to Hirst75 and Nicklinson76 in which scarce House of Commons time was used to demonstrate that there was no support for prisoner voting and no consensus on assisted dying show this is a real risk.

IX. Parliamentary Reactions to Court Uses of Proceedings In 2013 the Joint Committee on Parliamentary Privilege noted the increasing use of parliamentary material in the courts, and rejected its predecessor’s view that ‘Article 9 should not be interpreted as precluding the use of proceedings in Parliament in court for the purpose of judicial review of governmental decisions.’ In its view, permitting such use could have a chilling effect on what ministers said to Parliament for they would be ‘deterred from presenting policies and decisions clearly and honestly before Parliament, for fear of judicial review’.77 It could also, as the Lord Chief Justice had suggested, lead to the courts questioning the process by which a parliamentary body had reached a conclusion in an impermissible way. The Committee did not recommend legislation but warned that it could become necessary.

A. Interventions One result of the increasing use of proceedings by the law has been the increasing number of interventions by the House authorities, (particularly of the Commons). Such interventions warn the courts of privilege issues and put forward a parliamentary view of privilege, in which the emphasis is on the importance of freedom of speech and exclusive cognisance. While it is not Speaker’s Counsel’s practice to offer any view on the substantive issues in a case sometimes the intervention has that effect; in Warsama,78 the submissions made on the status of unopposed returns, as proceedings in Parliament, supported the FCO’s view of privilege. The House authorities did not intervene in Chaytor, when the argument was run that since the Commons expenses scheme was based on resolutions of the

75 Hirst v The United Kingdom (No 2) - 74025/01 [2005] ECHR 681 (6 October 2005); see HC Deb 10 Feb 2011, col 493. 76 R (on the application of Nicklinson) v Ministry of Justice [2014] UKSC 38; see HC Deb 11 Sept 2015, col 556. 77 Joint Committee on Parliamentary Privilege, Parliamentary Privilege (2013–14) (n 5), paras 128–9. 78 Warsama v FCO [2020] EWCA Civ 142.

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House the whole issue was privileged. Indeed, their non-intervention was noted as a ‘clamant silence’.79 It could be inferred the House authorities would not have objected if the courts had taken an expansive view, but did not consider the claiming of expenses as so close to proceedings to require the protection of privilege. There are also cases where it is obvious the courts will be alive to the potential privilege issues, and an intervention may add little, except the risk of raising already high political temperatures still further.

B. Who Decides Again? It is now accepted that the courts have the power to consider privilege, and decide on its application. However, there have also been dicta to the effect that ‘in determining any such issue, a court should pay careful regard to the views of those who are in a position to speak with authority on the matter and that would include the Speaker of the House of Commons’.80 Two recent judgments have each accepted the submissions of Speaker’s Counsel about the acceptable uses of parliamentary material. The submission adopted in Heathrow Hub was cited with approval in R (PRCBC) v SSHD in which the judgment summarised the permissible use of proceedings as follows: (1) The Courts may admit evidence of proceedings in Parliament to prove what was said or done in Parliament as a matter of historical fact where this is uncontentious: […] (2) Parliamentary material may be considered in determining whether legislation is compatible with the European Convention on Human Rights […] (3) The Courts may have regard to a clear ministerial statement as an aid to the construction of ambiguous legislation […] (4) The Courts may have regard to Parliamentary proceedings to ensure that the requirements of a statutory process have been complied with. […] (5) The Courts may have regard to Parliamentary proceedings in the context of the scope and effect of Parliamentary privilege, on which it is important for Parliament and the Courts to agree if possible […] (6) An exception has also been identified for the use of ministerial statements in judicial review proceedings. The Speaker accepts that such an exception exists but contends that the scope and nature of this exception has not yet been the subject of detailed judicial analysis. It calls for careful consideration of the constitutional issues involved. We respectfully agree.81

79 [2010]

UKSC 52, [124], per Lord Rodger. (n 78), [24]; in Chaytor (n 39) similar sentiments were expressed: ‘the court will pay careful regard to any views expressed in Parliament by either House or by bodies or individuals in a position to speak on the matter with authority’: [16]. 81 R (Heathrow Hub) v Secretary of State for Transport [2020] EWCA Civ 13, [158]; quoted in [2019] EWHC 3536 (Admin), [90]. 80 Warsama

Privilege, Exclusive Cognisance and the Law 27 It is perhaps with wry amusement that one recollects Sir Thomas Erskine May’s words in the first edition of Parliamentary Practice, written just after the conflicts of Stockdale v Hansard: If the courts were willing to adopt the resolutions of the house as their guide, the course would be clear. The authority and adjudication of the house would be pleaded, and the courts, acting ministerially, would at once give effect to them. But if the courts regard a question of privilege as any other point of law, and assume to define the jurisdiction of the house, in what manner, and at what point, can their adverse judgments be prevented, overruled, or resisted?82

We may be inching toward a position in which the courts retain their jurisdiction, but are alive to the views of either House. Certainly, judges are increasingly inviting the House to make interventions in cases where privilege issues are involved, which is a welcome development.83 In addition, the line of case law emphasising the constitutional function of Parliament over the legislative letter of Article 9 has been reinforced by the recent Supreme Court judgment in R (on the application of SC, CB and 8 children) v Secretary of State for Work and Pensions which recognises: the law of Parliamentary privilege is not based solely on the need to avoid any risk of interference with freedom of speech in Parliament. It is underpinned by the principle of the separation of powers, which, so far as relating to the courts and Parliament, requires each of them to abstain from interference with the functions of the other, and to treat each other’s proceedings and decisions with respect.84

X. Penal Powers The previous sections have charted various disputes with the courts, but on one matter, until recently, there was little controversy. Until the 1990s it was generally agreed the Houses of Parliament had power to require attendance before it, and to punish contempts, including through imprisonment. Historical disputes between courts and Parliament were about the exercise of such a power, not about its existence, and were frequently resolved in the House’s favour.85 Now the whole issue of penal powers is being reassessed. The increasing importance of Committee investigations has coincided with increasing emphasis on the rights of individuals, which has led to more resistance to Committee appearances when Members wish to take evidence from those who do not wish to give it. In an era when contempt of court jurisdiction

82 Erskine

May (n 12) 1st edn, 121. example, this was done by Master McLeod, the first instance judge in Warsama. 84 R (on the application of SC) (n 74), [165]. 85 See, eg, Burdett v Abbott (1811) 14 East 1; (1811) 104 ER 501. 83 For

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has to be exercised carefully to ensure compliance with the European Convention of Human Rights,86 it is not surprising there is nervousness about the exercise of compulsive and penal powers by political organisations (on this, see chapter six). In 1999 the Joint Committee on Parliamentary Privilege noted: If the work of Parliament is to proceed without improper interference, there must ultimately be some sanction available against those who offend: those who interrupt the proceedings or destroy evidence, or seek to intimidate members or witnesses; those who disobey orders of the House or a committee to attend and answer questions or produce documents.87

It recommended legislation to this end, but considered that while Parliament should have jurisdiction, the courts were best placed to ensure procedural fairness. In 2013 the successor Joint Committee on Parliamentary Privilege agreed that committees needed powers, but considered this should be done by assertion of the existing power to imprison, last exercised in 1880; and by rigorous internal rules of procedure to ensure fairness.88 Nothing was done in either case. In 2016, after the investigation into contempt of Parliament by executives of News International, in which it was clear the only sanction practically available was admonishment, the matter was referred to the Committee of Privileges. The Committee finally reported in May 2021 – after being delayed by several general elections. In the interim it had dealt with the case of Dominic Cummings who refused an Order of the House to appear before a Committee, was admonished and shortly afterwards was given a post in No 10 Downing Street.89 Faced with the options of doing nothing, assertion, and legislation, the Committee decided some action was needed; the number of times Committees had had to resort to summonsing reluctant witnesses was increasing, and the Cummings case had made it apparent that there were no real sanctions. Assertion might have worked in 2013, but it would now no longer be credible. Both the Australian and New Zealand Acts on Parliamentary Privilege give the House itself power to punish contempts directly. In contrast, the Committee of Privileges proposes legislation to create a criminal offence of failure without reasonable excuse to comply with a summons issued by a select committee of the House of Commons to attend the committee to answer questions, or to provide information or documents. It will be for the courts to decide whether the offence

86 Hammerton

v United Kingdom (App No 6287/10) (ECtHR, 12 September 2016). Committee on Parliamentary Privilege, Parliamentary Privilege (1998–99) (n 52), para 12. 88 Joint Committee on Parliamentary Privilege, Parliamentary Privilege (2013–14) (n 5), paras 76–100. 89 Committee of Privileges, Select Committees and Contempts: Clarifying and Strengthening Powers to Call for Persons, Papers and Records, (HC 2019–21, 350). 87 Joint

Privilege, Exclusive Cognisance and the Law 29 has been committed. The Committee recognised that this would mean the court could review the Committee’s proceedings, but aimed to limit this as much as possible both by careful drafting, and by rigorously fair internal processes. The Committee considered as follows. There are four key tests that any legislative option must pass: (1) It needs to provide sufficient sanctions to enable Committees to undertake their work without fear of unreasonable obstruction or impediment. (2) It must include provisions to reduce the risk of any unnecessary judicial oversight of parliamentary proceedings. (3) It must be compatible with human rights law and with natural justice. (4) It must be accompanied by a clear internal framework establishing due process and ensuring fair treatment of witnesses.90 It is noteworthy there is a divide in consultation responses between those who consider that Committees need few powers since their role should be to scrutinise government and those who consider that decisions which shape citizens’ lives are taken by many other bodies than government, including businesses.

XI. Parliament, the Courts and the Prerogative While there are few prerogative powers which remain personal to the Monarch, the exercise of such powers by ministers has increasingly been subject to review by the courts. Judicial decisions about the extent and the use of the prerogative have also affected Parliament.

A. Miller (No 1)91 The European Union Referendum Act 2015 provided for the Remain/Leave question to be asked, but did not map out what the consequence of the answer would be. In December 2016 the UK Supreme Court considered an appeal from a judgment in the Divisional Court92 that it would be unlawful to rely on prerogative powers to give the EU irrevocable notice under Article 50 of the Treaty of European Union. No intervention was made by the Speaker of the House of Commons as to the interest of Parliament in the matter.

90 ibid,

para 16. (on the application of Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 (‘Miller I’). 92 R (Miller) v The Secretary of State for Exiting the European Union [2016] EWHC 2786 (Admin). The judges were Lord Thomas of Cwmgiedd (Lord Chief Justice of England and Wales), Sir Terence Etherton (Master of the Rolls MR and Sales LJ (who had become a Supreme Court Justice by the time of the Miller (No 2) judgment considered below. 91 R

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The UKSC agreed with the Divisional Court that exercise of ministers’ prerogative powers – in this case, to withdraw from a treaty – had to be consistent both with the common law as laid down by the courts and with statutes as enacted by Parliament.93 Between the decision in the Divisional Court and the hearing in the UK Supreme Court, the House of Commons had passed a resolution endorsing the government’s decision to give notice under Article 50 TEU by the end of March 2017.94 This made no difference to the Supreme Court decision that legislation was needed. The consequence of the UKSC ruling in Miller was the passage of the European Union (Notification of Withdrawal) 2017 giving prior legislative authority to commencing the Article 50 process, without settling either the terms of withdrawal affecting the rights with which the UKSC was concerned nor, crucially as it turned out, ruling out a no-deal exit when the Article 50 period expired. In his dissenting speech, Lord Reed had warned that ‘it is important for courts to understand that the legalisation of political issues is not always constitutionally appropriate, and may be fraught with risk, not least for the judiciary’.95 But Miller also revealed the limits of statute. With becoming modesty, the UKSC stated that judges are ‘neither the parents nor the guardians of political conventions; they are merely observers’.96 Notwithstanding the recognition in statute of the Sewel convention, that the UK Parliament would not normally legislate with regard to devolved matters without the consent of the relevant developed legislature(s), its operation was a political matter into which the court could not inquire without breaching the prohibition in Article of the Bill of Rights on impeaching or questioning proceedings in Parliament.97

B. Prorogation: Miller (No 2)98 The Miller (No 2) and Cherry decision at the UK Supreme Court was framed as protecting Parliament from unlawful curtailment by the Executive of the legislature’s scrutiny functions by prorogation from early September until 14 October 2019. Proceedings were started at the High Court in England and Wales (Queen’s Bench Divisional Court) as soon as the intention to prorogue was announced and were already under way at the Court of Session in Scotland.99 The Divisional

93 Miller

I (n 91), [50]. December 2016, referred to at [2017] UKSC 5, para 33. 95 Miller I (n 91), [240]. 96 ibid, [146]. 97 ibid, [145]. 98 The Miller cases are dealt with in more detail elsewhere in this volume (see in particular ch 9). 99 Lord Doherty’s decision to dismiss the case at the Outer House of the Court of Session as not justiciable ([2019] CSOH 70) was appealed to the Inner Court of Session, whose decision ([2019] CSIH 49) to uphold the claim came after the decision of the High Court. The decisions of both the High Court and the Inner Court of Session were appealed to the UK Supreme Court. 94 7

Privilege, Exclusive Cognisance and the Law 31 Court concluded that the decision of the Prime Minister was not a matter for the courts and was not justiciable.100 The Divisional Court mentioned in its judgment on 11 September 2019 that it had taken ‘steps to ensure that the Lord Speaker and Speaker were notified of the proceedings but, entirely understandably, neither chose to place submissions before the court’.101 It also noticed that under the Northern Ireland (Executive Formation etc) Act 2019 which received Royal Assent on 24 July 2019, just before the summer recess during which the prorogation decision was made, it was at least possible that Parliament would be called back into session during the period of prorogation. In fact, the Northern Ireland (Executive Formation) Bill had, contrary to the government’s wishes, been substantially amended (hence the ‘etc’ added to its short title) to require regular reports on progress towards restoring devolved government in Northern Ireland and regular opportunities for each House to debate those reports, and to be recalled from prorogation if necessary to do so. The specified intervals in the Act provided for a prolonged intermission over the traditional conference season, closely matching the length of prorogation later actually imposed by the government. It would have been entirely possible for those amendments to have required debates at intervals which would have prevented the lengthy prorogation imposed by the government. The UK Supreme Court, sitting unusually as a full panel of nine justices, rejected the Divisional Court’s decision that prorogation was a non-justiciable political matter,102 although it noted in passing103 the constraints imposed by the Northern Ireland (Executive Formation etc) Act. It held that the Prime Minster, in tendering advice to the Sovereign on prorogation, had to have due regard to all relevant interests, including that of Parliament,104 and that the prorogation prevented members of Parliament from performing their function of holding the government to account, in the ‘exceptional’ circumstances of the lead up to exit day, then set for 31 October 2019.105 Parliamentary sovereignty is commonly considered as the legislative authority of the Crown in Parliament (including by the Miller II judgment itself). Nonetheless, according to the UK Supreme Court, prorogation cannot be sensibly described as a ‘proceeding in Parliament’.106 The Commissioners were not

100 R

(Miller) v The Prime Minister [2019] EWHC 2381 (QB).

101 ibid. 102 R

(Miller) v The Prime Minister [2019] UKSC 41 (‘Miller II’). [20]. 104 ibid, [30]. 105 ibid, [56]–[57]. 106 ibid, [69]. The procedure followed at Prorogation is set out at Appendix G to the Companion to the Standing Orders and Guide to the Proceedings of the House of Lords (2017 edition). The Speaker’s report to the House of Commons comprises the final entry for the Chamber in the Votes and Proceedings for, and Journal of, each Session that does not end in a Dissolution which the House is adjourned (as on 20 September 1974). 103 ibid,

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attending in their function as Members of the House of Lords but ‘in their capacity as Royal Commissioners carrying out the Queen’s bidding’.107 The court’s separation of the Crown from Parliament was an understandable evolution from earlier case law,108 but it should be recognised as radical. Paragraph 1.1 of Erskine May is as follows: Parliament is composed of the Sovereign, the House of Lords and the House of Commons. Collectively they form the legislature and as distinct constituent parts of the constitution exercise functions and enjoy privileges peculiar to each.

This statement can be traced back through successive editions to the original: the precise phrasing may have changed, but the constitutional understanding has not. The UKSC ruled that the Order in Council of 28 August 2019 was ‘unlawful, null and of no effect and should be quashed’.109 The purported prorogation was ‘as if the Commissioners had walked into Parliament with a blank piece of paper’.110 The collateral damage to commencement of the Parliamentary Buildings (Restoration and Renewal) Act 2019, which was given Royal Assent immediately before the contested prorogation before receiving (another) Royal Assent in the course of the (lawful) prorogation of the long 2017–19 Session on 8 October 2019, casts a lingering shadow over the rule in Pickin that the courts cannot undo Royal Assent to an Act (see also chapter four for a discussion of this).111 On the other hand, the recent statement by the Supreme Court that ‘it is no part of the function of the courts under our constitution to exercise a supervisory jurisdiction over the internal procedures of Parliament’ may provide some comfort.112 In the highly charged circumstances of the 2019 prorogation, it may be doubted whether the House authorities would have wished to make a submission on the matter or whether the Supreme Court would have been assisted by such a submission.113 The UKSC’s arguments in Miller II on its role in determining the limits of the exercise of the royal prerogative parallel the view taken in Chaytor that it is for the court and not for Parliament to determine the scope of parliamentary privilege.114 It is worth noting that both the Executive and the non-Executive parts of Parliament accepted the court’s judgments, despite criticisms from individual

107 Miller

II (n 102) [68]. example, the line of cases giving primacy to statute rather than ministerial discretion, though, of course, statute involves all three branches of Parliament since Royal Assent is required. 109 Miller II (n 102) [69]. 110 ibid. 111 Pickin (n 28). 112 R (on the application of SC) (n 74), [165]. 113 For his very strong personal views on the subject, see the opening chapter of J Bercow, Unspeakable, (London, Weidenfeld and Nicolson, 2020). 114 Chaytor (n 39) cited in Miller II (n 102) [65] and [66] 108 For

Privilege, Exclusive Cognisance and the Law 33 ministers.115 In 2017 legislation was passed to enable the giving of notice under Article 50. In 2019, Parliament returned from its ‘prorogation’ and some business was done.116 A further notable feature of the Miller cases was that neither judgment was able to affect the underlying political reality of the situation, at least within the UK. In 2017, both major parties felt they had to respect the referendum outcome. In 2019, the judgment did not change the parliamentary stalemate over the form of Brexit. There were already legislative constraints over the timing of any prorogation, put in place by Parliament itself. Despite the hopes of some that the return of Parliament would stop a no deal Brexit,117 it is hard to discern that either judgment had much effect on the course of Brexit itself (see also chapter ten), except, possibly, to reduce the respective Prime Ministers’ room for manoeuvre. What the cases did do was open up matters which previously had been considered as nonjusticiable to judicial scrutiny. Whether that is a good thing where international relations are involved is a matter of political opinion.

XII. Conclusion What privilege does a modern parliament need, and on what basis is it needed? Privilege can be flexible and protean, as shown by the evolution of the House’s disciplinary system. Public confidence is clearly one of the things a parliament needs to function. The House of Commons has consequently decided to allow non-Members to play a full role (and, in the case of the Independent Expert Panel, the driving role) in disciplinary proceedings which it considers are privileged.118 But there are limits to this flexibility. One wonders how the courts would react if, for example, the House of Commons purported to allow non-Members to vote on legislation. The courts and Parliament will always have a strained relationship. They are each concerned with similar problems, approached from diametrically different angles. For the courts the focus is on individual cases in which issues are as

115 See, eg, the Daily Mail, 24 September 2019, www.dailymail.co.uk/news/article-7500543/JacobRees-Mogg-accuses-Supreme-Court-constitutional-coup-stunning-ruling.html (accessed 15 January 2022). 116 It is also notable that the Dissolution and Calling of Parliaments Bill, as introduced by the government, contained no provisions aimed at rolling back the judgment. 117 See, eg, J Stanton, ‘R (Miller) v The Prime Minister and the Resumption of the Brexit Debates’ LSE Politics and Policy Blog (24 September 2019) blogs.lse.ac.uk/politicsandpolicy/r-miller-v-primeminister-2019/ (accessed 15 January 2022). 118 See House of Commons Procedure Committee, 6th Report of Session 2010–12, Lay Membership of the Committee on Standards and Privileges, HC 1606; and Committee on Standards, 5th Report 2017–19. Implications of the Dame Laura Cox report for the House’s standards system: Initial proposals, HC 1726, for discussion of the issues.

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clearly delineated as possible, and reasoning set out in full. A single judgment can change the law. In contrast, Parliament is a seething, disorganised mass of ideas and influences. Individual parliamentarians are constrained by the rules of each House, but those rules are mostly about ensuring debate is focussed and as well tempered as possible, while allowing Members substantive freedom of speech. Individual Members have power to change the law only if they can persuade their colleagues to support their legislative proposals. The greatest danger to Parliament’s effective functioning may now lie in the use of parliamentary material as an aid to wider construction. The courts have articulated cogent reasons for extending their jurisdiction so that they look at material which would once have been considered excluded. Nonetheless, while it might seem a good discipline on ministers to think they are appearing as if in court, it might, conversely, limit Parliament’s access to information, as Ministers become reluctant to share their thinking for fear of judicial review.119 Clearly some in Parliament are concerned about the unintended consequences of wider use of proceedings.120 There are also questions about where control of ministers may lie. Ministers are both part of Parliament, holding power only as long as their policies can attain parliamentary approval, and, as members of the Executive, distinct from it. While it is possible for ministers to be accountable to both Parliament and the courts, it may be that too great a reliance on the courts will reduce parliamentary control, or impose procedural obligations on Parliament. There are signs that the courts are taking a more cautious approach. The judgment in R (on the application of SC and others) v Secretary of State for Work and Pensions acknowledged the role of the whips, the need for negotiation to get legislation through, whatever government’s stated rationale for that legislation, the fact that there is no corporate parliamentary statement of reasons for legislation, and differences between parliamentary and judicial tasks and methods: […] Parliamentary methods of resolving disputes are very different from judicial methods, aimed at the production of decisions arrived at by an independent and transparent process of reasoning. That is by no means a criticism of Parliament. Its methods reflect the nature of its task: the management of political disagreements within our society so as to arrive, through negotiation and compromise, and the use of the party political power obtained at democratic elections, at decisions whose legitimacy is accepted not because of the quality or transparency of the reasoning involved, but because of the democratic credentials of those by whom the decisions are taken.121

119 See, eg, HC Deb, 14 Sept 2021, cols 816 and 820, where the Secretary of State for Health is very guarded about the ‘commercial reasons’ for cancelling a contract. 120 Joint Committee on Parliamentary Privilege, Parliamentary Privilege (2013–14) (n 5) ch 5, esp paras 126–7. 121 [2021] UKSC 26, para 116.

Privilege, Exclusive Cognisance and the Law 35 It would be too easy to see Parliament as Dionysus to the law’s Apollo. The two Houses operate within their respective rules of procedure.122 It is notable that the House of Commons is at its most cautious when dealing with privilege, where Members’ rights can conflict with individual rights. The sub judice rule is long established. Since 1978 the House has been guided by the principle that the House’s penal jurisdiction should be used as sparingly as possible, and only when it was essential to provide reasonable protection for the House, its Members or its officers from obstruction likely to cause substantial interference with the performance of their functions.123 When the Committee on Standards and Privileges was charged with looking at allegations that News International and its employees had lied to the Culture and Media and Sport Committee the first step it took was to take advice to ensure its procedures were compatible with the European Convention on Human Rights and did not interfere with any court proceedings.124 The principles set out by the current Committee of Privileges emphasise fairness to individuals as well as the need for effective powers; it was thought best for penalties to be imposed by the courts. The House of Commons accepts the requirements for procedural fairness (unsurprisingly, since they have a political as well as legal origin) and considers the courts are best able to supply them. Although courts and Parliament have different functions and operate in radically different ways, both would subscribe to parliamentary government and the rule of law – the challenge is both concepts raise difficult and contested questions, and each institution addresses them in differing ways.

122 The rigidity of proceedings varies with the nature of the decision in question. Select Committees, whose reports inform the House rather than making binding decisions, have relatively flexible procedures, and few powers for the Chair. Legislation is handled, both in Committee and in the House, with much more formality, to ensure decisions are clear. 123 See Erskine May (n 12) 25th edn, 15.32. 124 See the Introduction to the First Report from the Committee of Privileges, Conduct of witnesses before a select committee: Mr Colin Myler, Mr Tom Crone, Mr Les Hinton, and News International, HC(2015–16) 662 for a full account of the process.

2 The Law and the Conduct of Members of Parliament DR HANNAH WHITE

I. Introduction For centuries, the principle of exclusive cognisance underpinned what was seen as the ancient right of parliamentarians to regulate their own conduct, without interference from external bodies or statute law: ‘Parliament must have sole control over all aspects of its own affairs: to determine for itself what the procedures shall be, whether there has been a breach of its procedures and what then should happen.’1 This principle was set aside for the first time in 1868, when parliamentary procedures for adjudicating on contested elections were handed over to the courts, but systems for dealing with other allegations of inappropriate conduct remained under the sole control of members. This continued until the late twentieth century when, following a series of scandals, self-regulation became harder to defend. During the 1990s, a narrative of ‘sleaze’ began to raise the possibility of real electoral consequences for the governing Conservative party, which galvanised ministers to introduce an element of independence into the regulation of parliamentarians’ behaviour. In October 1994, Prime Minister John Major established the Committee on Standards in Public Life (CSPL), an independent non-departmental public body which, since that point, has produced a series of reports recommending the introduction of more formal procedures for upholding ethical standards in the public sphere. The CSPL’s first report, under its Chair, the Rt Hon Lord Nolan, led to the introduction of a Code of Conduct for MPs, the tightening of the rules on the registration of interests by MPs, and the creation of the office of Parliamentary Commissioner for Standards (PCS) – an independent but non-statutory position which reported to the House of Commons Committee on Standards and Privileges.2 1 Joint Committee on Parliamentary Privilege, Parliamentary Privilege (HL 1998–9, 43-1; HC 214-1) para 13. See also ch 1 of this volume. 2 Committee on Standards in Public Life, First Report: Standards in Public Life (Cm 2850-I, 1995). The PCS now reports to the Commons Committee on Standards.

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These arrangements largely held up until 2009, when, in the wake of the MPs’ expenses scandal, MPs were forced to accept that the system under which they themselves regulated the setting and administration of their own expenses, salaries and pensions no longer commanded public confidence. The consequent major change in the landscape of Members’ conduct was the passage of the Parliamentary Standards Act 2009. This established an independent statutory body (the Independent Parliamentary Standards Authority (IPSA)) to regulate the expenses and determine the salaries and pensions of MPs and introduced a specific criminal offence of ‘providing false or misleading information for allowance claims’. In creating this new offence, Parliament recognised the long-held position that parliamentary privilege does not extend to ordinary criminal matters, apart from those relating to free speech,3 a principle which was subsequently tested by Members of both Houses who were prosecuted under the Theft Act 1968 for making fraudulent expenses claims.4 In the years since, further scandals have caused the rights that MPs previously claimed to regulate their own affairs to be constrained further. The recruitment of lay Members to sit on the Commons Standards Committee was intended to reduce perceptions of MPs ‘marking their own homework’ on standards issues.5 But after the #MeToo scandal broke in Westminster in 2017, with numerous allegations of bullying and sexual harassment made against MPs, ministers and parliamentary staff, external reviews recommended further changes to internal HR procedures and the regulation of MPs’ and peers’ behaviour. A new Independent Complaints and Grievance Scheme (ICGS) implemented from July 2018 has been designed to address allegations of bullying or harassment on the parliamentary estate and now excludes MPs from adjudicating on, sanctioning or hearing appeals on such cases. While a vote in the House is still required to endorse the most severe sanctions, these responsibilities now fall to the Parliamentary Commissioner for Standards and an Independent Expert Panel (IEP) – both of which are independent but non-statutory. In late 2021, a case of paid advocacy by the former Conservative minister Owen Paterson prompted the Johnson Government to call for the House of Commons to look again at the adequacy of processes for determining complaints of breaches of the Code of Conduct, in particular the process for appeals. The case prompted the House of Commons to review the rules around Members’ outside interests and to agree, in November 2021, that MPs’ second jobs should be kept within ‘reasonable limits’ and should not include roles as parliamentary strategists or consultants. The detail of how these decisions should be reflected in the rules of the House was still under consideration at the start of 2022.

3 See A Horne and S Lipscombe, ‘Parliamentary Privilege and Criminal Law’, in A Horne, G Drewry and D Oliver (eds), Parliament and the Law (Oxford, Hart Publishing, 2013) 67. 4 R v Chaytor [2010] UKSC 52. 5 See JS Caird ‘Public Legal Information and Law-making in Parliament’, in A Horne, G Drewry and D Oliver (eds), Parliament and the Law 2nd edn (Oxford, Hart Publishing, 2018) 147.

The Law and the Conduct of Members of Parliament 39 The House of Lords has been less ready to give up control over its own internal affairs – with peers specifically excluding themselves from the Parliamentary Standards Act and – in 2015, using Private Members’ Bills to confirm the power of the House of Lords itself to expel Members and subject them to unlimited periods of suspension for breaches of the Code of Conduct. Fifteen years after the Commons followed the advice of the Committee on Standards in Public Life by establishing the role of Parliamentary Commissioner for Standards, the Lords followed suit – likewise creating a non-statutory position appointed by resolution of the House.6 But although the Lords has signed up to the ICGS, peers continue to play a role alongside lay members in determining complaints under the scheme – via the House of Lords Conduct Committee. This chapter sets out the main ways in which the conduct of Members of Parliament is currently regulated and how the two Houses’ internal procedures interact with statute law. It provides a brief history of regulation in each area but focuses its description on the key developments in recent years. More detailed descriptions of earlier developments are set out more exhaustively in previous editions of this volume. The chapter concludes with some reflections on possible future changes to the regulation of MPs’ and peers’ conduct, notes the regrettably reactive nature of most reform in this area and identifies the consequent patchwork of regulation, rules and standards governing the conduct of parliamentarians as an unfortunate ongoing problem.

II. Declaration and Registration of Members’ Interests The House of Commons’ formal requirement for members to register their interests dates from 1974, replacing earlier conventions in both Houses whereby Members made declarations of pecuniary interests in debate. The Register of Members’ interests (the Register), which is maintained by the Parliamentary for Commissioner for Standards, provides information about any financial interest which a Member has, or any benefit which he or she receives, which others might reasonably consider to influence his or her actions or words as a Member of Parliament. Members must register any change to their registrable interests within 28 days, under rules last approved by the House in March 2015. In 2018, CSPL published a report on Members’ Outside Interests7 which drew attention to the fact that recommendations it had made a decade earlier, following the expenses scandal, had yet to be implemented. The report proposed the incorporation into the MPs’ Code of Conduct of a principle that ‘any outside roles MPs undertake, whether or not they are paid, should not prevent MPs from fully undertaking the range of duties expected of them in their primary role as an

6 ibid. 7 Committee

on Standards in Public Life, MPs’ Outside Interests (2018).

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MP’. The report also drew attention to deficiencies in the clarity and accessibility of the Register and recommended that MPs should not be allowed to undertake outside employment as a parliamentary strategist or consultant. In 2021, questions about the registration of interests came to the fore because of media attention on two cases involving the Prime Minister, the Rt. Hon. Boris Johnson MP. Johnson was criticised for an ‘over-casual’8 attitude to his personal declarations first – as an MP in the Register and second – as a minister under the Ministerial Code. Having previously been repeatedly rebuked by the Committee on Standards for late declarations of financial interests, Johnson was criticised by the Committee for failing to ascertain the details of a convoluted arrangement by which a Conservative party donor had provided him with the use of a luxury holiday villa in Mustique.9 Separately, having investigated the circumstances in which a Conservative peer and party donor, Lord Brownlow, and the Conservative party had initially paid for the refurbishment of the Downing Street flat occupied by the Prime Minister, the Prime Minister’s Adviser on Ministerial Interests, Lord Geidt found that although Johnson had not breached the Ministerial Code, ‘The prime minister – unwisely, in my view – allowed the refurbishment of the apartment at No 11 Downing Street to proceed without more rigorous regard for how this would be funded.’10 In December 2021, the Electoral Commission fined the Conservative Party £17,800 for ‘failing to accurately report a donation’ that paid for the refurbishment. In November 2021, former Conservative minister Owen Paterson MP was found to have repeatedly engaged in advocacy on behalf of two companies by whom he was being paid, committing what the Standards Committee described as ‘egregious’ breaches of the MPs’ Code of Conduct.11 The case, and the mishandling of its resolution by the government (see below), led to widespread public discussion of the rules around MPs’ outside interests. An Opposition Day motion introducing the CSPL recommendation that MPs should not be able to work as a parliamentary strategist or consultant was amended by the government to recommend the House also consider imposing ‘reasonable limits’ on outside interests. The detail of how these decisions should be reflected in the rules of the House was still under consideration at the start of 2022, following a further report by the Standards Committee.12 It seems clear however that this will be another example in which the rules circumscribing Members’ conduct are tightened in response to concern generated by a specific scandal, reflecting changing public attitudes to the role of MPs and their standards of ethical behaviour.

8 Committee

on Standards, Boris Johnson (HC 2017–19, 1797) para 14. on Standards, Boris Johnson (HC 2021–22, 549). 10 Cabinet Office, Annual Report by The Independent Adviser on Ministers’ Interests (May 2021). 11 Committee on Standards, Mr Owen Paterson (HC 2021–22, 797). 12 Committee on Standards, Review of the Code of Conduct: Proposals for Consultation (HC 2021–22, 270). 9 Committee

The Law and the Conduct of Members of Parliament 41

III. Conduct in the House of Commons A. The Parliamentary Commissioner for Standards and the Code of Conduct The Parliamentary Commissioner for Standards, a role created on the recommendation of the CSPL in 1995, considers self-referrals or third-party allegations that a Member of Parliament has breached the Code of Conduct agreed by the House. This code focuses on financial interests – although it includes the seven principles of standards in public life formulated by CSPL, breaches of these so-called ‘Nolan principles’ cannot be investigated by the Parliamentary Commissioner. When allegations of breaches of the code are made, the Commissioner first determines if such complaints fall within her remit and whether there is sufficient evidence to justify initiating an inquiry. Where she does conduct an inquiry, she may decide not to uphold the allegation, to use the ‘rectification’ process (reaching agreement with a Member that they will acknowledge a breach of the rules, rectify the infringement and apologise), or, for more serious offences or those which raise issues of wider significance, to submit a memorandum to the Committee on Standards. Where the Committee is involved, the Member concerned is given the opportunity to comment on the Commissioner’s findings of fact before she reaches her conclusions and to make representations to the Committee on her final report. It is for the Committee on Standards to determine whether the Member is in breach of the rules and – if so – either to impose a limited array of sanctions (such as to apologise in person or in writing or to pay back money) or to recommend to the House that the Member have their salary withheld, that they be suspended (which could lead to a recall petition – see below) or that they be expelled from the House13 – all recommendations which must be debated and agreed to by the House. In 2021, the House of Commons agreed to proposals from the Committee on Standards14 to expand the range of sanctions available to the Commissioner, the Committee, the IEP and the House. The tariff (for cases not relating to bullying and harassment – for which see below) now includes a requirement to attend training, the withdrawal of services, access to facilities or participation in travel, and dismissal from a select committee. For cases not involving bullying and harassment, a codified list of aggravating and mitigating factors was introduced at the same time, as a guide for the imposition of sanctions.

13 The last MP to be expelled from the House of Commons was Peter Baker, in 1954, after he was sentenced to seven years’ imprisonment, for passing a forged document. The last MP to be expelled as a result of the House’s own disciplinary powers was Garry Allighan, in 1947, after the Committee for Privileges found him guilty of a libel upon the House and the acceptance of a bribe. 14 Standards Committee, Sanctions in Respect of the Conduct of Members (HC 2019–21, 241).

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In late 2021, the Johnson Government raised concerns about the process for investigating breaches of the Code of Conduct, in the context of the finding of paid advocacy against Owen Paterson MP. Ministers supported a backbench amendment to the motion to impose a 30 day suspension on Paterson, which had been tabled by former Conservative minister Andrea Leadsom MP.15 The amendment, which was agreed to by the House, delayed a decision on the proposed suspension, expressed concerns about the fairness of the process to which Paterson had been subject, and established a new committee (chaired by former Conservative minister John Whittingdale and with a government majority) to review the Commons standards process. After widespread public criticism and the refusal of opposition parties to sit on the Whittingdale committee, the government was forced to acknowledge it had been a mistake to conflate the outcome of Paterson’s individual case with its wider concerns about the provision for MPs to appeal findings against them. The Whittingdale committee was unwound and the original report against Owen Paterson was agreed, although by that point he had chosen to step down as an MP. In late 2021, the Committee on Standards commissioned a judge-led review of the Code of Conduct to determine whether the process required amendment in order to comply with the principle of natural justice, in particular whether the provision for MPs to appeal findings against them was sufficient.

B. The Independent Complaints and Grievance Scheme In October 2017, the #MeToo movement which had swept around the world reached Westminster. Allegations of sexual harassment and bullying were made against members of both Houses by staff, journalists and other members. For some, these allegations had significant consequences, including for Defence Secretary Michael Fallon – who stepped down after admitting that his earlier behaviour in relation to women had ‘fallen short’. In November 2017, then Prime Minister Theresa May set up a cross-party working group of MPs, chaired by the Leader of the House, Andrea Leadsom MP, to develop improved, independent processes for reporting and investigating allegations of harassment and bullying. The working group reported on 28 February 2018, and, on 21 March, the House of Lords Commission referred its recommendations to the sub-committee on Lords Conduct. On 19 July 2018, the House of Commons incorporated the new Behaviour Code which had been recommended by the working group into its Code of Conduct and added a new rule to the Code of Conduct: ‘A Member must treat their staff and all those visiting or working for or with Parliament with dignity, courtesy and respect.’ The Behaviour Code now applies to everyone who 15 House of Commons Votes and Proceedings (3 November 2021). As the suspension was longer than 10 days, it would have triggered a recall petition in Owen Paterson’s North Shropshire constituency and therefore potentially a by-election.

The Law and the Conduct of Members of Parliament 43 works on the parliamentary estate, the House of Lords having agreed to incorporate it into its Code of Conduct for Lords Members and Lords Members’ staff in April 2019. It was also adopted by the bicameral Parliamentary Digital Service. Also in July 2018, the House of Commons also agreed to a suite of policies and procedures relating to bullying and sexual harassment collectively known as the ICGS.16 The Committee on Standards was given a role in considering certain appeals in relation to complaints of bullying and harassment, and sexual misconduct, by MPs. Meanwhile, in March 2018, the BBC’s Newsnight programme had run a series of programmes reporting allegations of widespread bullying by MPs of their own staff and of officials employed by the House of Commons, with specific accusations made against the Labour MP Paul Farrelly, the Conservative MP Mark Pritchard and the Commons Speaker John Bercow (all three of whom denied the claims). The allegations, and the wider attention to bullying and harassment which they triggered, led the two Houses’ authorities to commission a series of three independent inquiries into bullying and harassment in Parliament. The first, conducted by Dame Laura Cox QC, examined the bullying and harassment of House of Commons staff.17 Reporting in October 2018, it found a culture, cascading from the top down, of deference, subservience, acquiescence and silence, in which bullying, harassment and sexual harassment have been able to thrive and have long been tolerated and concealed.

Cox recommended amendments to the newly introduced ICGS, most significantly that the process for determining complaints of bullying, harassment or sexual harassment brought by House staff against Members of Parliament [should] be an entirely independent process, in which Members of Parliament will play no part.

This meant that there should be no role for the Committee on Standards, as under the original ICGS. Cox also recommended that the ICGS be amended to ensure that historic allegations could be investigated. The House of Commons Commission agreed to the key recommendations made in the report, confirming that it was ‘up to the House to take forward these recommendations to which we are fully committed’. The second inquiry, undertaken by Gemma White QC, which began in November 2018, looked into accusations of bullying and harassment of MPs’ personal staff.18 Reporting in July 2019, it found a problem of bullying and

16 HC Deb 19 July 2018, col 627. The UK Parliament Behaviour Code is available at www.parliament. uk/globalassets/documents/lords-committees/privileges/UKParliamentBehaviourCode.pdf (accessed 2 December 2021). 17 Dame L Cox, The Bullying and Harassment of House of Commons Staff: Independent Inquiry Report (2018) www.parliament.uk/globalassets/documents/conduct-in-parliament/dame-laura-cox-independent-inquiry-report.pdf (accessed 19 January 2022). 18 G White, Bullying and Harassment of MPs’ Parliamentary Staff: Independent Inquiry Report (2017–19, HC 2206).

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harassment that was ‘sufficiently widespread to require an urgent collective response’ and argued that the ICGS did not engage sufficiently with the particular issues faced by Members’ staff ‘who were in a uniquely vulnerable position because they are directly employed by Members of Parliament’. The third inquiry, led by Naomi Ellenbogen QC and set up in December 2018, investigated the extent of bullying and harassment in the House of Lords. Also reporting in July 2019, Ellenbogen found that the prevailing culture and behaviours in the House of Lords were ‘not conducive to staff being treated with dignity and respect’, and that bullying and harassment had been ‘generated and fostered by the structural complexities of the organisation and its working practices’.19 In line with recommendations from these inquiries, and six and 18-month reviews of the operation of the ICGS, a number of amendments were made to the scheme. Most significantly, the House of Commons accepted the recommendation that MPs should play no part in adjudicating on cases of bullying and harassment and, on 23 June 2020, agreed to establish an Independent Expert Panel to determine appeals and sanctions in cases where ICGS complaints had been brought against Members. The first appointments to the IEP were agreed on 25 November 2020. The IEP’s sanctions include (but are not limited to): an apology in writing or in the House, suspension or expulsion. Like the most serious Committee on Standards’ recommendations, sanctions such as suspension or expulsion must be approved by the House on a motion tabled by the government without debate. If the individual found guilty is no longer a Member, their access to Parliament may be restricted through withdrawal or refusal of a former Member’s pass. The first six cases considered by the IEP were:20 •

•

•

•

Dismissal of an appeal (by the person making the allegation) against a finding that former MP Mr Ross Thompson had not been in breach of the House’s sexual misconduct policy. Determination of sanction – withdrawal of the right to a former member’s pass – in the case of former MP Jared O’Mara who had been found in breach of the House’s sexual misconduct policy. Hearing of appeals (by the person making the allegation and the responder) in the case of Mr Mike Hill MP, who had been found in breach of the House’s sexual misconduct policy. He resigned during the process, so no sanction was imposed. Dismissal of an appeal (by the responder) and determination of the sanction of a six-week suspension to be imposed on Rob Roberts MP, who had been found

19 N Ellenbogen, An Independent Inquiry into Bullying and Harassment in the House of Lords (2019) www.parliament.uk/globalassets/documents/lords-committees/house-of-lords-commission/2017-19/ ellenbogen-report.pdf (accessed 19 January 2022). 20 All reports of the IEP are available at www.parliament.uk/mps-lords-and-offices/standards-andfinancial-interests/independent-expert-panel/reports (accessed 2 December 2021).

The Law and the Conduct of Members of Parliament 45

•

•

in breach of the House’s sexual misconduct policy (see below – controversially this suspension did not lead to a recall petition). Dismissal of an appeal (by the responder) and confirmation of sanction of an apology on the floor of the House imposed on Daniel Kawczynski MP for a breach of the House of Commons bullying and harassment policy. Determination of sanction – issuance of a formal reprimand against former MP Keith Vaz who was found to have breached the House of Commons bullying and harassment policy. Mr Vaz’s right to a former member’s pass having already been withdrawn in response to separate findings against him, the IEP determined that it should never be restored.

When the ICGS was originally agreed to in July 2018, the House of Commons also agreed to a motion introduced by the Leader of the House, Andrea Leadsom, that, for consistency and fairness, the Parliamentary Commissioner for Standards (PCS) should no longer routinely publish information about individual investigations before those investigations are concluded.

In doing so it rejected an amendment tabled by the then Chair of the Standards Committee, Sir Kevin Barron, to continue the existing practice for non-ICGS matters, which led him to resign his position. On 21 April 2021, following reports from the Standards Committee on the adverse effects of this decision, it was reversed for non-ICGS cases.21

C. Recall of MPs The expenses scandal led the three main political parties at the 2010 election to commit in their manifestos to legislate to allow constituents to remove their MP – creating a power of ‘recall’. The Recall of MPs Act eventually passed in 2015 provides that if an MP’s behaviour results in any of three trigger events, the Speaker shall initiate a petition which is made available for signing in that MP’s constituency. If at least 10 per cent of eligible electors sign the petition during a six-week period, the seat is declared vacant and a by-election takes place (in which the recalled Member can stand). The triggers are: a criminal conviction resulting in imprisonment of less than a year;22 a suspension from the House of Commons of at least 10 sitting days (or 14 calendar days) following a report from the Commons Committee on

21 HC

Deb 21 April 2021, col 1074. that a sentence of imprisonment for longer than a year, where the individual is actually imprisoned (ie not a suspended sentence) already automatically disqualifies an individual from being an MP under the Representation of the People Act 1981. 22 Note

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Standards; or a conviction for falsely obtaining parliamentary expenses (under section 10 of the Parliamentary Standards Act).23 Since the Act was passed, there have been three recall petitions, of which two have been successful. •

•

•

In July 2018, the Democratic Unionist MP for North Antrim, Ian Paisley, was suspended for 30 sitting days following a report from the Committee on Standards. The resultant petition was not signed by 10% of his constituents so no by-election was triggered and he remained in post. In June 2019, the Labour MP for Peterborough, Fiona Onasanya, lost her seat at a by-election triggered under the Act after she was convicted and sentenced for three months for perverting the course of justice. The Labour party retained the seat with an alternative candidate after Onasanya declined to contest the by-election. In August 2019, the Conservative MP for Brecon and Radnorshire, Chris Davies, lost his seat after being convicted of a section 10 offence, which triggered a recall petition. The Liberal Democrat candidate, Jane Dodds, won the seat at the subsequent by-election, although the Conservative party reclaimed it at the 2019 general election.

Also of interest are the circumstances in which recall petitions have not been triggered. In October 2019, the Labour MP for Leicester East, Keith Vaz, would have been subject to a petition following a six-month suspension from the House following a report from the Committee on Standards, had he not stood down at the early election in December 2019. In May 2021, Conservative MP for Delyn, Rob Roberts was suspended from the Commons for six weeks after being found guilty of sexually harassing a member of staff, but this did not trigger a recall petition. This was because his suspension was imposed by the House on the recommendation of the new IEP established to deal with complaints under the ICGS (see above). The Recall of MPs Act, drafted before the ICGS or IEP existed, specifies that a suspension must follow a report from the Committee on Standards – which had been deliberately excluded from determining complaints of bullying and harassment. On 19 October 2021 – the loophole was closed via the introduction of a new Standing Order. This required the Chair of the IEP to send any report recommending a suspension which would engage the Recall of MPs Act to the Committee on Standards, and required the Committee to make a report to the House setting out a recommendation for a suspension of equal length (to run concurrently with that imposed by the IEP), thereby triggering the petition process. The government, supported by the Chair of the IEP, Sir Stephen Irwin, resisted an attempt by the

23 For a longer account of the introduction of the Recall of MPs Act, see R Kelly, M Hamlyn and O Gay ‘The Law and the Conduct of Members of Parliament’, in A Horne, G Drewry and D Oliver (eds), Parliament and the Law 2nd edn (Oxford, Hart Publishing, 2018) 43.

The Law and the Conduct of Members of Parliament 47 Official Opposition to make the change retrospective, in order that it should apply to Rob Roberts, arguing that this would have impinged of the independence of the Panel.24 Recommendations from the Electoral Commission on improving the administration of future recall petitions and improving the experience for electors have not been taken up by the government.25

IV. Conduct in the House of Lords A. The Code of Conduct and Lords Commissioner for Standards The current code of conduct for Members of the House of Lords was agreed following a number of scandals relating to expenses and allegations that certain peers were prepared to accept fees to amend legislation.26 But while the House of Commons responded to the 2009 expenses scandal by giving up its right to selfregulation in relation to members’ finances, the Lords reacted by re-emphasising its self-regulating nature. Concerns about the misuse of the overnight subsistence allowance which could be claimed by Members of the House of Lords whose main home was outside London, were resolved not by introducing an independent system but by switching to a flat-rate attendance allowance. Having explicitly excluded itself from the ambit of the Parliamentary Standards Act 2009, against the initial intentions of the Labour Government, in July 2010, the House of Lords agreed to introduce an allowance set at £150 or £300 for each sitting day a peer attends the House. In May 2009, in the wake of media allegations against four peers – two of whom were suspended following an investigation by the Sub-Committee on Lords’ Interests – the then Leader of the House, Baroness Royall of Blaisdon, appointed a Leader’s Group on the Code of Conduct. The House of Lords subsequently accepted the Group’s recommendations that the post of Commissioner for Standards should be created and that a new Code of Conduct should be agreed. The new code and a new guide to the code both came into force at the start of the 2010 Parliament and the first Commissioner for Standards, Paul Kernaghan, was appointed shortly afterwards in June 2010.27

24 HC

Deb 27 May 2021, col 564. Commission, The Process to Challenge a Sitting MP: Review of the 2019 Recall Petitions (10 October 2019). 26 The current Code of Conduct for Members of the House of Lords, Guide to the Code of Conduct and Code of Conduct for Members’ Staff were agreed in 2009, 2010 and 2014 respectively, although each has been amended subsequently on numerous occasions. 27 Following his six-year term (three years renewed once), Kernaghan was replaced by Lucy ScottMoncrieff who served a non-renewable five-year term. In 2021 she was succeeded by two post-holders with identical responsibilities – Martin Jelley QPM and Akbar Khan. 25 Electoral

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The House of Lords Commissioner for Standards is responsible for the independent investigation of alleged breaches of the House of Lords Codes of Conduct for Members and Members’ Staff, including investigating breaches of the rules on members’ financial support and use of parliamentary facilities. Erskine May notes that: the House of Lords already had some scope within its existing Code of Conduct for Members to investigate allegations of bullying and harassment that were connected to the discharge of a Member’s parliamentary duties if that behaviour was considered to be a breach of the requirement that a Member should act always on their personal honour.28

But following the incorporation in 2018 of the new Behaviour Code into the Codes for Members and their staff, the Commissioner is now also responsible for investigating allegations about the way that peers and their staff treat those with whom they come into contact in the course of their parliamentary duties, including alleged breaches of the provisions on bullying, harassment and sexual misconduct. Having determined whether an allegation falls within his remit and whether there is sufficient justification to proceed, the Commissioner can choose to conduct an inquiry. Having concluded his inquiry the Commissioner may determine that the Member has not breached the code, require the Member to take remedial action for a breach or, where remedial action is inappropriate or cannot be agreed, make a report including a recommended sanction to the Conduct Committee (see below for more detail on the establishment of the committee). The Member concerned has a right of appeal to the Conduct Committee against the Commissioner’s findings and any recommended sanction, or, in a case of bullying, harassment or sexual misconduct, against the Commissioner’s findings. The Conduct Committee, having considered any appeal, and agreed an appropriate sanction, reports its conclusions to the House. The most serious sanctions – suspension and expulsion – require ratification by the House.

B. Disciplinary Powers In 2009, an investigation into allegations that four peers had been prepared to accept fees for tabling amendments to legislation, resulted in two – Lord Truscott and Lord Taylor of Blackburn – being suspended for the remainder of the session. But there was concern about the disciplinary powers of the House of Lords, and whether it was actually able to impose appropriate penalties against misconduct,

28 D Natzler, M Hutton, D Miller, S Patrick, C Johnson and A Sandall (eds), Erskine May: Parliamentary Practice 25th edn (London, Lexis Nexis UK, 2019) ch 5, 5.2.

The Law and the Conduct of Members of Parliament 49 such as expulsion or prolonged suspension.29 Following a Committee for Privileges inquiry into the upper house’s disciplinary powers, the House adopted the committee’s conclusion that: The House has no power, by resolution, to require that the writ of summons be withheld from a Member otherwise entitled to receive it; as a result, it is not within the power of the House by resolution to expel a Member permanently. The House does possess the power to suspend its Members for a defined period not longer than the remainder of the current Parliament.

This decision was superseded by the passage of two Private Members’ Bills, supported by the government, which sought to clarify the suspension and expulsion powers of the Lords. The House of Lords Reform Act 2014 allowed for expulsion on the grounds of either non-attendance or being subject to a prison sentence of more than a year, while the House of Lords (Expulsion and Suspension) Act 2015 gave the House an extended power of expulsion and a statutory right of suspension allowing suspensions to continue into a new Parliament. These powers were implemented in July 2015 via the passage of standing orders and have been exercised on a number of occasions since.

C. Lord Lester of Herne Hill On 12 November 2018, the House of Lords Committee for Privileges and Conduct upheld an allegation of sexual harassment against Lord Lester of Herne Hill and recommended that he be suspended from the House of Lords until June 2022. On 15 November 2018, following a heated debate, the House of Lords voted by 101 votes to 78 to refer the matter back to the Committee for Privileges and Conduct. The Committee’s original motion was amended to say that the Commissioner for Standards had failed to act in accordance with the principles of natural justice and fairness in reaching her conclusions on the case. It was argued during the debate that: • • •

the Lords’ disciplinary process lacked procedural protections for the accused that would be standard in other disciplinary contexts; cross-examination should have been allowed as part of the disciplinary process; and the standard of proof required to find a breach of the Code of Conduct should not have been ‘beyond reasonable doubt’ rather than ‘the balance of probabilities’.

The House of Lords Privileges and Conduct Committee subsequently agreed a follow-up report into the conduct of Lord Lester, arguing that the comments made

29 For

a fuller explanation, see Kelly, Hamlyn and Gay (n 24).

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in the debate criticising the Commissioner for Standards and the process of the original investigation were unfounded, and that: •

•

the House of Lords’ investigatory processes were deliberately designed to be inquisitorial rather than adversarial, many organisations did not allow crossexamination as part of their disciplinary processes, and that cross-examination was particularly problematic in cases of sexual harassment; as a Lords standards investigation was an internal disciplinary process, not a criminal trial, it was appropriate that the standard of proof should be the balance of probabilities, and that the Commissioner had treated it as a floor not a ceiling.

The committee reaffirmed its recommendation that the House should endorse the Commissioner for Standards’ finding that Lord Lester had breached the Code of Conduct and suspend him until June 2022. Lord Lester retired from the House on 11 December 2018, prior to the debate on the report (which took place on 17 December). Following the debate, the recommendation of a suspension was agreed to despite the fact that it could not take effect.30 In April 2019, following the Lord Lester case, the House of Lords agreed to amend the Codes of Conduct and the Guide to the Code to incorporate the Behaviour Code and to include specific processes for determining complaints of bullying, harassment or sexual misconduct. These included a right of appeal for complainants in these cases and a new standing order limiting the House’s ability to debate reports on the conduct of individual Members. At the same time, the Lords agreed to the recommendation of the Committee for Privileges and Conduct, to appoint a Conduct Committee, made up of five peers and four lay Members.31 The Conduct Committee took on the conduct functions of the Committee for Privileges and Conduct and the Sub-Committee on Lords’ Conduct. The Lords appointed the first four lay members – with the same speaking and voting rights as Lords members – on 29 October 2019. The House of Lords Conduct Committee has subsequently considered a number of cases. In July 2020 it found that Lord Stone of Blackheath had breached the Code of Conduct with behaviour that met the criteria for harassment related to the protected characteristics of religion, sex and age and sex on two different occasions.32 In December 2020 it recommended that Lord Maginnis of Drumglass be suspended from the House for at least 18 months for breaching the Code of Conduct by using homophobic and offensive language against four different complainants.33

30 HL

Deb 17 December 2018, col 1592.

31 Committee for Privileges and Conduct, Independent Complaints and Grievance Scheme: Changes to

the Code of Conduct (HL 2017–19, 335). 32 Conduct Committee, The Conduct of Lord Stone of Blackheath (HL 2019–21, 112). 33 Conduct Committee, The Conduct of Lord Maginnis of Drumglass (HL 2019–21, 185).

The Law and the Conduct of Members of Parliament 51

V. Members’ Expenses A. House of Commons The Parliamentary Standards Act became law on 21 July 2009 having been considerably amended on its passage through Parliament, including to exclude the House of Lords from its provisions and to ensure that nothing in the legislation would affect Article 9 of the Bill of Rights 1689. The Act provided for the establishment of IPSA and gave the new body responsibility for paying Members’ salaries, setting up an allowances scheme and paying allowances. The role of Commissioner for Parliamentary Investigations was created, to investigate ineligible payments and breaches of the rules relating to financial interests and an offence of ‘providing false or misleading information for allowance claims’ was created. Following a review of Members’ allowances by the Committee on Standards in Public Life, which reported on 4 November 2009, changes were made to IPSA’s role via the Constitutional Reform and Governance Act 2010. These also gave IPSA responsibility for determining Members’ pay and administering the Parliamentary Contributory Pension Fund, and made changes to the compliance regime – removing IPSA from any involvement in the Commons Code of Conduct for Members, and replacing the Commissioner for Parliamentary Investigations with a Compliance Officer.34

B. Compliance IPSA’s Compliance Officer is a statutory office holder who acts independently of IPSA’s executive, reporting to its Board, but not directed by them. The Compliance Officer has two main functions: first, to investigate if she has reason to believe that an MP may have been paid an amount under IPSA’s Scheme of MPs’ Business Costs and Expenses that should not have been allowed; and, second, to review a determination by IPSA to refuse an MP’s expense claim. Investigations may be initiated as a result of a complaint, following a request by IPSA or an MP or by the Compliance Officer. Reviews are requested by the MP whose expense claim has been refused. IPSA’ s annual report and accounts includes an annual report from the Compliance Officer. Her annual report for 2019–20 reports details of complaints handled in the previous five years. The number of investigations conducted has been very low, although over half of the investigations conducted in the past five years have resulted in a referral to the police (seven out of 13). The Officer observes that ‘in the last three years, there has been a downward trend in the number of

34 For

a fuller account of the establishment of IPSA see Kelly, Hamlyn and Gay (n 24).

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complaints received which may demonstrate a higher level of compliance with regards to the “Scheme”’. Table 2.1 Complaints received and investigated by Compliance Officer for IPSA 2015/16–2019/2035 No. of complaints received

No. of investigations conducted

No. of cases referred to the police

2015/16

21

3(1)

0

2016/17

25

1(2)

2

2017/18

52

1(0)

0

2018/19

41

0(0)

2

2019/20

33

3(2)

3

Year

* Number in brackets denotes a referral from IPSA resulting in formal investigation.

Occasional cases still make headlines. For example, in August 2021, former Sheffield Hallam MP Jared O’Mara was charged with seven counts of fraud by false representation, relating to an allegation that he had made fraudulent invoices to IPSA between October 2018 and February 2020. Nonetheless, the fact that such cases now hit the headlines after having been investigated and referred to the police, rather than following a leak or journalist’s scoop, means that public confidence in the system by which MPs’ expenses are administered can be greater. In general, public attention to MPs’ expenses has reduced dramatically since the creation of IPSA, and cases such as that of O’Mara or of Labour MP Andy McDonald, who was found to have failed to pass on money obtained from subletting his constituency office, are generally reported as indicative of a failing on the part of the individual concerned, rather than the system itself. The Compliance Officer’s annual report also includes a commentary on the reviews that were requested by MPs in the previous financial year. As with the number of complaints, the number of reviews requested and conducted has declined from a high of eleven in 2015–16 to just two in 2019–20.

C. House of Lords Since 2010 when the House of Lords agreed to introduce an allowance for each sitting day a peer attends the House, public controversy about Lords allowances has focused on the relative number of contributions to parliamentary proceedings by different members of the House, in comparison to their total

35 Independent Parliamentary Standards Authority, Annual Report and Accounts 2019 – 2020 (HC 1109) Part V, Table 3. Contains public sector information licensed under the Open Government Licence v3.0.

The Law and the Conduct of Members of Parliament 53 allowance claims.36 The level of the allowances was initially set at £150 or £300 (self-determined according to how long the member spent on parliamentary business), but in 2018 was pegged to the increase determined by IPSA for MPs’ salaries. In May 2020, during the pandemic, the maximum claimable allowance was halved to £162 to reflect the fact that most parliamentary business was taking place remotely and most peers were incurring fewer costs by not staying in London.

VI. Lobbying In 2014, when the Coalition Government agreed to legislate to increase the transparency of political lobbying, there was concern that the Transparency of Lobbying, Non-Party Campaigning and Trade Union Act 2014 might inadvertently catch lobbying by MPs on behalf of their constituents. The Act established a Registrar of Consultant Lobbyists but made clear that payment for consultant lobbying did not include salaries or allowances paid to MPs or peers. This did not, however, mean that an MP or peer who undertook activities outside their normal duties which might be defined by the Act as consultant lobbying, would be exempt from registering. If a parliamentarian was being paid to lobby on behalf of a client and held meetings with a minister, they would be expected to register such meetings, unless they were otherwise exempt from doing so. In 2021, the rules around lobbying came under renewed scrutiny following revelations about the lobbying of ministers undertaken by the former Prime Minister, David Cameron, on behalf of the finance firm Greensill Capital, which later failed. Cameron was employed directly by the firm, which meant he was not required to register as a consultant lobbyist. Having stepped down as an MP and minister he was no longer required to declare his income under the MPs’ Code of Conduct or the Ministerial Code. And as he began working for Greensill more than two years after leaving office, he was not required to seek permission from the Advisory Committee on Business Appointments (ACOBA). Although Cameron had not technically broken any rule, media coverage of his actions was very negative and prompted questions about the adequacy of lobbying regulation – in particular the rules governing former ministers, and transparency requirements placed on in-house lobbyists. The Cabinet Office appointed Nigel Boardman QC to investigate how the government had managed procurement in the context of COVID-19. He reported in August, making wide ranging recommendations on issues ranging from officials’ second jobs to transparency of ministers’ meetings and the national register of lobbyists.37 In early November the Committee on 36 P Duncan and D Pegg, ‘Peer who never spoke in Lords last year claimed £50,000 expenses’ The Guardian (30 May 2019) www.theguardian.com/politics/2019/may/30/labour-peer-never-spokehouse-of-lords-claims-50000-expenses (accessed 6 December 2021). 37 N Boardman, Review into the Development and Use of Supply Chain Finance (and Associated Schemes) in Government, Part 2: Recommendations and Suggestions (Cabinet Office 5 August 2021).

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Standards in Public Life published a wide ranging review of the standards landscape, including recommendations to give ACOBA a formal regulatory function, strengthening the scope of its rules and the sanctions available to it when former ministers and civil servants disregarded its advice. It also recommended improvements in the accessibility, timeliness and quality of the data the government publishes on lobbying.38 By early 2022, the government had not responded to the recommendations of these reports.

VII. Electoral Matters Following the June 2019 referendum on the UK’s membership of the EU, the Electoral Commission found that during the referendum campaign, Vote Leave, the designated lead campaigner for the leave outcome at the referendum, had committed multiple offences under electoral law. This included breaking the electoral rules set out by Parliament to ensure fairness, confidence and legitimacy at an electoral event. Vote Leave initially contested the finding but subsequently dropped its appeal and paid a £61,000 fine. The Electoral Commission also issued a number of fines against different organisations for breaches of campaign finance rules during the referendum, including the Liberal Democrat party, Leave.EU and Vote Leave. Some criticised the Commission for the low level of the fines it was able to impose. Other critics, including certain Leave-supporting politicians, attacked the Commission as politically biased on the basis that most of the cases it had pursued were against Leave-supporting campaigners. The government itself argued for tighter political control over the Electoral Commission and, in 2021, introduced an Elections Bill giving ministers the power to set the Commission’s strategic priorities and giving the Speaker’s Committee on the Electoral Commission the power to assess its compliance.39 Critics have argued that this will risk the independence of the Electoral Commission.

VIII. Conclusion The authors of this chapter in the previous edition of this volume argued that ‘The self-regulating nature of investigations into Members’ Conduct in both Houses may not survive one more major scandal.’ In the House of Commons at least,

38 Committee on Standards in Public Life, Upholding Standards in Public Life: Final Report of the Standards Matter 2 Review (2021). 39 The Bill also introduces a requirement for voter ID, creates an offence of intimidating a candidate or campaigner and makes changes to the rules about campaign funding and the franchise for overseas and EU voters.

The Law and the Conduct of Members of Parliament 55 their judgment has been vindicated – the #MeToo scandal prompted a further shift away from self-governance and towards external regulation of MPs’ behaviour in respect of bullying and harassment, via the creation of the Independent Complaints and Grievance Scheme and the Independent Expert Panel responsible for determining appeals and sanctions in the most serious cases. The necessity of making this shift was accepted with regret by the Leader of the House, Jacob Rees Mogg who said, on introducing the motion to give effect to the change: This is a dreadful position for us to be in as a House. The behaviour of a small number of Members of Parliament over years and decades has disgraced and shamed our parliamentary democracy, of which I, and many honourable Members, are so proud. Our ancient right that we should look after our own affairs is to be sacrificed, because the importance of restoring the trust of the British people in our system makes that the right thing to do.40

The Commons Standards Committee remains responsible for determining outcomes and sanctions on other serious offences committed under the Code of Conduct. However, the furore created by the Owen Paterson case has raised questions about the desirability of MPs sitting in judgment on their peers, particularly in relation to the Committee’s role in hearing appeals. Despite the introduction of lay members onto the Committee, more fully independent solutions for appeals processes have been under discussion, including extending the IEP solution adopted for bullying and harassment cases to all breaches of the code. At the same time, however, there are questions about the adequacy of the ICGS, following reports that former MP Keith Vaz, who the IEP has determined should never have the privilege of a former Members’ pass restored, might stand again for election in Leicester East. The fact that there would be nothing to prevent this despite the various serious findings against him, demonstrates the weakness in the purchase of the system on Members who choose to stand down before cases against them are determined. #MeToo also pushed the House of Lords further in the direction of external regulation, via the recruitment of lay members to its Conduct Committee, but the House continues to cleave to its tradition of self-governance – with peers retaining a majority on the committee and hence a determining influence over its decisions. Whether this remains a sustainable position, or whether – as in other matters discussed in this chapter – the House of Lords will find itself adopting similar innovations to the Commons some years down the track, remains to be seen. In the meantime, the continuing perception that peers are ‘marking their own homework’ on standards issues continues to pose a threat to the reputation of the House. The #MeToo scandal also led to the expansion of the boundary of the MPs’ Code of Conduct, which now includes bullying and harassment as offences

40 HC

Deb 23 June 2020, col 1247.

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amongst rules which had previously been limited to financial misconduct. There remains a case for further expansion of the Code to include wider aspects of MPs’ behaviour – including the possibility of investigating breaches of the Nolan Principles on Conduct in Public Life – although such an expansion would raise significant questions of capacity for the Parliamentary Commissioner for Standards who would be required to investigate breaches of a wider code. In the meantime, the Standards Committee has recommended the incorporation of an eighth principle of ‘Respect’ into the principles listed in the Code. Developments in the regulation of the conduct of parliamentarians in recent years have continued an existing trend away from self-governance and towards external regulation, echoing wider patterns in society and other professions. The manner in which these developments have come about has also reflected the normal pattern of change in the UK Constitution, with ad hoc changes to rules and the creation of new institutions normally happening only with the external impetus of a scandal. The perception that Parliament has had to be dragged towards developments which have already been adopted in other areas of society (including, for example, the legal and medical professions) continues to do unnecessary damage to the legislature’s reputation. As in other areas of the Constitution, the ad hoc process of change over time has resulted in an unsatisfactory patchwork of rules and regulators of parliamentarians’ conduct which is harder for MPs and peers to understand and risks gaps and overlap. The problem was illustrated by David Cameron’s lobbying on behalf of Greensill Capital, which did not break any rules but was nonetheless widely seen as unacceptable. The government’s response to the Boardman review may prompt further incremental changes which will address certain loopholes but are unlikely to do much to address the overall complexity of the system. Such a comprehensive review remains desirable but unfortunately the incentives on government to implement it remain weak.

3 Paying for Parliament COLIN LEE AND BEN YONG

I. Introduction This chapter examines the process by which the Houses of Parliament are funded, and the history of this process. In 2020–21, the two Houses of Parliament had a combined annual budget of just under £1 billion: the Commons administration had an annual budget of approximately £776 million; the Lords administration £182 million.1 The budget appears large, but in practice it is small compared to one of the big government spending departments, such as the Home Office (£16 billion in 2020).2 Still, the budget of Parliament matters, because it shapes the capacity of Parliament to carry out its functions (for instance, limited staff numbers may lead to inadequate scrutiny); and because it illustrates the wider limitations on parliamentary capacity for independent action. More generally, it is sometimes suggested that (in line with the separation of powers) parliamentary autonomy from the executive requires parliamentary control over its own budget.3 A discussion of how Parliament is funded and its history provides a useful insight on how constitutional principles like parliamentary autonomy develop; and the extent to which such constitutional principles are tempered by political practice. We use the term ‘budgeting process’ broadly to refer to the process by which the funding of the two Houses is scrutinised and determined, the constraints under which key actors make decisions about resource allocation, and the procedures by which these decisions are ratified.4 We shall not discuss Members’ salaries, staff or expenses in any detail, as this has been covered elsewhere, and in any case is

1 House of Commons, Annual Report and Accounts 2020–21 (2021 HC 316) 104; House of Lords, Annual Report and Resource Accounts 2020–21 (2021, HL 49) 57. As we note in section II, the House of Commons figure refers only to the House of Commons Administration Estimate. 2 HM Treasury, Central Government Supply Estimates 2020–21 (2020, HC 293) 80. 3 D Beetham, Parliament and Democracy in the Twenty-First Century: A Guide to Good Practice (Inter-Parliamentary Union, 2006) 117–19. 4 Technically, ‘the budget’ refers to actual operating costs, but we focus on estimated costs because most publicly available data comes from the estimates laid in the Houses.

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now largely distinct from the budgeting of Parliament’s administration;5 or the ongoing saga of the multibillion-pound Restoration and Renewal project of the Palace of Westminster (R&R is dealt with in chapter four). Rather, this chapter focuses primarily on the funding of the administration and running costs of the two Houses – that is, the costs of staff, services and infrastructure.

II. Historical Background A. Administrative Autonomy and its Limits, 1790–1970 Although both the House of Commons and the House of Lords have a high degree of financial autonomy, the path to that situation for both Houses has been uneven. For the House of Commons, the path has been shaped by legislation, but that legislation has been motivated in part by concerns about control within the administration rather than budgetary concerns. For much of the last two centuries, there has also been a gap between the formal exercise of financial control and the informal power exercised by the Chancellor of the Exchequer and Treasury officials. The House of Lords has followed a similar route, but one far less marked by legislative change. Its autonomy has resulted from the end of financial interference by the House of Commons, from a relatively low financial profile and by mirroring the administrative aspects of the financial autonomy gained by the House of Commons. Prior to the nineteenth century, the House of Commons had a partial and peculiar level of financial autonomy from government. Expenditure on the precincts of the Palace of Westminster were funded through the Civil List, but parliamentary officials relied largely on fee income, giving significant budgetary autonomy to the Clerk of the House and the Serjeant at Arms as the principal beneficiaries of those fees. Although private legislation represented the single largest source of fee income, the government paid fees to House officials for a key stage in the passage of its legislation and for other parliamentary activities such as printing and the staffing of select committees. In 1790, the first step away from this system was taken when the Speaker of the House of Commons was provided with a salary in place of the former reliance on fees and offices of profit.6 The first beneficiary of this Act, Henry Addington, was also architect of the House of Commons (Offices) Act 1800, under which a Commission was established, composed of the Speaker, the Chancellor of the Exchequer and certain other Ministerial Members of the House of Commons, to receive the fee income of the Clerk of the House, Clerk Assistant and Serjeant and use that to pay them 5 Members’ expenses is covered in R Kelly and M Hamlyn, ‘ The Law and Conduct of MPs’, in A Horne, G Drewry and D Oliver (eds), Parliament and the Law (Oxford, Hart Publishing, 2013) 89, 103–9. As we shall see, however, the House of Lords estimate does include peers’ expenses. 6 Speaker’s Salary Act 1790, 30 Geo 3 c 10.

Paying for Parliament 59 salaries set in statute, using the surplus mainly to provide additional income for retired or distressed staff.7 This Act corrected an abuse in the form of windfall profits available to senior officials. A subsequent Act in 1812 also precluded the appointment of a Deputy Clerk to act in place of the Clerk of the House alongside the distinct role of Clerk Assistant, a practice adopted by the Clerk of House John Hatsell from 1797.8 The role equivalent to the Clerk of the House in the House of Lords – that of Clerk of the Parliaments – had been exercised by Deputy since 1716 and proved a remunerative sinecure post for those in royal favour.9 This practice was ended by an Act passed in 1824, which precluded the future use of deputies, and provided for the holder of the post of Clerk Assistant in the Lords to become Clerk of the Parliaments when the patent rights expired. The same Act did not follow the same path of financial control as the House of Commons legislation, however, and in fact gave the Clerk of the Parliaments a statutory control over the establishment of the House of Lords which continues in effect to this day.10 The House of Commons (Offices) Act 1800 came into force in 1805, when the Serjeant at Arms retired, but it soon became apparent that the Act was defective, in that it did not prevent the new Serjeant receiving fee income in the separate role of Housekeeper. The 1812 Act remedied this defect.11 The Act came into full effect in 1820, following Hatsell’s death. During the 1820s, the Commission used the fee fund to pay the income of most senior officials and make provision for retired officials.12 The Commission established under the 1812 Act gradually assumed greater control over the establishment of the House of Commons. In response to a select committee which exposed the complexity of fees and allowances which supplemented the salaries of many officers, an Act of 1834 provided for fixed salaries.13 Following the recommendations of a subsequent select committee, an Act of 1846 provided for all expenditure on the establishment to be funded through an Estimate, with sums voted in respect of the total needed beyond fee income, and the contents effectively controlled by the Commission.14 These Estimates were initially treated as Miscellaneous Estimates distinct from the Civil Service Estimates, but a further Act of 1849 increased the role of the Treasury and the

7 House

of Commons (Offices) Act 1800, 39 & 40 Geo 3, c 92. of Commons (Offices) Act 1812, 52 Geo 3, c 11, s 14. 9 JC Sainty, The Parliament Office in the Seventeenth and Eighteenth Centuries (London, 1977) 6–7, 21. 10 Clerk of the Parliaments Act 1824, 5 Geo 4, c 82, ss 2, 3, 5. 11 52 Geo III, c 11. 12 See, eg, accounts for 1826–27, House of Commons Journal, Vol 82, 908. 13 Select Committee on Establishment of the House of Commons, Report from the Select Committee on Establishment of the House of Commons (1833, HC 648); An Act to regulate Salaries of Officers of the House and to abolish certain Sinecure Offices, 4 & 5 W4, c 70. 14 Select Committee on Printed Papers, Third Report from Select Committee on Printed Papers, relative to House of Commons Offices (1835, HC 606) 17–18; 9 & 10 Vict, c 77. 8 House

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Commissioners in the preparation of the Estimate, which became part of the Civil Service Estimates from 1850–51.15 The Commission first established to wrest budgetary control from officials of the House then became a means to provide a measure of autonomy once expenditure was authorised as part of the Civil Service Estimates. It was accepted that the role of the Treasury under the 1849 Act did not provide any sanction for the Treasury to alter the Estimates as signed off by the Speaker, which were treated distinctly from Estimates prepared by Ministerial departments in recognition of the fact that ‘the House is not part of the Executive’.16 In the Estimates published up to the 1960s, the Treasury formally eschewed control over remuneration: Treasury control over this Estimate is confined to items which do not relate to the personal remuneration and retired allowances of Officers of the House of Commons. General control is vested in the House of Commons Offices Commission.17

As that disclaimer implied, independence arising from the 1812 Act extended to salaries only. Thus, expenditure on books for the House of Commons Library was subject to direct Treasury control.18 In addition, the Treasury exercised indirect control in respect of salaries through the role of the Chancellor of the Exchequer as the dominant member of the Commission.19 When, in 1880, the Clerk of the House, Sir Thomas Erskine May, and the Speaker, Henry Brand, concluded that the salaries of Clerks lagged behind those of other public officials, they had to make a submission to William Gladstone, then Chancellor as well as Prime Minister. Gladstone provided an unsympathetic response, Brand reporting to May that the Chancellor ‘takes a decidedly “Treasury” view of our proposal’.20 Similarly, in 1886, Reginald Palgrave, May’s successor as Clerk, had to make a plea to Lord Randolph Churchill as Chancellor for more generous salary increments for messengers in his department, which Churchill rejected after taking advice from Treasury officials.21 Even in the 1950s, a female Hansard reporter raised directly with the Chancellor of the Exchequer her case for equal pay.22 The Chancellor’s role as a Commissioner 15 Select Committee on Miscellaneous Expenditure, Report from the Select Committee on Miscellaneous Expenditure (1848, HC 543) 13–14; Select Committee on House of Commons Offices, Report from the Select Committee on House of Commons Offices (1849, HC 258); 12 & 13 Vict, c 72; Estimates, &c, Civil Services, 1850–51, HC (1850) 256-II, 4–6. 16 Estimates Committee, Second Report from the Estimates Committee, House of Commons Library (HC 1960–61, 168) 69. 17 Select Committee on the Palace of Westminster, Report from the Select Committee on the Palace of Westminster (HC 1964–65, 285) 10. 18 Estimates Committee (n 16) para 5. 19 ibid, para 5 and Q 514. 20 The Parliamentary Archives (hereafter TPA), BRA/1/4/20, copy of Brand to Gladstone, 24 Nov. 1880; TPA, ERM/4/95, Brand to May, 17 Dec. 1880. 21 Cambridge University Library (hereafter CUL), Add MS 9248/15/1727, Palgrave to Moore, 30 August 1886; Churchill to Ponsonby, 6 Sept. 1886. 22 ‘Jean Winder: The first woman who won equal pay at Hansard’, BBC online 9 November 2018, www.bbc.co.uk/news/uk-politics-parliaments-46139815 (accessed 12 August 2020). The Chancellor’s reply was non-committal and it took nearly three years before Jean Winder secured equal pay.

Paying for Parliament 61 meant that he knew of any change that was being envisaged from the outset, even if it was an increase in a salary of 2½d.23 Although the House of Lords was not subject to a changing statutory framework in the same way as the Commons in the Victorian era, it adopted the same path whereby expenditure was authorised through the Estimates. In 1888–89, for example, the Estimates for salaries and expenses of House of Lords Offices (including the Lord Chancellor) were greater than those of the Commons.24 At a time when Estimates were debated at length prior to authorisation, this opened up such expenditure to scrutiny within the House of Commons. Thus, in 1893 an MP noted unfavourably that the salary of the Clerk Assistant in the House of Lords was greater than that of the Clerk Assistant in the Commons.25 In 1899, the Marquess of Salisbury conceded in a letter to the Duke of Devonshire that the House of Commons had a say in Lords personnel matters ‘by the ordinary operation of the power of the purse’.26 In 1919, the House of Commons refused to authorise expenditure for the installation of a second bathroom for the Lord Chancellor as an example of that operation.27 In 1931, the partial budgetary independence of the two Houses was subject to assault by the Committee on National Expenditure appointed by the Labour Government in 1931, chaired by Sir George May.28 Without supporting evidence or extended analysis, it recommended that the salaries of officers of the Commons and Lords ‘should in future be subject to the sanction of the Treasury’.29 One Commons official suggested to the Committee of Public Accounts that it would be ‘disastrous if the House of Commons delegated its control of its own officials in any way to any Government Department’.30 That Committee agreed, arguing that the recommendation of the May Committee was ‘open to serious objection on constitutional grounds’, noting that ‘the House has always jealously preserved the independence of its officers’ and considering that ‘any course which might tend to impair their independent position is constitutionally objectionable as well as financially unnecessary’.31 While formal encroachment was prevented, the potential for informal encroachment by means of the Chancellor’s role on the Commission remained.

23 Estimates

Committee (n 16) Q 532. for Civil Services for the year ending 31 March 1889 (1888, HC 72) 87–94. 25 HC Deb 5 September 1893, col 165. The MP was Robert Hanbury; he was brother-in-law of the Clerk Assistant in the House of Commons. 26 Devonshire MSS, Chatsworth, CS8/340/2814, Salisbury to Devonshire, 23 Dec. 1899. 27 HC Deb 31 July 1919, cols 2322–33. 28 The Committee was a cross-party Committee and arose in part from a resolution of the Commons, but was not a parliamentary body: Report from the Committee on National Expenditure, Cmd 3902, July 1931, 5. The Report quoted was the majority Report; Labour members of the Committee produced a dissenting minority Report. 29 ibid, 24. 30 Committee of Public Accounts, First and Second Reports from the Committee of Public Accounts (HC 1931–32, 42) 93, Q 610. 31 ibid, xii. 24 Estimates

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In 1961, the Treasury admitted that their officials advised the Chancellor as a member of the Commission ‘in the same way as they would advise him as a Minister on a Government matter’.32 Almost all the Commission’s work was conducted by correspondence.33 In 1961, the Clerk of the House, Sir Edward Fellowes, described what happened in the rare cases where disputes arose between the Chancellor and Speaker: ‘there is a full meeting of this very high powered Commission and with differing results: sometimes the Chancellor wins, but I have known Mr. Speaker beat the Chancellor on occasions when it comes to it’.34 However, the position was seen as less happy by the next Clerk of the House. In 1967, Sir Barnett Cocks described in detail to a sub-committee how his request for increased staffing in his department had been cut back by the Treasury, and how he had been forced to institute further reductions in response to a Treasury direction. He described the ‘present situation’ as one where ‘the House is treated as a subordinate Government Department so far as finance is concerned’. He quoted a letter from the Chancellor which made clear that he viewed Treasury officials as entitled to refuse the Clerk’s case for increased staffing.35 Cocks portrayed the 1812 Act as one which ‘supposedly protects the House from interference in staff matters by the Treasury’, but argued that the Treasury had got round this by drawing on the Chancellor’s role as a Commissioner. The Commission had become ‘virtually a dead letter’, because the Chancellor by custom always attended meetings of the Commission briefed by Treasury officials: ‘The Speaker is chairman, but he has no authority as against the Chancellor.’36 Drawing on that evidence, a 1974 study concluded that ‘Treasury influence can … be very effectively wielded via the Chancellor’s presence on the Commission’ and that the note to the Estimates cited earlier did not ‘accurately reflect the actual situation’.37 A solution of sorts to the issues that had arisen about Treasury interference in salaries was found in February 1970, when the Commission approved an arrangement, known as the ‘Statement of Principles’ whereby financial control was delegated to the Clerk as Accounting Officer, subject to the following requirement: To the maximum extent consistent with the requirements of the House, the conditions of service of staff of the House are … to be kept broadly in line with those of staff in the Home Civil Service.38

32 Estimates

Committee (n 16) 69. Q 506; Science and Technology Committee, Minutes of Evidence taken before the Science and Technology Committee Sub-Committee on Coastal Pollution (1967–68, HC 167-vi) QQ 739–741. See also Select Committee on the Palace of Westminster (n 17) 10. 34 Estimates Committee (n 16) Q 514. 35 Science and Technology Committee (n 33) QQ 722–724. 36 ibid, QQ 739–741. See also Select Committee on the Palace of Westminster (n 17) 10. 37 M Rush and M Shaw (eds), The House of Commons: Services and Facilities (London, George Allen & Unwin, 1974) 29. 38 Review of the Administrative Services of the House of Commons: Report to Mr. Speaker by Sir Edmund Compton (1974, HC 254) (‘the Compton Report’), para 3.3; Rush and Shaw (n 37) 30. 33 ibid,

Paying for Parliament 63 This meant, according to a later analysis by an official in the Civil Service Department (CSD), that ‘the House Authorities no longer had to seek the authority of the Chancellor (in practice CSD officials) as a Commissioner for changes in pay and grading of staff ’.39

III. The House of Commons (Administration) Act 1978 Financial autonomy in recognisably modern form was achieved by the House of Commons through the House of Commons (Administration) Act 1978, but that Act arose to some degree from concerns within the House itself about its internal organisation and senior appointments. The budgetary provisions were effectively chosen by the Treasury, which decided that the appearance of financial control without the reality that resulted from the 1970 Statement of Principles was almost the worst of all worlds. The costs of accommodation and works in the Palace of Westminster had long remained under the control of government rather than either House, with a minister holding the Office of the Keeper of the Palace of Westminster from 1884.40 The only House of Commons official involved was the Serjeant at Arms, who was appointed by the Crown without reference to the Commons, determined the House’s requirements and submitted them to the Ministry of Works, to be subject to Treasury scrutiny along with other Estimates proposals.41 A Select Committee which examined these arrangements in 1953–54 concluded that the system ‘does not afford the House sufficient say in the preparation of those Ministry of Works draft Estimates that relate to their requirements’.42 In 1965, the Prime Minister Harold Wilson announced the control of accommodation and services in the Commons end was to be vested in the Speaker in place of the Lord Great Chamberlain, and at the Lords end in the Lord Chancellor.43 A Select Committee was established to consider how the Speaker might be advised, which led to the establishment of a sessional House of Commons Services Committee, with four sub-committees.44 A study of this system in 1974 noted, however, that ‘It would be misleading to assume that there is a clear line of authority below the level of the House of Commons itself in the administration of, and responsibility for, services and facilities.’45

39 The

National Archives (hereafter ‘TNA’), T 371/532, Light to Robson, 5 April 1976, para 4. T 371/532, Seller to Townley, 18 January 1978. 41 Select Committee on House of Commons Accommodation, Report from the Select Committee on House of Commons Accommodation, &c (HC 1953–54, 184) paras 25, 49. 42 ibid, para 49. 43 HC Deb 23 March 1965, cols 328–329; Rush and Shaw (n 37) 31–32. 44 Select Committee on the Palace of Westminster (n 17) paras 15–17; Rush and Shaw (n 37) 33–35. 45 Rush and Shaw (n 37) 34. 40 TNA,

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An important legacy of the 1954 Committee came in the form of the proposal for a fresh approach to parliamentary governance beyond the matter of accommodation. It concluded that the Commissioners under the 1812 Act should be replaced by a body of experienced Members drawn from the House who would undertake not only the present functions of the Commissioners with regard to staff, but also wider duties in relation to the accommodation and management of the House.46

They recommended that this body would be established by statute, called the House of Commons Commission, chaired by the Speaker, and should include the Leader and Shadow Leader of the House, ministers from the Treasury and the Ministry of Works and at least nine other Members. The House of Commons Estimate should include matters currently within the Ministry of Works Estimate and the Commission should prepare a report to inform preparation of the Estimate.47 In October 1973, Speaker Selwyn Lloyd commissioned an independent review of administrative services of the House of Commons to be conducted by Sir Edmund Compton, which solicited recommendations which might require legislation.48 Although the Speaker’s main concerns, and the focus of the subsequent Report, related to the internal organisation of the House Service and the system for appointments, this set in train events that led to the 1978 Act.49 The Compton Report acknowledged that the functions of the 1812 Commission were ‘spent’ in view of the Statement of Principles of 1970, but did not propose new machinery in its place and missed the significance of the fact that the Chancellor’s only locus derived from the 1812 Act.50 Members and officials were both unhappy with the Compton proposals, which they felt left them ‘powerless’: it meant that ‘the services of the House would be run like a Government Department and staffed by civil servants’.51 Although the Compton Report was not generally welcomed, it was envisaged that the Report would be referred to a Committee of MPs,52 and it was that further review for the Speaker, composed of Members of the House and with a Clerk, Michael Ryle, providing the secretariat along with a Cabinet Office official, that provided the impetus for change.53 This Committee, which was chaired by Arthur

46 Select

Committee on House of Commons Accommodation (n 41) para 51. paras 52–58; Rush and Shaw (n 37) 32–33. 48 For an analysis of the Compton Report and its origins, see G Lock, ‘ The Administrative and Statutory Framework’, in M Rush (ed), The House of Commons: Services and Facilities, 1972–1982 (Policy Studies Institute, 1983) 8–10. 49 The Compton Report (n 38) para 1.1. 50 ibid, para 6.41; TNA, T 371/532, Light to Robson, 5 April 1976, para 5. 51 Michael Ryle interviewed by Gloria Tyler C1135/13/01-02, British Library recording (4 February 2003); HC Deb 12 April 1978, col 1568. 52 M Rush, ‘Introduction’, in Rush (n 48) 3. 53 Ryle interview (n 51). The Cabinet Office official, Michael Townley, also took the lead in preparation of the Bill. 47 ibid,

Paying for Parliament 65 Bottomley and which reported in August 1975, rejected the idea that the 1812 Commission should be abolished without alternative provision.54 Instead, that Committee recommended the creation of a Commission very like that envisaged by the 1954 Committee except much smaller, which would serve as employer for a reorganised and unified House of Commons Service.55 On the specific issue of funding, the Bottomley Committee recommended that the Commission be responsible for the House of Commons Estimate, with the Leader of the House alone representing the government on the Commission, from which the Chancellor would be excluded, although the Committee claimed that the Chancellor would still ‘examine and approve the House of Commons Vote’. The Committee considered that these steps ‘would considerably strengthen the control of the House over the development its own services and facilities’.56 As Michael Foot was later to tell cabinet colleagues, the Bottomley Report offered a good prospect of moving towards the unification of the administrative services of the House with the necessary measure of good will of the staff affected, which would not have been likely to be forthcoming had the more radical Compton proposals been adopted.57

The main focus of the Bottomley Report was on the internal organisation of the House Service, the age of retirement and senior appointments.58 The approach to the question of funding was low key, and the Committee emphasised that the legislation to establish the new Commission should ‘be kept to the minimum’.59 Funding questions were also subordinate to issues of organisation and services in a subsequent debate in the House in December 1975, although the minister replying did effectively acknowledge the duty of ministers to introduce legislation to repeal the 1812 Act and establish the new Commission.60 In March 1976, Ted Short, the Leader of the House of Commons, wrote to the Chancellor of the Exchequer, Denis Healey, indicating his wish to legislate to give effect to the Bottomley Report and seeking his view on the proposed exclusion of the Chancellor of the Exchequer from the new Commission. He also sought the Chancellor’s view on whether the government needed to retain any control over Commons staffing arrangements as part of new legislation. The Chancellor was advised that the effect of the Bottomley recommendations would be to remove all Treasury control – with its role ‘reduced to little more than a rubber-stamping

54 Report to Mr Speaker by Committee under Chairmanship of Mr Arthur Bottomley MP (1974–75, HC 624) (‘the Bottomley Report’) para 3.3. 55 ibid, paras 4.2, 4.4, 4.6-4.7; Lock (n 48) 10. 56 The Bottomley Report (n 54) paras 4.7, 4.11. 57 TNA, T 371/532, Lord President memorandum to Prime Minister. 27 August 1976, para 8. 58 For a broader analysis of Compton and Bottomley, see B Yong, ‘ The Governance of Parliament’, in A Horne and G Drewry (eds), Parliament and the Law 2nd edn (Oxford, Hart Publishing, 2018) 75, 83–84. 59 The Bottomley Report (n 54) paras 81–82. 60 HC Deb 4 December 1975, cols 1955–79.

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exercise’ – but it was noted that the 1970 Statement of Principles had already relinquished effective control over salaries. While the Treasury retained notional control over expenditure other than salaries, such as the catering grant and overseas travel by select committees, this control was ineffective and the Chancellor’s subsequent role in approving the Estimate once the Commission had finalised it but before laying it before the House as proposed by the Bottomley Report was described as a ‘fiction’ and ‘quite unrealistic’: ‘any attempt to control expenditure at that stage would at once raise a major constitutional difficulty between the Executive and the Legislature’. The conclusion was as follows: ‘It is arguable that there would be merit in making the Legislature fully accountable for its expenditure, including the presentation of its own Estimates.’61 Healey replied to Michael Foot, Ted Short’s successor as Leader in April 1976, agreeing to be excluded from the new Commission, provided that steps were taken to avoid ‘perpetuating the fiction of Government control by Treasury Ministers’.62 Late in August 1976, Michael Foot sought agreement from Cabinet colleagues to prepare a Bill to give effect to the recommendations of the Bottomley Report. He endorsed the proposal from the Chancellor that ‘the House of Commons Estimates should in future be presented by the Commission and that … the new Commission should have full responsibility for all items of expenditure covered by the House Vote’.63 In November 1977, Foot was able to confirm the government’s intention to legislate to give effect to the Bottomley Review.64 In July 1977, the Expenditure Select Committee produced a Report which effectively restated the Bottomley Report and the approach proposed by the Chancellor the previous year in slightly more incendiary language: It is, in our view, undesirable that final control over … parliamentary staff should be vested in the Treasury and Civil Service Department, as to a considerable extent it currently is … We believe that the [new House of Commons] Commission should discharge in relation to the services of the House the functions discharged by the Treasury in relation to other Estimates. This would place the House of Commons in the position of many other legislatures in determining its own expenditure upon its own staff.65

This recommendation set off vigorous internal discussions within the Treasury about the wisdom of surrendering the last elements of control, with one official concerned it might lead to ‘a large staff which would permit the development of

61 TNA,

T 371/532, Light to Robson, 5 Apr. 1976. T 371/532, Healey to Foot, 22 Apr. 1976. T 371/532, Lord President memorandum to Prime Minister. 27 Aug. 1976, para 10. 64 HC Deb, 17 Nov. 1977, col 767. 65 Expenditure Committee, Eleventh Report from the Expenditure Committee, The Civil Service (1976–77, HC 535-I) para 159. 62 TNA, 63 TNA,

Paying for Parliament 67 select committees on the US congressional model’.66 In response, other officials implied that the Treasury would do well to end its position of financial responsibility without effective financial control.67 The Bill as introduced on 14 March 1978 gave effect to the Treasury proposal on the Estimates, with Clause 3(1) providing: For the year 1979–80 and each subsequent financial year the Commission shall prepare and lay before the House of Commons an estimate for that year of the expenses of the House departments and, to such extent as the Commission may determine, of any other expenses incurred for the service of the House of Commons.68

The Bill made a relatively swift passage through the House between April and June 1978.69 The Bill passed the Lords without amendment and received Royal Assent on 20 July.70 The autonomy on funding was generally welcomed, not least in the context of the work of select committees, where the existing arrangements were seen by Sydney Irving as ‘a crippling form of arrangement if the Select Committees are really to do a full-blooded job of challenging the Executive’.71 As with its genesis, funding issues were very much subordinate during the debates on the Bill to questions of internal organisation and staffing. The provisions as enacted on funding were identical to those in the Bill as introduced.72 As was noted at the time, the new arrangement whereby the Commission itself was to present the Estimate to the House of Commons was not specifically recommended in the Bottomley Committee’s report, although it is entirely consistent with its general tenor. The proposal was introduced into the Bill on the initiative of Treasury Ministers, and recognises the de facto independence which the House at present largely possesses in staffing matters.73

It was subsequently endorsed by Arthur Bottomley, who acknowledged that the government had gone further than his report in this regard: ‘We shall only have ourselves to blame in the future if the services are insufficient but, equally, we have a full sense of the importance of economy in public expenditure, in the same way as the Treasury has.’74

66 TNA,

T 371/532, Rawlinson to Anson, 4 Nov. 1877.

67 TNA, T 371/532, Anson to Rawlinson, 22 Nov. 1977; TNA, T 371/532, Cousins to Downey, 24 Nov.

1977. 68 HC Bill 83 of Session 1977–78; CJ (1977–78) 239. 69 HC Deb 12 April 1978, cols 1553–94; Commons Journal (1977–78) 279, 294, 333, 417. For an analysis of the Bill and proceedings on it, see Lock (n 48) 10–11. 70 Commons Journal (1977–78) 479–480. 71 HC Deb 12 April 1978, col 1564. 72 House of Commons Administration Act 1978, c 36, s 3(1). 73 TNA, T 371/532, Briefing for Parliamentary Question on 3 April 1978. 74 HC Deb 12 April 1978, cols 1557, 1569.

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IV. Key Developments in Both Houses Since 1979 Bottomley’s words foreshadowed the actions of the Commission in the early 1980s, when Bottomley himself was a member of the Commission. Its third annual report noted that The Commission take the view that, subject to the continuing need for the House to exercise its primary function of controlling the Executive, it should observe the same financial restraints as operate in the public service generally.

It noted that experience of the initial delegation agreed in 1979 ‘had shown that the Commission itself was unable to exercise total control in key areas, on the occasions when this seemed appropriate’. This led to a much more restrictive instrument of delegation, alongside ceilings on the ‘sensitive subject’ of select committee overseas travel and rejected applications for travel to international assemblies and outside conferences.75 Financial autonomy was not a recipe for unrestrained spending. From its establishment until 1992, the House of Commons Commission was responsible for expenditure only on the services provided by Departments of the House, and some miscellaneous expenditure for the direct benefit of Members. Expenditure on printing, publications and the upkeep of parliamentary buildings was met by government. This was to change after the Commission agreed in May 1990 to a proposal from Sir Geoffrey Howe, then Leader of the House, to ask Sir Robin Ibbs, formerly an efficiency adviser to the Prime Minister, to lead a review of management and facilities of the House. As a result of the Ibbs Report, the Commission assumed responsibility from 1 April 1992 for all expenditure for the provision of services to the House, including printing and publication (from Her Majesty’s Stationery Office) and the maintenance and development of the Commons element of the parliamentary estate (from the Department of the Environment – successor to the Ministry of Works). Again, this enhanced control did not lead to a dramatic change in financial approach: although the government did not have a voting majority on the Commission, that body continued to abide by a self-denying ordinance that it would not commit spending to new services unless approved in principle by the House itself. To accompany these changes, and to enable legal ownership of the Estate to pass to Parliament, the Parliamentary Corporate Bodies Act 1992 was passed, whereby the Clerk of the Parliaments and the Clerk of the House of Commons were established as Corporate Officers, able to acquire and hold property and enter into legal contracts on behalf of their respective Houses.76 75 House of Commons Commission, House of Commons Commission: Report for 1980–81 (HC 1980–81, 385) paras 3, 9, 12–13. 76 W Proctor, ‘Implementing Ibbs’ (1992) 60 The Table 66; Yong (n 58) 84–85.

Paying for Parliament 69 The Ibbs Review also set a pattern of periodic reviews being undertaken of the administrative organisation of the Commons Service and the limitations of control through domestic committees, including the Braithwaite Review (1999) and the Tebbit Review (2007).77 These did not address the role and composition of the Commission. The same cannot be said of the Straw Review – formally the House of Commons Governance Select Committee – which was the first review undertaken by MPs since Bottomley and which led to the addition of two official members to the Commission (the Clerk and a Director General) and a statutory duty on the Commission to set strategic priorities for House services through the House of Commons Commission Act 2015.78 With the exception of the Parliamentary Corporate Bodies Act 1992 and the Parliamentary (Joint Departments) Act 2007, the Lords was relatively untouched by legislative reforms affecting governance. The financial arrangements of the House of Lords continued to evolve without being shaped by new legislation in the manner of the Commons. Like the Commons, the Lords developed a system of domestic committees to provide an element of Member involvement in the provision of services and facilities, with reforms in 1991–92 flowing from the Ibbs Review and further changes in 2000–02 and 2007. The most significant changes arose from the Leader’s Group on Governance in 2016, chaired by Baroness Shephard of Northwold, which led to the creation of the structure described in the following section.79

V. What is the Budget? A. Overview This section discusses the current process for the budgeting of the two Houses of Parliament – specifically, the funding for the House of Commons and the House of Lords. But there are a number of complications in doing so. First of all, Parliament is funded via a number of separate streams, which makes it difficult to talk about what constitutes Parliament’s ‘budget’.

77 House of Commons Commission, Review of Management and Services (HC 1998–99, 745) (‘the Braithwaite Review’); Review of Management and Services of the House of Commons (2007, HC 685) (‘the Tebbit Review’). 78 House of Commons Governance Committee, House of Commons Governance (2014, HC 297) (‘the Straw Review’); see also Yong (n 58) 85–87. 79 M Rush and D Jones, ‘Services and Facilities’, in D Shell and D Beamish (eds), The House of Lords at Work (Oxford, OUP, 1993), 308; M Torrance, ‘Governance and Administration of the House of Lords’, House of Lords Library briefing, 30 November 2021.

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•

•

• •

•

the House of Commons Administration Estimate: this covers the costs of general House administration, and includes such matters as ‘the cost of House staff, office accommodation in Westminster, running and maintaining the Parliamentary estate, printing, security, broadcasting, IT and catering’80 (in 2020–21, this came to £776 million);81 the House of Commons: Members Estimate: this used to include MPs’ salaries, staff and expenses (and which has now been transferred to the Independent Parliamentary Standards Authority), but now only covers (amongst other matters) the cost of financial assistance to opposition parties (Short Money), a proportion of payroll costs for the Deputy Speakers, and the Treasury contribution towards the Parliamentary Contributory Pension Fund (in 2020–21, this came to £17 million);82 the Independent Parliamentary Standards Authority (IPSA) Estimate: this covers MPs’ salaries, staff and expenses (in 2020–21, this came to £225 million);83 the Parliamentary Works Sponsor Body Estimate: this covers the costs of the Sponsor Body for Restoration and Renewal, as established under the Parliamentary Buildings (Restoration and Renewal) Act 2019 (in 2021–22 this was set at £156 million);84 the House of Lords Estimate: this covers peers’ expenses, House staff, services (including shared services with the Commons) and infrastructure costs (in 2020–21, this came to £182 million).85

These separate estimates are not drawn together into a single consolidated set of figures. There are also supplementary estimates for each of these streams: additional claims for funds made later in the financial year. Of the estimates above, we

80 House of Commons Finance Committee, House of Commons Financial Plan 2019/20 to 2022/23 and Draft Estimates 2019/20 (2018, HC1761) para 3. The Administration Estimate can be found here: www.parliament.uk/business/publications/commons/house-of-commons-supply-estimates/ (accessed 19 January 2022) 81 House of Commons, Annual Report and Accounts 2020–21 (HC 2020–21, 316) 104. 82 HM Treasury, Central Government Supply Estimates 2020–21 (HC 2020–21, 293) 590. The House of Commons: Members Estimate is relatively uncontroversial and tiny relative to the other estimates. The broad process for determining the Members’ Estimate is the same for the Administration Estimate: that is, the Estimate is prepared by the Commons Finance Committee; and the ultimate body determining the estimate is the House Commission (although constituted as the Members Estimate Committee). 83 Independent Parliamentary Standards Authority, Supply Estimate (2021, HC 328). 84 Parliamentary Works Sponsor Body, Supply Estimate 2021–22 (2022, HC 131). 85 House of Lords, Annual Report and Resource Accounts 2020–21 (2021, HL 49) 57.

Paying for Parliament 71 shall only cover the House of Commons Administration Estimate and the House of Lords Estimate. These two estimates cover the core costs of parliamentary administration for the two Houses. Second, publicly available information about the funding of the Houses of Parliament is limited. The Houses’ estimates are published,86 but these are blunt numbers, and provide very little information about the allocation of resources internally. The annual report and accounts of each House are a better tool, which do provide a statement of parliamentary supply, set out in more detail how resources are allocated, and provide some discussion of how money has been spent.87 But the annual reports and accounts say little on the process by which figures were arrived at, or the range of choices open to decision makers, and who in fact the decision makers actually are. The Commons Finance Committee has very occasionally published reports which do set out some of the considerations underlying budgeting decisions.88 For simplicity’s sake, estimates from the annual reports and accounts for both Houses are used here. This was then supplemented by a number of confidential interviews carried out with key actors in the two Houses between 2019–21: two MPs, two peers, four Commons officials and three Lords officials. Interviewees were chosen on the basis of their past or current role in the budgeting process – as chair or clerk of a finance committee, for instance; or a senior parliamentary official involving in the budgeting process.

B. Key Actors A short discussion of the Houses’ governance arrangements is necessary, because the budgeting process is intimately connected with governance.89 Figures 1 and 2 below set out the governance arrangements for the two Houses.

86 See, eg, www.parliament.uk/business/publications/commons/house-of-commons-supply-estimates/ (accessed 19 January 2022). 87 These can be found at www.parliament.uk/business/publications/commons/resourceaccounts/; and www.parliament.uk/business/lords/house-lords-administration/how-the-lords-isrun/business-and-financial-information/business-plans-annual-reports-and-accounts/ (accessed 19 January 2022). 88 The last report of the Commons Finance Committee was published in 2018: House of Commons Finance Committee, House of Commons Financial Plan 2019/20 to 2022/23 and Draft Estimates 2019/20 (2018, HC 1761). Prior to this, the Commons Finance Committee during the Coalition Government years (2010–15) also published reports, but these were exceptional. Reports have also been on occasion accompanied by debates: see, for instance, HC Deb 21 November 2013, col 1386; HC Deb 11 November 2014, col 1333. The House of Lords Finance Committee does not publish reports. 89 For a more in-depth discussion of governance, see Yong (n 58).

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Figure 3.1 The House of Commons Governance Arrangements

Governance Structure Speaker’s office

Supports

Consultative Panel on Parliamentary Security

Advises Speaker Advises

Chairs

Works of Art Committee

Commission Chairman: The Speaker

Administration Estimate Audit & Risk Assurance Committee

Appoints

Attends Assures

Clerk of the House

Director General

Commons Executive Board

Manages

Chairs

Delegates power to

Administration Committee

Advises Advises

Finance Committee

Chamber and Committees

Finance, Portfolio and Performance

Governance and Central Services

HR and Diversity

Independent Complaints and Grievances Scheme*

In-House Services and Estates

Parliamentary Digital Service*

Parliamentary Security Department*

Participation

Research and Information

Source: House of Commons, Annual Report and Accounts 2019–20 (HC 580, 2020), 44. Contains public sector information licensed under the Open Government Licence v3.0.

Paying for Parliament 73 Figure 3.2 The House of Lords Governance Arrangements Our governance Lord Speaker

Senior Deputy Speaker

Chairs Deputy chairs

HOUSE OF LORDS COMMISSION Appoints and delegates functions

FINANCE COMMITTEE Delegation functions

SERVICES COMMITTEE Sets strategic direction

AUDIT COMMITTEE

Advises

Clerk of the Parliaments

Chairs

Management Board

Represents

House of Lords Functions Parliamentary Services

Financial Resources

Human Resources

Joint/Bicameral Corporate Services

Department of Facilities

Parliamentary Digital Services

Parliamentary Security Department

Source: House of Lords, Annual Report and Resource Accounts 2019–20 (HL 110, 2020), 5. Contains public sector information licensed under the Open Government Licence v3.0.

Briefly, each House has a level consisting of parliamentarians and a level consisting of officials. The political level operates primarily by consensus and has multiple levels of political authority. It consists of a Commission which is politically responsible for the maintenance of House staff and infrastructure – which includes the budget. It is supported by a set of domestic committees. The administrative level consists of officials responsible for the implementation of Commission decisions

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and policies: there is a Board, and underneath that a set of House departments. Below we set out the roles of four key actors in the process.

i. The Commission Each House has a political governing body – a Commission. The Commons Commission has a statutory basis, and its duties are statutory;90 the Lords Commission is non-statutory.91 Both are responsible for staffing, setting the strategy of their respective House service or administration and (in the Commons) the laying of the administration estimate.92 Each Commission is chaired by the presiding officer; and consists primarily of parliamentarians, with two non-executive members to provide constructive challenge. In the Commons, parliamentarians include a cross-party selection of the Leader and Shadow Leader of the House, two additional Members from the two large parties and a Member from the smaller parties. In the Lords, membership is more complicated, and includes the Lord Speaker, the Senior Deputy Speaker, the Leaders of the three key parties and the Convenor of the Crossbenchers, the chairs of the Finance and Services Committees, and two backbench peers. Parliamentarians are selected through the usual channels – there is no election. In theory, each Commission is the ultimate decision-maker in budgetary matters.

ii. The Finance Committee and the Audit Committee Advising each House Commission are a set of committees which scrutinise the internal or ‘domestic’ business of the House; they are separate from select committees which scrutinise the executive. For our purposes, there are two key committees in each House which are important to the budget process: the Finance Committee and the Audit Committee. In both Houses, the Chairs of the Finance and Audit Committees sit on their respective Commission.93 This arrangement encourages better coordination between the Commission and the committees. The Finance Committees are more important for the budget process: they do most of the work in preparing the relevant estimates for the Commission.94 They also monitor and

90 House

of Commons (Administration) Act 1978, s 1.

91 House of Lords, External Management Review (2021). A rare debate was held on the Lords’ govern-

ance and administration recently, which included a discussion of whether the Lords Commission should be put on a statutory basis: HL 8 December 2021, col 392GC. 92 For the House of Commons Commission, see House of Commons (Administration) Act 1978, ss 2–3. 93 However, the last two chairs of the Commons Finance Committee – Chris Bryant (2017–19) and Lilian Greenwood (2020–21) and both from Labour – did not sit on the Commission. 94 The Commons Finance Committee remit can be found in the House of Commons Standing Order 144. The Lords Finance Committee remit can be found here: committees.parliament.uk/committee/364/finance-committee-lords/role/ (accessed 19 January 2022).

Paying for Parliament 75 scrutinise the financial performance of the House service or administration; and report to the Commission on the financial and administrative implications of any significant proposals. The Finance Committee is usually chaired by an opposition parliamentarian;95 composition is determined by party proportion in the House; and Members are selected by the usual channels. The role of the Audit Committees96 is to ensure proper governance, risk management and internal financial control and audit (and in the case of the Commons, the external audit as well). They support both the Commission and the relevant Accounting Officer as well. The chairs of both Audit Committees are lay members; but otherwise the composition of the Audit Committee is determined by party proportion in the House, and members are selected by the usual channels. The finance and audit committees’ roles overlap to some extent. The Finance Committee looks at past expenditure as part of its remit; but the Audit Committee is more concerned with overall processes such as governance, audit and risk management.

iii. The Executive Board (Commons)/Management Board (Lords) The Board provides advice to the Commission, and ensures implementation of Committee policies. But it is also a place where the different House departments can negotiate between themselves how limited resources should best be allocated. This is usually chaired by the most senior official of the House (in the Commons, the Clerk of the House;97 in the Lords, the Clerk of the Parliaments), and consists of senior officials from key departments of the House service or administration – such as the Library, the chamber and committee services, the Finance Department and so on.

iv. The Finance Department The Finance Department provides accounting and financial services for the House. This includes financial management and reporting; resource and cash management. It is to the Finance Department that the other House departments must first submit and justify their budgets; it is the Finance Department which ensures that the overall resource budget remains within the financial remit set by

95 During the Conservative-Liberal Democrat Coalition Government (2010–15), however, the Commons Finance Committee was chaired by a Liberal Democrat, John Thurso. 96 In the Commons, this committee is known as the Administration Estimate Audit and Risk Assurance Committee, but here we refer to it as the Audit Committee. The remit of the Commons Audit Committee can be found here: committees.parliament.uk/publications/6460/documents/71236/ default/ (accessed 19 January 2022); the Lords’ audit committee remit can be found here: committees. parliament.uk/committee/169/audit-committee-lords/role/ (accessed 19 January 2022). 97 In the Commons, a Director-General chaired the Board 2015–20.

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the Commission; and it is the Finance Department which submits the initial estimate to the Finance Committee and Commission. Readers may be surprised to see no mention of the government. As we have already seen, the Treasury now has no direct control over the Houses’ resource budgets. The Speaker of the House of Commons lays the Administration Estimate (and Members’ Estimate); the Treasury lays the Lords Estimate on behalf of the House of Lords, but this is a formality – the Treasury does not exercise any de facto or de jure control over the Lords’ estimate. That said, any serious increase in proposed expenditure opposed by the executive would face difficulties in being accepted, either in the form of a government majority (where there is one) and/or through the Leader of the House on the Commission and in the House.

C. The Budget Process The budget process is largely determined by the parliamentary supply cycle.98 Even though the Houses are financially autonomous, in practice they follow the same timetable and constraints as the executive in supply matters. This is a practical matter: Parliament agrees to the Houses’ estimates at the same time that it agrees to the government’s supply estimates. Formally, then, the key dates in any financial year are April, when the estimates for the Houses are laid in July, when the relevant Appropriation Act is passed. But behind these two dates lies a more complex, less transparent process. These are set out in Table 3.1 below. Table 3.1 Timetable for determining the House budget99 July Budget process begins. Financial remit set by Commission

September Internal budget bidding process begins (iterative process between Finance Committee, Executive Board)

November

December

Draft budget submitted to Executive Board/ Management Board

Draft budget submitted to Finance Committee; signed off by Commission

(continued)

98 For an overview of the supply cycle, see C Lee and P Larkin ‘Financial Control and Scrutiny’, in A Horne and G Drewry (eds), Parliament and the Law 2nd edn (Oxford, Hart Publishing, 2018) 323. 99 ibid.

Paying for Parliament 77 Table 3.1 (Continued) January Budgets issued to budget holders

February

April

Opportunity to lay supplementary estimate; vote on account made

New financial year begins. Main estimates laid; draft accounts for previous financial year submitted to NAO

May NAO carries out audit of accounts for previous year

July Appropriation Act passed; accounts signed off and laid before Parliament

The first stage in the budgeting process for the Administration Estimate or the House of Lords Estimate takes place around June-July: the setting of the financial remit for the next financial year. This is a policy document which sets out the limit of resource expenditure for the House.100 It often takes the form of adhering to a particular target, subject to a number of exceptions. Thus, the House of Commons Commission agreed a financial remit for 2019–20 that ‘assumed zero growth in real terms, and that the House would absorb day-to-day upward cost pressures other than inflation’;101 with exceptions including significant enhancements to scrutiny, security, the resource implications of strategic programmes such as Restoration and Renewal, amongst others. Similarly, the House of Lords remit states the Lords will adhere to the savings target of not increasing the resource budget in real terms … subject to the need to maintain the ability of the House and its Members to carry out their parliamentary functions in changing circumstances including increased attendance, and subject to exceptional adjustments reflecting property revaluations.102

The purpose of the remit in both Houses is to control resource spending, although in recent years the number of exceptions threatened to undermine this.103 In the Commons, the remit is reviewed annually: a draft is produced by the Finance Department, scrutinised by the Finance Committee and Executive Board, with the House Commission making the ultimate decision. In the Lords, the process is similar. However, the current Lords remit was set in 2010, in the aftermath of the expenses scandal and the financial crisis. It remains in substance the same, although it has been occasionally revised. Although the financial remit is the most

100 There

is no equivalent for the capital budget, because capital costs are volatile. of Commons Finance Committee (n 94). 102 House of Lords Administration, Business Plan of the House of Lords Administration 2019/20 (HL 2019–20 346) 25. 103 Indeed, in the 2020–21 financial year, all exceptions were removed; and so any proposals for additional spend had to be found from the existing resource budget. 101 House

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important self-imposed formal limit in the budget process, the Commons remit is not published annually,104 and excerpts of the Lords’ remit can be found in the Lords’ annual reports and business plan.105 Once the remit is set, two closely aligned processes begin. First, a mediumterm financial plan (‘MTFP’) is developed. This is in part a prediction of projected expenditure, setting out resource spending for the next four years, although every year the plan is revised in accordance with changes from the previous financial year. The focus of the MTFP, however, is on the first year, which forms the basis for the next financial year’s Administration Estimate. A medium-term investment plan (‘MTIP’), which deals with capital investment, and which is agreed to between the Houses, is also developed. Second, the internal budgeting process for the next financial year begins. This usually starts in September and runs through until the end of the year. This involves each of the relevant House departments compiling their respective budgets and making bids for additional money or offering savings, initially through the Finance Department, which subjects department budgets to detailed scrutiny and challenge. There is then an iterative process by which departmental budgets are consolidated, scrutinised and revised by the Finance Committee and the Board. This internal process is, of course, subject to the constraint of the relevant House’s financial remit. The overall draft budget is eventually submitted to the Board and the Finance Committee in November, for sign off. That version, along with the MTFP, is then presented to the Commission for final approval in December.106 Occasionally, the Commission will insist on changes, but most of the big decisions about resource allocation have been already made in the internal bidding process. Once the Commission has signed off, this proposed budget effectively becomes the parliamentary estimate. The budgets are then issued to the budget holders in the new year. Of course, all expenditure must be authorised by Parliament. The House of Commons Administration Estimate and House of Lords Estimate are therefore laid, or published, before the Houses in April (along with the government’s Main Estimates). Although there is the potential for debate over the House Estimates, this does not happen in practice.107 The Estimates are then voted on and authorised by Parliament through a Supply and Appropriation Act – in July. As with government departments, the two Houses receive ‘votes on account’ authorised in

104 The House of Commons Finance Committee did set out the remit in a rare report: House of Commons Finance Committee (n 94). 105 See, eg, House of Lords Administration (n 102) 25. 106 The Members’ Estimate is also presented to the Commission at the same time, but with the Commission sitting as the Members Estimate Committee. 107 Lee and Larkin (n 98).

Paying for Parliament 79 February which provide the authority to draw down a proportion of money for the first three to four months of the new financial year, with the remainder authorised later through an Appropriation Act. Supplementary estimates – if necessary – are usually laid and approved alongside the vote on account in February. While the vote on account relates to the upcoming financial year, supplementary estimates relate to the financial year about to conclude. Supplementary estimates amend the amount of money authorised by Parliament in the Main Estimates, where the House expects to spend more money than the House had agreed it could. The financial year ends in March. Draft accounts for the that year are submitted to the National Audit Office (‘NAO’) for scrutiny and audit in April-May. The NAO audits these accounts to check that they give a ‘fair and true view’ of the House’s financial affairs and they have been prepared in accordance with HM Treasury’s Government Financial Reporting Manual (as adapted or interpreted for the Houses);108 and that any money voted by Parliament was spent on the purposes intended by Parliament (‘regularity’).109 The accounts are eventually signed off by the Auditor and Comptroller-General in June.110 The accounts are then sent to the relevant Audit Committee for further scrutiny and agreement. It is then finally signed off by the relevant Accounting Officer in the House (the Clerk) and laid in the House in July before the summer recess.

VI. The Cost of Parliament There is no doubt that the cost of funding Parliament has increased over time. But this is complicated by the way that Parliament has been funded (eg, through different votes; inflation), changing accountancy practices, organisational change and the way that data is presented. So in 2000–01, the House of Commons Administration Estimate was £240 million; the Lords Estimate £31 million. The respective figures for 2020–21 were £776 million and £182 million111 – so the budget has tripled over 20 years.112

108 HM Treasury, The Government Financial Reporting Manual: 2020–21 (2020) (‘FREM’): this is the technical accounting guide for the preparation of financial statements. 109 See www.nao.org.uk/about-us/our-work/audit-of-financ.ial-statements/ (accessed 19 January 2022). 110 The Audit Report of the Auditor and Comptroller-General for each House is found in their respective Annual Report and Accounts. 111 See n 1. 112 Adjusted for inflation, the 2000–1 budget would be £406 million and £52 million today, so arguably the budget has doubled rather than tripled.

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Figure 3.3 below sets out the House of Commons Administration Estimate; Figure 3.4 does the same for the House of Lords Estimate. These graphs only use the published estimates.113 These figures require some explanation. The Houses both follow resource or accrual accounting, following the lead of the UK Government.114 Resource accounting differs from cash accounting, which records expenditure at the point of payment. Cash accounting can distort the picture of the costs of running an organisation: for instance, the purchase of IT equipment would show a large spike in one year, but then nothing thereafter. Resource accounting smooths out expenditure, measuring costs in accruals: it takes into account that capital may be ‘consumed’ over time, not merely at the point of purchase. Under resource accounting, accounts are organised into two categories: resource (eg, the cost of salaries and administration) and capital (eg, capital purchases such as the cost of buildings and equipment).115 For our purposes, this division of resource and capital allows us to see where money is broadly spent. Figure 3.3 House of Commons: administration estimate 2011–21

Data drawn from House of Commons, Annual Report and Accounts, 2010–2021

113 Note that supplementary estimates are often treated separately from the main supply estimates. Actual expenditure for the previous financial year can be found in the annual report and accounts under the statement of parliamentary supply under ‘outturn’. 114 On resource accounting in David Heald, ‘ The Implementation of Resource Accounting in the UK Central Government’ (2005) 21(2) Financial Accountability and Management 163. 115 These are then subdivided into Departmental Expenditure Limits (DEL), or expenditure which an organisation can control; and Annually Managed Expenditure (AME), or costs which are difficult to predict, but for our purposes this is not necessary to know.

Paying for Parliament 81 Figure 3.4 House of Lords estimate 2011–20

Data drawn from House of Lords, Annual Report and Resource Accounts, 2010–2021

What is clear from both figures is that estimated spending in both Houses has gone up – gradually, but rising steeply in 2016–17. Moreover, whereas resource costs have risen steadily upwards, capital expenditure has risen in leaps and bounds. This is primarily due to maintenance of the current parliamentary estate (and in particular the Palace of Westminster) and purchasing new property in preparation for the proposed decant of the Palace of Westminster (see chapter four). Maintenance of the estate and preparation for decant of the Palace has also had a knock-on effect on resource expenditure: maintenance and preparation of estates requires staff and time. Finally, it is important to note that these Figures use estimates, which are proposed costs. In fact, there is considerable variance between the estimates and outturn (ie, actual expenditure). That is, there is a consistent underspend of resources. Such variance is common in public sector bodies, but the variance in underspend has also been increasing over time, particularly in the Commons. This is primarily due to the unpredictability of capital projects. Finally, it is worth noting that the House of Lords Estimate is much smaller than that of the House of Commons Administration Estimate: in the past decade, the cost of the Lords has usually been less than half that of the Commons. The House of Commons bears most of the costs of administration and the estate: it is the larger House (in terms of attending Members and staff ).116 But at the same time, the Lords Estimate includes not just administrative and estates costs, but (amongst other matters) also allowances and expenses paid to Members of the

116 Even though there are over 800 peers currently in the House of Lords, daily attendance is low. In 2019–21, for instance, the average number of attending peers was 352: www.parliament.uk/about/faqs/ house-of-lords-faqs/lords-sittings/ (accessed 22 December 2021).

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House of Lords and assistance to opposition parties. That is, the Lords’ estimate is the functional equivalent of three core sources of funding for the Commons combined.

VII. Parliamentarians and the Challenges of Scrutinising Parliament’s Budget Financial scrutiny of the budget – and indeed expenditure – is primarily done by the Finance Committees. As we have seen, the Committees do much of the preparatory work on the remit and the budget before these reach the Commissions; but the Committees also receive quarterly reports of financial performance and updates on major areas of expenditure (eg, large capital projects). The Committees subject these reports to varying degrees of scrutiny, often with key officials present to respond;117 and the Committees have not been afraid to be critical (although this is rarely publicly documented).118 The Commissions play little role in detailed scrutiny of the budgeting process: they meet irregularly and have a much broader set of duties, of which the budget is but one. The Public Accounts Committee (PAC) may also choose to scrutinise expenditure made by Parliament, since its remit covers any expenditure authorised by Parliament.119 In practice, PAC rarely does so, although it has examined Restoration and Renewal (see chapter four in this volume).120 However, the Finance Committees face an uphill battle in their scrutiny and influence over the House budgets. There are a number of reasons for this. The way that data is organised in the supply process means that the relevant information is not easily understood. This was a criticism made by House of Commons Public Administration and Constitutional Affairs Committee’s report on government accounts; but it applies with equal force to the parliamentary budgetary process.121 Moreover, when presented with draft budgets, the Committees are usually given financial data from the previous year rather than a range of years – this, coupled with the fact that parliamentarians tend to be limited in time, information and

117 See, for instance, the minutes from meetings of the Lords Finance Committee: committees.parliament.uk/committee/364/finance-committee-lords/publications/4/minutes-and-decisions/ (accessed 19 January 2022). 118 For instance, the Lords Finance Committee declared the Senior Responsible Owner system for major projects was ‘not fit for purpose’ in 2020: House of Lords (n 102) 65. 119 House of Commons Standing Order 148. 120 House of Commons Committee of Public Accounts, Delivering Restoration and Renewal (HC 2016–17, 1005); Restoration and Renewal of the Palace of Westminster (2020, HC 1549). 121 The House of Commons Public Administration and Constitutional Affairs Committee, Accounting for Democracy: Making sure Parliament, the People and Ministers Know How and Why Public Money is Spent (HC 2016–17, 97).

Paying for Parliament 83 expertise, means that parliamentarians tend to look at changes in the margins.122 That is, they often focus on the difference between the proposed costs of the next financial year, and the costs of the previous financial year. Closely aligned with this is that a large proportion of proposed expenditure is outside the control of parliamentarians. This expenditure is ‘fixed’, in the sense that it relates to matters such as staff salaries and ongoing multi-year capital projects, which cannot be simply cut or stopped. There is a similar problem in the House of Lords: for instance, Members’ allowances and expenses, and shared services are all fixed – the first because the House cannot control the attendance of peers or their expanding numbers; the second because shared services are determined principally by the Commons.123 There have been some ‘zero-budgeting’ exercises, where Finance Committees have asked for particular projects or departments to justify their costs (from a ‘zero base’), regardless of what the existing budget is. One such exercise took place during the imposition of a savings policy between 2010 and 2015; and there have been zero-based approaches on selected issues since. But this is uncommon. Zerobased approaches are disruptive; they are also difficult because most projects are not limited to a single year; and in any case, parliamentarians rarely had the time and perhaps will to follow through. The Finance Committees meet only once a month – unlike other select committees, which often meet multiple times in a month.124 The Finance Committees are lightly staffed, with a single clerk (who often serves other domestic committees as well) and have no additional expert support.125 By contrast, Commons select committees may have 8–10 staff, including clerks, a press officer, committee specialists and specialist advisers or legal counsel. Lords committees have fewer staff attached (often 3–4 staff ), but this may be offset by committee members having subject matter expertise. Of course, the remit of the departmental select committees is much wider than domestic committees: select committees aim to cover the vast work of the executive; whereas domestic committees are covering the relatively uncomplicated work of Parliament. However, as we saw from the previous section, successive Commissions have long practiced self-denial in budgetary matters. Perhaps the primary consideration behind any financial scrutiny or decision – of the remit, the proposed estimate, and actual expenditure – is the fear of public disapproval. Worries about what ‘the public’ would think about parliamentary expenditure was a persistent

122 There may be some pushback from non-executive members who sit on the Commissions, but at that point much has already been decided. 123 One estimate is that 60–70% of House of Lords spending is via the House of Commons, shared services and third parties: House of Lords (n 102), 13. 124 In fairness, Finance Committee chairs may do a great deal of work behind the scenes – preparation, following up and liaison work with the various actors in the budget process. 125 The Finance Director (head of the Finance Department) will often attend committee meetings, but they have a dual role: they may advise the Committee, but may also be there to defend the House service or administration.

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theme in interviews with parliamentarians and officials, and was often cited as a consideration against any significant increases in the budget. Fear of public opprobrium over politicians ‘lining their own pockets’ is a major reason why the 2008 expenses scandal came to be: MPs’ salaries were deliberately kept low, and ‘hidden’ expenses were a means of ‘topping up’ those up.126 And it is a major reason why the Restoration and Renewal Programme remains controversial, even though a Joint Committee recommended in 2016 that a full decant of the Palace of Westminster was the most cost-effective option (see chapter four).127 This fear of the public provides a kind of discipline to financial scrutiny: it explains why although it is theoretically possible for each House to (say) double their budget, this does not in practice happen. It explains why there has been a long policy of relative financial austerity by successive commissions: it ensures against excess or reckless spending. But it also means that what the institution might need (for instance, additional or targeted funding) may not be at the forefront of the minds of those parliamentarians involved in the budgeting process. Rather, what matters is how proposed expenditure will be perceived by the public. Indeed, it is not clear who, and how, the institution’s interests are represented at all in the budgeting process.128 The result is that the budgetary process as a whole is incremental, in terms of how decisions are reached and in terms of outcome.129

VIII. Conclusion We can draw a number of conclusions about Parliament’s budgeting process. The first is that although the Houses’ relative financial autonomy from the executive was not acquired in a fit of absence of mind, it was certainly not at the forefront of the minds of key actors either. Constitutional principle rather emerged incrementally in the interstices of concerns about internal administration. The second is that although in principle the Houses of Parliament are constitutionally autonomous in respect of their funding, and could raise proposed expenditure at any time, in practice there are a number of constraints. There are practical constraints which have a real impact, such as following government accounting practices and the supply estimate cycle. There are also procedural constraints, in the form of the financial remit and the MTFP.

126 E Crewe and A Walker, An Extraordinary Scandal: The Westminster Expenses Crisis and Why it Still Matters (London, Haus Publishing, 2019). 127 Joint Committee on the Palace of Westminster, Restoration and Renewal of the Palace of Westminster (2016, HL 41, HC 659). 128 D Judge and C Leston-Bandeira, ‘ The Institutional Representation of Parliament’ (2018) 66 Political Studies 154. 129 See A Wildavsky, The Politics of the Budgetary Process (Little, Brown, 1964).

Paying for Parliament 85 There are also significant political constraints. One is the executive. Although formally it has no direct control over the financing of Parliament, the executive can be influential through a parliamentary majority, and/or through the Leader of the House. But the biggest constraint on spending is a self-imposed one: the fear of public disapproval. The fear of public outrage over parliamentary expenditure was a persistent theme in interviews with parliamentarians and officials, and operated as a major constraint on proposed and actual spending upwards. The third conclusion is that there is a general lack of transparency concerning the budgetary process for the two Houses. There is no clear public text. The annual report and accounts for both Houses present the annual estimates and outturn, but say little of how those figures were arrived at, or what they mean. The way that data is organised and presented means it can be difficult to comprehend. Similarly, the financial remits – the most important formal financial constraint on each of the Houses – are not published annually. The Commissions and the Finance Committees of the two Houses rarely publish or publicise their deliberations on budgetary matters. Meetings of the Committees or Commissions are almost never open to the public. Moreover, there is a lack of clarity around the particular roles of the different actors. While the Commissions may exercise the ultimate power of decisionmaking on budgetary matters, in many areas the substance of decisions is made by other actors. The Finance Committees in particular may have more power than they realise – but because of Member turnover and perhaps a lack of expertise or interest, their potential goes unrealised. Transparency is certainly not an unalloyed good, but more publicly accessible and comprehensible information, and greater clarity about Parliament’s budgeting processes, would be beneficial. The fourth conclusion is that the majority of parliamentarians appear uninterested in the budgeting process of Parliament. This lack of interest stems from limited data, limited support and the difficulty of dealing with a mass of detail; but it is also because parliamentarians have other priorities – party politics, policies and re-election. Thinking about the strategic priorities of the institution is not a priority for the great majority of parliamentarians. As a result of these constraints within which Parliament is operating, the funding of the Houses of Parliament tends to be incremental, and backwards-looking. Costs have slowly crept up over time, and the key arrangements remain as they are because they have always been that way. There are occasional reforms and attempts at zero-based budgeting, but forward-thinking, systematic action from the Houses is very occasional. Fear of public disapproval is not a strategy: it is a recipe for keeping things as they are. It is a sad tale, but one familiar to any student of parliamentary reform.

4 Restoration and Renewal of the Palace of Westminster: A Parliamentary Governance Challenge ALEXANDRA MEAKIN

I. Introduction ‘The Palace of Westminster, a masterpiece of Victorian and medieval architecture and engineering, faces an impending crisis which we cannot responsibly ignore.’1 These words opened the report of a specially-convened joint select committee, chaired by the leaders of the Commons and Lords, to examine the state of the building that houses the UK Parliament, and has, in its oldest part, stood for close to 1,000 years. The Joint Committee’s report, published in 2016, set out in detail the risks facing the physical structure of the Palace, with fire, flood or a failure of the essential infrastructure threatening to make the building uninhabitable. The Committee recommended ‘an intensive programme of major remedial work’ to be ‘undertaken soon’, requiring the Palace to be emptied and the work of Parliament moved to temporary locations (a full decant) during the refurbishment.2 In 2018 the House of Commons and House of Lords endorsed the Joint Committee’s recommendations, firing the official starting gun on what will be a complex, lengthy, and costly programme, known as the Restoration and Renewal (‘R&R’) of the Palace of Westminster. Indicative potential costings, produced in 2014, suggested that capital expenditure on the project may be in the region of £3-4 billion – subsequent delays and the impact of security considerations following the 2017 Westminster terror attack are likely to cause considerable increases in these figures. Thus, R&R, by virtue of its significant cost and scope, is classed as a megaproject.3 In contrast, however, to other megaprojects in the UK, R&R 1 Joint Committee on the Palace of Westminster, Restoration and Renewal of the Palace of Westminster (HC 2016–17 659) 5. 2 ibid. 3 B Flyvbjerg, ‘What You Should Know About Megaprojects and Why: An Overview’ (2015) 2 Project Management Journal 6.

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is not led by the private sector (such as the Thames Tideway ‘super sewer’), or the government (such as major transport developments like HS2 or Crossrail). Instead, R&R is a parliamentary project. Given that the work will still be funded by the Treasury, the distinction between a parliamentary and governmental project may seem trivial, but it is crucial to understanding the project to date and the complexity of the governance. The scope of R&R far exceeds any previous construction or repair work carried out or managed internally by the parliamentary authorities. Legislation to establish an independent governance structure – the Parliamentary Buildings (Restoration and Renewal) Act 2019 – came into force on 8 April 2020, placing on a statutory footing two organisations which had been set up in shadow form, the Sponsor Body (to act as a single ‘intelligent client’) and the Delivery Authority (to carry out the work), and creating a new Parliamentary Works Estimates Commission to lay the funding estimates for the project before Parliament. While the independent governance structure was intended to enable the Palace to be repaired without delays caused by the politicians working within, even with these new bodies in place, the governance challenge of R&R remains substantial. Within 12 months of being formally established, the Sponsor Body faced highprofile political interventions questioning its work from the Prime Minister and Leader of the House, an apparent divide between the two Houses on the need for a full decant, and criticism of its potential costs.4 These events have demonstrated not only why the Palace has been allowed to deteriorate to such an extent but also that the debate around fixing the bricks and mortar of the Palace of Westminster is not limited to questions about the physical structure of the parliamentary building but includes far greater metaphysical questions about Parliament itself. This chapter will highlight these questions – and their intractable nature. Drawing on data from 35 semi-structured elite interviews with MPs, Peers and parliamentary officials carried out between 2018–2019,5 it will provide a brief overview of the chequered history of parliamentary building projects at Westminster (section II), examine the governance of the Restoration and Renewal programme to date (section III) and then analyse the passage of the legislation establishing

4 Boris Johnson Letter dated 15 July 2020 from Prime Minister Boris Johnson to Sarah Johnson and David Goldstone, Chief Executive Officers, Houses of Parliament Restoration and Renewal (R&R) Sponsor Body, and Delivery Authority, regarding the strategic review of the Parliamentary R&R programme and considering relocation of Parliament Deposited paper reference: DEP2020-0426 data.parliament.uk/DepositedPapers/Files/DEP2020-0426/Letter_PM_to_Mr_David_Goldstone_ CBE_and_Ms_Sarah_Johnson.pdf (accessed 19 January 2022); House of Lords Commission Minutes Tuesday 15 September 2020 committees.parliament.uk/publications/2879/documents/27942/default (accessed 19 January 2022); HC Deb 11 Mar 2021, col 1017. 5 These interviews were carried out as part of doctoral research which was funded by a PhD studentship provided by the Sir Bernard Crick Centre for the Public Understanding of Politics in the Department of Politics at the University of Sheffield, as part of a wider research and public engagement project entitled Designing for Democracy considering the Restoration and Renewal of the Palace of Westminster.

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the governance structures to manage this sizeable, complex and contested project (section IV). It will explore, briefly how R&R reflects broader governance issues at Westminster (section V) and then conclude by summarising the main argument of this chapter: that the Parliamentary Buildings (Restoration and Renewal) Act 2019 has established a governance structure that may ensure the programme avoids the problems of past parliamentary building projects but politics – at the heart of everything at Westminster – cannot be avoided in this most political of building projects. Political interference may yet cause R&R to be delayed or cancelled entirely with the result that the future of the Palace of Westminster remains at risk. (section VI).

II. The Governance of Parliamentary Building Works The history of construction, refurbishment and maintenance of the parliamentary estate at Westminster demonstrates the inherent difficulties – caused by the divided governance structure and the very nature of the institution – in making long-term and strategic policy decisions about the parliamentary building in an accountable and transparent manner. There have been repeated instances of neglect of the building’s infrastructure and failures to take the necessary action to address dangerous conditions in the Palace. Overcrowding in the chambers of the Commons and Lords was a persistent complaint of parliamentarians in the seventeenth and eighteenth centuries and the Palace as a whole was increasingly dilapidated. In 1789 a select committee reported that: The House of Lords, Princes Chamber, and Painted Chamber are Buildings of great Antiquity, in many Parts defective […] All the Buildings east of the House of Lords are in so bad a State, that many of them are in immediate Danger of falling down […] the other Buildings […] are in Part built with Timber, liable to rapid Decay, and Accident’ from Fire and the remainder extremely old and ruinous.6

There were numerous plans for a new parliamentary building or a radical refurbishment of the Palace throughout this period which failed to come to fruition. Instead, smaller programmes of repairs were carried out, leaving the long-standing concerns about the building unresolved. Two separate Select Committees, reporting in 1831 and 1833 called for a new chamber for the Commons, with the chair of the 1831 Committee, Colonel Trench, warning the Commons that: the bad state of the atmosphere, and the exposure to unequal draughts of air had already caused the death of several hon. Members in the course of this arduous Session.7

6 House of Commons Report from the Committee Appointed to Inspect The Several Houses and other Buildings immediately adjoining to Westminster Hall and the Two Houses of Parliament, and the Offices thereto belonging (House of Commons, 1789) 5. 7 HC Deb 11 October 1831, col 555.

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But neither Committee, having failed to come to an agreement on a replacement for the chamber to take, were able to convince their colleagues of the need to act. Instead, 15 months later the oft-warned of catastrophe came to pass, and the old Palace, including their chamber, was almost entirely destroyed by fire.8 The building of the new Palace of Westminster was a tortuous, prolonged and controversial process, as detailed masterfully by Caroline Shenton and Sir Barnett Cocks.9 Neither of the two architects who created the building now considered a ‘masterpiece’ – Sir Charles Barry and Augustus Welby Pugin – would live to see its completion, with the former, Cocks argued, driven ‘almost to distraction’ by a ‘host of official mosquitos’.10 These ‘mosquitos’ were located both in the legislature and the executive, with over 100 select committee inquiries considering the rebuilding process and repeated changes of instructions from ministers. In evidence to one of the many committees, Barry told Peers in 1844 that ‘almost all the alterations that have been made have been alterations in consequence of orders received from the Government’.11 Ministers denied responsibility, however, for the delays and cost increases of the rebuilding. In 1854, the Chancellor of the Exchequer, and later Prime Minister, William Gladstone, told MPs: he could not acknowledge that any blame was due either to himself or to his predecessors for anything defective in the arrangement for the construction of the New Houses of Parliament. It must be remembered that Parliament had never effectually committed the responsibility for these works to the Executive Government.12

In doing so, Gladstone proved correct the argument made by Conservative MP, Augustus Stafford, four years earlier: But wherever they attempted to place the blame, it was shifted to someone else. If the blame was charged on Mr. Barry, he charged it upon a Committee, the Committee charged it upon another Committee, both the Committees put it upon the Woods and Forests, the Woods and Forests charged it on the Government, and the Government upon that House.13

This confusion around responsibility for the Palace has been a recurrent theme. Nearly a century later, during the debates over rebuilding the Commons chamber following bomb damage in the Second World War, Earl Winterton MP described governance of the Palace as ‘worthy of a Gilbert and Sullivan opera’, listing four individuals – ‘the Minister of Works, the Lord Great Chamberlain, you,

8C

Shenton, The Day Parliament Burned Down (Oxford, OUP, 2012). B Cocks, Mid-Victorian Masterpiece (London, Hutchinson and Co, 1977). 10 Joint Committee on the Palace of Westminster (n 1) 5; Cocks (n 9) 42. 11 House of Lords, First Report from the Select Committee of the House Of Lords Appointed to Inquire Into the Progress of the Building of The House Of Parliament, and To Report Thereon To The House; With The Minutes Of Evidence Taken Before The Committee (1844, HL 46) 25. 12 HC Deb 8 June 1854, col 1282. 13 HC Deb 2 August 1850, col 728. 9 ibid;

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Mr. Speaker, and the Serjeant at Arms’ who were ‘so interwoven in the control of this building that nobody knows who is responsible’.14 While the House of Commons (Administration) Act 1978 later gave MPs control over the financial estimates for the House, ‘responsibility for the maintenance of the fabric and upkeep of parliamentary buildings’ remained with the government, through the Secretary of State for the Environment.15 During the second half of the twentieth century, maintenance of the Palace was neglected, with a focus instead on expanding the size of the estate to meet increasing demands for space for offices and secretarial staff. But the divided governance structure led to lengthy delays in the acquisition of new buildings (see Case Study 1 – below), while the infrastructure of the Palace continued to deteriorate unchecked. By 1990, a review of House of Commons governance by Sir Robin Ibbs found a backlog of £220 million of essential maintenance and ‘almost universal dissatisfaction about accommodation’, which was attributed to the divided governance of the physical buildings.16 As recommended by Ibbs, responsibility for all works on the parliamentary estate, and all expenditure for the Commons (apart from MPs’ salaries) was transferred to the internal governance body, the House of Commons Commission.17 A Directorate of Works within the Serjeant at Arms Department was established ‘to undertake the responsibilities formerly exercised by the Department of the Environment’, with the costs shared between both Houses.18 The transfer of responsibilities required legislation, a conclusion the Leader of the Commons, the Rt Hon John MacGregor, had said was unavoidable, as ‘there exists no legal persona in either House to whom property, leases and contracts can be made over’, when the transfer occurred.19 Through this legislation, the Parliamentary Corporate Bodies Act 1992, the Clerk of each House became the Corporate Officer, responsible for the maintenance of the parliamentary estate from April 1992. The significance of this move was set out at Second Reading, by the Liberal Democrat MP, Alan Beith: Although technical in character, the Bill is the expression of a fundamental change in the way we organise our affairs in the House of Commons. It is part of a process of taking control of the buildings into the hands of hon. Members […] For Parliament to be independent, it must regulate its own affairs independently of the Government of the day.20

14 HC

Deb 28 October 1943, col 457. Deb 12 April 1978, col 1591. House of Commons Commission, House of Commons Services (HC 38, 1990/91) (‘the Ibbs Review’) 3. The cost of £220 million was in 1990 prices. 17 As Ibbs noted, the structure had been due for change in light of the privatisation of the Property Services Agency within the Department of the Environment. 18 HC Deb 17 February 1992, col 14. 19 HC Deb 24 February 1992, col 778. 20 ibid, cols 781–782. 15 HC

16 The

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A further review of House of Commons governance in 1999, led by Michael Braithwaite, found that the Ibbs recommendations relating to works on the parliamentary estate had ‘delivered substantial improvements in accommodation, resulting in a striking rise in levels of satisfaction’.21 Braithwaite noted, however, that only half of the ‘neglect’ backlog identified by Ibbs had been resolved, with some of the outstanding work classed as ‘substantial’ and further increases in the maintenance budget.22 This was mainly hidden from sight, however, often literally: the problems were behind walls and, primarily, in the deep recesses of the building. A basement condition survey in 2000 found that that much of the infrastructure was ‘antiquated and would need replacing within 5–10 years’; Lord Lisvane, the Clerk of the House between 2011 and 2014 described the basement as ‘the cathedral of horror’.23 In 2007, the first suggestion was made in the media that the Commons chamber could close temporarily to enable major repairs.24 In response, the Commission Spokesman, Nick Harvey, sought to reassure MPs that any plans that would involve decanting the Commons were at a very early stage, but accepted that repair work would be necessary over the next ten years.25 Despite the accepted necessity of the work, the remainder of the Parliament would see little action: the Joint Committee on the Palace of Westminster would later note that ‘various lines of investigation were begun and studies commissioned, but throughout the 2000s little progress was made’.26 While any decision about the future of the building would not be easy to take, given the scale of the work and its accompanying price-tag, the governance structure of the institution, even after the various reviews, did little to promote resolution of what was becoming an urgent problem.

A. Case Study 1: Portcullis House The opening in 2001 of the long-awaited new parliamentary building on Bridge Street – Portcullis House – had provided over 200 MPs and their staff with higherquality offices and, through its glass atrium, provided a new informal space which would transform use of the parliamentary estate.27 While Portcullis House, did

21 The House of Commons Commission, Review of Management and Services (1998–99, HC 745) (‘the Braithwaite Review’) 12. 22 ibid 71. 23 House of Commons, House of Lords Study Group, Restoration and Renewal of the Palace of Westminster: Pre-Feasibility Study and Preliminary Strategic Business Case (2012) 15–16. See also Lord Lisvane ‘Constitution Unit Lecture: 15 March 2015’, Constitution Unit website www.ucl.ac.uk/constitution-unit/sites/constitution-unit/files/rrlecture160315.pdf>accessed (19 January 2022). 24 S Coates ‘Leaky Commons roof could cause MPs to search for a new home’ The Times (London, 15 October 2007) 30. 25 HC Deb 18 Oct 2007, col 322WH. 26 Joint Committee on the Palace of Westminster (n 1) 29. 27 P Norton, ‘Power Behind The Scenes: The Importance of Informal Space In Legislatures’ (2018) 72 Parliamentary Affairs 245.

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improve the quality of accommodation for many MPs, it also became a byword for extravagance and delays, both in Westminster and outside. This reputation may be somewhat unfair: the verdict of the NAO on the construction was balanced, noting it ‘was completed broadly to time’ and that ‘the House achieved value for money in the project to construct Portcullis House’.28 Accurate or not, the perception persisted. In particular, there has been recurrent criticism of the cost of the décor and furnishings within the building. Reporting on the formal opening, The Guardian listed costs including ‘£150,000 for decorative fig trees, £2m for electric blinds and, for each MP, a reclining chair at £440.’29 Subsequent expenditure on the fig trees reached £400,000 by 2012, with maintenance costs currently standing at £20,000 per annum.30 The cost of the work is often cited by MPs as an example of poor management of parliamentary building works, for example, the then Chair of the Public Accounts Committee, Margaret Hodge, said in 2014: ‘We overspent massively on the building of Portcullis House.’31 One additional cost in the building of Portcullis House did reflect poorly on the management of the project. Approximately £10 million was spent on an out of court settlement and legal costs relating to the competition for the fenestration work.32 In an independent inquiry, Sir Thomas Legg and Peter Bosworth found that ‘serious mistakes were made […] which exposed the House to liability’.33 The report noted that the construction was ‘much the biggest ever undertaken by the PWD [Parliamentary Works Directorate]’ and that it ‘posed a challenge outside PWD’s corporate experience, and outside its capacity’.34 Legg expressed surprise at the governance structure of the project, stating that it was noteworthy that an official, however experienced, who was so relatively junior in the official hierarchy should have been given the weighty personal charge of delivering the construction of a £235m parliamentary building.35

Bosworth found that there had been a ‘leadership “vacuum” at a time when the project was perceived to be vulnerable to delay and under considerable cost pressures’ and made a series of recommendations on how future major projects should 28 National Audit Office, Construction of Portcullis House, the New Parliamentary Building. Report by the Comptroller and Auditor General (HC 2001–02, 750) 2. 29 ‘Royal Seal Of Approval: Portcullis House Opens’ The Guardian (London, 28 February 2001) www. theguardian.com/politics/2001/feb/28/uk.parliament (accessed 20 December 2021). 30 ‘Cost of Commons fig trees cut to £18,500’ (BBC News 20 April 2012) www.bbc.co.uk/news/ uk-politics-17789024 (accessed 20 December 2021); H Zeffman, ‘MPs spend thousands on wobbly fig trees’ (The Times 19 March 2018) www.thetimes.co.uk/article/mps-spend-thousands-on-wobblyfig-trees-sg5xlm5ct (accessed 20 December 2021). 31 HC Deb 10 September 2014, col 1033. 32 NAO (n 28) 34. 33 T Legg and P Bosworth, Report of the inquiry into Harmon v. Corporate Officer of the House of Commons Published 2012 at old.parliament.uk/documents/foi/foi-2012-Sir-Thomas-Legg-reportMarch-2000-F12-349.pdf (accessed 20 December 2021) 2. 34 ibid 4. 35 ibid 23.

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be managed.36 The Public Accounts Committee noted that these recommendations had been accepted but warned that the fenestration contract dispute had been ‘a serious judgement against the House’.37

III. Restoration and Renewal In 2011 the two most senior officials in each House – the Clerk of the House of Commons, Sir Michael Jack, and the Clerk of the Parliaments, Sir Michael Pownall – retired. Their successors, Sir David Beamish and Lord Lisvane,38 sought to take action on the long-standing problems with the infrastructure of the Palace and succeeded in establishing a Study Group on the issue. The group – comprised of three parliamentary officials and an industry representative, advised by two members of each House – was given the freedom to consider ‘the full range of possibilities […] from either a new build Parliament or a completely modernised Palace at one end of the spectrum, to a programme of managed replacement and condition-based maintenance at the other’.39 The group’s report was completed in October 2012 with the title: ‘Restoration and Renewal of the Palace of Westminster: Pre-Feasibility Study and Preliminary Strategic Business Case’ (PFS). The findings were stark, emphasising both the known risks of the antiquated nature of the infrastructure and the unknown risks posed by the inaccessible parts of the building: … there has been no general renovation of the building and its services since the partial rebuilding of 1945–50 and some of the services are older still. The original basements and vertical shafts are now crammed with pipes and cables making further work difficult and expensive. […] Much of the work undertaken over the past half-century is undocumented and since many areas are inaccessible, the state of dilapidation and therefore of risk is largely uncharted.40

This message was emphasised in a single, powerful sentence: ‘If the Palace were not a listed building of the highest heritage value, its owners would probably be advised to demolish and rebuild.’41 A clear conclusion was identified: patch-and-mend solutions were no longer sufficient, the risks to the building were growing and ‘fundamental renovation can no longer be avoided’.42 On receipt of the report, the 36 ibid

32, 34. of Commons Public Accounts Committee, Construction of Portcullis House, the New Parliamentary Building (HC 2001–02, 861) 5. 38 At the time of his appointment as Clerk, Lord Lisvane was known as Robert Rogers. He received a knighthood in 2013 and a peerage in 2014. He is referred to as Lord Lisvane in this chapter, for consistency. 39 House of Commons, House of Lords Study Group, Restoration and Renewal of the Palace of Westminster: Pre-Feasibility Study and Preliminary Strategic Business Case (2012) 1. 40 ibid 5. 41 ibid 5. 42 ibid 27. 37 House

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House of Commons Commission ‘ruled out’ any further analysis of constructing a new parliamentary building away from Westminster.43 This decision was taken solely by the six MPs present at the meeting of the Commission – three ex-officio members and three backbenchers, selected by the usual channels – rather than put to the House as a whole, or to the public.44 Notably, the attendees at the meeting included only one female MP. The Commons Commission also called for more work to be carried out ahead of any renovation. While the House of Lords House Committee – the Commons Commission’s counterpart in the Lords – agreed to commission this research, the statements put out by each House, however, demonstrated the difficult route any future renovation would face. While the House Committee welcomed the ‘thorough and comprehensive’ Pre-Feasibility Report, the Commons Commission stated it was ‘acutely conscious of the current public spending environment’ and warned that it was: not persuaded that the case for a decant had been made, and wished to ensure that all options were rigorously tested by independent analysis, detailed costings and robust technical information, to ensure no suggestion of internal bias.45

This work, carried out by a consortium led by Deloitte, was published in June 2015 and set out early potential costings and timescales for a range of outcomes and delivery methods.46 It concluded that the main factor affecting the costs and risks of any refurbishment was not the outcome level – the extent of improvements to the building – but how the work would be delivered and specifically the extent to which the Palace would be emptied for the work to take place. The report concluded that a rolling programme of repairs would be the slowest way to deliver the necessary work and that it would also offer the ‘greatest potential residual risk of a catastrophic event such as fire or flood as a result of life expired services, fabric and structure’.47 The Deloitte report was considered by a specially-convened joint select committee. The Joint Committee’s report, published in September 2016, concluded unanimously that, ‘in principle, a full decant of the Palace of Westminster is the best delivery option’, arguing that it offered the least disruption, the quickest

43 House of Lords House Committee, Palace of Westminster Restoration and Renewal (31 October 2012) parliament.uk/business/committees/committees-a-z/lords-select/house-committee/news/restoration-westminster/ (accessed 1 January 2017). 44 The ex-officio members were the Speaker, John Bercow, the Leader of the House, Andrew Lansley, and the Shadow Leader of the House, Angela Eagle. The backbench MPs were Sir Paul Beresford, Frank Doran, and Viscount Thurso. 45 House of Commons Commission, Bulletin 29 October 2012 www.parliament.uk/mps-lordsand-offices/offices/commons/house-of-commons-commission/minutes/commons-commissionbulletins-to-members/bulletin-29-october-2012/ (accessed on 19 September 2019). 46 Deloitte, Palace of Westminster Restoration and Renewal Programme, Independent Options Appraisal, Final Report, vol. 1 (Deloitte, 2014) www.restorationandrenewal.parliament.uk/IOA-report. html (accessed on 7 May 2017) 25. 47 ibid.

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timescale, the lowest overall capital cost, the lowest risk, and the greatest scope for improvements. The Joint Committee’s report was not debated on the floor of the Commons for 17 months, during which repairs to the Elizabeth Tower became urgent (Case Study 2). When the debate was finally scheduled, two motions were originally tabled, both in the name of the Leader of the House, Andrea Leadsom. The first stated that ‘there is a clear and pressing need to repair the services in the Palace of Westminster in a comprehensive and strategic manner to prevent catastrophic failure’, but committed only to reviewing the need for the work at the end of the 2017–2022 Parliament, in effect further delaying policy change for several years.48 The second motion established governance bodies for a future refurbishment programme who would explore further the options for delivering the work.49 Neither motion gave MPs a chance to vote for a full decant, as the Joint Committee had recommended. In a further unusual procedural move, the Leader of the House also told MPs that ‘because of the seriousness of the decision before the House, the two motions will not be amendable’ – an approach which was widely criticised by Members on all sides of the issue, as it would have denied MPs the opportunity to change the terms of the motion in order to demonstrate support for full decant and urgent action on the state of the building. The government’s position proved to be unsustainable and by the time of the debate five amendments had been tabled across the two motions.50 The two amendments with the most support demonstrated the main sides of the issue: one calling for full decant (in the name of Meg Hillier MP) and one seeking to rule out any temporary chamber away from the existing Palace or Portcullis House (in the name of Edward Leigh MP). Both amendments received the same number of signatories – 44 – but the composition of their supporters differed starkly. The Hillier amendment had support of 16 select committee chairs, including the Conservative chairs of the Treasury and Liaison Committees.51 The presence of the committee chairs made the Hillier amendment appear to be the preferred option of senior parliamentary (as opposed to ministerial) figures, and thus of the Commons itself. In contrast, 39 of the 44 supporters of the anti-decant amendment came from the governing party, and only two committee chairs were listed (Sir Edward Leigh and Sir Bill Cash). The main supporters of full decant had made a concerted effort to win support across the House, recognising the state of the parliamentary building as a non-partisan issue and the increase in the Commons acting in a ‘non-party mode’.52 Indeed, neither the Conservatives nor Labour would whip the divisions

48 HC

Deb, 31 Jan 2018, cols 878–879. col 879. 50 HC Deb, 18 Jan 2018, col 1062. 51 At the time of the debate the latter Chair, Sarah Wollaston, held the Conservative Whip, although she would later sit as an independent, and then as a Lib Dem. 52 A King, ‘Modes Of Executive-Legislative Relations: Great Britain, France, And West Germany’ (1976) 1 Legislative Studies Quarterly 11; M Russell and P Cowley, ‘Modes Of UK Executive-Legislative Relations Revisited’ (2018) 89 Political Quarterly 18, 19. 49 ibid,

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during the debate, a rare occurrence of free votes being held on a non-conscience issue.53 When the House did divide on the Hillier amendment, it passed – to the apparent surprise of the government – by 16 votes. The motion as amended, now endorsing R&R and full decant, was then approved and moved to the House of Lords where it was passed without a vote.

A. Case Study 2: Elizabeth Tower At midday on 21 August 2017 the bells of Big Ben ‘bonged’ as normal for the last time until 2021, due to building works on the Elizabeth Tower, which hosts the Great Bell.54 The silencing of the bell was front page news, with journalists bewailing that ‘not even Nazi bombs could silence the famous symbol of Britishness’.55 The Ayrton Light, which was installed in 1885 and shone from Elizabeth Tower in the evenings when either House was sitting, was also switched off, prompting headlines about the extinguishing of the ‘democracy lamp’.56 But while the journalists’ tone may possibly have reflected the newspaper ‘silly season’, the reaction of several MPs pointed to a deeper issue within parliamentary governance. Simply put, no-one knew who had authorised the work – or would admit to having authorised it. Four separate committees were involved in the process of approving the work: the Administration and Finance Committees and the Commission in the Commons; and the (now defunct) Lords Administration and Works Committee. Members who were on these committees at the time have lined up to decline responsibility for the decision to silence the bongs. James Gray, a member of the Commons Administration Committee, argued ‘there was never time to read through complex structural reports’ the Committee had to consider.57 Speaker Bercow’s office has said that while final approval was given by the House of Commons Commission, this was after the earlier approval of the other three committees, and the Commission ‘did not have input into if/when the bongs

53 In the previous decade the only non-conscience free votes had been held on the Wright reforms in 2010 and the method of election of the Speaker in 2015. 54 Due to COVID, the Elizabeth Tower repairs are now not due to be completed until 2022. Big Ben has still rung on Remembrance Sunday and New Year’s Eve. 55 D Wilkes ‘Death knell for common sense: Big Ben silenced for FOUR years to protect workers’ hearing … yes, it’s all down to Health and Safety!’ The Daily Mail (London, 14 August 2017); R Mendick ‘Backlash over the silencing of Big Ben’ The Daily Telegraph (London, 16 August 2017) 1; R Mendick ‘Big Ben reprieve as officials order rethink’ The Daily Telegraph (London, 18 August 2017) 1; B Riley-Smith ‘Parliament goes to war over plans to silence Big Ben’ The Sunday Telegraph (London, 20 August 2017) 1. 56 C Hope ‘Parliament to lose Queen Victoria’s light’ The Daily Telegraph (London, 19 August 2017). 57 R Mendick ‘ The silencing of Big Ben for four years is ‘bonkers’ say senior MPs’ The Daily Telegraph. (14 August 2017) www.telegraph.co.uk/news/2017/08/14/silencing-big-ben-four-years-bonkers-saysenior-mps/ (accessed 7 October 2019).

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would stop or, more widely, the nature of the works’.58 The Chair of a fifth committee (the House of Lords Commission), Lord Speaker Lord Fowler, has said that his committee was not given the chance to approve or reject the repairs, or any information about the silencing of the bell.59 From the Committee papers available publicly, there is little evidence to support or contradict the various parliamentarians’ statements. While the upset over Big Ben’s bongs has dissipated since the Elizabeth Tower repairs began, the project has continued to cause controversy, primarily over its cost and timescale. Originally estimated at £29 million, the work is now estimated to cost £79.7 million, and the project has become a cautionary tale for the dangers the R&R programme must avoid.60 Indeed, in the Second Reading of the Parliamentary Buildings (Restoration and Renewal) Bill, the then Leader of the Commons, Andrea Leadsom told MPs that the planned governance structure would ‘guard against unacceptable cost and timetable overruns of the sort that we saw with the Elizabeth Tower refurbishment’.61

IV. Legislating for R&R The motion set out a clear pathway to proceed with Restoration and Renewal with full decant, with both Houses affirming that ‘immediate steps be taken now to establish a shadow sponsor Board and Delivery Authority’, which would then be established substantively through legislation.62 In the initial months after the debates, there was some concern about whether ‘immediate’ steps were being taken – media reports in May 2018 suggested that the then Chief Whip, Julian Smith was ‘reluctant to expend political capital persuading Tory MPs to back the process’, and that the draft legislation had not yet been signed off by the relevant cabinet committee.63 The quote highlighted the difficult political route R&R would continue to have: while the full decant motion had passed, it was by a majority of only 16, and crucially, with 164 Conservative MPs voting against. Despite being a free vote, there had been a stark partisan divide: 94 per cent of Labour MPs voting on the Hillier amendment voted for full decant, compared to only 29 per cent of Conservatives MPs.64 Only two members of the then Cabinet, and only one

58 ibid. 59 B Riley-Smith ‘Revealed: House of Lords chief never signed off Big Ben silencing plan’ The Daily Telegraph (17 August 2017) www.telegraph.co.uk/news/2017/08/19/revealed-house-lords-chief-neversigned-big-ben-silencing-plan/ (accessed 7 October 2019). 60 HL Deb 8 March 2021, col WA13536. 61 HC Deb 31 January 2018, col 883. 62 HC Deb 31 January 2018, col 939; HL Deb 6 February 2018, col 1917. 63 M Chorley, ‘Work on Parliament delayed by costs row’ The Times (London, 26 May 2018) 6. 64 The percentages are of those who voted in the division on the full decant amendment: Division 112 HC Deb 31 January 2018, cols 933–935.

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member of the current cabinet (August 2021), voted for full decant. While this raised concerns about a lack of government support for R&R, when questioned at the Liaison Committee in July 2018, on the delays to enact the wishes of the House, however, the Prime Minister, Theresa May, committed to bringing forward draft legislation before the end of the year, noting that: once the motions were passed, officials did work with the House authorities to instruct on a Bill, and parliamentary counsel has been drafting and refining it to prepare for publication.65

For the first time she expressed support for repairing the Palace, recounting a personal and unpleasant-sounding experience of the failing infrastructure: I recognise, though, the importance of the Bill. I recognise the importance of dealing with the state of the building. Indeed, when I was Home Secretary, my outer office was flooded and it wasn’t just water.66

In addition to the Prime Minister’s support, the previous day had seen a significant step forward for the project, with the formal establishment by the Commissions of each House of the Shadow Sponsor Board.67 Three MPs (one Conservative, one Labour, one SNP, all, coincidentally, white and male) and four Peers (one Conservative, one Labour, one Liberal Democrat, one crossbencher) were appointed by their party or political groups, were joined by five external members, whose recruitment was overseen by an independent recruitment panel. The external members, who included the chair, Elizabeth Peace CBE, were chosen for their expertise in construction, project management, heritage and public sector nonexecutive roles. The draft legislation, as promised by the Prime Minister, was published in October 2018. The then Leader of the House, Andrea Leadsom, told MPs that the Bill would give ‘effect to the resolutions passed by Parliament earlier this year’, by creating a tripartite governance structure: the Parliamentary Works Sponsor Body, which would act as a single client for the programme and have overall responsibility; the Delivery Authority, to be established by the Sponsor Body as a company limited by guarantee, which would carry out the work; and the Parliamentary Works Estimates Commission which would review the expenditure on the project and lay the estimate before Parliament. This structure was designed to ensure the programme is managed professionally, with ‘the expertise and capability needed for a project of this scale’ – in order to avoid the problems encountered during the Portcullis House construction and Elizabeth Tower repairs.68

65 House of Commons Liaison Committee Oral evidence, The Prime Minister, HC 1393. 18 July 2018 Q128 old.parliament.uk/documents/commons-committees/liaison/Oral-evidence-with-the-PrimeMinister-18-July-2018-.pdf (accessed 20 December 2021). 66 ibid. 67 HC Deb 17 July 2018, col 861WS. 68 HC Deb 18 October 2018, col 50WS.

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A. Pre-legislative Scrutiny and the Passage of the Bill The draft Bill was scrutinised by a joint committee of MPs and Peers, chaired by former Cabinet Minister, Dame Caroline Spelman. Their report, which was published in March 2019, noted the gravity of the situation, opening with the statement: ‘there is no dispute that the Palace of Westminster is at risk of catastrophic failure’.69 The Committee described themselves as ‘content with the broad outline’ of the proposed legislation, concluding that the creation of the Sponsor Body and Delivery Authority – as independent bodies who are separate to but work closely with Parliament – would provide ‘sufficient independence to limit political interference in Restoration and Renewal’.70 The Joint Committee did propose changes to the legislation on the accountability arrangements, the role of parliamentarians and the government, and the overall aims of the programme. The government accepted many of these recommendations in full, as listed below: • • • •

•

the Sponsor Body must have regard to the safety and security of the people who work in Parliament and members of the public when carrying out its functions; the essential right of members of the public to access the proceedings of Parliament throughout the R&R Programme is not the same as an unqualified right of access; the smooth transfer of responsibility between the House Commissions and the Sponsor Body apply to the House of Lords as well as the House of Commons; the Leader of the House of Commons must obtain the consent of the Leader of the House of Lords before abolishing the Sponsor Body, and before laying regulations to bring the Bill into force less than six months after Royal Assent; and the Bill mandates the development of a Parliamentary Relationship Agreement.71

The Committee also sought to place a greater commitment to public engagement on the face of the Bill, stating: Renewal brings with it an opportunity to shape parliament by listening to and harnessing the views of the general public. The Sponsor Body will not achieve the potential of the building if consultation and engagement is limited to a narrow set of users.72

The government initially rejected this recommendation in its response to the Joint Committee, a position which raised questions about the role of Ministers in a parliamentary project. During the Public Bill Committee Kevin Foster sought to clarify the government’s role in bringing forward the legislation: this Bill is the Government facilitating Parliament’s will. This is not strictly a Government project; this is not something that a Government Minister will directly be the client for,

69 Joint Committee on the Draft Parliamentary Buildings Bill, Governance of Restoration and Renewal (HL 2017–19, 317) 3. 70 ibid 17. 71 Leader of the House of Commons and Leader of the House of Lords, Government Response to the Report of the Joint Committee on the Draft Parliamentary Buildings (Restoration and Renewal) Bill (CP 90, 2019) 5. 72 Joint Committee on the Draft Parliamentary Buildings Bill (n 69) 36.

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as perhaps in other major projects that we may look to have. This project would be one where the Sponsor Body, having been established under this legislation, will engage with the Government but where Parliament is driving the project overall. I want to be clear about that.73

This did not entirely satisfy MPs. Chris Bryant, a long-time supporter of R&R, responded: I am getting a bit confused. The Minister seems to say that this is not a Government project, so the Government will not table amendments. However, they will resist amendments, so they clearly have some kind of Government view.74

The Leader of the Lords, Baroness Evans, later explained the government’s objections to the wording of certain amendments tabled by the Labour Leader in the Lords: When drafting the Bill, the Government have been careful not to prescribe either what Parliament does or its procedures, as these are clearly a matter for Parliament itself. We are concerned by the reference to the “democratic and constitutional functions” of Parliament in this amendment, as we are mindful of potential legal challenges in respect of the exercise of the powers contained in the Bill. For instance, we must be careful not to unintentionally invite the courts to consider matters that are the preserve of Parliament, such as the question of what the “democratic and constitutional functions” of Parliament are. Doing so could call into question the separation between the courts and Parliament. […] We are concerned that the inclusion of this wording in the Bill could be seen as Parliament waiving the exclusive cognisance of the House, and so we have reservations about the wording of the amendment.75

Over the summer recess, the government did work with Lord Blunkett to agree on the wording for amendments on public engagement, with Earl Howe acknowledging the ‘the desire of noble Lords that this amendment be included in the Bill to place this specific duty on the sponsor body’.76 These amendments placed a duty on the Sponsor Body to ‘to promote public understanding of the purposes of the Restoration and Renewal Programme’ and to also require the Sponsor Body to have regard to the need to ‘ensure that the Parliamentary building works are carried out with a view to facilitating improved public engagement with Parliament and participation in the democratic process’.77 Members of the public and people working in Parliament were added to the list of people with whom the Sponsor Body must consult (which had previously only comprised of parliamentarians).

73 HC

Deb 4 June 2019, cols 25–26. col 31. 75 HL Deb 22 July 2019, cols 554–555. 76 HL Deb, 3 September 2019, col 927. 77 Parliamentary Buildings (Restoration and Renewal) Act 2019, ss 2 (2)(i); 2(5)(h). 74 ibid,

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The Bill was further amended to require the Sponsor Body to have regard to, in addition to achieving value for money and ensuring the safety of people within the building, the following issues: • • • •

•

ensuring that all parts of the restored Palace which are open to staff or visitors are accessible for people with disabilities; the need to ensure that educational and other facilities are provided for visitors to the refurbished building; the special architectural, archaeological and historical significance of the Palace of Westminster; the need to ensure that opportunities to secure economic or other benefits from the parliamentary building works are available in all areas of the UK; and the policy of prospective contractors for any building works relating to employment –including blacklisting.78

B. Royal Assent In a sign of government – and cross-party – support for R&R, the final stages of the Bill were rushed through to ensure that the Bill would not fall as Her Majesty the Queen had ordered Parliament to be prorogued on a date between 9 and 12 September 2019.79 The granting of Royal Assent to the Parliamentary Buildings (Restoration and Renewal) Act was indeed the last item of business in the Commons before prorogation on 9 September 2019.80 But while the Act had proceeded through Parliament remarkably smoothly, its final step would become part of a major and high-stakes political drama. On 24 September 2019, the UK Supreme Court ruled that the prorogation 15 days earlier was ‘unlawful, null and of no effect’.81 It was, the Court concluded, ‘as if the Commissioners had walked into Parliament with a blank piece of paper’.82 Speaker Bercow told the Commons the following day that: the item relating to the Prorogation of Parliament in the Journal of Monday 9 September is expunged and the House is instead recorded as adjourned at the close of the business.83

78 ibid,

ss 2(2); 2(5). an Order in Council at a meeting of the Privy Council on 28 August 2019. Deb 9 Sept 2019, col 646. 81 R (Miller) v The Prime Minister [2019] UKSC 41, [69]. 82 ibid. 83 HC Deb 25 September 2019, col 651. 79 Through 80 HC

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This would, he explained, not just affect the prorogation, but also the sole piece of Commons business carried out at the same time, adding: Members should also be aware that Royal Assent to the Parliamentary Buildings (Restoration and Renewal) Bill, which formed part of the royal commission appointed under the quashed Order in Council, will need to be re-signified.84

There is debate over whether Parliament was in fact required to re-signify Royal Assent.85 The decision to do so was taken by parliamentary authorities, rather than specified by the Supreme Court. But 29 days after the original Royal Assent was granted, it was signified once again to the Parliamentary Buildings (Restoration and Renewal) Act.86 The Delivery Authority and Sponsor Body thus became statutory bodies on 8 April 2020.

V. The Impact of the Legislation on Parliamentary Governance A. Accountability The devastating fires at Grenfell Tower in London in June 2017, and Notre Dame in Paris in April 2019, demonstrated the immense potential risks to lives and heritage from failures in building construction, maintenance or repair. These risks had already been well-understood by the senior Clerks in each House, who, under the Parliamentary Corporate Bodies Act 1992, have the legal responsibility for the safety of people on the parliamentary estate. Lord Lisvane has spoken about how the ‘penalties prescribed by the Corporate Manslaughter and Corporate Homicide Act’ caused him ‘sleepless hours’ when he held this role.87 He discussed this further in an interview, noting that it was a responsibility borne by an official, not a parliamentarian: I felt that there was an extremely high level of risk which we collectively, and I as Corporate Officer, were not in a position to mitigate […] one of the things that one is very conscious of as a corporate officer, is that you carry – no member carries it – not even the Speaker, you carry the legal responsibility if something goes wrong (personal interview, Lisvane, June 2018)

84 ibid. 85 For more see: A Young, ‘ The Prorogation Case: Re-inventing the Constitution or Re-imagining Constitutional Scholarship?’, in D Clarry (ed), The UK Supreme Court Yearbook, Volume 10: 2018– 2019 Legal Year (London, Appellate Press, 2021) 357; and Y Zhu, Putting Royal Assent in Doubt? One Implication of the Supreme Court’s Prorogation Judgment (London, Policy Exchange, 2019). 86 HC Deb 8 October 2019, col 1742. 87 HL Deb 6 February 2018, cols 1972–3.

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This is a critical point. Unlike government ministers, the Speaker or backbench MPs, officials have a specific responsibility for protecting the building but lack the powers to do so. With these powers based instead with elected and non-elected parliamentarians, political opposition or even ambivalence to committing the major investment required would, and indeed did, lead to inaction. For the first time, the Parliamentary Works (Restoration and Renewal) Act 2019 moves this authority away from parliamentary authorities and places it instead with the Sponsor Body. The shift is not as clear as it may appear, however. The Corporate Officers remain responsible for normal maintenance and repairs to the parliamentary estate ahead of decant, the date of which remains unknown. Furthermore, whether decant, as originally agreed by Parliament, will even happen cannot be guaranteed. Soon after his election as Commons Speaker in 2019, Sir Lindsay Hoyle suggested that future cohorts of MPs may want to rethink the decision to move out.88 Other leading figures have gone even further. While a strategic review carried out by the Sponsor Body reasserted full decant as unavoidable, the response of the current Leader of the House, Jacob Rees-Mogg, was openly critical of the idea: The proposal for Richmond House and the Queen Elizabeth II Centre was that there would be about £1.5 billion of expenditure on temporary Chambers. This cannot have been a sensible thing to do even in less straitened financial times; in the current circumstances, it seems to me to be for the birds.89

In April 2021, the House of Commons Commission, chaired by the Speaker, instructed the Sponsor Body to explore the cost of ‘maintaining a continued presence in the Palace of Westminster during Restoration and Renewal’ as an alternative to full decant. Meg Hillier, the Chair of the Public Accounts Committee, has warned that this approach would cause confusion around accountability: He is also proposing options that would lead to a lack of clarity over who is responsible. If we had a hybrid set of working, are the contractors, the Sponsor Body or the Delivery Authority responsible, or is the Clerk of the House? If something went wrong, who is in charge in that complex set-up? We need to be clear that those are dangerous and risky options.90

The Parliamentary Relationship Agreement states that the ‘risk owner’ for fire risk during R&R will remain with the corporate officers, unless there is a full decant – a partial decant would therefore place the Clerks back in the invidious position of being responsible for safety but without the necessary powers to act. Risk owner: The Corporate Officers for premises which are under their possession or for which there is a mixed occupancy (with the Programme). The risk transfers to the 88 BBC News ‘New Speaker to disallow unusual parliamentary procedures’ (7 Nov 2019) www.bbc. co.uk/news/uk-politics-50336267 (accessed 19 December 2021). 89 Restoration and Renewal Programme Strategic Review March 2021; HC Deb 11 Mar 2021, col 1017. 90 HC Deb 20 May 2021, col 928.

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Sponsor Body where premises have been fully vacated and possession transferred to the Sponsor Body.91

B. Political Independence The request from the Commons Commission regarding partial decant, also demonstrates the inherent difficulty in maintaining a single client – the Sponsor Body – for the project – rather than two separate Houses with conflicting ideas and positions. There has been a clear split between MPs and Peers on the issue of decant, as demonstrated by the Minutes from the House of Lords Commission’s meeting in September 2020: Commission members expressed concern at the Sponsor Body and Delivery Authority being asked to explore a fundamental review of the delivery strategy for the restoration of the Palace. Members spoke of inappropriate interference, the increasing risk of fire and mechanical and electrical failure and the unnecessary extra expense associated with exploring options which had been examined in detail in the past. There was a discussion about communicating this view to the House of Commons and, possibly, externally.92

Furthermore, while the Sponsor Body was also created to minimise political micro-management, it has still found itself the recipient of surprise political interventions. In July 2020, the Prime Minister wrote to the Chief Executives of the Parliamentary Works Sponsor Body and Delivery Authority to as that a review they were conducting into R&R should reconsider how the programme should be delivered, including new options for decant accommodation in London and also in York, in line with the government’s own plans to establish a ‘Government Hub’ in the city (and further to reports earlier in 2020 that the government planned to move the House of Lords there).93 In a demonstration of independence, the Chief Executives declined the Prime Minister’s request, noting that ‘the option of locating Parliament outside London has constitutional implications, which makes this a matter for both Houses to determine rather than for our review’. They drew on the support of the Speakers of both Houses to support this position, in a move which can be viewed as a re-assertion of R&R as a parliamentary, rather than government project.94 91 House of Commons Commission, Decisions 19 April 2021, committees.parliament.uk/publications/5637/documents/55615/default (accessed 19 December 2021). 92 House of Lords Commission Minutes Tuesday 15 September 2020 committees.parliament.uk/ publications/2879/documents/27942/default (accessed 19 December 2021). 93 Boris Johnson Letter dated 15/07/2020 from Prime Minister Boris Johnson to Sarah Johnson and David Goldstone, Chief Executive Officers, Houses of Parliament Restoration and Renewal (R&R) Sponsor Body, and Delivery Authority, regarding the strategic review of the Parliamentary R&R programme and considering relocation of Parliament Deposited paper reference: DEP2020-0426 data. parliament.uk/DepositedPapers/Files/DEP2020-0426/Letter_PM_to_Mr_David_Goldstone_CBE_ and_Ms_Sarah_Johnson.pdf (accessed 1 August 2021). 94 Sarah Johnson and David Goldstone Joint letter dated 18/08/2020 from Sarah Johnson and David Goldstone, Chief Executive Officers, Houses of Parliament Restoration and Renewal (R&R) Sponsor

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The R&R project will, however, remain reliant on cooperation from the governing party to succeed. The next stages of parliamentary approval will be a vote on the Outline Business Case, due in 2023. While the 2018 vote on full decant succeeded, it was by a narrow margin of 16 votes and with the majority of Conservative MPs opposed (as discussed in section IV). Furthermore, this narrow victory took place under a hung Parliament; it is expected that the next parliamentary vote on R&R will take place while the Conservative Government has a working majority of 85 votes. Furthermore, the timing of the vote will depend on the government scheduling the necessary time on the floor of the House of Commons: the 17-month delay in debating the Joint Committee’s report between 2016 and 2018 demonstrates that this cannot be assumed to happen promptly.

C. Speaking for the Palace of Westminster The Parliamentary Buildings (Restoration and Renewal) Act further offers the potential to answer, at least in part, the question of ‘who speaks for Parliament?’, as discussed by Norton, Kelso, and Yong.95 While the Elizabeth Tower repairs were disowned by each and every parliamentarian who may have been involved in their approval, R&R has a parliamentary spokesperson in each House, who can be held to account for the decisions of the Sponsor Body. While Norton previously expressed concern that there is no equivalent of a company chair, someone who can speak for the institution, not least at times of crisis. There is no chief executive officer of Parliament and the chief executive officer of each House is not analogous to the CEO of a major corporation.96

There is now a Chair and Chief Executive of the Sponsor Body who have ‘spoken for’ the project, through op-ed news articles and on-the-record quotes.97 It remains to be seen, however, the extent to which R&R has political figures who

Body, and Delivery Authority, to Prime Minister Boris Johnson, regarding the strategic review of the R&R Programme (in reply to the Prime Minister’s letter of 15/07/2020 DEP2020-0426 Deposited paper reference: DEP2020-0504 data.parliament.uk/DepositedPapers/Files/DEP2020-0504/Letter_to_ Prime_Minister_Scope_of_Strategic_Review_R_R.pdf (accessed 1 August 2021). 95 A Kelso, Parliamentary Reform at Westminster (Manchester, Manchester University Press, 2009); P Norton ‘Speaking for Parliament’ (2017) 70 Parliamentary Affairs 2, 191; and B Yong ‘The Governance of Parliament’, in A Horne and G Drewry (eds), Parliament and the Law 2nd edn (Oxford, Hart Publishing, 2018) 75. 96 Norton (n 95) 201. 97 For example, S Johnson, ‘‘Parliament is falling apart faster than it can be fixed’ – what next for the Restoration and Renewal?’ PoliticsHome (London, 1 July 2020) politicshome.com/thehouse/article/we-are-ready-to-help-parliament-renew-itself (accessed 1 August 2021); L Peace ‘The Restoration and Renewal of the Palace of Westminster can make the whole country proud’ PoliticsHome (London, 10 June 2019) www.politicshome.com/thehouse/article/the-restoration-and-renewal-of-the-palace-ofwestminster-can-make-the-whole-country-proud (accessed 1 August 2021).

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will act as champions or figureheads for the programme, both inside and outside Westminster. During the passage of the Bill, the then Leader of the House, Andrea Leadsom, emphasised that the governance structure was designed to ensure that the work to repair the physical structure of the Palace would not be jeopardised by the politics taking place within that structure: Very specifically, I have taken steps to ensure that the Bill will succeed any changes of leadership, any changes of Government, so that we will be back in here in the 2030s, under the sponsorship and leadership of Parliament as a House.98

There is a fine balance, however, between insulating the project from the vagaries of parliamentary politics and maintaining the political support necessary for the programme to succeed. The pre-legislative scrutiny committee were particularly keen to ensure that the governance structure included a specific role for the Treasury, which would ultimately be funding R&R, recommending that ‘the Bill be amended to provide that a Treasury Minister should be an additional member of the Sponsor Body’.99 The report explained the Committee’s thinking: Parliament has determined that the Treasury should be subordinate to Parliament in shaping Restoration and Renewal and in accepting or rejecting the costs of the project. The governance of the programme will require partnership led by the Sponsor Body on behalf of Parliament. In order to underpin the hierarchy of decision making and to provide clarity to those delivering the project we recommend that the Sponsor Body be required to draft a terms of agreement with the Government which would firmly establish what the project will deliver for the taxpayers’ money being provided by the Treasury. However, we do not consider that this on its own will provide sufficient political buy-in from the Treasury over the course of this long project.100

The government rejected this recommendation, arguing that the requirement for the Treasury to be consulted on the annual R&R estimate, and for any comments to be laid before Parliament, would provide sufficient transparency.101 It is questionable, however, whether this addresses the committee’s concern about political buy-in. With no Treasury minister, or indeed any government representative, on the Sponsor Body, it also remains to be seen what type of public role the government will take if R&R experiences the delays and cost increases incurred in the Elizabeth Tower repairs, or if public opinion turns against the project and its multibillion price tag. In particular, there is a lack of clarity over the role of the Leader of the House: at present the Leader introduces debates on R&R in the Commons but does not have a formal role in the programme. As outlined above, the current

98 HC

Deb 21 May 2019, col 644. Committee on the Draft Parliamentary Buildings Bill (n 69) 36. 100 ibid. 101 Leader of the House of Commons and Leader of the House of Lords, Government Response to the Report of the Joint Committee on the Draft Parliamentary Buildings (Restoration and Renewal) Bill (CP90 7 May 2019) 13. 99 Joint

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occupant of the role, Jacob Rees-Mogg, has expressed concerns about the prospect of a full decant, and stressed the need for the views of parliamentarians to be given weight by the Sponsor Body, or example as below: I am encouraged by the current explorations into whether a maintained presence is possible in the Palace of Westminster during the works and look forward to the conclusion of the Sponsor Body’s explorations in this regard. That is precisely the sort of issue on which it is quite right that guidance is provided by parliamentarians, who need to ensure that during this period our ability to conduct effective scrutiny is not unduly hindered.102

Rees-Mogg has also raised the possibility of R&R costing up to £20 billion, a figure the Sponsor Body has stated ‘it does not recognise’.103 The Leader of the House serves a dual role, defined by one of its former occupants as ‘the Government’s representative in Parliament and Parliament’s representative in government’.104 In an earlier edition of this book, Yong noted the conflict inherent within this role, arguing that while ‘the Leader of the House can be a powerful actor in terms of House administration’ their duty to the government almost always takes precedence over their duties to the House.105 If so, the Leader may be required to personify the government’s apparent lack of support for R&R. But in the case of R&R, defining the Leader’s responsibility ‘as Parliament’s representative in government’ is not clear-cut: does representing Parliament mean representing the views of the 649 other MPs to the government? (Greg Power, a special adviser to Robin Cook as Leader of the House noted that it was (wrongly) believed by Number 10 that Cook had viewed his role as ‘a shop steward for the backbenches).106 Or is it to represent the institution – which might require the Leader to take an active role in promoting the work necessary to prevent a catastrophic failure of the Palace of Westminster? The interpretation adopted by the current Leader of the House, and his successors, may prove critical to the future of Restoration and Renewal.

VI. Conclusion In January 2021 the Chief Executive of the Parliamentary Works Sponsor Body, Sarah Johnson, warned that ‘the Houses of Parliament are falling apart faster than

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Deb 20 May 2021, col 909. Deb 11 March 2021, col 1006; HL Deb 6 April 2021, col WA14480. Deb 26 October 2017, col 459. 105 Yong (n 95) 89. 106 G Power, ‘ The Politics of Parliamentary Reform: Lessons From The House Of Commons (2001–2005)’ (2007) 60 Parliamentary Affairs 504. 103 HC 104 HC

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they can be fixed’.107 The scale of the long-term challenge facing the Palace did not reduce or disappear while the institution tackled the immediate and substantial challenge of the coronavirus pandemic – instead it added further delays to the work of the Sponsor Body, pushing back the completion of the Outline Business Case for consideration by MPs and Peers.108 Some MPs have argued that the costs of R&R are even less justifiable ‘in a time when the nation’s finances are stretched by the pandemic’.109 Furthermore, there is no sign that R&R will adopt any of the temporary arrangements used during the pandemic to streamline the project – the Sponsor Body reported in March 2021 that: While both Houses have demonstrated that it is possible for their core proceedings (chamber and committees) to be undertaken remotely, in general terms the feedback received as part of there view and in other engagement suggested that there is a low appetite among Members of both Houses to consider continuing with these arrangements post-COVID-19. Thus, planning for decant should not rely on remote working, or virtual or hybrid arrangements, which cannot fully replicate the value of face-to-face working, including voting in person.110

The project remains, therefore, substantial in scale, duration and price-tag. Furthermore, despite the creation of the independent Sponsor Body and Delivery Authority, it is also likely to remain a substantial governance challenge for the institution of Parliament. The pandemic has shown how the project cannot be isolated from the broader political climate. The interventions from government ministers are likely to be repeated, multiple times through the next decade and beyond. The design and plans for the restored Palace will provoke questions about the type of parliamentary democracy we want for the future, and how this can be facilitated by the parliamentary building. Restoration and Renewal is far more than simply a building project.

107 Public Accounts Committee, Correspondence from the Houses of Parliament Sponsor Body on the Houses of Parliament Restoration and Renewal Programme, dated 5 January 2021 (HC 2019–21 549) committees.parliament.uk/publications/4413/documents/44703/default/ (accessed 19 January 2022). 108 Restoration and Renewal Programme, Strategic Review (March 2021) assets.ctfassets.net/vuyl khqhtihf/6FHPwIY7BdBFQXRoPdadQq/461ecf229f91ff743153f8a49ef39080/4107-RRP-CO-SG00003_01_U_v9_-_main_report.pdf (accessed 20 December 2021). 109 HC Deb 20 Mar 2021, col 948, see also cols 953, 935. 110 Restoration and Renewal Strategic Review March 2021 (n 108) 42.

5 Parliament and Legislative Scrutiny: Lessons from Brexit and COVID-19 LOUISE THOMPSON

I. Introduction Speaking in the early days of the coronavirus pandemic, the former Health Secretary, Matt Hancock MP, told MPs that while ‘this House may have to function differently … the ability to hold the Government to account and to legislate are as vital in a time of emergency as in normal times’.1 His comments demonstrated how Parliament’s role in scrutinising government and giving assent to government legislation is uncontested. Though there is debate around the effectiveness of this scrutiny and the capacity of parliamentarians to undertake scrutiny work, it remains a core function of both the House of Commons and the House of Lords. Two events since 2019 however, have emphasised the importance of scrutiny. The consideration of legislation required to fulfil the UK’s withdrawal from the European Union dominated the parliamentary timetable in the 2017–19 session, accounting for one fifth of Commons time.2 The role and powers of Parliament became ‘increasingly controversial’ and were ‘intensely contested’.3 Second, the coronavirus pandemic dominated Parliament through 2020.4 The word coronavirus was mentioned in the Commons for the first time on 23 January 2020, yet just a few weeks later Boris Johnson’s Government were taking a 102 clause Coronavirus Bill through the Commons. Over the next 12 months the official Hansard report of proceedings recorded over 1,300 references to coronavirus5 and, as a recent publication by the Study of Parliament Group has noted, the exercise of Parliament’s

1 HC

Deb 11 March 2020, col 377. Marshall, A Lilly, MT Jack and H White, Parliamentary Monitor 2020 (Institute for Government 2020) 30. 3 M Russell, ‘Parliament and Brexit: The Anatomy of a Perfect Storm’ (2021) 74 Parliamentary Affairs,443; AL Young, ‘In Defence of Due Deference’ (2009) 72 MLR 554. 4 This will be referred to throughout as the Covid-19 pandemic. 5 A total count of 1,322 references to ‘coronavirus’ or ‘covid’ are listed on the parliament.uk Hansard search tool between 23 January 2020 and 23 January 2021. 2J

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core legislative and scrutiny functions during this period became ‘more difficult and more challenging and, often, less effective’.6 The difficult parliamentary and political context facing both Theresa May and Boris Johnson during the 2017–19 and 2019–19 sessions are well documented elsewhere.7 These studies have inevitably focused on if and how the balance of power tilted in favour of the Commons and the inability of existing Commons’ procedures and voting mechanisms to find a solution to the impasse between various parliamentary factions. Press and public attention inevitably focused on Prime Minister May’s inability to secure approval for her Brexit deal on three occasions and the growing influence of the European Reform Group (ERG).8 Studies of the COVID-19 pandemic and its impact on Parliament are sparse but largely consider the impact of the changes to parliamentarians’ participation from outside the chamber and the use of technology to create a hybrid debating chamber. This chapter identifies several important features in the scrutiny undertaken by Parliament since 2017. Some of these relate to innovations in legislative procedure, such as the sifting mechanism instituted for the consideration of delegated legislation in both Houses. Others are the result of the changing significance of Parliament’s work, either due to the format of scrutiny, or the increased visibility or significance of the scrutiny work being carried out. The bigger issues raised by scrutiny during this period, however, are not new. Rather, the difficulties in the scrutiny and passage of, the government’s Brexit legislative programme, combined with the coronavirus pandemic have served to illuminate pre-existing tensions and issues around scrutiny processes. This includes the relationship between government and Parliament, as well as the effectiveness of individual scrutiny mechanisms and the means by which MPs and peers are able to scrutinise as both individual legislators and as members of political parties. Drawing on interviews with opposition MPs on their experiences during the pandemic,9 this chapter argues that if we are to strengthen Parliament’s scrutiny role for the future, we should focus more attention on increasing the capacity of the institution and its members to scrutinise, ensuring that all Members of Parliament have the same opportunities to scrutinise, regardless of their party-political affiliation. We must also recognise that there is also a gap between parliamentary and public views of

6 P Evans, C Salmon-Percival, P Silk and H White (eds), Parliaments and the Pandemic (Study of Parliament Group, 2021) 4. 7 See, for instance Russell (n 3) and L Thompson ‘From Minority Government to Parliamentary Stalemate: Why Election 2019 was needed to break the Brexit logjam’ (2020) 73 Parliamentary Affairs 48. 8 See, eg, D Boffey, ‘Brexit: As May’s deal is defeated for the third time, the next steps explained’, The Guardian (London, 29 March 2019) theguardian.com/world/2019/mar/29/brexit-as-parliament-votesagain-what-happens-next (accessed 14 July 2021). 9 These interviews formed part of an Economic and Social Research Council funded project on small parties in the UK’s Parliaments [ES/R005915/2].

Parliament and Legislative Scrutiny 115 scrutiny. While cross party work taking place outside formal parliamentary spaces has been a positive feature of contemporary scrutiny, the public scrutiny exhibited within these formal spaces contributes towards an atypical and rather narrow view of Parliament’s work.

II. Parliament as Legislator While we can be forgiven for expecting MPs to act as law makers as part of their day-to-day work, academics and practitioners encourage us to see their primary role more as that of ‘scrutineer’10 rather than legislator. They also encourage us to view Parliament not as a single, united actor, but rather as a series of different actors as well as formal and informal political groupings.11 The 2017–19 session had seen the House of Commons unable to reach a consensus on the future of the Brexit deal, with intra as well as inter party divisions. Chapter ten details some of these struggles, highlighting not just intra-party splits, but further conflict between legislature and executive. Post 2019, these divisions have simmered down somewhat, with the Commons and the Lords becoming more united actors during the initial period of the coronavirus pandemic, as well as in the run up to the end of the Brexit transition period. Regardless of the format in which this scrutiny role takes place or the actors involved, it continues to account for a large amount of parliamentary time. The Institute for Government calculated that the Commons spent one fifth of its time debating covid in the 2019–21 session through statements, parliamentary questions and legislation, though only three Bills were introduced to manage the pandemic.12 A further eleven Bills would deal in some way with Brexit.

III. The Importance of Legislative Scrutiny on the Floor of the House One of the most notable changes in legislative scrutiny in the post 2017 period has been the emphasis on legislative scrutiny on the floor of the House of Commons. This is not so much the result of changes in procedure, but rather changes which were forced by the volume of legislation with constitutional implications as a result of the EU withdrawal process and the suspension of legislative committees in the first half of 2020. The European Union (Withdrawal Agreement) Bill, for instance, 10 eg, A Tomkins, ‘What is Parliament For?’, in N Bamforth and P Leyland (eds), Public Law in a Multi Layered Constitution (Oxford, Hart Publishing, 2003) 54. 11 See B Yong ‘ The Governance of Parliament’, in A Horne and G Drewry (eds), Parliament and the Law 2nd edn (Oxford, Hart Publishing, 2018) 75 for more on this. 12 A Lilly, H White, P Shepley, J Sargeant, K Osei and S Olajugba, Parliamentary Monitor 2021 (Institute for Government, 2021) 17.

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spent over 65 hours in committee stage on the floor of the Commons in the 2017–19 session.13 The requirement to scrutinise the legislation for EU withdrawal facilitated a marked increase in the hours spent scrutinising government Bills in Committee of the Whole House at this time. Across the 2017–19 session this amounted to 103 hours, well over twice that of the 2016–17 session.14 The emphasis on the chamber was further reinforced during the COVID-19 pandemic when MPs were unable to scrutinise legislation in the normal way. For a substantial period of time between March and June 2020, Public Bill Committees (PBCs) and delegated legislation committees were unable to sit. Hybrid proceedings commenced in the Commons on 22 April, enabling MPs to participate virtually in scrutiny business in the chamber and allowing them to scrutinise the Coronavirus Bill, whose 87 clauses and 27 schedules stretched to over 300 pages of legislation. The necessary resources required to extend this virtual participation to legislative committees were not available. Therefore, all legislation that was to be scrutinised during this period, such as the Corporate Insolvency and Governance Bill, was considered on floor of the House, even if it would ordinarily have been considered in a Bill committee. Other legislation was delayed, with the Leader of the House himself admitting to a ‘blockage’ in the government’s legislative agenda.15 Business Questions in the chamber on 4 June 2020 were particularly revealing of the government’s attitude to legislative scrutiny, with the Leader of the House repeatedly suggesting that those MPs asking for arrangements be made for continued virtual or hybrid scrutiny proceedings were themselves the ones responsible for preventing ‘the routine work of legislation’ being unable to take place.16 The government view was that the legislative backlog needed to be dealt with through in person scrutiny in the chamber. Jacob Rees Mogg repeated asked his opposite number and other opposition MPs, ‘How many of those Bills do the Opposition want to abandon?’.17 Committee scrutiny of legislation did not recommence until mid-June 2020, meaning that important legislation was delayed. This included the Environment Bill, which had already stalled as a result of the December 2019 General Election. Even when PBCs were back up and running, the floor of the House continued to be used more frequently to enable the government to catch up with its legislative programme. This came at the expense of other business, such as backbench business debates and Private Members’ Bills (PMBs).18 The Institute for Government

13 See sessional diaries 2017 – 19, 19 www.parliament.uk/globalassets/documents/commonscommittees/journal-office/sessional-dairies/commons-sessional-diary-2017-19.pdf (accessed 4 January 2022). 14 In 2016–17 the Commons spent 42 hours in Committee of the Whole House, compared to 57 hours in 2015–16. 15 Jacob Rees Mogg, HC Deb 4 June 2020, col 1048. 16 HC Deb 4 June 2020, col 1045. 17 ibid, col 1042. 18 See HC Deb 2 July 2020, col 523.

Parliament and Legislative Scrutiny 117 calculated that in the 13 months from March 2020, debates in Westminster Hall and on PMBs were ‘not possible for almost half the time’.19 This legislative focus on the chamber sits alongside other developments such as the greater emphasis on ministerial scrutiny and accountability. The doubling of the length of the ‘exceptional’ Prime Minister’s Question Time slot by Speaker Lindsay Hoyle on 25 March 2020 emphasised the importance of scrutiny from the floor and of holding the Prime Minister to account in a very public setting.20 Similarly, the increase in the use of Urgent Questions in the Commons and Private Notice Questions in the Lords21 during the 2019–21 session demonstrated the need to hold ministers to account at short notice. At times, these have been used by MPs to question ministers on legislation. Carla Lockhart for example, asked an urgent question on the Abortion (Northern Ireland) Regulations in March 2021.22

IV. Working with Time Limitations Time is always a potent weapon in the scrutiny relationship between government and Parliament, and the scrutiny of Brexit legislation was no exception. At the very beginning of the process the then Brexit Secretary David Davis, had promised that Parliament would be ‘intimately involved’ at every stage.23 It quickly became apparent that opposition MPs in particular did not feel that they were being given adequate opportunities to do so. The issue made the front pages of the newspapers in early 2017 when a heated exchange of words between two SNP MPs (Joanna Cherry and Alex Salmond) and the then Deputy Speaker Lindsay Hoyle during the Report Stage of the EU (Notification of Withdrawal) Bill demonstrated the difficulties of passing controversial legislation within a hasty scrutiny timetable.24 The SNP’s domination of the second day of the Bill’s report stage, with Patrick Grady taking 41 interventions from his colleagues during an hour-long speech demonstrated how political parties can abuse procedures if they feel that they have not had a reasonable opportunity to contribute to legislative scrutiny.25

19 Lilly,

White, Shepley, Sargeant, Osei and Olajugba (n 12) 21. Deb 25 March 2020, col 330. 21 See P Norton, ‘ The Impact on Behaviour in the House of Lords’, in P Evans, C Salmon-Percival, P Silk and H White (eds), Parliaments and the Pandemic (Study of Parliament Group 2021) 85, 88. 22 HC Deb 25 March 2021, col 1071. 23 HC Deb 13 November 2017, col 37. 24 See A Tolhurst, ‘‘Sit Down Mr Salmond!’ Extraordinary late-night row breaks out in the House of Commons after Alex Salmond explodes at deputy speaker for cutting off SNP MP during the Brexit debate’, The Sun (London, 7 February 2017) www.thesun.co.uk/news/2804108/house-of-commonsexplodes-into-late-night-row-after-alex-salmond-accuses-deputy-speaker-of-cutting-off-snp-mp/ (accessed 14 September 2021). 25 For more detail on the SNP’s exasperation with the time available for scrutiny here, see L Thompson, The End of the Small Party? Change UK and the Challenges of Parliamentary Politics (Manchester, Manchester University Press, 2020) 97–100. 20 HC

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Concerns about the scrutiny time available to MPs continued to be aired throughout the 2019–21 parliamentary session. Of particular note was the announcement by the Leader of the House on 17 December 2020 that MPs may be recalled following the end of negotiations, to debate and pass the European Union (Future Relationship) Bill, which implemented the EU-UK trade deal.26 When MPs duly arrived back in Westminster on 30 December to debate the Bill, Shadow Leader of the House Valerie Vaz described the five hours of time available to debate the Bill as ‘unacceptable’.27 She noted that the Official Opposition felt they had no choice but to support the Bill in order to enable the UK to meet its commitments by the end of the transition period the following day. The SNP moved an amendment to try to secure additional time which was defeated by 60-362 votes. Similar attempts in the Lords also failed. Despite MPs tabling 14 pages of amendments to the 40-clause Bill, there was no time for any Member to speak at the Bill’s committee stage, which lasted ‘a mammoth four minutes’.28 The Bill had to be either accepted or rejected in its entirety and was passed by 521-73 votes.29 Speaking on the Bill’s second reading in the Lords shortly after the Commons vote, Baroness Haytor spoke of the contrast between Parliament’s usual scrutiny role and what parliamentarians were being asked to do in order to meet the transition timetable: In normal times, our role would be to scrutinise this Bill, to test whether it fulfils its role, and to ensure that it is workable and allows for transparency and accountability. Sadly, that is not what we can do today, thanks to the Government having delayed and delayed, perhaps even to avoid such scrutiny in your Lordships’ House.30

Continuing this theme, Lord Newby spoke of his frustration with ‘hundreds of pages of law’ which would go ‘unread, unanalysed and unquestioned’.31 The difficulties in scrutinising the entirety of legislation within the time periods set by the government are certainly not new, but the willingness of the government to run down the clock on Brexit-related legislation was a very notable feature of the 2017 and 2019 Parliaments. As Alice Lily has noted, there is an inconsistency in the way the government warned MPs about the dangers of scrutinising legislation too fast during the passage of the Benn-Burt Act in 2019 which sought to prevent a no-deal Brexit,32 yet was content to compress parliamentary scrutiny in order to meet the transition deadline.33 Just a few months later the press would highlight

26 HC

Deb 17 December 2020, col 385. Deb 30 December 2020, col 508. 28 David Linden, HC Deb 30 December 2020, col 594. 29 HC Deb 30 December 2020, cols 594-599. 30 HL Deb 30 December 2020, col 1809. 31 Lord Newby, HL Deb 30 December 2020, col 1811. 32 HC Deb 3 September 2019, col 100. 33 A Lilly, ‘ The Brexit deal is the latest case of the Government’s disregard for Parliament’ (Institute for Government, 31 December 2020) www.instituteforgovernment.org.uk/blog/brexit-governmentdisregard-parliamentary-scrutiny (accessed 10 October 2021). 27 HC

Parliament and Legislative Scrutiny 119 the ‘significantly more time’ set aside by the government for tributes to be paid to Prince Philip in April 202134 and suggesting that perhaps more time could have been found to debate such an important piece of legislation. The legislative scrutiny of the Coronavirus Bill reignited concerns about the time available for legislative scrutiny to take place, but it posed a slightly different problem for MPs. Despite containing what Shadow Health Secretary Jonathan Ashworth described as ‘the most draconian powers ever seen in peacetime Britain’,35 the Bill was allocated little scrutiny time in either chamber. It took just six calendar days from first reading in the Commons to Royal Assent in March 2020, with the actual debate on the Bill being completed in just three days.36 The recognition among almost all MPs that there was no real alternative to the short scrutiny time brought some parallels with the European Union (Future Relationship) Bill. However, the realities of the pandemic added a more palpable sense of urgency. Jonathan Ashworth told the House, ‘we have to debate the Bill today’,37 while former Secretary of State for Health Jeremy Hunt told MPs that ‘every day we delay [with scrutiny] could cost lives’.38 The House of Lords Constitution Committee would later describe how the fast-tracking of the Coronavirus Bill ‘seriously curtailed parliamentary scrutiny of important and wide-ranging legislation’.39 Even the reconsideration of the temporary provisions set out within the Bill were given only a 90 minute scrutiny slot when the Bill came back to the Commons in September 2020 and March 2021. Although Secretary of State Matt Hancock told the House that his hands were tied, others, including Professor Alison Young, have said that there was ‘no justification’ for it.40 There was a noticeable contrast between the amount of time the coronavirus legislation had been put together by government officials and the time afforded to Parliament to consider it. Matt Hancock described how the Bill had been ‘worked on over the past three months at incredible pace’41 yet, after the opening frontbench speeches, Deputy Speaker Dame Rosie Winterton was already stressing the ‘immense pressure on time’. She asked those MPs who had already made interventions to reconsider making speeches and noted that it was ‘very difficult to see how everybody who has put their name down … [to speak] … can all get in’.42 This echoes the broader time struggles facing parliamentarians engaging in

34 J Stone, ‘MPs to spend seven and a half hours giving tributes to Prince Philip, longer than scrutiny for final Brexit deal’ The Independent (London, 12 April 2021). 35 Jonathan Ashworth, HC Deb 23 March 2020, col 59. 36 The Bill completed its Commons stages on 23 March 2020 (with exception of its first reading on 19 March), before being considered in the Lords on 24 and 25 March 2020. 37 HC Deb 23 March 2020, col 53. 38 ibid, col 61. 39 Constitution Committee, Covid 19 and the Use and Scrutiny of Emergency Powers (HL 2021–22, 15) 15. 40 A Young, in Constitution Select Committee, Evidence Session 15, 18 November 2020 Q193 committees.parliament.uk/oralevidence/1265/pdf/ (accessed 19 January 2022). 41 HC Deb 23 March 2020, col 38. 42 ibid, col 61.

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scrutiny from April 2020 as they dealt with the pandemic. Six government Bills in the 2019–21 session would complete their Commons scrutiny in five sitting days or fewer.43 The move to virtual or hybrid parliamentary proceedings also affected the time available for MPs and peers to scrutinise legislation. The publication of a call list for debates in the Commons was a positive development in the sense that it enhanced the transparency around who would be called to speak and provided a sense of security for MPs who would ordinarily be unsure whether they would be called to scrutinise legislation at all. In the Lords however, where debates have traditionally been open to all who wish to make a contribution, the move to wholly virtual proceedings saw limitations placed on the number of speakers. Philip Norton writes of the frustration felt by peers who were excluded in this way, particularly those who had expertise in the area being examined. He cites the scrutiny of the Agriculture Bill as a prime example of this, in which 32 peers who wished to contribute to the second reading debate were unable to do so.44 Several peers raised the lack of scrutiny time during their contributions. They included the Earl of Devon, who pressed the usual channels to ‘be sympathetic and not rush [the bill] through this House’ on the basis that ‘many more expect voices than mine are silent today’.45

V. Short-Term Cross Party Legislative Consensus We know that the scrutiny of most Brexit legislation saw a very divided House of Commons and, as chapter ten notes, some tense conflicts between government and Parliament. The scrutiny atmosphere changed in 2020 however, with the pandemic necessitating a much more overt degree of cross-party working. This is not to say that cross party legislative work was not occurring prior to 2020. Indeed, after the first defeat of the meaningful vote in January 2019, Theresa May announced that she would meet with ‘senior Parliamentarians from across the House’ in constructive efforts to make progress.46 Following the third defeat of her Brexit deal in April 2019 she offered to enter into formal negotiations with the Official Opposition ‘to break the logjam’.47 As Russell notes, however, constructive, cross party negotiations on Brexit came too late to be workable as ‘battle lines had become too firmly drawn to be dismantled’.48 It was backbench cross party cooperation which was more significant at this time. Some of the most significant

43 Lilly,

White, Shepley, Sargeant, Osei and Olajugba (n 12) 24. (n 21) 86. 45 HL Deb 10 June 2020, col 1784. 46 HC Deb 15 January 2019, col 1126. 47 UK Government, PM Statement on Brexit, 2 April 2019, www.gov.uk/government/speeches/ pm-statement-on-brexit-2-april-2019 (accessed 1 October 2021). 48 Russell (n 3) 451. 44 Norton

Parliament and Legislative Scrutiny 121 moments in the Brexit process involved backbenchers from across the two main parties coming together to force change. The PMB proposed by Yvette Cooper and Oliver Letwin in 2019 which became the European Union (Withdrawal) Act 2019 or the European Union (No 6) Bill put forward by Hilary Benn, Alistair Burt and others, are good examples of this cooperation between government and opposition MPs. The 2019–21 session, however, saw a much greater degree of formal cooperation between government and Parliament. This cooperation was both more formalised and wider in scope. It also came about at the beginning of the pandemic and not, as in the case of Brexit, only when a majoritarian approach on the part of the government had been exhausted. Although a series of regulations were introduced by the government in early March 2020 as they sought to deal with the escalating effects of the pandemic, it was the Coronavirus Bill which constituted the key part of the government’s Coronavirus Action Plan. This Action Plan, published on 3 March, committed the government to drafting coronavirus legislation if needed. It additionally committed the government to ensuring that ‘any necessary changes to legislation are taken forward as quickly as possible’.49 Then Health Secretary Matt Hancock repeatedly told the house that ‘the best way to deal with an outbreak like this is on a bipartisan basis’,50 insisting that it was ‘not a political matter’ but a matter of ‘keeping the public safe’.51 The Official Opposition were quick to echo this spirit of bipartisanship, telling Hancock that they would ‘like to sit down with him in order to understand the content of that legislation, because we want to work on a cross party basis’.52 Cooperation from the government went beyond the Official Opposition, with every political party represented in the Commons being approached formally by the government. This came as something of a surprise to the smaller opposition parties, who were invited to a government briefing the week before the Coronavirus Bill had begun its scrutiny in the Commons for a ‘very frank discussion’ in which the most controversial clauses were aired and discussed. The briefings were productive and meant that no ‘big surprises’ were revealed when the Bill began its second reading debate in the Commons.53 This approach was ‘extremely unusual’ in terms of legislation at Westminster. As one MP noted, ‘even at the height of the Brexit crisis, that wasn’t [happening]; there were gatherings of the opposition parties but not necessarily having the Government part of it’.54 These briefings would continue to be held – and open to all parties – on issues relating to both Brexit and the COVID-19 pandemic, such as the vaccination

49 UK Government, Coronavirus Action Plan (Department of Health and Social Care, 3 March 2020) 9. 50 HC Deb 11 February 2020, col 734. 51 ibid, col 324. 52 HC Deb 9 March 2020, col 25. 53 Personal Interview with opposition MP (15 January 2021). 54 Personal Interview with opposition MP (28 October 2020).

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programme and the disruption at UK ports in the winter of 2020. The sense of change in how the government was treating the opposition parties in terms of involving them in discussing legislation and broader policy announcements, was clear. Opposition MPs described how this cooperation moved from very infrequent and informal during the 2017 Parliament to formal and planned in the 2019 Parliament: there was always an element of informality to it in the sense that it wasn’t official. Whereas this time round, these meetings, these briefings feel a lot more official. When it comes to the briefings with ministers and their civil servants it’s very official. But when it comes, even to those more ad hoc briefings, it still has that sense of ‘ok, this is serious, this is coordinated, this is planned’. Whereas in the previous parliament with scrutiny, even though it was responsive and it was good, it felt as though it was living from controversy to controversy or from issue to issue. Whereas with these it feels more of a ‘this is a new operating procedure, this is how we do it now’.55

Although the formal processes of this bipartisan scrutiny process were initiated by the government, all parties reported feeling a greater sense of legislative responsibility and a ‘self-inflicted pressure’ to be responsible and to not oppose or criticise legislative decisions when the situation was changing so quickly.56 This cooperation extended to other related legislation. Labour’s John McDonnell for example told the House that Labour would also be ‘constructively critical’ of the Contingencies Fund Bill 2020.57 The Contingencies Fund was utilised to fund the support packages announced by the government during the pandemic, such as loan guarantees and the job retention scheme. Its usage in 2020–21 totalled £102 billion; over 11 times greater than in any year since 2010.58 MPs highlighted the willingness of the government to make amendments to the Coronavirus Bill at the beginning of its scrutiny. Indeed, at the Bill’s committee stage, Deputy Speaker Eleanor Laing pointed out the large number of last minute manuscript amendments tabled by the government that same day.59 Matt Hancock told the House that the government had ‘taken on ideas from all parties’.60 This included the addition of a series of regular votes in order to allow the continuation of the temporary powers which the Bill afforded to government ministers to deal with the pandemic, something the Paymaster General described as ensuring ‘proportionate accountability’.61 Constructive scrutiny was certainly welcomed by MPs across all parties, but if we consider these changes in terms of the public’s own view of the institution,

55 ibid

(15 January 2021). (15 January 2021). 57 HC Deb 24 March 2020, col 263. 58 L Honeysett and P Brien, ‘Contingencies Fund (No.2) Bill’ (House of Commons Library Briefing Paper 09155, 9 March 2021) 3. 59 See HC Deb 23 March 2020, col 102. 60 HC Deb 23 March 2020, col 40. 61 ibid, col 133. 56 ibid

Parliament and Legislative Scrutiny 123 this scrutiny may have made Parliament seem weaker than usual. The dominant role played by government ministers and party spokespersons in these negotiations meant that the role played by backbench parliamentarians in scrutinising legislation was drowned out. Informal cooperation between government and the opposition parties took any visible conflict between Parliament and government away from the floor of the House. This paved the way for a smoother passage of emergency coronavirus legislation, but gave an appearance that the usual scrutiny by opposition parties had been put aside. The way in which technology forced changes to procedural rules, removing the ability for MPs to intervene during other Members’ contributions, gave debates a more sterile appearance and took away the opportunity for more critical voices on statements and on legislation. MPs and peers were forced much more into short, pre-scripted statements which did not necessarily flow from one Member to the next. As Philip Norton outlines, such changes ‘[tip] the balance in favour of the executive, as ministers can make statements knowing that they are not going to be interrupted’.62 As has already been noted, this spirit of consensus and bipartisanship began to break down in June 2020 as the government asked MPs to return to the House on the basis that they had ‘really important legislation to get through’, including the Domestic Abuse Bill and the Fire Safety Bill. The scrutiny of the Contingencies Fund Bill 2021 was certainly more adversarial than it had been the previous year. Although the opposition did not oppose the second reading of the Bill, they did put forward a new clause in its committee stage to ‘ensure that the extra financial freedoms that Parliament grants in the Bill are used in a manner that reflects the importance of transparency with public money.’63 Given the unusual nature of the cooperation between the two branches in the first half of 2020, it is perhaps no surprise that it was to be only temporary.

VI. The Need for More Effective Scrutiny of Delegated Legislation As the ‘largest legislative exercise ever in the UK’, the UK’s withdrawal from the EU relied heavily on the use of delegated legislation.64 Similarly, the coronavirus pandemic also necessitated the increased use of delegated legislation to enable ministers to act quickly in what was an everchanging situation. Indeed, the first legislative response from the government came in the form of a statutory instrument. Speaking to the House in February 2020, Matt Hancock explained that the statutory instrument (SI) had been introduced to ‘confirm the power we

62 Norton

(n 21). Murray HC Deb 11 March 2021, col 1041. 64 R Fox and B Fowler, ‘Delegated Legislation’, in UK in a Changing Europe (ed), Brexit and Beyond (UK in a Changing Europe 2021) 132. 63 James

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have taken to isolate those at risk of spreading the virus, and if necessary to keep them isolated as part of our belt-and-braces approach to protecting the public’.65 Concerns about the scrutiny of delegated legislation are not new.66 However, two features of secondary legislation since 2017 have made these concerns more prominent. The first relates to the sheer volume of SIs being laid before Parliament which has far exceeded what would have previously been considered normal within a parliamentary session. The Hansard Society report 960 Brexit related SIs being laid before Parliament by the end of 202067 and a further 510 coronavirus related SIs between February 2020 and October 2021.68 The second relates to the scope of this delegated legislation and its impact on Parliament. Legislation facilitating the UK’s withdrawal from the EU conferred powers upon ministers to amend existing primary and secondary legislation in several policy areas, including customs, agriculture, fisheries and immigration. Legislation passed from 2020 onwards concerning the UK’s future relationship with the EU has contained similar provisions. MPs were well aware of the impact that this would have on Parliament. Chris Leslie for example, described the content of the European Union (Withdrawal) Bill as a ‘massive … transfer of legislative competence from Parliament to Government’ with the powers being given to ministers so sweeping that they ‘would make Henry VIII blush’.69 Similarly, the SIs laid during 2020 concerned issues such as the national lockdowns, the use of face coverings and the rules around self-isolation and business closures. The Health Protection (Coronavirus Restrictions) (England) Regulations 2020 SI was perhaps the most restrictive, stating that ‘no person may leave the place where they are living without reasonable excuse’70 and established emergency restrictions on gatherings in public places. Ruth Fox and Brigid Fowler describe the SIs prompted by Brexit and the COVID-19 pandemic as ‘some of the broadest, most constitutionally-important powers ever seen on the statute book’.71 Scrutiny procedures for delegated legislation are weak, with the vast majority being subject to the negative procedure and thus requiring no formal parliamentary approval before coming into force. Only 25 of the coronavirus related SIs between January 2020 and June 2021 required parliamentary approval.72 The speed with which SIs have been implemented through increased use of urgency procedure has added to the sense that they are falling outside Parliament’s radar.

65 HC Deb 11 February 2020, col 732. The first SIs relating to coronavirus were laid on 28 January and 10 February 2020. 66 For a pre-Brexit analysis of delegated legislation see R Fox and J Blackwell, The Devil is in the Detail: Parliament and Delegated Legislation (Hansard Society 2014). 67 Fox and Fowler (n 64). 68 Hansard Society, Statutory Instruments Dashboard www.hansardsociety.org.uk/publications/ data/coronavirus-statutory-instruments-dashboard#total-coronavirus-sis (accessed 4 January 2022). 69 HC Deb 12 December 2017, col 217. 70 Health Protection (Coronavirus Restrictions) (England) Regulations 2020, SI 350/2020. 71 Fox and Fowler (n 64). 72 Constitution Committee (n 39) 19.

Parliament and Legislative Scrutiny 125 Under the urgency procedure, found in the Public Health (Control of Disease Act 1984, SIs are given immediate legal force and will remain in force unless not approved by either House within 28 days. The Institute for Government reported that more than one in ten SIs came into force before MPs and peers had even seen them, with far more taking effect before any parliamentary approval had been given,73 with the Lords Constitution Committee putting the number of SIs being implemented through the urgency procedure at 86 by June 2021.74 The committee highlighted the ‘rule of six’ regulations as an example of this, with the SI making gatherings of more than six people a criminal offence, being published only 30 minutes before coming into force. Speaking to MPs in September 2020, Speaker Lindsay Hoyle stated that ‘the way in which the Government have exercised their powers to make secondary legislation during this crisis has been totally unsatisfactory’.75 Noting that it showed a ‘total disregard’ for the House, he added that he would be ‘very sympathetic’ to applications from MPs for urgent questions or debates in order to bring ministers to the floor of the House to justify the passage of SIs under the urgency procedure. The Lords Constitution Committee echoed these comments, finding that many uses of the urgency procedure by the government were ‘unjustified’ and were often the result of poor planning.76 Some changes were made to SI scrutiny procedures as a result of the sheer number of SIs anticipated as a result of the Brexit process. Amendments made to the EU Withdrawal Act of 2018 introduced a sifting mechanism in both houses: SIs subject to the negative procedure could be upgraded to the affirmative procedure if it was thought to be necessary. This was carried out by the newly established European Statutory Instruments Committee in the Commons and by the Secondary Legislation Scrutiny Committee in the Lords, which established sub-committees to better manage the volume of Brexit related SIs. In March 2021 its role was broadened to include SIs laid under the European Union Future Relationship Act 2020 covering areas such as the EU/UK Trade and Cooperation Agreement. The House of Lords Secondary Legislation Committee (formerly the Merits of Statutory Instruments Committee) has also taken on the role of sifter of SIs, adding to its existing work in this area. Under this new procedure, draft SIs enter a ten-day sifting period in which the committee can ask the government to upgrade an SI to the affirmative procedure. This is not an automatic upgrade, but rather a request to the government, who can assent to the request, or publish a statement explaining their reasons for not doing so. During the Bill’s scrutiny, attempts were made by the Lords to amend the sifting procedure and make upgrade recommendations binding. However, this was rejected by the government on the grounds that it was ‘an imposition on our procedures … and a threat to

73 Lilly,

White, Shepley, Sargeant, Osei and Olajugba (n 12) 5. Committee (n 39). 75 HC Deb 30 September 2020, col 331. 76 Constitution Committee (n 39) 19. 74 Constitution

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the workability of the whole process of correcting the statute book’.77 The system was to rely on the supposed ‘political cost’ of a minister refusing to agree to the committee’s recommendations.78 In practice it has been described as a ‘toothless’ procedure which adds ‘little value’ to the scrutiny process79 and means that in practice ‘MPs and peers … have had little or no involvement in the creation of some of the most important laws affecting the country.’80 What could potentially have been a stronger check on the executive therefore seems to have been muted in its operation. Parliament’s experience of scrutinising SIs in this period has generated calls from Jonathan Jones QC and the Hansard Society in particular, for the creation of a new Statutory Instruments Act to ‘democratic legitimacy, transparency and quality of law-making’81 and to bring the rules on Sis ‘into the digital age’.82

VII. Questions for the Future of Legislative Scrutiny The changes to the way Parliament carried out its legislative scrutiny work in the 2017 and 2019 Parliaments raises some broader questions about scrutiny in the future. In particular, it prompts us to consider questions about who should scrutinise, particularly in terms of the equality or parity between MPs and political parties, and about how this scrutiny should be carried out. Additionally, it raises questions about the role of the Speaker and his/her deputies in facilitating fair scrutiny and whether this should be formalised.

A. Who Should Scrutinise? On the surface this seems a straightforward question. All MPs and all political parties with representation in the Commons have the opportunity to scrutinise legislation and in this sense there is equality between MPs, regardless of whether they sit on the government or opposition benches. Plaid Cymru’s Westminster

77 HC

Deb 12 June 2018, col 735. HC Deb 12 December 2017, col 266. 79 J Blackwell, ‘EU (Withdrawal) Act SIs: will sifting make a difference?’ (Hansard Society, 11 July 2018) www.hansardsociety.org.uk/blog/eu-withdrawal-act-sis-will-sifting-make-a-difference (accessed 1 October 2021). 80 J Jones, ‘Reliance on Secondary Legislation has resulted in significant problems: It is time to rethink how such laws are created’ (Constitution Unit 13 October 2021) constitution-unit.com/2021/10/13/ reliance-on-secondary-legislation-has-resulted-in-significant-problems-it-is-time-to-rethink-howsuch-laws-are-created/ (accessed 13 October 2021). 81 ibid. 82 Hansard Society, Digital Legislation Review www.hansardsociety.org.uk/projects/delegatedlegislation-review#what-is-the-problem (accessed 21 December 2021). 78 See

Parliament and Legislative Scrutiny 127 Leader Liz Saville Roberts reminded the House of this in September 2019, telling MPs that: we need to remember in this place that every Member of Parliament is returned in exactly the same way by their constituents. Whichever party we stand and speak for, we are all here equally.83

In normal times, all MPs will have the opportunity to attend the legislative scrutiny taking place in the Commons chamber. For most Bills, this will be the second reading, report and third reading debates. Any MP is also able to attend a Bill’s committee stage if it takes place in a Committee of the Whole House. Even where a Bill receives its line by line scrutiny in a PBC, any MP is permitted to table an amendment to the Bill, though a member of the committee must be found to formally move it. In practice however, the nature of the parliamentary system means that the capacity of many MPs to do more than simply observe legislative scrutiny is limited. At a political party level, this can be even more acute. In selecting MPs to speak during a second reading debate on a Bill, the Commons Speaker must try ‘to be fair to every MP’ and to take account of party balance.84 Debates are thus inevitably dominated by contributions from MPs sitting on the government benches, or from the Official Opposition. Even the SNP, the third largest party since 2015, have described themselves as being ‘locked out’ of scrutiny.85 We can see this in the speeches made during second reading debates. If MPs from smaller parties are called to speak it will usually be towards the very end of the debate. During the second reading of the Trade Bill in January 2018 for example, Plaid Cymru did not participate until the thirteenth speech; the DUP were fifteenth and Green MP Caroline Lucas was called for the twenty-first speech. These parties had to wait over three hours before one of their members was called. It is also apparent through positions on legislative committees. The nineteen-member Fisheries Bill committee which sat in September 2020 for example saw two SNP and one Liberal Democrat members represented, while the equally-sized Trade Bill committee had two SNP members and no representation at all from any of the smaller parties. The changes brought about by the COVID-19 pandemic further affected the balance between the parties in the Commons when it came to scrutiny. In particular, the move to virtual proceedings removed the possibility for interventions during Commons debates, ordinarily a key mechanism for small party MPs to make early contributions to second reading debates on legislation. During the second reading of the Agriculture Bill in February 2020, one of the last Bills to be

83 Liz

Saville Roberts, HC Deb 9 September 2019, col 512. Rogers and R Walters, How Parliament Works 7th edn (London, Routledge, 2015) 8. 85 L Thompson, ‘Understanding Third Parties at Westminster: The SNP in the 2015 Parliament’ (2018) 38 Politics 443, 449. 84 R

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debated before the first COVID-19 lockdown, the DUP, the Green Party and the Liberal Democrats all made interventions during minister Theresa Villiers’ opening speech, ensuring that their voices were heard at the start of the debate. When the Bill came back to the Commons for its report stage in May 2020, the change to procedures meant that no interventions were allowed. The opening speeches proceeded without interruption. Plaid Cymru in particular highlighted how this had a detrimental effect on their contributions, preventing them from raising issues in debates.86 However, most of the changes were more positive and facilitated greater parity between political parties in the Commons. First, the transparency brought about by the publication of call lists during debates greatly aided backbench MPs who may otherwise have had little idea whether or not they would get to make a contribution. It brought a degree of certainty that had previously been absent from scrutiny. Second, as the Brexit impasse and the COVID-19 situation worsened, we saw a much broader range of parties receive guaranteed speaking time in the Commons than was the norm. The smaller opposition parties were largely absent from initial coronavirus scrutiny, largely as a result of the limited opportunities available to question relevant ministers and the lack of a general coronavirus debate offered by the government. However, we begin to see the Speaker calling representatives from all of the smaller opposition parties during relevant statements and legislative debates from the 16 March 2020. Still, this did not appear to go far enough and in April 2020 the Liberal Democrat’s Wendy Chamberlain led a cross party letter signed by the Alliance, Greens, Liberal Democrats and SDLP calling on the government to give the smaller political parties a bigger role in the scrutiny process.87 The report stage of the Agriculture Bill in September 2020 demonstrated how the Speaker had begun to make a concerted effort to call representatives from all of the opposition parties in the first half of the debate, though – as the short, 90 minute debates on the renewal of the temporary coronavirus restrictions contained within the Coronavirus Act confirmed; there is not always the scope for (or a desire from) all political parties to be called to contribute, despite short time limits being imposed on backbench speeches.88 In evidence submitted to the Procedure Committee’s inquiry into the procedural changes made during 2020, several small party MPs proposed a coronavirus select committee be established along the same lines as the Brexit

86 Procedure Committee, Written evidence from Plaid Cymru CVR 09 committees.parliament.uk/ writtenevidence/4247/pdf/ (accessed 19 January 2022). 87 Procedure Committee, Written evidence submitted by Wendy Chamberlain MP on behalf of the Liberal Democrat Parliamentary Party CVR 13 committees.parliament.uk/writtenevidence/5121/pdf/ (accessed 19 January 2022). 88 In the debate on 30 September 2020, only the DUP and Liberal Democrats were called to speak during the backbench speeches. On 25 March 2021 the only small party to make a contribution during backbench speeches were the Liberal Democrats.

Parliament and Legislative Scrutiny 129 select committee;89 with a membership large enough to seat representatives from more political parties than is the norm and rectify the scrutiny deficit facing these opposition parties.90 The question of parity in scrutiny participation has not only been raised in relation to political parties. A related issue highlighted by the COVID-19 pandemic has been the willingness of the House to amend its procedures in order to facilitate as many contributions from Members as possible, particularly those who are unable to travel to Westminster. This includes, but is not exclusive to, smaller opposition party MPs. When changes were made to parliamentary proceedings at the start of the pandemic, no SNP MP was able to take part in formal scrutiny or voting on the decisions because they remained in their constituencies. As the weeks progressed, there were numerous examples of MPs being unable to travel to Westminster due to the lack of flights or trains to and from their constituencies; health concerns which forced them to self-isolate, or the need to undertake caring responsibilities at home. The Alliance Party’s Stephen Farry had to ask Liberal Democrat MP Wendy Chamberlain to step in to contribute to an urgent question on his behalf in June 2020 because caring responsibilities at home prevented his travel,91 while Conservative MP Tracey Crouch highlighted the difficulties facing MPs who were self-isolating, after finding herself unable to contribute to a debate on breast cancer services, while recovering from breast cancer herself. While oral questions and statements were prioritised during lockdown, with MPs able to contribute to these scrutiny events virtually if they were unable to travel to Westminster, there were several periods of time in which legislative scrutiny had to be done in-person in the Commons chamber. This led the Electoral Reform Society to write that MPs were ‘being locked out of Parliament’ in Autumn 2020.92 Although much of these difficulties arose as the result of pandemic related changes to proceedings, it may fuel further consideration around facilitating the participation of MPs unable to attend scrutiny proceedings in person due to illness or parental leave, as well as setting expectations around guaranteed contributions from all political parties during key stages of legislative scrutiny. In particular, research by Jessica Smith and Sarah Childs has highlighted how the extension of virtual participation as the norm would increase the diversity of those participating in scrutiny, as well as ensuring parity of participation across the House.93

89 Procedure

Committee (n 87). is not to say that all of the small political parties wanted a place on such a committee, nor that they would be able to participate given the time and resource constraints placed upon them. 91 HC Deb 4 June 2020, col 1024. 92 Electoral Reform Society, ‘How MPs are being effectively locked out of Parliament during the pandemic’ (16 November 2020) www.electoral-reform.org.uk/how-mps-are-being-effectively-lockedout-of-parliament-during-the-pandemic/ (accessed 24 October 2021). 93 JC Smith and S Childs, The Remotely Representative House? Lesson Learning from the Hybrid Commons, 2021 static1.squarespace.com/static/5f6c6785a30f513e35cda046/t/60365ab34f274e4f5af59 f3f/1614174901602/Remotely+Representative+House+Final160221.pdf (accessed 4 November 2021). 90 This

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B. The Public Image of Scrutiny in Parliament The visibility of Parliament’s legislative work has seen a rapid increase since the 1980s, largely through the televising of parliamentary proceedings and the integration of Parliament TV into Parliament’s website. This has been coupled with much greater openness on the part of the institution, with the publication of legislative documents such as amendment papers and explanatory notes. The events of the last three parliamentary sessions have increased this visibility even further. The Parliament Live TV service recorded almost 60,000 viewers on its platform on 10 December 2018, when Theresa May deferred the meaningful vote on her negotiated Brexit deal and this rose to over 164,000 on 15 January 2019 when MPs went on to reject the deal. A further 1.5 million people were found to be watching events unfold on BBC Parliament, with the channel seeing its average daily viewing figures rise by 237 per cent between June 2017 and June 2019.94 The bulk of this viewing has been focused on the Commons chamber, particularly during key Brexit moments such as the meaningful votes, indicative votes and the debate on the Cooper-Letwin Bill between January and April 2019.95 Parliament’s work is also followed by an increasing number of people on social media. At the time of writing, Parliament’s Twitter account (@UKParliament) has over 1.6 million followers96 and continues to grow. Between November and December 2020 as the UK neared the end of the transition period and the government were waiting to take the European Union (Future Relationship) Bill through Parliament, the account acquired over 11,000 additional followers.97 Despite Parliament’s day to day legislative scrutiny work being something of a stop-go process in the 2019–21 session, the chamber remains, as Procedure Committee Chair Karen Bradley has noted, ‘probably the most visible public workspace in the country’.98 Increased public attention to parliamentary debates is welcome, though observers have raised concerns about the impact that the viewing of atypical debates in the House may have on public attitudes or expectations of Parliament when it comes to legislation and scrutiny. The Institute for Government for example warned that the difficulties faced by the government in achieving consensus for its Brexit deal may have implied that the House of Commons is ‘more adversarial and less functional than is really the case’.99 The challenges posed by the 94 J Marshall, ‘Primetime Brexit drama doesn’t tell the whole story for Parliament’s TV audiences’ (Institute for Government, 5 September 2019) www.instituteforgovernment.org.uk/blog/primetimebrexit-drama-doesnt-tell-whole-story-parliaments-tv-audiences (accessed 7 September 2021). 95 ibid. 96 Figures taken on 3 September 2021: @UKParliament = 1.6 million followers; @HouseofCommons = 387,200 followers. 97 Statistics taken from www.speakrj.com/audit/report/UKParliament/twitter ( accessed 14 September 2021). The account showed an increase of 11,019 followers between 10 November and 11 December 2020. 98 Procedure Committee, Oral evidence: Procedure under coronavirus restrictions (HC 2019–21 300) Q178. 99 Marshall (n 94).

Parliament and Legislative Scrutiny 131 coronavirus pandemic may have reinforced this further. Opposition MPs interviewed about their experiences of scrutiny during the pandemic highlighted important changes to the operation of the usual channels and much greater access to government ministers than ever before. Representatives from all political parties were invited to briefings on the Coronavirus Bill in what was described as ‘a very frank discussion’ where MPs had the opportunity to ‘go through some of the remaining issues in the bill that they hadn’t quite decided upon yet’.100 From spring 2020 onwards, opposition parties were invited to ‘countless briefings’ on covid related measures including PPE procurement and border crossing issues. This was aided enormously by the growing use of online meetings which have facilitated very high attendance from parliamentarians and a much greater sense of accessibility between Parliament and government. One MP described the difference that it made to this channel of communication: on one occasion I remember there were over 400 MPs on these calls and for all of the criticisms, valid and otherwise, of the government in their decisions and how they are governing in terms of making available information to backbench and opposition or government MPs, I do think they can’t really have done much more. And I know that’s not a popular thing for me to say, but I struggle to see how they could make themselves more accessible. When you are able to say whether or not a Secretary of State is at his office or at his home, you know you’ve had pretty good access to them, you know?101

In this way, the very visible public workspace referred to earlier by Karen Bradley was only the tip of the iceberg in terms of the conversations happening between MPs and the government regarding forthcoming legislation and coronavirus restrictions. It was a very welcome change for opposition MPs, particularly those who sit outside the Official Opposition. Nevertheless, it is a scrutiny forum which is shielded from public view and perhaps increases the likelihood that only very contentious issues are then debated on the floor of the Commons in debates which are more likely to be adversarial.

VIII. Conclusion Writing in 2020, Brigid Fowler asked whether the combination of Brexit scrutiny in the 2017 Parliament and the unusual circumstances of the 2019–21 session during the coronavirus pandemic would mean that ‘the new parliamentary normal is different from the old?’102 Both the 2017 and 2019 Parliaments have been the scene of particularly difficult periods of legislative scrutiny. However, the

100 Personal

Interview with opposition MP (15 January 2021).

101 ibid. 102 B

Fowler, ‘A New Normal? Parliament after Brexit’, Political Insight 2020.

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fundamental issues raised – around the power of government over Parliament, the time available for legislative scrutiny to take place, and the capacity for all MPs and/or political parties to engage in this scrutiny, are much more longstanding. The 2017–2021 period however, shone a much stronger light on some of these issues, demonstrating the dangers inherent in a diminished scrutiny role for Parliament. As the institution moves into a post-Brexit and post- COVID period, there are already signs that what may have been considered to be temporary changes within Parliament are to be permanent. While these do not exclusively concern legislative scrutiny, some, such as the introduction of pass-readers to case Members’ votes in the Commons, will have an impact on it. The Lords Procedure and Privileges Committee has made a number of recommendations as to procedural changes introduced during the pandemic which it would like to be retained. Several of these – such as earlier deadlines for amendments to legislation and discouraging the de-grouping of amendments – could have a big impact on legislative scrutiny. In particular, it would offer more consistency and predictability to debates on legislation, giving MPs and House officials more time to prepare for scrutiny. This sits well with comments from practitioners such as Alexander Horne, who argues that ‘more scrutiny may not be the answer’.103 Scrutiny does, however, remain an ‘important constitutional check on the exercise of arbitrary power by the executive’.104 Addressing some of these scrutiny questions and retaining some of the procedural innovations introduced in the 2019–21 session in particular, would bolster this important check on the government’s legislative programme.

103 A Horne, ‘ The Limits of Parliamentary Scrutiny’, Prospect (17 July 2021) www.prospectmagazine.co.uk/politics/the-limits-of-parliamentary-scrutiny-government-committees-reports-opposition (accessed 21 December 2021). 104 Constitution Committee (n 39).

6 Select Committees: Powers and Functions CHRISTOPHER JOHNSON

I. Introduction In the words of a former edition of Erskine May, ‘in both Houses of Parliament the practice of delegating to small bodies of Members, regarded as representing the House itself, the consideration of detailed or technical questions, is as old as any part of their settled procedure’.1 Even in 1989, when this edition was published, its reference to ‘detailed or technical questions’ gave a slightly misleading impression of the scope of committee work. In fact the words disappeared from later editions of Erskine May, which today describes committee work as ‘the most widely recognised and public means by which Parliament holds government Ministers and their departments and agencies to account.’2 This chapter explores how this apparent role reversal between committees and the two chambers of Parliament came about, and considers its implications, in particular the challenge of reconciling the informality that is one of the key benefits of the committee format with the increasing demand that they be given ‘teeth’; greater powers to underpin their vital work.

II. Origins The antiquity of committees is unquestionable. Both Houses made increasing use of committees in the late sixteenth and early seventeenth centuries: in 1571, for instance, the House of Commons was recorded as appointing committees to

1C

Boulton (ed), Erskine May: Parliamentary Practice 21st edn (London, Butterworths, 1989) 604.

2 D Natzler, M Hutton, D Miller, S Patrick, C Johnson and A Sandall (eds), Erskine May: Parliamentary

Practice 25th edn (London, LexisNexis UK, 2019) 38.1.

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investigate elections and religion.3 One reason for this development is set out in a Standing Order (SO) of the House of Lords, codified in 1621 and still in force today as SO No. 61: To have more freedom of debate, and that arguments may be used (pro and contra), Committees of the Whole House are appointed, sometimes for Bills, sometimes to discuss matters of great moment.

The committee format provided greater ‘freedom of debate’, the possibility to innovate in ways that would be inconceivable in plenary session. SO No. 61 refers to Committees of the whole House, rather than select committees, but in the early days there was no hard distinction between the two. Many Bills, for instance, were committed to committees of named (or ‘select’) membership. But those Members may just have been those who happened to be present on the day, or who volunteered to participate. There were also committees of open membership, lasting in the Lords until the mid-twentieth century, and functioning in effect as Committees of the whole House. Notwithstanding this uncertainty over their composition, the practical value of committees was obvious, and they quickly became a vital component in the work of both Houses. There were committees of inquiry, addressing key issues of the day, such as the conditions in London gaols, or the slave trade. Where there were disagreements between the Commons and Lords, the two Houses appointed committees to engage in conferences (the ancestors of today’s Reasons Committees). There were even secret committees to investigate disagreeable subject-matter, such as the allegations of adultery against George IV’s consort, Caroline of Brunswick. The mid-nineteenth century saw select committees taking root in something closer to their modern form. In 1854 the Committee on the Army before Sebastopol, described in 2012 by the then Clerk of the House as the first modern investigative committee,4 was appointed to review the conditions endured by soldiers in the Crimean War: its mere appointment, after a vote in the House of Commons, precipitated the resignation of the Prime Minister, Lord Aberdeen. In 1857, as the scope and complexity of government operations grew, the House of Commons established a Select Committee on Public Monies, to inquire into ‘the Receipt, Issue and Audit of Public Monies in the Exchequer, the Pay Office, and the Audit Department’. In 1861 this Committee became the first permanent select

3 See The History of Parliament Online – 1571, at www.historyofparliamentonline.org/volume/ 1558-1603/parliament/1571#footnote4_g9rh143 (accessed 7 December 2021). 4 R Rogers, Written evidence submitted to the Liaison Committee, 9 July 2012 www.publications. parliament.uk/pa/cm201213/cmselect/cmliaisn/697/697we36.htm (accessed 7 December 2021). An isolated instance in the seventeenth century was the appointment in 1667 of a Committee to inquire into the disastrous Anglo-Dutch war earlier the same year.

Select Committees: Powers and Functions 135 committee, the Public Accounts Committee, and its role was confirmed by the adoption of a Standing Order in 1862: That there shall be a Standing Committee of Public Accounts; for the examination of the Accounts showing the appropriation of sums granted by Parliament to meet the Public Expenditure, to consist of nine members, who shall be nominated at the commencement of every Session, and of whom five shall be a quorum.5

While the House of Commons was developing committee procedures to strengthen its core work of overseeing the government’s expenditure of public money, the House of Lords struggled, from the 1820s onwards, to develop committee procedures that would allow it to exercise its distinct judicial function more efficiently.6 In a pattern that will be familiar to students of House of Lords reform, attempts to introduce an Appellate Committee became entangled in a wider debate on whether or not the House should exercise any judicial role at all, leading to stasis on both fronts. Eventually the Appellate Jurisdiction Act 18767 established the ‘Lords of Appeal in Ordinary’ – professional judges who became, in effect, the first ‘life peers’. But only in 1948 did the disruption caused by post-war building works persuade the House to appoint an Appellate Committee, so that these same judges could meet outside the House of Lords Chamber to hear legal arguments.8 As recently as 2009 (when a Supreme Court was finally established, under the terms of the Constitutional Reform Act 2005), the Appellate Committee would return to the Chamber to hand down judgments and, at set times of year, to hear Counsel – occasions that any Member of the House, legally qualified or not, was entitled to attend, though not to participate in. A key attribute of committees, and one of the reasons they were so suited to dealing with complex or technical matters, was the ability to engage with nonmembers – indeed, the Commons committee on religion in 1571 was appointed specifically ‘to confer with the bishops’. This begged a fundamental question: were non-members called upon to assist either the House or its committees in their work protected by the privileges of the House? The Commons partially answered the question in a resolution agreed on 8 March 1688: ‘That it is the undoubted right of this House that all witnesses summoned to attend this House, or any committee appointed by it, have the privilege of this House in coming, staying and returning.’9 5 HC

Deb 31 March 1862, col 329. G Dymond, ‘The Appellate Jurisdiction of the House of Lords’ (House of Lords Library Note 2009 www.parliament.uk/documents/lords-library/lln2009-010appellate.pdf (accessed 7 December 2021). 7 See D Steele, ‘ The Judicial House of Lords: Abolition and Restoration 1873–6’, in L Blom-Cooper, B Dickson and G Drewry (eds), The Judicial House of Lords, 1876–2009 (Oxford, OUP, 2009) 13–29. 8 See L Blom-Cooper and G Drewry, Final Appeal: A Study of the House of Lords in its Judicial Capacity (Oxford, OUP, 1972) 111–13. 9 D Lidderdale, Erskine May: Parliamentary Practice 19th edn (London, Butterworths, 1976) 156; House of Commons Journal (1688–93) 45. 6 See

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This addressed the grosser and more direct forms of interference with witnesses,10 but did not necessarily protect them from prosecution or other penalties arising from their evidence. Only in 1818 did the Commons address the status of witnesses’ evidence in terms, resolving on 26 May as follows: ‘That all witnesses examined before this House, or any committee thereof, are entitled to the protection of this House in respect of anything that may be said by them in their evidence.’11 As the long-running saga of Stockdale v Hansard in the 1830s showed, in the nineteenth century the assertion of a privilege by the House of Commons and its recognition by the courts were two different things. But the courts did not challenge this new privilege, which in turn opened the way for the development of investigative committees in the 1850s – and eventually, in 1881, the privilege claimed for witnesses was formally acknowledged by the courts.12 But in the absence of statutory provision, there is still a risk that case-law can be overlooked or overturned, and as recently as the 1980s, in the notorious case of R v Murphy, two judgments of the Supreme Court of New South Wales13 reversed the conventional view of the status of committee proceedings, allowing witnesses who had given evidence to a Senate committee investigating alleged malpractice by a Justice of the High Court to be cross-examined in court on that evidence. This led the Australian Parliament to place the privileged status of committee proceedings beyond doubt, by means of the Parliamentary Privileges Act 1987.14 The fact that such a collision between legislature and judiciary occurred in the first place, following a committee inquiry into allegations of criminal conduct (in other words, a matter normally reserved to the police and the courts), underlines that some of the tensions inherent in the committee model are still to be fully resolved. On the one hand, there is Parliament’s desire for procedures that allow flexibility and informality, the ability to address new issues in unconventional ways; on the other, there is the risk that Parliament may over-reach itself, and that the very informality of such proceedings may ultimately compromise their legal status as ‘proceedings in Parliament’.

III. Developments in the Late 20th Century Two developments led to the establishment of the present system of House of Commons departmental select committees in 1979. The first was the progressive 10 For instance, in Goodall’s Case, the arrest of a person who had been summoned to appear as a witness before the ‘Committee of Poll-money’ (see House of Commons Journal (1640–42) 454. 11 House of Commons Journal (1818) 389. 12 Goffin v Donnelly (1881) 6 QBD 307. 13 The first judgment was not reported; the second is in (1986) 5 NSWLR 18. 14 See Odgers’ Australian Senate Practice 14th edn (Canberra, 2016) ch 2 www.aph.gov.au/About_ Parliament/Senate/Powers_practice_n_procedures/Odgers_Australian_Senate_Practice (accessed 7 December 2021).

Select Committees: Powers and Functions 137 (and, from 1945 onwards, rapid) increase in the range of governmental activity. The second was the growing strength of party discipline. The two factors combined led to a general recognition, by the 1970s, that the traditional forms of parliamentary scrutiny, such as plenary debate, needed to be supplemented by new tools, to enable parliamentarians to conduct detailed, expert and effective scrutiny of government. There were various experiments. The House of Commons Estimates Committee, originally appointed in 1912 and re-established in 1945, broadened out from its original remit, appointing sub-committees to investigate the efficiency of the departments and organisations responsible for spending the nation’s money. It was followed in the 1950s by the Nationalised Industries Committee. Then the 1966 Labour Government encouraged the appointment of a range of select committees with broad responsibilities such as agriculture, science and technology, or race relations and immigration. They enjoyed mixed success, and further Procedure Committee reviews led ultimately to the establishment in 1979 of the departmental select committee system. Proposing the appointment of the new committees, the Leader of the House, Norman St John-Stevas, articulated what had become a widely-accepted view. He said his proposals would help ‘to redress the balance of power’ between the House and the executive. The committees would provide ‘more effective scrutiny of government’, involving Members on ‘both sides of the House’, and contributing to ‘greater openness in government’.15 But while St John-Stevas’ arguments reflected a widely-held view, there were dissenting voices. Michael Foot, Leader of the House in the run-up to the 1979 election, had expressed concerns when the Procedure Committee’s report was first debated: I believe that access to the Chamber by an individual Member, throughout his whole parliamentary career, is the supreme attribute of the House of Commons which distinguishes it and makes it the place that it ought to be … if that attribute is broken, injured or impaired, great injury will be done to the House.16

Enoch Powell, though by 1979 he supported the reforms, had previously highlighted similar dangers: Everything which diminishes true debate on the Floor of the House of Commons strengthens the Executive and weakens Parliament … our experience is as politicians and would-be Ministers facing other politicians and actual Ministers, to … fight it out. We can only do that through debate, we can only do that on the Floor of the Chamber.17

15 See P Baines, ‘History and Rationale of the 1979 Reforms’, in G Drewry (ed), The New Select Committees 2nd edn (London, Clarendon, 1989) 15. 16 HC Deb 20 February 1979, col 292. 17 Quoted by Baines (n 15) 17, and taken from a Granada Television series, the transcript of which was published as D Crow (ed), The state of the nation: Parliament (Granada Television Ltd, 1973).

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Powell and Foot were harking back to a romantic vision of the House of Commons chamber, as the field on which the battle of ideas and parties was fought out, and on which governments stood or fell, as the debate determined. But underlying such nostalgia was a genuine tension between committees and the House. The rationale for the establishment of departmental select committees was based on a combination of flexibility and specialisation. Put the two together, and committees would be a powerful tool for finding new and innovative ways to scrutinise and hold the executive to account. The risk of specialisation, though, was that Members would be distracted from debating the great issues of the day on the floor of the House; and allied to this was the concern that committee work might become a quasi-academic displacement activity. As the present author’s father, writing in 1977, put it: Many of the protagonists of more select committees … have just failed to see that as such committees have no real power and are detached from party interests, they are thus committed to fundamentally academic exercises … Scrutiny therefore becomes an activity which keeps a growing number of back-benchers out of mischief: its end product is a growing quantity of paper.18

But commentators and politicians of the late 1970s, in their focus on the Commons Chamber, overlooked another possibility – that committees might in time also lay claim to ‘real power’. This gives rise to a different set of questions. What is the basis of such power, and how does it relate to that of the two Houses? How legitimate and accountable is it, and how, given the flexibility inherent in committee working practices, can it be regulated? The following sections outline the main types of committee, their functions, and their powers. The chapter then reverts to the questions of principle just posed.

IV. The Main Types of Committee A. Ad Hoc Committees As indicated earlier, the first committees were appointed by one or other House on an ad hoc basis, to consider specific issues of national importance, and ever since the Committee on the Army before Sebastopol in 1854 the investigation of instances of scandalous maladministration has been a major driver of committee work. A key risk facing such committees is that they become victims of party-political bias.

18 N

Johnson, In Search of the Constitution (Oxford, Pergamon Press, 1977) 58–59.

Select Committees: Powers and Functions 139 This risk was realised in 1913, following allegations that Members of the Liberal Government had been guilty of what would now be called ‘insider trading’, buying shares in the Marconi Company shortly before the government awarded the company a lucrative contract. The committee appointed to investigate the Marconi scandal split along party lines, with Liberal Members clearing ministers of blame, and others accusing them of grave impropriety. The Marconi scandal was one of the factors leading to the enactment of the Tribunals of Inquiry (Evidence) Act 1921. This made statutory provision for independent, judge-led inquiries into matters of ‘urgent public importance’,19 and gave such inquiries the power to enforce the attendance of witnesses or the production of documents, and to examine witnesses on oath. Since that time Parliament has faced increasing competition from public inquiries, which can now be set up under a consolidated statutory basis, the Inquiries Act 2005. Nevertheless, judge-led statutory public inquiries remain rare – perhaps because ministers are put off by the example of the Bloody Sunday inquiry, chaired by Lord Saville of Newdigate, which lasted more than 12 years and cost a total of £191.5 million.20 The great strengths of parliamentary ad hoc committees, in contrast, are their low cost, speed and flexibility. The structures, the staff, the processes and facilities – all are ready to go at a moment’s notice, and can be adapted to fit the exact circumstances. There is also, notwithstanding the Marconi scandal, what might be called Parliament’s ‘brand’ – its independence of government, and its media profile, both of which, in different ways, help to protect ministers from accusations of whitewash. The pros and cons of judge-led versus committee inquiries were the subject of a heated debate on 5 July 2012, in the wake of the LIBOR scandal. The Opposition proposed the establishment of a ‘forensic, judge-led public inquiry’ under the terms of the Inquiries Act 2005, but the Chancellor of the Exchequer, George Osborne, countered that ‘judge-led public inquiries take an incredibly long time to conclude’.21 He continued: ‘We have in Parliament the skills, the expertise and the mandate to do the job … let us get on with it.’22 His arguments persuaded the House to support the establishment of the Parliamentary Commission on Banking Standards.23

19 Tribunals

of Inquiry (Evidence) Act 1921, s 1(1).

20 For a list of public inquiries since 1990, with timings and costs, see the report of the House of Lords

Select Committee on the Inquiries Act 2005, The Inquiries Act 2005: Post-Legislative Scrutiny (2013–14, HL Paper 143) App 4. 21 HC Deb 5 July 2012, col 1134. 22 ibid, col 1136. 23 For a discussion of the innovative working practices of the Banking Commission (which have yet to be adopted by other committees), see R Kelly, ‘Select Committees: Powers and Functions’, in Ar Horne, G Drewry and D Oliver (eds), Parliament and the Law (Oxford, Hart Publishing, 2013) 178–179.

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Ad hoc committees may be set up by either House, or by both acting in concert. In some cases (such as the Banking Commission) they are in effect committees of inquiry, established in response to a specific issue or event, while in less timecritical circumstances they may be called upon to consider government proposals, such as draft legislation. The House of Lords also establishes ad hoc committees (now called special inquiry committees) to consider broad cross-cutting themes, or to conduct post-legislative scrutiny of selected Acts of Parliament. Topics are recommended by the Liaison Committee, drawing on suggestions by Members of the House. The process is not controlled by the government (though representatives of the government and opposition parties and groups sit on the Liaison Committee). The reports of House of Lords special inquiry committees are typically detailed, evidence-based and analytical, and the conclusions are reached on a cross-party basis.

B. Investigative Committees The term ‘investigative committee’ has no formal procedural definition, but is used here to describe permanent committees that conduct thematic inquiries on topics falling within their remit. They may also have a range of other functions, including scrutinising Bills, and conducting post- and pre-legislative scrutiny. They may also, in the case of Commons departmental select committees, conduct pre-appointment hearings, as well as regularly interrogating ministers and senior officials. Inquiries generally begin with a ‘call for evidence’: a public document setting out the scope of a new inquiry, identifying key questions, and inviting anyone with an interest to submit evidence. On the basis of that written evidence, and of oral evidence collected during public meetings, the committee prepares a report, which normally includes recommendations to government and others.

C. Legislative Committees The core scrutiny of public Bills is largely still conducted by the two Houses, either in the Chamber or off the floor of the House in Public Bill Committees or (in the Lords) Grand Committees. But such scrutiny is increasingly supported and informed by focused select committee analysis. Thus, the Joint Committee on Human Rights scrutinises all Bills to assess their compatibility with the rights protected by virtue of the European Convention on Human Rights, the Human Rights Act 1998, the common law and any UK international obligations, while in the House of Lords the Constitution Committee examines all Bills for their constitutional implications. See chapter eleven for more on this.

Select Committees: Powers and Functions 141 While both these committees divide their time between legislative scrutiny and thematic inquiries, other committees focus solely on legislative scrutiny. For instance, the House of Lords Delegated Powers and Regulatory Reform Committee is appointed ‘to report whether the provisions of any bill inappropriately delegate legislative power, or whether they subject the exercise of legislative power to an inappropriate degree of parliamentary scrutiny’.24 Domestic secondary legislation also receives select committee scrutiny. The Joint Committee on Statutory Instruments conducts technical scrutiny of all statutory instruments (SIs) laid before Parliament, though it does not address the merits of such instruments, or the underlying policy objectives. In contrast, the Lords Secondary Legislation Scrutiny Committee reviews all SIs subject to either affirmative or negative procedure, and draws the attention of the House to any issues of public policy that are likely to be of interest to the House. Secondary legislation that is subject to enhanced parliamentary scrutiny (such as Legislative Reform Orders) is also reviewed by select committees in both Houses.25 Specific arrangements have been introduced for other secondary legislation or quasi-legislation, such as Public Bodies Orders and National Policy Statements. Most recently, in early 2021, the House of Lords appointed an International Agreements Committee, to scrutinise all international agreements laid before Parliament under the terms of the Constitutional Reform and Governance Act 2010, and to consider the government’s conduct of negotiations with states and other international partners. In the Commons such agreements are scrutinised by departmental select committees, including the International Trade Committee. Other types of legislation receive other types of scrutiny. From the time the UK joined the European Economic Community in 1973 until the end of the transition period following UK withdrawal from what is now the European Union, scrutiny committees in both Houses26 were tasked with considering all draft European laws. Following the end of the transition period on 31 December 2020, the House of Lords agreed to wind up its European Union Committee, replacing it with a suite of new investigative committees, but at the time of writing the House of Commons had yet to decide on the future of its European Scrutiny Committee.

D. Domestic and Statutory Committees The work of domestic committees (those responsible for the internal administration of the two Houses, and for aspects of parliamentary business or procedure), 24 See

House of Lords Minutes of Proceedings, 13 May 2021. Commons Regulatory Reform Committee and the Lords Delegated Powers and Regulatory Reform Committee. 26 The European Scrutiny Committee in the House of Commons and the European Union Committee in the Lords. 25 The

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and of statutory committees (bodies analogous to select committees that are appointed under statute, such as the Ecclesiastical Committee and the Intelligence and Security Committee27) falls outside the scope of this chapter.

V. The Functions of Committees A. Legislative Scrutiny The description already given of the key committees tasked with supporting the work of the two Houses in scrutinising legislation illustrates the substantial overlap between different types of committee work. Many committees, like the Joint Committee on Human Rights, undertake both thematic inquiries and legislative scrutiny. This overlap is most apparent in those elements of scrutiny that fall outside the formal legislative process that follows the introduction of a Bill. For instance, Bills that are published in draft are subject to committee scrutiny, in most cases by Commons departmental select committees. Only in the case of particularly complex or high-profile draft Bills is such pre-legislative scrutiny undertaken by an ad hoc Joint Committee.28 Although pre-legislative scrutiny is typically conducted to a tight time-table, it gives committees a chance to gather evidence from key stakeholders and to reflect that evidence in recommendations to government. Acts of Parliament may also be subjected to post-legislative review. In response to a Law Commission report in 200629 the government agreed that departments should, in most cases, publish a memorandum three to five years after an Act receives Royal Assent, reviewing its impact. The government resisted the Commission’s proposal that such Acts should then be reviewed by a permanent Joint Committee, and instead memoranda are submitted to Commons departmental committees in the first instance. Take-up by those committees has been poor: in 2013 the government noted that while 58 memoranda had been published, only three had been the subject of dedicated inquiries,30 and recent analysis suggests that out of 344 eligible Acts passed between the start of the 2005 Parliament and

27 The role of the Intelligence and Security Committee is considered elsewhere: see, eg, A Horne and C Walker, ‘Parliament and National Security’, in A Horne and A Le Sueur (eds), Parliament: Legislation and Accountability (Oxford, Hart, 2016) 221–26 and H Bochel, A Defty and J Kirkpatrick, ‘New Mechanisms of Independent Accountability: Select Committees and Parliamentary Scrutiny of the Intelligence Services’ (2015) 68 Parliamentary Affairs 2, 314. 28 See for instance the Joint Committee on the draft Modern Slavery Bill, which reported in April 2014. 29 The Law Commission, Post-Legislative Scrutiny (2006 Cm 6945) www.lawcom.gov.uk/wp-content/ uploads/2015/03/lc302_Post-legislative_Scrutiny.pdf (accessed 7 December 2021). 30 R Kelly, ‘Post-legislative Scrutiny’ (House of Commons Standard Note, 23 May 2013) 9 researchbriefings.parliament.uk/ResearchBriefing/Summary/SN05232#fullreport (accessed 7 December 2021).

Select Committees: Powers and Functions 143 the 2017 general election, only 7.6 per cent underwent either formal or informal post-legislative scrutiny.31 The work of Commons committees has, though, been supplemented in recent years by the House of Lords, which normally appoints one ad hoc post-legislative scrutiny committee each session.

B. Holding the Government to Account One of the key drivers behind the establishment of departmental select committees of 1979 was a desire to scrutinise government more effectively and expertly than was possible in plenary sittings. Such scrutiny has become increasingly central to the work of committees in the House of Commons. Some committees undertake cross-cutting scrutiny: the Public Accounts Committee, for instance, is responsible for ‘the examination of the accounts showing the appropriate of the sums granted by Parliament to meet the public expenditure, and of other such accounts laid before Parliament as the committee may think fit’. In contrast, departmental select committees are appointed under SO No. 152 ‘to examine the expenditure, administration and policy of the principal government departments … and associated public bodies’.32 To take a typical example: the Education Committee in 2016–17 held two public meetings with the Secretary of State for Education, in April and September, questioning her on her priorities and policies; it monitored the performance of key agencies that report to the Department, holding a public meeting with the head of Ofsted (the Chief Inspector of Education, Children’s Services and Skills) in July; it considered and published the Department’s Estimate for the 2016–17 financial year, and the subsequent Supplementary Estimate. Taken as a whole, the Committee’s work amounted to a steady, if not intense, programme of scrutiny and questioning, at both strategic and administrative levels. Pre-appointment hearings for certain high-profile public appointments are a relatively recent addition to the armoury of Commons select committees. Such hearings can be traced back to 1998, when the Treasury Committee, following the government’s announcement the previous year of the independence of the Bank of England, first scrutinised appointments to the Bank’s Monetary Policy Committee. Only in 2007, however, after Gordon Brown’s Labour Government published the Governance of Britain Green Paper,33 did the practice become

31 T Caygill, A Critical Analysis of Post-Legislative Scrutiny in the UK Parliament (PhD thesis, Newcastle University, 2019) 86. 32 A recommendation by the Commons Liaison Committee to broaden the remit of departmental select committees, by adding a requirement to examine ‘matters of public concern falling within the area of competence of those departments and bodies’, has yet to be taken forward. See Liaison Committee, The Effectiveness and Influence of the Select Committee System (HC 2017–19, 1860) 18. 33 Ministry of Justice, The Governance of Britain (cm 7170, 2007) 28–30.

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general, and the Liaison Committee subsequently adopted guidelines for the conduct of hearings.34 But while appointment hearings have become a regular feature of select committee scrutiny, they also illustrate the limits of Parliament’s authority over the executive: committee findings are politically persuasive, but are in most cases formally non-binding.35 For instance, when the Education Committee in 2016 found the government’s nominee for the position of Chief Inspector of Education, Children’s Services and Skills to be unsuitable, the Secretary of State dismissed its concerns and made the appointment regardless.36 In 2019 the Public Administration and Constitutional Affairs Committee concluded that the majority of negative reports ‘have been rejected, sometimes apparently out of hand’, and recommended that committees should in such cases be empowered to require the minister to defend their decision on the floor of the House. Although this recommendation was later endorsed by the Liaison Committee, it has not been implemented.37 Committees in the House of Lords, in contrast, were not established primarily to conduct scrutiny of government departments. The different constitutional relationship between the House of Lords and the government is reflected in the broad terms of reference given to Lords committees (for instance ‘to consider science and technology’38), and the long-standing presumption, repeatedly endorsed by the House, that Lords committees should be cross-cutting in remit, rather than shadowing particular departments of state.39 The most recent restructuring of Lords committees, implemented in April 2021, has resulted in the establishment of five additional cross-cutting committees on European Affairs (with one sub-committee, focusing on the Protocol on Ireland/Northern Ireland), the Built Environment, Environment and Climate Change, Industry and Regulators, and Justice and Home Affairs.

34 Liaison Committee, Pre-appointment Hearings (HC 2017–19, 2307). For a fuller discussion of pre-appointment hearings, see R Kelly, ‘Select Committees: Powers and Functions’, in A Horne, G Drewry and D Oliver (eds), Parliament and the Law (Oxford, Hart Publishing, 2013) 174–178 and R Hazell, M Chalmers and M Russell, ‘Pre-Appointment Scrutiny Hearings in the British House of Commons: All Bark, or Some Bite?’ (2012) 18 Journal of Legislative Studies 222. 35 One exception is the role of Information Commissioner, where the government made a commitment in 2011 to accept the recommendation of the Justice Committee (see HC Deb 16 February 2011, col 88WS). 36 Education Committee, 1st Special Report (HC 2016–17, 674). Most pre-appointment hearings have led to positive findings, but in two instances a negative finding has been followed either by the candidate’s withdrawal or by non-appointment. See Liaison Committee, ‘Pre-appointment hearings by select committees of the House of Commons July 2007 – March 2017’ www.parliament.uk/documents/ commons-committees/liaison/Pre-appointment-table-by-department-to-March-2017.pdf (accessed 7 December 2021). 37 Liaison Committee (n 32) 197–98. 38 The House of Lords Science and Technology Committee was first established in 1979, in response to the decision of the House of Commons to abolish its own cross-cutting Science and Technology Committee as part of the wider reform leading to the establishment of departmental select committees. 39 This presumption dates back to the 1992 Jellicoe Committee on the committee work of the House.

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C. Promoting Public and Parliamentary Debate Committees spend most of their time conducting inquiries into relevant policy areas. In the Commons such inquiries are often an extension of committees’ scrutiny function, a means of considering an important and topical matter of public policy in more detail than is possible in a one-off meeting with a minister or official. For instance, in 2020 the House of Commons Health and Social Care Committee, in response to the COVID-19 pandemic, launched an inquiry into the challenges of delivering core NHS and care services during the pandemic and beyond, publishing its report in September of that year.40 In the Lords, committees generally adopt a longer-term perspective, focusing on what the 2011 Leader’s Group on Working Practices described as the House’s third core function, namely providing ‘a forum for public debate and inquiry’.41 That public debate is in part stimulated by inquiries themselves, which may raise the profile of a particular issue – Lords committee inquiries often last several months, and committees receive and publish large quantities of written evidence, as well as holding a dozen or more public meetings. Reports, which are wide-ranging, evidence-based and detailed, are later debated on the floor of the House.

D. Limitations to Committee Work: The Sub Judice Rule The relationship between Parliament and the courts is governed by what has been described as ‘a mutuality of respect between two constitutional sovereignties’.42 This principle of respect and comity is partially codified in statute (notably in Article 9 of the Bill of Rights 1689, which codifies the immunity of things said or done in the course of parliamentary proceedings), but is also reflected in longstanding conventions and in resolutions agreed by the two Houses. In particular, both Houses have adopted a sub judice rule, under which, in the words of the House of Lords Companion to the Standing Orders, they ‘abstain from discussing the merits of disputes about to be tried and decided in the courts of law’.43

40 Health and Social Care Committee, Delivering core NHS and care services during the pandemic and beyond (HC 2019–21, 320). 41 Leader’s Group on Working Practices, Report of the Leader’s Group on Working Practices (HL 2010–12, Paper 136) 8. 42 Lord Woolf MR, quoting Sedley J, in R v Parliamentary Commissioner for Standards ex p Mohamed Al Fayed [1998] 1 All ER 93. 43 House of Lords, The Companion to the Standing Orders (2017) 59. The rule is subject to a number of qualifications: it does not restrict the right of either House to legislate on any matter or to discuss delegated legislation, and it does not apply to judicial review cases, in which ministerial decisions are in question. The Speaker of the House of Commons and the Lord Speaker have power to waive the sub judice rule in specific cases.

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The rule applies by extension to committees of both Houses. It applies to all cases that are active44 before UK courts, and is mandatory – such cases are not to be referred to in any motion, debate or question. Erskine May notes that committees have suspended inquiries ‘because a witness had been charged with criminal offences related to the subject-matter of the inquiry’.45 Even when cases are not technically active (for instance, during a police investigation that may lead to charges being brought) committees are expected to exercise caution – the Joint Committee on Parliamentary Privilege noted in 2013 that ‘Committees are careful to avoid actions which could prejudice legal processes, even when investigations are at too early a stage for sub judice considerations to apply’.46 The sub judice rule has been generally respected by committees of both Houses. The implications of the wider issue already touched on – namely, the overlapping interest of select committees and the courts in matters of public scandal or of misconduct by prominent individuals, which may or may not ultimately give rise to court proceedings – is considered further below.

VI. Committee Powers To exercise the functions just described, committees require certain powers. Procedural principle requires that committees possess only those powers conferred upon them by the House, so all powers exercised by committees are set out either in Standing Orders (particularly in the Commons) or in the specific orders of reference establishing the committee (the practice in the Lords).

A. Power to Appoint Sub-Committees Committees need the express permission of the House to appoint sub-committees or to entrust to those sub-committees tasks falling within their orders of reference. Most Commons committees have been given such permission under Standing Orders – for instance, under SO No. 152(3) each departmental select committee may appoint one sub-committee. In the Lords, the power to appoint one or more sub-committees is set out in the appointment motion and is kept under regular review by the Liaison Committee. The Economic Affairs Committee and the European Affairs Committee each have power to appoint a sub-committee, the former to scrutinise the Finance Bill, the latter to scrutinise implementation of the Protocol on Ireland/Northern Ireland.

44 Cases are ‘active’ from the point when, in criminal cases, ‘a charge has been or a summons to appear has been issued’, and, in civil cases, when ‘arrangements for a hearing’ have been made. 45 Natzler (n 2) 38.25. 46 Joint Committee on Parliamentary Privilege, Parliamentary Privilege (HL 2013–14, Paper 30, HC 2013–14, 100) 68.

Select Committees: Powers and Functions 147 In addition, the 2019 Liaison Committee review of committees proposed that chairs of committees be able ‘to make an annual request to the Liaison committee for the power and resources to appoint a sub-committee’.47 This recommendation has yet to be implemented. Lords committees that possess the power to appoint one or more sub-committees are also given the power to co-opt Members of the House to serve on those sub-committees. In the Commons, in contrast, only members of the parent committee serve on sub-committees: thus in 2016 the Environment, Food and Rural Affairs Committee appointed six of its number to conduct an inquiry into forestry in England.48 The remaining powers conferred upon committees are summarised below. Except where otherwise specified, the powers enjoyed by select committees are also conferred by extension upon their sub-committees.

B. Power to Report Under Commons SO No. 133, each select committee ‘shall have leave to report to the House its opinion and observations upon any matters referred to it for its consideration, together with the evidence taken before it’. This power may be exercised by a committee even if it is not expressly directed to do so.49 Thus some Committees are directed to report on certain matters, such as the European Scrutiny Committee, which is required ‘to report its opinion on the legal and political importance of EU documents’.50 Others, such as departmental select committees, in contrast, are simply given the power to ‘report from time to time’ (in other words, to publish multiple reports).51 In the Lords, a committee may be appointed either to report on a particular matter (in other words, as an ad hoc or special inquiry committee, which ceases to exist once its report has been agreed), or to report ‘from time to time’, in which case it can make multiple reports. The power to report cannot be delegated to subcommittees, which thus have no power to make reports to either House: a report from a sub-committee has to be agreed and reported to the House by the parent committee before it can be published.

C. Power to Send for Persons, Papers and Records Committees rely heavily upon written and oral evidence, and thus a key backstop for committees is the power to ‘send for persons, papers and records’. Committees 47 Liaison Committee, Review of House of Lords Investigative and Scrutiny Committees: Towards a New Thematic Committee Structure (HL 2017–19, 398) 55. 48 Environment, Food and Rural Affairs Committee, Forestry in England: Seeing the Wood for the Trees, (HC 2016–17, 619). 49 M Jack (ed), Erskine May: Parliamentary Practice 24th edn (London, LexisNexis, 2011) 830. 50 SO No. 143(1). 51 SO No. 152(4)(a).

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begin by inviting witnesses to give evidence or to supply documents, and witnesses usually cooperate willingly. But in the rare event that a witness refuses to provide evidence, a committee may issue a formal order to attend or supply documents, signed by the chair. Failure to comply with such an order may be reported to the House as a prima facie contempt. It would then be for the House to decide how to exercise its inherent penal powers in investigating and punishing the contempt. In the Commons the power to send for persons, papers and records is embodied in the Standing Order under which a committee is established – SO No. 152(4) in the case of departmental select committees. In the Lords, the power, previously reserved to the House, has been included in the appointment motions for all select committees since 2009. It is important to note that the power to summon persons is subject to certain conventional limitations. Committees cannot formally summon Members of either House,52 and their powers in relation to government are further limited by the Cabinet Office’s Giving evidence to Select Committees: Guidance for Civil Servants (the ‘Osmotherley Rules’). This asserts a general principle that ‘civil servants are accountable to Ministers who in turn are accountable to Parliament’, and while acknowledging the ‘formal position’ that a committee could insist on the attendance of a named official, makes it clear that in normal circumstances ‘the decision on who is best able to represent the Minister rests with the Minister concerned’.53 Restrictions also apply to judges: the Judicial Executive Board has issued guidance indicating that their appearance before committees ‘should be regarded as exceptional’, and outlining a number of issues (including the merits of individual cases, or the effect of Bills currently before Parliament) on which they should not comment. When a committee does request the attendance of a member of the judiciary, it is dealt with by the Private Office of the Lord Chief Justice.54 Neither the Osmotherley Rules nor the guidance published by the Judicial Executive Board has been endorsed by Parliament, and the Joint Committee on Parliamentary Privilege in 2013 saw no reason formally to acknowledge an exemption from the power to summon in either case.55 Some of the procedural and reputational complications attaching to committees’ power to send for persons, papers and records are considered in the final section of this chapter.

52 Natzler

(n 2) 38.34. Office, Giving Evidence to Select Committees: Guidance for Civil Servants (October 2014) 4, 12 www.gov.uk/government/uploads/system/uploads/attachment_data/file/364600/Osmotherly_ Rules_October_2014.pdf (accessed 7 December 2021). 54 Judicial Executive Board, Guidance to Judges on Appearances before Select Committees (October 2012) 1–2 www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Guidance/select_committee_ guidance.pdf (accessed 7 December 2021). 55 Joint Committee on Parliamentary Privilege (n 46) 86–88. 53 Cabinet

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D. Power to Take and Publish Evidence Committees are given the power to publish evidence ‘from time to time’. This allows committees to publish written evidence and transcripts of oral evidence as an inquiry progresses, without having to wait for the publication of a report. The Parliamentary Witnesses Oaths Act 1871 empowers the House of Commons and its committees to administer oaths to witnesses, and under SO No. 132 such oaths are administered by the chair or the clerk. False evidence given under oath would be punishable under the Perjury Act 1911 – raising the risk that committee processes could, notwithstanding the general principle of parliamentary privilege, come before the courts. The power to administer oaths is controversial and rarely used.56 The most recent example was on 7 November 2011, when the Chair of the Public Accounts Committee, Margaret Hodge, decided in the middle of a meeting with Anthony Inglese, a senior lawyer at HMRC, to require him to give evidence on oath. This led to a widely reported dispute between Ms Hodge and the outgoing Head of the Civil Service, Sir Gus O’Donnell (now Lord O’Donnell), in which he expressed concern that appearances of civil servants before the Public Accounts Committee had been turned into a ‘theatrical exercise in public humiliation’.57 While the House of Lords has always had the power to take evidence on oath, and to treat false evidence as perjury, a resolution of 1857, which stated that committees should ‘examine witnesses without their having been previously sworn, except in cases in which it may be otherwise ordered by the House’, still applies.58

E. Power to Travel Most committees are given the power to travel, without which they would be required to meet exclusively within the precincts of the House. In practice this power is used not only to conduct formal meetings and to take evidence outside Westminster, but to conduct informal visits relating to current inquiries. In the House of Commons, this power to ‘adjourn from place to place’ is provided for in Standing Orders, and is typically unlimited (though in the case of the Joint

56 A Horne, ‘Evidence under oath, perjury and parliamentary privilege’ (UK Constitutional Law Association, 29 January 2015) ukconstitutionallaw.org/2015/01/29/alexander-horne-evidence-underoath-perjury-and-parliamentary-privilege/ (accessed 7 December 2021). 57 For the transcript of the meeting, see Public Accounts Committee, Minutes of Evidence (HC 2010–12, 1531) www.publications.parliament.uk/pa/cm201012/cmselect/cmpubacc/1531/11110701. htm (accessed 7 December 2021). See also R Syal, ‘Ex-civil service chief accused of acting as ‘shop steward’ The Guardian (15 March 2012) www.theguardian.com/politics/2012/mar/15/ex-civil-servicechief-accused (accessed 7 December 2021). 58 House of Lords Journal (1857) 60.

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Committee on the National Security Strategy it is limited to travel ‘within the United Kingdom’). Applications for travel overseas are then considered by the Liaison Committee, under delegated authority from the House of Commons Commission. In the Lords, most committees are given the power to ‘meet outside Westminster’ in their motions of appointment. In some cases, particularly in the case of special inquiry committees with clearly domestic remits, the power is limited to travel within the UK.59

F. Power to Appoint Specialist Advisers Specialist Advisers are appointed, in the words of House of Commons Standing Orders, ‘either to supply information which is not readily available or to elucidate matters of complexity within the committee’s order of reference’. They are often academics, lawyers, or sometimes retired public servants, with a particular expertise in the subject-matter of an inquiry. They are not employees of the House, but are contractors, appointed on a daily rate, and support committee staff in briefing the committee, identifying witnesses, suggesting lines of questioning, and drafting reports.

G. Powers of Joint Committees Joint Committees may be appointed either on a permanent basis (for instance, the Joint Committees on Human Rights and on the National Security Strategy), or ad hoc (for instance, to consider draft Bills, or an issue affecting both Houses, such as parliamentary privilege). They operate as a single committee, electing their own Chair and taking decisions jointly. Nonetheless, they are formally two separate select committees. The practical consequence of this apparently theoretical distinction is that a joint committee ‘has only such authority, and can exercise only those powers, which have been given it by both Houses’60 – neither House can control or confer a power upon a committee of the other House. In establishing a joint committee, therefore, the two Houses need to agree on the terms of reference, the powers, and any instructions.61

59 For instance, the Committee on Regenerating Seaside Towns and Communities, appointed 17 May 2018. 60 Natzler (n 2) 41.2. 61 For instance, on 5 November 2015 the Commons agreed to appoint a joint committee on the draft Investigatory Powers Bill, but failed to set a reporting deadline. After the House of Lords appointed its Members, on 25 November, setting a deadline of 11 February 2016, the Commons had to agree a separate motion agreeing on this deadline in order to make it effective. See House of Commons Votes and Proceedings, 27 November 2015. publications.parliament.uk/pa/cm201516/cmvote/151126v01. htm (accessed 7 December 2021).

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VII. Reflections The aim of the reforms of the 1970s was to improve Parliament’s capacity to scrutinise an increasingly complex executive. There were, admittedly, concerns that committee scrutiny would lack teeth, that it would be academic and bureaucratic, and that it would distract members from their core task of debating and deciding on the vital issues of the day in the House of Commons chamber. But the consensus was that more specialised, granular analysis in select committees would enhance the work of Parliament as a whole. Though brief, the previous sections have shown that committee work today is far more diverse than the reformers of the 1970s could have imagined. Committees supplement the work of both Houses in legislative scrutiny, including scrutiny of the huge quantities of secondary legislation that would otherwise receive next to no parliamentary attention. They have moved into the territory of public inquiries, investigating wrong-doing and scandal in both public and private sectors. They hold departments and public bodies very visibly to account, including through pre-appointment hearings and regular meetings with ministers. Perhaps the most striking demonstration of the expansion of committee responsibilities is the fact that since 2002 the Prime Minister has given oral evidence to the House of Commons Liaison Committee – a degree of personal accountability to a committee that Norman St. John-Stevas could hardly have contemplated in 1979.62 The reason this change has been possible is because of the flexibility and informality inherent in committees, as well as their willingness to innovate. They rely ultimately upon the ancient rights, powers and privileges of Parliament itself. Yet the committee, in its simplest form, is just a small group of parliamentarians, tasked with investigating an issue, meeting largely in private, and able to a large extent to make up their own rules as they go along. This inherent flexibility means that without any formal change in committee powers, successive reforms have hugely expanded the role and importance of committees. In 2000 the House of Commons Liaison Committee noted the willingness of some committees to ‘experiment and innovate’, in areas such as scrutiny of draft Bills or the holding of confirmation hearings, holding this up as ‘best practice’.63 It raised new possibilities, including the remuneration of committee chairs, to further bolster the authority of committees. Although the Liaison Committee’s recommendations were resisted by the government, it found an ally after the 2001 election in the new Leader of the House of Commons, Robin Cook. He used the Modernisation Committee to push through reforms, which included the remuneration of chairs, thereby creating an

62 The Liaison Committee does not, however, produce reports following its meetings with the Prime Minister: the meetings are an end in themselves. 63 Liaison Committee, Shifting the Balance: Select Committees and the Executive (HC 2000–01, 300) 24.

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‘alternative career structure’ for backbench MPs. The Modernisation Committee also prioritised outreach, including such issues as the accessibility and design of reports, recommended an increase in committee resources, and for the first time proposed the adoption of ‘an agreed statement of the core tasks’ of all departmental select committees.64 The Liaison Committee on 20 June 2001 duly adopted a list of 10 core tasks for departmental select committees, and these, supplemented by the practice of annual reporting by committees, have been a powerful driver for improving the effectiveness of committee work. More recent reforms have continued to strengthen committees – in particular, the direct election since 2010 of most committee chairs, which, along with the salary granted them, has hugely increased their authority and independence. The House of Lords has also made major changes over the last 20 years, seeing a remarkable expansion of committee work. The Royal Commission on the House of Lords in 2000 recommended three new committees, on the Constitution, Economic Affairs, and the Merits of Statutory Instruments. All three have become well-established, and the third (now the Secondary Legislation Scrutiny Committee) identified a key area of scrutiny that remains largely untouched by Commons committees. Further expansions saw the appointment of committees on Communications and on Public Services, and the appointment each session of four special inquiry committees. Most recently the House has marked out another new area for committee scrutiny by appointing an International Agreements Committee, while the disappearance of the European Union Committee and the restructuring implemented in April 2021 have given the House something approximating to a comprehensive suite of cross-cutting committees. But while the working practices of Commons committees in particular have evolved, and their important role in scrutinising the executive is generally acknowledged, the fundamental questions posited earlier in this chapter remain: do they have any real power, and if so, is that power necessary and proportionate? Or to put it another way, what do committees actually achieve, and what powers do they need to achieve it? In parallel with the reforms of the last 20 years has come an increasing consciousness of the need to demonstrate, and measure, ‘impact’. The difficulty of devising accurate measures, in a shifting, multi-dimensional political environment, is immense. Some committees have experimented with simple quantitative measures: the Home Affairs Committee, for instance, in 2012 introduced a ‘traffic-light’ system for measuring the effectiveness of its reports: Recommendations are coded green if, in our view, the Government has accepted them; red if they have been rejected; and yellow if they have been partially accepted, or if the Government has undertaken to give them further consideration.65

64 Committee 65 Home

on Modernisation of the House of Commons, Select Committees (HC 2001–02, 224). Affairs Committee, Effectiveness of the Committee in 2010–12 (HC 2012–13, 144).

Select Committees: Powers and Functions 153 This approach was later rejected by the Liaison Committee, which noted that ‘a bald count of recommendations accepted and rejected does not allow for the recommendations which are easy to accept or the harder ones which are rejected initially but implemented eventually’.66 More intellectually defensible measures of effectiveness have proved elusive. The Liaison Committee cited ‘the assessment of stakeholders and academics’. In so doing it drew on what remains the most comprehensive study of committee effectiveness, by the Constitution Unit in 2011, which described committee influence as a ‘very slippery subject’.67 The authors concluded that the acceptance of recommendations by government probably captured only half of committee influence. Among the other forms of influence, the most potent was probably the ‘fear factor’, which was largely prospective and dissuasive: Comments such as those from ministers and officials in this study that ‘you’ve always got to think, how would I explain that to the committee?’ are probably the clearest indicators of this crucial form of influence that scholars will ever be able to find.68

What the reformers of the 1970s could not have anticipated, and what underlies the ability of committees to generate fear, is the impact of technology, particularly the explosion of news media. While proceedings in the two chambers are often poorly attended and procedurally obscure, committee proceedings, streamed live on the Internet, have an intimacy and drama all their own. The election of committee chairs in the Commons was also a critical development, not just because it loosened the grip of party managers, but because it created an alternative to ministerial office as a source of parliamentary status, celebrity or leadership.69 It did not take long for some committee chairs to realise that, in the Jeremy Kyle era, the combination of politics, scandal and fear made for good box office. The 2010 Parliament saw a huge increase in coverage of committees, led by two of the new breed of ‘celebrity chair’, Margaret Hodge, of the Public Accounts Committee, and Keith Vaz, of the Home Affairs Committee. Alongside the increase in coverage came a multiplication of the number of concurrent inquiries, many launched in response to breaking news stories, and an extraordinary increase in their reach, straying into areas of public and private life far removed from committees’ core task of scrutinising the executive. It also became increasingly clear that the ‘fear factor’ was open to abuse. The appearance of Rona Fairhead (now Baroness Fairhead) before the Public Accounts Committee in March 2015 felt at the time like a tipping point: giving

66 Liaison

Committee, Legacy Report (HC 2014–15, 954). Russell and M Benton, Selective influence: the Policy Impact of House of Commons Select Committees (Constitution Unit, 2011) 96. 68 ibid, 97. 69 See for instance A Kelso, ‘Political Leadership in Parliament: The Role of Select Committee Chairs in the UK House of Commons’ (2016) 4 Politics and Governance 2, 115. 67 M

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evidence as a non-executive director of HSBC, she had recently taken on the unrelated role of Chair of the BBC Trust. During the meeting the chair, Margaret Hodge, described her as ‘totally incompetent’, telling her she should resign from her BBC role. This led to accusations that Ms Hodge had launched an ‘abusive and bullying attack’, bringing Parliament itself into disrepute.70 Another commentator described committee proceedings as ‘a mix of slapstick and ritual humiliation … the national stocks, in which the villain of the day can be arraigned and pelted with impudent questions to see whether they crack’.71 Such behaviour increased long-standing concerns that committee over-reach might expose the powerlessness of the House to enforce its will. As long ago as 2012 the then Clerk of the House, Sir Robert Rogers (now Lord Lisvane), had described the House’s powers, upon which committees rely, as a ‘paper tiger’. He offered three options: to do nothing (a confession of failure); to reassert existing powers and establish more robust procedures for using them in Standing Orders (which could be seen as ‘merely exhortatory’); or to provide coercive and penal powers in statute (which could expose committees to the ‘intrusive and unwelcome’ oversight of the courts).72 One year later, the Joint Committee on Parliamentary Privilege cautiously endorsed Lord Lisvane’s second option, proposing draft Standing Orders for consideration by the House of Commons. Conscious that this might be seen as an empty gesture, it also asserted that the House’s powers, though in many cases not exercised since the nineteenth century, remained in existence, describing their assertion as ‘fundamentally, a test of institutional confidence’.73 These concerns were raised against the backdrop of the long-running inquiry of the Culture, Media and Sport Committee into allegations of phone-hacking by employees of News International, which underlined both the reputational risks arising from committee activity, and the House’s ultimate powerlessness. First the committee issued a formal summons requiring the attendance of the proprietor of News International, Rupert Murdoch. Although Mr Murdoch duly attended the committee on 19 July 2011, the meeting turned into a fiasco when he was assaulted by a member of the public, while proceedings were broadcast live on television. Perhaps more significant in the longer term was the committee’s finding that three employees of News International, and the company itself, had knowingly misled the committee.74 After a long investigation, the Committee of Privileges in 2016 found that two of the employees had indeed knowingly misled 70 R Syal and M Sweney, ‘Margaret Hodge accused of ‘abusive and bullying’ attack on BBC Trust chair’ The Guardian (11 March 2015). 71 J McLeod and O Wright, ‘Have Select Committees become an Abuse of Power? Discuss …’ The Independent (29 May 2015). 72 Rogers (n 4). 73 Joint Committee on Parliamentary Privilege (n 46) 77. 74 Culture, Media and Sport Committee, News International and Phone-hacking (HC 2010–12, 903) 84.

Select Committees: Powers and Functions 155 the committee, and were thus guilty of contempt of the House.75 But at the outset the committee had acknowledged that the only feasible sanction would be formal admonishment – historic powers to fine or imprison recalcitrant witnesses could no longer be invoked. To avoid another media circus, the committee recommended that such admonishment be made by means of a resolution of the House, rather than (as used to be in the case) to the culprit in person and at the bar of the House. The resolution was duly agreed by the House on 27 October 2016. After the 2015 election committees were reappointed with new membership, but rather than moderate their approach, avoiding clashes with high-profile witnesses, who have nothing to gain and much to lose from giving evidence, committees continued to raise the stakes. In 2016 the founder of Sports Direct, Mike Ashley, refused to give evidence to the Business, Innovation Skills Committee, accusing the committee of ‘abusing parliamentary procedure in an attempt to create a media circus at Westminster’.76 Eventually Mr Ashley backed down, but only after a protracted and acrimonious correspondence. A 2017 paper prepared for the Committee of Privileges by Lord Lisvane’s successor as Clerk of the House, Sir David Natzler, elegantly encapsulated the dilemma then facing the House: The fear is always that a particular crisis will reveal that the Emperor has no clothes and that the consequent damage to committees’ ability to scrutinise public policy and hold the Government and other public bodies to account will suffer far-reaching damage. That this has not so far happened does not mean that it will not or cannot in future. On the other hand, when it has come down to it, the Emperor has in fact proved to be quite effectively attired, not perhaps with the historic powers to take into custody or to commit individuals, but with other softer, but sometimes equally persuasive, means: the pressure of public opinion; the requirements on individuals to demonstrate that they are ‘fit and proper persons’; the risk that failure to co-operate will be interpreted against them.77

Despite David Natzler’s hint that softer tactics might be more effective, the issuing of formal summonses to reluctant witnesses, once exceptional, has become relatively commonplace.78 Sooner or later, someone was going to point out the 75 Committee of Privileges, Conduct of Witnesses before a Select Committee: Mr Colin Myler, Mr Tom Crone, Mr Les Hinton, and News International (HC 2016–17, 662). 76 The lengthy correspondence between the Business, Innovation and Skills Committee and Mr Ashley is published online at www.parliament.uk/business/committees/committees-a-z/commonsselect/business-innovation-and-skills/inquiries/parliament-2015/working-practices-at-sports-directinquiry-16-17/publications/ (accessed 8 December 2021). 77 D Natzler, ‘Written evidence submitted by the Clerk of the House to the Committee of Privileges’ (February 2017, SEL0001) data.parliament.uk/writtenevidence/committeeevidence.svc/ evidencedocument/committee-of-privileges/select-committee-powers/written/48435.pdf (accessed 8 December 2021). 78 As the Committee of Privileges noted in May 2021: ‘Between 1992 and 2007, only one summons was issued, however since 2007 there have been 13 summonses.’ Of these 7 have been issued since 2016, including summonses to provide papers or records, and summonses to witnesses to appear in person. See Committee of Privileges, Select Committees and Contempts: Clarifying and Strengthening Powers to Call for Persons, Papers and Records (HC 2019–21, 35) 37 and Annex 1.

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Emperor’s nakedness, and the person to do so was Dominic Cummings, the former director of the 2016 ‘Vote Leave’ campaign. Once again, the Culture, Media and Sport Committee precipitated the crisis. On 10 May 2018, as part of its inquiry into ‘fake news’, the committee ordered Mr Cummings to give evidence. He simply refused to attend, either in response to the committee’s summons or a later Order of the House. As a result, the committee alleged that Mr Cummings was in contempt of the House – an allegation that was eventually upheld by the Committee of Privileges and, on 2 April 2019, the House. The House’s formal admonition had absolutely no impact: not only was Mr Cummings appointed as the Prime Minister’s Chief Adviser just a few months later, in July 2019, but following his appointment he was granted a parliamentary security pass. Following this striking demonstration of the House’s powerlessness, the Committee of Privileges launched yet another inquiry. Once again, it revisited the three options presented by Lord Lisvane back in 2011: to do nothing; to reassert existing powers and establish more robust procedures for using them in Standing Orders; or to provide coercive and penal powers in statute. The committee’s report, published on 3 May 2021, concluded that the first option would mean accepting that the House’s theoretical penal power no longer existed and would be ‘an endorsement of the present situation’. The time for the second option had passed, and it would be regarded as an ‘empty gesture’. That left the third option, legislating to establish a statutory regime. This was the committee’s preferred option: ‘Only legislation can put the powers of the House to punish this form of contempt beyond doubt and provide the necessary clarity to MPs, officials, witnesses, and the public.’79 The committee also published a draft two-clause Bill to give effect to its recommendation. This would criminalise the offence of failing to comply with a summons issued by a Select Committee of the House of Commons, either by appearing in person or by providing information or documents. A person guilty of such an offence would be liable to imprisonment for up to two years, a fine, or both.80 At the time of writing (June 2021) it is too early to provide a detailed analysis of the committee’s proposals, or to predict how the government will respond to them. Legal commentators have already started to analyse the proposals,81 and rather than duplicate their work I offer three more general observations.

79 ibid,

44, 57 and 71. an early response to the Committee of Privileges proposals, see P Evans, ‘Will they come when you do call for them? Should select committees have real power to compel evidence?’ (Hansard Society, June 2021 ) www.hansardsociety.org.uk/blog/dominic-cummings-privileges-select-committeelegislation-proposal (accessed 8 December 2021). 81 See for instance J Rozenberg, ‘Keep politics out of the courts’ (4 May 2021). rozenberg. substack.com/p/keep-politics-out-of-the-courts (accessed 8 December 2021). See also A Horne, ‘Should Select Committees be able to compel attendance?’ (Prospect Magazine, 7 May 2021) 80 For

Select Committees: Powers and Functions 157 First, the clauses proposed by the Committee of Privileges address the threat of what Lord Lisvane called ‘intrusive and unwelcome’ oversight by the courts of parliamentary proceedings by strictly curtailing the role of the courts: they may ‘consider the nature and purpose of the Committee’s summons’, with a view to deciding whether the person accused had ‘a reasonable excuse’ for non-compliance, and ‘what punishment to impose’, but they ‘may not consider any other aspect of the Committee’s proceedings’. It is difficult to see how such restrictions will stick, or to envisage the courts imprisoning a recalcitrant witness (who, by the committee’s own admission, is likely to be one of the ‘rich and powerful’, equipped with the best legal advisers) without fully interrogating the process whereby he or she came to be in the dock. Second, the committee seeks to criminalise a specific contempt, that of failure to comply with a committee summons, rather than to put parliamentary privilege as a whole on a statutory basis. This in large part reflects the narrow terms of reference of the Committee’s inquiry (it was asked to consider ‘the exercise and enforcement of the powers of the House in relation to select committees and contempts’), but it runs counter to the approach adopted in Australia, where the 1987 Act defines the offence of contempt in non-specific terms, as ‘an improper interference with the free exercise by a House or committee of its authority or functions, or with the free performance by a member of the member’s duties as a member’. It also runs counter to the view of the 2013 Joint Committee on Parliamentary Privilege, which concluded: We reject the approach of criminalising specific contempts … It would increase uncertainty about how contempts which were not covered by criminal statute could or should be dealt with, and remove the flexibility which is the chief advantage of the current system.82

Finally, it is notable that the Committee of Privileges proposals relate only to House of Commons select committees. This is once again understandable, given the Committee’s narrow remit: all it could do was to describe the extension of statutory provisions to the Lords as a matter for ‘further consultation’.83 But if legislation were to be enacted in the form proposed by the Committee, there would be significant implications for joint committees. As noted above, there is a longstanding principle that joint committees possess only those powers that are conferred upon them by both Houses: neither House can bind a committee of the other House. Statute, though, could potentially over-ride this principle. How such a development would affect the operation of joint committees remains to be seen.

www.prospectmagazine.co.uk/politics/should-select-committees-be-able-to-compel-attendance (accessed 8 December 2021). 82 Joint Committee on Parliamentary Privilege (n 46) 65–70. 83 Committee of Privileges (n 78) 138.

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VIII. Conclusion At heart, privilege is a special right or power, an exception to the general run of the law, and as such, it needs to be exercised with restraint. Indeed, the survival of such privileges across society is open to question, thanks to international law obligations, such as the European Convention on Human Rights84 and its domestic corollary, the Human Rights Act 1998, and to domestic laws, such as the Data Protection Act 1998 and the Freedom of Information Act 2000, which gave citizens legally enforceable mechanisms to defend their personal rights and to hold public bodies, including Parliament, to account. Against this backdrop, Parliament’s continuing possession of ancient, uncodified and largely dormant penal powers seems anomalous. Committees have been at the sharp end of these developments, precisely because of the flexibility that has enabled their expansion and undeniable success over the last 40 years. That flexibility has allowed them to devise new working practices, allowing them to hold the government to account and to scrutinise legislation more effectively. It has allowed them to extend their remit, beyond what was once a narrow and largely technical focus on government policy and administration, and committees today regularly conduct quasi-judicial inquiries into the scandals of the day. The sceptics of the 1970s have been proved wrong. Committees and their increasingly powerful chairs have also used the flexibility of their working practices to help them harness an alternative source of power in the news media, raising their profile and inspiring fear in alleged wrong-doers. But in so doing they have trodden a tight-rope, both reputationally and legally. Events of recent years suggest that they have lost their balance, exposing themselves on the one hand to allegations of bullying, of orchestrating a media circus, and on the other exposing the inability of Parliament to enforce its will upon the rich and powerful. Self-restraint and moderation have been abandoned; simple assertion of historic powers has been exposed as a bluff. It remains to be seen whether statute offers a better way forward.

84 The European Court of Human Rights has in fact twice ruled that national parliaments have overreached themselves in exercising penal powers, both in respect of non-members (Demicoli v Malta (1991) 14 EHRR 47) and opposition members (Karácsony v Hungary [2016] ECHR 429).

7 Parliament’s Engagement with Treaties ARABELLA LANG AND MARIO MENDEZ

I. Introduction Treaties are law, and create international obligations that can in effect require Parliament to legislate or to refrain from legislating. Yet the power to make treaties is an executive power over which the UK Parliament, until recently, has shown little interest. This is despite both a rapid transformation in the scope and scale of treaty-making during the twentieth century, and the House of Commons gaining new statutory treaty powers under the Constitutional Reform and Governance Act 2010 (CRAG). The catalyst for change was leaving the EU. It both revealed the inadequacies of CRAG and resulted in a large number of new treaties, bolstering the case for improved parliamentary scrutiny. The most notable changes have been the creation of a treaty scrutiny committee and enhanced arrangements for parliament to scrutinise trade agreements. Both are welcome. Yet this chapter argues that much more can, and should, be done to ensure that treaties have meaningful parliamentary scrutiny. This argument is developed in four main sections. We first seek to explain why treaties should matter to Parliament. A second section focuses on the emergence of rules, both conventional and statutory, that in theory allowed for parliamentary oversight of the treaty power, but in practice rarely resulted in scrutiny. In a third section we focus on how parliamentary scrutiny has developed since the Brexit referendum, as Parliament became alive to the importance of the treaty power and pushed for a more active role leading to the creation of a treaty scrutiny committee. The final section draws these threads together with comparative insights to make the case for stronger parliamentary scrutiny of treaties.

II. Why Treaties Should Matter to Parliament We begin this section by briefly setting out the conventional view that in the UK treaties are a matter for the government. At its bluntest, this has two facets: first, the sensitivity of foreign relations means they are best conducted in confidence,

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with parliamentary accountability limited to only general (and post hoc) oversight; and second, the government binds the UK on an international law plane that operates separately from domestic law and therefore needs no engagement with Parliament unless the government deems that legislation is required. We then develop at more length some challenges to that view, beginning with arguments that parliamentary sovereignty and democratic accountability demand a significant treaty role for Parliament. These arguments are amplified by the increasing interpenetration of international and domestic law, which has contributed to a sustained global trend towards greater involvement by Parliaments. It is striking that in areas of policy that require or benefit from cooperation with other countries, and unlike most of their negotiating partners, the UK Government can effectively make law without meaningful involvement from Parliament.

A. Government Treaty Dominance In the UK, the government’s treaty power requires no legislative authority, as it is one of the remaining executive prerogative powers. This is supported by a broader foreign affairs exceptionalism that has long held that governments’ foreign affairs powers should be subject to a more relaxed set of constitutional restraints than those that govern its domestic powers.1 Historically, both Parliament and academics in the UK have largely ignored the treaty power: a lack of engagement which has been mutually reinforcing.2 The government’s dominant role in treaties is partly functional and practical: it has more expertise and information on foreign affairs than Parliament or the judiciary; there are advantages in a state speaking with one voice in the international arena; and flexibility can be desirable in foreign policy making. Blackstone’s support for this ‘unanimity, strength and despatch [sic]’3 has been echoed by judges and commentators to the present day.4 Supporters argue that this dominance is democratically appropriate, either because the government derives its legitimacy directly from the electorate or because ministers are accountable to Parliament.

1 See, eg, C Bradley, ‘What is Foreign Relations Law?’, in C Bradley (ed), Comparative Foreign Relations Law (Oxford, OUP, 2019) 13. 2 M Mendez, ‘Neglecting the Treaty-Making Power in the UK: the Case for Change’ (2020) 136 LQR 630. 3 W Blackstone, Commentaries on the Laws of England (first published 1765–69, Oxford, OUP, 2016) Book 1, 162. 4 See, eg, R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, para 160 (per Lord Reed); T Endicott, ‘The Stubborn Stain Theory of Executive Power’ (Policy Exchange 2017) policyexchange.org.uk/publication/the-stubborn-stain-theory-of-executive-power/ (accessed 21 January 2022).

Parliament’s Engagement with Treaties 161 An important element of this position is that UK parliamentary sovereignty is protected by the concept of dualism.5 As Lord Reed puts it, it is only because treaties are not part of UK law and give rise to no enforceable legal rights or obligations in domestic law that ‘the prerogative power to make and unmake treaties is consistent with the rule that ministers cannot alter the law of the land’.6 If the government has decided to take on new international obligations in a treaty that require new criminal offences,7 or upholding new individual rights,8 its practice is to introduce legislation before ratification, to bring domestic law into line with its proposed international obligations. This legislation is subject to all the usual procedures, so parliamentary sovereignty remains intact. Conversely, Parliament can pass legislation contravening international law obligations – although it would have to be drafted unambiguously to rebut the interpretative presumption that Parliament does not legislate contrary to international law. This was vividly illustrated by the government’s Internal Market Bill in September 2020 that contained clauses that would have allowed breaches of a treaty it had agreed less than a year previously. The Northern Ireland Minister explicitly acknowledged that this would break international law in a ‘specific and limited’ way.9 The Law Officers justified this by stating that while a state is obliged to discharge its treaty obligations in good faith, the UK Parliament has the authority to pass an Act of Parliament breaching the UK’s treaty obligations.10 However, this led amongst other things to a resounding majority for a House of Lords motion regretting that the Bill ‘if enacted would undermine the rule of law’, charges of breaching the UK Ministerial Code (which requires adherence to international law and treaty obligations),11 and the resignation of the head of the Government Legal Department, Sir Jonathan Jones. The clauses were ultimately withdrawn.12

B. Challenges to Government Treaty Dominance As the Internal Market Bill example hints, dualism does not in practice fully insulate domestic law from international law.13 The view that the government

5 See, eg, P Craig, ‘Engagement and Disengagement with International Institutions’, in C Bradley (ed), Comparative Foreign Relations Law (Oxford, OUP, 2019) 394; C McLachlan, Foreign Relations Law (Cambridge, CUP, 2014), 152 & 156. 6 R (SC and ors) v Secretary of State for Work and Pensions [2021] UKSC 26, [78]. 7 Eg, 1951 Genocide Convention, Art V. 8 Eg, the right to a periodic review for children in residential care: 1989 UN Convention on the Rights of the Child, Art 25. 9 HC Deb 8 September 2020, col 509. 10 Cabinet Office, ‘HMG Legal Position: UKIM Bill and Northern Ireland Protocol’, 10 September 2020. 11 R (on the application of Gulf Centre for Human Rights) v Prime Minister [2018] EWCA Civ 1855. 12 For more on this episode, see ch 10. 13 See also Mendez (n 2).

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has and should have unfettered treaty powers is open to a range of challenges on grounds of both parliamentary sovereignty and democratic accountability. These challenges have been exacerbated by the expansion of treaties into traditionally domestic areas.

i. Parliamentary Sovereignty First, implementing legislation is not a proxy for parliamentary approval of treaties.14 Many treaties do not require implementing legislation – or the government chooses not to legislate. And although some treaties are implemented or even fully incorporated by specific primary legislation,15 piecemeal primary16 or secondary17 legislation is often used, which may have little or no meaningful debate in Parliament. Crucially, amending or voting against implementing legislation will not automatically prevent ratification of the treaty. Second, treaties can in practice constrain future legislation, either by predetermining any implementing legislation or by limiting future amendments to domestic law. Some years ago, a Ministry of Justice consultation document essentially acknowledged this in stating ‘[w]here the Government has accepted international obligations by treaty then those obligations may in practice constrain Parliament’s ability to legislate, so long as those obligations continue’.18 Third, although the courts will not directly enforce individuals’ rights under unincorporated treaties, judges may interpret ambiguous legislation so as to make it consistent with any UK treaty obligations, and the same principle guides the development of the common law.19 Relying on unincorporated treaties effectively cuts Parliament out of determining what the law is.

ii. Democratic Accountability Democratic accountability also demands a significant treaty role for parliaments,20 with the aim of bringing transparency, debate and broader participation. 14 See further A Lang, ‘How Parliament Treats Treaties’ (Commons Library Briefing Paper 9247, 2021). 15 Eg, Geneva Conventions Act 1957. 16 Eg, elements of the 1989 UN Convention on the Rights of the Child inform or inspire many elements of many pieces of legislation in the UK. 17 Eg, secondary legislation implementing the UK-Japan trade agreement: see Department for International Trade, ‘Explanatory memorandum: UK/Japan: Agreement for a Comprehensive Economic Partnership, 2020’, s 5. 18 Ministry of Justice, The Governance of Britain – Judicial Appointments (Cmd 7210, 2007) 1.8–1.9. 19 For discussion of the authorities, see R (SG) v Secretary of State for Work and Pensions [2015] UKSC 16, paras 235–242 (Lord Kerr), and E Smith, E Bjorge and A Lang, ‘Treaties, Parliament and the Constitution’ [2020] Public Law 508, 516. However, see more recently R (on the application of SC and ors) v Secretary of State for Work and Pensions [2021] UKSC 26, [74] (Lord Reed). 20 J Martinez, ‘ The Constitutional Allocation of Executive and Legislative Power over Foreign Relations’, in C Bradley (ed), Comparative Foreign Relations Law (Oxford, OUP, 2019); McLachlan (n 5) chs 1 and 5.

Parliament’s Engagement with Treaties 163 Modern treaties not only create obligations between states, but also set standards and create rights and duties for individuals and businesses.21 They almost inevitably entail risks and trade-offs, concerning both domestic issues and other international commitments.22 If the government does not balance or even hear a range of views, it could bind the UK – potentially in perpetuity23 – to a flawed or unsupported treaty. And because there is limited scope for legal accountability for how the treaty power is exercised,24 political accountability is all the more important. A central part of Parliament’s role is to increase the information in the public domain about the government’s actions, and allow a range of views to be represented and debated. It is ‘the best crucible for the politics of treaty-making’: democratic scrutiny generates better policy, better politics and more legitimate decision-making.25 Given that treaties can long outlive one government, the need for a durable consensus is even clearer for treaties than it is for other matters. Finally, treaties may endorse and amplify the contested power dynamics and structural inequalities of international law. International law is increasingly criticised on grounds of gender, race, democracy and colonialism, for example.26 Parliament could help to draw attention to and potentially help mitigate these serious flaws.

iii. The Expansion of Treaties All the challenges set out above are amplified by globalisation. The growing need for international solutions to international problems means that hundreds of treaties are made every year that cut deep into domestic territory. Without a corresponding expansion of parliamentary involvement, this growth amounts to a major shift in power to the executive. Until the twentieth century, treaties were largely about war and peace, territory and trade. The mid-twentieth century saw the emergence of international and regional human rights treaties. Another phase of expansion in the latter part of the twentieth century saw treaties such as the Energy Charter Treaty and the WTO’s Agreement on Trade-Related Aspects of Intellectual Property, as well as thousands of bilateral and regional treaties that protect foreign investors and intellectual property owners and frequently give them rights to sue governments outside

21 See H Aust, ‘Foreign Affairs’, in Max Planck Encyclopedia of Comparative Constitutional Law, (Oxford, OUP, 2017) 4. 22 Bradley (n 1) 19. 23 Some treaties contain no exit provisions, and Art 56(1) of the 1969 Vienna Convention on the Law of Treaties creates a presumption against leaving them. 24 Craig (n 5) 394 suggests ‘it would require something extraordinary for a court to intervene in relation to the manner of exercise of this power’. 25 Smith, Bjorge and Lang (n 19). 26 See discussion in J Klabbers, International Law 3rd edn (Cambridge, CUP, 2020) ch 1.

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national court systems (Investor-State Dispute Settlement). Treaties now penetrate deep into many areas of daily life, from health standards to aviation safety, police cooperation to taxation, environmental targets to domestic violence. Trade treaties are no longer limited to removing border taxes, but now aim at substantial alignment of domestic regulation in matters such as consumer and employment rights, data flows, environmental matters, health standards and public services.27 Moreover, many treaties establish new bodies that can amend the treaty, and/ or binding mechanisms for resolving disputes under it. Treaties may also delegate various types of power – legislative, adjudicative, regulatory, monitoring and enforcement for example – to international organisations.28 These can include powers to make rules that bind states without any further treaty procedures, such as UN Security Council resolutions and WHO international health regulations. And because not all of these ‘secondary’ rules are minor and technical, there are important questions about transparency and accountability.

III. From the Ponsonby Rule to CRAG The first express parliamentary involvement in the treaty power in the UK came in 1924 with the emergence of a constitutional convention known as the Ponsonby Rule.29 Arthur Ponsonby, a Foreign Affairs Minister, announced the Labour Government’s intention to lay treaties subject to ratification before both Houses for 21 days after signature.30 He also promised to find time to debate ‘important’ treaties during that 21 day period.31 The expressly articulated objective of this 1924 announcement was to: strengthen the control of Parliament over the conclusion of international treaties … and to allow … adequate opportunity to discuss the provisions … before their final ratification.

Further transparency was injected from 1997 when the government agreed to provide an Explanatory Memorandum (EM) for treaties laid before Parliament that would describe amongst other things the subject matter of the treaty and

27 See E Jones and A Sands, ‘Ripe for Reform: UK Scrutiny of International Trade Agreements’ (GEG Working Paper 144, 2020). 28 See, eg, C Bradley and J Kelley, ‘ The Concept of International Delegation’ (2008) 71 Law and Contemporary Problems 1. 29 On the rule and its evolution, see Constitution Committee, Waging War: Parliament’s Role and Responsibility (HL 2005–06, 236), app 5 (noting also that treaties that were in force were being presented to Parliament from 1892). 30 HC Deb 1 April 1924, cols 1999–2005. 31 The 1924 announcement included a commitment to publicise important non-treaty international arrangements, an important topic outside the scope of this chapter: see further A Aust, Modern Treaty Law and Practice 3rd edn (Cambridge, CUP, 2013) ch 3.

Parliament’s Engagement with Treaties 165 why it was proposed the UK should become a party. From 2000 there was a commitment to send treaties laid under the Ponsonby Rule to the relevant departmental select committees, and to the Joint Committee on Human Rights (JCHR) if they raised human rights issues. At the same time, the government undertook to normally accept requests from the relevant select committee and the Liaison Committee for a debate on any treaty involving major political, military and diplomatic issues,32 although as far as we know no such requests have been made. The fact that Parliament had long had treaties laid before it under the Ponsonby Rule and that select committees were eventually sent these treaties directly did not however mean that Parliament was in fact actively scrutinising treaties. It was striking that treaties as significant as the European Convention on Human Rights (ECHR), the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights, that were laid under the Ponsonby Rule in respectively the early 1950s and mid-1970s, were not debated before ratification. These ground-breaking human rights treaties were not subject to any implementing legislation, so even the imperfect proxy of debating implementing legislation did not apply. UK accession to the then European Communities (EC) was however preceded by a parliamentary motion in support and required implementing legislation, the European Communities Act 1972.33 From 1978 a statutory fetter on the treaty power existed so that EC and European Union (EU) treaty revisions required pre-ratification approval by Act of Parliament.34 Debates on the Bills authorising UK ratification of the five main EC/EU treaty revisions, up to and including the Lisbon Treaty, were the most notable example of Parliament engaging with the treaty power. The birth of the departmental select committee system in 1979 had little impact on treaty scrutiny. In the first three decades of its existence the Foreign Affairs Committee’s only reports on specific treaties were on EU revising treaties.35 Otherwise, treaty-making by the EU was scrutinised by Parliament’s European committees (as well as by the European Parliament), and the JCHR in 2004 decided to report to Parliament on all human rights treaties (and their amendments), where it felt ‘a need to ensure that Parliament is fully informed about the background, content and implications of such treaties’.36 This led to the JCHR reporting on several treaties before ratification, notably the UN Convention on the Rights of Persons with Disabilities (UNCRPD) that was also then the subject

32 Procedure Committee, Government Response to the Second Report of the Committee: Parliamentary Scrutiny of Treaties (HC 1999–2000, 990). 33 See HC Deb 28 October 1971, cols 2076–2217. 34 See Mendez (n 2). 35 ibid. 36 Joint Committee on Human Rights, Protocol No. 14 to the European Convention on Human Rights (HL 8, HC 106 2014–2015, 7).

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of debate in Parliament (though arguably because of its status as an EU ‘mixed’ agreement).37 The treaty scrutiny deficiency in Parliament was powerfully articulated in a Public Administration Select Committee report in 2004 that called for full parliamentary scrutiny for treaties.38 Those proposals were given relatively short shrift by the government of the day,39 but then a new Prime Minister brought reform of prerogative powers briefly to centre stage, culminating in CRAG with its Part 2 devoted to ratification of treaties.40 CRAG makes the Ponsonby Rule’s obligation to lay treaties and EMs for 21 sitting days before ratification a statutory requirement (sections 20 and 24).41 An exemption for ‘exceptional’ cases allows a minister to ratify providing that the treaty was laid before or as soon as practicable after ratification along with a statement as to why this exceptional cases procedure was being used (section 22). The main constitutional innovation of CRAG was to create legal consequences of a parliamentary resolution against ratification (section 20). A Commons resolution would preclude the government from ratifying, unless the government laid a statement explaining why ratification should nevertheless proceed and the Commons did not resolve against ratification during a newly triggered 21 day period. There are no legal restrictions on the number of times this can be repeated, so if the elected house was able to obtain time on the floor of the house it could in theory repeatedly prevent a treaty being ratified. In contrast, if the resolution against ratification is from only the unelected house, the government can proceed directly to ratification once it has laid a statement explaining why the treaty should nevertheless be ratified. However, CRAG does not require parliamentary approval of treaties, nor scrutiny, debates or votes on treaties, or even create any triggers or mechanisms for them. And given these new statutory provisions were introduced into a parliamentary system in which treaty scrutiny had long been neglected, it was unsurprising to find that their entry into force had no discernible impact on parliamentary engagement. A change did occur in mid-2014, when the House of Lords Secondary Legislation Scrutiny Committee (SLSC) discovered that treaties laid under CRAG fell within its pre-existing terms of reference and it accordingly began considering such

37 See generally Mendez (n 2) 635, and specifically on the UNCRPD see A Horne and M Conway, ‘Parliament and Human Rights’, in A Horne and G Drewry (eds), Parliament and the Law 2nd edn (Oxford, Hart Publishing, 2018) 243. 38 Public Administration Select Committee, Taming the Prerogative (HC 2003–2004, 422). 39 See A Thorp, ‘Parliamentary Scrutiny of Treaties: up to 2010’ (Commons Library Briefing 4693, 2009) 17. 40 For a detailed discussion of this part of CRAG by a member of the government’s Bill team, see J Barrett, ‘The United Kingdom and Parliamentary Scrutiny of Treaties: Recent Reforms’ (2011) 60 International Comparative Law Quarterly 225. 41 Ministers can extend the period more than once for intervals of 21 sitting days or less: CRAG, s 21.

Parliament’s Engagement with Treaties 167 treaties. But through to the Brexit referendum, 24 of the 33 treaties it considered were not commented upon. Eight were the subject of information paragraphs, usually a single paragraph concerning the treaty, and one was drawn to the special attention of the Lords and debated after ratification.42 The only JCHR report on a treaty laid under CRAG concerned reforms to the ECHR and the European Court of Human Rights, and its request for the government to provide time for debate in both Houses was rejected.43 Finally, it is also important to underscore the transformation of the UK’s territorial constitution between the emergence of the Ponsonby Rule and its statutory codification in CRAG. Under the post-1998 devolution of power to Scotland, Wales and Northern Ireland, treaty-making is reserved to the UK Government. The devolved administrations are responsible for implementing international obligations relating to devolved matters and the UK Government is empowered to ensure they give effect to the UK’s international obligations. Thus, although the devolved countries’ interests may be different from or even opposed to those of the UK Government, their legislatures may be required to pass treaty-implementing legislation. Those legislatures’ ability to scrutinise treaties depends on both the extent to which the UK Government involves the devolved administrations, and the extent to which the UK Parliament considers the devolved legislatures’ positions – which itself depends on the extent and influence of the UK Parliament’s role in treaty scrutiny.44 Under a politicallybinding Concordat on International Relations,45 the UK Government agreed to cooperate with the devolved administrations on exchanging information, formulating UK foreign policy, negotiating and implementing treaties. It also provides for ministers and officials from the devolved administrations to form part of UK treaty-negotiating teams. However, the general statutory framework for treaty ratification is CRAG which remains wholly silent on the relationship between treaties and devolution.

IV. The Treaty Power Since the Brexit Referendum Since the Brexit referendum in June 2016 there has been wholly unprecedented recourse to the treaty power, triggering equally unprecedented engagement with it. Parliament, in particular, clearly became alive to the importance of this power and the inadequacies of its ordinary role on treaties and has slowly pushed for

42 See Secondary Legislation Scrutiny Committee, Third Report (HL 2014–2015, 12), and HL Deb 30 July 2014, cols 631–645GC. 43 See discussion in Mendez (n 2) 636. 44 See Lang (n 14) 48. 45 Memorandum of Understanding and Supplementary Agreements between the United Kingdom Government, Scottish Ministers, the Cabinet of the National Assembly for Wales and the Northern Ireland Executive Committee (October 2013).

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greater involvement. This section is divided into four sub-sections focussing on, first, triggering the EU withdrawal clause; second, negotiating and implementing a Withdrawal Agreement; third, the negotiation and implementation of the EU-UK Trade and Cooperation Agreement; and fourth, ‘Brexit related agreements’ and other treaties since the 2016 referendum, and the role of a new treaty scrutiny committee.46

A. Triggering Article 50 Under Article 50 of the Treaty on European Union, an EU Member State can decide to withdraw ‘in accordance with its own constitutional requirements’, and then notify the European Council of this intention. In the UK the treaty prerogative includes the power to withdraw from treaties. However, within days of the referendum a compelling blog post by constitutional lawyers argued that Article 50 could only be triggered following authorisation by an Act of Parliament.47 The government stated that it was not legally obliged to consult Parliament on triggering Article 50.48 Litigation ensued and the Divisional Court in Miller held that the government could not use the treaty prerogative to give the Article 50 withdrawal notice.49 In dismissing the government’s appeal, the Supreme Court held that an Act of Parliament was required to authorise the Article 50 notification.50 The reasoning was fundamentally connected to the European Communities Act 1972 giving effect to UK membership, making EU law a source of domestic law and rights and providing the basis for incorporating the entire evolving corpus of EU law into the UK. However, while Miller established that judicial control over treaty withdrawal is possible, it is difficult to conceive of another treaty withdrawal to which the logic deployed to require parliamentary authorisation by statute could easily be applied.51 Many parliamentarians sought to capitalise on Miller by attempting to introduce procedural and substantive constraints on the treaty negotiations in the Government Bill authorising the Prime Minister to trigger Article 50, but it passed unamended less than two months after the Supreme Court ruling.52 The Article 50 notification was given in late March 2017 and the two-year negotiating clock specified in Article 50 began ticking. Without a withdrawal agreement,

46 Some

of these issues are also considered in ch 10. discussion by the authors, see N Barber, T Hickman and J King, ‘Reflections on Miller’ (2018) 8 UKSC Yearbook 212. 48 HL Deb 18 July 2016, col 430. 49 Miller [2016] EWHC 2768 (Admin). 50 Miller (n 4). 51 For a careful analysis relating to ECHR withdrawal, see G Phillipson and A Young, ‘Would Use of the Prerogative to Denounce the ECHR “Frustrate” the Human Rights Act? Lessons from Miller’ [2017] Public Law 150. 52 European Union (Notification of Withdrawal) Act 2017. 47 For

Parliament’s Engagement with Treaties 169 or a mutually-agreed extension, the UK was set to leave the EU automatically on 31 March 2019. This pressure to conclude a treaty drove much of the subsequent drama.

B. From Negotiating to Implementing the Withdrawal Agreement Prime Minister May appeared to recognise the importance of strong parliamentary support for her treaty negotiations with the EU when she decided to delay their start to try and increase her majority by holding a general election. This backfired and from June 2017 resulted in a minority Conservative Government with a confidence and supply agreement with the Democratic Unionist Party. However, she did not appear to reach out to this more challenging Parliament to gain their support, with the result that Parliament introduced a series of unprecedented statutory controls on the executive treaty power. Parliamentary committees, including the newly created Exiting the EU Committee shadowing the new Department for Exiting the EU, had made recommendations about how Parliament should be involved during the negotiations even before Article 50 was triggered.53 During the negotiations, committees held hundreds of public evidence sessions with thousands of witnesses,54 but because there was so little precedent for parliamentary involvement in treaties, they struggled to get information from the government and secure regular ministerial appearances.55 The Lords EU Committee specifically highlighted that committees often found it difficult to gain access to timely or detailed information on negotiations, meeting requests with ministers were turned down and Government responses to letters and reports were delayed and often of poor quality.56 The Withdrawal Agreement negotiations illustrated the limitations of CRAG. At best it only ensured Parliament access to the signed treaty and an EM for 21 sitting days pre-ratification, and although CRAG theoretically allowed the Commons to repeatedly preclude ratification, it did not actually require a vote from either House even on such an important treaty. In 2018, however, Parliament imposed a statutory fetter on the minority Government: the Withdrawal Agreement could not be ratified without approval by the Commons, a debate in the Lords and an implementing Act.57 So when the

53 See especially EU Committee, Brexit: Parliamentary Scrutiny (HL 2016–2017, 50); Exiting the EU Committee, The Process for Exiting the European Union and the Government’s Negotiating Objectives (HC 2016–2017, 815). 54 For Commons Brexit select committee activity, see H Begum, P Loft and S Fella, ‘Select Committee Activity on Brexit, 2016–2020’ (Commons Library Research Briefing 9278, 2021). 55 Lang (n 14). 56 EU Committee, Scrutiny of International Agreements: Lessons Learned (HL 2017–2019, 387) 37. 57 The so-called ‘meaningful vote’ in s 13(1) of the European Union (Withdrawal) Act 2018.

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EU and the UK reached political agreement on a Withdrawal Treaty in November 2018, the Commons voted on it; and they voted ‘no’ three times between January and March of 2019. It has been suggested that if Parliament ‘had been able to provide formal input earlier, then the government might have been less likely to strike a bargain for which there was no majority’.58 Parliament then repeatedly required the government to seek extensions of the Article 50 negotiating period: a highly unusual constitutional manoeuvre aimed at preventing an automatic ‘no deal’ Brexit under the terms of Article 50. After the second vote against the Withdrawal Agreement, the government secured a short extension of the Article 50 period so that the UK would not automatically leave the EU by operation of Article 50 in late March 2019. This first extension, as Cowie argued, was the culmination of parliamentary pressure in the form of political and indirect legislative pressure and the threat of direct legislative initiative.59 Following the third vote against the Withdrawal Agreement, a private member’s Bill requiring the Prime Minister to seek a further extension passed through Parliament.60 She duly did so in April 2019, and the Commons gave its retrospective approval. This culminated in an extension through to 31 October 2019.61 But Prime Minister May’s inability to secure parliamentary approval for her Withdrawal Agreement led to her resignation, and the appointment of Boris Johnson. Shortly afterwards, an Order in Council in late August 2019 ordered a wholly unprecedented five-week prorogation of Parliament through to October. A prorogation strategy to prevent Parliament standing in the way of EU withdrawal on 31 October, with or without a Withdrawal Agreement, had been widely mooted and not denied by ministers. Parliament responded by imposing a requirement on the new Prime Minister to seek a further three-month extension by 19 October unless the Commons had by that date approved either a Withdrawal Agreement or leaving the EU without an agreement.62 Then on 24 September 2019 the Supreme Court unanimously found the decision to prorogue Parliament unlawful and of no legal effect because it interfered with the constitutional principles of parliamentary sovereignty and parliamentary accountability and the government offered no justification.63 Parliament resumed the following day. A revised Withdrawal Agreement was announced on 17 October 2019. The parliamentary approval of the Agreement required under both the 2018 and 2019 EU Withdrawal Acts was not, however, forthcoming from a specially convened

58 Smith,

Bjorge, Lang (n 19) 520. Cowie, ‘Parliament and the Three Extensions of Article 50’ (Commons Library Briefing Paper 8725, 2019) 10. 60 European Union (Withdrawal) Act 2019 (also known as the Cooper-Letwin Act). 61 For discussion of the extensions, see Cowie (n 59). 62 European Union (Withdrawal) (No 2) Act 2019 (also known as the Benn Act). 63 R (Miller) v Prime Minister [2019] UKSC 41. 59 G

Parliament’s Engagement with Treaties 171 sitting of Parliament on 19 October 2019. Accordingly, the Prime Minister was legally compelled under the Benn Act to send the Article 50 extension request letter that day, culminating in an extension through to 31 January 2020. The parliamentary deadlock preventing the government from ratifying the Withdrawal Agreement was resolved through an early general election on 12  December 2019. Prime Minister Johnson, who campaigned on a manifesto commitment to implement the revised Withdrawal Agreement, emerged with an 80-seat majority. New implementing legislation was rapidly introduced and passed unamended barely a month later, repealing the ‘meaningful vote’ section of the 2018 Withdrawal Act and disapplying CRAG in relation to ratifying the Withdrawal Agreement.64 This allowed the government to ratify the treaty. Following EU ratification, it came into force at 11pm GMT 31 January 2020, terminating the UK’s EU membership and beginning an 11-month transition period. A few brief points are worth highlighting concerning the Withdrawal Agreement, and its legislative implementation, that speak to its constitutional significance. First, it resulted in much of EU law and the jurisdiction of the Court of Justice of the EU (CJEU) continuing to apply during an 11-month transition period in the same way as during membership, including the EU law principles of direct effect and supremacy. Second, the Agreement expressly required the UK to legislate to give its obligations, including a whole part on citizens’ rights,65 direct effect and priority over incompatible domestic law.66 Third, it placed Northern Ireland in a different customs and regulatory orbit from the rest of the UK, with an oversight role for the CJEU.

C. The EU-UK Trade and Cooperation Agreement When the UK left the EU on 31 January 2020, the focus turned to negotiating the future relationship treaty so that the UK could leave the transition period at the end of 2020 and immediately enter a new treaty-based relationship with the EU. While the Withdrawal Agreement allowed for the transition period to be extended beyond December 2020, the Conservatives’ 2019 manifesto commitment against extension was enshrined in the Act that implemented the Agreement.67 64 European Union (Withdrawal Agreement) Act 2020. All three devolved legislatures denied legislative consent motions to the Bill. 65 See for discussion, including relating to time-limited CJEU jurisdiction concerning citizens’ rights: C Barnard and E Leinarte, ‘Citizens’ Rights’, in F Fabbrini (ed), Law & Politics of Brexit: The Withdrawal Agreement (Oxford, OUP, 2020). 66 This was achieved with language similar to that used in the European Communities Act 1972, by s 5 of the European Union (Withdrawal Agreement) Act 2020 which inserted a new s 7A(1), (2) & (3) into the European Union (Withdrawal) Act 2018. 67 European Union (Withdrawal Agreement) Act 2020.

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The pre-2019 general election version of that Bill had included a clause requiring parliamentary approval of the UK’s negotiating objectives, regular government reports on negotiating progress, and parliamentary approval of the treaty. But that clause did not appear in the government’s new post-election Bill, to the express regret of the Constitution Committee.68 Negotiations formally began in March 2020. The EU-UK Trade and Cooperation Agreement (TCA) – over a thousand pages long – was finalised on 24 December 2020, a mere week before the UK was due to exit the transition period. The implementing Bill disapplied the CRAG requirements entirely, and was published less than 24 hours before the sole parliamentary day allocated for its passage before the Agreement was intended to enter into force on 1 January 2021. Reports rapidly emerged from two parliamentary committees criticising this truncated process and its implications for parliamentary scrutiny of the treaty and the Bill.69 The Bill passed unamended on 30 December 2020,70 the same day the TCA was signed by both parties. The parliamentary process relating to the TCA was referred to by one seasoned observer of Parliament as ‘a farce’ and ‘an abdication of Parliament’s constitutional responsibilities to deliver proper scrutiny of the executive and of the law’.71 But there was nothing to prevent it. The TCA was provisionally applied from 1 January 2021, and entered into force on 1 May 2021 following European Parliament approval. The TCA, as Craig pointed out, ‘contains countless substantive and procedural obligations that limit sovereign choice in a post-Brexit world’.72 This is all the more reason why Parliament should have had a prominent scrutiny role, as parliamentary committees and Members of both Houses had called for, rather than being relegated to a ‘take it or leave it’ vote on the implementing legislation with the prospect of exiting transition without a trade deal only hours away. Both the Withdrawal Agreement and the TCA attest to the constitutional significance of the executive power that is the treaty prerogative. To be sure, treaties may require legislative implementation to deploy constitutionally significant effects, and the Withdrawal Agreement expressly required this. But where the executive commands a comfortable majority in the Commons, the need for implementing legislation is not a meaningful constraint on its use of the treaty power.

68 Constitution

Committee, European Union (Withdrawal Agreement) Bill (HL 2019–21, 5). on the Future Relationship with the European Union, The UK-EU Future Relationship: the Trade and Cooperation Agreement (HC 2019–2021, 1094); Constitution Committee, European Union (Future Relationship) Bill (HL 2019–2021, 205). 70 European Union (Future Relationship) Act 2020. 71 B Fowler, ‘Parliament’s Role in Scrutinising the UK-EU Trade and Cooperation Agreement is a Farce’ (Hansard Society blog, 29 December 2020) www.hansardsociety.org.uk/blog/parliaments-rolein-scrutinising-the-uk-eu-trade-and-cooperation-agreement (accessed 18 December 2021). 72 P Craig, ‘Brexit a Drama, The Endgame – Part II: Trade, Sovereignty and Control’ (2021) 46 European Law Review 129, 144. 69 Committee

Parliament’s Engagement with Treaties 173

D. Brexit Related Agreements, Other Treaties and the International Agreements Committee Alongside the Withdrawal Agreement and the TCA, a host of other treaties were triggered by Brexit. This sub-section first considers Parliament’s scrutiny of those treaties before the birth of a treaty scrutiny committee. It then focuses on the latest treaty scrutiny practice since the creation of the Lords International Agreements Committee in March 2020.

i. Before the International Agreements Committee Impending EU departure resulted in a significant increase in treaty-making as the government sought to replicate many EU international agreements for the UK. More treaties were laid in the first few weeks of 2019 than ordinarily appear in a year.73 Yet neither the JCHR nor the Foreign Affairs Committee reported on any of them. The Lords SLSC continued considering treaties, though as with the pre-referendum period it offered very little by way of actual scrutiny. From the referendum through to the end of its role with treaties laid under CRAG in 2020, the overwhelming majority (52) of the 74 treaties it considered were not commented upon,74 while 21 were the subject of an information paragraph.75 Only one was referred to the special attention of the House – a data-sharing Agreement with the US for countering serious crime – but no parliamentary debate ensued.76 The SLSC was not equipped to deal with this increased workload on top of its challenging role scrutinising the huge volume of Brexit-related secondary legislation. A judicious solution was found by tasking the Lords EU Committee with scrutinising ‘Brexit-related agreements’ from January 2019.77 The relatively wellresourced EU Committee had long scrutinised agreements concluded by the EU, and thus had some treaty scrutiny expertise. As the EU Committee underscored, there was no hard-and-fast definition of ‘Brexit-related’, but most agreements it scrutinised were intended to replace agreements previously concluded by the EU.78

73 See V Miller, ‘Brexit: Parliamentary Scrutiny of Replacement Treaties’ (Commons Library Briefing Paper 8509, 2019) 4. 74 An extradition treaty with Kuwait reported without comment – Secondary Legislation Scrutiny Committee, Thirty Sixth Report (HL 2017–2019, 173) – was later the subject of a motion to take note: see HL Deb 30 October 2018, cols 1279–1289. 75 In one instance that single paragraph covered five (related) treaties: Secondary Legislation Scrutiny Committee, Seventh Report (HL 2017–2019, 239) 28. 76 Secondary Legislation Scrutiny Committee, Third Report (HL 2019, 11). 77 See EU Committee, Scrutiny of International Agreements: Treaties considered on 5 February 2019 (HL 2017–2019, 282) 5. 78 EU Committee, Lessons Learned (n 56) 3.

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In 2019 and 2020 the EU Committee produced 21 treaty scrutiny reports covering 63 Brexit-related treaties. Eleven were reported for the special attention of the House, the reporting on each treaty varying in length from nine to 65 paragraphs.79 The other 52 were reported for information and ranged from a few paragraphs to 25 paragraphs per treaty. In short, although crude numbers can be misleading – the EU committee was faced with many trade agreements of considerable significance – this was nonetheless treaty scrutiny of a wholly different order relative to the SLSC. But this enhanced parliamentary scrutiny was confined to this special category of treaties. All the others laid under CRAG remained within the SLSC remit, which continued to report only a small fraction to the House with information paragraphs that provide very little. It is also essential to recognise the limitations of the EU Committee scrutiny, for their reporting criteria ‘focussed on whether the new agreements differed from the precursor agreements, rather than analysing their inherent merits’.80 The tight timetables flowing from CRAG, given that the Committee sought to report well before the 21 sitting day deadline to give Members time to table motions for debate, meant that stakeholder consultation was compromised, that only one treaty had an evidence session, and that Committee member engagement was limited.81 And as emphasised in debates in the Lords to which the EU committee reports gave rise,82 because the treaty was finalised before this scrutiny, its content could no longer be influenced.

ii. The International Agreements Committee and a New Era of Treaty Scrutiny A new era of parliamentary treaty scrutiny began in April 2020 with the creation of an International Agreements sub-Committee (IAC) of the EU Committee with a remit ‘[t]o consider matters relating to the negotiation and conclusion of international agreements’ including all those laid under CRAG.83 EU withdrawal was a core driver for this crucial development because it magnified the shortcomings apparent in parliamentary scrutiny of treaties and

79 In the case of the UK-South Korea FTA it was 65 paragraphs: EU Committee, Scrutiny of International Agreements: Treaties considered on 21 October 2019 (HL 2019, 6). 80 EU Committee, Lessons Learned (n 56) 22. 81 ibid, chs 1 and 2. 82 Five replacement trade treaties were debated: see HL Deb 13 March 2019, cols 1107–1122 (motion calling for extension of the scrutiny period by 21 days of trade agreements with Eastern and Southern Africa States, Faroe Islands, and Chile); HL Deb 1 May 2019, cols 971–995 (motion to regret Trade Agreement with Switzerland as does not make adequate provision for trade in services); HL Deb 9 March 2020, cols 907–922 (motion to regret Trade Agreement with Morocco due to failure to adequately consult people of Western Sahara). 83 EU Committee, Treaty Scrutiny: Working Practices (HL 2019–21, 97) 5.

Parliament’s Engagement with Treaties 175 the CRAG framework. The repatriation of treaty-making powers that withdrawal signified had resulted in a decrease of parliamentary scrutiny because when the EU concluded treaties there is generally meaningful parliamentary scrutiny in the European Parliament (EP).84 The consequences were also profound for the devolution arrangements. The devolved administrations had more say in treatymaking at EU level, including through the Joint Ministerial Committee (Europe), than through the Concordat on International Relations for treaties laid under CRAG – which post-Brexit could intrude significantly upon devolved powers. Indeed, devolved bodies began highlighting the implications of repatriated treatymaking powers for devolution soon after the referendum.85 These treaty scrutiny shortcomings – including the devolution implications – were compellingly articulated in reports by the Lords Constitution and EU Committees in 2019.86 The Constitution Committee expressly called for a treaties committee. The Commons International Trade Committee (ITC) also expressed a need for greater parliamentary engagement on trade treaties and more consultation with the devolved nations.87 The two Lords Committees reports, along with an IAC report on treaty scrutiny working practices,88 were debated at length in September 2020, highlighting the limitations of CRAG and the need for effective parliamentary scrutiny.89 Following a recommendation of the Lords Liaison Committee in December 2020, the sub-committee became a committee in its own right as the International Agreements Committee on 28 January 2021.90 The UK now had its first ever treaty scrutiny committee. The IAC amended the criteria used by the EU Committee for Brexit related agreements in 2019 in deciding whether to draw a treaty to the special attention of the House. It did not confine its scrutiny of replacement trade agreements to whether they successfully rolled over existing agreements.91 Through to June 2021 it produced 20 treaty scrutiny reports covering 39 treaties, the majority of which could be defined as Brexit-related. Of the seven treaties reported for the special attention of the House, only one did not relate to Brexit, namely the UK-US Space Ports Agreement. Five were essentially replacement trade agreements (with Canada, Japan, Kenya, Singapore and Turkey) and one was a Fisheries Agreement with Norway. The reporting on those seven treaties varied in length from

84 On scrutiny in the European Parliament see P Koutrakos, EU International Relations Law 2nd edn (Oxford, Hart Publishing 2015) ch 4. 85 See, eg, National Assembly for Wales External Affairs and Additional Legislation Committee, UK International Agreements after Brexit: A Role for the Assembly (December 2019). 86 Constitution Committee, Parliamentary Scrutiny of Treaties (HL 2017–2019, 345); EU Committee, Lessons Learned (n 56). 87 International Trade Committee, UK Trade Policy Transparency and Scrutiny (HC 2017–19, 1043). 88 See EU Committee, Treaty Scrutiny: Working Practices (n 83). 89 HL Deb 7 September 2020, col 104GC. 90 Liaison Committee, Review of Investigative and Scrutiny Committees: Strengthening the Thematic Structure through the Appointment of New Committees (HL 2019–21, 193). 91 See EU Committee, Treaty Scrutiny: Working Practices (n 83) 36.

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14 paragraphs for the Space Ports Agreement to the 50-plus page report on the Japan Trade Agreement. The other 32 treaties were reported for information and the reports gave between five and 37 paragraphs to each.92 Many IAC reports were published near the end of the 21 sitting day period under CRAG: often less than a calendar week. In one case the agreement was reported for information the day after the period expired;93 in another on the twenty-first sitting day;94 and in a third case the report was published on a Friday with the twenty-first sitting day the following Monday.95 This proximity to the twentyfirst sitting day was so even with treaties referred to the special attention of the House. For example, reports on the US Space Ports Agreement, Norway Fisheries Agreement, and Canada Trade Agreement were published on a Friday, with the twenty-first sitting day the following Tuesday for the Space Ports Agreement and on the Wednesday for the other two treaties.96 This reinforces the view that the 21 sitting day period of CRAG is inadequate. It may also help account for the fact that only three – all trade agreements – of the seven treaties referred to the special attention of the House were debated in the Lords,97 and one was only debated after entry into force.98 It is not, however, only treaties referred for special attention that have given rise to parliamentary debate. The trade agreements with Cameroon and Ghana that the IAC reported for information were then debated in the Lords,99 albeit only some weeks after a Commons debate.100 Alongside the Brexit-related agreements, the government was also starting work on new free trade agreements (FTAs). Theresa May’s Government committed to increased transparency, consultation and scrutiny for these FTAs in February 2019, having come under growing pressure from Parliament including 92 Five paragraphs were devoted to the Egypt Trade Association Agreement, see IAC, Scrutiny of International Agreements: Free Trade Agreement with Singapore, Trade Continuity Agreement with Canada and Association Agreement with Egypt (HL 2019–21, 219), and the UK Norway Civil Judgments Agreement, see IAC, Scrutiny of International Agreements: Partnership Agreements with Ukraine and Côte d’Ivoire, Lugano Convention accession, and Civil Judgments Agreement with Norway (HL 2019–21, 192); and 37 paragraphs on the Mexico Trade Continuity Agreement, see IAC, Scrutiny of International Agreements: Trade Continuity Agreement with Mexico (HL 2019–21, 266). 93 See IAC, Scrutiny of International Agreements: Free Trade Agreement with Turkey, Air Services Agreement with Iceland, and Headquarters Agreement with the Square Kilometre Array Observatory (HL 2019–21, 262). 94 See IAC, Scrutiny of International Agreements: Police Cooperation and Services Mobility Agreements with Switzerland (HL 2019–21, 236). 95 See IAC, Scrutiny of International Agreements: Partnership Agreements with Ukraine and Côte d’Ivoire, Lugano Convention accession, and Civil Judgments agreement with Norway (HL 2019–21, 192). 96 See IAC, Scrutiny of International Agreements: UK-US Spaceports Agreement; and UK Fisheries Framework Agreements with Norway and the Faroe Islands (HL 2019–21, 181); IAC, Scrutiny of International Agreements: Free Trade Agreement with Singapore, Trade Continuity Agreement with Canada and Association Agreement with Egypt (HL 2019–21, 219). 97 Kenya Trade Agreement: HL Deb 2 March 2021, cols 1119–1138; Japan Trade Agreement: HL Deb 26 November 2020, cols 38–84GC. 98 Turkey Trade Agreement: HL Deb 27 April 2021, cols 466–487GC. 99 HL Deb 29 June 2021, col 1119 (motion to regret was disagreed). 100 HC Deb 9 June 2021, col 1064.

Parliament’s Engagement with Treaties 177 the ITC.101 The Johnson Government adopted many of those commitments, applying them to the UK–Japan Trade Agreement even though it primarily replicated the EU–Japan Agreement. There was a consultation process, followed by the publication of negotiating objectives, a response to the consultation and an initial impact assessment. And both the Lords IAC and the Commons ITC took evidence during and after the negotiations, received early copies of the signed agreement in confidence, published reports and successfully recommended debates in both Houses.102 This was the first trade agreement on which the ITC has produced a report, although it has a wide-ranging inquiry open into UK Trade Negotiations. The IAC also launched inquiries between June 2020 and January 2021 in relation to early priority FTAs, in three of which the negotiations had begun (UK–US; UK–New Zealand; UK–Australia), and one of which subsequently commenced (accession to the existing Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP)). These inquiries are testament to the realisation that committee involvement is indispensable from the very beginning of negotiations, preferably even before as with CPTPP, if Parliament is to make its voice heard. During the passage of the Trade Act 2021, the government resisted all attempts to legally enshrine stronger parliamentary powers including approval of FTA negotiating objectives and the final FTA.103 However, the government made two non-statutory commitments on debating (new) FTAs in the House of Lords, subject to availability of parliamentary time.104 First, where the government publishes negotiating objectives, if the IAC reports on them and recommends a debate the government will facilitate this. The minister referred to this as ‘an important concession’. Second, he stated that ratification could not be envisaged without a debate having first taken place if one had been requested in a timely fashion by the IAC.105 It has been suggested that this could ‘develop into a constitutional convention which will form the backbone of parliamentary scrutiny of trade agreements’.106 These commitments were then essentially matched in relation to the ITC in correspondence from the Secretary of State for International Trade.107 Clearly, in relation to FTAs, we have moved on from CRAG’s silence in

101 See Lang (n 14); Department for International Trade, Processes for Making Free Trade Agreements after the United Kingdom has left the European Union (CP 63, 2019). 102 See Lang (n 14). 103 A provision was however inserted that would prevent FTAs being agreed with states where a parliamentary committee publishes a report with credible evidence of genocide unless a parliamentary debate and a Commons vote has been held on that issue: Trade Act 2021, s 3. 104 HL Deb 23 February 2021, col 724. 105 This was in effect applied less than a week after the announcement, the government deliberately delaying ratification of the Kenya Trade Agreement until after a Lords debate: HL Deb 2 March 2021, col 1136. 106 A Horne, ‘Parliamentary Scrutiny of Treaties, An Insider’s Reflections’ (4 March 2021) ssrn.com/ abstract=3798586 (accessed 10 December 2021). 107 Letter from Secretary of State for International Trade to Chair of International Trade Committee (16 March 2021).

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respect of parliamentary scrutiny, but it is important to remember that these are ad hoc ministerial commitments which may or may not be upheld. To conclude, it is important to acknowledge that Parliament’s recent treaty focus has mainly been on trade-related agreements. This is perhaps unsurprising given the political priority of replicating trade agreements and concluding new ones, which has also meant the creation of a department of international trade and a departmental select committee in the Commons. But there are still many limitations to Parliament’s treaty role even on FTAs, and the importance of other treaties must not be overlooked. The IAC now has an invaluable role to play in raising awareness of this throughout Parliament and contributing to greater transparency and accountability for the exercise of the treaty power in general.

V. The Way Forward We turn in this section to what could be done to improve Parliament’s treaty scrutiny. Given that both government and Parliament already have responsibilities for treaty-making, ‘the question is not which component part is responsible for treaty-making, but how the component parts might work together’.108 As we have shown, adjustments have recently been made for FTAs which could provide a model for greater parliamentary engagement in treaties generally. The sustained global trend toward greater parliamentary involvement in treaty-making also provides many useful examples.109 However, given the government’s control over both Parliament and treaties, most changes would require a government that saw benefits in scrutiny and accountability and was willing to cede some power to Parliament. We select six areas where we consider reform would be particularly beneficial: a framework for treaty scrutiny; transparency for treaty information; early engagement of Parliament; the role of committees; a parliamentary assent requirement; and scrutiny of treaty application and beyond.

A. A Treaty Scrutiny Framework Given the huge variety of treaties, any scrutiny system requires flexibility, with only the most ‘important’ treaties subject to the fullest engagement. Until recently, form rather than content has determined whether, how and when Parliament is engaged: CRAG covers only treaties and amendments subject 108 Smith,

Bjorge, Lang (n 19) 519. generally P-H Verdier and M Versteeg, ‘Separation of Powers, Treaty-Making, and Treaty Withdrawal’, in C Bradley (ed), Comparative Foreign Relations Law (Oxford, OUP, 2019) and M Mendez, ‘Constitutional Review of Treaties: Lessons for Comparative Constitutional Design and Practice’ (2017) 15 International Journal of Constitutional Law 84, 89–94. 109 See

Parliament’s Engagement with Treaties 179 to ratification or equivalent. But it is not clear why some treaties or amendments are drafted so as to be subject to ratification (and therefore trigger CRAG).110 Since Brexit, the government has accepted that the ‘important’ category of FTAs merits increased scrutiny, but it has consistently rejected extending that approach to other important treaties – even those with the EU. Ideally, there should be clear public criteria for determining: (a) which treaties and amendments require ratification and are therefore submitted to Parliament; and (b) the level of parliamentary engagement with those treaties and amendments. The criteria could, for example, concern: • • • • • •

whether new domestic legislation is needed; financial implications; implications for particular sectors, regions or devolved nations; constitutional, human rights, equalities and environmental implications; implications for other international obligations; whether or not the treaty can be terminated.

A mutually agreed concordat on treaty powers between Parliament and government, with input from the devolved legislatures and executives, would be an appropriate way of setting out their respective roles on treaties. It could bring clarity, certainty and transparency, without the rigidity of inscribing such matters in legislation, and would also allow coverage of matters where legislation is usually inappropriate, such as the internal affairs of Parliament. The Commons Liaison Committee commended a draft government– Parliament Framework Agreement on Treaties in 2019,111 but without a government champion or a cross-party alliance of those willing to push for reform, it has not been taken forward. A useful comparator is the detailed framework agreement112 between the European Parliament (EP) and the EU Commission to support the requirement to keep the EP ‘immediately and fully informed’ during treaty negotiations.113 The framework agreement gives the EP access to negotiating directives and other confidential negotiating information, and observation rights for MEPs. It makes clear that information must be given in time to allow the EP to express its views and for those to be taken into account by the Commission. Further, it requires the Commission to explain whether and how the EP’s comments were incorporated

110 Since 2020, Foreign, Commonwealth and Development Office guidance has at least specified that the EM for a treaty should make it clear which amendments to it would be subject to CRAG: FCDO, Treaties and Memoranda of Understanding (MOUs): Guidance on Practice and Procedures (undated) 4.2. 111 Liaison Committee, The Effectiveness and Influence of the Select Committee System (HC 2017–19, 1860) 89. 112 Framework Agreement on relations between the European Parliament and the Commission [2010] OJ L304/47. 113 Treaty on the Functioning on the European Union (TFEU), Art 218(10).

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into the texts, and if not why.114 The EP’s rules of procedure expand further on its treaty role.115 A Senedd Committee has called for the Welsh Government to have a scrutiny reserve over negotiating mandates, the same level of access to information during negotiations as the UK Parliament, and a commitment to ensuring that the Senedd’s view could be considered after a treaty is finalised but before the CRAG process begins.116 Developing new criteria for treaty scrutiny would have to be led by the government. But it is not clear who would represent the House of Commons or the devolved legislatures. Developing even the current limited arrangements for Parliament’s role in scrutinising trade treaties has taken several years of discussions involving committee chairs, ministers, Members of both Houses, and officials in both government and Parliament. The Lords IAC’s recommendation of simply enshrining existing commitments on trade treaty scrutiny in a concordat may be a practical first step.117 Ultimately, whatever the framework, a significant degree of discretion would be involved, so accountability for how that discretion was exercised would be essential. In Australia, for example, there is a three-track process for treaty scrutiny, and although the government makes the initial choice, the Australian Joint Standing Committee on Treaties (JSCOT) can ask for an action to be moved to a different track.118

B. Transparency and Inclusion Increasing transparency around treaties and providing a forum for debate that includes expert input could help to balance the domestic and international tradeoffs inherent in many treaties, and build a deeper consensus around the UK’s post-Brexit priorities across both interest groups and geographical areas. It could also bring parity with those treaty partners who are more open and who may even use transparency as a negotiating tool. We discuss three aspects of this: a presumption of transparency; impact assessments; and public information on the UK’s treaty obligations. First, there is a consistent theme in recent committee recommendations that there should be a presumption of transparency for treaty information.119 114 Annex

II and III. Parliament Rules of Procedure, 9th parliamentary term (January 2021) rr 114 and 115. 116 National Assembly for Wales External Affairs and Additional Legislation Committee, UK International Agreements after Brexit: A Role for the Assembly (December 2019). 117 IAC, Working Practices: One Year On (HL 2021–22, 75) 48. 118 See further on JSCOT, ‘A History of the Joint Standing Committee on Treaties: 20 years’, Parliament of the Commonwealth of Australia (Report 160, 2016). 119 See International Trade Committee, UK Trade Policy (n 87); Constitution Committee, Parliamentary Scrutiny (n 86) 90; EU Committee, Lessons Learned (n 56) 42–46. 115 European

Parliament’s Engagement with Treaties 181 This alone would go an enormous way towards democratising the UK’s treaty actions and enabling them to be scrutinised and held to account. Exceptions to this presumption would allow information to be withheld for national security reasons, for example. In the EP, more detailed confidential information on treaty negotiations is available to progressively tighter groups of MEPs: the EP as a whole has certain rights to treaty information; the relevant committee or its treaty monitoring group receives briefings from negotiators after each negotiating round; and some information goes only to the committee’s rapporteur for that treaty. As set out above, the government has significantly increased how much information it provides on FTA negotiations, but has resisted doing the same for other important treaties, on the grounds that negotiations need confidentiality. And even those commitments do not, for example, give the devolved legislatures a right to the same treaty information that the UK Parliament sees, and at the same time, where it relates to devolved competencies and interests. Second, it is hard for domestic lawmakers to weigh up the competing priorities in complex technical treaties, so good impact assessments are essential. Government guidance has for some time stipulated that the EM published alongside treaties laid under CRAG should include subject matter, ministerial responsibility, general and financial policy considerations, reservations and declarations, means of implementation, and consultation outcomes. But this is not always enough, as other countries such as New Zealand have recognised. The JCHR, Lords EU Committee and Commons IAC have recently secured improvements to treaty EMs, for example to require a statement of human rights implications, information on treaty amendments, and information on engagement with the devolved authorities.120 And the government has also accepted a new requirement to seek the advice of the Trade and Agriculture Commission when producing its compulsory reports on how agriculture provisions in FTAs meet UK standards on protecting human, animal or plant life or health, animal welfare and the environment.121 But the UK’s treaty EMs could be further developed, to include for example standard headings on environmental, health, equalities, regional and devolution impact assessments, and independent analysis on matters beyond agriculture in FTAs. And the government’s record on impact assessments generally is patchy: for example, virtually none of the COVID-19 regulations reviewed in a 2021 study even had an impact assessment.122 Third, it should be straightforward to determine the status and content of the UK’s treaty obligations at any point in time. This is a basic rule of law

120 Foreign, Commonwealth & Development Office, Treaties and Memoranda of Understanding (n 110). 121 Agriculture Act 2020, s 42. 122 See K Lines, 18 Months of COVID-19 Legislation in England: A Rule of Law Analysis (BIICL, 2021).

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requirement.123 Yet anyone who has tried to search the UK’s public treaty information will know how far we are from that. To highlight just three problems: there is no list of treaties under consideration or negotiation;124 treaties appear twice in the static lists of treaty command papers if they have been ratified; and there is no way of searching for treaties that have been signed but not ratified. There should be a single, searchable, online UK treaties database that includes treaties at every stage with all associated government consultations, responses, impact assessments and EMs as well as parliamentary inquiries, reports and debates. It should clearly show their status (dates of signature, ratification, amendment and withdrawal) and link to implementing legislation. This would be an appropriate task for the National Archives, which in 2019 launched a searchable online repository of EU law relevant to the UK that includes EU treaties and international agreements as well as legislation and case law.125 Other countries provide some useful examples. The Netherlands introduced legislation in 1994 requiring the government to ‘periodically submit’ to Parliament draft treaties it is negotiating.126 And the Australian Treaties Database contains searchable treaties with information on amendments or withdrawal, and links to background material including JSCOT reports and government responses.

C. Early Engagement Timely, well-informed engagement could help parliamentarians to have a real impact on treaties. This can be lacking currently as the CRAG period comes too late to influence the treaty text, is too short for scrutiny and debate, and is not linked to the passage of any implementing legislation. As mentioned above, the UK Government now consults on and provides time for debating the broad objectives of new FTAs before setting negotiating objectives, but this should not be confined to FTAs. Best practice now includes a parliamentary role in endorsing or at least debating negotiating mandates for important agreements, as the EP illustrates. There could be a confidential role for Parliament, as in Norway where the government can choose to discuss its negotiating position in confidence with the Parliament’s Extended Standing Committee on Foreign Affairs and Defence.127 The devolved legislatures should

123 Two of Lord Bingham’s rule of law principles are that the law should be accessible and predictable, and that the state must comply with its international law obligations: T Bingham, The Rule of Law (London, Allen Lane, 2010). 124 Several committees have called for this information, including the Joint Committee on Human Rights, Human Rights Protections in International Agreements (2017–19, HL 310, HC 1833) 65–66, and the Constitution Committee, Parliamentary Scrutiny (n 86) 80. 125 See J Cleverly, Release of EU Law Services (HCWS1686, 3 July 2019). 126 See J Klabbers, ‘ The New Dutch Law on the Approval of Treaties’ (1995) International and Comparative Law Quarterly 629, 630. 127 See International Department of the Storting, Written evidence to IAC (TWP0007, 2 June 2020).

Parliament’s Engagement with Treaties 183 also be consulted confidentially at this stage, if their competencies would be engaged. It is also important to allow enough time for proper scrutiny of finalised treaties. Even if a committee has been engaged during negotiations, they still need time to read the finalised treaty and supporting documents, obtain evidence from experts and civil society, agree priorities, take any queries to ministers, draft a report and recommendations, and review and publish their report in time for any debate to be arranged and held. The government has tacitly signalled that the CRAG period is not always long enough: in 2021 it agreed to publish the UK-Australia FTA three months before laying it under CRAG, to allow parliamentary committees time to scrutinise it (though this would still not allow them to influence the content of the treaty).128 The government’s commitments to hold a debate on FTAs in government time before ratification, where recommended by the relevant committee, could be extended to other important treaties. At present treaty debates are subject to general challenges of obtaining time on the floor of the House of Commons, given that the government controls the vast majority of this time. There could be an equivalent commitment for debates in the devolved legislatures, where treaties engaged devolved interests. Moreover, there should be clear connections between treaty scrutiny and scrutiny of any implementing legislation. One option is to delay introducing any implementing legislation for a set period after the treaty is published to allow any committee reports to be published (in Canada implementing legislation is not introduced until 21 sitting days after a treaty is laid before Parliament,129 and the Lords IAC has asked the government not to pass legislation implementing any CRAG treaty before the IAC has reported).130 Another option is to replace the first substantive debate on any implementing legislation by a debate on the committee report on the treaty, as happens in New Zealand.131 The links could be strengthened further by including committee members who had scrutinised the treaty in the legislative committee scrutinising implementing legislation. It is more complex where legislation is needed in devolved areas of competence. Wherever possible, any implementing legislation required should be made or introduced by devolved ministers and scrutinised by the devolved legislatures (rather than routing such legislation through Westminster under the legislative consent convention).

128 Letter from Secretary of State for International Trade to Chair of International Trade Committee (6 July 2021). 129 Government of Canada, ‘Policy on Tabling of Treaties in Parliament’ (last updated November 2020) 6.2b. 130 IAC, Working Practices (n 117) 88. 131 New Zealand House of Representatives Standing Orders 250(2)(a) and 285(4)(c).

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D. Committees Committees are central to parliamentary engagement with treaties. Boosting committees’ treaty roles could help give treaty scrutiny a higher priority, increase awareness and understanding of treaties across Parliament, and develop the type of quasi-legislative sifting and scrutiny that treaties require. The Lords IAC is a welcome development: we are aware of only one other country (Australia) with a dedicated treaty scrutiny committee. It is developing its expertise and its relationships with government departments, devolved institutions and other stakeholders. However, its capacity is limited, not least because it has a small secretariat, and its work is not well integrated into that of other committees. As noted above, both the Commons ITC and the JCHR do some treaty scrutiny work, and have larger secretariats than the IAC, but it is only part of their work. Other parliamentary committees are currently not well set up for treaty scrutiny: we are aware of only two that have taken action in relation to a post-Brexit treaty.132 Other countries involve parliamentary committees more actively in scrutinising treaties. For instance, EP committees (such as PECH, the committee on fisheries) are routinely involved throughout negotiations, and have important powers such as being able to recommend that the opening of negotiations not be authorised until they have reported on the proposed negotiating mandate.133 In New Zealand, all treaties presented to Parliament before ratification stand referred to the Foreign Affairs, Defence and Trade Committee, which decides whether to examine them itself or refer them to another committee. The examining committee must then report on the treaty.134 There are many ways in which existing UK committees’ treaty roles could be expanded, clarified and strengthened. For example, Commons select committees’ core tasks could include examining treaties within their subject areas.135 There could be a new committee-based ‘treaty scrutiny reserve’ for starting negotiations, agreeing negotiating aims and/or concluding treaties. All (or particularly important) government treaty actions could stand referred to a committee, as in Australia, New Zealand and South Africa, with a rule that the government takes no binding action until the report is published. The new ‘guesting’ rule, allowing Members of one Commons Committee to join another for a particular inquiry,136 could be

132 Commons Environment, Food and Rural Affairs Committee, Correspondence with the Parliamentary Under-Secretary of State for Defra regarding the UK-Norway Framework Agreement on Fisheries (24 November 2020); Commons Welsh Affairs Committee, oral evidence sessions on the implications for Wales of the UK-Australia FTA (15 and 22 July 2021). 133 European Parliament Rules of Procedure (n 115) r 114. 134 New Zealand Parliament, Parliamentary Practice in New Zealand 4th edn (2017) ch 42. 135 The Commons Modernisation Committee recommended this in 2002: Select Committee on the Modernisation of the House of Commons, Select Committees (HC 2001–02, 224) 34. 136 House of Commons Standing Order 137A(1)(e).

Parliament’s Engagement with Treaties 185 invoked more frequently,137 and the links between committees in Westminster and those in the devolved legislatures concerning treaty scrutiny could be developed further.138 Many of these changes could be implemented through amendments to Parliament’s Standing Orders – but this in practice requires the government’s initiative. And even if implemented, the actual quality, depth and effectiveness of engagement would still be determined by a complex range of considerations including individual levels of understanding and energy, what else is happening at the time, and staff availability and expertise. The multiple systemic challenges to effective committee scrutiny go well beyond the subject of treaties.139

E. Assent to Treaties Improving scrutiny might not be enough: ‘Mere scrutiny, without the power to drive change, can be ineffectual.’140 The key to genuine accountability is to require the assent of the House of Commons for the most important treaties. The vast majority of written constitutions – including some with dualist elements such as South Africa and the Nordic countries – require parliamentary approval of some or all treaties.141 The most common category of treaty with an assent requirement is those affecting domestic law, while trade treaties, those involving joining international organisations and treaties affecting domestic spending or human rights also frequently require parliamentary approval.142 The importance of assent is not to be measured in the number of times it is withheld, for approval is normally a take-it-or-leave-it matter with very high costs of saying no. Rather, it incentivises increased democratic participation, transparency and public involvement that can contribute to shaping the text in order to avoid a ‘no’ vote.143 Ideally, if government and Parliament engage early 137 The Chair of the Environment, Food and Rural Affairs Committee has been a guest at ITC meetings looking at agriculture issues in treaties. 138 For example, the Standing Orders of the Welsh Parliament (17.54, 2021) and the House of Commons (137A3) allow Members to participate and committees to meet concurrently across the two legislatures. The informal Inter Parliamentary Forum on Brexit – the Chairs and Conveners of Committees scrutinising Brexit-related issues in the Scottish Parliament, National Assembly for Wales, House of Commons and House of Lords – has often been cited as a model for structured interparliamentary dialogue on treaties but its future is currently unclear. 139 See, eg, Liaison Committee, The Effectiveness and Influence of the Select Committee System (HC 2017–19, 1860); H White, Select Committees under Scrutiny (Institute for Government, 2015). 140 A Horne, ‘ The Limits of Parliamentary Scrutiny’ (Prospect, 17 July 2021). 141 See O Hathaway, ‘A Comparative Foreign Relations Agenda’, in C Bradley (ed), Comparative Foreign Relations Law (Oxford, OUP, 2019) 89. On South Africa, see 1996 Constitution, s 231, and the Rules of the National Assembly 9th edn (2016) rr 341–342, according to which treaties are referred to a parliamentary committee that must state whether it recommends approval or rejection; on the Nordic Countries see D Björgvinsson, The Intersection of International Law and Domestic Law (Cheltenham, Edward Elgar, 2015) chs 3–4. 142 Verdier and Versteeg (n 109) 140. 143 H Woolaver, ‘State Engagement with Treaties’, in C Bradley (ed), Comparative Foreign Relations Law (Oxford, OUP, 2019) 433.

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in the process and enough information is provided, differences may be resolved. For example, the EP issues resolutions at various stages in the treaty process setting out its views and indicating any conditions for giving its approval to the concluded treaty.144 And in Norway the government typically consults a parliamentary committee privately on important or sensitive treaty issues early in the proceedings, with the result that most treaties which are put to the Parliament for its consent are approved. Proposals for parliamentary assent for treaties in the UK go back nearly 150  years,145 and a raft of proposals from the early 1990s onwards have raised this prospect.146 Such requirements have existed for certain treaties (for example EU revising treaties, as noted earlier). But the government successfully resisted attempts to introduce a parliamentary assent requirement for new FTAs during the passage of the Trade Act 2021, so even trade treaties with redistributive effects and profound ramifications for national regulatory autonomy are not subject to this basic democratic hurdle. Nevertheless, parliamentarians continue to press for an assent requirement for some treaties. The Lords IAC concludes that ‘Parliament’s consent should be required, prior to ratification, for all trade agreements, and other significant treaties which are drawn to the special attention of either House’,147 and the Commons ITC ‘particularly endorse’ this recommendation.148 But this would need primary legislation, the prospects of which seem remote for now. A connected challenge is provisional application of treaties. This can effectively sidestep formal ratification requirements as it allows treaties to be applied indefinitely as if they were fully in force. Its significance has been a theme in the treaty scrutiny work of the Lords EU Committee and then IAC since 2019. A proportionate control would be for the government to notify Parliament (and the devolved legislatures, where appropriate) in advance when it plans to provisionally apply a treaty, in part or in full, with reasons and a timetable for next steps. Controls over provisional application in other systems have ranged from notification and consultation obligations, to constraining when it is permissible and imposing a parliamentary assent requirement.149

F. Application and Beyond Lastly, Parliament’s engagement could extend into the life of a treaty: how it is applied, decisions made by bodies established by the treaty, amendments, disputes and even withdrawal. 144 See,

eg, Koutrakos (n 84). eg, W Bagehot, ‘Introduction’, in The English Constitution 2nd edn (1873). 146 See Thorp (n 39). 147 IAC, Working Practices (n 117) 94. 148 Letter from Chair of ITC to Secretary of State for International Trade (28 September 2021). 149 See further Mendez (n 109). 145 See,

Parliament’s Engagement with Treaties 187 In South Korea, for example, the National Assembly is supposed to monitor the effects of implemented FTAs on domestic industries.150 But even if time and other priorities make routine monitoring impractical, Parliament could engage with treaty bodies that themselves undertake periodic monitoring. Treaties are often amended by further agreements between the parties and/or by bodies set up under the treaty. These amendments may be minor and technical, or they may be as important as the original treaty. The government agreed in 2020 that ‘the majority of important treaty amendments’ will be subject to ratification and therefore submitted to Parliament under CRAG, and that all amendments to treaties would be published in the UK Treaty Series even if they are not subject to CRAG.151 But the Lords IAC has called for more concrete commitments. It recommends that the government should notify it of treaty amendments if certain criteria are met, for example if the amendment imposes material obligations on UK citizens or residents, has human rights implications, and/or would give rise to significant expenditure.152 This would not require any changes to legislation or Standing Orders, and would allow the Committee to decide on the appropriate level of scrutiny. A more challenging issue is treaty withdrawal. The Miller ruling reminds us that CRAG is wholly silent on this, contrary to the growing practice worldwide of according parliaments a role in treaty withdrawal that echoes that for entering treaties.153 A change here would be logical, as the implications and effects of withdrawal may be as significant as entering a treaty, or even more so. However, it would need primary legislation, and the criteria for determining Parliament’s precise role would have to be flexible enough to deal with the varying rules for treaty withdrawal contained in each treaty, from no specific provisions to detailed ones with a time-lag between notification of withdrawal and withdrawal taking effect.

VI. Conclusion This chapter is itself a sign of changing times: it was not until the third edition of this volume that ‘Parliament and the Law’ included Parliament and treaties. Treaties are law, and how Parliament scrutinises the exercise of the executive power that produces this law that binds the UK is of central constitutional importance.

150 See J Lee, ‘Incorporation and Implementation of Treaties in South Korea’, in C Bradley (ed), Comparative Foreign Relations Law (Oxford, OUP, 2019) 237. 151 IAC, Government Response to the International Agreements Sub-committee Report: Treaty Scrutiny, Working Practices (September 2020) 8. 152 IAC, Working Practices (n 117) 71. 153 See L Helfer, ‘ Treaty Exit and Interbranch Conflict at the Interface of International and Domestic Law’, in C Bradley (ed), Comparative Foreign Relations Law (Oxford, OUP, 2019) 357–8.

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This proposition was already true prior to the Brexit referendum, even if not widely recognised, but in the wake of that referendum it can no longer be seriously contested. It is the treaty power that was used to exit from the EU and to make the two major new treaties that now govern the UK’s complex and evolving relationship with the EU. Dozens of replacement treaties with non-EU countries and international organisations were agreed to extend the provisions of EU agreements to a post-Brexit UK. And new treaties are rapidly being made in areas previously handled by the EU, most obviously and controversially in the trade sphere, which have important implications for UK domestic law and policy. The repatriation of the trade treaty making power from the EU to the UK explains why Parliament is being accorded a hitherto unprecedented role over trade treaties and is part of the reason why the UK now has a dedicated treaties committee. These are both striking wins over the ‘vast forces of conservatism and inertia’ in Parliament.154 Drawing on the practice of treaty scrutiny in Parliament to date, combined with lessons from treaty scrutiny elsewhere, we have argued that much more can, and should, be done to ensure the possibility of meaningful parliamentary scrutiny of all treaties. But the circumstances that might prompt the government to consider that it is in its interests to support such reforms, and parliamentarians to make the most of the system they inhabit,155 remain to be seen.

154 Professor

Tony Wright, oral evidence to Commons Liaison Committee (29 April 2019) Q23. L Maer, ‘Select Committee Reform: Shifting the Balance and Pushing the Boundaries’ (2019) 72 Parliamentary Affairs 761. 155 See

8 Votes of Confidence and the Fixed Term Parliaments Act PHILIP NORTON

I. Introduction One of the defining characteristics of the parliamentary system of government is that the executive rests on the confidence of the legislature. ‘In parliamentary systems’, wrote Douglas Verney, ‘the government is responsible to the assembly which may, if it thinks that the government is acting unwisely or unconstitutionally, refuse to give it support’.1 In some systems, confidence has to be expressed by vote at the start of a Parliament. In most cases, confidence is deemed to rest in the executive unless it is withdrawn. That withdrawal of confidence may take the form of refusing the demands of the executive for legislation or for supply, though it more frequently and definitively takes the form of passing a motion of no confidence or negating a motion of confidence. Most nations have provisions for confidence votes to be held in the principal or sole chamber of the legislature.2

II. The Confidence Convention In the UK, it was until September 2011 a convention of the Constitution that if a government lost the confidence of the House of Commons,3 it either resigned or requested a dissolution. The House could express its lack of confidence in one of

1 D Verney, ‘Parliamentary Government and Presidential Government’, in A Lijphart (ed), Parliamentary Versus Presidential Government (Oxford, OUP, 1992) 36. 2 See P Norton, ‘ The Fixed-term Parliaments Act and Votes of Confidence’ (2016) 69 Parliamentary Affairs 4. 3 The House of Lords has on rare occasions debated and even passed votes of no confidence in the government, but these have been treated by government as having no constitutional significance, the government having been elected solely through elections to the House of Commons and resting for its continuance in office on its capacity to command the confidence of the Commons.

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three ways.4 One was through passing a motion stating that it had no confidence in Her Majesty’s Government. Such a motion was usually moved by the Leader of the Opposition. When it was tabled as a free-standing motion, time was found for it to be debated as quickly as possible. As explained in Erskine May, the manual of parliamentary precedents and procedure: This convention is founded on the recognized position of the Opposition as a potential government, which guarantees the legitimacy of such an interruption of the normal course of business. For its part, the Government has everything to gain by meeting such a direct challenge to its authority at the earliest possible moment.5

The one occasion in the twentieth century when an explicit and self-contained motion of no confidence (‘That this House has no confidence in Her Majesty’s Government’) was carried was on 28 March 1979, when the Labour Government of James Callaghan lost by a single vote.6 It was also possible for the Opposition to move an amendment to the Loyal Address to express no confidence in the government. There was one occasion in the twentieth century when such an amendment was carried. The general election of December 1923 resulted in a hung Parliament. The Conservative Government of Stanley Baldwin decided to face the new House of Commons. On 21 January 1924, an amendment to the Loyal Address was moved by the Opposition, stating that ‘Your Majesty’s present advisers have not the confidence of this House.’ The amendment was carried by 328 votes to 256.7 The following day, Baldwin informed the House that ‘As the result of the vote which took place in this House last night, the Government have tendered their resignation to the King, and His Majesty has been graciously pleased to accept it.’8 A second means was by negating a motion of confidence in the government. A vote of confidence was moved normally by the Prime Minister after a major defeat on a significant issue of policy. Following the House defeating a motion in December 1978 on sanctions to enforce the government’s anti-inflation policy, Prime Minister James Callaghan moved ‘That this House expresses its confidence in Her Majesty’s Government and in its determination to strengthen the national economy, control inflation, reduce unemployment and secure social justice.’ The motion was carried by a majority of 10.9 Following defeat on the social chapter of the Maastricht Treaty in July 1993, Prime Minister John Major moved ‘That this

4 P Norton, ‘Government Defeats in the House of Commons: Myth and Reality’ [1978] Public Law 360; Public Administration and Constitutional Affairs Committee, The Role of Parliament in the UK Constitution. Interim Report: The Status and Effect of Confidence Motions and the Fixed-term Parliaments Act 2011 (HC 2017–19, 1813) 16–17. 5 Sir M Jack (ed), Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament 24th edn (London, LexisNexis, 2011) 344. 6 HC Deb 28 March 1979, cols 583–90. 7 HC Deb 21 January 1924, cols 673–86. 8 HC Deb 22 January 1924, col 703. 9 HC Deb 14 December 1978, cols 1045–51.

Votes of Confidence and the Fixed Term Parliaments Act 191 House has confidence in the policy of Her Majesty’s Government on the adoption of the Protocol on the Social Policy’, which was carried by 339 votes to 299.10 There is no instance of a motion of confidence being negated. The third was by defeating a substantive motion which the government treated as entailing confidence. Usually, the Prime Minister would announce that a motion was being treated as one of confidence, as happened with Prime Minister Edward Heath on the Second Reading of the European Communities Bill in 1972. If the House did not agree to the Second Reading, ‘my colleagues and I are unanimous that in these circumstances this Parliament cannot sensibly continue’.11 In 1993, Prime Minister John Major made passage of the European Communities (Finance) Bill ‘in all its essentials’ an issue of confidence. The one occasion when the government lost a vote on a motion to which it had attached confidence was in October 1924 when a Liberal amendment to an Opposition motion on the Campbell case – when a prosecution of the editor of the Worker’s Weekly had been withdrawn – was carried by 364 votes to 198. In concluding the debate, the Prime Minister, Ramsay McDonald, made clear that ‘If this House passes either the Resolution or the Amendment now, we go. It is the end.’12 The following day, he announced that the defeat had rendered an election inevitable and that dissolution would take place that evening.13 Confidence motions in any of these three forms were relatively rare and even rarer for being carried. The 1924 Parliament was exceptional in both opening and ending with the government losing confidence votes. It opened with the Baldwin Government facing the House and the House expressing no confidence in it and ended with the minority Labour Government losing the vote, to which it attached confidence, on the Campbell case. Of the three confidence votes lost by government in the twentieth Century, all three occurred in conditions where the government was in a minority in the House. Between 1924 and 1979, there were 23 occasions when confidence votes took place,14 all resulting in government victories, until the vote of no confidence in March 1979. Perhaps the most noteworthy feature of confidence votes under the minority Callaghan Government was not that it was defeated in the vote in March 1979, but that it had previously survived two motions of no confidence, in June 1976 and March 1977.15 If the government lost the confidence of the House, the Prime Minister went to Buckingham Palace to tender the government’s resignation or to request the dissolution of Parliament. The Liberal Government in 1895, having been defeated

10 HC

Deb 23 July 1993, cols 714–24. Deb 17 February 1972, col 752. See also P Norton, Conservative Dissidents (Temple Smith, 1978) 75–6. 12 HC Deb October 1924, col 638. 13 HC Deb 9 October 1924, col 731. 14 B Winetrobe and J Seaton, ‘Confidence Motions’ Research Paper 95/19 (London, House of Commons Library, 1995) 20–26. 15 Defeat in the second of these was avoided by the forming of a pact with the Liberal parliamentary party. See A Michie and S Hoggart, The Pact (Quartet, 1978). 11 HC

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on an Opposition motion to reduce the salary of the Secretary of State for War (designed as a censure motion because of an alleged shortage of cordite), opted for resignation. Baldwin did so in January 1924 in circumstances in which it would be difficult to request a further dissolution. In the two instances since (October 1924, March 1979), the government opted for dissolution. So stated, the convention was clear. However, there was some ambiguity as to what government defeats in the division lobbies would qualify as votes of no confidence. Some textbooks, including the standard text in the 1960s on the British Constitution by Harvey and Bather, claimed that any government defeat would necessitate resignation or a dissolution.16 Some confined it to three-line whips. Sir Philip de Zulueta, a former private secretary to Prime Minister Harold Macmillan, declared in a letter to The Times in 1971 that a three-line whip was ‘a formality which warns supporters of an administration that the government will resign if the vote in question goes against them’.17 There was no basis in practice or authoritative original sources for such claims. The year following De Zueleta’s letter, the Government of Edward Heath (1970–74) suffered the first of six defeats in the division lobbies,18 three of them on three-line whips, with no thought being given by the government to resignation or dissolution. No issue of confidence was deemed to arise.19 Following the government’s defeat on the immigration rules in 1972 – the most significant of the defeats suffered by the Heath Government – the Leader of the Opposition, Harold Wilson, asked the Prime Minister, if he did not intend to resign, what the government planned to do. Mr Heath replied that statements would be laid before the House to replace those that the House had rejected.20 Nor was this a change in the government’s stance on defeats. These were the first occasions in post-war history in which a government had lost votes as a result of intra-party dissent,21 but they were not the first defeats of the period. There had been over 30 government defeats in the division lobbies between 1900 and 1970, the only ones entailing confidence being the two in 1924. Other defeats were either accepted, later reversed in practice, or involved taking no action. One – on an amendment (in support of equal pay for women) to the Education Bill in March 1944 – was reversed on a vote of confidence,22 but otherwise no issue of confidence was deemed to arise. After the Labour Government in 1950 lost an adjournment motion following a debate on fuel and power, Prime

16 J Harvey and L Bather, The British Constitution (London, Macmillan, 1965) 234. G Moodie, The Government of Great Britain (London, Methuen, 1964) 100. 17 Letters, The Times, 13 July 1971. 18 See Norton (n 11) 207. 19 P Norton, Dissension in the House of Commons 1974–1979 (Oxford, Clarendon Press, 1980) 469. 20 HC Deb 22 November 1972, cols 1458–9. P Norton, ‘Intra-Party Dissent in the House of Commons: A Case Study. The Immigration Rules 1972’ (1976) 29 Parliamentary Affairs 410–11. 21 Norton (n 11) 212. 22 On the event, see T Cazalet-Keir, From the Wings (London, Bodley Head, 1967) 143–5. Cazalet-Keir had moved the amendment.

Votes of Confidence and the Fixed Term Parliaments Act 193 Minister Clement Attlee announced that the government did not regard the vote as one of confidence and would carry on.23 Perhaps more typical was the reaction to the loss of a vote the following year on the Fats, Cheese and Tea (Rationing) (Amendment No. 2) Order. As The Times reported, ‘The Government will not treat this defeat as a matter of any great consequence. None the less it may still prove embarrassing for them.’24 Some writers claimed that votes on some major issues, such as the Finance Bill or Loyal Address, constituted implicit votes of confidence, a claim reiterated in 2021 by the Joint Committee on the Fixed-term Parliaments Act.25 This claim is, at best, as the House of Commons Library Note on confidence motions put it, ‘speculative’.26 As the Public Administration and Constitutional Affairs Committee of the House of Commons observed, ‘reservations have been expressed about the extent to which these votes actually test the confidence of the House, although in the case of the outright denial of supply by the House of Commons, continuation of the government would become impossible’.27 A rejection of the budget would be an outright denial, but a specific vote on supply or an amendment to a Finance Bill would not qualify. There have been various instances of governments losing such votes. The Balfour Government was defeated on Civil Services and Revenue Department estimates in July 1905,28 but the Prime Minister declined to regard it as a confidence vote. In November 1912, the Liberal Government was defeated on an amendment to the financial resolution to the Government of Ireland Bill;29 the government introduced and achieved passage of a modified resolution. In July 1921, the Coalition Government was defeated on an amendment to the Finance Bill,30 an amendment that it decided to accept. Similarly, in 1924, when the minority Labour Government was defeated on a Ways & Means division on an amendment to a War Charges (Validity) resolution,31 the government accepted the defeat. As we shall see, there are also more recent instances of government losing important votes on economic policy. There have been no instances of a government losing a vote that was regarded as an outright rejection of supply and in the event of it facing defeat on its budget, it is difficult to envisage a situation in which it was not treated overtly by government and Opposition as a confidence vote. More likely, denying supply through rejecting the budget would appear more a failsafe option in the event of a government not resigning or seeking dissolution following defeat on an explicit or declared vote of confidence.

23 HC

Deb 29 March 1950, cols 566–8. The Times, 31 March 1950. Times, 10 April 1951. 25 Joint Committee on the Fixed-term Parliaments Act, Report (HC 2019–21,1046: HL 253) 21. 26 Winetrobe and Seaton (n 14) 11. 27 Public Administration and Constitutional Affairs Committee, The Role of Parliament in the UK Constitution. Interim Report 17. 28 HC Deb 20 July 1905, cols 1485–90. 29 HC Deb 11 November 1912, cols 1773–8. 30 HC Deb 19 July 1921, cols 2125–8. 31 HC Deb 7 April 1924, cols 197–201. 24 The

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Similarly, with the Loyal Address, it would likely be apparent whether confidence attached to any amendment moved. Given that, prior to the 2010–15 Parliament, standing orders were interpreted as permitting only one amendment to be moved, there was little scope for anything other than an official Opposition amendment. The Opposition amendment carried to the Loyal Address in January 1924 expressed no confidence in the government. In November 1964, an Opposition amendment to the Loyal Address declared ‘but have no confidence that Your Majesty’s Ministers can implement their proposals without damaging the programmes of modernisation already in train and thus imperilling the future well-being of Your people’. The amendment was defeated by 315 votes to 294.32 In the event of a government being defeated on one of the issues considered by some commentators to be implicit votes of confidence, it would be open to the government to query whether it had lost the confidence of the House and, if in doubt, table a motion of confidence. If it failed to table such a motion, it would be open to the Leader of the Opposition to table a motion of no confidence. When the government lost a vote on its public expenditure White Paper in 1976, the Leader of the Opposition, Margaret Thatcher, asserted that there was no precedent for a defeat on a major of supply. She called on the government ‘to resign, or to seek a vote of confidence on this issue forthwith’.33 The government did not regard the vote as demonstrating that it had lost the confidence of the House and opted to for a confidence vote the following day on a motion for the adjournment. In evidence to the Joint Committee on the Fixed-term Parliaments Act, Anne Twomey claimed that ‘The May Government and the Johnson Government faced votes that in any ordinary circumstances would have been regarded as votes of no confidence – they were defeated on absolutely major policies.’34 The problem with this assertion is that, even under the conditions of the Fixed-term Parliaments Act, it was, as we shall see, open to the government to treat the votes as issues of confidence and to resign. The government may, in Twomey’s words, have lost control of the House, but the House did not clearly withdraw its confidence. Following the defeat of the European Union Withdrawal Agreement the first time it was brought before the House of Commons, the Leader of the Opposition, Jeremy Corbyn, moved a motion of no confidence. The motion was rejected by 325 votes to 306.35 There was also ambiguity in the wording of some ‘confidence’ motions. The motion ‘That this House has no confidence in Her Majesty’s Government’ is unambiguous. If the motion is carried, the government has demonstrably lost the confidence of the House. However, it was not unusual for censure motions to be qualified and on occasion not even include the word confidence. Some were worded in terms of ‘That this House regrets …’ (as with motions in 1945 and 1952), 32 HC

Deb 10 November 1964, cols 969–74. Deb 10 March 1976, cols 565–6. 34 Joint Committee on the Fixed-term Parliaments Act, Report, 22. 35 HC Deb 16 January 2019, cols 1269–73. 33 HC

Votes of Confidence and the Fixed Term Parliaments Act 195 ‘That this House deplores …’ (as with motions in 1956, 1956 and 1965), ‘That this House condemns …’ (as with a motion in 1972) and others focused on specific policies, as, for example, ‘That this House has no confidence in Her Majesty’s Government’s management of the economy’ (in 1973). In most, if not all cases, it was apparent that the motion was deemed to be one of confidence and was treated as such by the government. Nonetheless, some motions could be unclear, as notably with an Opposition motion in October 1981 that expressed ‘no confidence in the economic policies of Her Majesty’s Government’, but then demanded that the government present to Parliament, before the end of the year, new economic policies. It thus appeared to distinguish lack of confidence in particular policies from lack of confidence in government as a whole necessitating the government’s resignation or a general election, but is treated nonetheless as falling within the category of a confidence vote. On two occasions, adjournment motions were utilised in lieu of a formal motion of confidence. Both took place under the Labour Government of 1974–79, one – to which we have already referred – in March 1976 the day following the government defeat on its expenditure White Paper36 and the other in July 1977 the day following a statement on counter-inflation policy by the Chancellor of the Exchequer.37 The first was used by the Prime Minister and the second by the Leader of the Opposition. However, although neither mentioned confidence, there was no uncertainty as to their purpose. As Prime Minister Harold Wilson said in opening the adjournment debate in 1976: the House must understand that this is a vote of confidence in the Government and the Government’s financial and economic policies. No one in any part of the House should be in any doubt concerning what he is voting about tonight.38

The lack of precision as to when votes would be treated as confidence votes led some Prime Ministers, in Parliaments in which the government lacked an overall majority, to make statements indicating what type of votes would be deemed by the government as constituting confidence votes. Ramsay McDonald did so at the start of the 1924 Parliament39 – and referred back to his statement in the debate on the Campbell case – and Prime Minister Harold Wilson did so at the beginning of the 1974 Parliament.40 ‘In case of a Government defeat’, declared Wilson, either in such circumstances [a snap division] or in a more clear expression of opinion, the Government will consider their position and make a definitive statement after due consideration. But the Government will not be forced to go to the country except in a situation in which every hon. Member in the House was voting knowing the full consequences of his vote.41 36 HC

Deb 11 March 1976, cols 634–758. Deb 20 July 1977, cols1606–1740. 38 HC Deb 11 March 1976, col 634. 39 HC Deb 12 February 1924, cols 49–50. 40 HC Deb 12 March 1974, cols 70–72. 41 HC Deb 12 March 1974, col 70. 37 HC

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The convention as such embodied a moral imperative. Conventions are not legally enforceable, but they are complied with because they are recognised by those who are affected by them as constituting right behaviour.42 In the case of confidence motions, they are bolstered by a political sanction. Without the confidence of the House of Commons, a government cannot govern. A government may suffer defeats on motions not entailing confidence, which may make it difficult for the government to fulfil its programme of public policy. It could opt to resign, or seek a dissolution, but it would be under no constitutional duty to do so. The Labour Government returned in October 1974 suffered 41 defeats in the House of Commons division lobbies,43 but soldiered on, until it suffered its forty-second defeat on the vote of no confidence on 28 March 1979. Although defeats on that scale had not been witnessed since the 1860s, the government still managed to get key legislation enacted. As Kenneth Morgan observed of Callaghan’s premiership, ‘His premiership seemed more an essay in survival than anything else, though it was not without achievement in difficult circumstances.’44 Despite some uncertainties as to whether some votes qualified as votes of confidence, the constitutional position was well ingrained: a government rested on the confidence of the House and if the House expressed no confidence in Her Majesty’s Government – in one of the three ways identified – the Prime Minister either tendered the resignation of the Government or requested a dissolution.

III. The Fixed Term Parliaments Act The Fixed-term Parliaments Act 2011 (FTPA) was a consequence of the Coalition Agreement negotiated by the Conservatives and Liberal Democrats as the basis for creating a minimum winning coalition following the indecisive outcome of the 2010 general election.45 The Liberal Democrat manifesto (and indeed the Labour Party manifesto) supported the introduction of fixed-term Parliaments. The Conservative negotiators were not averse to conceding the case, not least as a means of reassuring the Liberal Democrats as to the endurance of the coalition. The agreement stated that the parties agreed to the establishment of five-year fixed-term parliaments. A ‘binding motion’ would be placed before the House of Commons in the first days following the agreement that the next general election

42 See D Feldman, ‘Constitutional Conventions’, in M Qvortrup (ed), The British Constitution: Continuity and Change (Oxford, Hart Publishing, 2013) 95. See also G Marshall, Constitutional Conventions (Oxford, Clarendon Press, 1984) 11–12. 43 Norton (n 19) 491–3. 44 K Morgan, Labour People (revised edn, Oxford, Oxford University Press, 1992) 275. See also P Norton, ‘Staying the Saddle: James Callaghan and Parliament’, in K Hickson and J Miles (eds), James Callaghan: An Underrated Prime Minister? (London, Biteback, 2020) 55. 45 P Norton, ‘ The Politics of Coalition’, in N Allen and J Bartle (eds), Britain at the Polls 2010 (London, Sage, 2011) 242.

Votes of Confidence and the Fixed Term Parliaments Act 197 would be held on the first Thursday of May 2015 and that, following this motion, legislation would be brought forward to make provision for fixed-term Parliaments of five years. The legislation would also provide for dissolution if 55 per cent or more of the House votes in favour.46 This last provision was to ensure that the Conservatives could not unilaterally bring the Parliament to an end. The agreement reflected the haste of negotiations and the lack of grounding in the nation’s constitutional arrangements of those who drew up the document. As the House of Lords Constitution Committee observed in its report on the Fixed-term Parliaments Bill, ‘The policy behind the Bill shows little sign of being developed with constitutional principles in mind.’47 No binding motion was brought forward because there was no one to be bound by such a motion. The 55 per cent provision was not based on analysis of practice in other legislatures; it was allegedly the product of calculations on a personal calculator by a member of the Conservative team.48 Most significant was what was missing. There was no reference to a Parliament being brought to an end by a vote of no confidence in the government. These deficiencies were addressed, albeit partially, in the Bill brought forward by the new government. The Fixed-term Parliaments Bill provided for a fixed-term of five years, but with provision for an early general election if either two-thirds of all MPs voted for an early general election or if the House passed a motion of no confidence in the government. The two-thirds provision brough the measure into line with the threshold in certain other legislatures, including the devolved legislatures in Scotland and Wales. The confidence provision recognised the importance of the government resting for its continuance in office on the confidence of the House. The Bill was unusual in that it transferred a convention of the Constitution, or rather part of a convention, into statute. Such transfers are unusual because of the very nature of conventions.49 Conventions may provide for some flexibility in terms of their contours.50 Statutes require precision. However, the Bill, as drafted, embodied some ambiguity. Clause 2 (2) provided that there would be an early general election if the Speaker certified that: (a) on a specified day the House passed a motion of no confidence in Her Majesty’s Government (as then constituted), and (b) the period of 14 days after the specified day has ended without the House passing any motion expressing confidence in any Government of Her Majesty.

So worded, the clause created the potential for legal and political uncertainty. The government took the view that the provisions of the clause were sufficient

46 HM

Government, The Coalition: Our Programme for Government (The Cabinet Office, 2010) 26. Committee, Fixed-term Parliaments Bill (HL 2010–11, 69) 8. 48 D Laws, 22 Days in May (London, Biteback, 2010) 184. 49 P Norton, Governing Britain (Manchester, Manchester University Press, 2020) 42–6. 50 ibid 33. 47 Constitution

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to maintain the confidence convention. In moving the Second Reading, Deputy Prime Minister Nick Clegg declared: no-confidence votes have until now been a matter of convention. Although it has been widely accepted that a no-confidence vote would require a Prime Minister either to resign or to call an early election, there has been nothing to date to enforce this. So for the first time, the Bill gives legal effect to a motion of no confidence passed by this House. Such motions will continue to require only a simple majority.51

It would be for the Speaker to determine whether it was a vote of no confidence. The Speaker’s certificate, under the Bill, was to be conclusive for all purposes. This was designed to keep the courts out of the business of the House. However, the Clerk of the House of Commons feared that it may actually lead to litigation.52 The provision held out the prospect of drawing the Speaker into political controversy, not least if the Speaker’s view of what constituted a confidence motion clashed, for example, with that of the government.53 A contentious decision could be challenged in the courts. The heart of the problem was that the government believed it would be possible for the Speaker to recognise and apply the meaning of a confidence vote as existed under the convention, but Clause 2(2)(a) stipulated that a motion of no confidence had to be passed in order to trigger an early general election. If a motion of confidence, whether worded as such or a motion to which the Prime Minister declared was a matter of confidence, was voted down by the House, it would have shown a lack of confidence in the government, but, as noted by the Political and Constitutional Reform Committee of the House of Commons, the House would not have ‘passed’ a motion of no confidence.54 The government argued nonetheless that the understandings embodied in the Constitution could be maintained and that the Speaker would interpret what constituted a vote of no confidence and could inform the House in advance of his interpretation.55 In the House of Lords, Lord Wallace of Tankerness, the minister taking the Bill through the House, argued that: one recognises an elephant when one sees it. If it waddles like a duck and quacks like a duck, it is generally a duck. There is an issue here, but the more I have thought about it, the more I have found that trying to find a solution might cause more problems than leaving it, as it is at the moment, to the Speaker’s discretion.56

Utilising the elephant definition – you recognise it when you see it – for a vote of confidence did not provide the certainty required in law. In light of the criticisms 51 HC

Deb 13 September 2010, col 629.

52 Political and Constitutional Reform Committee, Fixed-term Parliaments Bill (HC 2010–2011, 436)

Evidence, 20. 53 Norton (n 2) 11. 54 Political and Constitutional Reform Committee (n 52) 14. 55 Government Response to the Report of the House of Lords Constitution Committee on the Fixed-term Parliaments Bill (Cm 8011, 2011) 33. 56 HL Deb 1 March 2011, col 1046.

Votes of Confidence and the Fixed Term Parliaments Act 199 levelled, the government accepted an amendment at Report stage in the Lords, moved by an Opposition backbencher, Lord Howarth of Newport, that sought to remove the Speaker from a potentially problematic situation and to specify in terms what constituted a vote of no confidence. Clause 2(2) was replaced with: (3) An early parliamentary general election is to take place if – (a) the House of Commons passes a motion in the form set out in subsection (4), and (b) the period of 14 days after the day on which that motion is passed ends without the House passing a motion in the form set out in subsection (5). (4) The form of the motion for the purpose of subsection 3(a) is – ‘That this House has no confidence in Her Majesty’s Government.’ (5) The form of the motion for the purpose of subsection 3(b) is – ‘That this House has confidence in Her Majesty’s Government.’

Here, the wording was precise. If a motion worded differently to that specified in Clause 2(4) was passed, it would not engage the provisions of the measure. The measure on the face of it appeared to achieve its principal goal, which was to remove the Prime Minister’s power to request the monarch to dissolve Parliament. Under the confidence convention, the House of Commons could trigger an election (or the government’s resignation) through withdrawing its confidence. Now, it could prevent the Prime Minister requesting a dissolution at a time of his or her choosing, usually at a time deemed propitious to government. The Bill was passed and took effect on enactment in September 2011. In practice, it served its purpose in the short term – ensuring that the 2010 Parliament lasted until 2015. However, beyond that, there were problems, both realised and potential.

A. Limiting the Convention The Act provided the certainty previously lacking as to the passing of a vote of no confidence, but it had the effect of narrowing the scope of what had been encompassed by the convention on confidence.57 To trigger dissolution, the House had to pass a motion of no confidence employing the wording as specified in section 2(4). Defeating the government on a motion of confidence, or on a motion to which the Prime Minister had attached confidence, would not engage the provisions of the section. During passage of the Bill, the government resisted amendments that would have made provision for a Prime Minister to move a motion of confidence after a major defeat and, if the motion was lost, for an early election to be held. The government resisted on the grounds that it would be easier for a government to 57 P Norton, ‘From Flexible to Semi-Fixed: The Fixed-term Parliaments Act’ (2014) 1 Journal of International and Comparative Law 218.

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engineer the loss of such a motion than in would to achieve passage of an explicit vote of no confidence.58 The Act limited, but did not destroy the convention. It would be open for the government to resign, but it would no longer be possible for the Prime Minister to declare, as Edward Heath did in 1972, that a defeat would lead to a general election. Theresa May could have designated votes on the EU Withdrawal Agreement in 2019 as votes of confidence and which, if lost, would lead to the government’s resignation. Resignation would not trigger the provisions of the Act. The monarch could invite the Leader of the Opposition to form a government. If the Leader of the Opposition was unable to do so, there would be a period of stalemate and likely negotiations between party leaders (not least to avoid creating embarrassment for the Crown), but absent the House voting for an early election under either provision of section 2 of the FTPA, there would be no general election.

B. Finding an Alternative Government The section also sought to combine the two options open to government after it had lost a vote of confidence, namely to resign or request a dissolution.59 In the event of resignation, the monarch would then be in a position to invite the leader of the second-largest party to form a new administration, as happened in 1895 and 1905, the latter when the government of Arthur Balfour resigned without having lost a confidence vote.60 Under section 2(3)(b), there would be the option of a new administration being formed and, if within 14 days it obtained a vote of confidence from the House, there would be no early election; the new government would see out the remaining term of the five-years. However, it was not clear if the existing government could seek to remain in office, perhaps with some tweaks to ministerial offices, and then seek a vote of confidence or whether it had to be an alternative in the form of the Opposition or, as became an issue in 2019, some other alternative. The government in 2011 believed that a government could reconstitute itself and seek a vote of confidence.61 The House of Lords Constitution Committee observed that this did not necessarily follow from the Bill as drafted,62 but the government failed to act on its prompting to move an amendment to clarify the situation. As to the alternatives to the government reconstituting itself, the official Opposition is a recognised entity – the Leader of the Opposition is designated as such by the

58 HL

Deb 16 May 2011, cols 1146–76. Deb 21 March 2011, col 1099. 60 See AK Russell, Liberal Landslide: The General Election of 1906 (David & Charles, 1973) 34–5; and RJQ Adams, Balfour: The Last Grandee (John Murray, 2007) 227. 61 M Harper, Minister for Political and Constitutional Reform, in evidence to the House of Lords Constitution Committee; Constitution Committee, Fixed-term Parliaments Bill (n 47) 32. 62 Constitution Committee, Fixed-term Parliaments Bill (n 47) 32. 59 HL

Votes of Confidence and the Fixed Term Parliaments Act 201 Speaker because s/he leads the party that can form a government in the event of the demise of the existing ministry – but opposition can take different forms,63 encompassing several parties and/or a mix of parties and dissident government backbenchers. This became a live issue in 2019, when Members of opposition parties  –  opposed to Opposition Leader Jeremy Corbyn becoming Prime Minister  – reportedly discussed supporting a motion of no confidence and then conveying to Buckingham Palace the name of an agreed leading parliamentarian who could command a majority to form a caretaker government. The Prime Minister would then be expected to resign and allow the caretaker government to be formed and seek a vote of confidence. Boris Johnson was reported to have said he would defy the Queen to dismiss him in such a situation.64 In the event, nothing came of the discussions, but the effect was to highlight the problems associated with the Act. The fact that an alternative government would have to be formed within 14 days – there had to be a government in which confidence could be expressed – created particular pressures, given that it was exactly 14 days; no allowance was made for weekends or bank holidays. At committee stage, amendments were tabled that sought to maintain the convention that in the event of a vote of no confidence being carried, the Prime Minister could opt for the government’s resignation or dissolution. The Bill, as one peer (this author) argued, had the effect of strengthening the position of the Prime Minister rather than limiting it: In the present situation, if a Government lose a vote of confidence, the Prime Minister has the option either of calling an election or of resigning. The Government go. Under the phrasing of this Bill, the Government do not have to go; they can be reformulated. In that sense, the provision protects the Government as the present situation does not.65

However, the amendments failed to attract government support. An Opposition amendment at Report stage to remove the 14-day limit was lost by 236 votes to 203.66

C. Empowering the Opposition The purpose of the Bill was to limit the power of the Prime Minister and transfer power to the House of Commons. The House, as Anthony King noted, comprises a number of parts, creating a range of relationships between the executive and each of those parts.67 The effect of the Fixed-term Parliaments Act was to empower a 63 P

Norton, ‘Making Sense of Opposition’ (2008) 14 Journal of Legislative Studies 236–42. Times, 6 October 2019; Independent, 10 October 2019. 65 HL Deb 29 March 2011, col 1102. 66 House of Lords, Hansard, 16 May 2011, cols 1175–78. 67 A King, ‘Modes of Executive-Legislative Relations: Great Britain, France and West Germany’ (1976) 1 Legislative Studies Quarterly 11. 64 The

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part that usually had the capacity to be heard, but not to determine outcomes – the Opposition. A government rests on the confidence of the House of Commons and that usually is maintained through the governing party being able to mobilise its own MPs (normally a majority of the House) to support it. The effect of the FTPA was to confer a veto power on the Opposition. As long as the Opposition constituted more than one-third of the membership of the House, it could prevent the two-thirds majority being achieved. It did not need to vote against a motion stipulating an early general election. Given that the provision required a minimum of two-thirds of all MPs to vote for it, abstention (as long as there was a division) would suffice. Initially, some critics of the Act regarded the provision as a dead letter in that they assumed no Opposition would oppose the calling of a general election. During debate on Prime Minister’s Theresa May’s motion in 2017 for an early election, one MP described the Act ‘as ‘an emperor without clothes – it serves no purpose, and many of us have questioned it for many years’.68 However, in the circumstances of the Parliament that returned in 2017, it proved an effective weapon at the disposal of the Opposition. Although the House had previously expressed confidence in the Government of Theresa May, attempts by her successor, Boris Johnson, to utilise the provision for an early general election were thwarted on three occasions by the Opposition declining to support such a motion. The effect, as intended by opponents, was to prevent an election until after the Prime Minister had sought an extension to the deadline (of 31 October) for the UK’s exit from the European Union. The extension of the deadline delivered their objective.

D. Circumventing the Purpose of the Act The Act was designed to limit the power of the Prime Minister and to ensure a five-year Parliament. Ultimately, the government could get round the provisions to limit its capacity to trigger a dissolution. It could either engineer a vote of no confidence in itself or introduce a new Bill to provide for an early election on a date it specified, the provisions of the FTPA notwithstanding. Either of these could be achieved through a simple majority. The first of these possibilities was variously raised during the Bill’s passage. Although for a government to engineer a vote of no confidence in itself was clearly a high-risk strategy, evidence of its use suggested it could deliver what a government wanted.69 Despite the concerns raised by some Members, attempts to limit the possibility of this happening, for example through requiring that for a motion of no confidence to be treated as such under the Act it had to be moved by the Leader of the Opposition or Members of opposition parties, were unsuccessful. 68 HC

Deb 19 April 2017, col 681. R Youngs and N Thomas-Symonds, ‘The Problem of the “Lame-Duck” Government: A Critique of the Fixed-term Parliaments Act’ (2013) 66 Parliamentary Affairs 540. 69 See

Votes of Confidence and the Fixed Term Parliaments Act 203 Engineering a vote of no confidence may be politically risky, but had the advantage of taking the form of a single division and could be moved quickly. It would also be confined to the House of Commons. The second option, of introducing a Bill, was more time-consuming in that it would have to go through the usual legislative stages in both Houses. In the event, the second option was to be utilised in 2019 after Prime Minister Boris Johnson had failed to get the House to vote for an early general election under the FTPA. When it appeared that there was a majority in favour of an early election (the Scottish National Party favouring one), the Opposition did not oppose the government’s Bill stipulating that there would be a general election on 12 December 2019. The Bill achieved a swift passage through both Houses.

IV. Restoring the Status Quo Ante? The FTPA encountered criticism from its inception, the criticisms becoming louder as time passed, with the Act both failing to live up to its fixed-term intentions (three general elections taking place within a period of five years) and the implications of section 2 becoming more widely understood. These became even more apparent during the 2017–19 Parliament, with the failure of the Government of Theresa May to achieve a majority for her Withdrawal Agreement, facing a House of Commons where a transient majority formed of opposition Members, some dissident government backbenchers and independent Members, wrested control of the parliamentary timetable from government and set conditions for negotiations. The combination of conditions was unprecedented, creating a notable challenge to the Westminster system of government.70 As various witnesses told the Joint Committee on the Fixed-term Parliaments Act, the FTPA was not the cause of the government’s problems, but rather exacerbated them, or, in the words of former Foreign Secretary Dame Margaret Beckett, it ‘muddied the waters’: ‘We were in unprecedented circumstances anyway, so it was just another factor that added to the mess.’71 The inability of the Prime Minister to seek a dissolution, or threaten one, in the face of a House of Commons that tied the hands of the government over the UK’s withdrawal from the EU, while keeping the government in office, led in the eyes of critics to paralysis, a government that was unable to govern, but without being able to call an election.72 It is not clear what would have happened had the FTPA not been on the statute book. Former Cabinet Secretary, Lord Butler of Brockwell, believed that the key Brexit votes would have been designated as confidence votes, with defeat

70 P Norton, ‘Is the House of Commons Too Powerful? The 2019 Bingham Lecture in Constitutional Studies, University of Oxford’ (2019) 72 Parliamentary Affairs 996. 71 Joint Committee on the Fixed-term Parliaments Act, 20. 72 ibid.

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leading to dissolution.73 However, given the scale of Conservative opposition to the Withdrawal Agreement, it is not certain that the Prime Minister would have risked making its passage a vote of confidence with the threat of an election (it remained open to her to resign), nor that she would have wished to risk a general election in any event. As she declared in response to Jeremy Corbyn’s speech moving the motion of no confidence in January 2019, ‘A general election is simply not in the national interest.’74 The key point was the perception, not least by ministers, of the chilling effect of the provisions of the Act. Compounding the negative perceptions of the Act was the 14-day provision following the carrying of a motion of no confidence. As we have seen, that was lacking in clarity as to whether it was intended an alternative government should be formed or if the existing government could remain and seek a vote of confidence or simply sit out the 14 days without seeking a vote of confidence and trigger an election. During passage of the Fixed-term Parliaments Bill in the House of Lords, a sunset clause was inserted, limiting the life of the measure. This was rejected by the Commons, but the government accepted a compromise provision stipulating that the Prime Minister had to arrange for a review of the Act, to take place no earlier than 1 June 2020 and no later than 30 November 2020. In the 2019 general election, both the Conservative and Labour party manifestos included commitments to repeal (or, in the words of the Conservative manifesto, ‘get rid of ’) the Fixed-term Parliaments Act. Private Members’ Bills had previously been introduced in both Houses with a single substantive clause: ‘The Fixed-term Parliaments Act 2011 is hereby repealed.’75 However, given that the previous statutory limit on the duration of a Parliament had ceased to exist, simple repeal would have the consequence that Parliament would continue in perpetuity, unless a Prime Minister requested a dissolution, assuming that it was accepted (scholars were divided on the issue) that repeal would mean that the prerogative power to dissolve Parliament was restored. Repeal was therefore necessary, but not sufficient for achieving the government’s goal of restoring the status quo ante.76 A parliamentary joint committee was established in November 2020 to complete the review required by the FTPA. It was also given the task of undertaking pre-legislative scrutiny of the government’s draft repeal Bill, published the following month. One of the criticisms levelled at the Fixed-term Parliaments Act was that it had been rushed – ‘political expediency appears to have taken priority over Parliament’s right to properly scrutinise the executive’, according to the Hansard Society77 – and not subject to pre-legislative scrutiny.78 73 ibid. 74 HC

Deb 16 January 2019, col 1178. (n 49) 125–6. 76 See the Constitution Committee, A Question of Confidence? The Fixed-term Parliaments Act 2011 (HL 2019–21, 121). 77 Quoted in Constitution Committee, Fixed-term Parliaments Bill (n 47) 9. 78 ibid 41–2. 75 Norton

Votes of Confidence and the Fixed Term Parliaments Act 205 The government’s draft Bill was a short one, which – in addition to repealing the FTPA and providing for the maximum duration of a Parliament to be five years – provided for the revival of the prerogative power to dissolve Parliament and call a new one (clause 2) and an ouster clause, preventing the courts from questioning the exercise or purported exercise of the prerogative powers (clause 3). Just as the government had sought in the Fixed-term Parliaments Bill to make the Speaker’s certification of a confidence motion non-justiciable, so now the government was keen to ensure that the courts did not interfere with the revived prerogative powers. The Bill attracted considerable discussion, both in terms of whether it was possible to revive prerogative powers and the desirability and implications of the ouster clause. It also attracted something of a re-run of the original debate on the Fixed-term Parliaments Bill, notably on the consequences of the Prime Minister having the power to determine the date of a general election. Much media commentary – and the stance of the Opposition as well as other opposition parties – was critical.79 Both the Labour and SNP spokespersons characterised this as a power grab by the executive.80 The Opposition argued that, while the FTPA was flawed, the House should retain the power to endorse an early election.81 The focus was in effect on the demise of the first part of section 2 of the FTPA (the House voting for an early parliamentary general election) rather than the second. The National claimed that ‘MPs will no longer have the power to decide on whether or not to have an early general election.’82 That applies outwith the confidence convention. The Bill was silent on elections triggered by the loss of confidence votes, given that the government’s view was that with section 2 of the FTPA repealed, the convention could operate as it had prior to 2011. The Joint Committee on the Fixed-term Parliaments Act, having adumbrated the problems with the operation of the Act, made some recommendations for some tweaking of the draft Bill. It also recommended that principles and conventions it set out should be adopted as the basis ‘for creating a new shared understanding of conventions and practices’.83 The understanding would certainly be new as the report stated that a lack of confidence could be expressed by ‘Defeating the Government on the Second or Third reading of the annual Finance Bill, or in the course of the Supply and

79 See, eg, J McGarry, ‘Boris Johnson may soon have the power to call elections whenever he wants – a legal view on why that’s not a good idea’ (The Conversation, 19 February 2021); ‘Johnson grabs the Crown’, The Guardian, (editorial, 5 March 2021); G Millar, ‘Repealing the Fixed-term Parliaments Act is about revenge not reform’ (The House Magazine, 21 March 2021); R Hazell and M Russell, ‘FTPA Joint Committee lays down marker for the future’ The Constitution Unit blog (12 April 2021) constitutionunit.com/2021/04/12/ftpa-joint-committee-lays-down-marker-for-the-future/ (accessed 24 January 2022). 80 HC Deb July 2021, col 804 (Brendan O’Hara), col 848 (Cat Smith). 81 HC Deb 6 July 2021, cols 800–1 82 M Hannan, ‘Brace yourselves for another power grab as Tories could delay next election’, The National, 5 December 2020. 83 Joint Committee on the Fixed-term Parliaments Act 60.

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Estimates process’84 (emphasis added). As we have seen, defeats in the course of the supply and estimates process took place in the twentieth century without the government treating them as confidence issues. The Joint Committee’s interpretation would thus not only enshrine the concept of implicit votes of confidence, but it would expand what fell within it. The Joint Committee also recommended that there be a new Standing Order providing that if the Leader of the Opposition tabled a motion of no confidence that it be debated no later than the third sitting day (not being a Friday) after the day on which it was tabled. This appeared to anticipate a problem that had not previously arisen. Governments had always fulfilled the convention of finding time at the earliest possible moment to debate a motion of no confidence tabled by the Leader of the Opposition. This had happened when Jeremy Corbyn tabled a no confidence motion on behalf of the Opposition in January 2019. Time was not found by the government when he tabled a motion of no confidence in the Prime Minister, but this fell outwith the convention as it was not a motion of no confidence in Her Majesty’s Government. This was in line with the position as stated in Erskine May prior to the passage of the FTPA: ‘Motions critical of the conduct of Ministers, either individually or collectively, have not been treated as falling within this convention, though they have been debated in Opposition time.’85 In its response to the Joint Committee’s report, the government declared that ‘it is not possible or desirable to produce a definitive list of what constitutes a motion of no confidence that if lost, would lead to a resignation or dissolution’.86 It also relied on Erskine May in noting that the government always acceded to the demand from the Leader of the Opposition to allot a day for a motion of no confidence tabled by the official Opposition and that motions critical of individual ministers had not been treated as falling within this convention. With the passage of the measure, the limb of the confidence convention cut off by the FTPA was thus able to regain its force. It was now open to a Prime Minister to move a motion of confidence in the government following a defeat on an important issue and, if the vote was lost, to request the dissolution of Parliament (the option of resigning was, as we have seen, never lost). A Prime Minister could also designate a vote on a specific motion as one entailing confidence and make clear that, if defeated, s/he would seek the dissolution of Parliament (again, the option of resigning was never lost). If there was any doubt following defeat on a major issue as to whether the government retained the confidence of the House, the Leader of the Opposition could table a motion of no confidence – again, a power that was not lost under the FTPA, as we have seen with Jeremy Corbyn tabling such a motion. The key point was that the confidence convention as existed prior to September 2011 was implicitly restored, including the flexibility that attached to 84 ibid

61.

85 Natzler,

Erskine May 344.

86 Government Response to the Joint Committee on the Fixed-term Parliament Act Report, CP 430, May

2021, 17.

Votes of Confidence and the Fixed Term Parliaments Act 207 the convention. The retention of the capacity of the Leader of the Opposition to test whether the government retained the confidence of the House remained the ultimate check. It remained, as a convention, a statement of right behaviour, but it had the ultimate sanction behind it. A government that loses the confidence of the House cannot govern if the House says ‘no’. The enactment of the Dissolution and Calling of Parliament Act constituted the fulfilment of the government’s intention ‘to return to the pre-2011 system for dissolving Parliament and calling a new Parliament’.87 It sought to put the constitutional position back to what the Constitution Committee of the House of Lords had argued in 2010 need not have been departed from. The committee noted that the Fixed-term Parliaments Bill owed more to short-term considerations than a mature assessment of enduring constitutional principles or sustained public demand. ‘We acknowledge the political imperatives behind the Coalition Government’s wish to state in advance its intent to govern for the full five-year term, but this could have been achieved under the current constitutional conventions.’88 The problem with seeking to restore the position to what it was before 2011 was exemplified by the earlier attempts through Private Members’ Bills to repeal the FTPA. Repealing the Act would not restore the situation to what it had been before 2011. The Septennial Act 1715 as amended by the Parliament Act 1911 was no longer in existence. The Dissolution and Calling of Parliament Act addressed some of the problems, but others were inherent deriving from the nature of the Constitution. There was uncertainty, for example, as to whether the effect of repeal was to allow the prerogative to continue as it had before the FTPA was passed or whether it now constituted a statutory power.89 However, there appeared nothing that would prevent the convention of the constitution governing confidence from operating as it had prior to 2011. If the government loses a confidence vote in the House of Commons, it either resigns or requests a dissolution. There are attendant issues (such as to whether certain votes qualify as votes of confidence) that give rise to debate, but these are part of parcel of this particular convention. The fundamental constitutional principle, that the government rests on the confidence of the House of Commons, remains and shapes the relationship between the executive and Parliament.

87 Letter

from Lord True CBE to Lord Norton of Louth, 12 May 2021. Committee, Fixed-term Parliaments Bill (n 47) 9. 89 See especially M Elliott, ‘Repealing the Fixed-term Parliaments Act’ (Public Law for Everyone, 2 December 2020) publiclawforeveryone.com/2020/12/02/repealing-the-fixed-term-parliaments-act/ (accessed 21 January 2022). 88 Constitution

9 Brexit, Parliament, and the Courts – Towards a New Relationship? ALISON YOUNG 1

I. Brexit Drama or Business as Usual? Constitutional lawyers in the future may be excused for remembering the Brexit process purely through four key constitutional cases. Future political scientists may equally be forgiven for recalling Brexit through the lens of the dramatic events of 2019, which began with the largest ever governmental defeat since the establishment of universal suffrage2 and culminated in the replacement of May’s minority Government with a large majority Conservative Government led by Boris Johnson. Politics in 2019 frequently resembled a rollercoaster ride, twisting and turning through: fast-tracked Private Members’ Bills designed to thwart governmental policy and prevent the UK leaving the EU with no deal;3 a Prime Ministerial resignation and a Conservative party leadership election; a vote of no confidence; an unlawful five-week prorogation of Parliament; three votes for an early parliamentary general election which failed to obtain the necessary two-thirds majority of all Members;4 the defeat of a programme motion for the European Union (Withdrawal Agreement) Bill 2017–19; and the enactment of the Early Parliamentary General Elections Act 2019 enabling the 12 December 2019 general election. It is difficult to deny the drama of these events. Consequently, it is important to be aware of this backdrop when assessing the impact of Brexit on the

1 Alison L Young, Sir David Williams Professor of Public Law, University of Cambridge, Fellow, Robinson College, and a legal advisor to the House of Lords Constitution Committee. This chapter was written in a personal capacity. 2 This occurred in the first vote on the Withdrawal Agreement held under provisions of s 13 of the European Union (Withdrawal) Act 2018, with the Agreement defeated by 432 votes to 202 votes: HC Deb 15 January 2019, cols 1122–1125. 3 These became the European Union (Withdrawal) Act 2019 and the European Union (Withdrawal) (No 2) Act 2019. 4 These took place on 4 September, 9 September and 28 October.

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UK Constitution. Narrative surrounding these events has become polarised. For some, they are the apogee of judicial activism. Parliament – or perhaps more accurately – the government watched on helplessly as the court reclassified political issues as legal, usurping Parliament and thwarting politics.5 For others, courts merely continued to determine legal issues, including the distribution of powers between institutions of the Constitution, in a manner that upheld the sovereignty of Parliament.6 It was merely business as usual, despite the extraordinary circumstances. The tension between these divergent accounts runs through the Independent Review of Administrative Law, the government’s response to that review and the further consultation exercise which led to the Judicial Review and Courts Bill 2021. This Bill aims to protect the judiciary from being drawn into political questions and preserve the integrity of Judicial Review for its intended purpose – which is to hold the Government and public authorities to account, apply the intent of Parliament, and protect individuals’ rights.7

It is clear that the current government, at least, perceives that its relationship with the courts has changed, and not for the better.

5 See, eg, R Ekins, Parliamentary Sovereignty and the Politics of Prorogation (Policy Exchange 2019) policyexchange.org.uk/wp-content/uploads/2019/09/Parliamentary-Sovereignty-and-the-Politicsof-Prorogation3.pdf (accessed 2 January 2022); T Endicott, ‘Don’t Panic’ (UK Constitutional Law Blog , 13 September 2020 ) ukconstitutionallaw.org/2019/09/13/timothy-endicott-dont-panic/ (accessed 2 January 2022); J Finnis, The Law of the Constitution before the Court: Supplementary Notes on The Unconstitutionality of the Supreme Court’s Prorogation Judgment (Policy Exchange 2019) policyexchange.org.uk/wp-content/uploads/The-Law-of-the-Constitution-before-the-Court.pdf (accessed 2 January 2022); M Loughlin, The Case of Prorogation: The UK Constitutional Council’s Ruling on the Appeal from the Judgment of the Supreme Court (Policy Exchange 2019) policyexchange.org. uk/wp-content/uploads/2019/10/The-Case-of-Prorogation.pdf (accessed 2 January 2022), and ‘A Note on Craig on Miller; Cherry’ [2020] Public Law 278; D Nicol, ‘The Supreme Court against the People’ (UK Constitutional Law Blog, 25 September 2020) ukconstitutionallaw.org/2019/09/25/danny-nicolsupreme-court-against-the-people/ (accessed 2 January 2022); and S Tierney, ‘Prorogation and the Courts: A Question of Sovereignty’ (UK Constitutional Law Blog, 17 September 2020) ukconstitutionallaw.org/2019/09/17/stephen-tierney-prorogation-and-the-courts-a-question-of-sovereignty/ (accessed 2 January 2022). 6 P Craig, The Supreme Court, Prorogation and Constitutional Principle’ [2020] Public Law 248 and ‘Constitutionality, Convention and Prorogation’, in D Clarry (ed), The UK Supreme Court Yearbook, Volume 10: 2018–2019 Legal Year (London, Appellate Press, 2021); M Elliott and AL Young, ‘Prorogation, Politics and the Principle of Legality’ (UK Constitutional Law Blog, 13 September 2019) ukconstitutionallaw.org/2019/09/13/alison-young-prorogation-politics-and-the-principle-oflegality/ (accessed 2 January 2022); ‘Deftly Guarding the Constitution’ judicialpowerproject.org.uk/ alison-young-deftly-guarding-the-constitution/ (accessed 2 January 2022); and ‘The Prorogation Case: Re-inventing the Constitution or Re-imagining Constitutional Scholarship?’, in D Clarry (ed), The UK Supreme Court Yearbook: Volume 10, 2018–2019 Legal Year (London, Appellate Press, 2021) 357. 7 The Queen’s Speech 2021 (HMG) assets.publishing.service.gov.uk/government/uploads/system/ uploads/attachment_data/file/986770/Queen_s_Speech_2021_-_Background_Briefing_Notes.pdf (accessed 2 January 2022) 145. See also www.gov.uk/government/publications/judicial-review-andcourts-bill (accessed 2 January 2022); and Lord Chancellor’s Keynote Speech on Judicial Review (Policy Exchange, 21 July 2021) www.gov.uk/government/speeches/lord-chancellors-keynote-speechon-judicial-review (accessed 2 January 2022).

Brexit, Parliament, and the Courts – Towards a New Relationship? 213 This chapter will not revisit the many debates surrounding whether either of the two Miller cases was correctly decided. Rather, it will look more specifically at these and other cases in order to assess the extent to which litigation surrounding Brexit has modified the relationship between Parliament and the courts. It will argue that litigation was used to perform two purposes: to facilitate parliamentary scrutiny of the government and to resolve political disputes between Westminster and devolved legislatures. Neither of these functions are new. Nevertheless, Brexit litigation did initiate a subtle shift in the relationship between Parliament and the courts. First, they illustrate how judicial review can be used to regulate disputes between institutions of the Constitution when political mechanisms have failed – a form of constitutional judicial review. The Brexit litigation exemplified two types of constitutional judicial review. First, litigation was used to protect the legislature from unconstitutional behaviour of the executive, enhancing parliamentary scrutiny. Second, it was used to regulate the struggle between Westminster and the devolved legislatures and governments in the face of little or no political means through which to resolve growing tensions and disputes. In addition, the cases provide evidence of the role of MPs as litigants, influencing courts to adopt a more liberal approach to standing and to issues of justiciability, facilitating the hearing of cases that might otherwise have been rejected. Having established these new relationships, the chapter will argue that these developments should be welcomed. In a constitutional system which upholds the sovereignty of Parliament, judicial review is needed to provide a constitutional safeguard to prevent disputes between institutions of the Constitution being determined solely as a matter of political power. Whilst there are some ways in which parliamentary procedures may be modified to minimise the use of judicial review, nevertheless such cases are inevitable in a parliamentary democracy designed to facilitate majoritarian, adversarial democracy as opposed to facilitating democratic deliberation and cooperation. Litigation is needed to ensure constitutional balance between the legislature and the executive and between Westminster and the devolved governments and legislatures, particularly when this balance cannot be maintained through political channels. Litigation that enables courts to resolve disputes as to the distribution of power between institutions of the Constitution enhances constitutional balance in two ways. First, it can help to ensure that the distribution of power between institutions of the Constitution is not determined purely by political power. This may provide greater stability and certainty. Second, in an uncodified Constitution, the distribution of power between institutions evolves over time. A system in which this evolution has input from courts, drawing on constitutional principles, is more legitimate than one where a distribution of powers derives purely from relative political power. It facilitates a separation of powers where checks and balances combine constitutional principles and democratic legitimacy.

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II. Enhancing Parliamentary Scrutiny This chapter will discuss four key ‘Brexit’ cases: the first Miller decision which assessed whether ministers had a prerogative power to initiate the UK’s withdrawal from the European Union;8 the second Miller decision concerning the prorogation of Parliament;9 the Wightman litigation concerning whether the UK had the power to unilaterally revoke notification to withdraw from the EU Treaties;10 and the reference to the Supreme Court concerning the legality of the Scottish Continuity Bill.11 Both of the Miller decisions and the Wightman litigation had the outcome of enhancing parliamentary scrutiny of the legislature over the executive. Whilst this was achieved more generally as regards the Miller decisions, Wightman demonstrates a more specific, indirect enhancement of parliamentary scrutiny.

A. Bolstering the Role of Parliament In the first Miller decision, a majority of the Supreme Court concluded that, whilst the government enjoyed a broad prerogative power to withdraw from treaties, this did not include the specific power to withdraw from the European Union Treaties. If the government had enjoyed a prerogative power, then a minister would have been able to decide when to notify the European Council and, in addition, whether there were any conditions that should be placed on that notification. A minister could be held to account for how the power was exercised through facing questions in Parliament, or through appearing before and giving evidence to a Select Committee. As the minister could not use the prerogative, legislation needed to be enacted to grant the minister a statutory power. This enhanced parliamentary scrutiny by providing Parliament with the ability to place conditions on the exercise of that power. The second Miller decision resulted in an even clearer enhancement of parliamentary scrutiny. The quashing of the prorogation order meant that Parliament was no longer suspended, providing it with more time to enact legislation and to hold the government to account than would have otherwise been the case. Arguably, both decisions only enhanced parliamentary scrutiny in theory and not in reality. The European Union (Notification of Withdrawal) Act 2017, introduced two days after the first Miller decision and enacted six weeks later,

8 R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, [2018] AC 61 (‘Miller I’). 9 R (Miller) v Prime Minister; Cherry v Advocate General for Scotland [2019] UKSC 41, [2020] AC 373 (‘Miller II’). 10 Wightman [2018] CSOH 8; [2018] CSIH 18; [2018] CSOH 61; and [2018] CSIH 62. 11 Re the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill [2018] UKSC 64, [2019] AC 1022.

Brexit, Parliament, and the Courts – Towards a New Relationship? 215 merely provided that ‘The Prime Minister may notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU.’12 No conditions were placed on the exercise of this power. Two amendments of the House of Lords, creating an obligation on the government to hold a vote in Parliament to approve the first draft of the Withdrawal Agreement, and to include a reporting requirement as concerns the impact of Brexit on the rights of EU citizens residing in the UK, were defeated in the House of Commons,13 with the House of Lord eventually voting to withdraw both amendments.14 Similarly, whilst the outcome of the second Miller decision may have witnessed the return of Parliament, the period from 25 September to the second, shorter, prorogation of Parliament on 8 October was one of the calmest periods in Westminster in 2019, leading some to reflect that Parliament had failed to fully capitalise on its opportunity for further scrutiny.15 Nevertheless, it would be wrong to dismiss these cases as providing empty opportunities. Any assessment of the impact of the first Miller decision has to be read in the light of the Brexit referendum, which may explain why Parliament was so reluctant to impose conditions on the executive’s discretionary power to trigger Article 50. This reticence is illustrated in debates discussing amendments designed to introduce greater parliamentary scrutiny over the Brexit process. Whilst those in the Commons who supported the need for a parliamentary vote on the government’s negotiations with the EU focused on how this would preserve parliamentary sovereignty16 and the proper constitutional process of ensuring the legislature can oversee actions of the executive,17 these arguments were defeated by the need to ensure that the government had a free hand in the then forthcoming negotiations over the content of the Withdrawal Agreement in order to implement the will of the people expressed in the referendum.18 The government nevertheless promised Parliament a vote on the Withdrawal Agreement. When this did not materialise in the original European Union (Withdrawal) Bill, an amendment in the House of Lords, accepted in a modified version following a similar government amendment in the Commons, created the so-called ‘meaningful vote’ provision that required the Commons to vote in favour of the Withdrawal Agreement prior to its ratification.19 Would this amendment have been successful if there had not been the earlier governmental promise of a vote, granted in order to facilitate the enactment of the 2017 Act? 12 European

Union (Notification of Withdrawal) Act 2017, s 1(1). Deb 13 March 2017, cols 72–82. 14 ibid, cols 1709–1736. 15 See, eg, the comment of Martin Vickers MP: ‘Following the ruling of the Supreme Court, Parliament returned early from Prorogation, and we have spent a fortnight now in effect going through action replays of what has already taken place.’ HC Deb 8 October 2019, col 1707. 16 See Keir Starmer, HC Deb 13 March 2017, cols 47–49; Hilary Benn, col 62; Emma Reynolds, cols 65–66; Chris Leslie, cols 67–68; Helen Goodman, col 69; Caroline Lucas, cols 71–72. 17 See Dominic Grieve, ibid, cols 66–67. 18 ibid, col 38; and Mr Baron, col 49; Seema Kennedy, cols 62–63; William Cash, col 65; Gisela Stuart, col 70. 19 European Union (Withdrawal) Act 2018, s 13. 13 HC

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Similarly, when we assess the impact of the second Miller decision, we have to take account of the period immediately prior to Parliament’s unlawful prorogation and that immediately following Parliament’s return from a shortened prorogation on 14 October. In the run up to prorogation, Parliament enacted the European Union (Withdrawal)(No 2) Act 2019, initiated through a Private Members’ Bill, which succeeded in obtaining Parliament’s preferred outcome of preventing a ‘no deal’ exit from the EU on 31 October 2019. In October 2019: Parliament unusually sat on a Saturday for yet another vote on the newly negotiated Withdrawal Agreement;20 the programme motion on the European Union (Withdrawal Agreement) Bill 2019 was defeated, placing the Bill in limbo;21 a further motion for a parliamentary general election failed to obtain the requisite two-thirds majority;22 and the Early Parliamentary General Election Act 2019 was enacted, and triggered a general election on 12 December 2019. Would these events have occurred if the Supreme Court had concluded that the prorogation was lawful? That question may be impossible to answer. But it may be equally impossible to conclude that the Supreme Court’s decision had no impact on parliamentary scrutiny over the government’s actions and enactment of legislation. In addition, both decisions drew on constitutional principles which recognise and uphold parliamentary scrutiny. First, both relied on parliamentary sovereignty.23 In the first Miller decision, parliamentary sovereignty was used to determine the limits of prerogative powers. Acts of the Westminster Parliament are the highest form of law in the UK. Consequently, legislation can curtail prerogative powers.24 Miller built on this, confirming that prerogative powers cannot change domestic law,25 or frustrate legislation.26 The majority concluded that both would occur were a prerogative power to be used to trigger Article 50. Whilst the dissenting judgments reached a different conclusion, they did not question the importance of Parliamentary sovereignty or the limits of prerogative powers that follow from this principle, being more concerned with the interpretation of the European Communities Act 1972.27 The Supreme Court also relied on parliamentary sovereignty in the second Miller decision. An unlimited ability to prorogue Parliament would prevent Parliament from sitting and carrying out its task of enacting legislation and holding the executive to account. Consequently, if parliamentary sovereignty is to be preserved, there must be legal limits on the power of the government to prorogue Parliament.28 20 HC

Deb 19 October 2019, cols 598–672 Deb 22 October 2019, cols 923–926. 22 HC Deb 28 October 2019, cols 77–79. 23 Although this was not uncontroversial. For my analysis of the criticisms of the use of parliamentary sovereignty in Miller II see Young (n 6) 357. 24 Miller I (n 8) [48]. 25 ibid, [50]. 26 ibid, [51]. 27 ibid, [168] and [177] (Lord Reed). 28 Miller II (n 9) [41]–[42]. 21 HC

Brexit, Parliament, and the Courts – Towards a New Relationship? 217 Second, both Miller decisions recognised the value of parliamentary scrutiny of the executive, as well as its role in the enactment of legislation. In the first Miller decision the majority were influenced by a concern to preserve what they saw as the proper constitutional relationship between the legislature and the executive. The UK’s membership of the EU had significant constitutional implications, expressed by Lord Neuberger as grafting a ‘dynamic international source of law … onto, and above, the well-establishing existing sources of domestic law’.29 Consequently, taking parliamentary sovereignty into account, it seems most improbable that these two parties [Parliament and ministers] had the intention or expectation that ministers, constitutionally the junior partner in that exercise, could subsequently remove the graft without formal appropriate sanction from the constitutionally senior partner in that exercise, Parliament.30

The second Miller decision also built on the first Miller decision’s assessment of the legislature as the primary and the executive as the secondary institution of the Constitution through its focus on the principle of parliamentary accountability,31 concluding that a decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course.32

As far as the Supreme Court is concerned, the government is accountable to Parliament who, in turn, is accountable to the people. If the government were to act in a manner which prevented Parliament from fulfilling this function to a sufficient serious effect, then, in such an exceptional case, the court would intervene to protect the role of the legislature from unconstitutional intrusion from the executive.

B. Bolstering the Scrutiny of MPs on a Specific Issue The Wightman litigation illustrates how the law can be used to specifically enhance legislative scrutiny carried out by backbench and opposition MPs. The Wightman litigation concerned a request for a preliminary reference to the Court of Justice of the European Union asking whether it was legally possible to unilaterally revoke an Article 50 notification. The request was originally refused by the Outer House of the Court of Session. The Outer House concluded that it was effectively being 29 ibid,

[90].

30 ibid. 31 ibid, 32 ibid,

[46]–[48]. [50].

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asked to determine a legal question raised by a group of MPs during the legislative process – did MPs need to know whether it was legally possible to unilaterally revoke the UK’s notification to withdraw from the EU in order to perform their job? Any determination of this issue was a clear and dangerous encroachment on the sovereignty of Parliament. It is for Parliament itself to determine what options it considers in the process of withdrawing from the EU. It is for Parliament to determine what advice, if any it requires in the course of the legislative process.33

More fundamentally, ‘the court is not there to be used by one side or another to advance one side of a political debate’.34 The Outer Court concluded that any determination of this issue was for Parliament. Parliamentary sovereignty would be undermined were courts to answer this question. On appeal, the Inner House granted the reference. Two factors appear to have caused this volte face, all of which relate to enhancing parliamentary scrutiny. First, the Inner House was influenced by the enactment of section 13 of the European Union (Withdrawal) Act 2018, which, inter alia, required the House of Commons to vote in favour of the Withdrawal Agreement prior to its ratification.35 Parliamentarians, therefore, arguably needed to know the answer to the legal question concerning unilateral revocation in order to effectively exercise their vote under this legislation. Second, Lord Drummond Young focused on his analysis of the constitutional system of the UK, particularly parliamentary sovereignty, and the relationship between Parliament, the government, and the judiciary.36 It was for Parliament to decide whether or not to revoke the Article 50 notification. It was for the courts to determine the law. Here, the petitioners were asking a legal question that might influence how MPs voted in a particular issue. It was not an example of the courts instructing MPs to vote in a particular way.

III. Determining Devolution Disputes There is nothing controversial about courts being asked to determine disputes regarding whether legislation, or an act of the administration, is within the scope of powers devolved to the Scottish Parliament and government, the Senedd Cymru (the Welsh Parliament) and the Welsh government, or the Northern Ireland Assembly and government. All three legislatures have limited powers.37

33 Wightman

[2018] CSOH 61, [58]. [59]. 35 Wightman [2018] CSIH 62, [27] (Lord Carloway) and [37] (Lord Menzies). 36 ibid, [46]–[50]. 37 See Scotland Act 1998, s 29, and Schs 4 and 5, Government of Wales Act 2006, s 108A and Schs 7A and 7B and Northern Ireland Act 1998, s 6, and Schs 2 and 3. 34 ibid,

Brexit, Parliament, and the Courts – Towards a New Relationship? 219 In addition to the usual ability to bring judicial review, there are also specific legal procedures for determining whether Acts of the devolved legislatures are within the scope of these competences.38 The Brexit process saw the first use of the reference procedure as regards an Act of the Scottish Parliament – a challenge to the UK Withdrawal from the EU (Legal Continuity) (Scotland) Bill 2018 (Scottish Continuity Bill). The novelty of the use of courts to resolve devolution issues surrounding Brexit, however, stems from the context of this reference, alongside the enactment by the then Welsh Assembly of the Law Derived from the European Union (Wales) Act 2018 (Welsh Continuity Act). Both were enacted against a backdrop of growing tension between the Westminster and the devolved governments. Subsequent challenges following the Brexit process suggest that courts are being used to resolve disputes between these governmental institutions that are unable to be resolved through political means. Tensions between Westminster and the devolved governments can be traced back at least to the European Union Referendum Act 2015, which provided the legal basis for the Brexit referendum, if not before. During the enactment of this legislation, an amendment was proposed to institute a ‘quad lock’, such that a vote in favour of the UK leaving the EU would only succeed if there was a majority in favour of leaving in a majority of the component parts of the UK.39 The amendment failed. Some saw this as evidence of Westminster paying too little attention to the devolved nations, compounded by the limited time allotted for debate of this amendment, which was also coupled with discussion of an amendment to include 16 and 17 year olds in the franchise for the referendum.40 The perceived indifference to the wishes of the devolved nations was exacerbated by the referendum outcome, where England and Wales voted in favour of Brexit, but Scotland and Northern Ireland voted to remain in the EU. As the Brexit process progressed, it became clear that relations between Westminster and the devolved governments were becoming more strained.41 First, it became increasingly evident that the devolved governments were not going to play a significant – some would even argue any – role in the development of the UK’s exit strategy from, and future relationship with, the EU. Although a separate Joint Ministerial Committee was formed for EU negotiations, alongside the later addition of a Ministerial Forum (EU Negotiations), the devolved governments nevertheless expressed their frustration at what they perceived to be a lack of real engagement by the Westminster Government. It is hard to determine the reality of these assertions given the lack of transparency in these meetings. However, it is clear that the direction of travel adopted by the UK Government

38 See Scotland Act 1998, s 33, Government of Wales Act 2006, s 112 and Northern Ireland Act 1998, s 79, and Sch 10. 39 HC Deb 16 June 2015, col 190 (Similar arguments were made by Ms Ahmed-Sheikh at col 260–261. 40 European Union Referendum Bill (Programme)(No 2) HC Deb 7 September 2015, col 71. 41 See S Tierney, ‘ The Territorial Constitution and the Brexit Process’ (2019) 72 Current Legal Problems 59.

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in its White Paper42 differed significantly from that proposed by both Scotland and Wales,43 both of whom preferred a softer form of Brexit than the hard Brexit adopted by Westminster. Second, problems arose over the use of the Sewel Convention, that Westminster would not normally legislate in a devolved area, or, in its broader understanding, to modify the distribution of power between Westminster and the devolved legislatures, without the consent of the devolved legislatures. It was clear from the decision of the Supreme Court in the first Miller decision that, despite the provisions of section 2 of the Scotland Act 2016 which may have appeared to place the convention on a legal basis, the Sewel convention was not legally enforceable. The provisions of the Scotland Act merely ‘recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament’.44 The Supreme Court interpreted this provision as providing evidence of the intention of the Westminster Parliament to entrench the Sewel convention as a convention, rather than giving the convention legal force.45 Moreover, the Court concluded that, as a convention, it was not suited to legal enforcement by courts.46 Following this decision, the UK Government enacted a series of Brexit-related legislation either without asking for a legislative consent motion,47 or in the face of a refusal to grant a legislative consent motion from one or more or the devolved legislatures.48 These tensions culminated in what was originally clause 11 of the European Union (Withdrawal) Bill 2018. One of the consequences of Brexit was that former law-making powers that had been transferred to the EU were returned to the UK. Rather than those powers falling within the scope of devolved powers returning to the devolved legislatures, clause 11 of the Bill initially returned all powers, at least temporarily, to the Westminster Parliament with UK Government ministers being empowered to enact Orders in Council to determine when and how these powers would be transferred to Scotland, Wales, and Northern Ireland. The clause was discussed in Joint Ministerial Committees in February, March, and May of 2018, with further updates in October and November 2018, with apparently no resolution. The meetings also saw discussion of common frameworks designed to appease the supposed mischief that clause 11 was designed

42 The

Future Relationship between the United Kingdom and the European Union Cm 9593, July 2018. Place in Europe’, Scottish Government, December 2016 and ‘Securing Wales’ Future: Transition from the European Union to a New Relationship’, Welsh Government and Plaid Cymru, 2017. 44 Scotland Act 1998, s 28(8). A similar provision is now found in the Government of Wales Act 2006, s 107(6). 45 Miller I (n 8) [149]–[150]. 46 ibid, [145]–[146]. 47 The European Union (Notification of Withdrawal) Act 2017 and the European Union (Future Relationship) Act 2020. The former arguably did not require a consent motion and the latter left little time for debate in Westminster and no real time to ask for a legislative consent motion. 48 The European Union (Withdrawal) Act 2018, the European Union (Withdrawal Agreement) Act 2020 and the UK Internal Market Act 2020. 43 ‘Scotland’s

Brexit, Parliament, and the Courts – Towards a New Relationship? 221 to resolve – the possibility that legislative divergence would erode the existing UK single market. Both Scotland and Wales objected to the clause, initially refusing to agree to a legislative consent motion. This gave rise to heated discussion in Westminster alongside the proposal of separate Continuity Bills in Wales and Scotland. The clause was eventually amended, with section 12 of the European Union (Withdrawal) Act 2018 reversing the distribution of law-making competence, with the ability of Westminster ministers to enact Orders in Council to temporarily return a power to Westminster, with the consent (albeit that this includes a refusal to grant consent) of the Scottish Parliament or Senedd Cymru. This was accompanied by a memorandum on the establishment of common frameworks.49 These modifications were sufficient for the Senedd Cymru, and consent was given to the European Union (Withdrawal) Bill.50 The Attorney General’s reference of the Welsh Continuity Bill having been withdrawn, the Welsh Continuity Act came into force. The Act was repealed in November, following a series of discussions between the Welsh and the UK Governments concerning common frameworks.51 This political solution, however, was not chosen by Scotland, with the Scottish Parliament continuing to refuse consent to the European Union (Withdrawal) Bill and enacting the Scottish Continuity Bill, whose validity was referred to the Supreme Court by the Westminster Government. Although many of the challenges to the validity of the Bill failed, the challenge to section 17 of the Bill succeeded as it amounted to a modification of the European Union (Withdrawal) Act 2018 which, at the time of the potential enactment of the Scottish Continuity Bill, if not its passage, was included in the list of legislation that could not be modified by the Scottish Parliament. Scotland did still have the ability to enact future legislation in this area, which it duly did.52 There is nothing particularly problematic about the use of references in this manner. What it demonstrates, however, is the viability of the devolved legislatures using legislation either to place political pressure on the Westminster Government, in the hope of reaching a political solution when discussions have reached an impasse, or as a means of forcing a legal solution when a political solution cannot be achieved. This provides an imperfect means of resolving any disagreements as the balance of power in any legal dispute is tipped in favour of the Westminster Parliament. Whilst the devolved legislatures have legally limited competences, Westminster does not. And as was illustrated in the Scottish Continuity Bill Reference, Westminster can place limits on the competences of the devolved 49 Cabinet Office, ‘Intergovernmental Agreement on the European Union (Withdrawal) Bill and the Establishment of Common Frameworks’ assets.publishing.service.gov.uk/government/uploads/ system/uploads/attachment_data/file/702623/2018-04-24_UKG-DA_IGA_and_Memorandum.pdf (accessed 2 January 2022). 50 www.gov.uk/government/news/uk-and-welsh-governments-reach-agreement-on-eu-withdrawalbill (accessed 2 January 2022). 51 Law Derived from the European Union (Wales) Act 2018, s 22. 52 UK Withdrawal from the European Union (Continuity)(Scotland) Act 2021.

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legislatures without their consent. On the facts of the case, the European Union (Withdrawal) Act’s inclusion in the list of legislation that could not be modified by either the Scottish Parliament or the Senedd Cymru was in the Bill as introduced to Parliament. However, as remarked by Lord Reed, it is legally possible for the UK Government to react to the passage of a Bill in the Scottish Parliament by making a reference and then persuading the UK Parliament to amend the Scotland Act so as to render the Bill invalid.53

This would suggest that legal challenges may rarely succeed as a means of ensuring that devolved legislatures are able to fairly resolve disputes as to the relative competence of the devolved legislatures and Westminster, given that the balance of power remains with Westminster. Nevertheless, the use of devolution litigation in this manner has set a precedent, leading to further litigation which may prove more fruitful, although all of the challenges, to date, have been unsuccessful. A challenge was brought by, inter alia, prominent members of the DUP, questioning the legality of the Northern Ireland Protocol, which the Belfast High Court concluded was constitutional.54 The Welsh Government has initiated an action for judicial review concerning the UK Internal Markets Act 2020, in which the Scottish Government also intervened. Although the challenge was originally dismissed at the permission stage as academic,55 the Court of Appeal subsequently granted permission for the action for judicial review. This would suggest a pattern of using courts to resolve devolution issues where a political resolution of conflict between Westminster and the devolved legislatures or government has failed or has proven to be impossible. This is illustrated in particular by the judicial review of the UK Internal Market Act 2020. The 2020 Act arguably removes powers from the devolved legislatures.56 Some of these concerns were redressed through the government’s acceptance of proposed amendments in the House of Lords. However, most of these concerns were only partially resolved, and in a way regarded as unsatisfactory by the devolved governments. The Internal Market Act provides a legal means of ensuring market access to goods that can lawfully be sold in one component part of the UK to the whole UK market. This means that, even if Wales, for example, enacted provisions prohibiting the sale of single use plastics in Wales, these provisions could not prevent the sale in Wales of single use plastics that could be lawfully sold in England, Scotland, or Northern Ireland. These market access principles are combined with

53 Lord Reed, ‘Scotland’s Devolved Settlement and the Role of the Courts’ (London, 27 February 2019) www.supremecourt.uk/docs/speech-190227.pdf (accessed 2 January 2022) 17. 54 In the matter of the application of James Hugh McAllister/In the matter of the Protocol in Ireland/ Northern Ireland [2021] NIQB 64. 55 R (Counsel General for Wales) v the Secretary of State for Business Energy and Industrial Strategy [2021] EWHC 950 (Admin). 56 See Scottish Government, ‘After Brexit: The Internal Market Act and Devolution’, March 2021, www.gov.scot/publications/brexit-uk-internal-market-act-devolution/ (accessed 2 January 2022).

Brexit, Parliament, and the Courts – Towards a New Relationship? 223 the enactment of common frameworks, designed to provide agreed minimum standards. However, the original Bill failed to refer to these common frameworks. Whilst the Act does now recognise common frameworks, it does not ensure that common frameworks are exempt from the market access principles, thereby providing a legal protection of these agreed standards. Rather, the common frameworks are only exempt if the Secretary of State, at his discretion, enacts a regulation to add them to the list of specific exemptions. The Act also does now require devolved consent with regard to the exercise of ministerial powers to modify the Act’s provisions. However, the minister is only required to seek and not obtain consent. If consent is not given within a month, the minister may still enact the regulation provided he makes a statement to Parliament that consent has not been given. The Act demonstrates how political pressure placed on the Westminster Government when enacting legislation may only go so far to resolve a dispute between Westminster and the devolved governments. Moreover, it demonstrates how the Westminster Government can indirectly undermine political mechanisms designed to provide a collaborative solution to tensions between Westminster and the devolved governments. Although the common frameworks facilitate collaboration, this is effectively undermined if the Westminster Government has the ultimate power to decide whether to ensure higher standards in common frameworks are legally protected. It is perhaps unsurprising, therefore, that the devolved governments have turned to the courts to try and protect their interests. Devolution cases have also been raised outside of the scope of Brexit: for example, a legal challenge was brought to ask the Scottish court for a declarator that the Scottish Parliament had the power to enact legislation to hold a referendum on Scottish independence, which was dismissed as hypothetical.57 Most recently, the Attorney General for the UK and the Advocate General of Scotland – both of who are law officers of the UK Government – referred Bills from the Scottish Parliament to incorporate the UN Charter on the Rights of the Child (UNCRC) and the European Charter on Local Self-Government to the Supreme Court.58 Whilst recognising that it was within the competence of the Scottish Parliament to incorporate international treaties in Scotland, the challenge was to the means by which these Treaties had been incorporated. Specifically, the Acts required Scottish courts to interpret Scottish and Westminster legislation, so far as possible, in a manner that was compatible with these international Treaties. In addition, it empowered Scottish courts to issue ‘strike down declarators’ with regard to Scottish and Westminster legislation enacted prior to the legislation incorporating the UNCRC that was incompatible with that Treaty. A ‘strike down declarator’

57 Keatings

v The Advocate General and the Lord Advocate [2021] CSIH 25.

58 Reference by the Attorney General and the Advocate General of Scotland – United Nations Convention

on the Rights of the Child (Incorporation) (Scotland) Bill; Reference by the Attorney General and the Advocate General of Scotland – European Charter of Local Self-Government (Incorporation) (Scotland) Bill [2021] UKSC 42.

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meant that the legislation would no longer have legal effect. Scottish courts were also empowered to issue a declaration of incompatibility with regard to legislation enacted after the Scottish legislation incorporating the Treaties which contravened provisions in the Treaties. Any declaration of incompatibility would not affect the legal validity or continuing legal effect on legislation declared incompatible. The Supreme Court concluded that all of these provisions modified the Scotland Act 1998 and so were beyond the competence of the Scottish Parliament. Specifically, they modified section 28(7) of the Scotland Act as they placed a qualification on the power of the Westminster Parliament to enact legislation for Scotland. Westminster’s legislation would either be interpreted in Scotland differently from the intention of the Westminster Parliament, or would have no effect in Scotland, or would affect the ability of Westminster to legislate for Scotland by placing a political obligation on Westminster to modify legislation declared incompatible. The Supreme Court also concluded that a declaration of incompatibility would probably mean that administrative acts enacted by using powers in legislation that had been declared incompatible would be unlawful. This, alongside the requirement to report on how Westminster proposed to modify legislation declared unlawful placed conditions on Westminster’s ability to legislate for Scotland, modifying the Scotland Act 1998. This case arguably demonstrates a more controversial means of exerting political pressure. This is illustrated by a further provision of the Scottish Bill incorporating the UNCRC. Section 6 stated that it was unlawful for a public authority to act in a manner that was incompatible with the UNCRC. On the face of the Bill, this applied to ministers of the Westminster Parliament, even when acting in a matter that was reserved to Westminster.59 Arguments presented to the Supreme Court by the chief legal officer of the Scottish Government – the Lord Advocate – indicated that this was a deliberate policy choice. The Lord Advocate also argued that section 101 (2) of the Scotland Act 1998, which requires courts to interpret Acts of the Scottish Parliament so as to ensure their legality, could be used to interpret the broad legislative provision to avoid any possible illegality. In refusing to accept this argument, Lord Reed stated that there has been no attempt to draft section 6 of the Bill in such a way as to provide a clear and accessible statement of the law. On the contrary, there has been a decision to draft and enact a provision whose plain meaning does not accurately represent the law.60

If Lord Reed’s assessment is correct, this would suggest that devolved legislatures could enact legislation which they know would be beyond their competence or try to disguise this intention through vaguely worded provisions that are not an accurate reflection of the intention of the legislator. The devolved legislatures might legislate deliberately in this manner in order to encourage a challenge to that legislation from the Westminster Government. When the courts conclude 59 ibid, 60 ibid,

[59]. [77].

Brexit, Parliament, and the Courts – Towards a New Relationship? 225 that legislation is beyond the competence of the devolved legislature, this judgment could be used to encourage a public reaction that is favourable to the devolved Parliament and critical of the Westminster Parliament, particularly when the Bill declared beyond the competences of a devolved legislature aims to achieve an objective that is desirable to the majority of the electorate of the devolved legislature.61 Whilst it is hard to argue that this is a deliberate abuse of the courts – the legal challenges are not brought by the devolved legislatures but by the Westminster Government – it may nevertheless suggest a concerning possibility of manufacturing a legal challenge to score political points.

IV. When Being an MP Makes a Difference The Wightman litigation demonstrates three ways in which the fact that one of the applicants for judicial review is an MP appears to make a difference: when assessing whether an issue is unsuited for judicial review as academic or hypothetical; when determining standing; and when applying the principle of parliamentary privilege. However, this final factor does not always make a difference and is often used in combination with other features, particularly the constitutional importance of the case. It will be recalled that the Wightman litigation concerned a petition to request that the court refer a question to the Court of Justice of the European Union as to whether the Article 50 notification of the UK’s intention to leave the EU could be unilaterally revoked. The Lord Ordinary originally refused permission, noting that the matter was purely hypothetical or academic because the government had made it clear that it had no intention to revoke the Article 50 notification. This decision was successfully challenged in the Inner House and permission to bring the petition was granted.62 When assessing whether permission can be granted to bring a petition, the Scottish courts apply the test of whether there is a ‘real prospect of success’.63 Part of the reason for the rejection of the original petition was that it had not been presented in a manner in which the courts could identify a clear argument. Consequently, when hearing the appeal from the original decision to refuse permission to bring the case, the Inner House argued that it may have been possible for the Lord Ordinary to have refused permission ‘simply on the basis that the courts cannot, within a reasonable time, identify any point of possible substance to assess’.64 Nevertheless, the court was willing to take more time to assess whether there was an arguable case to answer, given both the constitutional importance

61 C Matchett ‘SNP accused of ‘playing nationalist games’ amid Supreme Court defeat over children’s rights’ www.scotsman.com/news/politics/snp-accused-of-playing-nationalist-games-amid-supremecourt-defeat-over-childrens-rights-3409047 (accessed 2 January 2022). 62 Wightman [2018] CSIH 18. 63 Court of Session Act 1988, s 27B(2)(b). 64 Wightman [2018] CSIH 18, [12].

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of the issue and because ‘the petition proceeds at the instance of members of the Scottish, UK and European Parliaments’.65 David Blair concludes that this is a move from a ‘quick look’ to a ‘good look’ approach,66 although this change may be restricted to judicial review cases and not those where public law issues are raised in other cases.67 In addition, the presence of MPs influenced how the court determined whether the issue raised had no prospect of success as it was purely academic or hypothetical. The government had argued that the challenge was purely academic or hypothetical given that the government’s policy was not to revoke the Article 50 notification, even if it had the power to do so. The original decision of the Outer House of the Court of Session was persuaded by this view, adding that the question of the potential ability to revoke the notification did not directly concern the determination of individual rights.68 Nor, at that time, was it necessary for MPs to know this information in order to properly perform their functions in Parliament. One of the main justifications for the reversal of that decision by the Inner House was the enactment of section 13 of the European Union (Withdrawal) Act 2018, which provided that the Withdrawal Agreement had to be agreed to in a vote in the House of Commons in order to be ratified. Knowing whether unilateral revocation of the Article 50 notification was legally possible was information that was relevant in aiding MPs when voting on a particular Withdrawal Agreement.69 The identification of the applicant for judicial review as an MP was also influential when determining standing, with the Outer House concluding that the petition was competent, ‘at least at the instance of an MP’.70 This suggests that, if Westminster MPs had not brought the petition, it might have been possible for the court to have refused the petition due to the lack of standing of the applicants. However, the fact that the petition was brought by MPs also influenced the Outer House to reject the petition as ‘it was not a matter for individual members to seek to enlist the assistance of the court for the purpose of conducting parliamentary business’.71 Moreover, ‘the court is not there to be used by one side or another to advance one side of a political debate’.72 What appears to have led to this specific reversal is the enactment of section 13, discussed above, and the conclusion by the Inner House that the courts would not be advising Parliament, but merely setting out the law. It was up to MPs to decide how to act on this information. Whilst it is true that the presence of an MP made a difference to the case, it is also important to recognise the exceptional circumstances surrounding the 65 ibid. 66 D Blair, ‘Constitutional Importance and Permission for Judicial review in the Court of Session: Wightman v Advocate General [2019] Public Law 9. 67 D Blair, ‘Mapping the Limits of Wightman: Abundance Investment Ltd v Scottish Ministers and Competence in Judicial Review’ (2020) 20 SLT 123. 68 Wightman [2018] CSOH 8. 69 Wightman [2018] CSIH 62, [27]. 70 ibid, [27]. 71 ibid, [31]. 72 ibid, [59].

Brexit, Parliament, and the Courts – Towards a New Relationship? 227 Wightman case and the role of legislation. It is not always the case that being an MP – or an elected representative – will help to provide standing in a case. In R (DSD, NBV and the Mayor of London) v The Parole Board, the London Mayor was not granted standing to challenge the decision of the Parole Board to release John Radford – formerly known as John Warboys.73 Whilst the Mayor had general duties regarding the prevention of crime, his powers did not extend to the decisions of the parole board. This contrasts with the situation in Wightman, where the specific legislative role of the MPs bringing the petition for judicial review bolstered their claim for standing.

V. A Move in the Right Direction? The previous section argued that litigation surrounding Brexit had been used to enhance parliamentary scrutiny, both generally and specifically. Moreover, this had been used to facilitate scrutiny of the Westminster Parliament over the Westminster Government and of the devolved legislatures and governments over the Westminster Government. In addition, we discussed examples of where the fact that an application or petition for judicial review was brought by an elected representative of Parliament may have added to arguments in favour of granting standing or permission to bring judicial review in what might otherwise have been a hypothetical case. When presented as a situation in which democratic scrutiny is enhanced, it appears difficult to argue that these new developments are anything other than a move in the right direction. However, particularly the second Miller decision and Wightman have faced stringent criticism, both in terms of the legal principles used by the courts in these cases and, more fundamentally, arguing that courts have transgressed their proper constitutional role by interfering in political decisions. In this chapter I will focus on the competing constitutional theories underpinning these criticisms. Critics of the case law focus on the extent to which, by deciding these cases, courts are straying from the proper sphere of their competences, essentially deciding political as opposed to legal issues.74 Far from promoting scrutiny, they argue that these decisions hinder political scrutiny, replacing it with legal scrutiny which undermines rather than promotes democracy. There are two main themes of this criticism. The first focuses on the balance of power between the executive and the legislature – referred to in some academic literature as the balance between Whitehall and Westminster.75 The argument in favour of the Miller and Wightman

73 [2018]

EWHC 694 (Admin). in particular, Ekins (n 4); Finnis (n 4) and Loughlin (n 4). 75 D Howarth, ‘Westminster versus Whitehall: What the Brexit Debate Revealed About an Unresolved Conflict at the Heart of the British Constitution’, in O Doyle, A McHarg and Jo Murkens (eds), The Brexit Challenge for Ireland and the United Kingdom: Constitutions Under Pressure (Cambridge, CUP, 2021) 217. 74 See,

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decisions focused on how these cases aided parliamentary scrutiny over the executive. The argument against is that this scrutiny is either not necessary, or better performed without the interference of the courts. The second theme focuses on the specific role of the courts in the UK Constitution. The recent report of the Independent Review of Administrative Law focused on three possible functions of judicial review: to protect individual rights; to facilitate good administration; and to determine disputes between institutions of the Constitution that cannot be resolved by political means.76 All of the litigation discussed in this chapter can be seen as an example of this third function of judicial review, where courts are not merely guardians of the rule of law, but also of the Constitution. This third function is controversial, with critics arguing that the role of courts is merely to protect rights of individuals and that courts have no role in determining disputes between institutions of the Constitution which should only be resolved through political means. The clearest recent account of the normative justification for these criticisms can be found in the writing of Timothy Endicott.77 Endicott argues that constitutional scholarship in the UK has consistently regarded the executive as a ‘stubborn stain’ – an unwelcome element of the UK Constitution whose powers should be subject to a series of political and legal checks. As such, there is no developed theory of executive power in the UK Constitution. Endicott argues that this approach misunderstands the importance of executive power in the Constitution. He argues that there is a need for an efficient and uniform branch of the executive. Without this, it is impossible for governmental decisions to be made; specifically for the executive to manage the police and the military, and to give effect to the decisions of the courts and of the legislature. His approach provides a distinct account of executive power as fundamental, being required to determine the public good. The functions of the executive are fluid, comprising of any function that is neither specifically legislative nor specifically adjudicative. More importantly, Endicott argues that this distribution of powers is justified as the executive is configured for the responsible exercise of power, particularly as regards political mechanisms which ensure that the executive acts responsibly. He argues that the executive is the most democratic institution in the Constitution. It faces checks on its powers from the political party from which the executive is drawn, from the opposition in the House of Commons and ultimately from the electorate in a general election. As regards the checks from political parties, governments are run by the Prime Minister and a cabinet. The principle of collective ministerial responsibility facilitates free deliberation in cabinet to determine the common good. Collective ministerial responsibility also ensures that, once a

76 Independent Review of Administrative Law, 34, assets.publishing.service.gov.uk/government/ uploads/system/uploads/attachment_data/file/970797/IRAL-report.pdf (accessed 2 January 2022). 77 T Endicott, ‘ The Stubborn Stain Theory of Executive Power: From Magna Carta to Miller’ (Policy Exchange 2019) policyexchange.org.uk/wp-content/uploads/2017/09/The-Stubborn-Stain-Theoryof-Executive-Power.pdf (accessed 2 January 2022).

Brexit, Parliament, and the Courts – Towards a New Relationship? 229 policy is formed, it has the backing of a unified cabinet enabling the government to steer these policy choices through Parliament. When policy choices are made that are not in line with the wishes of the party, the party may rebel in the Commons, making it harder for the government to enact legislation. Ultimately, dissatisfaction from a political party may lead to a forced resignation or the removal of a Prime Minister as leader of a political party. The executive is also subject to the control of an official opposition in the House of Commons, with Standing Orders providing for specific times for questioning the Prime Minister and ministers in Parliament, as well as the allocation of time in debates, opposition days to determine the content of a debate, and the ability to timetable a vote of no confidence in the government. The vote of no confidence is the key means through which the government is held to account. A government can only have power to the extent that it enjoys the confidence of the Commons. A loss of a vote of confidence normally leads to a general election where the government is held to account by the electorate.78 Whilst it can be argued that these checks may be weak when the government has a large majority, Endicott argues that this merely illustrates that these checks depend on the ability of the government to obtain support for its policies from the people. If we place the executive at the centre of the Constitution, then it follows that both of the Miller decisions and Wightman are cases which undermine the UK Constitution. We argued above that these decisions provided a possible means of furthering democratic scrutiny, specifically empowering the legislature to check actions of the executive. Both Miller decisions favour an assessment of the legislature and not the executive as the more important partner in the Constitution, drawing specifically on the democratic credentials of the legislature. It is for this reason, for example, that both restrict the scope of prerogative powers, recognising that they are restricted by the common law and cannot modify domestic law or frustrate legislation. Moreover, this explains why the majority of the Supreme Court in the first Miller decision considered that important constitutional change required the approval of the legislature and could not be made by ministerial decision alone. It also justifies the conclusion of the Supreme Court in the second Miller decision that both parliamentary sovereignty and parliamentary accountability meant that the prerogative power of prorogation could not be legally unlimited. Wightman made it clear that, even if the government was determined not to revoke the Article 50 notification, they were subject to Parliament who could legislate to reverse the decision of the government. In addition, it permitted

78 The automatic connection between the loss of a vote of confidence and a general election arose due to the Fixed-term Parliaments Act 2011. First, this Act proscribed a specific formula for a vote of confidence that would trigger a general election, giving rise to the possibility that the loss of a differently worded vote of confidence would not trigger a general election. Second, it provided for the possibility that a vote of no confidence would not trigger a general election if, within 14 days, there had been a vote of confidence in a government. This Act will be repealed by the Dissolution and Calling of Parliament Bill 2021.

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MPs to obtain information to help them to exercise a legislatively mandated parliamentary vote. If we accept Endicott’s account of the Constitution, we can see why these aspects of both Miller decisions and Wightman are criticised. Endicott places the executive and not the legislature at the centre of the Constitution. This questions the application of the Supreme Court’s statement that important constitutional changes cannot be taken by ministers alone. If the government is the most important and most democratically accountable institution of the Constitution, it should be able to make any important decision of public policy, including one that modifies constitutional principles. It also explains the specific criticisms of the second Miller decision. If there are controls over prorogation, they stem from political controls from the government’s party, from the opposition and, ultimately from the electorate. If the government’s party or opposition are unhappy, an early announcement of the decision to prorogue Parliament provides the opportunity, particularly for the opposition, to table a vote of no confidence. However, it is to be noted that there is no legal requirement to make such an announcement, even though this did occur in 2019. As regards Wightman, the criticism is that it was for the government and Parliament to determine what information was required for MPs to be able to exercise a parliamentary vote. Moreover, to allow one individual to usurp this by granting standing more easily to an MP, as well as being more willing to examine whether the challenge raised constitutionally important issues, undermined political accountability.79 More fundamentally, the Miller cases and Wightman are criticised as examples of where the court transgressed its proper adjudicative role. Courts were no longer determining individual rights but were instead assessing disputes between institutions of the Constitution.80 This raises the question as to why the devolution cases were not subject to the same criticism. There are two possible answers. First, these challenges are provided for in legislation, and, as the Welsh Government’s challenge demonstrates, may be difficult to initiate outside of this legislative structure. Second, the balance of power in these devolution cases is tipped in favour of the Westminster Government, preserving a strong government. The UK Government can initiate legislation to regulate a matter that has been devolved and to alter the devolution settlement. Although this is subject to the Sewel convention, as a convention, this cannot be legally enforced. Even though litigation may add to political arguments to dissuade the Westminster Government from pursuing a policy objective, this pressure would only succeed if the devolved legislatures or governments were able to convince either the opposition, back benchers, or the government to modify a UK Bill. The litigation, therefore, does not interfere with the normal means of political accountability, nor upset the balance of power between Westminster and the devolved governments.

79 J

Laws, The Constitutional Balance (Oxford, Hart Publishing, 2021). (n 4); Ekins (n 4) Finnis (n 4) and Loughlin (n 4).

80 Tierney

Brexit, Parliament, and the Courts – Towards a New Relationship? 231 Despite this criticism, I would argue that the Brexit litigation is not only justified, but also necessary in the UK Constitution. This is because it facilitates balanced constitutionalism. In particular, given the way in which the political systems of accountability are tipped in favour of the executive, there is a need for legal principles to provide a counterbalance by regarding the legislature and not the executive as the senior partner of the Constitution. In addition, I argue that courts should play a role as guardians of the Constitution in addition to their role as guardians of the law. First, my account differs from that of Endicott as it is based on an alternative account of the separation of powers. Endicott focuses on the distribution of powers between the institutions of the Constitution, arguing that the executive should be given a broad range of functions, save only that specific legislative or adjudicative functions should be distributed to the legislature or the judiciary respectively. My theory focuses on the need to ensure there are effective check and balances in the UK Constitution. The standing orders governing the House of Commons tip the balance of power in favour of the executive. This is particularly true of standing order No 14, which prioritises the business of the government. The government is able to propose business motions and programme motions for legislation, which provides it with the opportunity to fast-track legislation through Parliament, as well as to prioritise the debate of particular legislative provisions or amendments, whilst downgrading other debates or amendments, such that there is insufficient time for them to be debated. Party discipline, combined by the first-past-the-post electoral system means that the executive can often rely on having sufficient votes to push legislation through Parliament, giving rise to Lord Hailsham’s infamous description of the UK Constitution as an ‘elective dictatorship’.81 I argue that it is dangerous for a constitutional system to be based purely on political checks in this manner. Specifically, there is a danger that such a system becomes vulnerable to populism.82 Consequently, it is important for legal principles to view the Constitution as one where the legislature is seen as the dominant institution of the Constitution, in order to provide a mechanism that may counterbalance the practical dominance of the executive in the political sphere. This is illustrated in the Miller and the Wightman litigation. Both litigations enhanced parliamentary scrutiny, counterbalancing the distribution of political power which was tipped in favour of the executive. Moreover, in the second Miller decision, the courts intervened to resolve these issues when, realistically, there was no political means that could be used to resolve a dispute between the executive and the legislature and no ability for the legislature to protect its constitutional role. There is no legal or political obligation placed on the government to announce a future prorogation of Parliament. Nor do the Standing Orders of the House of

81 Lord 82 AL

Hailsham, ‘Elective Dictatorship’, Dimbleby Lecture, 1976. Young, ‘Populism and the UK Constitution’ (2018) 71 Current Legal Problems 17.

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Commons provide for a compulsory debate on the timing or length of prorogation. Although the prorogation had been announced earlier in 2019, the circumstances of 2019 were unique. The timing of the prorogation was also a means of limiting parliamentary discussion of Brexit, potentially giving rise to a default policy outcome on Brexit that was not acceptable to the majority of MPs in the House of Commons. It is perhaps for this reason that the Commons chose to use the time available to them to enact the European Union (Withdrawal)(No2) Act 2019 rather than seeking a vote of no confidence.83 Second, I argue that a further consequence of the principle of parliamentary sovereignty is that there is no settled distribution of powers between the institutions of the Constitution. This explains why the UK does not have a clear account of the nature of executive powers. Instead, the distribution of powers evolves over time, as new political and legal settlements are reached between the institutions of the Constitution. The Brexit litigation can be seen as a further element of this evolution, similar to key constitutional cases in the seventeenth century, which also examined prerogative powers.84 I argue that it is better for changes in the distribution of powers between institutions of the Constitution to be shaped by legal principles as well as by political disputes. Whilst the latter are, normally, resolved in terms of political power, subject to the democratic check of the electorate, the former are based on principles of good constitutional government. Both are required to ensure the Constitution evolves in a legitimate manner, which may facilitate a constitutional evolution that draws on constitutional principles and democratic deliberation, and where the practical dominance of the executive is checked by legal decisions which aim to prioritise the role of the legislature. This explains why courts should determine disputes between institutions of the Constitution, being guardians of the Constitution as well as of the rule of law. Parliamentary sovereignty also ensures a balance between political and legal influences, placing a check over the role of the courts. Acts of the Westminster Parliament are the highest form of law in the UK. Courts can develop principles of the common law, including interpreting legislation so as to comply with these principles in order to protect the rule of law. But if Parliament believes that the courts have gone too far, they can overturn a legal decision.85 The government may propose legislation to reverse decisions of the courts, or to propose more general changes to the Constitution. This can be illustrated by the Independent Review for Administrative law and the government’s response to that review, and the Judicial Review and Courts Bill 2021, which, inter alia, reverses a judicial decision, altering the extent to which courts can review decisions of the Upper

83 Young

(n 5). eg, The Case of Proclamations (1610) 2 Co Rep 74; (1610) 77 ER 1352. 85 AL Young, ‘ The Relationship between Parliament, the Executive and the Judiciary’, in J Jowell and C O’Cinneide (eds), The Changing Constitution (Oxford, OUP, 2019) 325. 84 See,

Brexit, Parliament, and the Courts – Towards a New Relationship? 233 Tribunal to refuse to hear an appeal from a decision of the First-tier Tribunal.86 A further illustration can be found in the provisions of the Dissolution and Calling of Parliament Bill 2021, which seeks to ensure that courts cannot review a decision to use the revived power of the Prime Minister to request that the Monarch dissolve Parliament.87 A similar justification can be provided for the devolution litigation. In the examples discussed above, litigation was used in combination with political mechanisms designed to resolve tensions between the devolved and the Westminster governments. Litigation and the enactment of legislation was used in combination with, and in order to exacerbate, political mechanisms to ensure that the wishes of the devolved governments were considered by Westminster. When this fails, litigation can be held in reserve to determine whether Westminster legislation has unconstitutionally undermined the devolution settlement – though it remains to be seen whether any challenge will be successful given the sovereignty of the Westminster Parliament. Again, this aims to supplement political means of resolving tension. However, here constitutional balance is providing a different function. When determining disputes between the executive and the legislature, courts are operating in a constitutional settlement where the division of power between these institutions is not settled by a constitutional document. If this distribution of power were purely determined by politics, this may create instability, as the distribution of power would be dependent upon the strength of the majority of a particular government, which can fluctuate at a rapid rate. In addition, it may mean that political power was used to determine the principles designed to check that power, without the input of constitutional principles. By focusing on the legislature as having priority over the executive and relying on background constitutional principles, courts can counterbalance a potential dominance of the executive and of politics in determining the balance of power between the executive and the legislature. But the courts’ power to do so is also ultimately checked by the actions of the legislature. These potential checks and balances facilitate a more legitimate distribution of power between the institutions of the Constitution than one determined purely by political power or by constitutional principles developed by a non-democratically accountable institution. The distribution of powers between the devolved legislatures and governments and Westminster has been partially settled by legislation. The imbalance of power between the two institutions arises from the fact that the UK is a devolved and not a federal state. Devolution tips the balance of power in favour of Westminster. This is reflected both through political and legal checks. The use of litigation alongside political checks may only serve to facilitate the constitutional

86 Judicial Review and Courts Bill 2021, clause 2. This reverses the decision of the Supreme Court in R (Cart) v Upper Tribunal [2011] UKSC 28, [2012] 1 AC 663. 87 Dissolution and Calling of Parliament Bill 2021, Clause 3.

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balance already established in legislation. However, it may also serve as a means of raising concerns as to whether this is the most suitable constitutional balance, perhaps helping to stimulate further debate to renegotiate the devolution settlement. This may suggest that, if changes are needed, these are required to ensure political mechanisms of resolving disputes are prioritised over legal mechanisms.

VI. Taking (Back) Control? I argued above that the Brexit litigation was generally justified through providing for a more balanced system of checks and balances. Nevertheless, this does not mean that Parliament should not react to modify political mechanisms designed to resolve conflicts between the executive and the legislature or between Westminster and the devolved governments. This is particularly true as regards the latter tension, where both the legal and political mechanisms of resolving conflicts tip the balance of power in favour of Westminster. In addition, the use of litigation is more justified either when political mechanisms are unavailable, unsuitable, or unable to resolve a dispute amongst institutions of the Constitution. It is less justified when there is suspicion that a devolved legislature is deliberately acting beyond its competence in order to encourage a reaction from the Westminster Government. Improving political means of resolving tensions between institutions of the Constitution, therefore, could also help to facilitate a better balance between the executive and the legislature. However, the extent to which this is possible depends on the goodwill of all sides to work collaboratively, rather than merely asserting their relative authority to resolve these tensions. The analysis above indicates three particular problems with current political mechanisms. First, there is a perceived lack of transparency, such that information is not available to ensure effective accountability (see chapter ten on this point) or to facilitate good relations between Westminster and the devolved governments (on this, see chapter fourteen). Second, there is a perceived imbalance between the powers of the executive and the legislature, and between the Westminster and devolved governments, the balance of power being tipped in favour of the Westminster Government. Third, political dispute resolution mechanisms also appear to be tipped in favour of the Westminster Government. Whilst it may be possible to improve political accountability and transparency, and there is some evidence of potential future changes in this direction, more radical reforms may be required to redress the difficulties arising from political dispute resolution mechanisms. Ultimately, we either need to accept the use of litigation when political mechanisms fail to resolve tensions or legislate to provide for legal mechanisms to resolve disputes between institutions of the Constitution. It is hard to see how the latter can be effectively achieved without undermining parliamentary sovereignty or moving from a devolved to a federal structure in the UK.

Brexit, Parliament, and the Courts – Towards a New Relationship? 235 The perception of a lack of transparency indirectly influenced the Wightman litigation. Would the legal challenge have been brought had the UK Government been willing to seek an answer to whether it was legally possible to unilaterally withdraw the Article 50 notification? Similarly, the devolution litigation might not have occurred if there had been more transparency, though this would have also needed to be coupled with a greater willingness to engage with the concerns of the devolved governments. The Miller litigation, however, was influenced more by a lack of certainty as to the scope of prerogative powers, than a general lack of transparency. Greater transparency and clarity may provide a means of minimising conflicts arising between the executive and the legislature or between the Westminster and the devolved governments. The Ministerial Code and the Cabinet Manual help to provide some clarity, as do the Standing Orders of Parliament. Nevertheless, the Cabinet Manual has not been renewed since 2011, meaning that some of its provisions are out of date. Updating the Cabinet Manual may help to minimise the use of litigation when political mechanisms have failed. However, whether this is a move in the right direction will depend upon the extent to which a new version reflects currently accepted constitutional principles and is enacted through a process which includes a role for Parliament alongside the executive.88 Relationships between Westminster and the devolved governments are also criticised for their lack of transparency, both in regards to the work of the Joint Ministerial Committee and the process of establishing common frameworks.89 The current Joint Review of Intergovernmental Relations is making progress in this regard, including the creation of a new webpage, on which quarterly reports will be published, alongside annual reports to the Westminster Parliament and the devolved legislatures.90 The most recent iteration of the Principles of Intergovernmental Relations also includes commitments to the sharing of information, as well as the establishment of Inter-Ministerial Groups and an Inter-Ministerial Standing Committee, both of which are encouraged to send communiqués to facilitate greater transparency and parliamentary accountability.91 Whilst greater transparency is desirable, it is not sufficient. The main incentive for the use of legal mechanisms to resolve disputes between the institutions of government is the perceived imbalance of power in favour of the Westminster executive. The general imbalance of power was discussed in the previous sections. It is perhaps unsurprising that this is also replicated in political dispute resolution mechanisms. Although there are mechanisms for regulating the conduct of 88 House of Lords’ Select Committee on the Constitution, Revision of the Cabinet Manual 6th report of session 2021–2022, HL Paper 34. 89 House of Lords Common Frameworks Scrutiny Committee, Common Frameworks: building a cooperative Union’ First report of 2019–21, HL 259. 90 See the statement of Michael Gove, HC Deb vol 683, cols 29–30WS (10 November 2020). 91 Progress Update on the Review of Intergovernmental Relations, assets.publishing.service.gov.uk/ government/uploads/system/uploads/attachment_data/file/972983/Progress_update_on_the_review_ of_intergovernmental_relations.pdf (accessed 2 January 2022).

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individual ministers,92 and MPs (see chapter two in this volume), the only real channels for resolving disputes as to the distribution of powers between the Westminster legislature and the executive is through the use of debates and votes, governed by the Standing Orders of the House of Commons. The interpretation of the Standing Orders rests with the Speaker, which may provide some element of neutrality. However, the content of the Standing Orders can be modified by a simple majority vote in the House of Commons, meaning that an executive government with a large parliamentary majority can easily modify the Standing Orders.93 This imbalance of power is even more evident when applied to disputes that arise as to the distribution of power between Westminster and the devolved governments. Under the current Joint Ministerial Committee (JMC) structure, disputes are first resolved through the normal administrative channels and can be referred to the JMC secretariat when there is significant disagreement. The Secretariat organises a meeting of officials to resolve the dispute, composed of the relevant ministers of Westminster and the devolved governments in addition to the relevant Secretaries of State.94 There is no option to use a neutral third party to resolve a dispute. The Joint Review of Intergovernmental relations aims to establish a three-tier structure: inter-ministerial groups, composed of portfolio ministers; the Inter-Ministerial Standing Committee, designed to discuss cross-cutting or strategic issues, and a UK Government and Devolved Administrations Council (whose existence and composition has still not been agreed upon). It would add an ability to engage a third party to resolve a dispute, should this take place at the level of the Inter-Ministerial Standing Committee. Similar concerns exist as regards the process for resolving disputes that arise through the common frameworks process, where there is concern that the whole process is predicated on the UK Government having the final word. It is hoped that the similar process of resolving disputes through the engagement of a third party could also be used for disputes that arise as regards the establishment of common frameworks.95 Whilst the ability to engage an independent third party is a move in the right direction, it still has to be recognised that the legal structure of devolution tips the balance of power in favour of Westminster, which may disincentivise the political resolution of a dispute. Although there are some changes that may help facilitate the political resolution of disputes between institutions of the Constitution, there is nevertheless a deeper constitutional issue that needs to be discussed. All of these mechanisms rely on either self-enforcement, or the establishment of a set of principles that facilitate institutions of the Constitution to act in a manner that is respectful of 92 Cabinet

Office, Ministerial Code (August 2019). eg, the recent recission of English Votes for English Laws, HC Deb 13 July 2021, cols 306–326. 94 ‘Protocol for Avoidance and Resolution of Disputes’, assets.publishing.service.gov.uk/government/ uploads/system/uploads/attachment_data/file/62121/avoidance-resolution.pdf (accessed 2 January 2022). 95 House of Lords Common Frameworks Scrutiny Committee (n 80) 114–120. 93 See,

Brexit, Parliament, and the Courts – Towards a New Relationship? 237 others, facilitating collaboration. However, this requires those subject to these mechanisms to act in a manner that respects good principles, rather than relying on a system of third-party enforcement of principles. Yet, arguably, recent events demonstrate that actors who are members of these constitutional institutions may not act in this manner.96 If this is true, then we are left with a choice. Either to embrace the development of legal mechanisms to supplement instances when political mechanisms are either non-existent or fail, or to instigate more radical reforms of the UK political process. As regards the relationship between the legislature and the executive, this would require a reshaping of the nature of the Westminster Parliament to facilitate more deliberation and collaboration as opposed to adversarial democracy. As regards devolution, this would require the placing of the Sewel Convention on a legally enforceable basis, thereby undermining parliamentary sovereignty by placing legal limits on the powers of the Westminster Parliament.

VII. Conclusion This chapter has argued that the litigation surrounding Brexit has altered the relationship between Parliament, the executive, and the courts. However, this may be better understood as an example of litigation that arises rarely, when courts are required to resolve disputes between institutions of the Constitution that cannot be resolved through political means. The courts are not usurping their constitutional role in deciding these cases. Rather, the courts are provided a necessary check, aiming to counterbalance the dominance of the executive in politics with the dominance of the legislature in law, as well as ensuring a legal enforcement of the constitutional settlement between Westminster and the devolved legislatures and governments set out in legislation underpinning devolution. In a constitution based on parliamentary sovereignty, this check is needed, particularly as concerns the distribution of power between the executive and the legislature. It forms part of the means of determining the relative balance between the institutions of the Constitution in a more legitimate manner than if this were resolved by political means alone, drawing on constitutional principle alongside input from a democratically accountable institution. Despite the need for such litigation, the chapter has nevertheless argued that there are some changes to parliamentary procedures that could help to minimise the use of litigation and encourage greater co-operation and conciliation in the resolution of conflicts between the institutions of the Constitution. These changes are particularly needed as regards disputes between the Westminster and

96 A Blick and P Hennessy, Good Chaps no More? Safeguarding the Constitution in Stressful Times (The Constitution Society 2019) consoc.org.uk/wp-content/uploads/2019/11/FINAL-Blick-Henness y-Good-Chaps-No-More.pdf (accessed 2 January 2022).

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the devolved governments. Here, both the political and legal means of resolving disputes tip the balance of power in favour of the Westminster Government, given that the UK is a devolved and not a federal union. Although it may be the case that more will be done in the near future to encourage more cooperation through political channels, particularly the potential use of impartial third parties to resolve disputes between the devolved and the Westminster Governments, this may be insufficient to repair a growing lack of trust, illustrated most clearly through the enactment of the UK Internal Market Act 2020 and the subsequent legal challenges. The UK may be faced with a stark choice in the future between developing greater political means for collaboration and cooperation or moving to a legally-enforceable, federal structure in order to save the union.

10 Parliament and Brexit: Scrutiny under Pressure ALEXANDER HORNE AND JACK SIMSON CAIRD1

I. Introduction This chapter analyses Parliament’s role in scrutinising the UK Government’s approach to Brexit. It complements chapter nine by Young in the volume, by exploring the role that Parliament played during the four-year Brexit process, analysing what can be learned about the nature of Parliament’s role within our constitutional arrangements. Rather than trying to present a comprehensive narrative of the period, we shall highlight a number of key episodes which reflect the inflection points, where Parliament had an opportunity to influence events. The first was the crucial period before Article 50 was triggered on 29 March 2017. Then we consider Parliament’s approach to scrutinising the European Union (Withdrawal) Act 2018. Further opportunities presented themselves during the votes on the Withdrawal Agreement (the ‘meaningful votes’);2 the passage of domestic legislation implementing the Withdrawal Agreement and the Trade and Co-operation Agreement (TCA); and the passage of the Internal Market Act 2020. Parliamentary scrutiny can sometimes be presented as the primary function of the UK’s legislature. The Brexit process demonstrates that there is significant disagreement over what parliamentary scrutiny should and should not involve.3 There was and is no clear consensus over the extent to which scrutiny should be able

1 Alexander Horne is Counsel at Hackett & Dabbs LLP and Visiting Professor at Durham University. He was previously Legal Adviser to the House of Lords European Union Committee and the International Agreements Committee. Dr Jack Simson Caird is Deputy Counsel to the House of Commons Justice Committee. This chapter is written in their personal capacities. 2 There were three votes held under s 13 of the European Union Act 2018 in the House of Commons to approve the Withdrawal Agreement on 15 January 2019 (202 ayes and 432 noes), 12 March 2019 (242 ayes and 391 noes) and 29 March 2019 (286 ayes and 344 noes). 3 See, eg, L Thompson and B Yong, ‘What Do We Mean by Parliamentary Scrutiny of Brexit? A View from the House of Commons’, in T Christiansen and D Fromage (eds), Brexit and Democracy: The Role of Parliaments and Citizens (Cham, Springer, 2019).

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to inhibit the work of the government of the day. At a basic level, parliamentary scrutiny is the process by which parliamentarians utilise the parliamentary process in order to hold the government to account for its decisions and its policies. In practice, that can range from written parliamentary questions to amendments to government Bills and from oral questions to a minister to a select committee report.4 The purpose of scrutiny can range from extracting information from the government to seeking to change policy or the law. Ultimately, parliamentary scrutiny is fundamentally political in character, its nature and purpose defined by the political motivations of the parliamentary actor in question. In the immediate aftermath of the referendum, it quickly became clear that Parliament’s existing scrutiny arrangements would need to be adapted in order to scrutinise the Brexit process. However, attempts to build a consensus around the role that Parliament should play quickly foundered over the competing political motivations of the various protagonists. The ensuing debates revealed fundamental divisions over the role that Parliament, and parliamentary scrutiny, should play within the UK’s constitutional framework.

II. Triggering Article 50 – Parliament’s Role Prior to the referendum on leaving the EU, there was very little debate on the role that Parliament should play if a majority decided to leave. However, after the referendum result was announced, attention quickly turned to the legal and constitutional process for leaving the EU, and the role that Parliament should play. Whereas the European Parliament had a clearly defined role under both Article 50 of the Treaty on European Union (hereafter Article 50) and Article 218 of the Treaty on the Functioning of the European Union, the Westminster Parliament’s role was less clear. Furthermore, whereas the European Parliament had recent experience of scrutinising negotiations of agreements with third countries, the Westminster Parliament had no dedicated machinery to supervise the process (for more on treaties, see chapter seven in this volume). In October 2016, the then Prime Minister, Theresa May, delivered a speech on Brexit indicating that the government would trigger Article 50 by the end of March the following year.5 In terms of Parliament’s role, the Prime Minister said that a major Bill, styled ‘the Great Repeal Bill’, would be introduced in the next parliamentary session. This speech made it clear that the government intended to press on, and that Parliament’s principal role would be to scrutinise the Bill that would repeal the European Communities Act 1972. This triggered in many the realisation that Parliament, under the UK’s existing constitutional arrangements, would not a play a significant role in the process of triggering Article 50.

4A

Horne, ‘The Limits of Parliamentary Scrutiny’ Prospect Magazine (17 July 2021). May’s keynote speech at Tory conference in full, The Independent (5 October 2016).

5 Theresa

Parliament and Brexit: Scrutiny under Pressure 241 The Miller litigation commenced shortly thereafter and the first judgment was delivered by the Divisional Court on 3 November 2016.6 The litigation was prompted by a blog post, written by three constitutional lawyers, which argued that triggering Article 50 required prior legislative authority to be conferred on the government by Parliament, because the European Communities Act 1972 had displaced the prerogative power of treaty-making.7 The judgment of the Divisional Court went against the government and triggered the infamous Daily Mail headline describing the judges as ‘Enemies of the People’.8 Parliament’s role in the Brexit process was becoming the focal point of the public debate on Brexit. In the Commons, the official opposition were also beginning to raise questions about Parliament’s role in the Brexit process. On 10 October 2016, Sir Keir Starmer QC MP, then the Shadow Minister for Exiting the European Union, said in response to the announcement of the Great Repeal Bill: ‘we are having a conversation and debate now about what will happen at the very end of the process instead of what is happening at the beginning of the process’.9 David Davis MP, Secretary of State for Exiting the European Union, responded by pointing out that triggering Article 50 was a prerogative power and that in relation to the broader issue of Parliament’s role it was going to be business as usual, with statements, debates and a new departmental select committee to oversee the work of the Department for Exiting the EU (hereafter ‘DexEU’).10 On 12 October 2016, the opposition held a debate titled ‘Parliamentary Scrutiny of Leaving the EU’ on the floor of the House of Commons. Opening the debate, Keir Starmer said: ‘Unless Parliament has a meaningful role in shaping the terms of Brexit between now and then – a maximum period of just five-anda-half months – it will be too late.’11 During the rest of the debate, there were a number of interventions from backbenchers that suggested there was potential for a cross-party consensus on the need for Parliament to play a more significant role before the negotiations began. Starmer argued that the House of Commons should be able to have a vote, and make a decision, on the government’s negotiating objectives before Article 50 was triggered. The debate also highlighted that, for a number of pro-Brexit Members, the opposition’s arguments for a greater role for Parliament in the Brexit process were actually perceived to be arguments to enable Brexit to be softened or even reversed.12

6 R (on the application of Miller) v Secretary of State for Exiting the European Union and others [2016] EWHC 2768 (Admin). 7 N Barber, T Hickman and J King, ‘Pulling the Article 50 ‘ Trigger: Parliament’s Indispensable Role’ (UK Constitutional Law Blog, 27 June 2016) ukconstitutionallaw.org/2016/06/27/nick-barbertom-hickman-and-jeff-king-pulling-the-article-50-trigger-parliaments-indispensable-role/ (accessed 30 November 2021). 8 J Slack ‘Enemies of the People’, Daily Mail (4 November 2016). 9 HC Deb 10 October 2016, col 42. 10 ibid, col 43. 11 HC Deb 12 October, col 316. 12 ibid, col 316–415.

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A. The Establishment of the Exiting the European Union Committee Arguably the House of Commons’ principal institutional response to the Brexit process was the establishment of the Exiting the European Union Committee to scrutinise the work of the newly created DexEU. The Committee held its first meeting in November 2016, six months after the referendum. The Committee was unusually large, composed of 21 members, but otherwise had the same formal role as other departmental select committees. The Committee did not play a coordinating role on Brexit, and almost every House of Commons select committee launched a Brexit inquiry in 2016 and 2017. Twenty-eight Commons select committees held 474 public evidence sessions on Brexit between 2016 and the end of the transition period, which represented 18 per cent of all sessions held in that period.13 The Exiting the European Union Committee’s first report, published in January 2017, drew attention to concerns over the role that Parliament would play in the Brexit process.14 The Committee stressed that the government should publish its negotiating plan in good time, and that the government should schedule debates on the floor of the House before Article 50 was triggered.15 The Committee also noted that the Secretary of State for Exiting the EU had committed to ensure that the UK Parliament was as ‘well-informed throughout the negotiation process’ as the European Parliament would be.16 A notable feature of the first report was that there were a number of divisions in the process of agreeing the report, highlighting the fact that consensus over the role that Parliament would play in the scrutiny process would be extremely difficult to achieve.17

B. The Supreme Court’s Judgment in Miller Having lost at first instance in Miller, the government then appealed to the Supreme Court. On 24 January 2017, the Supreme Court ruled, by an 8-3 majority, that legislation was required to trigger Article 50 of the Treaty on European Union.18 This was a significant constitutional development, but it was unclear how

13 H Begum, S Fella and P Loft, Select Committee activity on Brexit, 2016–2020, (House of Commons Library Briefing Number 9278, 13 July 2021). 14 Exiting the European Union Committee, The Process for Exiting the European Union and the Government’s Negotiating Objectives (HC 2016–17, 815). See also House of Lords European Union Committee, Scrutinising Brexit: the Role of Parliament (HL 2016–17, 33). 15 Exiting the European Union Committee, (n 14). 16 Letter from the Secretary of State to the Chair of the Committee, 31 October 2016. 17 See P Lynch and R Whitaker ‘Select Committees and Brexit: Parliamentary Influence in a Divisive Policy Area’ (2019) 72(4) Parliamentary Affairs 923. 18 R (on the application of Miller) v Secretary of State for Exiting the European Union and others [2017] UKSC 5.

Parliament and Brexit: Scrutiny under Pressure 243 the judgment would affect Parliament’s role in the Brexit process beyond requiring an Act of Parliament to be enacted prior to notification. In the debate in the House of Commons on 24 January, the day that the Supreme Court’s judgment was announced, Starmer said that: ‘the Prime Minister was wrong to have tried to sideline Parliament’.19 He added that the Supreme Court was silent on the form of the legislation needed and argued that it ‘would be wrong for the government to try to minimise the role of Parliament, or to seek to try to avoid amendments’.20 Professor Jeff King, one of the co-authors of the blog post that had led to Miller argued, in a post published on 24 January 2017, that the Bill granting the government the power to trigger Article 50 should include provision for ‘a scheme of consultation’ that would mean that the government had to get parliamentary approval on what information on the negotiations would be supplied to the Commons before formal negotiations began.21

C. The Introduction of the European Union (Notification of Withdrawal) Bill Two days after the Supreme Court’s judgment, on 26 January 2017, the government introduced the European Union (Notification of Withdrawal) Bill.22 The Bill was tightly worded and contained only two clauses. It proposed to give the Prime Minister the power to notify the European Council of the UK’s intention to withdraw from the EU under the terms of Article 50. The Bill passed at Second Reading in the Commons, on 1 February 2017, by 498 votes to 114.23 A solitary Conservative MP (Ken Clarke MP, QC) voted against. No amendments were subsequently passed in the Commons (with many proposed amendments considered to be out of scope given the limited ambit of the legislation). The Bill was the subject of two successful amendments in the House of Lords. Notably, it was amended to include a provision to guarantee the residence rights of EU and EEA citizens present in the UK. A second amendment introduced a requirement for a ‘meaningful vote’, referring to a vote with legal effect on the Withdrawal Agreement. Although the government had conceded the principle of a Commons vote,24 the Lords introduced a new clause, to the effect that parliamentary assent 19 HC

Deb 24 January 2017, col 163. vol 620, col 163. 21 J King, ‘What Next? Legislative Authority for Triggering Article 50’ UK Constitutional Law Blog (8 November 2016) ukconstitutionallaw.org/2017/01/24/jeff-king-what-next-legislative-authority-fortriggering-article-50-2/ (accessed 2 January 2022). 22 European Union (Notification of Withdrawal) Bill (HC Bill 132 2016–17). 23 HC Deb 1 February 2017, col 1132. 24 For more background, see A Lang, T McGuinness and V Miller, ‘European Union (Notification of Withdrawal) Bill: analysis of Lords’ amendments’ (House of Commons Library Briefing Paper 7922 2017). In her Lancaster House speech on 17 January 2017, the Prime Minister had announced that the government would put the final withdrawal agreement between the UK and the EU to a vote in both Houses of Parliament ‘before it comes into force’. 20 ibid,

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would be needed for the Prime Minister to conclude a Withdrawal Agreement and any ‘Future Relationship Agreement’, and also for leaving the EU without an agreement. The Bill was received back in the House of Commons and debated on 13 March 2017. Both Lords amendments were rejected,25 and on 29 March 2017, the Prime Minister wrote a letter to Donald Tusk (then President of the European Council) to formally notify him of the UK’s intention to leave the European Union. In this period before Article 50 was triggered, a number of the key factors that would determine Parliament’s role in the Brexit process became clear. The first was that Parliament did not have bespoke arrangements to supervise the government’s negotiations with the EU. Parliament’s principal scrutiny mechanisms of scrutinising government Bills through the parliamentary legislative process and the work of select committees, were not designed to supervise the negotiation of an international treaty. Furthermore, it was not clear that either of these mechanisms would be equipped for key elements of the Brexit process: coordinating relations with the devolved governments and legislatures; the process of overhauling the statute book; and of approving and implementing an international treaty. The government made it crystal clear in this period that it would not fill the void created by the limitations of the existing scrutiny arrangements. In this early phase, the government was focused on communicating the message that Brexit was going to happen and, understandably, it had little interest in taking the initiative and using its own political capital to give Parliament more than was strictly required. Parliament, and the House of Commons in particular, was limited in what it could do in terms of innovations to the scrutiny process without government support. Because the government was not interested in providing a clear framework for Parliament’s role in the Brexit process it was unclear how the negotiations would be sequenced, how the negotiations would interact with domestic parliamentary processes and what opportunities this would present for parliamentarians to scrutinise, or even influence, the outcome of the process. Within the Commons, it was also unclear how scrutiny by select committees would be coordinated with events on the floor of the House. In this period, the government held its cards close to its chest and was unwilling to spell out the role that Parliament would play in any detail. As Lynch and Whitaker have observed, much of the Brexit scrutiny undertaken by select committees was focused upon requests for further detail from the government.26 This underlined the problem with the government’s commitment to match the information provided by the European Commission to the European Parliament. Without a detailed framework agreed between the government and

25 HC

Deb 13 March 2017, col 38 et seq. P Lynch and R Whitaker ‘Select Committees and Brexit: Parliamentary Influence in a Divisive Policy Area’ (2019) 72(4) Parliamentary Affairs 923, 933. 26 See

Parliament and Brexit: Scrutiny under Pressure 245 the relevant committees specifying what information would be provided and when, it was difficult to see how Davis’ commitment would work in practice.27 There was no established precedent for any such framework. Inevitably the debate over the information that should be supplied to Parliament to facilitate scrutiny, and the broader debate on Parliament’s role was becoming entangled with the major divisions and debates within both of the main parties on Brexit. The result was that formal negotiations with the EU began with the House of Commons on the backfoot and needing to apply pressure in order to extract information on the government’s position at almost every stage of the process.28

III. The Passage of the European Union (Withdrawal) Act 2018 The European Union (Withdrawal) Bill was introduced on 13 July 2018.29 Despite the government’s attempt to trail the legislation as the Great Repeal Bill, the provisions of the Bill that was introduced were almost exclusively technical in nature and neutral as to the type of Brexit that would follow. The Bill was designed to work in all scenarios, including a ‘no deal Brexit’. In terms of Parliament’s role in supervising the negotiations and approving any agreements that could result from the process, the Bill was silent. It did contain a number of broadly framed delegated powers, which highlighted that Parliament would have a limited role in scrutinising the detail of the implementation of whichever Brexit outcome was negotiated. In practice, broadly framed delegated powers mean that parliamentarians do not play an active role in the scrutiny of the resulting secondary legislation. One of the powers was particularly noteworthy in this respect: clause 9 of the Bill granted the government the power to implement the Withdrawal Agreement by secondary legislation.

27 See JS Caird, ‘ The effectiveness and influence of the select committee system inquiry: scrutinising Brexit – written evidence’, Liaison Committee (SCA0068); JS Caird, ‘Does the House of Commons have power without influence?’ (LSE Blog, April 2019) blogs.lse.ac.uk/brexit/2019/04/09/does-the-houseof-commons-have-power-without-influence/ (accessed 21 January 2022). 28 One of the more notable developments was the use of the motion for a return, or the ‘humble address’ procedure to force the government to disclose information, including legal advice. See, eg, L Thompson, ‘Confidence motions, humble addresses, and amendments: Brexit’s procedural dilemmas’ (LSE Blog, 13 December 2018) blogs.lse.ac.uk/politicsandpolicy/brexit-parliamentary-procedure/ (accessed 21 January 2022). The latest version of Erskine May notes that the use of motions calling for a return of papers, both as a basis for debate and in pursuit of the papers themselves, has been revived in the House of Commons in recent years. Erskine May highlights a particularly striking example where the failure of the government to comply with a resolution calling for the production of the Attorney-General’s legal advice to the government was judged to be a contempt. erskinemay.parliament.uk/section/6479/opposed-returns/?highlight=humble%20address#footnote-item-3 (accessed 21 January 2022). 29 European Union (Withdrawal) Bill (HC Bill 5 2017–19).

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The Bill was introduced after the unexpected general election on 8 June 2017. Theresa May had justified the early election on that basis that her government needed a bigger majority to secure the passage of the European Union (Withdrawal) Bill. The outcome of that election, which saw the Conservative Government lose its majority, changed the parliamentary dynamic considerably and suggested that the European Union (Withdrawal) Bill would face a challenging journey through Parliament.

A. The Debate on the Bill Despite the technical nature of much of the Bill, it represented a major opportunity for parliamentary scrutiny, as it raised a number of significant constitutional issues: devolution, the role of delegated powers in the Brexit process, the status of ‘retained EU law’ and the role of the courts in interpreting the post-Brexit legislative framework.30 The government took a constructive approach to parliamentary engagement on the Bill. The timetable provided a significant gap between introduction on 13 July 2017 and second reading in the Commons, which took place over two days on 7 and 11 September 2017. The House of Lords Select Committee on the Constitution unusually published its interim report on the Bill before second reading in the Commons.31 The report was particularly critical of the delegated powers that the government sought to take to legislate for Brexit. The report featured prominently in the debate, with Keir Starmer, Ian Duncan Smith and David Jones all making reference to its conclusions.32 Again, this was not typical for Commons debates and served to highlight that the constitutional implications of the Bill, particularly in terms of how it would affect the relationship between Parliament and government, were becoming an increasingly prominent part of the broader Brexit debate. A number of Conservative backbenchers made speeches that criticised the Bill. One of the most notable was that given by Dominic Grieve MP QC, the former Attorney General, who focused his criticism on the delegated powers in the Bill, describing them as ‘ridiculous’.33 He said he would vote for the Bill’s second reading, but that he would ‘participate actively’ in the Committee Stages.34 This was an ominous warning to the government, because although they could rely on the support of all of their backbenchers, bar Ken Clarke, for the Bill’s second reading, it was clear that the question of Parliament’s role in the process was one that could, if targeted by an amendment from a government backbencher, lead to defeat on

30 See M Elliott and S Tierney, ‘Political Pragmatism and Constitutional Principle: the European Union (Withdrawal) Act 2018’ [2019] Public Law 37. 31 Select Committee on the Constitution, European Union (Withdrawal) Bill (HL 2017–19, 69). 32 HC Deb 7 September 2017, cols 361 (Starmer); 377 (Duncan Smith); 410 (Jones). 33 ibid, col 407. 34 ibid.

Parliament and Brexit: Scrutiny under Pressure 247 the floor of the House. Given the government’s fragile position, such a defeat could have significant consequences. The Bill’s programme motion provided for eight days of debates by a Committee of the whole House. Each day of debate focused on a different theme within the Bill. The debates were of a high standard, with many complex legal issues undergoing detailed evaluation. The government’s approach remained constructive and it was able to avoid defeat by negotiating with the backbenchers who had tabled amendments which had the potential to cause difficulties.35 Going into the seventh day of the Committee stage, on 13 December 2017, the government had not suffered a single defeat, despite over 400 amendments being tabled and over 20 divisions. This took us to clause 9 and the role that Parliament would play in approving and implementing the Withdrawal Agreement. Dominic Grieve had tabled an amendment to clause 9 that sought to attach a condition to the power, which would mean that it was only exercisable if Parliament had enacted a statute approving the final terms of withdrawal from the EU. The amendment had gathered support from a number of Conservative backbenchers and became a lightning rod for the issue of Parliament’s role in approving the final agreement: the so-called ‘meaningful vote’. Since the Bill had been introduced, the arrangements for the House of Commons’ approval of the Withdrawal Agreement had come under increasing scrutiny. The government had announced, on 13 December 2017, that it intended to introduce a separate Bill, the Withdrawal Agreement and Implementation Bill, to give legal effect to the Withdrawal Agreement.36 As a result, Matthew Pennycook argued it was unclear why the government required the clause 9 power at all.37 He also argued that the government should go further and include a clause in the Bill guaranteeing the Commons a vote on the final terms of the deal. Dominic Grieve’s speech reflected the emerging consensus between a number of government backbenchers and the opposition front bench on the issue of the meaningful vote, stating that he agreed with ‘virtually every word’ of Pennycook’s speech.38 He also noted that the debate on his amendment had developed in such a way that its substantive effect had been lost amidst the broader political implications of the possibility of inflicting the first major defeat on the government relating to Brexit since the referendum. Grieve explained that he had tried to arrive at a compromise on the amendment, but – that having failed – he was prepared to press his amendment. At the end of the debate, the House voted for Grieve’s amendment by 309 to 305. It proved the last government defeat in the Commons before the Bill went to the House of Lords.

35 See, eg, the government’s approach to Oliver Letwin’s amendment to enable the government to vary exit day. 36 David Davis, Procedures for the Approval and Implementation of EU Exit Agreements Statement made on 13 December 2017 Statement UIN HCWS342. 37 HC Deb 13 December 2017, col 434. 38 ibid, col 440.

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In the Lords, the government was defeated on 16 amendments to the Bill. As a result, the Bill was changed considerably. The House of Lords’ particular interest in constitutional matters, led by the Constitution Committee and the Delegated Powers and Regulatory Reform Committee, meant that a number of well-crafted amendments, many of which focused on Parliament’s role in the process, garnered cross-party support and led to government concessions or defeat. The most significant was an amendment moved by Viscount Hailsham, which provided a framework for Parliament to be guaranteed a role in approving any agreements negotiated with the EU, and which empowered the House of Commons to provide ‘directions’ to the government in certain scenarios. The scheme was certainly radical, in that it empowered the House of Commons to dictate to the government how it should approach the negotiations.39 It was designed to deal with the possibility that if the government should fail to reach an agreement, then the UK could leave the EU without an agreement by default. It created statutory deadlines, which would have meant that if the government had not secured a deal by a certain date, then this would trigger an opportunity for the Commons to issue directions to the government. The potential for a no deal exit, which under the arrangements in place at the time could take place without any prior parliamentary approval, was beginning to dominate the debate over Parliament’s role in the Brexit process. The amendment was approved by 335 to 244 by the Lords. When the Bill returned to the Commons for consideration of Lords’ amendments, David Davis, described the Hailsham amendment as the ‘no Brexit’ amendment and as ‘a constitutional absurdity’.40 The government had proposed an amendment in lieu, which would provide a statutory basis for the meaningful vote, and to provide for a government statement on its approach to negotiations if the Commons failed to approve the agreement, but without any requirement to lay a motion before the House, and without granting the Commons the power to issue binding directions. Ahead of the debate, Dominic Grieve tabled an amendment to the government’s amendment, to require that the government provide the Commons with opportunities to consider a motion on a government statement on the Brexit negotiations at certain prescribed points in the process, if an agreement was not approved by the Commons. The amendment also provided for a power to direct the government in the negotiations, only if no agreement had been reached by 15 February 2019. During the Commons debate, Jacob Rees-Mogg MP said of Grieve’s proposal: My concern about my right hon. and learned Friend’s amendment is that it would change the constitutional balance and separation of powers. There is a perfectly reasonable way of ensuring that the Government do the proper thing, and that is a vote of no confidence. As long as the Government maintain the confidence of this House, they ought to be able to negotiate international treaties, but if they fail in their negotiations, the House has a remedy that has been a remedy for very many years.41 39 HL

Deb 30 April 2018, cols 1847-1850. Deb 12 June 2018, col 737. 41 ibid, col 765. 40 HC

Parliament and Brexit: Scrutiny under Pressure 249 This observation captures one of the most important arguments during this period, which was that the Commons, by seeking to gain the power over the Brexit process, either through legally binding directions or through Commons’ resolutions, was upsetting the relationship between the government and Parliament which was central to our existing constitutional arrangements. Grieve, in response, explained that unlike Hailsham’s amendment, his amendment would only enable the Commons to direct the substance of the negotiations if there was no agreement on 15 February 2019. In other words, Grieve portrayed the power to direct as an insurance policy against a no deal scenario. The Solicitor General, Robert Buckland QC, offered Grieve reassurance that the government would work on a compromise amendment, which would provide the Commons with the opportunity to consider a motion on the government’s position. Grieve accepted the proposal but concluded: The idea that it is wrong, in a crisis, for Parliament to direct the Government what to do is plainly fallacious. It cannot be right. We are entitled to do that. Of course, if the Government do not want to do what we direct them to do, that is another matter.42

The core division over this question was whether the Commons should be able to direct the government on the substance of the negotiations without changing the government via a motion of no confidence. The limits of scrutiny were being exposed by this debate; to scrutinise did not, at least for many Members, include the power to decide. The debate on this issue came to a head on 20 June 2018, when the Commons had a second round of ‘ping pong’. The Lords had made a further amendment which gave the Commons the power to consider an amendable motion on the government’s approach to the negotiations in a number of different scenarios. David Davis opened the debate by setting out the detail of the government’s compromise amendment (which sought to ensure that the Commons motion that would be triggered would be in ‘neutral terms’, which according to the standing orders would be unamendable). Davis explained that ‘an amendable motion […] countenances a situation in which Parliament can direct the government on how they should proceed.’43 He added ‘There is a clear difference between government taking Parliament’s view into account as expressed through a debate and Parliament instructing the government how to act.’44 In a moment of incredible parliamentary drama, Dominic Grieve, having argued against the logic of the government’s amendment, concluded his speech by saying that he would accept the amendment on the meaningful vote (which would then become section 13 of the European Union (Withdrawal) Act 2018.45 This acceptance meant that the government avoided a damaging defeat on the floor of House and six days later, on 26 June 2018, the European Union (Withdrawal) Act 2018 was granted Royal Assent and became law. 42 ibid,

col 768. Deb 20 June 2018, col 362. 44 ibid, col 363. 45 ibid, col 370. 43 HC

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B. Analysis of the Scrutiny of the European Union (Withdrawal) Act 2018 The passage of the European Union (Withdrawal) Act 2018 gave Parliament an opportunity to show the value of parliamentary scrutiny and what it could contribute to the Brexit process. Matthew Pennycook described it as ‘the most demanding legislative exercise that Parliament has undertaken in recent decades’.46 Andrea Leadsom MP, then Leader of the House of Commons, also emphasised the scale of the scrutiny, noting that there had been ‘37 days of debate spanning 11  months, and with over 1,400 amendments debated and almost 280 hours given for time to debate’.47 In terms of the positives, the work of the Lords’ select committees and the number of amendments made to the Bill in the Lords stand out for being the source of so many changes to the Bill. In the Commons, the detailed nature of the debates was also noteworthy, as was the fact that a number of Commons’ committees also reported on the Bill.48 The lack of a government majority in the Commons meant that the sort of scrutiny normally associated with the Lords, including detailed negotiations on amendments with constitutional implications, became a prominent feature of the elected chamber. The European Union (Withdrawal) Act 2018 was a complex Bill, and one of the primary achievements of the scrutiny process was that, by the time it was enacted, there was much better understanding of its legal effect and its role in the Brexit process. While many focus on the ability of the House to change government Bills, in practice one of the main functions of scrutiny is to hold the government to account for the content of their legislative proposals by debating and analysing the legal effect of a Bill. This was important in this case as the Bill’s legal effect did not always align with the government’s rhetoric. In particular, the government was keen to stress that the Bill represented an opportunity for parliamentarians to contribute to the Brexit process, whereas in reality the Bill was carefully crafted to cater for all outcomes of the Brexit process. The Bill’s neutrality on the outcome of the Brexit process, which relied largely on delegated powers to deliver whatever was negotiated, limited the explanatory value of the scrutiny process. Moreover, the Bill did not allow MPs to debate what they really wanted to debate, which was the substance of the government’s approach to the EU negotiations on the exit agreements. The technical nature of the Bill helps to explain why the government, despite its wafer-thin majority,49 only suffered one defeat on the floor of the Commons. When considering how the 12 months following Royal Assent of the 2018 Act unfolded, it is difficult not to see this period as an opportunity missed for those in the Commons who wished to strengthen the role of Parliament in the Brexit

46 HC

Deb 10 September 2018, col 500. Deb 10 December 2019, col 73. 48 Exiting the European Union Committee, European Union (Withdrawal) Bill (HC 2017–19, 373). 49 Relying on the votes of the Democratic Unionist Party. 47 HC

Parliament and Brexit: Scrutiny under Pressure 251 process. In particular, it is notable that Grieve, the former Attorney General, was responsible for crafting so many of the significant amendments on Parliament’s role. Grieve’s legal background, as a former Attorney General, enabled him to draft amendments capable of achieving consensus. In the early stages of the Brexit process he was a unifying figure, capable of acting as the symbolic leader for those that wanted to strengthen the role of Parliament. Crucially, he was not yet associated with the divisive campaign for a second referendum on the UK’s membership of the EU. It is worth contrasting the way in which the Lords, with their select committees leading the charge, were able to influence the government and shape the content of the Bill to a much greater extent. The key point there is that for the Lords this was business as usual, as the government has not enjoyed a majority in that House for some time, and peers are used to the process of considering well-crafted amendments that originate in the proposals of a cross-party expert select committee.50 Even if the Commons dynamic meant that government defeats on a flagship Bill were now more likely, in practice it was difficult to form new habits quickly. In terms of the existing institutional structure, the Commons’ select committees were not as well placed to produce reports or put forward amendments that could be influential on the floor of the House. Even more importantly, Members were not used to tabling amendments that could gather cross-party support and extract concessions from the government. Cross-party working on the floor of the House is not unheard of, but scrutiny in the Commons is rarely accompanied by the threat of defeat on a flagship government Bill. The net result was that the Commons was not well-placed to craft a legislative solution to the one issue on which it was clear that they would be able to defeat the government on: the meaningful vote. In that context, Dominic Grieve and his colleagues achieved something fairly significant in the form of section 13 of the EU (Withdrawal) Act 2018, which provided a statutory framework for the parliamentary approval of the outcome of negotiations with the EU. In assessing the nature of what was achieved, it is also worth considering how the government approached the Bill. Even if it showed a willingness to grant Parliament time to debate the Bill, and was willing to concede on certain points, its starting point on the substance of the Bill was remarkably bold. The power to implement the Withdrawal Agreement with secondary legislation was indicative of their overall approach. There was very little in the way of proactive attempts to keep the rebels onside, especially on the meaningful vote, which only came as a last-minute compromise. So, while the government was able to avoid damaging defeats in the Commons, it did little to win the trust of those who were dissatisfied with Parliament’s role in the process. 50 In addition to the Lords Committees described above, the Joint Committee on Human Rights also has a good record in this area: see, eg, A Horne and M Conway ‘Parliament and Human Rights’, in A Horne and G Drewry (eds), Parliament and the Law 2nd edn (Oxford, Hart Publishing, 2018). See also M Russell and D Gover, Legislation at Westminster: Parliamentary Actors and Influence in the Making of British Law (Oxford, OUP, 2017).

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IV. The Meaningful Vote(s) In September 2018, when Parliament returned from recess, the debate on Parliament’s role in the Brexit process continued to focus on the meaningful vote and the implications of the provision that Parliament had enacted in section 13 of the EU (Withdrawal) Act 2018. The Withdrawal Agreement and the Political Declaration were expected to be published by the end of 2018 and, as the date of publication drew closer, the debate on the precise form of the meaningful vote, and the parliamentary process that would follow it, intensified. In June 2018, the Commons’ Exiting the European Union Committee published a report on Parliamentary scrutiny and approval of the Withdrawal Agreement and negotiations on a future relationship.51 The report drew attention to the fact that the Committee would need time to consider the Withdrawal Agreement if it was going to be able to produce a report on the Agreement before the meaningful vote. The report concluded that the government should timetable at least five days of parliamentary debate before the vote. The Committee’s report concluded that the motion on the deal should be amendable. The Committee also noted that the section 13 procedure should enable the Commons to make a decision on what should happen next if the deal was not approved before 29  March 2019. The Committee, which divided on each of the major conclusions, asked the Procedure Committee to look into the issue of the procedure for the meaningful vote. The House of Commons Procedure Committee launched an inquiry on the meaningful vote in the summer of 2018 and reported in November 2018.52 One of the key questions for the inquiry was how amendments to the motion on the Withdrawal Agreement and the Political Declaration would be handled procedurally. The government submitted evidence that amendments to the motion should only be decided upon after the decision was taken on the government’s original motion on the deal. One of the arguments put forward by the government was that a clear decision on approval was needed in order to comply with section 13 of the 2018 Act. The government argued that conditional approval would not meet the terms of the legislation and, as a result it would not be able to ratify the Agreement.53 The Procedure Committee disagreed and concluded that amendments should be taken first. The Committee also recommended that the Business of the House motion governing the debate should be published at least five days before the debate, and that the House should be allowed a day to debate the Business of the House motion.

51 Exiting the European Union Committee, Parliamentary scrutiny and approval of the Withdrawal Agreement and negotiations on a future relationship (HC 2017–19, 1240). 52 Procedure Committee, Motions under Section 13(1) of the European Union (Withdrawal) Act 2018 (HC 2017-19, 1664). 53 Written evidence submitted by Rt Hon Dominic Raab MP, Secretary of State for Exiting the European Union – Procedure Committee (MUS 01).

Parliament and Brexit: Scrutiny under Pressure 253 The Procedure Committee’s report proved to be highly influential, and when Andrea Leadsom MP, then the Leader of House, introduced the historic Business of the House motion on 4 December 2018 she said that the government had accepted the vast majority of the Committee’s recommendations.54 The Business of House motion provided for a five-day debate, and for amendments to be decided upon prior to the decision on the government’s motion. Hilary Benn MP, Chair of the Exiting the EU Committee, welcomed the government’s approach to the business of the house motion, but lamented that it was too little, too late: ‘this whole process, unfortunately, has shown the government’s marked reluctance to listen to the House, to trust the House and to share information with the House’.55 The debate on 4 December in the Commons was dominated by an amendment by Dominic Grieve, which was concerned with ensuring that the government motion, which would be tabled if the meaningful vote was lost, would be amendable. When the Withdrawal Agreement was published in November 2018, the reaction from the Brexiteers was so negative that attention in the meaningful vote debate was already on what would happen after the deal was rejected. Grieve’s amendment was highly contentious. It sought to amend the Business of House motion to govern a future debate (the debate on the government’s motion responding to the Commons’ decision not to pass the Withdrawal Agreement), which on its face seemed beyond the scope of the Business of the House motion before the House. Furthermore, it was arguable that the amendment was in conflict with section 13 of the European Union (Withdrawal) Act 2018, which the government had drafted precisely in order to prevent the relevant motions being subject to amendments in order to present the Commons using it as a means of directing the Brexit process. Nevertheless, the House agreed to Grieve’s amendment by 321 to 299, showing the strength of the majority in enabling the Commons to have more control over the post-rejection process. On Monday 10 December, after three of the five days of programmed debate on the Withdrawal Agreement, the Prime Minister announced that the final vote, which had been due to take place the next day, would be delayed. This last-minute delay served as a reminder of the government’s control of the Commons’ agenda, which was at the root of the fears of the backbenchers who were concerned that the government could leave the EU without a deal – against the wishes of the majority of Members. The Commons was not offered a vote on whether the meaningful vote should be adjourned, and therefore the government had total discretion to decide when the debate should be resumed and the final vote held. Meg Russell has argued that this episode highlights that Standing Order No. 14, which grants the government control of the Commons’ agenda, was not suited to a period of minority government.56 54 HC

Deb 4 December 2018, col 733. col 740. 56 M Russell, ‘Brexit and Parliament: The Anatomy of a Perfect Storm’ (2021) 74(2) Parliamentary Affairs 443, 455. 55 ibid,

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The debate resumed on 9 January 2019 and the Commons was asked to consider a government order to vary the Business of the House motion that had been agreed on 4 December to provide for a further five days of debate. That Business of the House Motion had stated that any order to vary the terms of the original motion would be ‘put forthwith’. The expression ‘put forthwith’ was understood to mean that if the Commons was asked to make amends to the original order it would be a decision made ‘without debate and usually without the possibility of amendment’ according to Erskine May.57 Despite this, the Speaker selected an amendment by Dominic Grieve. The amendment mandated the government to table a motion within three days of the Commons’ decision to reject the Agreement (a motion which was required by section 13 of the European Union (Withdrawal) Act 2018 but on a different timescale: the government had 21 days to make a statement and then 7 days from the statement to lay the motion)58 The House agreed the amendment by 308 to 297. On 15 January 2019, after a total of nine days of debate on the deal, the Commons finally had the opportunity to give its verdict. The Speaker selected four amendments for decision. At the end of the debate, only one of the four was moved and the House rejected that amendment (tabled by John Baron MP) by 600 to 24.59 The government’s motion to approve the Withdrawal Agreement was rejected by 432 to 202. Responding to the Commons’ decision, Theresa May, the Prime Minister, said: ‘It is clear that the House does not support this deal, but tonight’s vote tells us nothing about what it does support.’60 This captured the problem facing the government. In the period since the General Election in June 2017, the government had failed to identify what form of Brexit could garner a majority. It was only after the publication of the final negotiated legal text and a historic Commons defeat that the government committed to consulting with the other parties and the European Research Group of Eurosceptic Conservative MPs. The second and third meaningful votes, held on 12 March and 29 March 2019 respectively, both yielded the same result as the first, albeit by smaller margins. By the end of March 2019, the government’s position was becoming increasingly untenable. On 27 March and 1 April 2019, a series of indicative votes were held. Both were procedurally innovative, in that Members were able to vote simultaneously by casting a ballot for each of the various options. On each occasion none of the proposals were able to gain the support of a majority of Members, with Ken Clarke’s proposal to stay within a Customs Union with the EU coming closest

57 Erskine

May online 20.45. Caird ‘Brexit and the Speaker of the House of the Commons: Do the Ends Justify the Means?’ (verfassungsblog 10 January 2019) verfassungsblog.de/brexit-and-the-speaker-of-the-house-of-thecommons-do-the-ends-justify-the-means/ (accessed 2 January 2022). 59 Mr Baron’s amendment related to the presence of the Ireland/Northern Ireland ‘backstop’, which had become an extremely contentious element of the Withdrawal Agreement. 60 HC Deb 15 January 2019, col 1125. 58 JS

Parliament and Brexit: Scrutiny under Pressure 255 with 273 voting for and 276 against. The deadlock in the Commons led to growing concerns that the UK would leave the EU without a deal because of the legal deadline set out in Article 50, and the requirement for the EU to agree to any extension requested by the UK Government. Another important development in this period was the successful attempts by parliamentarians to secure the publication of government documents. In October 2017, the Labour Party used the humble address procedure to secure the publication of the government’s Brexit economic impact assessments. In November 2018, they used the same procedure to secure the publication of the Attorney General’s legal advice on the Withdrawal Agreement. Both of those episodes showed the strength of the Commons’ power in forcing the government to publish information that it did not want in the public domain. But the fact that it was such a rarity for the Commons to use these powers suggests that they are of limited practical importance. Moreover, both episodes reinforce the sense that the Commons had to go to extreme lengths to secure information and documents which were necessary to scrutinise the government’s approach to Brexit. Parliamentary scrutiny in Westminster remained, despite the unusual degree of cross-party alliance emerging on no deal, fundamentally adversarial in character.

A. The Passage of the Cooper-Letwin Bill and the Benn Bill The fear of no deal led to two of the most extraordinary enactments in recent parliamentary history: the passage of the so-called ‘Cooper-Letwin Bill’ and the ‘Benn Bill’. Both were enacted against the wishes of the government and showed that it was possible for Members to take control of the Commons’ timetable and enact legislation. Both Acts created a legal obligation upon the government to request an extension to Article 50 in order to prevent a no deal exit. For some constitutional commentators, the enactment of both of these Bills was a sign that the UK’s constitutional arrangements, and in particular the relationship between the government and Commons, had ceased to function as they were supposed to. Stephen Laws and Richard Ekins argued that MPs, with the help of the Speaker, were ‘attempting to take over the role of Government’.61 It is clear those MPs opposed to no deal did not succeed in taking over the role of government – if that was ever their intention. However, it is fair to recognise that the Cooper-Letwin Bill and the Benn Bill were the product of the fact that the government of the day could no longer secure a majority for its principal policy objective: ratifying and implementing the Withdrawal Agreement.

61 S Laws and R Ekins, Endangering Constitutional Government: The Risks of the House of Commons taking Control (Policy Exchange, 2019).

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B. The End of the May Administration On 22 May 2019, the Prime Minister announced that the government would introduce the European Union (Withdrawal Agreement) Bill and use it as a vehicle for delivering a number of concessions to backbenchers on all sides of the Brexit debate, including guaranteeing Parliament ‘a much greater role in the second part of the Brexit process’.62 The Prime Minister added that the Bill would be published in advance ‘so that the House has the maximum possible time to study its detail’.63 The Bill was never published because on 24 May 2019 Theresa May announced that she would resign, triggering a contest for leadership of the Conservative Party. The incredible events of the 2017–19 parliamentary session are likely to be analysed in great detail for many years to come. In looking at this period, it important to remember the fundamental challenge facing the government, and in particular the Prime Minister, prior to the first meaningful vote. It was clear that a cross-party coalition was needed to approve the Withdrawal Agreement. However, if the Prime Minister worked too closely with the opposition, her own party was likely to challenge her leadership. In relation to the official opposition, their strategy was to use their relative strength to weaken the Prime Minister, hoping that it might lead to a General Election, rather than to offer the government of the day the support it needed to deliver Brexit. The approach of the government and the opposition reflected the adversarial nature of the political system in Westminster. Equally, while a number of government backbenchers became extremely influential, they were not able to shift the government’s position at an earlier enough stage to maximise their potential leverage. The strategic electoral politics of Brexit ultimately took precedence over everything else. In terms of parliamentary scrutiny, it is worth recognising that the 2017–19 session saw some of the most significant innovations during the entire Brexit process. The use of the humble address, taking over the Commons’ agenda to enact legislation, the meaningful vote itself and the indicative votes were all signs that the extraordinary nature of the Brexit process required new parliamentary mechanisms to facilitate scrutiny and debate. Some of the innovations, particular those designed to avoid a no deal were in part the result of the inadequacy of the compromise struck with the government on the meaningful vote during the debate in the Commons on the European Union (Withdrawal) Act 18 in the summer 2018. It was also notable that the government only decided to develop its own innovative mechanisms so late on in the process, by which point their utility was limited. It is symbolic that by far the most innovative proposals for scrutiny to come from the May administration were set out in the version of the European Union (Withdrawal Agreement) Bill, which she announced in one of her final acts before she announced her resignation. 62 HC

Deb 22 May 2019, cols 731–734.

63 ibid.

Parliament and Brexit: Scrutiny under Pressure 257

V. The Johnson Administration The new government, led by Boris Johnson, initially faced even more significant political challenges than Theresa May’s Government. These are discussed by Lord Norton of Louth and Alison Young in chapters eight and nine. The attempt to prorogue Parliament in the summer of 2019 suggested that Johnson had lost control of many of his backbenchers and could not pursue the form of ‘hard’ Brexit that he seemed to favour.

A. An Early General Election Instead of focusing his energies on pushing a compromise Bill through Parliament, Johnson instead sought an early General Election. This was eventually agreed by the opposition following the passage of the Early Parliamentary General Election Bill in October 2019 and the relevant provisions of the Fixed-term Parliaments Act 2011 sidestepped. Johnson campaigned on a promise to ‘get Brexit done’. The Conservatives were returned with a significant majority of 80 seats. The election result gave Johnson a renewed mandate to implement the UK’s departure from the EU ending hopes of the Remain movement of using Parliament to overturn the result of the 2016 referendum.

B. The Fast-Track Passage of the European Union (Withdrawal Agreement) Act 2020 The European Union (Withdrawal Agreement) Bill was reintroduced immediately following the general election and was fast-tracked through Parliament at a tremendous pace, particularly given its constitutional importance. The Bill contained many of the concessions that would have been included in the May Government’s version, giving significant powers to the House of Commons to scrutinise the negotiations on the Future Relationship. The Bill was introduced in the Commons on 19 December 2019 and received Royal Assent on 23 January 2019. The actual scrutiny of the Bill on the floor of the House of Commons was fairly perfunctory, although various select committees were able to produce reports on it during its passage, including the Delegated Powers and Regulatory Reform Committee64 and the Constitution Committee.65 The Lords European Union

64 Delegated Powers and Regulatory Reform Committee, European Union (Withdrawal Agreement) Bill (HL 2019–21, 3). 65 Constitution Committee, European Union (Withdrawal Agreement) Bill (HL 2019–21, 5).

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Committee also produced a detailed report on the contents of the Withdrawal Agreement and associated political declaration.66 While the Bill introduced in December 2020 was very similar to the one that had been introduced prior to the general election, several clauses were removed and new clauses were added. Notably, the new Bill removed clauses giving MPs a veto over the start of future relationship negotiations with the EU; an approval role in relation to the government’s negotiating mandate; and an enhanced Parliamentary approval process for any future relationship treaty subsequently negotiated with the EU. The Bill also inserted a provision which prohibited any UK minister from agreeing to an extension of the transition or implementation period in the Joint Committee – immediately ensuring that there would be significant time constraints in negotiating the future relationship agreement with the EU. In addition to fast-tracking the Bill, the government also included a provision disapplying the relevant parts of the Constitutional Reform and Governance Act (CRAG) which required a treaty to be laid before Parliament for 21 sitting days prior to ratification. In short, now the government had a commanding majority, Parliament’s ability to scrutinise Brexit was being watered down.

C. The United Kingdom Internal Market Act 2020 On 8 September 2020, the new Secretary of State for Northern Ireland, Brandon Lewis MP, made a statement in response to an urgent question which asked him to ‘make a statement on the UK’s commitment to its legal obligations under the Northern Ireland Protocol’ – an integral part of the new Withdrawal Agreement which had been concluded with the EU.67 He indicated that a proposed United Kingdom Internal Market Bill would be tabled the following day. The Bill was designed to ‘make provision in connection with the internal market for goods and services in the United Kingdom’. During the course of his speech, Mr Lewis admitted that the Bill would ‘break international law in a very specific and limited way’.68 The reason for this was that it sought to introduce powers which would allow ministers, inter alia, to disapply obligations to apply the EU Customs Code to Northern Ireland, contrary to the provisions agreed in the Ireland/Northern Ireland Protocol.69 Additional measures, originally contained within the Bill, would have allowed UK ministers to apply state aid law according to the UK, rather than the EU’s interpretation, potentially disapplying or modifying the effect of Article 10 of the Protocol. The government also acknowledged that it was ‘taking the power to disapply the EU law concept of direct

66 European Union Committee, Brexit: the Revised Withdrawal Agreement and Political Declaration (HL 2019–21, 4). 67 HC Deb 8 September 2020, col 497. 68 ibid, col 509. 69 Imposed under Art 5 of the Ireland/Northern Ireland Protocol to the Withdrawal Bill.

Parliament and Brexit: Scrutiny under Pressure 259 effect, required by Article 4 of the Withdrawal Agreement, in certain very tightly defined circumstances’.70 On the same day, the (then) Treasury Solicitor announced his resignation. It was widely reported that he had departed as he was unhappy with the attempt to overwrite parts of the Protocol.71 The Bill had its first reading in the House of Commons on 9 September and its second reading shortly afterwards on 14 September. While it passed its second reading by 343 votes to 49, the Bill was hugely contentious. The government had, on 10 September, unusually published its legal position on the legislation. The statement appeared to originate from the Attorney General, Suella Braverman QC MP, although her name did not appear on the face of the document. The paper accepted the need to discharge treaty obligations in good faith, but argued that ‘it is important to remember the fundamental principle of Parliamentary sovereignty’. It contended that, as a matter of domestic law, the UK Parliament can pass legislation which is in breach of the UK’s treaty obligations and that Parliament ‘would not be acting unconstitutionally’ in enacting such legislation. The paper went on to claim that due to the UK’s dualist legal system ‘treaty obligations only become binding to the extent that they are enshrined in domestic legislation’.72 This was a remarkable proposition which received a robust response. Notably, the House of Lords European Union Committee remarked that the assertion was ‘clearly wrong in law’.73 The Committee explained that the correct view is that treaties are binding in law on the international plane. In the Miller judgment the Supreme Court was clear that the ‘dualist theory’ is based on a clear distinction between international and domestic law: International law and domestic law operate in independent spheres. The prerogative power to make treaties depends on two related propositions. The first is that treaties between sovereign states have effect in international law and are not governed by the domestic law of any state. As Lord Kingsdown expressed it in Secretary of State in Council of India v Kamachee Boye Sahaba (1859) 13 Moo PCC 22, 75, treaties are ‘governed by other laws than those which municipal courts administer’. The second proposition is that, although they are binding on the United Kingdom in international law, treaties are not part of UK law and give rise to no legal rights or obligations in domestic law.74

Accordingly, it followed that while the principle of parliamentary sovereignty allows Parliament to legislate in a manner contrary to international obligations,

70 HC

Deb 8 September 2020, col 509.

71 Financial Times, ‘ Top UK Government Lawyer Quits over Brexit Withdrawal Agreement Changes’

(8 September 2020). 72 HM Government, HMG legal position: UKIM Bill and Northern Ireland Protocol (10 September 2020). 73 House of Lords European Union Committee, The United Kingdom Internal Market Bill: Part 5, (HL 2019–21, 147) 68. 74 R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, [55].

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such legislation is only operational in the domestic sphere and does not cure the breach at international law. The House of Lords Constitution Committee also raised serious concerns. It wrote to the Lord Chancellor stating that the proposed clauses were ‘in tension with the constitutional principle of the rule of law’.75 In a report, published shortly thereafter, it went further, stating that: Setting out explicitly to break international law in this way is without precedent. It jeopardises international obligations the UK recently ratified, undermines domestic law and is contrary to the rule of law. The Government has not provided a satisfactory justification for this course of action and we do not consider that there can be one.76

On 16 September, the Advocate General, Lord Keen QC, resigned from the government, stating that he found it ‘increasingly difficult’ to reconcile his ‘obligations as a law officer’ with the government’s ‘policy intentions with respect to the Internal Markets Bill’.77 In the House of Commons, the Chair of the Justice Committee, Sir Bob Neill took up the mantle of the lead advocate of the rule of law on the backbenches and tabled an amendment that would have required the Commons to approve a resolution before the relevant provisions of the Bill could come into force. The government offered in its own amendment as a concession and a result Sir Bob Neill withdrew his amendment and offered his support. Explaining why he accepted the compromise, Sir Bob Neill said: For some, the amendment will have not gone far enough, a concern I entirely understand. However, politics is the art of the possible. Had my amendment been drafted differently it would have not garnered the support necessary to change the Bill, I believe for the better. […] It is the job of politicians to deal with the situation as it is, not how one might want it to be, and we shouldn’t let the perfect be the enemy of the good. If the last few years have taught us anything, it is that none of us win without compromise. Had more of my colleagues, on both sides of the Commons, shown more flexibility when the previous Prime Minister’s deal was voted upon, the Internal Market Bill will have never been necessary.78

The government backbenchers in the Commons after the 2019 General Election were in a much weaker position to negotiate amendments based on constitutional

75 Letter from Baroness Taylor of Bolton, 11 September 2020. The letter also noted the duties contained in the Ministerial Code that there is an ‘overarching duty on Ministers to comply with the law’ and the Cabinet Manual which says that ‘Ministers are under an overarching duty to comply with the law, including international law and treaty.’ committees.parliament.uk/publications/2514/ documents/24959/default/ (accessed 21 January 2022). 76 House of Lords Constitution Committee, UK Internal Market Bill, (HL 2019–21, 51) 4. 77 BBC Online, ‘Lord Keen: Senior Law Officer quits over Brexit Bill Row’ (16 September 2020) www. bbc.co.uk/news/uk-scotland-scotland-politics-54179745 (accessed 2 January 2022). 78 Sir Bob Neill, ‘ The Internal Market Bill’ (2 October 2020) www.bobneill.org.uk (accessed 21 November 2021).

Parliament and Brexit: Scrutiny under Pressure 261 concerns than their predecessors had been. In the 2019 Parliament, Westminster reverted to a situation whereby it appeared to be predominantly the responsibility of the House of Lords to scrutinise the constitutional implications of government legislation. By the time the Bill reached the House of Lords, the row had escalated significantly. Whereas the government had a comfortable majority in the House of Commons, in the Lords, even political supporters of Brexit expressed opposition to the relevant provisions of the Bill. Notably, on 19 October 2020, Lord Howard of Lympne QC, the former Leader of the Conservative Party, quoted the former Prime Minister, Margaret Thatcher, to the effect that: ‘Britain does not break Treaties. It would be bad for Britain, bad for our relations with the rest of the world and bad for any future treaty on trade.’79 He went on to argue that: Together with the majority of those who voted in the 2016 referendum, I voted for Brexit. I do not for one moment regret or resile from that vote; I want the United Kingdom to be an independent sovereign state. However, I want it to be an independent sovereign state that holds its head up high in the world, that keeps its word, that upholds the rule of law and that honours its treaty obligations. I want it to be an independent sovereign state that is a beacon unto the nations. I do not want it to be an independent sovereign state that chooses as one of the first assertions of that sovereignty to break its word, to break the law and to renege on a treaty that it signed barely a year ago.80

In a subsequent vote, on the fifth day of its Committee Stage, Peers removed the offending clauses to the Bill81 by 433 votes to 165.82 Initially, the government responded that it would reinstate the clauses when the Bill returned to the House of Commons.83 Subsequently, following a meeting between the Cabinet Office Minister, Michael Gove MP, and European Commission vice-president Maros Sefcovic, at the Joint Committee established by the Withdrawal Agreement, the UK Government agreed to remove these provisions. It was announced (rather prematurely as it later turned out) that a variety of solutions had been agreed to operationalise the Protocol.84 It appeared, during this episode, that Parliament was not entirely on the side-lines, in spite of the government’s large majority. Yet the incident had two significant consequences. The first was that it reduced trust between the EU and the UK significantly. The fact that the UK appeared to be

79 HL

Deb 19 October 2020, col 1295 et seq.

80 ibid. 81 By

then numbered Clauses 45, 46 and 47. Deb 9 November 2020, col 927 et seq. 83 BBC Online, ‘Brexit: Government’s Bill suffers Heavy House of Lords Defeat’ (10 November 2020) www.bbc.co.uk/news/uk-politics-54882088#:~:text=The%20government%20has%20suffered%20 a%20heavy%20defeat%20in,international%20law%20-%20by%20433%20votes%20to%20165 (accessed 2 January 2022). 84 G Heffer, ‘Brexit: UK to ditch Internal Market Bill clauses after reaching agreement in principle on Northern Ireland Protocol’ (Sky News, 8 December 2020) news.sky.com/story/brexit-ukto-ditch-internal-market-bill-clauses-after-reaching-agreement-in-principle-on-northern-irelandprotocol-12155176 (accessed 21 January 2022). 82 HL

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willing to resile from an agreement that it had signed only months earlier was – as predicted by Lord Howard – perceived as a huge problem. The second consequence was that, rather than conceding that it had made an error in its interpretation of the law, the government appeared to embrace the idea, put forward by some of its supporters, that the proposed breach of international law was a political, rather than a legal, issue and that it did not amount to a breach of the rule of law. In a speech delivered on 17 June, the Lord Chancellor, Robert Buckland MP, QC, argued that: Some of the arguments around [Part 5 of the UK Internal Market Bill] were political ones, but the problem was that they were framed incorrectly in a constitutional way – almost as if to suggest that they were somehow more fundamental than they really were. In all too rapid a succession of events, observations about the rule of law soon descended into allegations of ‘breaking the law’ which is an entirely different thing!85

Given that, under the Constitutional Reform Act 2005, the Lord Chancellor is responsible for upholding the rule of law in government, it is perhaps surprising that, in spite of the resignations and the detailed and clear criticisms expressed about Part 5 of the Bill,86 the government did not appear to accept that it had acted improperly. This prompted the former Treasury Solicitor, Sir Jonathan Jones, to observe that he could not agree with the Lord Chancellor’s characterisation of the row. In a post for the Institute for Government, he said that he did not accept that the issues had been wrongly framed as being constitutional and stated that even if you accept – which I do not – that the legal and constitutional problem would only have arisen if the provisions of the Bill had been commenced or exercised, the fact that the government took this position at all remains profoundly concerning, and the episode continues to cast a shadow of doubt over anything the government says about the rule of law.87

Arguably, all of this suggests that once the government had regained its majority, the more pointed aspects of scrutiny were relegated to the House of Lords, whilst the Commons became more willing to compromise even on more contentious measures. In the absence of the prospect of defeat in the Commons, arguments in support of constitutional principles did not appear to have the same political salience as they did in the previous Parliament. 85 HMG,

Lord Chancellor speaks at UCL conference on the Constitution, 17 June 2021. eg, M Elliott, ‘The Internal Market Bill – A Perfect Constitutional Storm’ (Public Law for Everyone Blog, 9 September 2020) publiclawforeveryone.com/2020/09/09/the-internal-market-bill-aperfect-constitutional-storm/ (accessed 2 January 2022); K Armstrong, ‘A Test for Sovereignty after Brexit’, (Verfassungsblog, 8 September 2020) verfassungsblog.de/a-test-for-sovereignty-after-brexit/ (accessed 2 January 2022); R Cormacain, ‘The United Kingdom Internal Market Bill and Breach of Domestic Law’ (UK Constitutional Law Blog, 23 September 2020) ukconstitutionallaw.org/2020/09/23/ ronan-cormacain-the-united-kingdom-internal-market-bill-and-breach-of-domestic-law/ (accessed 2 January 2022). 87 Sir J Jones, ‘Robert Buckland’s call for the courts to narrow their remit is misguided, The Institute for Government’ (Institute for Government, 19 June 2021) www.instituteforgovernment.org.uk/blog/ robert-buckland-courts-remit (accessed 2 January 2022). 86 See,

Parliament and Brexit: Scrutiny under Pressure 263

D. The European Union (Future Relationship) Act 2020 The passage of the European Union (Future Relationship) Act 2020, could be seen as the culmination of Parliament’s inability to scrutinise Brexit adequately. With the transition period due to expire on 31 December 2020, and the negotiations between the parties bogged down, an agreement was eventually concluded between the EU and the UK on the 24 December 2020. It was immediately obvious that the EU would not be able to complete its internal procedures to ratify the agreement prior to Brexit day. Accordingly, the parties agreed that the Trade and Co-operation Agreement (TCA) would be provisionally applied in advance of ratification. Since the agreement on the draft text of the TCA was only reached in late December 2020, the parties signed a version of the draft text, in which the articles had not been continuously numbered and which was subject to legal revision before it could enter into force. The draft agreement was only replaced by the definitive version of the agreement through an exchange of notes on 21 April 2021. This approach made effective parliamentary scrutiny extremely difficult. While the European Parliament took the time to consider the TCA for several months, postponing its consent decision from 25 March 2021 until 27 April, the UK Parliament allowed a Bill to be introduced on 30 December and gave it Royal Assent the following day. Once again, the relevant provisions of CRAG were disapplied. It is hard to imagine that parliamentarians in the UK could possibly have digested the content of the TCA in advance of agreeing the legislation, or given it any significant scrutiny whatsoever. The passage of the Bill might be seen as the nadir of parliamentary scrutiny. In circumstances where both parties originally intended ratification of the final agreement in the spring of 2021, it is far from clear why fast-tracked legislation of this type was required.

VII. Conclusion The role of parliamentary scrutiny in the Brexit process provides a clear indication that there is no consensus over what parliamentary scrutiny involves; nor is there agreement over what it is designed to achieve. At a basic level, scrutiny involves parliamentarians, and parliamentary committees, using the forum of Parliament to hold the government to account for its policy choices and decisions. Broadly speaking, the aim of such scrutiny is to extract information from the government so as to enable parliamentarians and the public to be better informed when making decisions within the democratic process. However, in political reality even the most basic forms of scrutiny become unavoidably subsumed within the wider political context. During the Brexit process, this meant that political circumstances did not always align to enable parliamentarians to use the parliamentary process to

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develop the detailed understanding of the implications of certain decisions before they had to be made. The unique nature of the Brexit timetable, which could not, despite parliamentary sovereignty, be controlled by Parliament itself, meant that scrutiny was often on the back foot. The case for certain bespoke arrangements increased as the process went along, but also became increasingly unlikely as the politics became more and more polarised. The reality of parliamentary scrutiny is almost always more sobering than when described in the abstract. While the process of amending government Bills is often thought of as one of the principal means of backbench influence, in reality the scope of what can be changed in a Bill is much more limited than might be imagined. There are all sorts of mundane reasons why what parliamentarians can actually achieve during the passage of a Bill is limited. Parliamentarians have limited time as well as finite resources and political capital to expend. This means that they tend to focus on the one or two issues that have a realistic prospect of success, as Sir Bob Neill explained above. In the context of the Brexit process, this often meant a focus on the role of Parliament. At certain stages of the process, particularly early on, the role of Parliament and constitutional norms, served as a unifying factor which led to amendments and concessions. However, as the political situation developed, institutional concerns took a back seat. It would be extremely naïve to imagine that in the aftermath of the referendum, the government would have prioritised parliamentary or constitutional reform in order to enhance scrutiny of the Brexit process. In the context of a divided country and a divided Parliament, there are limited incentives to reform the system. Parliamentary reform in the aftermath of the referendum would have looked like changing the rules of the game in order to favour the chances of one of the participants. Despite being widely described as a ‘constitutional moment’, it is noteworthy that Brexit did not lead to any significant parliamentary reform. To end on a positive, one of the strengths of Parliament’s scrutiny of Brexit was the ability of parliamentarians, and committees in particular, to inform public debate. In that regard, a significant proportion of Parliament’s scrutiny was effective. However, it is also right to acknowledge that if the government is unwilling to disclose something, despite the power of Committees to send for persons, papers and records, in practice it is very hard to get the government to disclose it. In this period, even when scrutiny was effective, it was rarely efficient. Often it required relentless pressure to get the government to reveal what it was planning to do. One of the main lessons from this period is that select committees are often at their most effective when they are able to influence events and follow up on reports on the floor of either House. In the House of Lords, the work of select committees often leads to amendments being tabled which can garner cross-party support. In the Commons, this rarely occurs because select committees do not routinely report on government Bills. However, when the Exiting the European Union Committee

Parliament and Brexit: Scrutiny under Pressure 265 and the Procedure Committee made recommendations that could be followed up on the floor of the House, they were influential. Ultimately, successful scrutiny requires coordination and cooperation between select committees, parliamentarians in the chamber and even the government. Unfortunately, when the political stakes are as high as they were during the Brexit process, sustained coordination and cooperation is often impossible.

11 Parliament and Human Rights ELEANOR HOURIGAN, ALEX GASK AND SAMANTHA GRANGER

I. Introduction Parliament, and the Joint Committee on Human Rights (JCHR), have a key role in ensuring that human rights are respected and protected within the UK Constitution. As the 2018 Report of the Office of the United National High Commissioner for Human Rights said: Parliaments are cornerstones of national human rights protection systems … Parliaments are instrumental in establishing and ensuring the proper functioning of such systems, laying the foundation for, and strengthening, the rule of law and its institutions, including the judiciary. They play a critical role in ensuring States’ compliance with their international human rights obligations, and provide oversight regarding the functioning of government and national institutions mandated to promote and protect human rights.1

In previous editions of this book, the chapter focussing on Parliament and human rights raised, in 2013, the importance of mainstreaming human rights in parliamentary activities and across parliamentary work;2 and in 2018, concentrated on the effectiveness of human rights scrutiny by the JCHR.3 For this edition we will reflect upon the extent to which the UK Parliament and the JCHR meet the international standards, such as they exist, for parliaments in respect of human rights. We note, however, that both of the previous themes continue to be important and undoubtedly arise in this analysis.

1 Report of the Office of the United National High Commissioner for Human Rights to the United Nations Human Rights Council: Contribution of parliaments to the work of the Human Rights Council and its universal periodic review; 2018, paras 18 and 19. 2 M Hunt, ‘Parliament and Human Rights’, in A Horne, G Drewry and D Oliver (eds), Parliament and the Law (Oxford, Hart Publishing, 2013) 223. 3 A Horne and M Conway, ‘Parliament and Human Rights’, in A Horne and G Drewry (eds), Parliament and the Law 2nd edn (Oxford, Hart Publishing, 2018) 231.

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A. The International Standards for Parliaments and Human Rights There are no legally binding international documents specifically setting out the role for parliaments, within national constitutions, in relation to human rights. However, given the role for parliaments within national constitutions, there is an obvious, if implied, role in ensuring compliance with international human rights standards. Parliaments principally do this through setting the legal framework for human rights protections domestically as part of their legislative function, and in holding the executive to account for respecting human rights standards. Notably, there are two documents that we will examine that set out potential standards for parliaments in their role as promoters and protectors of human rights: a.

b.

Human Rights: Handbook for Parliamentarians [‘the Handbook’], produced by the Inter-Parliamentary Union and the Office of the United Nations High Commissioner for Human Rights in 2005, and in particular its chapter 12;4 and The 2018 Report of the United Nations High Commissioner for Human Rights to the UN General Assembly ‘Contribution of parliaments to the work of the Human Rights Council and its universal period review’, 2018 [‘Report to UNGA’].5 This Report contains a specific Annex containing ‘Draft Principles on Parliaments and human rights’ [‘the draft principles’].

These documents contain similar, but not entirely identical suggested requirements for the role of parliaments and parliamentarians in respecting human rights, including: a. b.

c.

pre-requisites for parliaments to function in a way that respects human rights; ways that parliamentarians can take action to protect and promote human rights, including in relation to national implementation of human rights, domestic institutional infrastructures for protecting human rights, participation in international mechanisms to protect human rights, and in engaging with the public; and the competences and functions of a parliamentary human rights committee.

First, we will set out the main standards applicable to parliaments and human rights, assessing in general terms how UK parliamentary processes and structures

4 Human Rights, Handbook for Parliamentarians, Inter-Parliamentary Union and the Office of the United Nations High Commissioner for Human Rights, 2005. The majority of this handbook is focussed on setting out the international human rights framework for parliamentarians, however ch 12 sets out the potential roles of parliamentarians in ensuring human rights are respected. 5 Contribution of parliaments to the work of the Human Rights Council and its universal periodic review, Report of the Office of the United Nations High Commissioner for Human Rights to the United Nations General Assembly, 2018, A/HRC/38/25.

Parliament and Human Rights 271 meet those standards. We will then focus specifically on what those standards say about parliamentary human rights committees, and will assess how well the JCHR meets the draft principles. This will include an assessment of the three core elements of the draft principles: (i) the JCHR’s mandate; (ii) the JCHR’s responsibilities and functions; and (iii) the JCHR’s composition and working methods. We will treat the JCHR’s responsibilities and functions in four themed groups: (i) international standards; (ii) legislative scrutiny; (iii) holding the executive to account; and (iv) other matters. Finally, we will seek to draw some conclusions about areas for possible further development for how the UK Parliament and the JCHR may want to engage with human rights in the future.

II. What Do the International Standards Require? A. Pre-requisites for Parliaments to Function in a Way that Respects Human Rights Chapter 12 of the Handbook identifies a number of criteria or safeguards that are, effectively, pre-requisites for parliaments to function in a way that respects human rights: a. b. c. d.

Ensuring the representative nature of Parliament. Guaranteeing the sovereignty of Parliament by protecting the human rights, and especially the freedom of expression, of its Members. Enabling parliamentarians to understand the legal framework in which they operate, in particular parliamentary procedure. Determining Parliament’s role in states of emergency.

Current UK laws, policies and parliamentary practices, for example in relation to electoral law or parliamentary immunity, would seem to meet the first and second of these criteria comfortably. In relation to the third criterion, whilst resources and training are available to support parliamentarians in understanding the legal framework and parliamentary procedures within which they operate, that in itself does not necessarily guarantee that all parliamentarians have had training in human rights matters. However, it would seem that the third criterion is generally met by the existing provision of support, for example through the Libraries of both Houses. As is to be expected, there will be differences in approach between jurisdictions on the detail, and how these standards are to be achieved – this is relevant to the fourth criterion. The absence of a codified constitution in the UK means that the UK does not have specific constitutional protections in place in case of a state of emergency, beyond the laws contained in, for example, the Human Rights Act 1998, the Equality Act 2010 and the Civil Contingencies Act 2004. Notably, Parliament’s role in a state of emergency has been the focus of recent

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attention during the Coronavirus pandemic. Parliament has continued to have a role in passing legislation, in scrutinising secondary legislation and in holding the government to account during the pandemic. Parliament has had to adapt to deal with swift law-making, remote-working, and accommodating hybrid procedures during a phased return to business as usual. However, there has been some criticism as to whether Parliament has been allowed sufficient time and information to effectively scrutinise emergency legislation and government actions during the crisis – and whether there has been too much latitude granted to the executive when taking difficult decisions during the pandemic.6 Nevertheless, whilst it is clear that there are lessons to be learned as to how Parliament can best exercise effective scrutiny in a crisis, the fact that Parliament has continued to have a core role in passing legislation and in holding the executive to account during the recent crisis, suggests that the procedures and practices, albeit in an uncodified constitution, would also meet the fourth criterion. The Report to UNGA additionally highlights the important part played by parliaments in the respect of human rights, noting their role both in legislating (ensuring that the laws comply with and protect human rights) and also in holding the government to account for respect for human rights. We will return to these themes in more detail below when considering the specific responsibilities and functions of human rights Committees. In any case, the key point here is that there are mechanisms in place for the UK Parliament to consider respect for human rights both in legislative scrutiny and in thematic work when holding the executive to account. Therefore, all the criteria seem to be met to enable the UK Parliament to function in a way that respects human rights.

B. Ways that Parliamentarians Can Take Action to Protect and Promote Human Rights Chapter 12 of the Handbook also sets out ways that parliamentarians can take action to protect and promote human rights, including checklists of possible actions a parliamentarian may wish to take in different areas. The Report to UNGA makes similar points, so both will be addressed together here. Key actions include: a.

Participating in international efforts to promote, protect, and monitor compliance with human rights standards.7

6 See, eg, T Hickman, ‘Abracadabra Law-making and Accountability to Parliament for the Coronavirus Regulations’ (UCL, 17 November, 2020); T Hickman, ‘The Use and misuse of Guidance during the UK’s Coronavirus Lockdown’ (UCL, 4 September, 2020); and J Sumption, ‘Government by Decree: COVID-19 and the Constitution’, Cambridge University Freshfields Lecture, 26 October, 2020 (Cambridge University, 2020). See also, Joint Committee on Human Rights, The Government’s Response to COVID-19: Human Rights Implications, (seventh report) (2019–21, HL 125, HC 265) 67–69 and in particular the conclusions at paras 228 and 230. 7 This includes: (i) taking action to encourage ratification of human rights treaties and to scrutinise carefully any derogations or reservations made to such treaties; (ii) parliamentary scrutiny of, and

Parliament and Human Rights 273 b. c. d.

Ensuring national implementation of human rights obligations.8 Creating and supporting an institutional infrastructure for protecting human rights.9 Mobilising public opinion and engaging with civil society and the public in relation to human rights.

C. Analysis The UK’s legal system is not based on a codified written constitution; does not give human rights laws a higher status than any other Act of Parliament; and requires specific incorporation of international treaty obligations into domestic law in order for them to be given full legal effect (a dualist system). These specificities of the UK legal system mean that some of these standards need to be adapted to the UK legal situation.

D. Engagement with International Human Rights Standards In relation to participating in international efforts to promote, protect, and monitor compliance with human rights standards, the UK Parliament largely does facilitate this, albeit in a rather ad hoc way. In particular, parliamentary engagement in treaty processes in general is still developing, especially post-Brexit. However, there has been increased parliamentary activity, and specifically Committee scrutiny of treaties and treaty negotiations since the Brexit referendum in 2016. The work on the House of Lords International Agreements Committee (and its predecessor sub-Committee) since 2019 has sought to improve the quality of treaty scrutiny within Parliament (see also the chapter seven in this volume). Notably that Committee has also scrutinised progress on ratification of human rights treaties, such as their recent work on involvement in, the process of negotiating and concluding treaties; and (iii) parliamentary involvement in the work of universal periodic reviews, the Human Rights Council and other human rights treaty monitoring bodies. Such involvement can include in preparatory work, such as consultations leading up to such international review processes; attending deliberations in Geneva; or by encouraging implementation of the recommendations. 8 National implementation specifically including: (a) ensuring that human rights considerations are borne in mind when adopting the budget; (b) holding the executive to account; (c) following up on recommendations and decisions by human rights treaty bodies; (d) establishing parliamentary human rights bodies; and (e) adopting legislation, both to protect and promote human rights, and to ensure that other legislation it adopts does not risk being in conflict with human rights obligations. 9 The institutional infrastructure includes: (a) working closely with national human rights institutions (NHRIs). [In line with the 1993 principles relating to the Status of National Institutions (The Paris Principles), Adopted by General Assembly resolution 48/134 of 20 December 1993; the 2004 Abuja Guidelines for cooperation between Parliaments and NHRIs; and the 2012 Belgrade Principles on the relationship between national human rights institutions and parliaments, Belgrade, Serbia, 22–23 February 2012]; (b) working closely with any ombudsperson’s office responsible for human

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the Istanbul Convention.10 There has also been increased interest in treaty scrutiny in the House of Commons, for example the International Trade Committee’s work in scrutinising the negotiation and agreement of trade treaties.11 The JCHR can also scrutinise international agreements for compliance with human rights, and in 2019 produced a report on human rights protections in international agreements.12 However, despite this recent progress, processes could benefit from being further improved and streamlined, not least given the very limited window for Parliament to engage with treaties during the processes set out under the Constitutional Reform and Governance Act 2010. It is also worth noting that the UK has not ratified all of the main international human rights treaties. Notably, the UK has not signed or ratified: (i) the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (the UN migrant workers treaty); (ii) the International Convention for the Protection of All Persons from Enforced Disappearance; (iii) the Optional Protocol to the Convention of the Rights of the Child on a communications procedure; or (iv) the Optional Protocols to the International Covenant on Civil and Political Rights (ICCPR) or the International Covenant on Economic, Social and Cultural Rights (ICESCR), which would allow individuals to raise concerns (communications) in relation to UK compliance with those Covenants. There also has not been a significant amount of recent debate about this in Parliament. This may be because the UK’s position in relation to those instruments is relatively settled, or it could indicate a lack of interest in encouraging increased scrutiny of these sorts of issues. It is also noteworthy that most international human rights treaties are not specifically incorporated in the UK – unlike the European Convention on Human Rights (ECHR), which is effectively incorporated into domestic law by the Human Rights Act 1998. Individual domestic laws may cover the same or similar ground as the requirements in such treaties, without specifically resulting in incorporation – but this means that implementation can be piecemeal, incomplete and that such rights may not be enforceable. There has been recent work, in Wales and Scotland, which seeks to incorporate human rights treaties better into domestic law.13 rights; and (c) encouraging action to adopt a national human rights action plan, including specific action plans for addressing recommendations of human rights treaty monitoring bodies. 10 See, eg, the Letter of 15 October 2021, from the Chair of the International Agreements Committee to Baroness Williams, entitled ‘Ratification of the Istanbul Convention and protection of migrant victims of domestic violence and abuse’ (MIN/01605/21). 11 Established in 2016. See, eg, its current inquiries ‘UK trade negotiations: Agreement with New Zealand’, or ‘UK trade negotiations: Agreement with Japan’. 12 Joint Committee on Human Rights, Human Rights Protections in International Agreements, (seventeenth report) (2017–19, HL 310, HC 1833). 13 In Wales, the Rights of Children and Young Persons (Wales) Measures 2011 partially incorporated the CRC into Welsh legislation. The Welsh Government has additionally commissioned research to explore potential benefits of further incorporation of UN treaties into Welsh legislation. In Scotland, the plan is to incorporate into Scottish law the ICESCR, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the Convention on the Elimination of All Forms of Racial Discrimination (CERD) and the Convention on the Rights of Persons with Disabilities (CRPD) through a new Human Rights Bill.

Parliament and Human Rights 275 It is not yet clear whether this renewed focus on incorporating human rights treaties in some of the jurisdictions within the UK will lead to an increased focus on enforcing human rights more generally across the UK. However, it seems unlikely that the UK Government’s current work on reviewing the Human Rights Act will lead to legislative proposals to give greater domestic effect to UN human rights treaties.14 One specific example where human rights could be given greater consideration is the field of economic and social rights. In practice in the UK there are detailed rules protecting economic and social rights such as employment rights. For example, numerous laws give effect to Article 7 of the International Covenant on Economic, Social and Cultural Rights in relation to working conditions, including the National Minimum Wage Act 1998, the National Minimum Wage Regulations 2015, the Equality Act 2010, the Health and Safety at Work etc. Act 1974 or the Working Time Regulations 1998. However, laws protecting economic and social rights are very rarely framed in terms of those rights and there is the potential to do more to promote their enforcement as rights. There is scope for the UK Parliament to do more to engage with international human rights standards. More could be done to systematically engage with international human rights treaty body processes and reviews and follow up on recommendations from international human rights treaty body monitoring mechanisms. We consider further the JCHR’s role and potential role in these matters in the next section.

E. Ensuring National Implementation of Human Rights Obligations In terms of ensuring national implementation of human rights obligations, the UK Parliament largely does this on the floor of the House and through the work of Committees. The majority of legislative scrutiny is done on the floor of each House and in public bill Committees – with the JCHR routinely scrutinising Bills for compliance with human rights and adopting reports (with suggested legislative amendments) for Bills which raise the most significant human rights issues. Much of the work holding the executive to account for respecting human rights is done by subject-specific and departmental select committees, as well as through the specific work of the JCHR, the Women and Equalities Committee (WEC) and the Foreign Affairs Committee (FAC). However, it is noticeable that whilst individual Members can raise the concerns of their constituents, the JCHR itself cannot consider individual cases.15 We will analyse the JCHR’s contribution to ensuring national implementation of human rights obligations in the next section.16 14 See

the Terms of Reference for the Government’s Independent Human Rights Act Review. Standing Order 152B, para (2)(a). 16 The mainstreaming of human rights, looking beyond the JCHR to the responsibilities and role of the rest of Parliament, was considered in the first edition of this book: Hunt (n 2). 15 JCHR

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Another area that is repeatedly mentioned in the international standards, but does not necessarily receive specific, systematic focus in practice from a human rights perspective in the Westminster Parliament relates to the Budget. The absence of any specific process or structure within Parliament for assessing the budget against human rights standards is a notable point of inconsistency with Chapter 12 of the Handbook and the Report to UNGA. It is discussed further in relation to the work of the JCHR below.

F. Supporting an Institutional Infrastructure for Respecting Human Rights The criteria for creating and supporting an institutional infrastructure for respecting human rights depend somewhat on the way that such infrastructures are organised nationally. In the UK, there are three national human rights institutions (NHRIs): the Equality and Human Rights Commission (EHRC), the Scottish Human Rights Commission and the Northern Ireland Human Rights Commission.17 Each of these has a relationship with the legislature in the UK most closely connected with its work – as well as relationships with the UK Parliament, and the JCHR, more generally. The work of these three Commissions is enormously helpful in scrutinising and supporting the work of government, and the private sector, in respecting equality and human right standards across the UK. While undoubtedly more could be done to improve them, there are also useful links at both formal and informal levels to ensure good collaborative working methods. There is also no Human Rights Ombudsperson in the UK system. Whilst this is not a mandatory requirement, it is worthy of consideration. Within the UK system, individual complaints would generally be left to an individual to pursue directly, perhaps by pursuing correspondence with the relevant public authority, by asking their MP to raise a matter on their behalf or through litigation in the courts if appropriate. The high cost of legal proceedings and the significant and increasing restrictions on the availability of legal aid since 1999 have led to an increased risk that individuals are unable to litigate,18 and therefore unable to enforce their human rights.19 The UK system may benefit from a mechanism for individuals to raise complaints, without needing to rely on litigation, such as a Human Rights Ombudsperson. If the government is to pursue its work on reforming the human rights framework, and to address the challenges for individuals trying to enforce their human rights, a Human Rights Ombudsperson could be one idea worth pursuing. The other element mentioned under this rubric concerns national human rights action plans. There are sector-specific UK action plans, for example relating 17 In

relation to equalities, there is also the Equality Commission for Northern Ireland. D Neuberger and P Riddell, The Power of Judges (London, Haus Publishing, 2018) 16. 19 Eg, Joint Committee on Human Rights, Enforcing Human Rights, (tenth report) (2017–19, HL 171, HC 669), and in particular ch 3, 23–83. 18 Eg,

Parliament and Human Rights 277 to business and human rights;20 and women, peace and security.21 However, there is no general national human rights action plan. Neither are there specific action plans for addressing human rights concerns raised in reviews by human rights treaty bodies. There may, therefore, be scope for parliamentarians to seek to encourage the government to establish and agree national human rights action plans, where appropriate, to encourage a better structured approach to giving effect to human rights in the UK. In sum, the UK Parliament provides an adequate infrastructure for ensuring respect for human rights. But there is scope for the development of national action plans and potentially the appointment of a Human Rights Ombudsperson to allow for improved enforcement of human rights.

G. Ideal Competence of a Parliamentary Human Rights Committee Chapter 12 of the Handbook sets out, in particular, the ‘ideal competence of a Parliamentary human rights Committee’, stating that, to be fully effective, a parliamentary human rights body should: a. b.

c. d.

have a comprehensive human rights mandate, encompassing legislative and oversight functions; be competent to deal with any human rights issue it deems important, take legislative and other initiatives in the area of human rights and address human rights problems and concerns referred to it by third parties; be competent to advise other parliamentary bodies on human rights issues; have the power to send for persons and documents and to carry out on-site missions.

The Report to UNGA goes further by producing a set of draft principles on parliaments and human rights, covering specific requirements for a human rights committee, including a. b. c.

the mandate; responsibilities and functions; and composition and working methods.22

In relation to the competence of a parliamentary human rights committee, as set out in the Handbook, the JCHR broadly carries out these functions. In addition

20 Good Business: Implementing the UN Guiding Principles on Business and Human Rights, September 2013; Good Business: Implementing the UN Guidance Principles on Business and Human Rights, Updated May 2016; and UK National Action Plan on implementing the UN Guiding Principles on Business and Human Rights: progress update May 2020, published 27 May 2020. 21 UK National Action Plan on Women, Peace & Security 2018-2022, published January 2018. 22 Contribution of parliaments to the work of the Human Rights Council and its universal periodic review, Report of the Office of the United Nations High Commissioner for Human Rights to the United Nations General Assembly, 2018, A/HRC/38/25; Annex I: Draft Principles on Parliaments and human rights.

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to its role scrutinising remedial orders, the Standing Orders of both Houses of Parliament state that the JCHR shall consider ‘matters relating to human rights in the United Kingdom (but excluding consideration of individual cases)’. The JCHR therefore undertakes both legislative and oversight functions in its legislative scrutiny and its thematic inquiries. It should also be noted that WEC undertakes significant thematic inquiry work in equalities matters, and that the Lords Constitution Committee undertakes detailed consideration of Bills for compliance with constitutional principles (and will raise human rights matters where relevant). In terms of referral by third parties – the JCHR does consider matters raised by external parties, however, the JCHR is explicitly prohibited from considering individual cases under its Standing Orders. The JCHR’s Standing Orders23 specify that the Committee does have the required powers to send for people and papers. However, as for all Parliamentary Committees the JCHR cannot enforce sanctions against people who do not attend to give evidence (see further chapters one and six).24 Therefore, the power for the JCHR to send for people and documents is curtailed in practice by the lack of enforcement. However, evidence can still be sought and witnesses sent for; and requests for attendance or submissions are usually complied with. Therefore, in broad terms, the criteria in the Handbook seem to be met by the JCHR. We will address in section III the extent to which the JCHR complies with more detailed requirements of the draft principles.

III. Does JCHR Comply with the Principles? A. Mandate Paragraph 1 of the draft principles sets out the requirements for the mandate of a parliamentary human rights committee: A parliamentary human rights committee shall be given as broad a mandate as possible, covering all human rights as defined in national and international law. The mandate of the parliamentary human rights committee shall also provide clear terms of reference setting out its purpose and goals.

The JCHR easily meets the ‘mandate’ element for those principles, although it is given a significant amount of discretion in determining what it will work on. As set out above, the JCHR’s standing orders state that it shall consider ‘matters relating 23 Para (7) of the JCHR’s Standing Orders states: ‘ The Committee shall have power – (a) to send for persons, papers and records, to sit notwithstanding any adjournment of the House, to adjourn from place to place and to report from time to time …’. 24 Although, see the current work of the House of Commons privileges Committee on select committee powers, Committee of Privileges, Select Committees and Contempts: Clarifying and Strengthening Powers to Call for Persons, Papers and Records, (first report) (2019–21, HC 350).

Parliament and Human Rights 279 to human rights in the United Kingdom (but excluding consideration of individual cases)’, giving it both a broad mandate, but also leaving it to the JCHR’s discretion to determine what it shall work on specifically. The JCHR is not governed by any terms of reference (beyond the general parliamentary rules of procedure) and there is no clear purpose set out in the standing orders. The only thing it is specifically required to do under its standing orders is to consider remedial orders and to report on them to the House. As the JCHR is given such broad discretion, it may be questioned as to whether it has sufficiently clear terms of reference. Whilst the mandate does not expressly require that a Committee should be able to consider international human rights matters, it is notable that international compliance with human rights is the responsibility of the FAC, whereas domestic compliance with human rights is a matter for the JCHR (and any other Committees where such matters may arise). Given some of the points mentioned later on in the draft principles, it may be useful for the UK Parliament to consider how to ensure a collaborative approach to human rights between those committees focussing on domestic implementation and those focussed on international compliance and standards.

B. Responsibilities and Functions Paragraphs 2 and 3 of the draft principles set out the ideal responsibilities and functions for a human rights committee. Paragraph 2 sets out the responsibilities, which can broadly be grouped as: (i) engaging with international human rights instruments (including encouraging ratifications and using development funds to support human rights mechanisms); (ii) legislative scrutiny; (iii) holding government to account (including holding hearings); (iv) other matters (such as reviewing the budget, calling for a national action plan, providing human rights information and training, and engaging with NHRIs and civil society). Paragraph 3 sets out specific roles for a parliamentary human rights committee regarding the international human rights system. We will consider the extent to which the JCHR meets these criteria taking each of the above four groupings in turn.

i. Engaging with International Human Rights Treaties The third draft principle provides that a parliamentary human rights committee shall undertake various roles regarding the international human rights system. First, the draft principles provide that parliamentary human rights committees should: (a) participate in the national consultations held in preparation of and during the drafting process of reports to the international and regional human rights mechanisms; and (b) review and comment on the government draft reports which the state is required to submit to the international and regional human rights mechanisms, such as the Universal Periodic Review (UPR). To date, the JCHR has not taken an active role in the drafting of state reports to the treaty monitoring

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bodies. Instead, engagement in this process is largely undertaken by the National Human Rights Institution for England and Wales, the EHRC, which monitors compliance with the seven UN human rights treaties ratified by the UK,25 and by the relevant stakeholders within the NGO community who submit shadow reports to the treaty monitoring bodies. In order to contribute to this process effectively, the JCHR would have to increase its own internal monitoring of international human rights treaties, which is at present done on an ad hoc basis and does not form a routine element of the Committee’s work. Arguably, this may simply replicate the excellent work undertaken by the EHRC, which has established an online ‘human rights tracker’ to allow for transparent monitoring of the UK’s compliance with its international treaty obligations and UN recommendations. However, there is certainly scope for the JCHR to take a more active role in engaging with the government’s draft reports and providing a review and commentary for the government to consider prior to the submission of its reports to the UN. Second, the draft principles provide that parliamentary human rights committees should participate in the UPR and in sessions of the treaty bodies, either as part of the government delegation or on its own. The UPR is the process by which the UN Human Rights Council (HRC) in Geneva examines the human rights record of all UN Member States every four to five years. Its primary objective is to bring about a real, practical improvement in the promotion and protection of human rights on the ground in every country. It aims to do this by providing a systematic assessment of each state’s fulfilment of the obligations which it has voluntarily undertaken by entering into international human rights treaties, and by making that assessment on the basis of objective and reliable information about human rights in the state concerned. During the UK’s most recent examination undertaken by the Human Rights Council in May 2017, 227 recommendations were made to the UK by other Member States, many of which related to previous JCHR inquiries on business and human rights; prison safety; the treatment of asylum seekers; counter-terrorism; violence against women and girls; and children’s rights. Notably, the UK Government only accepted 42 per cent of the recommendations, which is a low rate compared to the average global rate of 73 per cent of recommendations accepted by states.26 The UK Government has been criticised by both the EHRC and the NGO community for the government’s human rights record, its lack of engagement with the UPR process, and its failure to implement the majority of recommendations made by the Member States. Arguably, greater engagement in the UPR process by the JCHR could encourage the government to 25 The UN Convention Against Torture (UNCAT); the UN Convention on the Rights of the Child (UNCRC); the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW); the International Covenant on Civil and Political Rights (ICCPR); the International Covenant on Economic, Social and Cultural Rights (ICESCR); the Convention on the Elimination of All Forms of Racial Discrimination (CERD); and the Convention on the Rights of Persons with Disabilities (CRPD). 26 Equality and Human Rights Commission, ‘UK’s Reputation as a Human Rights Champion under Threat’, 21 September 2017.

Parliament and Human Rights 281 commit itself more fully to the UPR process and the implementation of its recommendations. Although the JCHR has never attended the UPR as a delegation, there was some initial engagement following the UK’s second examination in 2012. In November that year, the JCHR took part in an international conference organised by the Inter-Parliamentary Union (IPU) and the Commonwealth Secretariat to consider how to increase the role played by parliamentarians in the UPR process. As a result, a number of recommendations were formulated, including the need for parliaments to contribute to the preparation and scrutiny of the national report to the Human Rights Council, and to be closely involved in monitoring the implementation of the final recommendations. In response to these initiatives and following the UK’s UPR examination in 2012, the JCHR reviewed the 132 recommendations made to the UK and identified those which most closely to the Committee’s work. The JCHR decided to integrate these UPR themes into its work programme, resulting in the JCHR’s Reports on Violence against Women and Girls in 2015, and the Government’s Policy of the use of Drones for Targeted Killing in 2016.27 These are clear examples of the way in which the JCHR can incorporate the findings of the UPR into its work stream and add further pressure to the Government to implement its recommendations. However, given the vast overlap between the work of the JCHR and the Human Rights Council, there is scope for far greater engagement than simply incorporating themes into its work stream. The JCHR has never participated in the UPR sessions either as part of the government delegation or on its own, nor has it engaged with the government’s reports. This is something it could consider in the future as a means of increasing parliamentary engagement with the UPR process, giving greater visibility within Parliament to the UK’s international commitments, and increasing pressure on the government to give proper consideration to the implementation of the UPR’s recommendations. It may also be valuable for the JCHR in its evidence sessions with the Minister for Human Rights to specifically hold the government to account for the implementation of the UPR recommendations.28 Third, the draft principles provide that parliamentary human rights committees should: (a) participate, through a designated focal point, in the national mechanism for reporting and follow-up, and ensure that recommendations of international and regional human rights mechanisms that require legislative reform, the adoption of new laws, or budgetary adjustments are identified and given priority consideration; and (b) lead the parliamentary oversight of the work of the government in implementing recommendations of international and regional human rights mechanisms. The JCHR currently has no designated Member who is responsible for taking the lead on reporting on compliance with 27 Joint Committee on Human Rights, Violence against Women and Girls, (sixth report) (2014–15, HL 106, HC 594); and Joint Committee on Human Rights, The Government’s policy on the use of drones for targeted killing, (second report) (2015–16, HL 141, HC 574). 28 The JCHR’s attempts to improve Parliament’s role in human rights treaty monitoring were discussed in the second edition of this book: Horne and Conway (n 3) 242.

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international and regional human rights compliance. However, the JCHR as a whole engages with the government’s response to adverse human rights judgments, not just at the domestic level, but at the regional level also. Where the UK is subject to an adverse judgment of the European Court of Human Rights, the JCHR reviews the government’s response. Where an adverse judgment requires a change in the law and is dealt with by way of Remedial Order, the Committee has a specific role in reviewing the government’s proposed and draft orders and making recommendations to Parliament regarding the adequacy of such orders. Beyond this, the JCHR’s engagement in the government’s compliance with its international treaty obligations is ad hoc and tends to arise in the context of domestic legislative scrutiny and thematic inquiries. Although the JCHR’s primary focus for legislative scrutiny tends to be compliance with the rights under the ECHR, Bills are also scrutinised for their compliance with international treaties: for example, whether the government’s Overseas Operations Bill (now Act)29 complied with the UN Convention Against Torture; and whether the government’s Nationality and Borders Bill complies with the Refugee Convention.30 Such an approach ensures against a siloed approach to applying human rights law and allows the Committee to ensure that all human rights standards binding on the UK are borne in mind when Parliament legislates. Whilst international human rights compliance falls squarely within the remit of the JCHR, international human rights compliance is often considered by other parliamentary committees in the course of their legislative scrutiny or thematic inquiry work. The newly formed International Agreements Committee in the House of Lords is likely to play a key role in this regard and, by way of example, is currently engaged on the issue of ratification of the Istanbul Convention.31 Finally, as part of its role to ensure compliance with international human rights obligations, the draft principles provide that parliamentary human rights committees should meet with UN mandate holders, such as special rapporteurs, during country visits. On occasion, Committee Members and staff have met with UN Special Rapporteurs during a country visit, although this is ad hoc and has not occurred since the start of the COVID-19 pandemic. One such visit, before the pandemic, was held in 2018 with Philip Alston, the UN Special Rapporteur for Human Rights and Extreme Poverty. Whilst such meetings have provided some value in providing a forum for discussion, there has been no clear output or action taken as a result of such meetings. There is scope for much more focused dialogue between Parliament and the special rapporteurs. 29 Joint Committee on Human Rights, Legislative Scrutiny: Overseas Operations (Service Personnel and Veterans) Bill, (ninth report) (2019–21, HL 155, HC 665). 30 Work on the Nationality and Borders Bill also includes considering compatibility with the Refugee Conventions; the Statelessness Conventions; the Convention Against Trafficking in Human Beings; the UN Convention on the Rights of the Child; the ECHR; and the International Covenant on Civil and Political Rights. 31 See the correspondence between Lord Goldsmith QC, Chair of the Lords International Agreements Committee, and Victoria Atkins MP, Minister for Safeguarding, regarding the Istanbul Convention, dated 11 February 2021. See also the JCHR’s previous work on the Istanbul Convention: JCHR, Violence against women and girls, Sixth Report, 28 January 2015.

Parliament and Human Rights 283 The UK has signed and ratified various regional and international human rights treaties, including the seven core UN treaties, which are legally binding in international law, yet, at present, the JCHR’s engagement with international human rights compliance is ad hoc. Although compliance with international treaty obligations is often an element of the JCHR’s legislative scrutiny and thematic inquiry work, it is rarely a primary focus. There is scope for far greater and more systematic engagement with international treaty body monitoring and the UPR process, as well as greater cooperation with Parliament’s International Agreements Committee and the EHRC, both of whom have a clear remit to monitor the UK’s compliance with its international treaty obligations. It is important to highlight here the increased importance and relevance of the role of international law and especially international human rights law in scrutinising UK compliance with human rights standards. In part, this results from the increased globalisation of business and human exchanges, but this is also due to the impact of Brexit. As has been well documented, there is an increased need for adequate parliamentary scrutiny of international agreements, especially post Brexit, including scrutiny of the compatibility of such agreements with human rights standards.32 In part, this is because international agreements form an increasingly important role in the modern globalised world, so it is only right that Parliament has a core role in scrutinising those agreements (and not only the domestic legislation implementing them). In part, this is to replace the work previously done by the EU institutions, such as the European Parliament which cautiously evaluated all EU agreements (then binding on the UK) for compliance with human rights standards – and sought to ensure human rights ‘essential elements’ were included in all significant agreements entered into by the EU – thus making human rights conditionality a central part of all EU framework Agreements. However, adequate Parliamentary scrutiny cannot be done without adequate and timely information in relation to agreements being negotiated. As the JCHR Report on Human Rights Protections in International Agreements concluded The current system intended to ensure Parliament has information about the human rights implications of proposed agreements is not working. Parliament has not received adequate or timely information from Government about the potential human rights implications of international agreements being negotiated or those subject to CRaG scrutiny.33

Moreover, appropriate scrutiny of international agreements by Parliament is a complex matter requiring coordination between different interested Committees and actors within Parliament. As noted in section II, whilst the Lords’ International Agreements Committee (and its predecessor) have undertaken useful scrutiny of 32 Commons Library Briefing Paper, ‘How Parliament treats treaties’, Number 9247, 1 June 2021, and D Gracia and A Horne, ‘Treaty Scrutiny: A Brave New World for Parliament,’ UK Constitutional Law Blog, 18 March 2020 ukconstitutionallaw.org/2020/03/18/treaty-scrutiny-a-brave-new-frontier-for-parliament/ (accessed 19 January 2022). 33 Joint Committee on Human Rights, Human Rights Protections in International Agreements, (seventeenth report) (2017–19, HL 310, HC 1833) para 52. For context, ‘CRaG scrutiny’ means scrutiny of treaties pursuant to the provisions of s 20, Constitutional Reform and Governance Act 2010.

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international agreements since 2019, the Commons has yet to develop processes as to how best to undertake and coordinate such scrutiny, outside the routine scrutiny of trade agreements by the International Trade Committee.34 It will be important, however, for any such processes to include adequate scrutiny for human rights compliance – in terms of the potential for such agreements to impact on human rights for people in the UK, potential risks of human rights abuses within supply chains, as well as wider political issues around respect for human rights in third countries and human rights conditionality.

ii. Legislative Scrutiny Legislative scrutiny is one of the central functions of the JCHR, and it largely meets the draft principles in this regard. While the draft principles anticipate that a human rights committee would ‘introduce and review bills and existing legislation’ the JCHR does not introduce legislation, as Bills are introduced by government and by individual Members. It is not a function of any Westminster Select Committee to introduce its own legislation, but rather to scrutinise the legislation brought before Parliament on behalf of the Members of either both Houses. However, Members of the Committee can introduce Bills and table amendments to Bills.35 Neither does the JCHR often review existing legislation for human rights compatibility, although thematic inquiries may throw up incompatibilities in existing laws and, as noted above, the remedial order process allows the Committee to identify and propose solutions to human rights issues in the legislation concerned. Notably, the JCHR’s scrutiny of the human rights compatibility of primary legislation introduced since the Committee was established means that much existing legislation has already been scrutinised for human rights compatibility. The main focus of the JCHR’s legislative scrutiny is, therefore, new Bills introduced into Parliament. It goes without saying that human rights compatibility and the delicate balance to be struck in Bills is a complex matter for the whole of Parliament. However, the JCHR has a well-established and specific role in scrutinising Bills for human rights compatibility and in helping to ensure that matters relating to human rights compatibility are sufficiently transparent, to help inform Parliamentary deliberations. a. JCHR Prioritisation in Undertaking Legislative Scrutiny While the JCHR’s standing orders do not specify that it should scrutinise legislation, assessing the human rights compatibility of Bills passing through Parliament has formed a key element of the Committee’s function throughout its existence. 34 Note, however, the ongoing inquiry of the Public Administration and Constitutional Affairs Committee ‘The Scrutiny of International Treaties and other international agreements in the 21st century’. 35 See, eg, the Marriage and Civil Partnership (Minimum Age) (No. 2) Bill introduced by Pauline Latham in 2020.

Parliament and Human Rights 285 The approach to legislative scrutiny has, however, needed to flex and change over the years in response to various factors, such as: the need to prioritise the JCHR’s finite resources; the recognition of the need for greater focus on Bills that raise the most significant human rights issues; ensuring a focus on Bills most likely to be passed; the importance of ensuring that the Committee has had sufficient time to properly appreciate the subject-matter of a specific Bill, whilst also remaining sufficiently nimble to react to unexpected or fast-tracked legislation; the quality of the information provided by government; priorities of the Committee, including an increased focus on thematic inquiries; and the extent to which other Parliamentary Committees are conducting their own detailed scrutiny. In the first few years of its existence, the Committee scrutinised and produced a report on every Bill considered by Parliament. Given the numbers of Bills brought forward and the limits on JCHR resources, not all of them received a stand-alone report. These were reserved for the Bills raising the most significant human rights concerns. Nevertheless, the others were considered, albeit grouped together in combined scrutiny reports. The amount of scrutiny was huge.36 Given the limited resources of the JCHR, this volume of legislative scrutiny necessarily impacted upon the committee’s other functions – limiting its ability to conduct thematic inquiries and to react to other political and legal developments with implications for human rights. The Committee thus changed its approach, deciding instead to review the government’s proposals for its legislative programme in the Queen’s speech and to identify from these Bills those that would be a priority – ie those Bills that appeared most likely to give rise to human rights concerns. This approach allowed the Committee to focus its attention, and resources, on key Bills rather than spending time addressing legislation that was unlikely to impact on human rights, or indeed legislation that was unlikely to be passed. While the approach to legislative scrutiny has not remained static over the two decades of the JCHR’s existence, as the Committee has matured it has nevertheless benefited from a measure of continuity in its approach. This has allowed for a more systematic and less haphazard response to each legislative session, and has ensured the members of the Committee and the staff supporting them gain familiarity and expertise in the crucial exercise of legislative scrutiny. b. Transparency and Legislative Scrutiny While the JCHR reviews Bills in accordance with the draft principles, the efficacy of that review depends on it being able to access detail on the legislation and the policy context in a timely fashion. Timeliness is of particular importance to ensure that the Committee’s output is available to the rest of Parliament while it can still be of use during the passage of the Bill. An authoritative report from the JCHR 36 Between the JCHR’s first meeting in 2001 and 2005, it published 56 scrutiny reports, commenting on 142 government Bills, 347 private Members’ Bills and 23 private Bills.

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on a Bill is of limited benefit if it is published after the Bill has already become law, or after the Houses have considered the relevant provisions of that Bill. In practice, the JCHR is generally able to issue reports in time to influence the debate during Committee and/or Report stages in at least one House, but often not in both. Access to detail on the legislation and the policy context helps to speed up the JCHR response but, in turn, depends on cooperation and transparency from the government. Crucial in this process are: a. b.

c. d.

the section 19 HRA statement of compatibility, which must be completed for every government Bill; explanations as to human rights compatibility – whether in the Explanatory Notes (if the Bill does not significantly engage human rights) or in a separate ECHR memorandum (for more complex Bills) – that should be prepared in respect of every government Bill to assist the JCHR’s work and published at the same time as the Bill is introduced; the attendance of an appropriate minister when invited to an oral evidence session before the Committee; and informal co-operation and communication between JCHR staff and the relevant Bill team.

Considering first the section 19 statement of compatibility, this ensures that the government has turned its mind to the compatibility of the legislation with the rights guaranteed under the HRA. While the JCHR may not necessarily always agree with the opinion of the responsible minister that the Bill is compatible (which, given that the government rarely intends to violate fundamental rights, is the opinion given in almost every case), the statement serves the purpose of turning the government’s mind to the question of human rights in respect of every Bill, and also of making clear the government’s intentions with regard to respect for human rights in any Bill introduced. The section 19 statement concerns only compatibility with ECHR rights. However, the explanations accompanying Bills also include analysis of how other human rights instruments are engaged. This is of particular assistance to the JCHR, and indeed Parliament as a whole, whose remit and interests do not begin and end with the ECHR, but extend to other human rights obligations applying to the UK in domestic and international law. Where a Bill is of particular concern in human rights terms (and where there is sufficient time), the Committee’s legislative scrutiny is enhanced accordingly. It will invite written evidence and/or hear oral evidence from experts and stakeholders on its implications. Once this has been done the responsible minister will be invited (if the timetable allows) to attend a session so that the Committee can explore with them the human rights issues raised in evidence. This provides the Committee with an opportunity to receive a response ‘from the top’ to the concerns raised by other witnesses and by members of the Committee. The staff advising the Committee also benefit from informal contact with the Bill team in the relevant government department. This allows the JCHR staff to better advise the Committee. It is presumed that this is also seen as a positive from

Parliament and Human Rights 287 the government’s perspective, as it helps to avoid the Committee basing its views on inaccuracies or misunderstandings. As previously suggested, all of the above processes that assist the JCHR in its legislative scrutiny depend on transparency from the government. The general trend over the JCHR’s existence has been towards greater transparency, but this does not mean that the JCHR is furnished with the information it needs in a timely fashion in respect of every Bill.37 The Chair of the JCHR has noted that on occasion, the ability of the JCHR to conduct legislative scrutiny ‘on behalf of the House is hampered when the Government leaves little time between the initial legislative stages in the House of Commons’.38 If the international standards for parliaments and human rights are to be developed further, it could be useful to consider mentioning the role that parliaments can play in improving transparency in human rights matters. c. Legislative Scrutiny of Statutory Instruments Statutory Instruments are an increasingly significant tool for legislating. Not only for traditional areas where statutory instruments are undeniably useful, for example such as updating detailed lists and technical details that might need regular updates without requiring significant parliamentary time, but also to set out, in secondary legislation, the detail of policies and how they are to be enforced. This is done through provisions in (usually government) Bills that grant ministers sometimes quite wide powers to legislate through the use of Statutory Instruments. Given the growing importance of statutory instruments, it would be reasonable to suggest that effective legislative scrutiny in accordance with the draft principles requires that scrutiny is not limited to primary legislation. Yet whilst section 6 HRA provides that it is unlawful for a minister (or other public authority), when making a statutory instrument, to act in a manner incompatible with Convention rights (unless so required by the parent Act) there is no formal mechanism by which Parliament routinely scrutinises statutory instruments for compliance with human rights standards. It does not fall within the JCHR’s usual function. It therefore often falls to the courts to make such a determination – after an application by an individual whose Convention rights may have been violated by the measure.

37 Eg, the UK Internal Market Bill was introduced into Parliament on 9 September 2020 and received its second reading on 14 September 2020, but the ECHR memorandum was not produced until 22 September 2020. The JCHR was forced to write to the responsible minister to remind him that ‘prompt provision of ECHR memos is important for parliamentary scrutiny of Government Bills, and particularly so when a Bill has a contracted timetable [like the UKIM Bill]’ (see the letter from Harriet Harman to Alok Sharma of 14 September 2020). Moreover, when timetables are compressed, the quality of timely legislative scrutiny is put under significant pressure. 38 See the letter from Harriet Harman to Jacob Rees-Mogg of 29 March 2021 entitled ‘Scrutiny of Bills by the Joint Committee on Human Rights’. The Leader of the House accepted in his response that ‘all members will benefit from the considered work of the Joint Committee on Human Rights where legislation engages human rights’ (see the letter from Jacob Rees-Mogg to Harriet Harman of 2 April 2021).

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Other committees of Parliament also play a role. The Joint Committee on Statutory Instruments scrutinises all statutory instruments and reports concerns to both Houses, and their terms of reference include vires and therefore, to the extent that it might affect vires, they consider compatibility with Convention rights. The House of Lords Secondary Legislation Scrutiny Committee can also take human rights policy points. However, there is no Committee charged with looking at all aspects of compatibility of statutory instruments with human rights or wider potential implications of statutory instruments on human rights. Occasionally a Departmental Select Committee (or the JCHR) may take an interest in a statutory instrument, or points may be made if a statutory instrument is debated, but it is the exception rather than the rule. Both Brexit-related statutory instruments and Coronavirus-related statutory instruments have received more interest from parliamentarians than would have been the case for statutory instruments in the past.39 A process for ‘sifting’ statutory instruments was set up for Brexit-related instruments – and the Coronavirus-related legislation (or at least some of it) was subject to lengthy debates in the Chamber. However, this has not translated into any system of routine scrutiny of the substance of statutory instruments by Parliament. It remains to be seen whether this recent increased interest in the content of (some) statutory instruments will translate into more systematic scrutiny of the content and substance of statutory instruments for compatibility with human rights in the future.

39 Broad statutory instrument-making powers have been particularly remarked upon in the context of Brexit-related legislation, some of which provided for umbrella-style Acts containing statutory instrument-making powers that would enable ministers to fill-in the detail of policies at a later date. Similarly, statutory instruments were the principal vehicle used to implement some of the most draconian measures that the UK has seen in recent years as a response to the evolving Coronavirus pandemic. As the JCHR Report The Government’s Response to COVID-19: Human Rights Implications (seventh report) (2019–21, HL 125, HC 265), noted:

‘The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 imposed the most wide-ranging restrictions on individual liberties, affecting the greatest number of people, since the Defence Regulations made during the Second World War. It has been reported that the Health Secretary referred to the lockdown regulations as ‘Napoleonic’ as they reversed the usual presumption that people are free to do what they like unless the law prohibits it; in lockdown people would be forbidden from doing anything not explicitly mentioned in the legislation. Lord Justice Hickinbottom has described the regulations as ‘possibly the most restrictive regime on the public life of persons and businesses ever’.’ para 29. Serious concerns about the democratic legitimacy of using skeleton bills to give ministers broad powers to make secondary legislation, a growing trend, made worse by Brexit and the coronavirus pandemic, and the lack of effective scrutiny of that secondary legislation by Parliament, were raised in the House of Lords Secondary Legislation Scrutiny Committee’s report, Government by Diktat: A Call to Return Power to Parliament (twentieth report) (2021–22, HL 105) and the parallel report of the Delegated Powers and Regulatory Reform Committee, Democracy Denied? The Urgent Need to Rebalance Power between Parliament and the Executive, (twelfth report) (2021–22, HL 106).

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iii. Holding the Government to Account for Respecting Human Rights a. Scrutinising the Enforcement of Human Rights Thematically One function of Parliament is to hold the government to account and this is reflected both in the domestic UK constitutional framework as well as in the international standards.40 The draft principles state that a human rights committee should ‘lead the parliamentary oversight of the work of the Government in fulfilling its human rights obligations’. Outside of legislative scrutiny, which is considered above, the JCHR largely complies with this principle through holding thematic inquiries into compliance with human rights in particular areas. These have become a greater focus for the Committee in recent years. Some such inquiries have been designed to assist forthcoming legislative scrutiny, while others are standalone inquiries. In its thematic inquiry work, the JCHR has sought to engage more directly with human rights concerns affecting the general public, and to hear directly from those involved, rather than hearing predominantly from academics or legal practitioners. Different inquiries have a different degree of focus on compliance with the specific human rights standards by which the UK is bound, but they always consider the impact on the human rights of the persons affected and the response from government. By way of example, during the 2017–2019 Parliament the JCHR conducted inquiries into subjects including ‘Windrush Generation Detention’41 looking into the treatment and immigration detention of those caught up in the ‘Windrush’ scandal, and hearing directly from some of those affected; ‘Enforcing human rights’,42 which considered how effectively the human rights guaranteed to everyone can actually be enforced; and ‘The right to family life: children whose mothers are in prison’,43 which drew conclusions on and made recommendations regarding the effect that having a mother in prison has on the rights of the child. The increase in such thematic inquiries has brought the function of the JCHR closer to that of other parliamentary select committees, albeit with a continuing restriction of focus on human rights. Nevertheless, the Committee remains concerned not to duplicate the work of other committees. Where themes have already been or are currently being explored by another committee the JCHR will not generally conduct its own inquiry, even where the issue is one of real significance in human rights terms. For example, the inquiry of the Home Affairs Select Committee (HASC) into the investigation and prosecution of rape undoubtedly 40 See, eg, R (on the application of Miller) v The Prime Minister and Cherry v Advocate General for Scotland [2019] UKSC 41, [46]–[48]; and also para 11.40 of Erskine May 25th edn (London, LexisNexis, 2019). 41 Joint Committee on Human Rights, Windrush Generation Detention (sixth report) (2017–19, HL 160, HC 1034). 42 Enforcing Human Rights (n 19). 43 Joint Committee on Human Rights, The Right to Family Life: Children Whose Mothers Are in Prison (twenty-second report) (2017–19, HL 411, HC 1610.

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concerns a serious human rights issue, but the JCHR would not seek to duplicate the work of the HASC. This is an example of how Parliament holding government to account in human rights terms is not confined to the work of the JCHR, which is considered further below. Conducting inquiries into pressing issues that affect individuals’ lives and hearing directly from the individuals affected, helps to bring home how human rights are valuable to ordinary people. The increased focus on thematic inquiries is consistent with the JCHR’s trend towards putting greater emphasis on public understanding of and engagement with human rights. This forms part of the Committee’s role in holding government to account. If human rights are seen as something inaccessible, or of benefit only to a few people on the margins of society, then the political benefits of the government complying with its human rights obligations will diminish.44 b. Holding the Government to Account for Respecting Human Rights and for Addressing Human Rights Violations: A Role for Diverse Parliamentary Actors Thematic inquiries are not the only way in which the JCHR meets the draft principle on oversight of government. The Committee also has a specific role within Parliament of holding the government to account in respect of action taken to address human rights incompatibilities that have been identified, for example through court judgments.45 The JCHR does not, however, act alone in highlighting the need to remedy such incompatibilities. The existence of a human rights violation is generally confirmed through adverse judgments in the courts. Some of these judgments will be case-specific human rights violations that may not have any wider implications beyond that specific case. Others will relate to legislation or systems being incompatible with human rights and thus leading to breaches of human rights for all those affected. In many cases, where the incompatibility is due to secondary legislation or a policy, the court itself may remedy the incompatibility for all affected by establishing a Convention compliant reading of, or simply quashing, the offending policy or secondary legislation.46 In such cases there may be little or no need for Parliament 44 The Committee’s work on thematic inquiries and desire to look at human rights enforcement in practice can also be seen through the Committee being more responsive to human rights issues that are covered in news media; making oral evidence sessions less technical and plagued by jargon and more accessible to non-experts; and explaining the work of the JCHR on traditional and social media platforms. Again, greater exposure of human rights and public recognition of their importance helps to ensure that government continues to take human rights seriously and remains reluctant to act incompatibly with the protections they provide. 45 See, eg, the Letter of 19 April 2021 from the Chair of the JCHR to the Home Secretary relating to the judgment in the case of R (DMA and others) v Secretary of State for the Home Department [2020] EWHC 3416. 46 Only domestic courts may make orders quashing secondary legislation or orders to remedy an incompatible policy; ECtHR judgments leave it to the state to take action to address an incompatibility with human rights standards.

Parliament and Human Rights 291 to become involved. However, other cases may require significant legislative and policy change by the relevant authorities (usually government and Parliament) in order to remedy the situation – most obviously where a declaration of incompatibility has been made in respect of an Act and action is needed to amend primary legislation. Whilst such substantial changes can be more challenging to address and implement, it is obviously of significant importance that systemic incompatibilities be addressed as swiftly as possible, given the potential for them to adversely affect the rights of a significant number of people. Where there have been failings or incompatibilities with human rights standards, parliamentarians and parliamentary Committees may then seek to follow these matters up with the government to determine how it is addressing the human rights violations that have been found in a particular judgment.47 As well as tracking progress on individual judgments, the JCHR benefits from the MoJ’s Annual Report to the JCHR, ‘Responding to Human Rights Judgments’48 as well as from constructive working relationships at official level. However, importantly, it is not only the JCHR who is interested in human rights compliance – these matters are also often raised by individual Members of Parliament in the course of debates in the Chamber, in the work of relevant Select Committees and in the course of other parliamentary-related activity such as in All Party Parliamentary Group discussions. By way of example, the 2018 declaration of incompatibility in the case of McLaughlin49 relating to bereavement damages has so far been the subject of an inquiry and Report of the Work and Pensions Committee,50 correspondence by the Work and Pensions Committee,51 oral questions to the Secretary of State for Work and Questions in the Work and Pensions Committee,52 a proposed amendment to the Queen’s Speech,53 a letter signed by a significant number of MPs and 47 See, eg, the Letter of 19 April 2021 from the Chair of the JCHR to the Home Secretary relating to the judgment in the case of R (DMA) (n 45). 48 The most recent such annual report was Responding to Human Rights judgments, Report for the Joint Committee on Human Rights on the Government’s Response to Human Rights Judgments 2020–2021 and was published in December 2021. 49 In the matter of an application by Siobhan Mclaughlin for Judicial Review (Northern Ireland) [2018] UKSC 48 50 Work and Pensions Committee, Bereavement Support Payment (first report) (2012–20, HC 85). 51 Letter from the Chair of the Work and Pensions Committee to the Minister for Welfare Delivery, dated April 2020, and the reply from the Lords Minister for Work and Pensions, dated 23 June 2020, as well as the letter from the Chair of the Work and Pensions Committee to the Minister for Welfare Delivery, dated 24 February 2021, and the reply from the Lords Minister for Work and Pensions, dated 18 April 2021. 52 Work and Pensions Committee, Oral evidence: The work of the Secretary of State for Work and Pensions, HC 514, Q93 and 94: committees.parliament.uk/oralevidence/2514/pdf/ (accessed 19 January 2022). 53 See, eg, amendment (g) to the Queen’s Speech on 19 May 2021 (Wednesday 19 May 2021) commonsbusiness.parliament.uk/document/47620/pdf (accessed 19 January 2022): ‘At end add “but respectfully regret that measures to create a requirement for the Government to act when the Courts find that Government policy creates an incompatibility with the human rights of a UK citizen were not included in the Gracious Speech; recognise as a result of not addressing rulings made by the courts on these issues children who have lost a mother or father but whose parents were not married, and

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Peers to the JCHR,54 as well as an inquiry with a call for evidence by the JCHR to scrutinise the remedial order intended to address this incompatibility, with work on the related Report by the JCHR being underway at the time of writing.55 From this example alone, one can easily see the efforts across Parliament to hold the government to account as to how – and how swiftly – it addresses outstanding incompatibilities with human rights, especially those that require action by government and/or Parliament to address the issue. Such efforts by Parliamentarians, not just those who are members of the JCHR, are often useful to ensure that swift action is taken to address systemic issues leading to human rights violations, particularly where legislation is needed. Parliamentary scrutiny is also useful in helping to ensure that such action adequately addresses those violations and strikes the correct balance in weighing up competing interests. c. The Remedial Order Process The JCHR, does, however, have a unique mandate to hold the government to account within the remedial order process. As mentioned above, some human rights judgments identify incompatibilities of primary legislation with human rights. Those judgments fall broadly into two categories: (i) where a court in the UK has made a declaration of incompatibility under section 4 of the Human Rights Act 1998 (HRA) (ie a declaration that the court is satisfied that the provision is incompatible with a Convention right),56 or (ii) where there has been an adverse judgment against the UK by the European Court of Human Rights (ECtHR) that makes clear that primary legislation is not compatible with a Convention right. Where either such judgment has been made, ministers may remedy incompatible primary legislation either by an Act of Parliament, or through the use of the remedial power in section 10 HRA. The JCHR has a specific role in its standing orders requiring it to scrutinise and report on any remedial Orders made under section 10 HRA – indeed this is the only specific activity that the JCHR must do according to its standing orders.57 vulnerable victims of domestic violence who have been required to pay the bedroom tax because they have a sanctuary room, have been discriminated against; note that these rulings were made in 2018, 2019 and 2020 so that there has been ample time for the Government to address those rulings; further note that if the Government ignores the decisions made by Courts on the rights of UK citizens this undermines the integrity of the judicial and democratic process; and call on the Government to bring forward measures to fully remedy those incompatibilities within three months.”’ 54 Childhood Bereavement Network ‘Open letter to the Joint Committee on Human Rights’ childhoodbereavementnetwork.org.uk/about-1/what-we-do/our-priorities/fairer-bereavement-benefits/ open-letter-joint-committee-human (accessed 19 January 2022). 55 Joint Committee on Human Rights ‘Proposal for a draft Bereavement Benefits (Remedial) Order 2021 committees.parliament.uk/work/1418/proposal-for-a-draft-bereavement-benefits-remedial-order2021/ (accessed 19 January 2022). 56 The domestic courts are unable to strike down or amend primary legislation, and therefore they are limited to making declarations of incompatibility where such primary legislation is incompatible with ECHR rights. 57 Commons Standing Order No. 152B and Lords Standing Order No. 72(c).

Parliament and Human Rights 293 The JCHR has developed particular criteria by which it scrutinises remedial orders – both to ensure that they respect the procedural limits for use of a remedial power (including that there are ‘compelling reasons’ for using the power), as well as careful substantive scrutiny to ensure that a remedial order adequately remedies the relevant human rights incompatibility. Scrutiny of remedial orders by the JCHR can also result in the identification of related incompatibilities within UK legislation which may go beyond the scope of the issue or provision being addressed by the remedial order in question. However, it can provide the JCHR with the opportunity to highlight issues, for example of discrimination, on the face of UK domestic legislation. One such example was during the scrutiny of the British Nationality Act 1981 (Remedial) Order 2019, where the JCHR took the opportunity to raise wider concerns about discrimination and compatibility with human rights within the British Nationality Act 198158 – much of which the Home Office is now seeking to address in Part 1 of the Nationality and Borders Bill.

iv. Other Matters The other matters that the UNGA draft principles state that a human rights committee ought to cover are harder to gather together under a single theme, so we will look at them briefly in turn. a. To Provide Human Rights Related Information to Members of Parliament During Debates on Legislation, Policy or Government Actions The JCHR provides human rights information to Members of Parliament through its report writing and correspondence with government departments. Reports on Bills, produced as the culmination of the Committee’s scrutiny of the most contentious legislative proposals, provide a detailed human rights analysis on which MPs and peers can draw for debates, and which are usually ‘tagged’ for relevant debates. In addition, JCHR staff members have human rights expertise which is available to other select committees within Parliament. The House of Lords and particularly the House of Commons libraries are, however, a more obvious straightforward information source for Parliamentarians. Their research briefings include human rights related information where human rights are of clear relevance to a particular topic.

58 Joint Committee on Human Rights, Proposal for a Draft British Nationality Act 1981 (Remedial) Order 2018 (fifth report) (2017–19, HL 146, HC 926), and in particular the recommendations at paras 69, 79 and 92.

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Issues of funding for human rights institutions are made in parliamentary debates, correspondence and Committee Reports – for example in relation to funding for the EHRC.59 Individual Members will also have such matters in mind when considering budget debates. However, this tends to be done in a relatively decentralised manner, without necessarily any specific structure within Parliament with a specific responsibility for focussing on funding for human rights matters. Obvious human rights concerns arising from budgetary decisions should be identified and addressed by the JCHR, but it has no specific mandate to review the national budget. Undertaking a formal review of the budget and briefing parliamentarians on its implications for human rights before the Budget Resolutions are agreed or the Finance Bill voted upon would be a substantial undertaking, but doing so would fill a notable lacuna in the JCHR’s compliance with the draft principles. c. To Call for the Elaboration of National Human Rights Action Plan and Oversee its Implementation There is currently no formal national human rights action plan. The JCHR could potentially do more to call for such a plan to be introduced. The JCHR does receive an annual report from the Ministry of Justice on the government’s responses to human rights judgments.60 As discussed above, the EHRC has a lead role in monitoring compliance with the UN human rights treaties ratified by the UK, not least through its treaty tracker. This does not form a systematic element of the Committee’s work, and altering this would arguably result only in replication of the EHRC’s excellent work. d. To Engage and Consult with the National Human Rights Institution and Civil Society Representatives on Human Rights Issues, Developments, Concerns and Cases The JCHR has contact, both formal and informal, with the NHRIs, although as with all elements of the Committee’s work it is subject to the combined pressures of a heavy workload and compressed timetable. The Committee’s regular calls for evidence in its inquiries, and the holding of oral evidence sessions, ensure engagement with civil society representatives. The Committee also considers 59 See, eg, Enforcing Human Rights (n 19) and in particular paras 131–132 on the need for adequate resources for the EHRC and its Scottish and Northern Irish counterparts. See also, the early day motion EDM 382, ‘Budget for Equality and Human Rights Commission’, tabled on 21 July 2016; the early day motion EDM 923, ‘Work and Funding of the Equality and Human Rights Commission’, tabled on 28 October 2010. 60 Enforcing Human Rights (n 48).

Parliament and Human Rights 295 correspondence it receives from civil society representatives when arranging its future work programme. e. To Conduct Training and Awareness Raising of Parliamentarians on Human Rights-Related Issues As previously noted, resources and training are available to support parliamentarians in understanding the legal framework and parliamentary procedures within which they operate. This does not, however, guarantee that all parliamentarians have had training in human rights matters. The JCHR’s work, and its engagement with traditional and social media, raises awareness of human rights-related issues amongst parliamentarians and the wider public, but it does not provide any specific training or awareness raising service. Whether this would be best provided by the already busy Committee, or more realistically the Committee’s staff, or by another source (such as the House library services) is a reasonable question.

IV. Composition and Working Methods Paragraphs 4–9 of the draft principles set out the ideal composition and working methods for a parliamentary human rights Committee, including requirements as to composition,61 terms of reference,62 transparency,63 resources,64 access to external independent human rights advice,65 and civil society participation.66 The JCHR generally meets the criteria for composition and working methods. The JCHR follows the usual parliamentary committee methodology both for

61 Para 4 of the draft principles provides: ‘A parliamentary human rights committee shall be comprised of members of Parliament with human rights expertise, having due regard to the principle of pluralism, non-partisanship, respect for all human rights, and gender-balance’. 62 Para 5 of the draft principles provides: ‘A parliamentary human rights committee shall develop and publish terms of reference to define, inter alia, its working methods, the frequency of its meetings, its quorum, a procedure for agenda setting, means of communication, involvement in other fora such as the national mechanisms for reporting and follow-up, secretariat services, and modalities of consultations with stakeholders such as the national human rights institution, civil society or individuals’. 63 Para 6 of the draft principles provides ‘A parliamentary human rights committee shall be transparent in its operations, including decision making. It shall publicise its work and hold hearings in public, except where there is a clear, stated and justifiable reason not to do so’. 64 Para 7 of the draft principles provides: ‘A parliamentary human rights committee shall be provided with sufficient financial and human resources by the Parliament to enable it to carry out its functions effectively’. 65 Para 8 of the draft principles provides: ‘A parliamentary human rights committee shall have access to external independent human rights advice, as required, including from the national human rights institution, legal professionals with expertise in human rights, academic experts, representatives of civil society organizations, international or regional organizations, or other relevant professionals with expertise in the area’. 66 Para 9 of the draft principles provides: ‘A parliamentary human rights committee should conduct its work in such a way as to provide opportunities for meaningful civil society participation’.

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composition and working methods.67 This means that its composition is representative of the different political parties in each House, but as the whips have the main role in nominating Members in relation to their respective parties, there is no specific procedural guarantee of gender-balance or of expertise in the subject of human rights in the composition of Committee Members. In practice the Committee Members have, however, tended to have a broad range of interests in equality and human rights matters. The JCHR’s working methods are clear and in line with the processes and methods used by other committees, for example in relation to meetings, requirements for a quorum,68 consultation (seeking evidence). However, as mentioned earlier in this chapter, beyond its broad remit, the JCHR does not have detailed or particularly prescriptive terms of reference beyond usual the procedural rules, set out in Erskine May or in its Standing Orders. Meetings similarly follow the usual parliamentary approach in that hearings are held in public, and deliberations are held in private, as required by the rules of the House (whereas the principles suggest all proceedings should be held in public unless there is a ‘clear, stated, justifiable reason’ for holding them in private.) The Committee has access to a team of clerks, human rights specialists and lawyers to support its work, and has access to external expert advice where necessary.69 It also regularly engages with civil society and other experts and affected persons, in particular through oral evidence and calls for written evidence.

V. Conclusion In sum, the UK Parliament, and the JCHR in particular, broadly meet the international standards set out in the Handbook and the Report to UNGA, including the draft principles. In particular, there are relatively well-developed mechanisms for holding the government to account and for scrutinising legislation for compliance with human rights standards – including both through the JCHR and also other Committees and actors within Parliament. However, there are some areas of potential divergence. Some of these areas of divergence may be for good reason, for example, the nature of the UK legal and constitutional context, such as the lack of a codified constitution. Others may reflect the particular ways that parliamentary committees

67 Although given that it is a Joint Committee, its procedures may diverge somewhat from those of other select committees. For example, unlike departmental select committees in the House of Commons, the JCHR’s Chair is not directly elected by the House but by its Members at its first meeting of the Parliament. 68 Although, as it is a Joint Committee, the quorum necessary is of two members of each House. 69 Para 7(b) of the JCHR’s standing orders, (Standing Orders 152B) provides: ‘ The Committee shall have power … to appoint specialist advisers either to supply information which is not readily available or to elucidate matters of complexity within the committee’s order of reference.’

Parliament and Human Rights 297 and parliamentarians organise themselves within the UK Parliament, for example that it is for individual Members of Parliament to table amendments to Bills, or to seek to introduce Bills, rather than through Committees. Other divergences may reflect the more organic ways that parliamentarians might raise issues within the UK system, for example relating to the budget. However, there are a few themes that may be worth further consideration. First, with regard to mandate, although the standing orders of the JCHR are sufficiently broad to allow for a wide discretion in terms of which human rights issues can be considered by the Committee, there are no clear terms of reference setting out the aims and objectives of the Committee. Consideration could be given to developing the mandate of the JCHR to provide a clear focus for future work, ensuring, for example, that the Committee focuses on the most significant human rights issues; that it undertakes transparent and democratic decision-making processes for the selection of thematic inquiries; and that it considers focusing on issues where it can have the most impact bearing in mind its unique position. Second, with regard to the role of the JCHR, there is scope for much greater involvement in relation to compliance with international human rights standards. This would include greater engagement with international human rights treaty body monitoring processes, monitoring the government’s implementation of recommendations resulting from those processes, and holding the government to account for ratification and adherence to international human rights treaties. Third, there is scope for further reflection about the human rights infrastructure in the UK, and in particular whether a body, such as a Human Rights Ombudsperson might assist individuals in accessing and enforcing their human rights without necessarily needing recourse to the courts. Similarly, consideration could be given to the development of a human rights action plan(s) and how to better assess the human rights implications of budget decisions. Fourth, although the JCHR largely complies with the standards on working practices, the political nature of the appointment of Members to the Committee does not adhere to the requirement for the Committee to be composed of Members with human rights expertise, nor does it ensure a gender balance. Consideration could be given to how the appointment process might best ensure the JCHR adheres to this principle. Finally, although the role of the JCHR is vital in ensuring effective scrutiny of the government’s agenda and compliance with human rights obligations, it is crucial that human rights analysis is mainstreamed across all parliamentary committees and other bodies within Parliament. Whilst the JCHR can provide expert analysis and recommendations to Parliament, it is important that respect for and protection of human rights becomes the responsibility of Parliament as a whole.

12 Ten Myths about Parliamentary Sovereignty RICHARD EKINS AND GRAHAM GEE

I. Introduction The doctrine of parliamentary sovereignty is central to the UK constitution. It is a legal rule about the Queen-in-Parliament’s legislative competence, which helps ground the political constitution. In recent years, the doctrine has been misunderstood or misrepresented, whether by judges and others asserting novel limits on the Queen-in-Parliament’s legislative competence, or by parliamentarians and others leveraging Parliament’s authority to legislate into wider claims about how and by whom important decisions should be made. A number of myths about parliamentary sovereignty have thus arisen or have been asserted. This chapter aims to debunk ten of them. Some run together; others stand alone. Some are legal mistakes, confusions about parliamentary sovereignty and constitutional law, whereas others are political mistakes about Parliament’s role in our constitution. Some myths are historical, concerning the origins of parliamentary sovereignty, whereas others focus on the doctrine’s place in the modern constitution. Some are intertwined, with one myth reflecting and reinforcing another. This chapter aims to point out and correct these myths, restating the long-standing and wellsettled understanding of parliamentary sovereignty and thereby helping to secure the political constitution, and the place of Queen-in-Parliament within it. But first we briefly outline the doctrine’s place in our legal system.

II. The Law of Parliamentary Sovereignty Parliamentary sovereignty is a rule about legislative competence.1 It provides that the Queen-in-Parliament may enact any law, save that it may not bind its successors. 1 See generally J Goldsworthy, The Sovereignty of Parliament: History and Philosophy (Oxford, OUP, 1999).

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This means that each Parliament enjoys plenary legislative authority, which no Parliament has legal authority to alienate or limit. Each Act of Parliament is valid law. It is not open to a court, or any other person or institution, to conclude that an Act is invalid – there are no limits on the legislative competence of the Queen-inParliament, aside from the caveat that no Parliament may bind its successors. An Act that purports to limit future parliaments would not succeed in its aim because the doctrine provides that later parliaments would remain free to legislate. It is open to Parliament to enact a so-called Henry VIII clause, authorising a Minister of the Crown to amend or repeal an Act of Parliament. This is a constitutionally dubious but legally effective exercise of Parliament’s legislative competence. Likewise, it is open to Parliament to create a subsidiary legislature and to authorise it to amend or repeal Acts of Parliament that fall within its (limited) jurisdiction. Acts of Parliament are valid law. They are legally authoritative and override or abolish contrary rules of law, whether custom or common law. Enacting a statutory rule, or applying that rule in the courts or elsewhere, may place the UK in breach of its international legal obligations. However, incompatibility with international law has no effect on the validity of the statute in question unless the terms of the statute make provision for such effect. An Act of Parliament is an exercise of Parliament’s legislative authority – authority which the doctrine of parliamentary sovereignty articulates as a fundamental rule of constitutional law. In responding to legislative action, courts and other subjects of the law aim to understand and give effect to Parliament’s choice about how to change the law, a choice Parliament articulates in the intended meaning of the statutory text. For centuries, courts have recognised that their duty in interpreting Acts of Parliament is to infer and to uphold legislative intent, insofar as promulgated in the context of enactment. While from time to time some judges question the priority of legislative intent in the practice of statutory interpretation,2 properly understood it is consistent with and required by the rule that Parliament has authority to make any law whatsoever.3 Each Parliament is free to repeal or amend any Act of Parliament and no Parliament may bind its successors. It follows that no court may quash an Act of Parliament, concluding that it is invalid, because it is incompatible with an earlier Act of Parliament. If a later Act is incompatible with an earlier Act, the later Act repeals the earlier Act to the extent necessary for the later Act to take effect. Thus, the doctrine of implied repeal is a concomitant of parliamentary sovereignty. This relationship between implied repeal and parliamentary sovereignty is sometimes questioned, including in the context of the reception of European law.4 However, in truth the relationship is robust, because each Parliament is free to change the 2 See, eg, J Laws, The Constitutional Balance (Oxford, Hart Publishing, 2021); A Burrows, Thinking about Statutes: Interpretation, Interaction, Improvement (The Hamlyn Lectures, 2017) (Cambridge, CUP, 2018), and the Hon Justice Kenneth Hayne AC, ‘Statutes, Intentions and the Courts: What Place Does the Notion of Intention (Legislative or Parliamentary) Have in Statutory Construction?’ (2013) 13 Oxford University Commonwealth Law Journal 271. 3 See R Ekins, ‘The Relevance of the Rule of Recognition’ (2006) 31 Asian Journal of Law and Policy 95. 4 See, eg, NW Barber, ‘ The Afterlife of Parliamentary Sovereignty’ (2011) 9 ICON 144.

Ten Myths about Parliamentary Sovereignty 301 law as it pleases, provided it makes its intentions clear to the subjects of the law. In some contexts, there will be very good reasons to be slow to conclude that Parliament intends the statute it is enacting to repeal an earlier Act, but it does not follow that some Acts may only be repealed expressly. Strictly speaking, parliamentary sovereignty is a rule about the legislative authority of the Queen-in-Parliament, which consists in the Queen, the House of Lords and the House of Commons acting jointly. While there is no harm in speaking about Parliament legislating, one should note that authority to legislate is exercised by the Queen-in-Parliament, rather than by the Houses of Parliament, and the institution (singular) acts when Queen, Lords and Commons each assent to a Bill. The Parliament Acts 1911 and 1949 make provision for the Queen-inParliament to legislate when only the Queen and Commons assent, but properly understood legislation enacted by way of this procedure remains an act of Queen, Lords and Commons acting jointly.5 This legal analysis is consistent with the truth that the UK has a political constitution. Under modern political conditions, the doctrine gives strong expression to an ideal of democratic self-government.6 Not everyone agrees, and in recent years some judges, politicians, campaigners and academics have articulated, deployed or recycled various myths about parliamentary sovereignty. The first myth we consider, however, arises not from hostility towards the doctrine but from a misunderstanding of the wider constitution.

III. Myth #1: Parliamentary Sovereignty Sums Up the Whole of the Constitution Parliamentary sovereignty is a very important constitutional rule, but it is not the whole of the constitution. Vernon Bogdanor is wrong to assert, as he often does, that ‘the British constitution can be summed up in just eight words – whatever the Queen-in-Parliament enacts is law’.7 His point, it seems, is to stress the historical importance of parliamentary sovereignty and to make clear the contingency of the constitution, with other rules always on sufferance, with nothing in the end limiting the legislative power of the Westminster Parliament. For this reason, he argues that in one sense the UK has no constitution at all: or at least, our constitution is reducible to the proposition that Parliament may do as it pleases. Lord Neuberger, when President of the Supreme Court, made a similarly reductive argument, 5R

Ekins, ‘Acts of Parliament and the Parliament Acts’ (2007) 123 LQR 91. D Oliver, ‘Parliament and the Courts: A Pragmatic (or Principled) Defence of the Sovereignty of Parliament’, in A Horne and G Drewry (eds), Parliament and the Law 2nd edn (Oxford, Hart Publishing, 2018) 293, 298–300. 7 See, eg, V Bogdanor, ‘Europe, Subsidiarity and the British Constitution’ (1994) 142 RSA Journal (No. 5488 – April 1994) 41, 42; V Bogdanor, The New British Constitution (Oxford, Hart Publishing, 2009) xii; and V Bogdanor, Beyond Brexit: Towards a British Constitution (London, Bloomsbury, 2019) 30. 6 Cf

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maintaining that parliamentary sovereignty meant that the UK really had no constitution at all.8 The argument is at best an exaggeration. It is true that UK constitutional law is radically contingent, insofar as it is subject to the possibility of change by ordinary legislation at any time. This is an important feature of our constitutional arrangements. Parliamentary sovereignty is a fundamental rule of our constitutional law, which means Parliament may legislate to change other rules of law, including constitutional law. However, it cannot alienate or abdicate parliamentary sovereignty itself: the doctrine itself is not contingent. Further, the breadth of Parliament’s legislative authority does not entail that other propositions of law do not form part of the constitution. It is wrong to imply that a legal rule only forms part of the constitution if immune from change by way of (ordinary) statute. In the UK, constitutional law does not limit the Queen-in-Parliament itself, but instead limits other institutions, including the government. Not all of the legal rules in question are statutory rules. The Crown’s prerogative powers are important. So too is the liability of officials for breach of the ordinary law of the land, including criminal law and the law of tort. Acts of Parliament may abolish, displace or limit prerogative power, or confer authority to do what would otherwise be a crime or a tort, or even confer immunity for acts that were crimes or torts – but unless and until Parliament legislates, the law of the constitution is not determined in these domains by legislation. Further, the constitution includes non-legal rules and arrangements, which are clearly not chosen by Parliament in the exercise of its legislative authority. Indeed, some constitutional conventions address how Parliament should legislate. Some legislative acts are, or would be, unconstitutional,9 which has no impact on legal validity but is relevant to how Parliament acts and others react. It is a mistake to downplay constitutional conventions simply because they do not go to the vires of legislation. Conventions are beyond Parliament’s reach, not only in the sense that some conventions are about how Parliament should legislate, but also because legislation can only change the law; Parliament cannot legislate to change a convention as a convention. It may legislate to replace a convention with a legal rule or to adopt a legal rule that requires a course of action that is inconsistent with a convention, but it cannot change what the convention is, even if it gives statutory recognition to an existing convention. More importantly still, parliamentary sovereignty cannot sum up the whole of the constitution because the doctrine neither captures the constitutional dynamics of legislating nor articulates the ideal of responsible government. The Queen-inParliament legislates, which makes the relationships between the Crown and the Houses of Parliament very important. The rise of the House of Commons is central to our constitutional history but is distinguishable from the doctrine of parliamentary sovereignty itself. The Queen’s duty to assent to Bills to which the Houses 8 Lord Neuberger, The British and Europe, Cambridge Freshfield Annual Lecture 2014 (12 February 2014). 9 See,

eg, Madzimbamuto v Lardner- Burke [1968] UKPC 18.

Ten Myths about Parliamentary Sovereignty 303 assent is a matter of convention; the authority of the Commons in relation to the Lords is also a matter of convention, reinforced by the strictures of the Parliament Acts 1911 and 1949, as well as ongoing political contestation. In other words, Parliamentary sovereignty cannot sum up our constitution, for the constitution comprises other rules, legal and non-legal, and arrangements between institutions. Related to this is responsible government, which conditions relations between the government and Parliament, and especially the Commons. The confidence principle makes it possible for an election to determine who governs and for those who govern to be held to account. Indeed, Parliament is the main forum for democratic public life precisely because political support in the Commons is necessary to secure and then maintain an entitlement to govern, and also to secure support for changes in the law necessary to implement a programme of government. Responsible government in turn is possible because of constitutional conventions, which intersect with the dynamics of electoral competition, in which Opposition and government compete in public. So, in short, parliamentary sovereignty is undeniably our fundamental legal rule. It is at the centre of the political constitution because political control of the Commons makes legislation possible, but the idea that the constitution is reducible to parliamentary sovereignty is a myth.

IV. Myth #2: Parliamentary Sovereignty is a 19th century (English) Invention Some jurists argue that judges possess the authority to invalidate statutes by recognising (we would say: by asserting) legal limits on the legislative competence of the UK Parliament. One version of this argument insists that parliamentary sovereignty’s historical foundations are less secure than commonly assumed, and more particularly that the Victorian jurist, Albert Venn Dicey, overstated the doctrine.10 The implication is that parliamentary sovereignty is a distinctly English invention, traceable to the nineteenth century and Dicey’s outsized influence. The main lines of this argument can be seen in obiter dicta in Jackson. For Lord Steyn, ‘[t]he classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom’.11 As Lord Hope sees it, ‘[s]tep by step, gradually but surely, the English principle of the absolute legislative sovereignty of Parliament which Dicey derived from Coke and Blackstone is being qualified’.12 These obiter remarks point to a desire amongst some judges to displace parliamentary

10 AV Dicey, An Introduction to the Study of the Law of the Constitution 10th edn (London, Macmillan, 1959), first published in 1885. 11 Jackson v Attorney General [2006] 1 AC 262, [102]. 12 ibid, [104].

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sovereignty as the centrepiece of the constitution. Note the stress each places on Dicey: Steyn attributes to Dicey the ‘classic’ account, which he then characterises as pure, absolute, and now obsolete, while Hope credits Dicey with deriving the English principle of absolute legislative sovereignty from Coke and Blackstone. It is unclear whether Lord Hope means to imply that Dicey is responsible for formulating the doctrine in absolute terms and to that extent went beyond Coke and Blackstone. But it is clear that Lord Hope means to imply that Dicey spoke for England and not for Scotland, such that it is an open question whether the English legal understanding settles the content of the UK constitution. What neither Steyn nor Hope acknowledge is that parliamentary sovereignty is an ancient custom of the land.13 It provides that the King with the consent of his Parliament may change any law. Relatedly, the consent of his Parliament is necessary to levy taxes. The King’s agreement to change the law, or to adjust his foreign policy, was the price routinely extracted for assent to taxation. The King summoned a Parliament to represent the realm, with the familiar shape of the two Houses dating from the Model Parliament of 1295. When the King acted with his Parliament, the only powers in the realm united in action. The King in his Parliament was not subject to any other temporal authority, still less to legal limits enforceable by the King’s servants, his judges. The only possible legal limitation on the legislative authority of King in Parliament was the parallel jurisdiction and authority of the Church, but the Reformation swept this away, with Henry VIII transforming law and society by way of statute. Parliamentary sovereignty was the law of England centuries before the constitutional tumult of the seventeenth century.14 The constitutional crisis of the Stuart period concerned the relative power and authority of Crown and the Houses of Parliament. This dispute had a legal dimension, with much controversy about the scope of the Crown’s prerogatives. But King and Parliament both agreed that the King-in-Parliament brooked no rivals and was free to make or change any law. The significance of the Bill of Rights 1689 was that Parliament, having lawlessly summoned itself and offered the Crown to William and Mary, exercised legislative authority to sweep away the alleged prerogative powers to suspend or dispense with statute and to make clear that levying taxes or maintaining an army requires parliamentary consent by way of legislation. This was an important constitutional moment, but one that both affirmed and took advantage of the existing sovereignty of the King-in-Parliament to clarify the political superiority of Parliament and to change the law of the constitution to bolster that superiority. Long before Jackson, Lord Cooper characterised parliamentary sovereignty as a ‘distinctively English principle which has no counterpart in Scottish constitutional law’,15 with no grounds to assume that the new British Parliament created 13 See JW Tubbs, The Common Law Mind: Medieval and Early Modern Conceptions (Baltimore, John Hopkins University Press, 2000). 14 See Goldsworthy (n 1) 161–173 and 229–235. 15 MacCormick v Lord Advocate (1953) SC 396, 411 (per Lord Cooper).

Ten Myths about Parliamentary Sovereignty 305 after the Acts of Union 1707 assumed ‘all the peculiar characteristics of the English Parliament but none of the Scottish Parliament’. However, as Jeffrey Goldsworthy has shown, the Acts of Union 1707 ‘had little noticeable impact on the English doctrine of parliamentary sovereignty, which eventually came to be accepted by Scottish lawyers as well’.16 It is true that the Act of Union 1707 affirmed the inviolability and permanence of various institutional features of Scottish law and religion, but the constitution of Great Britain is the constitution of England writ large, an analysis supported by the subsequent repeal of some of those same features, notwithstanding the terms of the 1707 Act. The expansion and contraction of the English, and thence British, state, within the British Isles and then across the Empire, is an important part of our constitutional history, in which parliamentary sovereignty has always been the central feature. It is, in sum, a myth to suggest that the doctrine is a nineteenth century English distortion of history; on the contrary, it is continuous with centuries of English, then British, constitutional practice.

V. Myth #3: Parliamentary Sovereignty was Made by the Judges and can be Remade by them The argument that judges are free to qualify (abandon, recast) the doctrine of parliamentary sovereignty is often underpinned by an ‘origin myth’, whereby the doctrine is categorised as a judge-made common law rule, which like other common law rules may be developed, or qualified, by the courts. On this account, judges made the common law rule of parliamentary sovereignty and retain continuing legal authority to remake it, including by denying legal effect to statutes they consider unjust. In this way, this origin myth operates to authorise senior judges to undo the historic constitutional settlement built around parliamentary sovereignty and to assert instead an open-ended judicial power to invalidate statutes that they deem unjust.17 Obiter dicta in Jackson again provide a clear example of this judicial mythmaking. In Jackson, Lord Steyn reasoned that: … the supremacy of Parliament is still the general principle of our constitution. It is a construct of the common law. The judges created this principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism.18

Lord Hope asserted to similar effect that parliamentary sovereignty ‘in the absence of higher authority, has been created by the common law’.19 Both Steyn and Hope 16 Goldsworthy

(n 1) 232. Goldsworthy, Parliamentary Sovereignty: Contemporary Debates (Oxford, OUP, 2010) 3, 14–56. See generally T Poole, ‘Back to the Future? Unearthing the Theory of Common Law Constitutionalism’ (2003) 23 Oxford Journal of Legal Studies 435. 18 Jackson (n 11) [102]. 19 ibid, [126]. 17 J

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reason from the premise that parliamentary sovereignty is a common law rule to imply that judges are free to qualify the doctrine in ways that would amount in effect to an open-ended judicial discretion to invalidate statutes. This obiter dicta in Jackson has attracted much interest,20 but neither Lord Steyn nor Lord Hope provide any authority for their claims,21 and indeed none could be provided, for the claims are ahistorical.22 The authority of the King-in-Parliament was not created by judges, who were the King’s servants. As noted above, the legislative authority of Parliament is an ancient custom, asserted by successive Kings and their Parliaments, over many centuries, and accepted by all within the realm, including judges. It might be said that the common law recognises parliamentary sovereignty, or even that the doctrine forms part of the common law, but only in the limited sense that the common law includes the ancient customs of the realm, not in the sense which Lord Steyn and Lord Hope intend, which is to say judgemade law. Lord Hope and Lord Steyn’s mistake is not only historical but also jurisprudential, for they assume that the doctrine must be a common law rule, which the judges must once have made and are free to remake. But the doctrine is a foundation for legal reasoning: a fundamental legal rule that sets out a test for legal validity. The rule is not the conclusion of a chain of legal reasoning, which the courts might reconsider before qualifying that conclusion. Parliamentary sovereignty is ‘the bedrock’23 of the constitutional and legal order, as Lord Bingham says in Jackson, which is to say that it is a foundation – a starting point – rather than another contingent legal rule. As for how it came to be a foundation of our legal system, the answer is that English monarchs exercised their authority by way of their parliaments, with the great men of the realm, and their subjects, accepting that the King-in-Parliament had authority to settle what should be done. The legal system long ago took this practice of making to be one of its starting points, a practice which continues to this day. In a famous analysis, William Wade reasoned that parliamentary sovereignty was a ‘political fact’, which ‘lies in the keeping of the courts’,24 an argument Lord Hope quotes with approval in Jackson.25 But Wade’s formulation is misleading

20 See, eg, AXA v General Insurance Ltd v Lord Advocate [2011] UKSC 46 and Moohan v Lord Advocate [2014] UKSC 67. 21 See also Lord Hope, ‘Is the Rule of Law now the Sovereign Principle?’, in R Rawlings, P Leyland and A Young (eds), Sovereignty and the Law: Domestic, European and International Perspectives (Oxford, OUP, 2013) 89. 22 Lord Bingham has pithily dismissed the obita dicta in the following terms: ‘Welcomed in some quarters, these observations have also been described by one acerbic academic commentator as “unargued and unsound”, “historically false” and “jurisprudentially absurd.” No authority was cited to support them, and no detailed reasons were given. I cannot, for my part accept that my colleagues’ observations are correct.’ Lord Bingham, The Rule of Law (London, Penguin, 2010) 167, citing R Ekins, ‘Judicial Supremacy and the Rule of Law’ (2003) 119 LQR 127. 23 Jackson (n 11) [9]. 24 HWR Wade ‘ The Basis of Legal Sovereignty’ [1955] CLJ 172, 188–189. 25 Jackson (n 11) [120].

Ten Myths about Parliamentary Sovereignty 307 insofar as it suggests that the disposition of the courts is the relevant political fact. Rather, parliamentary sovereignty is the ultimate political fact underpinning the legal system by virtue of its recognition by officials across all branches of government. In HLA Hart’s terms, the doctrine forms part of the rule of recognition: that is, the fundamental social rule that grounds the legal system, and is accepted as such by senior officials.26 This consensus amongst officials provides the essential basis to parliamentary sovereignty.27 Rejecting the ahistorical claim that the doctrine was judge-made in no way denies the political significance of the fact that judges have long recognised parliamentary sovereignty as the settled lay of the land. If judges were to refuse to recognise the Queen-in-Parliament’s legislative authority that would itself be politically significant, insofar as it would amount to open defiance of long-settled law. For parliamentary sovereignty is a legal rule: an ancient custom of the realm, it provides the foundation of legal reasoning, which forms part of our legal system’s rule of recognition. Judges have long recognised this fundamental legal rule to reflect the settled law of the constitution, which they are duty bound to uphold. It is significant that some judges have publicly cast doubt on whether every statute that the Queen-in-Parliament might enact would be valid law. Relying on the myth that the doctrine was judge made, they argue that the common law authorises them to qualify parliamentary sovereignty by denying legal effect to unjust statutes. These occasional statements suggest ‘a deep disagreement’28 between those judges who accept that Parliament enjoys a legally unlimited law-making authority and the minority of judges who claim that they have the power to invalidate certain types of legislative action. However, it does not follow that constitutional practice is now somehow uncertain. After all, the practice in question consists not only in the actions and dispositions of judges alone, but also those of parliamentarians, civil servants and the public. It seems most officials – including most judges – still view Parliament’s legislative authority as legally unlimited. It would be reckless (and illegitimate) for judges to seek to replace parliamentary sovereignty with a new rule of recognition without the agreement of the political branches.29 It is therefore perhaps noteworthy that when adjudication is the focus of public attention, as in cases delivered in the frenzied political context of withdrawal from the EU,30 senior judges have been at pains to disavow scepticism about parliamentary sovereignty, instead attempting to defend their judgments as adhering faithfully to the doctrine. Not every judge who joined these judgments may have been entirely sincere, but it is significant that they felt it necessary to (appear to) reason in this way. 26 HLA

Hart, The Concept of Law (London, Clarendon Press, 1994) 116–117. (n 17) 113. 28 S Lakin, ‘Debunking the Idea of Parliamentary Sovereignty: The Controlling Factor of Legality in the British Constitution’ (2008) 28 Oxford Journal of Legal Studies 709, 727. 29 Goldsworthy (n 17) 54–56. 30 R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5; and R (Miller and Cherry) v Prime Minister [2019] UKSC 41. 27 Goldsworthy

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VI. Myth #4: Parliamentary Sovereignty has been Overtaken by Events Whatever the history may be, some suggest that parliamentary sovereignty is now (in the words of Lord Steyn) ‘out of place’31 in the modern constitution, pointing to developments which are said to have limited Parliament’s law-making authority. The developments in question are the devolution settlements, the incorporation of the European Convention on Human Rights (ECHR) via the Human Rights Act 1998 (HRA), and the UK’s membership of the European Union (EU). Properly understood, however, none of these establish that Parliament’s authority to legislate has been legally limited.32 The devolution settlements, whether in Scotland, Wales or Northern Ireland, do not constitute a ‘divided sovereignty’, as Lord Steyn suggested in Jackson.33 They involve an exercise of Parliament’s law-making authority to create new institutions of government, including legislatures of limited competence. Parliament clearly retains legal authority to legislate notwithstanding the devolution settlements, including to legislate to vary the terms in question. It is of course true that the Scotland Act 2016, which postdates Jackson, goes further than the Scotland Act 1998 insofar as it gives statutory recognition to the Sewel Convention (whereby the UK Parliament will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament),34 and to the permanence of the Scottish Parliament and Scottish Government.35 These amendments cement the Scottish devolutionary scheme, but neither introduces a legal limitation on the Queen-in-Parliament, as the Supreme Court made clear in Miller (No 1)36 and as the UK Parliament’s enactment of the Internal Market Act 2020 without the legislative consent of the Scottish Parliament may confirm. Ultimately, the devolution settlements impose constitutional limits on Parliament, but these are not legal limits, and Parliament remains free to legislate for Scotland or any other part of the UK. It is sometimes suggested that Parliament has limited its own powers by enacting the HRA.37 This is plainly wrong insofar as it is intended to denote legal constraints on Parliament. The ECHR binds the UK in international law but does not bind Parliament within our constitutional law: Parliament is free to legislate

31 Jackson

(n 11) [102]. R Ekins, ‘Legislative Freedom in the United Kingdom’ (2017) 133 LQR 582, 583–585. 33 Jackson (n 11) [102]. 34 Scotland Act 2016, s 2 (adding a new s 28(8) to the Scotland Act 1998). 35 Scotland Act 2016, s 1 (adding a new s 63A to the Scotland Act 1998). 36 Miller (No 1) (n 30) [146]–[151]. 37 See, eg, Lady Hale in Jackson (n 11) [159]. See more recently Reference by the Attorney General and the Advocate General for Scotland – United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill [2021] UKSC 42, [50]: ‘Parliament can itself qualify its own sovereignty, as it did when it conferred on the courts the power to make declarations of incompatibility with rights guarantee by the ECHR, under section 4 of the Human Rights Act’. 32 See

Ten Myths about Parliamentary Sovereignty 309 inconsistently with the ECHR or with decisions of the Strasbourg Court. The HRA aims to frame how Parliament legislates, for example by conferring upon courts a duty to interpret so far as possible legislation compatibly with the ECHR, but in no way sets out legal limits on its legislative authority.38 True, one might say that the HRA is an awkward fit with parliamentary sovereignty. Not only does the HRA make it more difficult politically to legislate inconsistently with the ECHR, it also envisages (via section 4) judicial review of legislation, where judges are empowered to evaluate the adequacy of legislation against Strasbourg’s case law, and also (via section 3) licenses courts to modify the meaning and effect of legislation, such that legislation enacted before and after the HRA is in a sense subject to judicial override by reference to the HRA. All of this might be deemed to be constitutionally dubious. But, as a matter of law, in enacting the HRA, Parliament did not qualify parliamentary sovereignty. European integration is a more interesting proposition. The UK has now left the EU, and Parliament has repealed the European Communities Act 1972 (ECA), but the question remains whether the ECA or the European law to which it gave domestic effect constituted legal limits on Parliament’s legislative authority. The relationship between European law and parliamentary sovereignty is often misunderstood; Lord Hope and Lord Steyn are not alone in wrongly assuming that the former limits the latter. Both judges cite Factortame (No 2),39 with Lord Hope relying on the EU Court of Justice’s view that ‘the supremacy of Community law restricts the absolute authority of Parliament to legislate as it wants in this area’.40 The self-understanding of the EU institutions does not settle our constitutional law, and did not reflect the understanding of the UK or its institutions.41 EU law took effect within the UK only because of the ECA, which did not purport to limit Parliament’s continuing legislative authority. In Jackson, Lord Hope noted in passing that ‘Parliament was careful not to say in terms that it could not enact legislation which was in conflict with Community law’, but says that in practice this is the effect of the ECA.42 In fact, nothing in the ECA limits the authority of successive Parliaments. Rather, the ECA gave domestic effect to European law without further enactment and to introduce a default rule in relation to incompatibility between European law and domestic law, including statute. The default rule was taken up by successive Parliaments. Statutes after 1 January 1973 were intended to be subject to European law to the extent that they were, or would later become, incompatible. This is how the House of Lords resolves the dispute in the Factortame litigation, and is confirmed by the Supreme Court in HS2 and Pham, in which the Court made clear that the domestic legal effect of European law is settled by the terms of the ECA, which it is for UK courts 38 Human

Rights Act 1998, s 1. v Secretary of State for Transport, ex p Factortame (No 2) [1991] 1 AC 603. 40 Jackson (n 11) [105]. 41 See, eg, European Union Act 2011, s 19; R (HS2 Action Alliance) v Secretary of State for Transport [2014] UKSC 3; and Pham v Secretary of State for the Home Department [2015] UKSC 19. 42 Jackson (n 11) [105]. 39 R

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to interpret. It was arguable, the Court suggested in HS2 and Pham, that the ECA did not incorporate decisions of the EU institutions that are clearly ultra vires the EU Treaties or European legal norms that are incompatible with long-settled norms of the UK constitution.43 True, the Supreme Court majority in Miller (No 1) asserts that the ECA made European law a direct, independent and overriding source of law, but this analysis is incoherent on its own terms and cannot stand alongside the Court’s earlier jurisprudence, as the minority makes clear.44 However, the better analysis is that the ECA gave domestic legal effect to European law, subject to arguable exceptions, legal effect which later Acts of Parliament chose not to displace. In entering the EU, the UK undertook far-reaching and dynamic treaty obligations, with Parliament giving effect to them in domestic law, but Parliament did not (and could not) undertake that its successors were precluded from legislating inconsistently with those treaty obligations. Bluntly put: parliamentary sovereignty was not abandoned during the UK’s membership of the EU and it is a mistake to think it now exists only in some spectral sense.45 Indeed, in some ways, parliamentary sovereignty is more central to the life of the nation than ever because of the doctrine’s prominence within the political rhetoric for leaving the EU. However, as we will see, the hyperpolarised politics surrounding withdrawal from the EU have also generated three further myths about parliamentary sovereignty.

VII. Myth #5: Parliamentary Sovereignty Requires Constitutionally Important Decisions to be Made by Statute The first Miller judgment is often wrongly taken to have vindicated parliamentary sovereignty by protecting the rights of Parliament from an overbearing executive. The question before the Supreme Court was whether the government could rely on the prerogative to trigger Article 50 of the Treaty on European Union (thereby signalling the UK’s intention to leave the EU) or whether a statute had first to be enacted. The judgment would have vindicated parliamentary sovereignty if and only if the ECA had ousted the prerogative by implication, in which case the Court would have been upholding the terms of the ECA. However, the ECA did not limit the prerogative, but rather presupposed it. In seeking to rely on the prerogative to exercise the UK’s treaty right under Article 50, the government was not changing the law of the land by fiat, which the Case of Proclamations proscribes.46 Instead, it 43 See

HS2 (n 41) [207] and Pham (n 41) [90]. the most detailed discussion see Lord Reed’s dissenting judgment in Miller (No 1) (n 30). 45 Cf NW Barber, ‘ The Afterlife of Parliamentary Sovereignty’ (2011) 9 ICON 144. 46 (1610) 12 Co Rep 74. 44 For

Ten Myths about Parliamentary Sovereignty 311 was exercising the prerogative to change the UK’s international obligations, which had effect on domestic law because, and only to the extent that, the ECA provided. There was a plausible argument that before triggering Article 50, it would have been good practice (and prudent politics) for the government to secure the support of Parliament, whether by legislation or resolutions. But there was no legal requirement for ministers to do so. Yet, in Miller, the Court held by a majority that new legislation was required. The Court reasoned that ‘a major change to UK constitutional arrangements’ cannot be achieved by ministers acting alone via the prerogative, and ‘must be effected in the only way that the UK constitution recognises, namely by Parliamentary legislation’.47 This turned in part on the majority’s earlier mischaracterisation of the ECA as having intended to make EU membership a fixed starting point and to make EU law a direct, independent and overriding source of domestic law. In triggering Article 50 to initiate the process of terminating the application of the EU Treaties to the UK, the government doubtless made a very important decision but did not breach any statute. The majority asserts that withdrawal from the EU Treaties is such an important decision that it had to be made by statute. The assertion is groundless. The importance (constitutional or otherwise) of a decision does not entail that it must be made by way of legislation. Legislation is only required if the law must be changed and if the relevant law can only be changed by legislation. The majority does not say expressly that parliamentary sovereignty requires important decisions be made by legislation, but this is what its judgment implies and how it has been received. The judgment moves wrongly from a plausible prescription about good constitutional practice to a novel and unsound conclusion about what was required under constitutional law. The government was accountable to Parliament for its exercise of the prerogative. Its intention to initiate the process of leaving the EU was the subject of much parliamentary deliberation and it was open to the Commons in extremis to unseat the government. The Supreme Court’s judgment was not necessary for Parliament to consider or to challenge the decision to trigger Article 50. The Court doubted Parliament’s capacity to discipline the government and invented a novel legal requirement for new legislation to give effect to such an important constitutional decision in order to strengthen Parliament’s hand. The practical significance of the judgment was limited, with legislation duly enacted simply authorising the Prime Minister to trigger Article  50. But this was not required by parliamentary sovereignty because it is no part of the doctrine that all constitutionally important decisions require legislation. Parliament is more than a legislature and its role in challenging and supporting the government is not limited to granting or withholding assent to legislation, important though that is. It is true that the Court in Miller reaffirmed the importance of parliamentary sovereignty within the UK constitution, and this is welcome, but it does not follow that the judgment itself was justified by the doctrine. 47 Miller

(No 1) (n 30) [82].

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VIII. Myth #6: Parliamentary Sovereignty Entails that Parliament is Morally Free to Defy the People Parliamentary sovereignty was weaponised in and after the Article 50 litigation, and in our view wrongly deployed to disarm the government from exercising its prerogative power. The litigation sought to confer on Parliament rather than on the government responsibility for deciding how, when or even whether to trigger Article 50. On our reading, the litigants were motivated less by concern for the integrity of parliamentary democracy and more with empowering Parliament to delay or frustrate the government’s intention to honour the referendum vote (see the chapters three and ten).48 The broader background was a debate in the wake of the referendum about whether Parliament was required to support the UK’s withdrawal from the EU even if most parliamentarians opposed it. Parliamentary sovereignty was deployed in this argument as a reason why Parliament should decide the question freely: the referendum had to be treated as advisory, so the argument ran, since otherwise Parliament would wrongly be abdicating its authority. The referendum imposed no legal duty on Parliament, however. As a matter of constitutional law, it was open to parliamentarians to defy the referendum vote. But parliamentary sovereignty neither required nor justified such a course. In taking the outcome of the referendum to settle the political question of whether to remain within the EU, parliamentarians were not shirking their responsibilities. Part of the attraction of parliamentary sovereignty is that it makes institutional provision for self-government. Parliament has long been subject to robust political pressure, which is unsurprising insofar as it aims to represent the people, and must be open to representations from them. Parliamentary reform in the nineteenth and twentieth centuries was secured in part by considerable public pressure, the point of which was to make Parliament more responsive to the people, with the franchise repeatedly extended on fair grounds. In yielding to political pressure to reform the franchise, Parliament was not abdicating parliamentary sovereignty. Likewise, parliamentarians cannot defend the political morality of their refusal to enact popular measures by asserting parliamentary sovereignty, which is a rule about legislative authority rather than a justification for its (unpopular) exercise. Commenting on the political turmoil that arose in the aftermath of the referendum, Bogdanor argues that popular sovereignty has been substituted for parliamentary sovereignty.49 His analysis is unpersuasive precisely because Parliament has long been subject, for good reason, to political pressure. What was striking about the period following the referendum was the unwillingness of

48 See R Ekins and G Gee, ‘Miller, Constitutional Realism and the Politics of Brexit’, in M Elliott, J Williams and A Young (eds), The UK Constitution after Miller: Brexit and Beyond (Oxford, Hart Publishing, 2018) 249, 250–260. 49 See, eg, V Bogdanor, ‘On Popular Sovereignty’, in DJ Galligan (ed), Constitution in Crisis: The New Putney Debates (New York, Tauris & Co, 2017) 39.

Ten Myths about Parliamentary Sovereignty 313 many parliamentarians to take responsibility for implementing the outcome, with a striking mismatch between the government and some in Parliament. In making provision for the referendum, by way of the European Union Referendum Act 2015, Parliament exercised its legislative authority to invite the people directly to settle the question of whether the UK should remain in the EU. The constitutional referendum is a technique of representative democracy, which it is reasonably open to Parliament to use from time to time to resolve questions about the longterm identity of the state. In any case, parliamentary sovereignty is a rule about legislative competence, not a licence for the set of MPs now in office to cut themselves apart from a wider public conversation. Indeed, it would arguably have been unconstitutional for Parliament to have defied the referendum. Our claim is certainly not that Parliament is the mouthpiece of the will of the people. It often forms that will during legislative deliberation and political contestation. But historically, and today, it answers to the people and cannot plead parliamentary sovereignty in aid as a ground to silence others. The sovereignty of Parliament is a final power to decide, not moral freedom to do as one chooses.

IX. Myth #7: Parliamentary Sovereignty is Breached if Parliament does not have the Practical Opportunity to Legislate In Cherry/Miller (No 2), the Supreme Court unanimously held that the government’s prorogation of Parliament for a five-week period in 2019 was unlawful, void and without legal effect. Before this case, parliamentary sovereignty had never been understood to impose legal limits on the power to prorogue, save that any statutory limits on prorogation would oust the prerogative. Yet, the Court’s judgment was premised on the claim that it was ‘a concomitant of Parliamentary sovereignty, that the power to prorogue cannot be unlimited’.50 The Court’s exposition of parliamentary sovereignty begins accurately enough, observing ‘that laws enacted by the Crown in Parliament are the supreme form of law in our legal system, with which everyone, including the Government, must comply’.51 But it then suggests that ‘the effect which courts have given to Parliamentary sovereignty is not confined to recognising the status of legislation enacted by the Crown in Parliament as our highest source of law’.52 It continues by suggesting that the courts have protected Parliamentary sovereignty from threats posed to it by the use of prerogative powers, and in doing so have demonstrated that prerogative powers are limited by the principle of Parliamentary sovereignty.53 50 R

(Miller and Cherry) v Prime Minister [2019] UKSC 41, [44]. [41]. 52 ibid. 53 ibid. 51 ibid,

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The prerogative is indeed limited by statute, but the relevant question is whether parliamentary sovereignty should be understood to encompass Parliament’s practical opportunity to enact statute. Begging the answer to that question, the Court suggested that parliamentary sovereignty would be ‘undermined’ if the government could use the prerogative to ‘prevent Parliament from exercising its legislative authority for as long as it pleased’, which ‘would be the position if there was no legal limit upon the power to prorogue’.54 For the Court, an unlimited power of prorogation is incompatible with the legal principle of parliamentary sovereignty.55 To be sure, when Parliament is prorogued, it cannot legislate. However, the legal authority of the Crown in Parliament to legislate is not flouted if Parliament is not in session. By assuming that parliamentary sovereignty is breached if Parliament is not in session, or at least if it is prorogued for too long, the Court conflates constitutional law (the legislative competence of the Queen-in-Parliament) with constitutional practice (the importance of Parliament meeting regularly). One sees this in the Court’s rejection of political constraints on the power to prorogue Parliament as inadequate.56 The Court’s lack of confidence in these constraints does not establish that parliamentary sovereignty entails legal limits on the power to prorogue. The Court concedes that Parliament does not remain permanently in session, and that it is lawful to prorogue Parliament even though this suspends Parliament’s law-making capacity.57 Given its earlier claim that parliamentary sovereignty is undermined where Parliament is prevented by prorogation from exercising its legislative authority, the question that arises for the Court is how to square lawful prorogation and parliamentary sovereignty. For the Court, the effects of a short prorogation on Parliament’s ability to legislate are ‘relatively minor and uncontroversial’, with no question arising about the compatibility with parliamentary sovereignty. However, an incompatibility arises, and the Court will intervene, where a decision to prorogue has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive.58

This reasoning is unconvincing. Parliamentary sovereignty has never meant that Parliament must be in perpetual session. The Crown has always enjoyed authority to summon, prorogue and dissolve Parliaments, subject to statute. So, for example, the Fixed-term Parliaments Act 2011 abolished the prerogative of dissolution but preserved the prerogative of prorogation. The Calling and Dissolution of Parliament Bill, if enacted, will restore the power to dissolve Parliament, with clause 3 of the Bill protecting dissolution from judicial challenge. The protection is 54 ibid,

[42].

55 ibid. 56 ibid,

[43]. [45]. 58 ibid, [50]. 57 ibid,

Ten Myths about Parliamentary Sovereignty 315 necessary because on the Court’s reasoning a dissolution, which brings a Parliament to an end, flouts parliamentary sovereignty. But parliamentary sovereignty is a rule about the authority of the Queen-in-Parliament. The rule holds even if Parliament is not sitting, because of prorogation, dissolution or recess, and is thus unable to assent to legislative proposals. The same is true if Parliament is sitting and yet parliamentarians are unable to enact legislation that they would otherwise wish to enact because the government controls the agenda of the House or Standing Orders prohibit certain types of Bill advancing without its consent. Parliamentary sovereignty does not entail that the Houses of Parliament always have a practical opportunity to legislate, and to suggest otherwise is to expand the doctrine to justify the courts inventing new legal limits, which in the context of Cherry/Miller (No 2) entailed ‘the judicial arm of the state … [exercising] hitherto unidentified power over the Executive branch of the state in its dealings with Parliament’.59

X. Myth #8: Parliamentary Sovereignty is Incompatible with, and Subject to, the Rule of Law If parliamentary sovereignty is good law, it follows that the Queen-in-Parliament has authority to enact legislation that is vague, impossible to obey, retrospective or otherwise in breach of the desiderata of the rule of law. Various statutes have been open to criticism on these grounds. None of this establishes that parliamentary sovereignty is incompatible with the rule of law. On the contrary, the doctrine is a good way to realise the rule of law.60 Legislation articulates legal propositions in canonical form and is a type of law oriented towards changing the law clearly and directly, with prospective effect. Parliamentary sovereignty establishes the legal validity of legislation, which avoids legislation being quashed by way of judicial review with retrospective effect. The supremacy of statute, and its characteristic form, helps secure the rule of law, with Parliament responsible for exercising its legislative authority in a way that avoids unfairness and uncertainty. In recent years, some jurists have argued that parliamentary sovereignty is arbitrary power and that unless and until Parliament is subject to judicial review, the rule of law is imperilled.61 This misunderstands the rule of law, which is best conceived as the state of affairs in which a legal system is in good working order, built on the basic intuition that law should guide those who are subject to it, in which legal rules address the subjects of law as persons capable of acting for reasons, instantiating reciprocity between ruler and ruled. It is an ideal about the

59 R

(Miller) v Prime Minister [2019] EWHC 2381 (QB), [63]. further J Finnis, Natural Law and Natural Rights 2nd edn (Oxford, OUP, 2011), ch X. 61 See, eg, TRS Allan, The Sovereignty of Law (Oxford, OUP, 2013) and Sir John Laws, The Constitutional Balance (Oxford, Hart Publishing, 2021); cf R Ekins, ‘Judicial Supremacy and the Rule of Law’ (2003) 119 LQR 127. 60 See

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role of positive law in the life of the community. It requires officials, including judges, to uphold positive law, but does not require that all questions about how we should be governed should be settled by law. For example, it is no breach of the rule of law for the government to have wide-ranging discretion in relation to foreign policy. The same is true for Parliament’s exercise of legislative authority. It would not be an advance for the rule of law for courts to stand in judgment over legislation, especially if the courts were exercising a vague supervisory jurisdiction of the kind seen in some other constitutional systems. Whatever the merits of parliamentary sovereignty, the doctrine is fundamental constitutional law. Some argue that this is not so and that courts should recognise the rule of law, rather than parliamentary sovereignty, as fundamental constitutional law, which would authorise judicial review of legislation. Lord Hope argues as much in Jackson, concluding that ‘[t]he rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based’.62 In support,63 Lord Hope notes Dicey’s stress on the constitutional importance of the rule of (ordinary) law and implies that the supremacy of law requires courts to disregard or quash acts, including legislative acts, that are made in excess of lawful power, a proposition which he says is reinforced by the ECHR and HRA. This is a weak argument. If there were legal limits on Parliament’s authority, the rule of law would certainly require that they be upheld. In our legal system, the law authorises Parliament to legislate and the rule of law thus makes statute inviolate. Parliamentary sovereignty is itself a rule of law, and the importance of the rule of law does not license judges to subvert or otherwise defy settled constitutional law. It remains unlikely that judges will openly reject parliamentary sovereignty and assert a novel authority to invalidate legislation that they deem unjust. Doing so would be to openly attempt to overthrow the law of the constitution, which would expose judges to justified political criticism. But the myth that judges are free to subject parliamentary sovereignty to the rule of law has been asserted less brazenly. This is seen in some cases in which legislation is interpreted in surprising ways. In Evans, for example, three of seven judges interpreted section 59 of the Freedom of Information Act 2000 in such a way as to rob it of its clearly intended meaning and effect, reasoning that Parliament had not used the crystal-clear language necessary to authorise a minister to override a decision of a tribunal.64 But the language was crystal clear and Parliament’s intentions were not reasonably in doubt. Lord Hughes in dissent put the point well: ‘it is an integral part of the rule of law that courts give effect to Parliamentary intention. The rule of law is not the same as a rule that courts must always prevail, no matter what the statute says’.65

62 Jackson

(n 11) [107].

63 ibid. 64 Evans

v Attorney General [2015] UKSC 21. [154]. The majority in Evans invoked ‘the rule of law’ in support of their reasoning. For criticism, in addition to the dissenting judgments of Lord Wilson and Lord Hughes, see R Ekins and C Forsyth, Judging the Public Interest: The Rule of Law vs the Rule of Courts (Policy Exchange, 2015). 65 ibid,

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XI. Myth #9: Parliamentary Sovereignty does not Authorise Parliament to Limit (oust) Judicial Review Lord Steyn’s scepticism about parliamentary sovereignty in the final substantive paragraph of his speech in Jackson, his last judgment before retirement, is bookended by the spectre of legislation attempting to abolish judicial review or the ordinary role of the courts,66 viz. the Asylum and Immigration (Treatment of Claimants) Bill, which at one stage envisaged a significant curtailing of judicial review on asylum and immigration claims.67 In Jackson, Lord Steyn concludes that at some juncture the UK’s top court might have to hold that it is beyond Parliament’s legislative authority to abolish judicial review. This argument assumes that unless and until the courts reconsider parliamentary sovereignty, it would lie within Parliament’s power to oust judicial review by legislation. But others rely on cases like Anisminic68 in which courts interpret ouster clauses very narrowly to argue that parliamentary sovereignty does not authorise Parliament to limit judicial review. It is true that common law courts presume Parliament does not intend to ouster judicial review, but they have also always said Parliament may make its intentions clear. In Privacy International, the Supreme Court considered an ouster clause that had seemingly been framed with an eye to Anisminic, to make clear that the High Court had no jurisdiction to quash (purported) decisions of the Investigatory Powers Tribunal on the grounds of errors of law.69 The majority interpreted the clause narrowly, holding that it did not preclude review for error of law. Lord Carnwath, with whom Lord Kerr and Lady Hale agreed, reasoned that in interpreting ouster clauses, the object of the exercise was not to infer legislative intent.70 This reasoning cannot be squared with parliamentary sovereignty. But worse was to come for another question on appeal was whether, and if so on what principles, Parliament may legislate to oust the supervisory jurisdiction of the High Court. This was an extraordinary question for an appellate court to contemplate, for parliamentary sovereignty makes clear that Parliament enjoys legally unlimited law-making authority and is therefore free to legislate to limit the High Court’s supervisory role. However, acting for the appellant, Dinah Rose QC argued that a clause purporting to oust that role cannot be upheld because it would conflict with the rule of law, which is as foundational to the UK constitution as parliamentary sovereignty.71 Rose denied that she was inviting the Court to question 66 Jackson

(n 11) [102].

67 For an excellent account of the legal and political backgrounds to the Bill, see R Rawlings, ‘Review,

Revenge and Retreat’ (2005) 68 MLR 378. 68 Anisminic v Foreign Compensation Commission [1969] 2 AC 147. 69 R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22. 70 ibid, [107]. 71 ibid, [114].

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parliamentary sovereignty, but was instead aiming to explain its boundaries, arguing that the supervisory jurisdiction of the High Court was a concomitant of parliamentary sovereignty. Lord Carnwath asserted that it was common ground ‘that the relationship between Parliament and the courts is governed by accepted principles of the “rule of law”’.72 This distinguished Privacy International, he said, from cases in which Parliament might attempt to abrogate those principles, as Lord Steyn contemplated in Jackson. He made much of Parliament’s decision to enact section 1 of the constitutional Reform Act 2005, which provides that that Act does not adversely affect the existing constitutional principle of the rule of law. For our part, section 1 was irrelevant to the question before the Court. The section limits, in uncertain terms, the scope and effect of the 2005 Act. It does not provide a licence for deploying the idea of the rule of law more widely, especially if the effect is to displace otherwise settled law. Relying in part on the judgment in Cart,73 Lord Carnwath works his way up to the conclusion ‘that it is ultimately for the courts, not the legislature, to determine the limits set by the rule of law to the power to exclude review’.74 This is ‘a natural application of the constitutional principle of the rule of law (as affirmed by section 1 of the 2005 Act) and an essential counterpart to the power of Parliament to make law’.75 The better view is that it turns the rule of law on its head, deploying it as a ground for defiance of positive law. Parliament’s power to make law extends to the question of how best to give legal effect to the rule of law and the proper scope of judicial review. Lord Carnwath is wrong to suggest that Parliament may be unable to limit statutory appeal rights in judicial review cases;76 Parliament’s legislative authority clearly extends to the shape and structure of the legal system. Parliament’s power to make law does not entail that the law of judicial review is (or for that matter should be) immune from that power. On the contrary, parliamentary sovereignty empowers Parliament to choose whether to oust or limit judicial review. The climax of Lord Carnwath’s judgment is his suggestion that there is a strong case for holding that, consistently with the rule of law, binding effect cannot be given to a clause which purposes to wholly exclude the supervisor jurisdiction of the High Court to review a decision of an inferior court or tribunal.77

He continued that ‘in all cases, regardless of the words used, it should remain ultimately a matter for the court to determine the extent to which such a clause should be upheld’. However, if a court were to openly refuse to give effect to a clause which clearly excludes judicial review for error of law in this way, it would be acting

72 ibid,

[119]. (Cart) v Upper Tribunal [2012] 1 AC 664. 74 Privacy International (n 69) [131]. 75 ibid, [132]. 76 ibid, [141]–[143]. 77 ibid, [144]. 73 R

Ten Myths about Parliamentary Sovereignty 319 lawlessly. What Lord Carnwath contemplates here is overt defiance of a statute, which is forbidden by parliamentary sovereignty, and would involve the judicial upending of our constitutional order. Parliamentary sovereignty is not subject to an exception where limits on judicial review are concerned and Parliament’s power to make law does not entail that judicial review is somehow immune from legislative power. It is ultimately for Parliament, not judges, to decide whether legislation limiting judicial review is reasonable or otherwise justified.

XII. Myth #10: Parliamentary Sovereignty is in Fact Executive Sovereignty Scepticism about parliamentary sovereignty is often driven by a concern that the doctrine makes executive power the centrepiece of the constitution. The Queenin-Parliament, on this line of thought, is an instrument of crude majoritarian politics, laundering decisions made by an overbearing executive, which is subject to no principled limitations. Parliamentary sovereignty is thus in practice executive sovereignty, which makes its subjection to limits vital. This motivated Lord Steyn’s judgment in Jackson, which opened by suggesting that executive dominance of Parliament had increased across the latter decades of the twentieth century.78 This framed his concern about the Parliament Acts and his speculation, about ‘a sovereign Parliament acting at the behest of a complaisant House of Commons’.79 Writing extra-judicially, Lord Hope made his case against parliamentary sovereignty on the grounds that Parliament was the catspaw of an over-mighty executive, which the courts should be entitled to limit.80 It is true that within the Queen-in-Parliament the Commons now has the whip hand. The Queen cannot, by convention, withhold assent and the Lords is subject to constitutional convention, including the Salisbury Convention. Moreover, the Parliament Acts 1911 and 1949 have the effect that the Queen-in-Parliament may, in the end, enact legislation even if the Lords withholds its assent. Thus, a determined Commons is likely in the end to triumph, even if the Lords’ power to delay legislation is not insignificant. The Commons forms and supports the government, which enjoys control of the legislative agenda and the confidence of a majority. What the Queen-in-Parliament enacts is likely to be very heavily framed by the proposals for legislation that the government moves. However, it is a mistake to confuse the government’s importance within the Commons, and Parliament as a whole, with the claim that parliamentary sovereignty is somehow executive sovereignty. The dynamics of parliamentary democracy make entitlement to govern, and to exercise leadership within Parliament, turn on support within the Commons and in the end amongst the country at large. The subset of parliamentarians that 78 Jackson

(n 11) [71]. [102]. 80 See Hope (n 21). 79 ibid,

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form the government do so subject to withdrawal of confidence and subject also to an incapacity to change primary legislation without the express assent of a majority. The government leads within Parliament, because of its parliamentary support, which it would be ill-advised to take for granted, either in general or in relation to particular proposals for legislation. The moral-political rationale for parliamentary sovereignty is no longer the ancient idea of the mixed constitution, in which King, Lords and Commons limit one another. But the idea of balance remains, with the political constitution making provision for a government to exercise leadership subject to parliamentary and wider political challenge. Close study of the legislative process refutes the idea that Parliament simply does the government’s bidding.81 Even in relation to legislation that is a high political priority, the government’s proposals are routinely amended in important ways as they pass through Parliament. Anticipation of opposition, from its own backbenchers, the Opposition or the Lords, also frames what is proposed. Again, it is true that a determined Commons, with enough time, may secure enactment of primary legislation. This capacity to act is a fundamental feature of our parliamentary democracy. It makes radical politics possible, but is subject to a self-tempering dynamic insofar as each successive Parliament enjoys the same authority, which means legal change may be undone. The political constitution makes provision for responsible government, with ministers accountable to Parliament for its exercise of public power and obliged to work with Parliament if they are to govern. The government is part of Parliament, sourced from within the Commons. In introducing proposal for legislation, ministers act as parliamentarians, even if a special subset of parliamentarians who take responsibility for advancing a coherent programme of government. The government does not dominate Parliament as if its political support within the Commons made parliamentary politics or the wider legislative process irrelevant. On the contrary, the government is subject to the continuing prospect of challenge within Parliament and of course in the country at large. Neither Parliament nor government are insulated from wider public debate about how we should be governed. Parliamentary sovereignty is a central feature of our system of parliamentary democracy. It makes it possible for the government to propose, and often secure, radical legal change. But in exercising legislative authority, the Queen-inParliament is not simply the government’s instrument.

XIII. Conclusion The myths we have considered in this chapter obscure the way in which parliamentary sovereignty stands within our legal system and our constitution. The legislative

81 See M Russell and D Glover, Legislation at Westminster: Parliamentary Actors and Influence in the Making of British Law (Oxford, OUP, 2017).

Ten Myths about Parliamentary Sovereignty 321 authority of Queen-in-Parliament takes its place within the political constitution, which includes constitutional convention and political dynamics. The constitutional significance of parliamentary sovereignty is that radical legal change is always possible and parliamentary support is necessary to govern. The doctrine is ancient law, which judges did not make and are not free now to change. It is instead a fundamental custom of our political community, an institutional provision for self-government that has been maintained across generations. It was not abandoned in the course of the UK’s membership of the EU, even if part of the political case for leaving the EU was to restore Parliament’s practical freedom to legislate as it sees fit. Legislative authority is exercised subject to political constraints and parliamentary sovereignty does not excuse indifference to or disdain for the people. Likewise, the doctrine does not entail, either constitutionally or legally, that major decisions must be made by way of legislation or that Parliament must remain in session in order to legislate. Subject to withdrawal of confidence, and of course to statute, the government is legally free to exercise prerogative powers, including to prorogue or dissolve Parliament. While the government exercises leadership within Parliament, it cannot legislate alone and the need to secure parliamentary support for legislation, and much else, is a powerful discipline. Legislative authority extends to the law of judicial review and the absence of justiciable limits on Parliament is not somehow an affront to the rule of law; if judges were to purport to quash statutes, they would act lawlessly. While there is more to the constitution than parliamentary sovereignty, the doctrine is constitutional bedrock and should be understood properly, upheld faithfully and deployed honestly.

13 Accountability to Parliament for the Administration of Justice GAVIN DREWRY

As an agency of state power, the judiciary as a body are, or ought to be, accountable for the general manner in which the court system serves the public at large. But methods of ensuring this form of accountability must not be such as to prejudice judicial independence.1 ‘The first point I want to make is to remind everybody that the Courts and Tribunal Service did not stop during the [COVID-19] pandemic. Justice is a key service. The rule of law is central to our civilisation, to our society and, frankly, speaking personally, it is central to everything I do in the Department. The need to keep the courts going has been at the forefront of everybody’s mind.2

I. The Constitutional Territory of Accountability We are all familiar with the vocabulary of ‘territory’ as it is normally used with reference to spatial entities like cities, regions, nation states and back gardens. By extension, the concept of territory – and the mind-set of territoriality (protective or defensive feelings about bits of territory that we feel to be ours) – is sometimes used metaphorically in non-spatial senses to elucidate tricky ideas and concepts. Thus, in this chapter, which is concerned with the constitutionally important but sometimes contested frontier between a sovereign Westminster Parliament, with its (at least as far as the Commons is concerned) democratic mandate and its key role of holding policy makers and the providers of public services to account for what they do and what they spend, and a judiciary that is fiercely protective of

1 A Bradley, ‘ The New Constitutional Relationship Between the Judiciary, Government and Parliament’, App 4 of the Sixth Report of the House of Lords Select Committee on the Constitution, Relations between the Executive, the Judiciary and Parliament (HL 2006–07, 151) 18. 2 Lord Wolfson of Tredegar QC, Parliamentary Under-Secretary of State for Justice; oral evidence to the House of Commons Select Committee on Justice in connection with the Committee’s inquiries into (a) Court Capacity and (b) Legal Aid, 24 March 2021, Q445.

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its independence from executive control and political interference, the concept of constitutional territory provides an apt starting point. Like spatial territories, constitutional territories have their boundaries – boundaries that are patrolled, defended and policed. Squabbles about the location of those boundaries can give rise to cross-border skirmishes and turf wars. Sometimes there may even be civil wars, within one of the institutional branches of the Constitution – as with the intermittent disagreements that may arise between Commons and Lords, between the Ministry of Justice and the Home Office, and between all the ‘spending’ departments (not least, those concerned with the administration of justice) and the Treasury. It should be noted that, in practice – as will be apparent later in this chapter – a lot of the justice-related preoccupations of MPs and peers have little to do with constitutional turf wars or with big issues of policy but are focused on cumulatively important, but for the most part relatively low key, administrative issues – to do, for instance, with the money, access to justice, the efficient running of courts and prisons, policing and the availability of legal aid. This is a large part of what ‘accountability to Parliament for the administration of justice’ – the title of this chapter – means in practice. Constitutional territories may of course also have some spatial aspects that can be interesting and significant – eg the respective physical configurations of the two chambers of Parliament and the relocation in 2009 of the final appellate jurisdiction from the Palace of Westminster to a UK Supreme Court located in the Guildhall, on the other side of Parliament Square. But this chapter is concerned mainly with territory in its abstract, metaphorical sense.

II. A Fast-Changing Landscape A pause for caveats is necessary at this point. This chapter, like the rest of the book, is being written at a time when many long-held assumptions about aspects of the UK’s constitutional territory and the boundaries that both surround it and delineate its internal substructures have been facing interesting challenges. And some of those challenges have impacted upon the relationship between Parliament and the justice system. Intermittent skirmishes have broken out across the hitherto mutually respected frontier between the courts on one side and government and Parliament on the other. Hairline cracks in the uncodified Constitution have begun to open up in ways that have prompted concerns about the robustness of fundamental principles, such as the UK’s hitherto unwavering and oft-stated commitment to the rule of law. This constitutional re-thinking has been driven, or at least given added impetus, by significant changes in the political landscape, further accelerated and accentuated by the impact of Brexit and the COVID-19 crisis. The word ‘populism’ has become almost a cliché in academic commentary in the UK, and in other western countries too. Some political leaders – the Prime Minister, Boris Johnson,

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is one of them – have evinced a growing preference for engaging directly with the electorate, not just in electioneering contexts but also, when elected to office, in the conduct of government itself. This has been facilitated by the ubiquity of social media. And, inevitably, this has tended to be detrimental to the parliamentary scrutiny of executive functions – including ones relating to the administration of justice. Meanwhile, the same explosion in the availability and use of information technology and social media, has brought both new challenges and new opportunities to the justice system itself. Moreover, the courts themselves have, for better and for worse, become significant players – as well as potential targets – in some of these unfolding political-cum-constitutional events. The turmoil over Brexit yielded several episodes of constitutional drama – not least, the two Miller cases, both decided eventually in the UK Supreme Court, which has begun to display some of the characteristics of a constitutional court. The general election of December 2019 yielded a landslide victory to a Conservative Government, pledged to ‘get Brexit done’. The Conservative Manifesto also included a promise to: ensure that judicial review is available to protect the rights of the individuals against an overbearing state, while ensuring that it is not abused to conduct politics by another means or to create needless delays. In our first year we will set up a Constitution, Democracy & Rights Commission that will examine these issues in depth, and come up with proposals to restore trust in our institutions and in how our democracy operates.3

At the time of writing, the commission has not been set up, but the Ministry of Justice established a panel, under the chairmanship of the crossbench peer, Lord Faulks QC, which reported in March 2021, to review the scope and operation of judicial review. The government also commissioned a panel, chaired by Sir Peter Goss, a former Lord Justice of the Court of Appeal, to review the Human Rights Act 1998. Speaking in a House of Lords debate on the Queen’s Speech, Lord Faulks acknowledged that the reasons behind the setting up of the panel might have to do with the reversals suffered by the government in the two Miller cases, but noted that, ‘the panel was not ultimately convinced that judicial review needed radical reform’. He went on: as we conclude in our report, it is inevitable that the relationship between the judiciary, the Executive and Parliament will from time to time give rise to tensions, and a degree of conflict shows that the checks and balances in our constitution are working well. We must trust our judges to identify cases which are – to use the words of a Court of Appeal judge – using judicial review as ‘politics by another means’.4

The final outcome of these reviews is uncertain at the time of writing, but a Judicial Review and Courts Bill (offering, for the time being, unexpectedly minor changes

3 Get 4 HL

Brexit Done: Unleash Britain’s Potential, Conservative and Unionist Party Manifesto 2019, 50. Deb 18 May 2021, col 490.

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to judicial review)5 is currently before Parliament and there have certainly been strong signals from the government that it would like to tilt the constitutional balance by diminishing the powers of the judiciary to hold it to account and, in particular, to clip the wings of its main judicial bête noire, the UK Supreme Court. Then there is the COVID crisis, which has impacted massively and very directly both on Parliament and on the justice system. Much parliamentary business, including debates, questions and committee scrutiny has had to be conducted remotely. Similarly, a lot of judicial business has moved online, while lockdowns and travel restrictions have seriously impeded the operation of court hearings – including criminal trials, in which some prisoners awaiting trial for serious offences have had to languish on remand for unacceptably long periods for trials in which, or course, they may be acquitted. These issues have been exacerbated by continuing cuts to the justice budget, that have resulted in court closures and staff redundancies. The subject-matter of recent parliamentary debates, questions and committee inquiries (for examples, see below) have reflected these developments. These big uncertainties must form part of the background to any discussion of parliamentary accountability for the justice system.

A. The Separation of Powers – The Theory and the Reality Returning now to our ‘territorial’ metaphor, we have traditionally tended to delineate the main areas of constitutional territory through the eighteenth century language of ‘separation of powers’ – with its triangulation of ‘executive’, ‘legislative’ and ‘judicial’ branches; but the tendency for legislative bodies and legislative agendas to be controlled in many countries, to varying degrees, by executive government has rendered this vocabulary seriously out of date, at least insofar as the relationship between the executive and legislative branches are concerned. This is particularly the case in the UK, where (unlike the US) Members of the political executive are also Members of one or other of the two Houses of Parliament – a ‘fusion’ rather than a ‘separation’ of powers. But the aspect of separation of powers that signals the distinctive role of the judiciary and its claims in democratic polities to constitutional independence from both the executive and the legislature remains as important as ever and is central to the theme of this chapter. Sensitivities surrounding judicial independence have long been an impediment to parliamentary scrutiny of the administration of justice. Although there have been important reforms in the last decade or so that have gone some way to rectifying this, in the post-Brexit era the political wind has been blowing in ways that may not augur well for justice and the rule of law.

5 T Hickman QC, ‘Quashing Orders and the Judicial Review and Courts Act’, UK Constitutional Law Blog (26 July 2021) ukconstitutionallaw.org/2021/07/26/tom-hickman-qc-quashing-orders-andthe-judicial-review-and-courts-act/ (accessed 19 January 2022).

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Another item of territorial vocabulary deserves a mention in the present context – the word ‘arena’. In the 1970s the US political scientist, Nelson Polsby, distinguished between ‘arena’ legislatures which are the locus for public debate and legitimation of decisions taken elsewhere and ‘transformative’ legislatures that have a proactive role in law making.6 All legislative bodies in the real world fall somewhere between these two extremes, and other scholars have refined Polsby’s typology to reflect this.7 The UK Parliament is generally depicted as being located somewhere near the ‘arena’ end of the spectrum, spending much of its time debating and scrutinising business – including legislative business – brought before it by government ministers, and with backbenchers and Opposition frontbenchers (and crossbenchers in the Lords) doing what they can, through parliamentary questions, correspondence with ministers, debates and select committee enquiries, to hold the government frontbench to account for its deeds and misdeeds. This means that, when engaging with issues to do with the administration of justice, a big challenge for the Westminster Parliament is how to keep pace with fast moving agendas that have been formulated by the government, and which has at its disposal the vast resources of advice and expertise that underpin executive government. The following account of accountability to Parliament for the administration of justice will consider some of the ways in which the struggle to impose accountability is played out, and how the relevant mechanisms and procedures have adapted to changes in the culture of public administration, to efforts to procedural reform and to shifts in constitutional boundaries. But it will look also at the part played by Parliament as an arena for debating and enquiring into matters pertaining to the constitutional relationship between itself, as the legislature, and the judiciary. In the latter context, particular attention will be given to the enactment of the transformative Constitutional Reform Act 2005. As we shall see, until quite recently the prevailing orthodoxy was that the judges and, by extension, the civil servants who administer the court system, were exempt from even the most routine and non-partisan forms of parliamentary scrutiny. This claim to immunity was founded upon a very literal interpretation of the principles of separation of powers and judicial independence. Lord Chancellors – themselves a living negation of separation of powers by virtue of their being Members of the Cabinet and of the upper chamber of Parliament8 while also exercising judicial functions – regarded themselves as links or ‘buffers’ between the judiciary and government/Parliament, and fiercely resisted any hint of parliamentary intrusion into judicial territory. Lord Chancellors always sat in the House of Lords and there 6 N Polsby, ‘Legislatures’, in N Polsby and F Greenstein (eds), Handbook of Political Science (Boston, Addison Wesley, 1975). 7 Eg, P Norton, ‘Legislatures in Perspective’, in P Norton (ed), Parliaments in Western Europe (London, Frank Cass, 1990); P Norton, ‘The Legislative Powers of Parliament’, in C Flinterman, AW Heringa and L Waddington (eds), The Evolving Role of Parliaments in Europe (Makjilu, 1994) 15; M Mezey, Comparative Legislatures, (Durham, NC, Duke University Press, 1979). 8 And indeed was, until 2005, the presiding officer of the House of Lords.

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had long been strong resistance by them and by the legal establishment to any suggestion of establishing a continental-style (or indeed any other ‘style’) ministry of justice, headed by a minister in the Commons. That resistance has at last been overcome, with the establishment in 2007of a Ministry of Justice, whose Secretary of State, sitting – as the most recent holders of the office have done – in the Commons, subsumes the office of Lord Chancellor. The responsibilities of the Ministry of Justice include those aspects of the administration of justice with which this chapter is principally concerned – the running of courts and tribunals, the working of the legal professions, legal education, law reform and the funding and delivery of legal services (including legal aid). However, it should be borne in mind that the Ministry has other major responsibilities – in particular for prisons and the probation service – which account for much of its manpower and its budget. The House of Commons itself now has well-established machinery – including its Justice Select Committee – to oversee justice-related matters. However, it is to the historic role of Lord Chancellors that we now turn.

III. A Negative Tradition of Accountability – The View from the Lord Chancellor’s Window The office of Lord Chancellor can be traced back to Saxon times. In the nineteenth century, with the early development of cabinet government, it acquired some ministerial attributes, but they were of a peculiar and constitutionally incongruous kind, combined as they were with the speakership of the legislative House of Lords and sitting regularly as presiding judge in the judicial House of Lords. A Lord Chancellor’s Office was not created until 1885 and then on a very small scale – ‘an interesting little museum’, as it was aptly described by one twentieth-century commentator9 – its functions being almost wholly limited to judicial and ecclesiastical patronage. It was not until the early 1970s, when the Courts Act 1971 brought the County Courts Service under the wing of a greatly enlarged Lord Chancellor’s Department that we saw the first move towards ‘normalising’ the bureaucratic infrastructure underpinning the administration of justice by embedding it in a major Whitehall spending Department. Although it may not have appeared so at the time – and the very idea would probably have been viewed with horror by Lord Chancellors of this period – this prefigured a gradual, but ultimately irresistible, demand for greater public accountability for the administration and funding of the courts. But why did the Lord Chancellor’s ‘little museum’ last for so long? Why did it take until the 1970s for a small private ‘Office’ to metamorphose into a ‘Department’ and, eventually, in 2007, into the Ministry of Justice? It is now a major spending 9 RM

Jackson, The Machinery of Justice in England 7th edn (Cambridge, CUP, 1977) 583.

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department, headed by a Secretary of State sitting in and accountable to the House of Commons, employing more than 77,000 civil servants, supported by more than 30 executive agencies and public bodies, and with an annual expenditure of £10.6 billion.10 Past, and sometimes rather arid, discussions about whether the UK should bring itself, at least terminologically, into line with much of the rest of the world by establishing something called a Ministry of Justice can be traced back to a report by the Committee on the Machinery of Government, set up under the auspices of the Ministry of Reconstruction at the end of the First World War under the chairmanship of Viscount Haldane.11 The Report recommended that the Home Office be redesignated as a Ministry of Justice, with the Lord Chancellor retaining his responsibility for judicial appointments and presiding over a new Imperial Court of Appeal. However, in the result, these and other recommendations in the Haldane Report came to nothing. Other proposals for establishing a Ministry of Justice surfaced subsequently from time to time, but invariably foundered on fears that such a Ministry, with its minister sitting in the party-political hothouse of the Commons, would pose some kind of threat to judicial independence. Lord Chancellor Birkenhead, writing in the aftermath of the Haldane Report, also thought that the distractions of political life in the Commons might be inimical to the effective performance of the Lord Chancellor’s functions: … the very fact that the Lord Chancellor is not a member of the House of Commons, is neither subjected to the daily pressure of the personal and political intimacies formed in that House, nor swayed by the necessity of conciliating any one at the critical stages of a critical Bill, enables him to take a broader view. It may be questioned whether the Minister of Justice will have the same freedom. Seeing the life of the House of Commons from day to day, his brain must constantly be preoccupied with the political considerations of the moment.12

It is only relatively recently that countervailing arguments in favour of subjecting the Minister responsible for the administration of justice to accountability in the elected chamber began to gain significant traction. Meanwhile, the opposition to such proposals had often been characterised by serious conceptual and semantic confusion, giving rise to a lot of talk at cross-purposes about what form a Ministry of Justice might actually take in a UK context. In 1981, Lord Hailsham – perhaps 10 Of which about £4.7bn relates to the Prisons and Probation Service, £1.8bn to legal aid and £1.9bn to the Courts and Tribunals Service; see the National Audit Office Departmental Overview 2019–20, www. nao.org.uk/wp-content/uploads/2021/01/Departmental-Overview-2019-20-Ministry-of-Justice.pd> (accessed 19 January 2022). More information can be found in the MoJ’s Single Departmental Plan 2019–2022, www.gov.uk/government/publications/ministry-of-justice-single-departmental-plan/ministry-ofjustice-single-departmental-plan--3 (accessed 19 January 2022). 11 Cd 9230, 1918, ch X. For an account of the chequered history of the debate about a Ministry of Justice see, G Drewry, ‘Lord Haldane’s Ministry of Justice – Stillborn or Strangled and Birth?’ (1983) 61 Public Administration 396; G Drewry, ‘The Debate about a Ministry of Justice – A Joad’s Eye View’ [1987] Public Law 502. 12 Viscount Birkenhead, Points of View, vol 1 (London, Hodder and Stoughton, 1922) 118–9.

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the last of the really ‘traditionalist’ Lord Chancellors in the ferocity of his resistance to any parliamentary scrutiny of judicial business and a declared opponent of any moves to establish a Ministry of Justice13 – told the Home Affairs Select Committee, without any apparent ironic intent, that he regarded himself as the Minister of Justice.14

A. Non-accountability in the 1980s One could doubtless find plenty of illustrative examples of the deeply engrained presumption of judicial immunity from parliamentary accountability up to and during the Hailsham era, but let one instance suffice. In 1986, the well-regarded legal reform body, JUSTICE, set up a committee under the chairmanship of John Macdonald QC, to inquire into the machinery for dealing with public complaints about the administration of the courts. Its Report (a forward-looking document in many respects) discussed, among other things, the role of the Parliamentary Ombudsman15 (a statutory Officer of Parliament), who in 1984 had reached a ‘concordat’ with the Lord Chancellor’s Department (LCD) about the location of the boundary line between ‘administrative’ matters (deemed to lie within the remit of the Ombudsman) and ‘judicial’ matters (definitely excluded from the Ombudsman’s jurisdiction). The 1984 agreement had subsequently broken down following the Lord Chancellor’s Department’s obtaining counsel’s opinion to the effect that LCD court staff working under the instructions of judges did not come within the Ombudsman’s purview. The then Select Committee on the Ombudsman took evidence on the subject from Lord Hailsham and later from Lord Mackay, who succeeded Hailsham as Lord Chancellor in 1987.16 The Lord Chancellor subsequently agreed to bring his Department within the Ombudsman’s remit, a change that was effected by section 110 of the Courts and Legal Services Act 1990. The JUSTICE Report also noted the rather startling fact that, in dealing with complaints by disgruntled litigants, the Lord Chancellor’s Department’s refusal to accept responsibility for administrative actions carried out on the instructions of a judge had meant that only five per cent of complaints were being accepted for consideration – observing, with some understatement, that it was not surprising if such a low take-up rate gives rise to ‘some lack of confidence’ in the system.17

13 Subsequently, in a speech to the Bar Conference, Lord Hailsham said that a Ministry of Justice would be ‘a menace to the independence of the courts and the judiciary’. The Times, 28 May 1986. 14 Home Affairs Committee, The Prison Service (HC 1980–81, 412-ii) 996. 15 The original statutory name of this office, established in 1967, was Parliamentary Commissioner for Administration. It is now called the Parliamentary and Health Services Ombudsman. 16 Select Committee on the Parliamentary Commissioner for Administration, Evidence of Lord Hailsham, 31 March 1987 (HC 1986–87, 284-II); evidence of Lord Mackay, 26 January 1989 (HC 1988–89, 159). 17 JUSTICE, The Administration of the Courts (JUSTICE 1986) 3.7.

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In fact, the JUSTICE Committee became preoccupied with the issue of judicial independence, to a point where it virtually lost sight of any legitimate claims of public and parliamentary accountability. At one point it considered the objections that might be raised to extending the powers of the Ombudsman to include investigations of judicial behaviour, a change apparently favoured by some Members of the Committee. One objection, it said, ‘is that, as the Ombudsman reports to the House of Commons, this would encourage MPs to pry into the affairs of the judiciary’ (emphasis added).18 But this objection was then promptly rejected on the grounds that the Ombudsman is an independent officer who ‘would only investigate a complaint if he were satisfied that it was serious’, and, the Report continued, ‘if a serious complaint is made, it would seem better that it should be investigated by an independent person of the standing of the Ombudsman than for it to become the subject of ill-informed speculation in Parliament’ (emphasis added).19 While it is certainly true that the Ombudsman is an officer of Parliament, reporting to a Commons select committee, the use of this kind of language, by a committee representing a reformist organisation like JUSTICE, speaks volumes about the depth of the resistance, at least until the 1980s, to any notion of parliamentary accountability for the administration of justice.

B. Enter Lord Mackay – The Green Paper Furore The picture began to change with a change of Lord Chancellor in 1987 and when the Thatcher Government’s ‘new public management’ reforms that had transformed the landscape of UK public administration in the 1980s (see below) began for the first time to have a major impact on the administration of justice. The justice system began to be seen less as a constitutionally ring-fenced special case and more as a big, important and public service, much like health or education – with all that that entailed in terms of public accountability. Judicial independence remained an important principle, but the efficiency and funding of the courts and legal aid were increasingly seen as legitimate areas of parliamentary concern. In June 1987 Lord Hailsham stood down as Lord Chancellor, and was succeeded in the office briefly by Lord Havers and then by Lord Mackay of Clashfern. Lord Mackay was a Scottish lawyer and so not a member of the close-knit English legal establishment. He had held office as Lord Advocate in the early Thatcher years (1979–84) and had then been appointed a Lord of Appeal in Ordinary. Unlike Hailsham, Lord Mackay was not a party-political animal; his disposition was that of a judge. Two years into his tenure, Mackay published three Green Papers, suggesting some major changes in the legal system. These 1989 Green Papers generated an extraordinary furore both inside and outside Parliament. Much of the fuss was 18 ibid, 19 ibid.

4.14.

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directed at the one entitled The Work and Organisation of the Legal Profession,20 which, among other things, proposed relaxing the barristers’ long-established monopoly in respect of advocacy in the higher courts, and introducing a new system for licensing advocates. A lay-dominated advisory committee would advise the Lord Chancellor, on the education, qualifications and training of advocates appropriate for each of the various courts. The Lord Chancellor should be required to consult the judiciary before reaching decisions as a result of advice tendered by the Advisory Committee, although the final decision would be for him.21

Many leading members of the Bar, and senior judges, promptly went on record as saying, often in rather colourful language, that this posed a gross threat to judicial independence and the rule of law. In the Lords’ debate on the Green Papers22 the then Lord Chief Justice, Lord Lane, attacked the new advisory committee procedure as a movement towards executive control over the judiciary, adding for good measure that: ‘Oppression does not stand on the doorstep with a toothbrush moustache and a swastika armband ….’23 Lord Donaldson, Master of the Rolls, said that, if necessary, he would tell the government to, ‘Get your tanks off my lawn.’24 Former Lord Chancellor, Lord Hailsham, declared himself ‘shocked’ by the prospective threat posed to judicial independence.25 In the event, the government managed to defuse this over-heated controversy by watering down various aspects of its scheme in response to some of the objections raised. But the episode serves to remind us what a powerful lobby the legal profession can be when faced by what it perceived to be threats to its traditional professional interests. It also reminds us that, until quite recently – in the days before the Constitutional Reform Act 2005 and the establishment of the UK Supreme Court – the profession had a powerful voice within Parliament itself, through the presence of the Law Lords in the Second Chamber, all of whom had been practising barristers before becoming judges.

IV. New Public Management and the Administration of Justice Any discussion of parliamentary accountability for the administration of justice must take due note of the nature of the administrative arrangements for which those responsible are being held to account – and those arrangements have

20 Cm

570, 1989. ch 5. 22 HL Deb 7 April 1989, cols 1307–1480. 23 ibid, col 1331. 24 ibid, col 1369. 25 ibid, col 1333. 21 ibid,

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undergone transformative changes in the last two decades or so. Parliament has had a hand in debating the legislative changes that have underpinned some important aspects of the transformation but – as an ‘arena’ legislature – it has played little part in initiating them. And many changes (for example the creation of executive agencies, discussed below) have been effected by executive fiat. The territory of justice may now be subject to a bit more parliamentary scrutiny than in the past, but Parliament has played only a peripheral part in redrawing the boundaries and setting the parameters of accountability. Margaret Thatcher’s term of office as Prime Minister from 1979 to 1990 marked the beginning of a revolution in the management and delivery of public services as ‘new right’ politicians began to embrace fashionable neo-liberal free market economic theories that condemned the inefficiency of traditional bureaucracies and lauded the virtues of management, markets and competition. Old-style public administration was displaced, at least in part, by a culture that came to be known as ‘new public management’ (NPM) which rejected traditional process-driven and hierarchical bureaucratic methods and structures in favour of market-based and business-like regimes of public service with a much stronger emphasis on targetsetting and performance-measurement. Many state-owned public service providers were privatised, and functions and services were extensively contracted out. One of the most significant NPM reforms of the Thatcher era was the ‘Next Steps’ programme, launched in 1988, which transferred many of the executive functions of central government departments to semi-independent agencies, headed by chief executives employed on short-term contracts. The Prison Service, which became a Home Office agency in 1993 was one early example. It was subsequently combined with the Probation Service to form HM Prison and Probation Service, now part of the Ministry of Justice, which accounts for a very large proportion of the MoJ budget.26 Meanwhile, John Major’s Government continued where its predecessors had left off and the launch of the Citizen’s Charter in 1991 promised to shift the emphasis of service delivery from the interests of the provider to those of the citizen-customer – a move that was particularly pertinent to the provision of legal services, much criticised over the years for a perceived tendency to put the convenience of judges before the interests of litigants. Court charters were introduced during the 1990s, marking a sharp cultural shift and adding a further dimension to public accountability. Taken together, all these reforms – and in particular the Next Steps initiative – had a huge impact on the machinery and the culture of public services in every sector and at every level. Or, at least, almost every sector: the Thatcher Government, like its predecessors, was generally deferential towards judicial independence, and – at least while Lord Hailsham remained on the Woolsack – initially seemed disinclined to expose the judicial process to the full rigour of the public management 26 See National Audit Office (n 10). In recent years the Probation Service – the subject of several select committee enquiries – has undergone a succession of major reforms, most recently in June 2021.

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reforms that were being imposed on every other part of the public sector. In a public lecture delivered in 1987, Lord Justice Nicolas (later Lord) Browne-Wilkinson, addressed some of the implications of public management reform. Starting with a confident assertion that ‘the requirements of judicial independence make the Lord Chancellor’s Department wholly different from any other department of state’, he warned that: It is not for the executive alone to determine what should be the policy objectives of the courts. It is not for the executive alone to determine whether or not a particular judicial procedure provides “value for money”. Justice is not capable of being measured out by an accountant’s computer ….27

However, as noted earlier, by the time Lord Mackay became Lord Chancellor, the winds of change were already beginning to blow. Rather than being treated as ‘wholly different’ from other government departments, the LCD moved increasingly into the mainstream of public administration. In 1992, responsibility for the funding and organisation of the Magistrates’ Courts Service in England and Wales was transferred from the Home Office to the Lord Chancellor’s Department, thus removing a longstanding anomaly in the distribution of ministerial responsibilities for the administration of justice. Partly because of the additional burdens arising from this, a Parliamentary junior minister to the Lord Chancellor was appointed to answer in the House of Commons for the administration of the courts. A second junior LCD minister was appointed in the Commons in 1999 (by which time, the Labour Government of Tony Blair had taken office) and another junior minister was appointed in the Lords in 2000 to take responsibility for commons and leasehold reforms.28 Prior to these appointments, the only available Commons spokesman for the Lord Chancellor had been the Attorney-General – who had no ministerial responsibility for the LCD. The former statutory requirement that the Permanent Secretary of the Department must have substantial legal qualifications and experience had been repealed by the Supreme Court (Offices) Act 1997. In January 2003 the Department appointed its first Director General of Finance to oversee the Department’s multibillion pound annual budget. In 1995, much of the Department’s work and staffing was concentrated in a large (‘next steps’) executive agency – the Courts Service, which in 2005 was converted into a unified Courts Agency, which absorbed the Magistrates’ Courts Service. A major overhaul of the tribunals system, effected by the Tribunals, Courts and Enforcement Act 2007, led to the creation of another large agency, the Tribunals Service, which, in 2011, was amalgamated with the Courts Service to form an integrated Courts and Tribunals Service. The proliferation of executive agencies posed interesting challenges for parliamentary accountability, given that agency chief executives – including the heads of the Courts Service Agency and its 27 N 28 D

Browne-Wilkinson, ‘The Independence of the Judiciary in the 1980s’ [1988] Public Law 44, 50. Woodhouse, The Office of Lord Chancellor (Oxford, Hart Publishing, 2001) 169.

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successors – rather than ministers are responsible for day-to-day operational matters:29 since the early 1990s, replies by chief executives to parliamentary questions referred to them by ministers have been printed in Hansard.30

V. The Constitutional Reform Act 2005 – Redrawing the Boundaries The Blair Government turned its attention to the judiciary (already given new functions by the Human Rights Act 1998), to the appellate functions of the House of Lords and to the antique office of the Lord Chancellor. The Constitutional Reform Act 2005 ((hereafter referred to as the CRA) transferred the Lord Chancellor’s judicial functions as head of the UK judiciary31 to a President of the Courts of England and Wales – the Lord Chief Justice. It paved the way for the establishment of a new Supreme Court to take over the appellate functions of the House of Lords (the Supreme Court began work in October 2009) and set up an independent Judicial Appointments Commission, to limit the extent of the Lord Chancellor’s powers of patronage over judicial appointments. A significant aspect of the prehistory of this legislation, the statutory culmination of the continuing process of redefining the boundaries of judicial accountability as outlined above, was a bitter departmental turf war between the Home Secretary, David Blunkett, and the Lord Chancellor, Lord Irvine, an opponent of the reforms – culminating in a ministerial reshuffle in June 2003, in which Lord Irvine, was sacked and replaced by Lord Falconer.32 More unexpected – not least to the Prime Minister’s Cabinet colleagues and to the judiciary – and much more controversial was the announced intention of abolishing the office of Lord Chancellor altogether – though this intention was later abandoned in the face of a government defeat on the Constitutional Reform Bill in the Lords in Committee of the whole House.33 The office was retained and subsumed in the office of Secretary of State for Constitutional Affairs, the LCD having been rebadged as the Department for Constitutional Affairs in the 2003 reshuffle – a transitional arrangement that prefigured the establishment of the Ministry of Justice, four years later. The Prime Minister also announced the government’s plans to create a new Supreme Court in place of the Appellate Committee of the House of Lords and to reform the judicial appointments process in England and Wales.

29 ibid,

181–3. May 24th edn (London, LexisNexis, 2011) 367. 31 The Lord Chancellor’s entitlement to sit judicially in the Appellate Committee of the House of Lords and the Judicial Committee of the Privy Council, was also removed by the CRA. 32 See A Le Sueur, ‘From Appellate Committee to Supreme Court: A Narrative’, in L Blom-Cooper, B Dickson and G Drewry (eds), The Judicial House of Lords 1876–2009 (Oxford, OUP, 2009) 64, 67–8. See also M White ‘Lord Irvine Memo Blames Blair’, The Guardian (1 November 2009). 33 HL Deb 13 July 2004, col 1194. 30 Erskine

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Although the Prime Minister’s announcement was followed by a public consultation exercise,34 and was the subject of a critical report by the then Constitutional Affairs Select Committee,35 the judges complained in the meantime that they had not been consulted about or even given advance notice of these major changes, and the government eventually agreed what became known as the ‘concordat’36 to meet their objections; a provision, embodying the basic principle of this agreement, was later added to the Constitutional Reform Bill, imposing a statutory duty on ministers to uphold the independence of the judiciary. The initial judicial protests were led by the then Lord Chief Justice, Lord Woolf, acting as spokesman for the judiciary, who was to become the new President of the Courts of England and Wales under the provisions of the CRA. Meanwhile, the Constitutional Reform Bill had its second reading in the House of Lords on 8 March 2004, whereupon it was – very unusually – committed to a special select committee of the House37 and was also subject to a carry-over motion, to enable parliamentary consideration of it to continue in the following session. Although nowadays a lot of government legislation is subject to some degree of pre-legislative consultation, once it reaches Parliament the normal pattern of legislative scrutiny gives little or no opportunity in either House for canvassing the views of outside experts and critics. It is a measure both of the constitutional significance of this Bill and of the widespread unease about the exiguous extent of pre-legislative consultation that prompted the use of a more pro-active and inquisitorial procedure in this case. The Select Committee’s report was published on 2 July 2004.38 The extent of evidence gathering undertaken by the Committee was described by its Chairman, Lord Richard, when the Bill came back to a Committee of the whole House in July 2004: [W]e met in public to take oral evidence from more than 32 witnesses. We received over 80 written submissions. We considered the views of 14 serving judges, seven retired judges, 14 academics, the lawyers’ professional bodies in England, Wales, Scotland and Northern Ireland, as well as campaign groups, individual lawyers and members of the public.39

34 Department for Constitutional Affairs (DCA) Constitutional reform: a Supreme Court for the United Kingdom (2003, Consultation Paper CP 11/03); Department for Constitutional Affairs (DCA), Constitutional Reform: A New Way of Appointing Judges (2003, Consultation Paper CP 10/03). 35 House of Commons Constitutional Affairs Committee, Judicial appointments and a Supreme Court (court of final appeal) (HC 2003–04, 48-I). It recommended that: ‘The consultation process has been too short and the legislative timetable is too restrictive to deal with changes which are so far reaching in their effects. The reason for haste seems to be primarily political. The Committee recommends that the Government proceed with the Bill as draft legislation to enable proper scrutiny of these fundamental changes.’ 36 Announced by the Lord Chancellor in January 2004, see Le Sueur (n 32) 74. 37 The background to the use of this unusual procedure is outlined in the report of the House of Lords Committee on the Constitutional Reform Bill (HL 2004–05, 125-I) 4–9 (see below). 38 Committee on the Constitutional Reform Bill (HL 2004–5, 125-I and II). 39 HL Deb 13 July 2004, cols 1138–9.

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The Committee proposed more than 400 amendments to the Bill, which were later considered on the floor of the House. It was more or less evenly divided on two of the most contentious issues – abolition of the office of Lord Chancellor and establishment of the Supreme Court – but, in the interests of consensus, it avoided putting disputed matters to a vote.40

A. Some Implications for Accountability to Parliament Accounts of the unusual and politically contentious background to the June 2003 announcement and of the events leading up to the enactment of the 2005 Act have been written by others – notably by Andrew Le Sueur,41 who has served as a specialist adviser and legal adviser to several parliamentary committees including the House of Commons Constitutional Affairs Committee, the Lords Constitution Committee and the Lords Select Committee on the Constitutional Reform Bill (see below) – and the following comments will deal only with those aspects that have a particular bearing upon the issue of parliamentary accountability. One such aspect concerns the respective functions of the two Houses relating to the administration of justice. The House of Lords has tended in the past – by virtue of its former appellate functions and the presence in the House of many Law Lords and eminent legal practitioners – to be regarded as a repository of top quality legal expertise. Law reform Bills and measures dealing with matters of particularly complex legal technicality (sometimes characterised as ‘lawyers’ law’ Bills) have tended to begin their parliamentary passage in the Lords rather than in the Commons. And matters to do with reform of the legal system or touching upon the prerogatives of the judiciary are perhaps best considered, in the first instance, by the less party-political of the two Houses. The Constitutional Reform Bill was not particularly technical, but because its subject-matter was of such constitutional importance and bore directly on the appellate functions of the Lords and the role of the Lord Chancellor (who was Speaker of the House) it was deemed appropriate to begin its passage in the Lords rather than the Commons. Even though participation in Lords debates by serving judges had greatly diminished in the years leading up to the passage of the CRA and the setting up of the Supreme Court, there was always a sense that the Lord Chancellor, as both a senior Cabinet minister and de facto head of the judiciary, was publicly engaged in a regular and expert dialogue with the top minds and voices of his profession in a forum that is and was for the most part non-party political. Moreover, the expertise of the judges could usefully be harnessed in appropriately non-partisan

40 A good account of the parliamentary proceedings surrounding the passage of the Constitutional Reform Bill and the amendments proposed and carried can be found in Le Sueur (n 32) 64. 41 A Le Sueur, ‘New Labour’s (Surprisingly) Quick Steps on the Road to Constitutional Reform’ [2003] Public Law 368; Le Sueur (n 32). See also R Stevens, The English Judges: Their Role in the Changing Constitution (Oxford, Hart Publishing, 2005).

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contexts to important aspects of parliamentary business: for instance, it used to be that the Joint Committee on Statutory Instruments was chaired by a Law Lord.42 In a Lords debate in March 2003 on the proposal to establish the Supreme Court, the former Lord of Appeal, Lord Brightman, pointed out that, in the preceding session, 12 places on Lords committees had been occupied by Law Lords.43 The departure of the Law Lords (though there are still a lot of distinguished lawyers among the active membership of the House) and the relocation of the Lord Chancellor from the Lords to the Commons has posed something of a challenge to the former claims of the House to a near monopoly of parliamentary legal expertise and to being at the sharp end of parliamentary accountability for the administration of justice. Giving evidence to the Constitutional Affairs Committee, soon to be re-badged as the Justice Committee, shortly after his appointment as Justice Secretary, Jack Straw said (responding to a question about his role in judicial appointments) that: I am very conscious of the fact that precisely because I am the first Lord Chancellor in the Commons and I am an elected politician, I have to be seen to be preserving the independence of the judiciary and ensuring an arm’s length relationship with them, to a degree that was not necessary with the previous Lord Chancellors because they were in the unelected House and everybody knew what their position was.44

Although, as noted above, the Bill was introduced into the Lords, in the run-up to its introduction, the Commons Constitutional Affairs Committee instituted an enquiry into the proposals, took evidence from the main protagonists (including Lord Bingham, then the Senior Law Lord and Lord Woolf, the Lord Chief Justice of England and Wales) and produced a highly critical report.45 The Committee revisited the subject in the following session and produced a further report,46 by which time the original proposals had been significantly amended – in particular, by the adoption of the concordat – in ways that met many of the Committee’s original concerns. This exercise illustrates an important general point about the function and significance of select committees more generally, that whether or not their recommendations have little direct impact on the government (and often they do not), their evidence sessions, conducted in public and on the record, bring into the public domain a mass of valuable material that would otherwise remain unrevealed. The evidence volumes of the reports just cited are a mine of useful information on this topic, offering a substantial contribution to the information-base of public

42 At

the time of writing, the Chair of the Joint Committee is the Labour MP, Jessica Mordern. Deb 8 September 2003, cols 119–120. 44 Select Committee on Constitutional Affairs, Minutes of Evidence (24 July 2007) Q24 45 Constitutional Affairs Committee, Judicial Appointments and a Supreme Court (Court of Final Appeal), (HC 2003–04, 41-I and II). 46 Constitutional Reform Committee, Constitutional Reform Bill [Lords]: the Government’s Proposals (HC 2004–05, 275-I and II). 43 HL

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debate. The same general comment applies to the reports of the Commons Justice Committee and to other select committees that have conducted enquiries in this subject-area (for more on select committees, see chapters five, six and ten). Extracting and making public high-quality information and expert critical comment goes to the very heart of what accountability – to Parliament, to the wider public and to the extensive array of stakeholders in the justice system – is about. One potentially important reference to parliamentary accountability appears in section 5 of the CRA, which reads as follows: 5 Representations to Parliament This section has no associated Explanatory Notes (1) The chief justice of any part of the United Kingdom47 may lay before Parliament written representations on matters that appear to him to be matters of importance relating to the judiciary, or otherwise to the administration of justice, in that part of the United Kingdom. (2) In relation to Scotland those matters do not include matters within the legislative competence of the Scottish Parliament, unless they are matters to which a Bill for an Act of Parliament relates. (3) In relation to Northern Ireland those matters do not include transferred matters within the legislative competence of the Northern Ireland Assembly, unless they are matters to which a Bill for an Act of Parliament relates. (4) In subsection (3) the reference to transferred matters has the meaning given by section 4(1) of the Northern Ireland Act 1998 (c. 47). (5) In this section “chief justice” means – (a) in relation to England and Wales or Northern Ireland, the Lord Chief Justice of that part of the United Kingdom; (b) in relation to Scotland, the Lord President of the Court of Session.

The implications of this provision were considered by the Lords Constitution Committee, in its 2007 Report on Relations between the Executive, the Judiciary and Parliament.48 The Committee accepted the view given in evidence by the Lord Chief Justice of England and Wales, Lord Phillips of Worth Matravers, (and echoed by The Lord Chancellor, Lord Falconer) that this power was ‘a nuclear option’ to be used only where legislative proposals were so contrary to the rule of law that the judges felt compelled to step in and make plain their objections. Recognising

47 On 17 January 2012, the Lord President of the Court of Session (the Chief Justice in Scotland for the purpose of the Act) used this power to lay before both Houses written representations relating to the Scotland Bill. In the House of Lords, the laying of the written representations was accompanied by a written statement from the Chairman of Committees. (This was restricted to a comment that the statement had been made and that copies of it were available in the Printed Paper Office – see HL Deb 17 Jan 2012, col WS37. 48 Constitution Committee, Relations between the Executive, the Judiciary and Parliament (HL 2006– 07, 151) 113–119.

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that the section 5 power would, in practice, rarely be used,49 the Committee went on to consider ‘whether there need to be other more routine ways in which lesser concerns can be conveyed to Parliament’.50 In his evidence to the Committee, the Lord Chief Justice had asked, might there not be a machinery, if there was a particular topic that I thought it desirable to ventilate, whereby I could let the appropriate [select] committee know that if they were interested in hearing about this I would be happy to discuss it?

The Committee agreed that select committees offer a suitable arena for the Lord Chief Justice, or other senior judges, to air concerns about the administration of justice and the impact of legislation and other policy proposals upon the courts and the judiciary.51

Considering more generally the issue of judicial accountability, the Committee went on to note that, ‘since the Lord Chancellor is no longer head of the judiciary, and therefore cannot answer to Parliament on its behalf, Parliament must hold the judiciary accountable in other ways’.52 It saw the select committees of both Houses as the key to achieving this – and this is something that we will return to in the next section of this chapter.

VI. The Ministry of Justice and Parliament The Department of Constitutional Affairs was in existence for nearly four years, until the establishment of the Ministry of Justice in May 2007. Meanwhile, the Lord Chancellor’s Department had acquired its own ‘departmentally-related’ Commons select committee, which met for the first time on 4 February 2003, under the chairmanship of Alan (later Sir Alan) Beith. It was succeeded by a Constitutional Affairs Committee,53 in January 2003 and then, in 2007, by the Justice Committee (both under the same chairman). For the first few weeks of the Ministry of Justice’s existence the office of Secretary of State and Lord Chancellor was held by Lord Falconer, formerly Secretary for Constitutional Affairs, but in July the position passed to a senior Member of the House of Commons, Jack Straw, formerly Leader of the House. 49 For a Scottish instance of the use of this provision, see n 44 above. The power had previously been used on 31 March 2008 by the Lord Chief Justice for England and Wales to lay a ‘Review of the Administration of Justice in the Courts.’ 50 Constitution Committee, Sixth Report, 120. 51 The appearance of judicial witnesses before parliamentary committees is discussed in G Gee, R Hazell, K Malleson and P O’Brian The Politics of Judicial Independence in the UK’s Changing Constitution (Cambridge, CUP, 2015) ch 5. 52 Constitution Committee, Relations between the Executive, the Judiciary and Parliament (HL 2006–07, 151) 123. 53 For an overview of the work of this Committee see A Horne, ‘Parliamentary Scrutiny: An Assessment of the Work of the Constitutional Affairs Select Committee’ (2006) 3 JUSTICE Journal 62.

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The constitutional significance of this relocation was noted by Mr Straw himself, in the passage quoted above. Historically, Lord Chancellors (as reflecting their role as appellate judges) had always been senior members of the Bar. Straw was a law graduate who had briefly practised as a criminal law barrister before embarking on his political career and his successor, Kenneth Clarke QC, was also a former senior barrister. There followed a period (September 2012 to January 2018) when even this, rather tenuous, professional-legal criterion was abandoned: the next four holders of the office were all non-lawyer Conservative MPs: Chris Grayling, Michael Gove, Elizabeth Truss and David Liddington. But David Gauke, who held office from January 2018 until July 2019, was a qualified solicitor and his successor, Robert Buckland QC, practiced at the Bar. In a cabinet reshuffle in September 2021, Dominic Raab – who had qualified in 2000 and briefly practiced as a solicitor – was moved from his post as Foreign Secretary to that of Lord Chancellor and Minister of Justice. This was seen by many observers (including, in all probability, Raab himself) as a significant demotion, though the bitterness of the pill was somewhat sweetened by the conferring of the additional title of Deputy Prime Minister. The latter title, though in practice largely honorific, might be seen as adding a bit of extra weight to the Lord Chancellor’s place in the scheme of things. But it also reminds us that this incumbent, like many of his predecessors, was first and foremost a party politician, with personal ambitions and political agendas – the latter including, in Raabs’s case a very sceptical view of the Human Rights Act.54 A report in The Times, announcing Raab’s appointment, carried the headline, ‘Political clout v defending justice’ and depicted conferment of this title as a significant step towards abolition of the office of Lord Chancellor: ‘The role is meant to be independent of cabinet government, and combining it with the position of deputy prime minister seems incompatible with that role.’55 With the termination of the appellate jurisdiction of the House of Lords and the introduction of a more independent mechanism for appointing judges, the former justification for appointing Lord Chancellors from the senior ranks of the practising Bar, has disappeared. But the recent experience of appointing frontline politicians with little if any legal background has done a lot to undermine the claims made by many former Lord Chancellors to be champions in Cabinet of judicial independence and the rule of law. One important point to bear in mind when discussing parliamentary accountability in this context is that ‘justice’ does not only mean what happens in and around the courts. Historically, the Lord Chancellor was responsible for a lot of things that had very little to do with judges and courts, such as ecclesiastical patronage.56 54 See

F FitzGibbon, ‘Short Cuts’, London Review of Books (7 October 2021) 12. Raab: will the new Lord Chancellor use his political clout to defend justice?’ (The Times, 23 September 2021). 56 See: RFV Heuston, Lives of the Lord Chancellors 1940–1970 (Oxford, Clarendon Press, 1987) 25. 55 ‘Dominic

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In the aftermath of devolution, the Department of Constitutional Affairs acquired responsibilities for some matters pertaining to Scotland and Wales. The responsibilities of the Ministry of Justice for courts, tribunals, legal aid, etc, sit alongside its responsibility for prisons and the Probation Service – both functions administered by large executive agencies. Broadly defined, ‘justice’ also covers policing and prosecutions – which are the responsibility of the Home Office. The present distribution of functions resembles in many respects the classical Continental European dichotomy between Ministry of Justice and Ministry of the Interior – leaving plenty of scope for earnest debate (perhaps flavoured, as in the past, by lurid Eurosceptical imaginings) about whether this disposition is the optimal one. It also offers scope for occasional cross-border skirmishes between these two big ministries.

A. The Role of Select Committees As noted above, the Lords Select Committee on the Constitution, in its 2007 Report, saw select committees – in particular itself and the then Constitutional Affairs Committee of the House of Commons (soon afterwards to become the Justice Committee) – as key instruments for holding the post-CRA judiciary accountable to Parliament for matters pertaining to the administration of justice, apart from issues to do with the rights and wrongs of decisions in particular cases. We believe that select committees can play a central part in enabling the role and proper concerns of the judiciary to be better understood by the public at large, and in helping the judiciary to remain accountable to the people via their representatives in Parliament. Not only should senior judges be questioned on the administration of the justice system, they might also be encouraged to discuss their views on key legal issues in the cause of transparency and better understanding of such issues amongst both parliamentarians and the public. However, under no circumstances must committees ask judges to comment on the pros and cons of individual judgments.57

In 2012, an interesting memorandum of guidance (reminiscent of the ‘Osmotherly Rules’ for civil service witnesses) was issued by the Office of the Judiciary for England and Wales (headed by the Lord Chief Justice) for judges appearing before or providing written evidence to parliamentary committees.58 This author of this chapter has, from the outset, implicitly adopted a fairly narrow definition of ‘the administration of the justice system’, as having to do with the running of courts and tribunals and the delivery and funding of legal services; but, of course, the classical instruments of parliamentary accountability – questions 57 Constitution

Committee, 2006–07 (n 31) 126. Executive Board, ‘Guidance to Judges on Appearances before Select Committees’ www. judiciary.uk/wp-content/uploads/JCO/Documents/Guidance/select_committee_guidance.pdf accessed 19 January 2022. 58 Judicial

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addressed to MoJ ministers, and enquiries undertaken by the Lords Constitution Committee, and the Commons Justice Committee – cover a lot of other things too. The time and resources available for committee scrutiny of justice-related matters are limited, and they are spread thinly across very wide ministerial portfolios. We should also note the political reality that – as can be seen in the subject-distribution of parliamentary questions addressed to the Ministry of Justice – crime, punishment and prisons tend to engage the interest of parliamentarians appreciably more than the nuts and bolts of the courts system. This also becomes very apparent if we look at the subject-matter of the reports published in two parliamentary sessions, a decade apart and both exceptionally lengthy – 2010–12 and 2019–21 – by the two select committees just mentioned.

B. A Tale of Two Committees In 2010–12, the House of Lords Constitution Committee published 25 Reports of which only three concerned the administration of justice, narrowly defined (ie excluding issues like policing, constitutional change and prevention of terrorism). They were: • • •

9th Report, Meetings with the Lord Chief Justice and the Lord Chancellor;59 21st Report, Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Bill;60 25th Report, Judicial Appointments.61

The latter report was based on a particularly illuminating and wide ranging enquiry into the working of the reformed judicial appointments system established by the CRA – and took evidence from an array of senior judges, including the Lord Chief Justice of England and Wales Lord Judge, the Master of the Rolls Lord Neuberger, the President of the Supreme Court Lord Phillips and Supreme Court Justice Lady Hale as well as from the Justice Secretary Ken Clarke MP and his immediate predecessors as Lord Chancellor. Among its recommendations, it firmly rejected any suggestion that the accountability functions of parliamentary committees might be extended to include pre- and post-appointment hearing of judges – seen as a step too far into the territory that is ring-fenced to protect judicial independence from any risk of political interference. In 2019–21, the Committee’s work was predictably, ‘dominated by Brexit and COVID-19’.62 In the latter context, the Committee’s substantial report on COVID19 and the Courts,63 which examined the growing challenges faced by a justice

59 HL

2010–12, 89. 2010–12, 222. 61 ibid. 62 Constitution Committee, Sessional Report 2019–21 (HL 2021–22, 11) 3. 63 Constitution Committee (HL 2019–21, 257). 60 HL

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system that had already been faced with reductions in funding and by failures adequately to modernise court technology, deserves special mention here. During the session, ‘as part of our regular programme of scrutiny’, the Committee took oral evidence on two occasions from the President and Deputy President of the UK Supreme Court and on another occasion from the Lord Chief Justice of England and Wales.64 As one might have predicted, given the departmental specificity of its remit, a much higher proportion of the 12 reports (excluding special reports) published by the Justice Committee in the 2010–12 session dealt with administration of justice issues, as defined above. They included the following: • • • • •

1st Report, Revised Sentencing Guidelines: Assault.65 2nd Report, Appointment of the Chair of the Judicial Appointments Commission.66 3rd Report, Government’s Proposed Reform of Legal Aid.67 6th Report, Operation of the Family Courts.68 10th Report, The proposed abolition of the Youth Justice Service.69

The Committee also held evidence sessions on various subjects including the following: • •

The work of the Legal Services Commission.70 The work of the Ministry of Justice and its Resources.71

As with the Constitution Committee, the COVID-19 crisis featured prominently in the Justice Committee’s 2019–21 programme (Brexit much less so, at least directly). The committee conducted a series of big inquiries into the impact of the pandemic on prisons, probation and court systems. Its report on the court system resonates strongly with the corresponding inquiry by the Lords Constitution Committee and, read in conjunction with one another, they constitute an invaluable archive of material for the study of this critical juncture in the current and prospective operation of the justice system.72 The input of oral evidence included a session with the Lord Chief Justice.73 Separate reports dealt with the impact of COVID-19 on prisons,74 on the probation services,75 and on the legal professions 64 Lord Reed of Allermuir (President) and Lord Hodge (Deputy President), 4 March 2020, QQ 1–12 and 17 March 2021, QQ 1–11; Lord Burnett of Maldon (Lord Chief Justice), 13 May 2020, QQ 1–17. 65 Justice Committee (HC 2010–12, 637). 66 Justice Committee (HC 2010–12, 770). 67 Justice Committee (HC 2010–12, 681) (three volumes). 68 Justice Committee (HC 2010–12, 518) (two volumes). 69 Justice Committee (HC 2010–12, 1547) (two volumes). 70 Justice Committee (HC 2010–12, 649-i). 71 Justice Committee (HC 2010–12, 378-ii). 72 Justice Committee, Coronavirus (COVID-19): The Impact on the Courts (HC 2019–21, 519). The report includes a useful timeline of developments, 6–7. 73 Lord Burnett of Maldon, 22 May 2020, QQ 137–175. 74 Justice Committee, Coronavirus (COVID-19): The Impact on Prisons (HC 2019–20, 299). 75 Justice Committee, Coronavirus (COVID-19): The Impact on Probation Systems (HC 2019–21, 461).

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in England and Wales.76 A further inquiry was subsequently undertaken into the probation service, focusing on recently announced major reforms to the system.77 Aside from COVID-19, the Justice Committee also found time to look at, among other things, the safeguards that might be necessary to prevent abuses in the mounting of private prosecutions78 and it responded to several Sentencing Council consultations about sentencing guidelines. An interesting, quite recent development, in select committee work, is the holding of pre-appointment hearings for certain public offices. Currently, seven ministerial appointments are subject to hearings (though not to veto) by the Justice Committee, and four such hearings took place during the 2019–21 Session. They were: • • • •

Chair of the Office for Legal Complaints.79 HM Chief Inspector of Prisons.80 Chief Inspector of the Crown Prosecution Service (appointed by the Attorney General).81 Chair of the Independent Monitoring Authority.82

All four appointments were endorsed by the Committee. However, in the case of the Chair of the Independent Monitoring Authority – a new body, set up to monitor citizens’ post-Brexit rights under the EU-UK withdrawal agreement – the Committee took the opportunity to call for ministerial clarification of aspects of the IMA’s role. The committee reports listed above merely constitute a thumbnail snapshot of a much bigger picture. A different working definition of our subject-matter and/or a choice of other parliamentary sessions would probably yield different pictures of the spread of such accountability; but the ‘dilution’ point is an important one, and it applies in other subject areas too, given that select committees, however industrious and conscientious they may be, cannot – simply because of lack of time and manpower – match the span of responsibilities of a major Department of State. The deeply engrained territoriality of Whitehall departments (the term ‘silo mentality’ is sometimes used, pejoratively, in this context) finds echoes in the select committee system. But committee scrutiny of the administration of justice is not confined to the two committees considered above. Other parliamentary committees have also looked from time to time at aspects of the administration of justice. To take just one of many examples: the Public Accounts Committee has

76 Justice

Committee, The Impact on the Legal Professions in England and Wales (HC 2019–21, 520). Committee, The Future of the Probation Service (HC 2019–21, 285). 78 Justice Committee, Rainsbrook Secure Training Centre (HC 2019–21, 1266). 79 Justice Committee, Appointment of Chair of the Office for Legal Complaints (HC 2019–21, 224). 80 Justice Committee, Appointment of HM Chief Inspector of Prisons (HC 2019–21, 750). 81 Justice Committee, Appointment of the Chief Inspector of the Crown Prosecution Service (HC 2019–21, 955). 82 Justice Committee, Appointment of the Chair of the Independent Monitoring Authority (HC 2019–21, 954). 77 Justice

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reported on the procurement of legal aid by the Legal Services Commission83 and on the youth justice system84 – both subjects, as noted above, having also been considered by the Justice Committee. We have already noted that the 2007 report of the Lords Constitution Committee favoured the use of select committees as a conduit of communication between the judges and Parliament – and judges have indeed appeared quite frequently as witnesses before committees in recent years, though some of them have expressed misgivings about the practice.85 The Lord Chief Justice, as Head of the Judiciary in England and Wales appears regularly before the Constitution Committee, and oral and written judicial evidence is frequently presented to the Justice Committee. A lot of other committees have also taken judicial evidence from time to time.

VII. Conclusion This account began with the metaphor of constitutional territory. Until the 1980s the judges, fiercely protective of their independence, were accountable to no-one but themselves. As head of the judiciary, the Lord Chancellor exercised some supervisory and disciplinary functions, but did so completely behind closed doors; in practice, he saw his (they had always been male) main function as shielding the judges from parliamentary scrutiny and sometimes from attacks by other ministers rather than as being an accountable minister himself. Parliament was, by and large, complicit in this arrangement. Judges got on with their task of judging; parliamentarians looked nervously at a frontier guard-house marked ‘judicial independence’, occupied by the formidable figure of the Lord Chancellor, and kept their distance. The picture began to change from the 1980s onwards as, gradually, the Lord Chancellor’s Department – caught up in the rising tide of public management reform and constitutional modernization – began to look more and more like an ordinary department of state, providing an important and expensive public service. The Constitutional Reform Act 2005 – incorporating the concordat on judicial independence, refashioning the historic role of the Lord Chancellor, transferring the appellate functions of the Lords to the new Supreme Court and putting the chief justices of England and Wales, Scotland and Northern Ireland in overall charge of the judiciary – was a pathbreaking measure but, in truth, it was really no more than the statutory culmination of a whole raft of cumulatively radical reforms that had been unfolding over the previous two decades or more. The exorcising, two years 83 Justice Committee, The Procurement of Legal Aid in England and Wales by the Legal Services Commission (HC 2009–10, 322). 84 Justice Committee, The Youth Justice System in England and Wales: Reducing Offending by Young People (HC 2010–11, 721). 85 See for instance Lord Phillips of Worth Matravers, Judicial Independence, Commonwealth Law Conference 2007, Kenya, 12 September 2007; Sir Jack Beatson, Judicial Independence and Accountability: Pressures and Opportunities, Nottingham Trent University, 16 April 2008.

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later, of the old taboo about creating a Ministry of Justice, headed by a Secretary of State in the House of Commons, was an almost inevitable sequel – one with major, obvious and generally positive implications for parliamentary accountability. So, a major part of the story told in this chapter has been to do with the accountability consequences of normalising the administration of justice, and bringing it administratively into line with other important public services, and of harnessing parliamentary procedures to accommodate the new arrangements. But it also needs to be recognised that the moves to make those responsible for running and delivering the administration of justice – the Justice Secretary and the judges themselves – more accountable to Parliament is not just about management reform and modernisation, it also has to do with the increasing political salience of the judicial role through the growth of judicial review86 and, in particular, by the enactment of the Human Rights Act 1998. Some judicial decisions in these areas have had significant political consequences and triggered strong reactions – particularly from ministers and, even more particularly, from Home Secretaries. The media began to sit up and take notice (often in response to Home Office complaints about adverse judicial rulings, particularly on immigration and asylum issues – as continues to be the case today). It is not without significance that the ousting of Lord Irvine as Lord Chancellor in 2003 – the beginning of the saga leading up to the enactment of the CRA and the establishment of the Ministry of Justice – is rumoured to have been triggered by complaints from the then Home Secretary David Blunkett, one of the most vociferous ministerial critics of what he and some of his colleagues saw as unwarranted judicial interference with the legitimate prerogatives of the elected government.87 More recently, the saga of Brexit, the two Miller cases and the arrival of the Johnson Government, which seems keen to clip the wings of the courts by limiting the scope of judicial review and changing or replacing the Human Rights Act, has seen an amplification of such ministerial protests. Examples have included regular complaints by the Home Office about judicial rulings that have impeded attempts to deport convicted criminals and unsuccessful applicants for political asylum. Once judicial decisions started attracting significant political and media attention the pressure began to grow for enhanced opportunities for parliamentary scrutiny. As things now stand, that scrutiny does not extend to allowing direct parliamentary criticism of the merits of judicial decisions but, short of that, the replacement of the old, closely guarded frontier by something much more permeable and transparent has changed the whole constitutional landscape. Moreover, since the enactment of the Constitutional Reform Act 2005, the judges (headed in England and Wales by the Lord Chief Justice) have far more of a ‘management role’ that needs scrutinising independently from the administrative functions exercised 86 See V Bondy and M Sunkin, The Dynamics of Judicial Review Litigation (Public Law Project, 2009) 2–3. Detailed statistics relating to judicial review can be found in the annual volumes of Judicial Statistics, published on the website of the Ministry of Justice. 87 See S Pollard, David Blunkett (London, Hodder and Stoughton, 2005) 268–71; Le Sueur (n 32) 70–71.

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by the Ministry of Justice. One wonders what old-style Lord Chancellors such as Lord Birkenhead and Lord Hailsham would have made of all this. It remains for us to make some kind of qualitative assessment of the transformation, but here we must be cautious. There can be little doubt that transparency has been improved; the Constitution Committee and the Justice Committee, in particular, have done invaluable work, not least by bringing a lot of high quality information and expert opinion into the public domain, to the benefit of informed debate on a lot of subjects that have, in the past, been shrouded in darkness. This has been very apparent in recent debates on justice-related legislation. One notable example was the cutting of legal aid funding, and the contentious parliamentary passage of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which was preceded by intensive committee scrutiny.88 The debates on the Constitutional Reform Bill, drawing heavily on the work of committees in both Houses, perhaps showed Parliament at its best – reminding us that even an ‘arena’ legislature can, when it puts its mind to it, play a crucial part in the fashioning of important public policies. The work of these committees and the routine array of questions to Justice ministers makes one realise how deficient the old system was and how groundless were the claims that judicial independence would be an inevitable casualty of such scrutiny. But we do have to remember that, notwithstanding welcome procedural reforms in recent years (in particular, the establishment of the departmentally related Commons select committees in the early 1980s – on this see also chapters  six, ten and eleven)89 Parliament is still, essentially an arena legislature, dominated (with occasional interesting exceptions) by the Executive. The advent, in 2019, of a government with a large overall majority, showing little enthusiasm for accountability – either to Parliament or to the courts – has accentuated this characteristic. Most decisions happen inside government departments and Parliament is often given little chance to influence them while they are still at a malleable stage. Criticisms of Parliament’s weaknesses – the ritualistic nature of question time, the imbalance of resources between departments and Parliament, the uphill struggle faced by committees to get their recommendations taken seriously by government (see also chapters five and six)90 – have been a frequent lament of commentators. Yes, accountability for the administration of justice has significantly improved in the past few decades – but from a very low baseline and only to the extent of being brought up to the same unsatisfactory level as applies more generally to other areas of government.

88 House of Lords Select Committee on the Constitution, Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Bill (HL 2010–12, 222); Joint Committee on Human Rights, Legislative Scrutiny: Legal Aid, Sentencing and Punishment of Offenders Bill (HL 2010–2012, 237; HC 2010–12, 1717). See also, Justice Committee, Government’s Proposed Reform of Legal Aid (HC 2010–11, 681). 89 See G Drewry (ed), The New Select Committees 2nd edn (Oxford, Clarendon Press, 1989). 90 Some interesting proposals for improving the effectiveness of select committees can be found in the report of the House of Commons Reform Committee (the Wright Committee), Rebuilding the House (HC 2008–09, 1117); see comment by A Horne ‘The Limits of Parliamentary Scrutiny’ Prospect Magazine, (17 July 2021) www.prospectmagazine.co.uk/politics/the-limits-of-parliamentary-scrutinygovernment-committees-reports-opposition (accessed 19 January 2022).

14 The Forward March of Devolution Halted? PATRICK THOMAS, GRAEME COWIE, AND PHIL LARKIN

I. Introduction The devolution arrangements have now been in place for more than 20 years in Scotland, Wales, and Northern Ireland. The intervening period has seen those arrangements evolve and develop. They are now seen as a permanent and fundamental part of the UK’s constitutional architecture. However, despite those three settlements overlapping and aligning with one another, devolution in the UK is still characterised by its asymmetry. There is also a very real sense that the intergovernmental machinery of devolution remains underdeveloped and, in places, dysfunctional. Intergovernmental and interparliamentary dialogue remains as challenging, if not more so, than it was in the era of Labour-led governments across Westminster, Holyrood and Cardiff Bay. The twin crises of Brexit and the COVID-19 pandemic have thrown into sharp relief some of the unresolved questions about how devolution should operate. They have highlighted both the absence of distinctively English institutions and voices in that settlement, and the importance of how England is governed to making devolution work. The Brexit crisis, additionally, has revitalised questions about the continued participation of the UK’s ‘Celtic fringe’ in the Union itself: especially in Scotland and Northern Ireland. These are existential questions that devolution has not cast aside.

A. Historical Context for UK Devolution The UK has developed over several centuries, encompassing a range of different governance structures. England’s Union with Wales, given effect by the Law in Wales Acts 1535 and 1542 created a unitary state. The union of the Crowns in 1603 placed England and Scotland under that same monarch, but each had their own Parliament. Those parliaments’ respective Acts of Union created, in

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1707, a new Parliament of Great Britain: the parliaments of England and Scotland ceased to exist. Even following the establishment of Great Britain, England and Wales, and Scotland retained some separate institutions such as the education and legal systems. Ireland, while under the authority of the English and then British monarch, had its own Parliament until the Act of Union 1801, which created the United Kingdom of Great Britain and Ireland. Following the union, while ultimate authority rested in Westminster, there was a form of executive devolution in Ireland. The movement for Irish home rule (essentially devolution) grew during the nineteenth century, but the legislation from Westminster was overtaken by the move for independence, resulting in the partition of Ireland into the Irish Free State (latterly the Republic) and Northern Ireland, which remained part of the UK but with its own Parliament and civil service. During this period, it was understood that a convention existed that the UK Parliament would not legislate within Northern Ireland’s ‘transferred’ power except by invitation. The Northern Ireland Parliament remained in existence until 1973 when it was abolished, a border poll held which endorsed remaining in the UK, and a new Northern Ireland assembly created. However, after only five months of power sharing the government collapsed and in 1974 direct rule from Westminster was imposed. In this same period, the Royal Commission on the Constitution (the Kilbrandon Commission) was considering the constitutional structures of the UK, eventually recommending that directly elected, devolved assemblies be established in Scotland and Wales but not England.1 The report concluded that the size of England meant a federation of four units would be so unbalanced as to be unworkable. The proposals were initially rejected but ultimately led to referendums to established assemblies being held in 1978. Neither referendum passed the necessary threshold, and devolution fell off the agenda until 1997. It was also during this period that the UK joined the European Economic Community (later the European Union) in 1973 creating the context in which the current devolution Acts and arrangements were devised and developed.

B. The UK’s Current Devolution Arrangements The Westminster Parliament has devolved (delegated) the legislative and consequential executive functions in all areas except for those reserved in the respective devolution Acts, though no such devolution has occurred in England. In devolving, the Westminster Parliament did not relinquish the authority and power to legislate in these areas, but instead imposed a self-denying restraint upon itself and future parliaments. The Westminster Parliament remains the superior and supreme Parliament and, as such, technically at least retains the final authority

1 Royal

Commission on the Constitution, Report Volume I (Cmnd 5460, 1973–4).

The Forward March of Devolution Halted? 351 and responsibility on all issues. However, the actual legislation and governance in devolved areas of competence is carried out by the ‘inferior’ devolved parliaments in Wales and Scotland and assembly in Northern Ireland. As such, it should be understood that there is a hierarchy, at least in theory, between legislatures. There is however no hierarchy between governments. Each government/executive is drawn from and accountable to their legislature and so is competent for those areas in which the legislatures can act. However, unlike the UK Parliament, the UK Government is limited in its competence, as devolved executive competencies were transferred rather than devolved to devolved ministers or departments under the devolution Acts.2 As such, the four governments should be understood as equals within their areas of competence. The expectation that devolved legislatures will legislate within their areas of competence and that the UK Parliament will refrain from legislating in these areas is set out in what is known as the Sewel convention. To recognise this convention, the Scottish and Welsh devolution acts have been amended to state that ‘the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the [respective devolved legislature]’.3 Elections to the Scottish Parliament, Welsh Parliament or Senedd, Northern Ireland Assembly and UK Parliament are carried out with the expectation that decisions in areas of devolved competence will be taken at the devolved level. This gives the devolved institutions a democratic mandate separate from that of the UK Parliament. It also creates the situation at UK parliamentary elections where people in England vote for their MP on a much wider range of issues compared with people in devolved areas, as major areas such as health and social care, education, transport etc are dealt with at the devolved level. Added to this, the establishment of directly elected Mayors for London and an increasing number of Combined Authorities has added further potentially competing democratic mandates. This poses questions for the UK political system of how, and even if, potentially competing democratic mandates can be reconciled. One mechanism for reconciling differences and managing disputes is through inter-governmental relations (IGR) and inter-parliamentary relations (IPR). However, in the UK the IGR mechanisms have been widely criticised and characterised as an ‘afterthought’.4 Similarly, IPR has had only an informal existence and has operated on an ad hoc basis, usually between committees or officials.5 In the absence of clear IGR mechanisms, disputes between governments can, in a bare technical sense, always be resolved through the UK Parliament legislating in a particular way, or if the dispute is over existing law, references can be made to the courts.

2 Scotland

Act 1998, s 53; Government of Wales Act 2006, s 58A; Northern Ireland Act 1998, s 23. Act 1998, s 28(8), Government of Wales Act 2006, s 107(6). 4 N McEwan, M Kenny, J Sheldon and CB Swan, ‘Intergovernmental Relations in the UK: Time for a Radical Overhaul?’ (2020) 91(3) Political Quarterly 632. 5 A Evans, ‘Inter-parliamentary Relations in the United Kingdom: Devolution’s Undiscovered Country?’ (2019) 39(1) Parliaments, Estates and Representation 98. 3 Scotland

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The first of these, if done regularly, undermines the whole architecture of devolution. The second undermines the culture and practice of political compromise and, if used regularly, would shift the nature of the British Constitution from a political towards a more legalistic positive law position. It is not surprising then that the politically contentious process of Britain leaving the European Union has led to both the UK Parliament legislating in disputed areas and to references to the courts being made with regards to legislation passed by devolved legislatures. Perhaps more surprising is that, given several years of increasingly tense relations between the UK and devolved governments, the UK’s response to the COVID-19 pandemic has been characterised by relatively good cooperation between the UK Government and devolved administrations, but by disputes within England particularly between the UK Government and Combined Authority Mayors. These themes and events will be explored though separate consideration of devolution arrangements in Northern Ireland, Scotland, Wales, England as well as the state of inter-governmental relations.

II. Scotland While the core constitutional arrangements have not changed in Scotland since the establishment of the devolved institutions, over 20 years of operational existence has led to their development and, until the UK’s exit from the EU, a one-way flow of powers and responsibilities to the devolved institutions. The first eight years of Labour and Liberal Democrat Coalition Government are best viewed as stable establishing years. These laid the foundation for the expansion of powers that came following the election of the Scottish National Party (SNP) to power in 2007. Following the recommendations of the Commission on Scottish Devolution (the Calman Commission),6 the Scotland Act 2012 was passed, implementing many of the recommendations including income tax powers, new powers over electoral administration and formally changing the name of the Scottish Executive to the Scottish Government. In 2011 the SNP won an overall majority of seats and sought to implement their manifesto commitment to hold an independence referendum. However, as the Constitution and in particular ‘the Union of the Kingdoms of Scotland and England’ is reserved under the Scotland Act 1998, it was not clear if the Scottish Parliament had the legal power to hold even a consultative referendum on the issue. Following negotiations with the UK Government, the Edinburgh Agreement set out the principles for an independence referendum and a Section 30 Order was issued allowing the Scottish Parliament to pass legislation to hold the referendum.7 Scotland voted ‘No’ to independence, but as part 6 Commission on Scottish Devolution, The Future of Scottish Devolution Within the Union: A First Report (December 2008); Commission on Scottish Devolution, Serving Scotland Better: Scotland and the United Kingdom in the 21st Century: Final Report (June 2009). 7 Section 30 of the Scotland Act allows for an order in council to make modifications to the list of reserved matters. This is what happened for the referendum in 2014 when an Order in Council

The Forward March of Devolution Halted? 353 of the No campaign a cross-party commitment to further devolution was made.8 The Smith Commission was established to consider what further powers could be devolved, leading to the Scotland Act 2016.

A. Implementation of the Scotland Act 2016 The Scotland Act 2016 represented a significant expansion of the powers of the Scottish Parliament and government. •

•

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It conferred new tax powers on the Scottish Parliament, including greater flexibility over setting the rates and thresholds of income tax. In the tax year 2017–18, the rates and thresholds of income tax in Scotland were different from the rest of the UK for the first time: with five rates instead of three.9 Given the historical significance of the UK Parliament’s constitutional role in allowing income taxes to be levied, this devolution milestone is constitutionally symbolic, not just administratively noteworthy. It also gave the Scottish Parliament a range of complex social security powers. Some benefits, such as Personal Independence Payment (PIP) and maternity and carer benefits have been devolved and developed. The Act also enables the Scottish Government to ‘top-up’ the payments made to Scotland’s recipients of reserved benefits (such as Universal Credit) from its own budget, and to create new benefits in devolved areas.10 In 2018, the Scottish Government created a new executive agency, Social Security Scotland, to administer devolved benefits.11 One of the new concepts introduced by the 2016 Act was the idea of the ‘protected subject-matter’. Such a matter is within devolved competence but the Scottish Parliament may only legislate about it by way of a two-thirds supermajority. These matters were typically ‘reserved’ before the 2016 Act was passed. At the moment, the only protected subject-matters relate to Holyrood elections. A supermajority is required to change the Holyrood franchise, electoral system or number or territorial distribution of seats. The first Act to be passed having met the supermajority requirement was the Scottish Elections (Franchise and Representation) Act 2020.12

temporally extended the Scottish Parliament’s competency to legislate for the independence referendum. 8 The result of the 2014 referendum on ‘Should Scotland be an independent country?’ was: Yes 44.65%, No 55.25%. 9 As of the 2021–22 tax year, these differences mean those on incomes below £27,400 per annum pay slightly less income tax in Scotland than in the rest of the UK, whereas those on higher incomes pay slightly more. 10 This was used, most notably, to eliminate the spare room subsidy or ‘bedroom tax’. 11 This agency has not yet taken on responsibility for delivery of all devolved benefits. Some continue to be administered under what are known as agency agreements, by the Department for Work and Pensions. Section 93 Scotland Act 1998 allows for agency arrangements, whereby UK Government departments ask Scottish Ministers to administer some of their functions or vice versa. 12 The Act extended the franchise for Scottish Parliament and local government elections. The right to vote in devolved elections now extends to ‘qualifying foreign nationals’ (including refugees and

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The Act also set out the Sewel convention and that the Scottish Parliament and the Scottish Government are a permanent part of the UK’s constitutional arrangements that can only be abolished by a referendum of the Scottish people.13

B. Scottish Devolution and the UK Supreme Court The devolved legislatures, unlike the Westminster Parliament, have explicit statutory limits on their powers to make primary legislation. These limits can be enforced in one of two ways: after an Act has been passed (in the course of ordinary civil or criminal court proceedings) or by way of a law officers’ reference. The Law Officers’ reference enables either the UK Government or the devolved administration essentially to ‘vet’ a Bill in its final form for legislative competence before it can receive royal assent and subsequently come into force. If the UK Supreme Court concludes that all or part of a Bill is outwith devolved competence, it cannot receive royal assent while it contains the offending provisions. This process can be contrasted with the Presiding Officer’s statement on legislative competence, which has no bearing on whether a Bill can progress. There are a handful of examples before 2018 of Holyrood legislation being challenged after being made and even being struck down by the courts, almost always on the grounds of incompatibility with the European Convention of Human Rights or EU law.14 However, and in stark contrast to the devolution settlement in Wales, there had been no examples of the UK Government’s Law Officers referring Bills of the Scottish Parliament to either the Judicial Committee of the Privy Council or to the UK Supreme Court. There has been, as Lord Reed has described it, a ‘reluctance’ to refer matters for clarification before enactment because, regardless of legal merits, it would be a politically sensitive move.15 In practice, the reference procedure has acted as a constitutional marker, ensuring consultation with the UK Government when devolved legislation was being drafted and then progressed through Holyrood. Given the sensitivity, it is all the more notable that, between 2018 and 2021, three Holyrood bills were referred to the UK Supreme Court by the Advocate General for Scotland (the UK Government’s Scottish law officer). The law officers’ reference ‘taboo’ in Scotland has emphatically been broken. This may indicate a new phase others who have, or do not need, leave to remain in the UK). The 2020 Act also allows prisoners serving a sentence of less than a year to vote, in contrast to the more restrictive rules that apply for UK General Elections. This marks an increased divergence in the franchise for devolved elections and referendums as opposed to reserved ones. 13 The Scotland Act 1998, s 63A. 14 Eg, Cameron v Cottam [2012] SLT 173, Salvesen v Riddell [2013] UKSC 32 and Christian Institute v Lord Advocate [2016] UKSC 51; see also C McCorkindale, A McHarg and P Scott, ‘The Courts, Devolution, and Constitutional Review’ (2017) 36(2) University of Queensland Law Journal 289. 15 Lord Reed, ‘Scotland’s Devolved Settlement and the Role of the Courts’ (The Inaugural Dover House Lecture, London, 27 February 2019).

The Forward March of Devolution Halted? 355 of devolution, in which the relationship between the Scottish Parliament and the UK Government is, legally at least, more adversarial. The recent references in 2021 also suggest this is not just a temporary shift that can be attributed to Brexit. The way UK governments manage Scottish devolution increasingly seems to rely on making full use of gatekeeping powers in the Scotland Act and less often on political compromise.

C. The Scottish Continuity Bill Reference 2018 The first Bill reference was for the ‘Scottish Continuity Bill’ in 2018.16 The devolution statutes were produced in the context of EU membership and required compliance with EU law. This meant while whole areas such as agriculture were devolved, divergence was constrained as legislation in these areas was restricted by laws set at the EU level. If nothing else was done, leaving the EU would have meant that the restriction of having to comply with EU law would have been lifted, and the powers held at the EU level to set regulations for areas like agriculture would have flowed back to the devolved legislatures. The UK Government’s initial position in the EU (Withdrawal) Bill was that all of the powers should return first to Westminster. Both the Scottish and Welsh Governments had expressed concerns about how the EU (Withdrawal) Bill would change the devolution statutes and impact law and policymaking in devolved areas. They each sought to introduce their own framework legislation as an alternative to the UK Government’s Bill, so far as EU law engaged devolved matters and could (at that time) be legislated about by Holyrood or the Senedd. Although the UK Government did amend its Bill in the House of Lords, those changes did not go far enough to address the concerns raised by the Scottish Government and Parliament.17 The Scottish Parliament, with support from all parties at the Holyrood, bar the Scottish Conservatives, gave Stage three approval (broadly equivalent to the UK Parliament’s Third Reading) to its Continuity Bill in March 2018. In April, the Advocate General for Scotland formally referred the Bill to the UK Supreme Court, preventing it from receiving royal assent. The reference meant that by the time of the Supreme Court oral hearing (July 2018) the EU (Withdrawal) Bill had been amended to make itself a ‘protected statute’ (ie one the devolved legislatures cannot modify, such as the Human Rights Act 1998) and received royal assent. This was significant as when the UK Supreme Court eventually handed down its judgment (in December 2018) it concluded, apart from one clause, that the Continuity Bill would have been wholly within competence at the point the Bill was referred in April.18 However, by the time of the judgment, most of the distinct provisions of the Continuity Bill 16 UK

Withdrawal from the European Union (Legal Continuity) (Scotland) Bill. Wales, however, legislative consent was subsequently given. See discussion on Wales below. 18 The UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill – A Reference by the Attorney General and the Advocate General for Scotland (Scotland) [2018] UKSC 64. Clause 17 would have enabled Scottish ministers to veto delegated legislation made by UK ministers in devolved areas. 17 In

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were in conflict with the text of the EU (Withdrawal) Act, and therefore ultra vires. The Bill was abandoned and never became law.19

D. The UNCRC and ECLSG References 2021 The other two referred Bills – the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill (‘UNCRC Bill’) and the European Charter of Local Self-Government (Incorporation) (Scotland) Bill (‘ECLSG Bill’) were unrelated to the UK exit from the EU. They concerned the domestic implementation of international obligations already ratified by the UK and were referred by the Advocate General just before the Scottish parliamentary elections in 2021.20 The two Holyrood Bills, in a manner similar to, but not quite the same as, the Human Rights Act, proposed to incorporate those treaties into domestic law in Scotland. Both Bills would have required courts to interpret primary legislation (including UK Acts) compatibly with an international treaty wherever possible. The UNCRC Bill contained provisions which would have allowed ‘strike-down declarators’ while the ECLSG Bill was narrower allowing only for only ‘incompatibility declarators’. The UK Supreme Court was unanimously of the view that these provisions served to ‘make conditional’ the power of the UK Parliament to make laws for Scotland and were therefore unlawful. This conclusion has received considerable criticism for appearing to interpret the Scottish Parliament’s powers in very narrow terms, not necessarily justified by the words of the Scotland Act.21 This judgment places all three devolved legislatures in a weaker position in terms of protecting human rights in devolved areas in the event the UK Parliament decides to dilute or repeal the Human Rights Act. It also potentially discourages legislative consent being granted for UK Bills, even where the substance of a would-be Act of Parliament is itself unobjectionable. If the Sewel convention is honoured in these cases, it could undermine the coherence of UK-wide legislation affecting devolved areas. If UK governments persist with legislation that has been objected to, on the other hand, the convention itself would be further undermined.

E. Sewel under Strain Between 1999 and early 2018, the Scottish Parliament only actively withheld legislative consent for a UK Parliament Bill once, in late 2011. The UK Government The UK Supreme Court concluded this was an impermissible modification of s 28(7) of the Scotland Act 1998 as it affected the power of the UK Parliament to make laws for Scotland. 19 The similarly named UK Withdrawal from the European Union (Continuity) (Scotland) Act 2020 was subsequently passed. It revived certain provisions of the original Bill, including a ‘keeping pace’ power to enable devolved areas to continue to align with EU law after the post-Brexit transition period. 20 Letter from Alister Jack the Secretary of State for Scotland to John Swinney, the Deputy First Minister, 24 March 2021 www.gov.uk/government/publications/alister-jack-letter-to-scottish-government-on-uncrc-bill-24-march-2021 (accessed 31 January 2022). 21 M Elliott and N Kilford, ‘Devolution in the Supreme Court: Legislative Supremacy, Parliament’s ‘Unqualified’ Power and ‘Modifying’ the Scotland Act’ (UK Constitutional Law Association, 15 October 2021)

The Forward March of Devolution Halted? 357 responded to this by removing the objected-to provisions from the Welfare Reform Bill. This enabled the Scottish Government to bring forward its own legislation in the Scottish Parliament (the Welfare Reform (Further Provision) (Scotland) Bill) to fill the legislative gaps in devolved areas.22 It was a clear example of how the legislative consent convention is supposed to work when the UK and a devolved legislature disagree about provisions in devolved areas, with changes being made to Bills before a formal vote on legislative consent can be held. Disagreement over Brexit legislation however led the Scottish Parliament to formally refuse legislation, for the EU (Withdrawal) Bill and then subsequently refuse consent for three further Bills: the (EU (Withdrawal Agreement) Bill, the UK Internal Market Bill, and the EU (Future Relationship) Bill).23 On all four occasions, the UK Parliament passed the legislation notwithstanding this withholding of consent. The UK Government has justified these actions by saying that the context was not a ‘normal’ set of circumstances.24 These instances highlight that the UK Parliament is the ultimate judge of exceptions to the ‘normal’, and serve as a reminder that power devolved is, by design, nevertheless power retained. The autonomy of the devolved legislatures depends not just on constitutional statutes but also on the institutional self-restraint of the UK Parliament and government.

F. A Second Independence Referendum? The continued electoral success of the SNP at both Westminster and Holyrood elections has meant that the prospect of a second Scottish independence referendum remains an issue. The Scotland Act, unlike the Northern Ireland Act, does not set out when a poll on leaving the UK can or should happen. Nor, in the absence of a clear legal provision on independence referendums, is there a political consensus on the right criteria for holding one.25 The Scottish Government ukconstitutionallaw.org/2021/10/15/mark-elliott-and-nicholas-kilford-devolution-in-the-supremecourt-legislative-supremacy-parliaments-unqualified-power-and-modifying-the-scotland-act/ (accessed 18 January 2022); G Cowie, ‘The Power to Make Laws for Scotland: the Treaty Incorporation Bills Reference’, Public Law (forthcoming April 2022). 22 D Torrance and G Cowie, Devolution: The Sewel Convention (House of Commons Library CBP-8883, May 2020). 23 Opposition to the four Bills was expressed not just by the pro-independence SNP and Scottish Greens, but also by a large minority of the pro-Union MSPs at Holyrood. 24 For example, Steve Barclay has described ‘the circumstances of our departure from the European Union are specific, singular and exceptional’. Letter from Steve Barclay, Secretary of State for Exiting the European Union to Mike Russell, Cabinet Secretary for Government Business and Constitutional Relations, 17 January 2020 assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_ data/file/859145/2020-10-20_Letter_to_Michael_Russell_MSP.pd> (accessed 28 January 2022). 25 It does not help, of course, that Scotland is divided in how it expresses its electoral preferences. A majority of votes cast (just over 50.4%) at the 2021 election on the first past the post constituency ballot were for the three largest pro-Union parties. A majority of votes cast on the proportional regional list (50.1%) were for the SNP, Scottish Greens or the Alba Party, all of whom were in favour of a second referendum. Because the electoral system in Scotland is only partly based on proportional representation, and the SNP performed disproportionately strongly in constituency seats, the chamber is represented 55% by pro-independence and 45% by pro-Union MSPs.

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position is that there is a clear Holyrood majority in favour of a referendum, and that the Scottish Parliament does not need a specific grant of authority to hold a referendum (re-opening a legal question left unresolved last time). Others, including the UK Government, have argued that the 2021 (and previous) election results in Scotland do not provide the Scottish Government with a mandate. On the law, the UK Government’s position remains that the holding of a referendum on independence is clearly a reserved matter. Therefore, a poll can only take place with the UK Parliament’s agreement. If, as seems increasingly likely, the Scottish Government seeks to legislate for a referendum without a Section 30 order, it would then be almost inevitable that the matter would come before the courts.26 However, since 2012 commentary on this legal question has settled more firmly against the legality of such a referendum. For example, Professor Stephen Tierney has changed his view that it is an ‘open question’ whether Holyrood could unilaterally hold a referendum, and now maintains that a court would find such legislation to be ultra vires.27 The Scottish courts have previously refused to engage with this as a hypothetical question.28 It is legally open to the UK Parliament to put the illegality of an independence referendum beyond doubt through fresh primary legislation. A precedent for this was set by the UK Internal Market Act, over the disputed question of whether state aid was reserved.29 Whether that course of action is a politically wise one, of course, remains to be seen.

III. Wales When Sir Paul Silk provided his update on Welsh devolution in the second edition of this collection, he observed that the Wales Act 2017 had only recently passed

26 This could take the form of either a reference by the Advocate General for Scotland (the UK Government’s Scottish law officer) or a post-enactment challenge by any party with ‘sufficient interest’ in judicial review proceedings. The former would be heard directly in front of the UK Supreme Court, whereas the latter would begin in the Court of Session in Edinburgh, before almost inevitably being appealed. 27 G Anderson et al, ‘ The Independence Referendum, Legality and the Contested Constitution: Widening the Debate’ (UK Constitutional Law Blog, 31 January 2012) ukconstitutionallaw.org/ 2012/01/31/gavin-anderson-et-al-the-independence-referendum-legality-and the-contested-constitutionwidening-the-debate/ (accessed 28 January 2022); S Tierney, ‘The Scottish Parliamentary Elections and the ‘Second Referendum’ Debate’ (UK Constitutional Law Blog, 10 May 2021) ukconstitutionallaw. org/2021/05/10/stephen-tierney-the-scottish-parliamentary-elections-and-the-second-referendumdebate/ (accessed 31 January 2022); C McCorkindale and A McHarg, ‘Constitutional Pathways to a Second Scottish Independence Referendum’ (UK Constitutional Law Blog, 13 January 2020) ukconstitutionallaw.org/2020/01/13/chris-mccorkindale-and-aileen-mcharg-constitutional-pathways-to-a-second-scottish-independence-referendum/ (accessed 28 January 2022) 28 Keatings v Advocate General for Scotland [2021] CSIH 25. 29 There was disagreement, in the immediate aftermath of the Brexit vote, about whether state aid was a devolved policy area in Scotland, Wales and Northern Ireland. Section 52 of the UK Internal Market Act expressly reserved ‘distortive or harmful subsidies’.

The Forward March of Devolution Halted? 359 and pointed to several similarities between that Act and the Scotland Act 2016.30 He noted, for example, that it also put the ‘permanence’ of the devolved institutions and the legislative consent convention on a statutory footing.31 The 2017 Act has a much wider significance now that its key provisions have come into force. Several of the changes have served to make the Welsh devolution settlement much more like its Scottish counterpart. Wales has seen by far the largest change in powers and responsibilities. When devolution was narrowly backed in 1998, the powers of the National Assembly were relatively limited, having only secondary (delegated) legislative powers. All primary legislation had to be passed by Westminster, subject to time being found for such requests. This was widely criticised. For example, Robert Hazell described the system as giving Wales ‘short shrift’.32 It was not until the Government of Wales Act 2006 that the Assembly assumed primary law-making powers. However, the way the 2006 Act approached devolved competence was to enumerate the subjects on which the Assembly could pass laws: a conferred powers model. This contrasted with the Scotland Act’s approach whereby there was a general grant of plenary power to make laws, constrained by an enumerated list of exclusive matters falling within the UK Parliament’s competence. Although the two approaches are in theory agnostic as to the substance of what is devolved, in practice the ‘conferred powers’ model created many problems and grey areas. It is no coincidence that the first three devolved Bills to be referred to the UK Supreme Court on competence grounds were approved by the Welsh Assembly, nor indeed that the Counsel General for Wales remains the only devolved Law Officer to have referred a Bill on competence grounds.33 In the same period, Wales also saw far more disputes about the applicability of the legislative consent convention to UK parliamentary Bills than either Scotland or Northern Ireland.34 From April 2018, however, the Welsh devolution settlement shifted to a reserved powers model: Westminster’s exclusive powers to make laws for Wales, rather than the Assembly’s devolved powers, are now set out in statute. The intention of this change had been to provide a more stable and enduring constitutional architecture.35 However, it has not been without its problems. In practice, the ‘switch-over’ meant that, in some areas, the Assembly would lose the ability to 30 P Silk, ‘Devolution and the UK Parliament’, in A Horne and G Drewry (eds), Parliament and the Law (Oxford, Hart Publishing, 2018) 188. 31 Wales Act 2017, ss 1, 2. 32 M Shipton, Poor Man’s Parliament: Ten Years of the Welsh Assembly (Bridgend, Seren, 2011). 33 See Reference Re Local Government Byelaws Bill [2012] UKSC 53; Reference Re Agricultural Sector Bill [2014] UKSC 43; Reference Re Recovery of Medical Costs for Asbestos Diseases [2015] UKSC 3. 34 See G Cowie ‘Brexit: Devolution and Legislative Consent’ (House of Commons Library CBP-8274, March 2018) Annex 45; Senedd Research, ‘Legislative Consent in the Sixth Senedd: The Story So Rar (Senedd, 13 December 2021) research.senedd.wales/research-articles/legislative-consent-in-the-sixthsenedd-the-story-so-far/ (accessed 28 January 2022). 35 Silk Commission, Empowerment and Responsibility: Legislative Powers to Strengthen Wales (March 2014) 37.

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legislate. It would no longer be sufficient to say that a Senedd Bill related (among other things) to a devolved subject matter; it would have to be shown that it did not relate to a reserved matter.36 The 2017 Act also gave the National Assembly the power to change its own name, this being one of the ‘protected subject-matters’ requiring two-thirds majority support. The decision was eventually taken to give the legislature a bilingual name, and (in English) to refer to it as a ‘Parliament’ rather than an ‘Assembly’.37 The ‘Welsh Parliament’ or ‘Senedd Cymru’ would, in terms of nomenclature at least, be given parity of esteem with the Scottish Parliament. Plaid Cymru unsuccessfully argued that ‘the Senedd’ should have a monolingual Welsh name.38 The other protected subject-matters in the 2017 Act settlement are also worthy of comment. Like the Scottish Parliament, the Senedd has legislated to lower the voting age in devolved elections from 18 to 16 and to enable ‘qualifying foreign citizens’ to vote.39 However, despite repeated calls to expand the Senedd (to reflect its increased responsibilities), it remains a 60-seat legislature. The Expert Panel on Assembly Electoral Reform recommended that it be expanded to at least 80, and possibly 90 Members in 2017, but this was not implemented before the 2021 election.40 The Co-operation Agreement between Welsh Labour and Plaid Cymru, published in November 2021, indicated the Welsh Government’s intention to legislate on the Senedd’s size and electoral system within the next two to three  years.41 It is expected to draw on the conclusions of a Special Purpose Committee that has been established to revisit this question. The Wales Act 2014 was notable for conferring income tax powers on the (then) Assembly. Unlike the Scottish electorate, the question of whether the Senedd should be a tax-raising legislature has never directly been put to Welsh voters in a referendum.42 The Welsh Rate of Income Tax (WRIT) was modelled very closely on the tax powers conferred by the Scotland Act 2012 when it created the Scottish Rate of Income Tax (SRIT). The Scottish Parliament never used SRIT to diverge from the prevailing UK levels of income taxation. The inability under that system to modify rate thresholds and the requirement to impose a ‘flat’ devolved rate across all levels of income, meant that there was limited room to make the income tax regime more (or indeed less) ‘progressive’.43 Although WRIT came into existence in April 2019, thus far it 36 J

Kellam, The Wales Act: A New Dawn for Welsh Devolution (Institute for Government 2018). 2 of the Senedd and Elections (Wales) Act 2020. 38 D Torrance, ‘Senedd Cymru: Why has the National Assembly for Wales Changed Its Name?’ (House of Commons Library, May 2020). 39 Part 3 of the Senedd and Elections (Wales) Act 2020. 40 Expert Panel on Assembly Electoral Reform, A Parliament that Works for Wales (November 2017). 41 Welsh Government, The Co-operation Agreement 2021 gov.wales/sites/default/files/publications/2021-11/cooperation-agreement-2021.pdf (accessed 31 January 2022). 42 Section 12 of the Wales Act 2014 would have required a referendum, but s 17 of the Wales Act 2017 removed the requirement. 43 The Silk Commission had advised against the ‘lockstep’ being replicated in Wales. See HM Treasury/ Wales Office, Empowerment and Responsibility: Financial Powers to Strengthen Wales (November 2012) 186. 37 Part

The Forward March of Devolution Halted? 361 has not been used to diverge from the overall rates of income tax in England and Northern Ireland.

A. Brexit, Legislative Consent and Wales Much of the story in Wales regarding legislative consent and Brexit is the same as in Scotland.44 The Welsh Government, in its legislative consent memorandums and public statements, shared broadly the same concerns as the Scottish Government about the original EU (Withdrawal) and Trade Bills. Consent was also actively withheld for the EU (Withdrawal Agreement), UK Internal Market and EU (Future Relationship) Bills in the Senedd for similar reasons as those given at Holyrood. The Welsh executive and legislature, like their Scottish counterparts, expressed concerns about the impact Brexit legislation would have on devolved competencies, and the ability of UK ministers (as distinct from the UK Parliament) to determine the content of the law in devolved policy areas. There was, however, one important respect in which the Welsh experience differed, at least during 2018. The Welsh Government reached, before the Continuity Bill court case was heard, the ‘Intergovernmental Agreement on the European Union (Withdrawal) Bill and the Establishment of Common Frameworks’ with the UK Government in late April 2018. As part of that agreement, the Welsh Continuity Bill would have its UK Supreme Court reference withdrawn, on the understanding that the Welsh Government would take prompt steps to repeal the Assembly’s Continuity Act after it had received Royal Assent.45 In return, the UK Government promised to make further amendments to its own Bill, to make further undertakings about how and when its concurrent powers in devolved areas would be used, and to work closely with the devolved authorities to agree ‘common frameworks’ in devolved policy areas previously governed by EU law. On the basis of this agreement, the Welsh Government recommended, and the Senedd granted, legislative consent, whereas their Scottish counterparts did not.

B. Challenging the UK Internal Market Act 2020 The Welsh Government has opposed, in particularly forceful terms, the UK Internal Market Act 2020, an opposition which has been mirrored by the Scottish Government and Northern Ireland Executive. This dispute emphasises the continuing importance of the UK Parliament in defining the powers and constraints of the devolution settlements.

44 Senedd 45 Law

Research (n 34). derived from the European Union (Wales) Act 2018.

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The Welsh Government characterised the new system of ‘market access principles’ as an ‘attack on’ the powers of the devolved institutions. Under the Act, provisions in devolved legislation would be deprived of legal effect insofar as they would impede market access to goods in other parts of the UK. This is a novel limit on what devolved legislation can do, as it disapplies, rather than invalidates, conflicting laws enacted by devolved institutions. This scheme replaces the EU-wide system of mutual recognition and nondiscrimination principles as they related to the single market (of which the UK is no longer a part). The new scheme does have ‘exclusions’ to protect existing areas of policy divergence. The difficulty, however, is that the scheme gives the UK Government (through delegated law-making powers) a great deal of control over the future content and operation of the market access principles. It could therefore prove more difficult than it was under EU rules for devolved authorities to pursue new or expanded policy divergence. The UK Government and Parliament’s exclusive role in making laws for England also has a role. It means the Act is in practice far more of a constraint on policymaking in Scotland, Wales and Northern Ireland than it is in England. In addition to withholding legislative consent for the UK Internal Market Bill (like the Scottish Parliament and Northern Ireland Assembly), the Welsh Government initiated a legal challenge against the Act. It asked the High Court, in judicial review proceedings, to clarify the extent to which the Internal Market Act could ‘impliedly repeal’ plenary powers in the devolution statutes. It also asked that a UK minister’s power, via regulations, to modify the market access principles should be ‘read down’. It should not, the Welsh Government says, be construed as allowing UK ministers to impose additional constraints on devolved law-making. The Divisional Court, in April 2021, refused to rule on the merits of the claim, characterising it as premature and hypothetical.46 The UK Government had not made any relevant regulations imposing new constraints and the Senedd had not passed any laws giving rise to market access principles-based challenges. However, permission was given to appeal in June and at the time of writing the case is ongoing.

IV. Northern Ireland Devolution in Northern Ireland was part of a package of measures giving effect to the Good Friday/Belfast Agreement that brought an end to The Troubles. Like its Scottish counterpart, the Northern Irish Assembly (NIA) had primary legislative authority.47 But the principle of power sharing that underpinned the political 46 R (Counsel General for Wales) v Secretary of State for Business Energy and Industrial Strategy [2021] EWHC 950 (Admin). 47 In keeping with the uneven pattern of devolution, Northern Ireland’s devolved competencies differed from Scotland’s. Notably, it also had responsibility for social security.

The Forward March of Devolution Halted? 363 settlement meant a multi-party executive with parties’ representation allocated according to the D’Hondt system. D’Hondt was also used to determine seats in the Assembly. Though its politics have been at times particularly fractious, these key components have remained intact. Changes have been made, notably following the St Andrews Agreement of 2006 which, amongst other things, saw changes to the way the Executive was appointed and operated. Perhaps unsurprisingly, given its difficult birth and the continued need to maintain a delicate balance in arrangements, it has undergone the least institutional change of the three national devolved legislatures. When the previous edition of this volume was published, the Northern Ireland Executive (NIE) had recently collapsed. This was hardly unprecedented and had happened several times previously, including for a prolonged period between October 2002 and May 2007.48 This period of stasis continued for almost all of the period covered by this volume. It meant that, for instance, there was no Executive throughout most of the preparations for Brexit. In that respect, the Northern Ireland Protocol continues to loom large over Northern Irish politics, with the largest party in the Assembly, the Democratic Unionist Party (DUP), remaining opposed to it and hinting that it would be willing to bring down the Executive over it. The Protocol is, though, a product of the Westminster Government’s negotiations with the EU, with the NIE having only a limited role in its deployment (see chapter ten).49

A. Governing without an Executive In Westminster, the incumbent government continues until its successor can be formed.50 However, the peculiarities of the government formation process in Northern Ireland and the way in which ‘consociational’, cross-community representation is hardwired into it combined with political factors to create the circumstances for a prolonged period without an executive in Northern Ireland. A three-year period without an executive would test most constitutional settlements. Parties in the NIA designated themselves as ‘Unionist’, ‘Nationalist’ or ‘Other’. Though initially elected on a joint ticket, following the St Andrews Agreement of 2006 this was changed so that the First Minister (FM) and Deputy First Minister (DFM) are nominated by the largest party of the largest and second largest designations respectively. Though nominated by competing sides, the two are bound 48 Three other suspensions were only brief. See D Torrance, Devolution in Northern Ireland 1998–2020 (House of Commons Library CBP8439, 4 February 2020). 49 Between the General Elections of 2017 and 2019, the Conservative Government was reliant on the DUP for its majority in the House of Commons. One may speculate as to the effect of this though it is worth noting that it did not support the Brexit withdrawal agreements negotiated by either Prime Minister May or Prime Minister Johnson. 50 Cabinet Office, The Cabinet Manual, 14 December 2010, 2.7–10.

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together: should one resign, the other also ceases to hold office.51 In January 2017, Sinn Fein DFM Martin McGuiness resigned. It was the culmination of an increasingly fractious relationship between the DUP and Sinn Fein (SF) which had comprised the NIE: McGuiness’ resignation letter highlighted his dissatisfaction with the role that Foster had played in the much-criticised Renewable Heat Incentive scheme but also listed a litany of other complaints ranging from Brexit to austerity to the DUP’s attitude to women, ethnic minorities and the LGBT community.52 A dispute over Irish language continued to fester.53 With SF refusing to nominate a successor, DUP First Minister Arlene Foster also ceased to hold office. With the failure to appoint a FM and DFM within the seven-day period then required by the Northern Ireland Act 1998, then Secretary of State for Northern Ireland James Brokenshire dissolved the Assembly ahead of an extraordinary election in March 2017.54 A reduction in the number of Assembly seats from 108 to 90 did not resolve the impasse, with the DUP and SF returned as the two largest parties and no agreement on establishing an NIE. In the absence of an Executive, the Government in Westminster proved reluctant to intervene directly in Northern Ireland’s governance. Where the UK Government did intervene, that intervention was largely focussed on allowing a degree of government to continue by the bureaucracy and space for the impasse in executive formation to be broken. As statutory deadlines by which an Executive was required to be established were missed, they were extended, for example, and provision for public services to be funded was made.55 More substantive intervention was slower to emerge. Northern Ireland existed in a form of ‘political limbo somewhere between self-government and Direct Rule’.56 Though not sitting, the Northern Ireland Assembly was not formally suspended, as it had been during previous breakdowns in power sharing, and MLAs continued with their constituency work. Reflecting the lack of legislative work, and no doubt to focus minds on the restoration of the Executive, the then Secretary of State for Northern Ireland announced reductions in MLA salaries.57 In the absence of a functioning legislature, the Northern Ireland Affairs Select Committee in the House of Commons took on the role of scrutinising the activity of the Northern Irish departments. The most substantial interventions from Westminster into previously devolved

51 Northern

Ireland (St Andrews Agreement) Act 2006, s 8. text of Martin McGuinness’s resignation letter’ Irish Times (9 January 2017) www.irishtimes.com/news/politics/full-text-of-martin-mcguinness-s-resignation-letter-1.2930429 (accessed 28 January 2022). 53 ‘Irish gaeltacht scheme for young “cut by £50,000”’ BBC News (23 December 2016) www.bbc. co.uk/news/uk-northern-ireland-38422550 (accessed 28 January 2022). 54 Northern Ireland (Ministerial Appointments and Regional Rates) Act 2017, Explanatory Notes, S4. 55 ‘Irish gaeltacht scheme’ (n 53). 56 D Heenan and D Birrell, ‘Exploring Responses to the Collapse of Devolution in Northern Ireland 2017–2020 through the Lens of Multi-Level Governance’ (forthcoming) Parliamentary Affairs. 57 Northern Ireland Office ‘Secretary of State confirms MLA pay reduced by 1 November 2018’, 28 September 2018, www.gov.uk/government/news/secretary-of-state-confirms-mla-pay-reduced-by1-november-2018 (accessed 28 January 2022). 52 ‘Full

The Forward March of Devolution Halted? 365 matters came not from the government but from backbench amendments (discussed below). The Westminster Government used the stasis (and no doubt the salary reduction for MLAs) to keep pressure on the Northern Ireland parties to re-establish power sharing administration. As a tactic, it ultimately proved successful, with an Executive eventually re-established. However, it took three years to achieve that outcome. Without an Executive, further expenditure could not be authorised by the Assembly. As a consequence, the UK Government passed Bills to ensure the funding of public services in Northern Ireland and enabling the collection of rates.58 Whilst the Departments (Northern Ireland) Order 1999 states that departments should be subject to ‘direction and control of the Minister’, the Northern Ireland Act allows functions to be conferred on a minister or a department.59 In the absence of a minister, the Northern Ireland Civil Service (NICS) interpreted this as the authorisation to take decisions. This, along with the Programme for Government that the NI Executive had produced before its collapse appeared to allow some form of government to continue in the absence of ministers or extensive intervention from Westminster. But, as the Programme was exhausted and the new issues emerged and became pressing, decisions were taken beyond officials’ normal remits.

B. Northern Ireland (Executive Formation and Exercise of Functions) Act 2018 The limits to this Civil Service scope to govern were tested in court. In the absence of ministers, a decision taken by officials to approve planning permission for an incinerator at Mallusk was challenged by a group that had opposed the project. The project had initially been opposed by the then minister, Mark Durkan before being referred to an appeals process. Durkan’s successor, Chris Hazzard, suggested the decision of the Planning Appeals Commission would have a bearing on his decision but was now ‘neutral’. Officials argued that the project was necessary to meet targets for the reduction of landfill waste and that not proceeding with it was detrimental to the public good. The Planning Appeals Commission approved the project but only after the Executive had collapsed, meaning that officials could not be considered to be implementing a ministerial instruction. But the decision of the High Court in Belfast, upheld by the Court of Appeal, was that officials did not have the authority to approve such a ‘crosscutting, significant and controversial’ project.60 The vesting of powers in Departments in the Northern Ireland Act 58 Eg, Northern Ireland Budget Act 2017, s 92, Northern Ireland Budget (Anticipation and Adjustments) Act 2018, Northern Ireland Budget Act 2018, s 93 and Northern Ireland Budget (Anticipation and Adjustments) Act 2019, Northern Ireland (Regional Rates and Energy) Act 2018. 59 Northern Ireland Act 1998, s 22(1). 60 R (Buick) v Department of Infrastructure [2018] NICA 26, para 58.

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did not, it was argued, constitute a carte blanche for the NICS to make significant decisions on policy that would ordinarily have required agreement by the NIE Committee. It was not the intention of the Act, it was argued, to provide the basis to turn officials into ministers: … any decision which as a matter of convention or otherwise would normally go before the Minister for approval lies beyond the competence of a senior civil servant in the absence of a Minister.61

When faced with limits to the scope with which the Civil Service could govern in the context of a prolonged absence of an Executive, the Westminster Government still resisted recourse to direct rule. Though she acknowledged it was not a satisfactory substitute for a functioning Executive, then Secretary of State for Northern Ireland Karen Bradley announced her intention to legislate to: … enable Northern Ireland Departments to continue to take decisions in Northern Ireland in the public interest and to ensure the continued delivery of public services.62

The resulting Northern Ireland (Executive Formation and Exercise of Functions) Act 2018 was passed in November 2018 and essentially circumscribed the apparent constraints imposed by the Buick decision. In addition to further extending the deadline by which an Executive needed to be established, the Act enabled the Civil Service to take decisions. It made clear that: The absence of Northern Ireland Ministers does not prevent a senior officer of a Northern Ireland department from exercising a function of the department during the period for forming an Executive if the officer is satisfied that it is in the public interest to exercise the function during that period.63

The Act was explicit that decision-making authority was not confined to matters that the Executive had previously taken a position on or even discussed. This applied retrospectively to cover the whole period since the collapse of the Executive. However, the Secretary of State was to issue guidance to the NICS to which it should ‘have regard’ when making decisions. The Secretary of State could hear representations from MLAs when drawing up that guidance. It did not cover decisions made prior to the Act that were subject to ongoing legal challenge but made clear that the decision in question could simply be ‘remade’ following the conclusion of proceedings. Since the collapse of the Executive, ministerial appointments had been halted leaving a mounting backlog of vacancies at significant public bodies. To address this, the Act also transferred the public appointment powers of Northern Ireland’s ministers to the relevant UK Government minister. Rather than simply imposing Westminster appointees, those appointments normally made in Westminster following consultation with ministers in Northern Ireland were amended to allow consultation with relevant officials. 61 ibid,

para 56. Deb 6 September 2018, cols 347–8. 63 Northern Ireland (Executive Formation and Exercise of Functions) Act 2018, s 3(1). 62 HC

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C. Northern Ireland (Executive Formation etc) Act 2019 Whilst allowing the Secretary of State to issue guidance to NICS on policy, the Act still fell well short of direct rule and was consistent with the UK Government’s strategy of limited direct intervention whilst pressing for a return of power sharing arrangements. The most significant incursion by Westminster into Northern Ireland’s policy during the period came as a result of action by Parliament rather than the government. The main purpose of the Northern Ireland (Executive Formation etc) Bill 2019 was, when introduced, to provide a further extension to the time limit for establishing an Executive following an election and to provide updates on progress towards it. However, with no government majority in the House of Commons at the time, the Bill was extensively amended during its passage through Parliament. Some of these amendments required the government to report to progress on key policies such as implementing recommendations from a public inquiry into Historical Institutional Abuse or towards introducing pensions for victims of the Troubles.64 But amendments relating to same sex marriage and abortion represented a significant incursion into areas of devolved competence where Northern Ireland diverged significantly from the rest of the UK. Under amendments tabled by Labour MPs Conor McGinn and Stella Creasy, if no new NI Executive was established by a specified date, the Westminster Government would, respectively, be compelled to use statutory instruments to legalise same sex marriage in Northern Ireland, revoke sections 58 and 59 of the Offences Against the Persons Act 1861 in Northern Ireland that outlawed abortion and to suspend prosecutions made under it, and to make provision for legal abortion to be carried out.65 These could be overturned by a re-established NI Assembly. Nonetheless, DUP MP Nigel Dodds said the amendments drove ‘a coach and horses through the principle of devolution’.66 With no NIE established by the stated deadline, the Westminster Government was forced to act and secondary legislation was eventually issued.67 Wrangling between the Government in Westminster and DUP ministers in Northern Ireland has continued.68 The UK Government made clear that the 64 Northern

Ireland (Executive Formation etc) Act 2019, ss 3–7.

65 Northern Ireland (Executive Formation etc) Act 2019, ss 8, 9. The amendment relating to abortion

were based on recommendations in a report by the UN Committee on the Elimination of Discrimination against Women (CEDAW). See CEDAW Report of the inquiry concerning the United Kingdom of Great Britain and Northern Ireland under article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women 23 February 2018 tbinternet.ohchr. org/Treaties/CEDAW/Shared Documents/GBR/INT_CEDAW_ITB_GBR_8637_E.pdf (accessed 28 January 2022). 66 HC Deb 9 July 2019, col 167. 67 The Abortion (Northern Ireland) (No. 2) Regulations 2020. 68 The issue was notably absent from the agreement restoring power sharing. Other areas that had proved divisive, such as the Irish language provision and the status of the Ulster Scots language, were included. See Northern Ireland Office New Decade, New Approach January 2020 assets. publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/856998/202001-08_a_new_decade__a_new_approach.pdf (accessed 28 January 2022).

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restoration of the Executive did not affect the obligation of the Westminster Government to introduce measures on abortion contained in the Act. The Assembly could, should it wish, legislate for an alternative approach but such an approach would need to be human rights and CEDAW compliant.69 Following a case brought by the Northern Ireland Human Rights Commission, the High Court in Belfast found that the UK Government Secretary of State for Northern Ireland was in breach of his duties under the 2019 Act in failing to ensure that abortion and post-abortion services were provided.70 Following this, further secondary legislation was laid, allowing the Secretary of State for Northern Ireland to direct Northern Irish ministers, Departments and agencies to make provision for abortion and post-abortion services.71 In July 2021, NI Secretary of State Brandon Lewis directed the Northern Ireland Department of Health to establish full abortion services by March 2022.72 A DUP Bill to prevent abortions in the case of non-fatal disabilities was defeated in December 2021, though a legal challenge brought by a pro-life group continues at the time of writing.73

V. England There has been no parallel devolution in England compared with devolution in Northern Ireland, Scotland and Wales. While concern has been expressed that devolution in the nations has been ‘devolve and forget’, in England it could be considered that the issue has been ‘forget to devolve’. England is by a long way the largest nation, with a population roughly five times that of all the devolved nations combined. In part the argument in favour of devolution was the need to counter the dominant influence of England on the decisions made by the UK Parliament prior to the 1998 devolution. This, however, treats England as a single block with uniform interests, something which has been solidified by devolution to the nations. While there has been consideration of how devolution in England could work, with the exception of London, no parts of England have the combination of clear cultural identity and established administrative units that existed in devolved nations. This has meant that there has been no clear and obvious structure for English devolution which has met with popular support and not 69 HC

Deb 4 June 2020, col 1020. the matter of an application by The Northern Ireland Human Rights Commission for Judicial Review – In the matter of the failure by the Secretary of State, Executive Committee and Minister of Health to provide women with access to Abortion and Post Abortion Care in All Public Health Facilities in Northern Ireland) [2021] NIQB 91. 71 The Abortion (Northern Ireland) Regulations 2021. 72 UIN HCWS238 22 July 2021. 73 NIA Official Report 14 December 2021, aims.niassembly.gov.uk/officialreport/report.aspx?&eve Date=2021/12/14&docID=360943#3816115 (accessed 28 January 2022); NIHRC, October 2021 Fact Sheet: Human Rights Commission intervene in SPUC Legal challenge to Abortion Services in NI 19 August 2021, nihrc.org/news/detail/august-2021-fact-sheet-human-rights-commission-intervenein-spuc-legal-challenge-to-abortion-services-in-ni (accessed 28 January 2022). 70 In

The Forward March of Devolution Halted? 369 faced local opposition. A further potential disincentive to the devolution agenda in England has been that until recently EU membership meant the potential for regional variation within England was limited. London is the only part of England that was part of the initial devolution wave. An elected government, establishing a strategic authority (London Assembly) and Mayor was a 1997 Labour manifesto commitment. Following a referendum, the Greater London Authority Act 1999 created the GLA. But what was established in London cannot be properly described as being devolution in the same order as devolution to the nations. For example, health, education, social care, arts and culture services are not delivered by the GLA, and policy in these areas are decided by Whitehall and Westminster. As part of the then Labour Government’s devolution project, a second wave of devolution through regional assemblies was planned in North East England, North West England, and Yorkshire and the Humber. However, the rejection of the assembly in the North East halted the process of regional devolution within England in its tracks.74 It was not until the Coalition and then a number of Conservative governments that a new attempt was made to established a form of ‘devolution’ within England, through the creation of combined authorities (‘CAs’) with Mayors. Following the ‘No’ vote in the Scottish Independence referendum, the then Prime Minister, David Cameron, said that in addition to the devolution of further powers to devolved institutions the UK Government would look to ‘empower [England’s] great cities’.75 The first ‘devolution deal’ was announced by the government and the Greater Manchester Combined Authority in November 2014. The number of CAs and Mayors has continued to increase, with there now being nine CA mayors.

A. The Combined Authority Mayoral ‘devolution’? CA ‘devolution’ has been different in a number of important ways. While devolution up until this point had been confirmed or rejected by referendums, CAs have been established entirely in backroom deals between local authorities and the UK Government, and have been focused on a limited set of policy areas rather than areas of competency.76 The only new democratic offices created have been those of the Mayors, meaning that this has been administrative and executive and not legislative devolution, similar, but more limited, to what already existed in London. While some limited ability for local control and direction now exists in these areas, policy is still set in Whitehall and Westminster, meaning that much of the focus of these new institutions is spent on developing and submitting bids to 74 The

North East assembly referendum was 77.98% No to 22.07% Yes. Cameron’s Statement on the UK’s Future’ BBC News (19 September 2014) www.bbc.co.uk/ news/uk-politics-29271765 (accessed 28 January 2022). 76 S Ayres, M Flinders and M Sandford, ‘ Territory, Power and Statecraft: Understanding English Devolution’ (2018) 52(6) Regional Studies 853. 75 ‘David

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Whitehall. With the creation of CA Mayors, the London mayoralty now is less of an outlier, and a new democratic model of directly elected leaders can be viewed as having become more established. However, it should be noted that CA Mayors, who are held to account by the existing constituent local authorities of the CA, have an even weaker accountability mechanism than the Mayor of London, who is scrutinised by and accountable to the elected London Assembly.

B. Brexit and COVID-19 When it came to the process of leaving the European Union, while Mayors were able to express concern and lobby for issues that were most clearly affected by the process, they were relatively minor players. Unlike with devolved nations, they had no powers that were directly affected by the changes brought about by leaving the EU. While the UK was an EU Member State however, devolved nations competence was constrained by the requirement to comply with EU law. Consequently, there was limited divergence in the regulation of areas such as agriculture across the UK. The focus on regions within the EU also gave opportunities for parts of England to make representations, which while not equal with devolved administrations was more on a par with them. However, outside of the EU, rules will essentially be set in areas of common framework and internal market issues at a UK intergovernmental level where England is represented as a whole by the UK Government. The COVID-19 pandemic has raised a number of questions about more localised control of policy and operational decisions. While devolved nations chose to operate generally in step with the UK Government, they have been clear to use their competencies to take steps that are different from the UK Government’s policy for England, making the case that it better reflected the needs of their areas. Within England however, there has been concern that policy has been made for the whole of England when more regional variation and control would have been more effective. Where parts of England have been targeted (ie local lockdowns), these decisions were questioned and this led to significant disputes between local leaders and the UK Government. This rose to national attention in autumn 2020 when the UK Government wanted to increase restrictions in the North of England and, in particular, in the Manchester area from tier 2 to tier 3, a step that would have closed pubs and many other businesses. Local leaders led by Manchester CA Mayor Andy Burnham refused to accept the restrictions, without sufficient economic support. Mr Burnham said that Manchester and other northern areas were being set up as ‘canaries in the coal mine for an experimental regional lockdown strategy’.77 The government called on local leaders to set aside party politics and accept the lockdown, but this call fell flat as there was cross-party local opposition to the restrictions, not only Labour run Manchester 77 ‘Manchester locked in stand-off with Johnson over tighter COVID curbs’, Financial Times (15 October 2020).

The Forward March of Devolution Halted? 371 but also Conservative-run Lanarkshire refused. Ultimately, after extensive and publicly held negotiations, Andy Burnham refused to accept the restrictions as the support package was not sufficient and the government imposed the tier 3 restrictions over the heads of local leaders. There was also concern that COVID-19 data was not sufficiently and promptly shared with local authorities, and that decisions over local lockdowns were not transparent.78 These events acted as a reminder of the strong central control in the governance of England and the weak powers of combined and local authorities. However, it also demonstrated that new offices of CA mayors have significantly increased the ability for areas to have a powerful local representative. This provided a practical demonstration of the ability of regional government to better address local policy issues and the limitations of governing England from the centre in Whitehall.

C. Representing England The 1998 devolution process also raised the question of who speaks for England: while control of key policy areas in Scotland, Wales and Northern Ireland have been devolved, the Westminster Parliament and the UK Government have remained the legislature and executive for England. This led to what has become known as the ‘West Lothian question.’ This is the concern that MPs from Scotland, Wales or Northern Ireland could bring the deciding votes on an issue for England only in which the majority of England’s MPs vote the other way. There is a parallel concern in regards to the executive that the departments determining and carrying out policy for England are the UK department, and so are ‘double hatting’. Little has been done to deal with the ‘double hatting’ issue and, in fact, the one department that could be truly said to focus on England (Housing Communities and Local Government) has now been replaced by the Levelling Up Housing and Communities department, which has ‘Union’ policy within its remit. In 2015, along with the establishment of Combined Authorities, the Cameron Conservative Government, introduced English Votes for English Laws (EVEL) to address the West Lothian question and give a distinctive voice to England within the legislative process. But rather than introducing this through statute, the change was made in parliamentary procedures by establishing a stage in the legislative process that was limited only to English MPs.79 However, after five years, the Johnson Conservative Government, has abolished the EVEL procedure.80 78 Public Administration and Constitutional Affairs Committee, Government Transparency and Accountability during COVID-19: The Data Underpinning Decisions (HC 2019–21, 803). 79 Public Administration and Constitutional Affairs Committee, The Future of the Union, Part One: English Votes for English Laws (HC 2015–16 523). 80 D Gover and M Kenny, ‘Deliver us from EVEL? Is the Government Right to Abolish ‘English Votes for English Laws’?’ (Constitution Unit Blog, 27 June 2021), constitution-unit.com/2021/06/27/ deliver-us-from-evel-is-the-government-right-to-abolish-english-votes-for-english-laws/ (accessed 28 January 2022).

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While EVEL was not effective in giving a voice to England, and arguably created an unnecessarily clunky and complex legislative process for legislation, the abolition of EVEL, and the continued double hatting of the UK Government opens up the possibility that legislation could be passed for England against the votes of the majority of English MPs, and raises the question of who speaks for England – a question further complicated with the increasing number and prominence of CA Mayors.

VI. Intergovernmental Relations Intergovernmental relations (IGR) arrangements in the UK have been governed by the Memorandum of Understanding (MoU) agreed between the four governments/executives, first set out in 2001, and last updated in 2013. It is notable that the MoU set out that it is a ‘statement of political intent, and should not be interpreted as a binding agreement’.81 The MoU set out that all four administrations wish to have good communication and cooperation, but provides little structure as to how this should take place, or the purpose of cooperation. As a result it has become the widely held view that IGR in the UK is ‘not fit for purpose’, with the House of Commons Public Administration and Constitutional Affairs Committee concluding that the lack of effective IGR mechanisms had been ‘the missing part of the devolution settlement ever since devolution was established in 1998’.82 This was most recently evident in the fact that during the early days of the COVID-19 pandemic, when intergovernmental working and cooperation was essential, the Joint Ministerial Committee (JMC) structures set up under the MoU were completely bypassed in favour of ad hoc committees established by the UK Government (to which devolved administrations were at least initially invited). The paradox of UK IGR is that while it is likely essential to the effective operation of devolution as part of the UK political system, the way devolution has been constructed and developed has left very little of importance for IGR to do. A review of IGR was commissioned by the JMC in 2018 but did not report for nearly four years. In the meantime, relations between the four administrations have been, and continue to be, under pressure from the process of leaving the EU, and by the continued commitment by some of the parties in devolved government to the break-up of the UK. The IGR review and a new set of arrangements for IGR were announced in January 2022. Launching the new arrangements, the responsible minister, Michael Gove MP, admitted that the previous arrangements were an ‘out-of-date and dormant system’.83 The new arrangements set out a three-tier structure for IGR with a new ‘Prime Minister and Heads of Devolved Governments Council’ at the top. The new 81 Cabinet

Office, Memorandum of Understanding and Supplementary Agreements 2013. Administration and Constitutional Affairs Committee, Devolution and Exiting the EU: Reconciling Differences and Building Strong Relationships (HC 2017–19, 1485) 132. 83 Public Administration and Constitutional Affairs Committee, Letter from Rt Hon Michael Gove MP, Secretary of State for Levelling Up, Housing and Communities and Minister for Intergovernmental Relations to PACAC Chair William Wragg on publication of the Review on Intergovernmental Relations, 19 January 2022. 82 Public

The Forward March of Devolution Halted? 373 arrangements will also have an independent secretariat in line with pervious recommendations. These arrangements remain non statutory and so, as with the previous arrangements, adherence will depend on political will. It is too soon for a view on the change in the quality of IGR these arrangements will deliver. The tensions that have been apparent between the administrations can be seen in disputes around legislative consent and the Sewel convention. If it needed clarifying, the 2017 judgment in Miller made clear that, despite being included in statute, the Sewel convention remains convention and not law. The decision by the UK Parliament to legislate without consent of devolved legislatures was entirely in keeping with the letter of the devolution statutes. Whether it was in keeping with the spirit of the laws and the importance of respecting convention in the UK Constitution, is a more active and interesting question. The views on devolution expressed by the devolved administrations have increasingly sought to view devolution in quasi-federalist terms. The Welsh Government, for example, has talked about ‘pooled sovereignty’.84 This is not something that is contained in the devolution statutes, nor would it be in keeping with the principle of (UK) parliamentary sovereignty and political arrangements that were established in 1998. If devolution is to further develop, a new phase of thinking will be needed to address the first 20 years of development and the missing aspects of a devolution system as part of the UK constitutional structure.

VII. Conclusion The devolution arrangements introduced in 1998 are far from complete. While the devolved institutions have developed and expanded their powers and responsibilities effectively, this has been at the expense of developing an effective system of devolution for the UK as a whole. For the first 20 years, there was a one-way flow of powers to devolved institutions as they became established and expanded their capacities. It can never be known what would have happened without Brexit, but the need to reevaluate the structure of devolution in light of Brexit, has led to a reaction against this one-way flow of powers. This has been seen in the reassertion of the responsibility of the UK Government and Parliament for policies that operate for the whole of the UK, such as the internal market, in ways that impinge on understanding on where powers would be exercised under the devolution arrangements while the UK was in the EU. While it may be central to those closely affected by it, devolution currently remains a peripheral issue for the majority of people in UK politics. However, devolution and the relationship of the constituent parts of the UK is the locus for some of the most pressing and fundamental constitutional questions for the UK. There are the obvious questions that arise from the continued presence of popularly supported groups that want to see parts of the UK become independent: for 84 Welsh Government, Brexit and Devolution: Securing Wales, Future (2017); Welsh Government Reforming our Union: Shared governance in the UK (June 2021).

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instance, the break-up of the UK would self-evidently be a fundamental change – indeed so fundamental that it is beyond the scope of this chapter. Connected to this, is the desire to build on the first 20 years of devolution by continuing the flow of powers to the devolved institutions, and make the devolved nations at least more independent within the UK. This raises questions of competing democratic mandates and notions of pooled sovereignty. In many ways these are anathema to the core UK constitutional principle of parliamentary sovereignty. In any case, a continued flow of powers to the devolved nations is likely to increase the divergence in political experience for people in different parts of the UK with Westminster increasingly becoming an English rather than a UK Parliament. While there has understandably been a focus within the devolved nations on getting devolution ‘right’ over the past 20 years, there has been relatively little focus on how devolution might work to the benefit of the whole of the UK. This may need to be the focus for the next stage of thinking on devolution. Another significant set of constitutional questions that have been raised by devolution in the context of Brexit is the willingness for governments to seek legal rather than political resolutions to issues. The dispute over the EUW Bill ultimately stemmed from two opposing legal positions: that competencies were devolved, and that the UK Parliament was able to reshape or recast the devolution arrangements however it saw fit. This led to competing legislation and ultimately references to the courts to resolve the dispute. This may be sound and accepted constitutional practice in many political systems, but it is a largely unfamiliar development for the UK. The failure for these issues to be resolved at political level must in part be attributed to the insufficient arrangements for intergovernmental relations in the UK. The newly announced IGR machinery may provide a better system for dealing with differences and disputes in future, but only time will tell. However, while even the existence, let alone the effectiveness, of an IGR system is based solely on political intent and there continue to be divergent, if not incommensurable, understandings of the UK’s constitutional future, there must be serious doubts over whether these arrangements will be sufficient. While the impact of leaving the EU will continue to be significant for the UK, in itself leaving the EU is not the most important factor in the context of devolution. Rather, Brexit has only exacerbated the underlying issues with the UK’s devolution arrangements that have remained unaddressed since 1998: the absence of meaningful and effective IGR arrangements, and more importantly that England, with over 80 per cent of the UK population, remains outside the devolution structures. Added to this, we have seen that there are different understandings of how the UK Constitution may continue to change in light of the development of devolution. Devolution has undoubtably become an important feature of many people’s lives and understanding of politics in parts of the devolved nations. But devolution has not yet become an important feature of people’s lives and understanding of politics throughout the UK as a whole. As such, while these issues continue, devolution, regardless of its permanence, will continue to exist geographically and politically as a peripheral part of the UK Constitution and political system.

INDEX ACOBA (Advisory Committee on Business Appointments) 53–4 administrative law 10 Advisory Committee on Business Appointments (ACOBA) 53–4 ‘arena’ legislatures 327 Article 50 of Treaty on European Union 168–9, 240–5 ‘Aylesbury men’ case 11, 13 Boardman review 53, 56 Bottomley Report 65–6 Brexit 114, 115 see also Miller litigation; Wightman litigation Article 50 (Treaty on European Union) 168–9, 240–5 Benn Bill 255 Cooper-Letwin Bill 255 devolved administrations 218–23 England 370–1 EU-UK Trade and Cooperation Agreement 171–2 independence referendums 357–8 Johnson Administration 257–63 legislative scrutiny 120–1 May Administration, end of 256 meaningful votes 252–6 and Parliament 211–65 parliamentary scrutiny 214–18, 239–65 prorogation of Parliament 30–3, 231–2 Scotland, withholding of consent 357 and treaties 167–78 Wales, legislative consent 361 withdrawal agreement 169–71 bullying 38, 42–5, 50, 55 Cameron, David 53, 56 civil liability 17 Civil Service Estimates 59–60 Clerk of the House of Commons 58–63, 68 Clerk of the Parliaments 59, 68 comity, principle of 9

Committee on Standards in Public Life (CSPL) 37, 41 Compliance Officer (IPSA) 51–2 Confidence Convention 189–96, 199–200 constitutional change and government 228–30 and parliamentary sovereignty 310–11 Constitutional Reform Act 2005 (CRA) 335–40 Constitutional Reform and Governance Act 2010 (CRAG) 166–7, 174–6, 187 constitutional territories 323–4 ‘Contribution of parliaments to the work of the Human Rights Council and its universal period review’ (UN OHCHR) 270 Coronavirus Bill 119–21 coronavirus pandemic England 370–1 and justice 326 Justice Committee (House of Commons) 344–5 and legislative scrutiny 113–14, 116, 119–22, 129 courts and constitutional disputes 228, 230, 325 constitutional guardianship 231 contempt of 27–8 and freedom of speech 18–19 and Parliament 9, 10–13, 25–7 parliamentary material, use of 21–7 political decisions 227–34 COVID-19 pandemic see coronavirus pandemic CRA (Constitutional Reform Act 2005) 335–40 CRAG (Constitutional Reform and Governance Act 2010) 166–7, 174–6, 187 criminal liability and privilege 16–17 CSPL (Committee on Standards in Public Life) 37, 41 Cummings, Dominic 156

376

Index

Davies, Chris 46 defamation proceedings 19–20 delegated legislation, legislative scrutiny of 123–6, 287–8 devolution in UK current arrangements 350–2 England 368–72 historical context for UK 349–50 Northern Ireland 362–8 Scotland 352–8 Wales 358–62 devolved administrations Brexit 218–23 and constitutional disputes 218–25, 230, 233, 234–5 dispute resolution mechanisms 236–7 and distribution of powers 233–4 imbalance of power 235–6 intergovernmental relations (IGR) 372–3 and treaties 167 Dicey, Albert Venn 303–4 distribution of powers 231–4 domestic committees 141–2 see also House of Commons, Finance Committee; House of Lords, Finance Committee draft principles on human rights 277, 278–95 ECA (European Communities Act 1972) 168, 216, 240–1, 309–11 ECHR (European Convention on Human Rights) 308–9 ECLSG (European Charter of Local Self-Government) 356 Electoral Commission 54 Elizabeth Tower 97–8 Endicott, Timothy 228, 230, 231 England Brexit 370–1 Combined Authorities 369–70 coronavirus pandemic 370–1 devolution 368–72 intergovernmental relations (IGR) 372–3 Mayors 370 representation of 371–2 EU-UK Trade and Cooperation Agreement 118, 168, 171–2 European Charter of Local Self-Government (ECLSG) 356 European Communities Act 1972 (ECA) 168, 216, 240–1, 309–11 European Convention on Human Rights (ECHR) 308–9

European Union treaty revisions, parliamentary scrutiny 165 UK withdrawal see Brexit European Union (Future Relationship) Act 2020 263 European Union (Notification of Withdrawal) Bill 117–19, 243–5 European Union (Withdrawal) Act 2018 220–1, 245–51, 252–6 European Union (Withdrawal) Act 2019 255 European Union (Withdrawal Agreement) Act 2020 257–8 European Union (Withdrawal) (No. 2) Act 2019 255 exclusive cognisance 8, 14–17 Exiting the European Union Committee 242 financial remit 75–6, 77–8, 84 Fixed-term Parliaments Act 2011 (FTPA) 196–207 Foot, Michael 137–8 free trade agreements (FTA s) 176–8 freedom from arrest 10 freedom of access to the monarch 10 freedom of speech 9–10, 12, 17–21 FTAs (free trade agreements) 176–8 FTPA (Fixed-term Parliaments Act 2011) 196–207 General Election of 2019 257 government see also Treasury accountability 22–5, 143–4, 289–93 and constitutional change 228–30 democratic nature of 228–9 and dispute resolution mechanisms 236–7 and imbalance of power 235–6 legal decisions, reversal of 232–3 transparency 235 treaties, dominance in 160–4 Hodge, Margaret 153–4 House of Commons see also government; Members of Parliament; Parliament; select committees Administration Estimate 70 Audit Committee 74–5 Behaviour Code 42–3 budget process 76–9, 84–5 budget scrutiny 82–4 bullying 38, 42–5, 50, 55 Civil Service Estimates 59–60 Clerk of the House 58–63, 68

Index 377 Code of Conduct 41–3, 55–6 Commission 64–5, 68–9, 74, 77, 78, 91, 95, 97, 104, 105 conduct in 41–7 Confidence Convention 189–96, 199–200 constitutional role 231, 233 cost of 79–82 Estimates for expenditure 59–60, 70 Executive Board 75 executive power 231 Exiting the European Union Committee 242 expenses 17, 25–7, 38, 51–2 expulsion from 41 fee income 58–9 Finance Committee 74–5 Finance Department 75–6 financial autonomy 58–69 governance 72 Justice Committee 344–5 legislative scrutiny 115–17 lobbying 53–4 Members Estimate 70 Public Accounts Committee 134–5 Register of Members’ interests 39–40 salaries of officers 60–1 sanctions 41–2 Serjeant at Arms 59 sexual misconduct 42–5 Speaker’s salary 58 Standards Committee 38, 40, 45, 55 treaty scrutiny 274 witness privilege 135–6 House of Commons (Administration) Act 1978 63–7 House of Lords see also Parliament; select committees Appellate Committee 135 attendance allowance 47, 52–3 Audit Committee 74–5 Behaviour Code 43, 48 budget process 76–9, 84–5 budget scrutiny 82–4 Clerk of the Parliaments 59, 68 Code of Conduct 39, 47–8 Commission 74, 98, 99, 105 Commissioner for Standards 47–8 committees 133–5 Conduct Committee 55 conduct in 47–50 Constitution Committee 343–4 cost of 79–82 disciplinary powers of 48–9 Estimates for expenditure 61, 70

EU Committee 173–4 Finance Committee 74–5 Finance Department 75–6 financial autonomy 58–63, 69 governance 73 International Agreements Committee 174–8 justice, administration of 335–8 lobbying 53–4 Management Board 75 sexual misconduct 49–50 special inquiry committees 140 treaty scrutiny 166–7, 273–4 HRA (Human Rights Act 1998) 286, 292, 308–9 human rights see also Joint Committee on Human Rights (JCHR) draft principles on 277, 278–95 economic and social rights 275 engagement of UK Parliament 273–5 government accountability 289–93 implementation of obligations 275–6 institutional infrastructure for 276–7 international standards for parliaments 270–8 parliamentary committees 277–8 pre-requisites 271–2 promotion of 272–3 treaties 273–5, 279–84 Human Rights: Handbook for Parliamentarians 270 Human Rights Act 1998 (HRA) 286, 292, 308–9 Ibbs Review 68–9 ICGS (Independent Complaints and Grievance Scheme) 38, 42–5, 55 IEP (Independent Expert Panel) 38, 41, 44, 46, 55 IGR (intergovernmental relations) 372–3 Independent Complaints and Grievance Scheme (ICGS) 38, 42–5, 55 Independent Expert Panel (IEP) 38, 41, 44, 46, 55 Independent Parliamentary Standards Authority (IPSA) 38, 51–2, 70 injunctions 18–19 intergovernmental relations (IGR) 372–3 international treaties see treaties investigative committees 140 IPSA (Independent Parliamentary Standards Authority) 38, 51–2, 70

378

Index

JCHR see Joint Committee on Human Rights (JCHR) Johnson, Boris 40, 114, 170, 201, 203, 211, 324–5 Johnson Administration 257–63 Joint Committee on Human Rights (JCHR) action plans 294 budget scrutiny 294 composition 295–6 draft principles on human rights, compliance with 278–95 functions 279–95 and government accountability 289–93 information provision 293 legislative scrutiny 284–8 mandate 278–9 and National Human Rights Institutions 294–5 responsibilities 279–95 Statutory Instruments 287–8 training and awareness 295 and treaties 279–84 working methods 295–6 joint committees 150 judicial appointments 335, 343–4 judicial review applications by MPs 225–7 functions of 228 and parliamentary sovereignty 317–19 review of 325–6 jury service 10 justice administration of 323–48 accountability for 328–32, 335–40 Green Papers 1989 331–2 and new public management (NPM) 332–5 and coronavirus pandemic 326 Ministry of Justice 329, 340–6 JUSTICE 330–1 Law Derived from the European Union (Wales) Act 2018 219 LCD, see Lord Chancellor’s Department legislative committees 140–1 legislative scrutiny 113–32 see also parliamentary scrutiny coronavirus pandemic 116 and coronavirus pandemic 129 cross party consensus on 120–3 of delegated legislation 123–6 Joint Committee on Human Rights (JCHR) 284–8

and Members of Parliament 126–9 public image of 130–1 select committees 142–3 time limitations 117–20 Lester, Anthony (Baron Lester of Herne Hill) 49–50 lobbying 53–4, 56 Lord Chancellor, office of 328–32, 335, 341 Lord Chancellor’s Department (LCD) 330, 334 Mackay, James (Baron Mackay of Clashfern) 331–2 Marconi scandal 139 May Administration, end of 256 Members of Parliament bullying 42–5 expenses 17, 25–7, 38, 51–2 judicial review, as applicants for 225–7 legislative scrutiny 126–9, 217–18 limited interest in parliamentary capacity 85 paid advocacy 38, 42 recall of 45–7 registration of interests 39–40 second jobs 38, 39–40 #MeToo movement 38, 42, 55–6 Miller I (R (Miller) v The Secretary of State for Exiting the European Union [2016] EWH C 2786 (Admin)) 29–30, 214–17, 229–31, 235, 242–3, 310–11 Miller II (Miller) v The Prime Minister and Cherry v Advocate General for Scotland ([2019] UKSC 41) 30–3, 214–17, 229–31, 235, 313–15 Ministry of Justice 329, 340–6 monarch, freedom of access to 10 MPs see Members of Parliament necessity, doctrine of 8–9 new public management (NPM) 332–5 News International 154–5 Nolan principles 41, 56 Non Disclosure Agreements 19 Northern Ireland see also devolved administrations devolution 362–8 government of 350 without an executive 363–8 Northern Ireland (Executive Formation and Exercise of Functions) Act 2018 365–6

Index 379 Northern Ireland (Executive Formation etc) Act 2019 367–8 NPM (new public management) 332–5 oaths 15 Onasanya, Fiona

46

paid advocacy 38, 42 Paisley, Ian 46 Palace of Westminster Elizabeth Tower 97–8 Restoration and Renewal programme 58, 70, 84, 94–108 accountability for 103–5 champions for 106–8 funding 88, 107 legislation 98–108 political independence 105–6 Parliament see also House of Commons; House of Lords; Palace of Westminster; parliamentary scrutiny; parliamentary sovereignty; privilege; select committees as ‘arena’ legislature 327 Article 50 of Treaty on European Union 168–9, 240–5 and Brexit 211–65 budget process 76–9, 84–5 budget scrutiny 82–4 building works, governance of 89–94 bullying 38, 42–5, 50, 55 and civil liability 17 committees 133–5 cost of 79–82 and courts 9, 10–13, 25–7 decision making 8 definition of 7–8 financial autonomy 58–63 freedom of speech see freedom of speech functions of 13–14 funding of 57–85 and human rights see human rights Joint Committee on Human Rights (JCHR) 278–95 and legislation 15–16 legislative scrutiny 113–32 as legislator 115 lobbying 53–4 and Ministry of Justice 340–6 oaths 15 penal powers 27–9 prorogation 30–3, 231–2, 313–15 salaries of officers 60–3

sexual misconduct 42–5, 49–50 sub judice resolutions 18 and treaties 159–67 Parliamentary Commissioner for Standards 41 Parliamentary Corporate Bodies Act 1992 68, 91 parliamentary material, use of by courts 21–7 Parliamentary Ombudsman 330–1 parliamentary papers, publishers of 12, 13 parliamentary privilege see privilege parliamentary scrutiny see also legislative scrutiny Brexit 239–65, 250–1, 256 enhancement of 214–18 and legal scrutiny 227–8, 231 treaties 165–7, 173–87 parliamentary sovereignty as an English principle 303–5 and constitutional change 310–11 and distribution of powers 232 as executive sovereignty 319–20 historical foundations of 303–5 as judge-made 305–7 and judicial review 317–19 law of 299–301 legal limits 308–10 and political pressure 312–13 and prorogation of Parliament 313–15 and rule of law 315–16 as ‘the whole of the constitution’ 301–3 and treaties 162 Parliamentary Works (Restoration and Renewal) Act 2019 98–108 Parliamentary Works Sponsor Body 70, 88, 99–102, 104–5, 107–9 Paterson, Owen 40, 42 phone-hacking inquiry 154–5 political lobbying 53–4 Ponsonby Rule 164–7 Portcullis House 92–4 Powell, Enoch 137–8 prerogative powers 29–33 Prime Ministers Cameron, David 53, 56 Johnson, Boris 40, 114, 170, 201, 203, 211, 324–5 May, Theresa 256 privilege boundaries of 10–13 and criminal liability 16–17 definition of 8

380

Index

parliamentary 7–14 and representation 13–14 source of 8–9 waiver of 19–20 for witnesses 135–6 prorogation of Parliament 30–3, 231–2, 313–15 public inquiries 139 Raab, Dominic 341 Roberts, Rob 46, 47 rule of law 161, 181–2, 232, 260–2, 315–16, 317–18, 332, 339, 341 Scotland see also devolved administrations Brexit legislation 357 declarations of incompatibility 224 devolution 352–8 and Supreme Court 354–5 European Charter of Local Self-Government (ECLSG) 356 treaties 223–4 UN Charter on the Rights of the Child (UNCRC) 223–4, 356 Scotland Act 2016 352–3 Scottish Continuity Bill 2018 219, 221, 355–6 select committees 133–58 ad hoc 138–40 chairs election of 152, 153 remuneration of 151–2 coverage of 153 departmental select committees 136–8 effectiveness of 152–3 evidence, power to take and publish 149, 338–9 ‘fear factor’ 153–4 functions of 142–6 and government accountability 143–4 House of Lords 152 International Agreements Committee 174–8 investigative committees 140 joint committees 150 and judicial accountability 342–3 legislative committees 140–1 legislative scrutiny 142–3 Liaison Committee 96, 99, 140, 144, 146–7, 150, 151–2, 153, 179 limitations 145–6 origins of 133–6

over-reach 154–5 and parliamentary debate 145 persons, papers and records, power to send for 147–8 phone-hacking inquiry 154–5 powers 146–50 pre-appointment hearings 345 and public debate 145 reporting powers 147 specialist advisers, power to appoint 150 statutory committees 141–2 sub-committees, appointment of 146–50 and sub judice rule 145–6 travel, power to 149–50 types of 138–42 witness summonses 154–7 separation of powers 57, 213, 231–2, 326–8 Sewel Convention 220, 237, 308, 351, 356–7, 373 sexual harassment 42–3, 49–50 SIs (statutory instruments) see delegated legislation statutory committees 141–2 statutory instruments (SIs) see delegated legislation Stockdale v Hansard 12, 13 sub judice rule 18, 145–6 super injunctions 18 Supreme Court 335 see also Miller I; Miller II, courts Article 50 of Treaty on European Union 168–9, 310–11 establishment of 335–7, 338 European Communities Act 1972 (ECA) 309–10 judicial review 317 prorogation of Parliament 102–3, 170, 216 and Scottish devolution 223–4, 354–6 and Welsh devolution 359 TCA (EU-UK Trade and Cooperation Agreement) 171–2 Treasury budget process, influence on 76–9 Civil Service Estimates 59–60 financial control over House of Commons 63–7 resource budgets 76 Restoration and Renewal programme 88, 107 salaries of Parliamentary officers 60–3, 65–6

Index 381 treaties application of 186–7 assent to 185–6 and Brexit 167–78 committees’ roles 184–5 Constitutional Reform and Governance Act 2010 (CRAG) 166–7 and democratic accountability 162–3 departmental select committees 165–6 and devolved administrations 167 EU-UK Trade and Cooperation Agreement 171–2 expansion of 163–4 free trade agreements (FTA s) 176–8 government dominance in 160–4 human rights 273–5, 279–84 International Agreements Committee 174–8 and Joint Committee on Human Rights (JCHR) 279–84 and Parliament 159–67 parliamentary engagement 182–3 parliamentary scrutiny 165–7, 173–87, 214 and parliamentary sovereignty 162 Ponsonby Rule 164–7 Scotland 223–4

scrutiny framework 178–80 transparency of information 180–2 Treaty on European Union, Article 50 168–9 withdrawal from 187, 214–15 Treaty on European Union, Article 50 168–9, 240–5 UK Internal Market Act 2020 222–3, 258–62, 361–2 UK Withdrawal from the EU (Legal Continuity) (Scotland) Bill 2018 219, 221 United Nations Charter on the Rights of the Child (UNCRC) 223–4, 356 United Nations High Commissioner for Human Rights 270 Vaz, Keith 46, 55 Wales see also devolved administrations Brexit, legislative consent 361 devolution 358–62 UK Internal Market Act 2020 361–2 Welsh Continuity Act 2018 219, 221 Wightman litigation 217–18, 225–7, 229–31, 235