What’s Next For The Fixed Term Parliaments Act?

The 56th Parliament of the United Kingdom came to an end yesterday after just two years. It was supposed to last until 2020, but the British will be going to the polls early after MPs backed Theresa May’s call for an early election.

Section 2(1) of the Fixed-term Parliaments Act 2011 allows for an early election if 2/3 of MPs vote in favor of a motion to that effect. The outcome was never really in doubt, as Labour announced that they would back May’s motion for an early election. In the end, she won by a landslide (the final tally was 522 to 13).

It’s not hard to see why May wants an early election. With Labour stuck in the doldrums, the Conservatives appear poised to gain a sizable majority. But this is a blatant violation of the spirit of the Fixed-term Parliaments Act. Before it became law, the Queen dissolved Parliament at the request of the Prime Minister, and nothing prevented a Prime Minister from calling a snap election whenever it looked like their party might pick up seats.[1] Many thought was unfair. When the Fixed-term Parliaments Act was going through the Commons, the Deputy Prime Minister, Nick Clegg, argued that “no Government should be able to dissolve Parliament for their own political advantage.[2]

Nevertheless, it’s striking how easily Theresa May got her wish. She announced her desire for an early election on 18 April, and within hours, Jeremy Corbyn had made it clear that Labour would support the Government. When MPs debated the matter on 19 April, only a handful spoke against an early election, and the overwhelming majority of MPs ultimately joined the Government in the Aye lobby.

May’s decision to call an election was nakedly opportunistic, yet MPs supported it. This raises questions about the viability of the Fixed-term Parliaments Act. Section 2(1) of the Act is supposed to check the Prime Minister’s power, but it will be rendered moot if MPs keep deferring to the Executive. While it’s tempting to dismiss this election as an aberration caused by Brexit, the fact that May prevailed without any real difficulty could encourage future Prime Ministers to call for early elections whenever they think the country needs ‘strong, stable leadership.’ And the Opposition may have little choice but to go along with it. As Jacob Rees-Mogg pointed out during the debate on the early election, “[n]o Opposition can sensibly say that they would prefer a Government they oppose to continue in office, rather than having a chance to defeat them.[3]” Saying no to an early election could easily make the Leader of the Opposition look weak and scared, and that is likely to be a strong inducement to cooperate with the Government. If that turns out to be the case, the Fixed-term Parliaments Act won’t be worth the vellum it’s printed on.

NOTES

[1] However, dissolutions were not automatic. The Sovereign could refuse a Prime Minister’s request in exceptional circumstances.

[2] HC Debates, 13 September 2010, col. 628.

[3] HC Debates, 19 April 2017, col. 697

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What’s Next For The Brexit Bill?

After 44 hours of debate, the European Union (Notification of Withdrawal) Bill finished its marathon journey through the House of Lords today. There was some last-minute drama as the Liberal Democrats mounted a quixotic effort to scupper the bill by blocking final passage. Although their stratagem was overwhelmingly rejected by a vote of 95 to 340, the bill faces additional hurdles on its path to the statute book.

Despite the Government’s best efforts, peers made two amendments to the bill (one aims to protect the rights of EU citizens living the UK post-Brexit, while the other requires a parliamentary vote on the final terms of the Brexit agreement). As a result, the bill must go back to the Commons, where MPs will have a chance to accept, reject, or amend the Lords’ amendments (they can also propose their own alternative amendments).

Ministers will almost certainly try to remove the amendments from the bill. Although the Government has a slender majority, they will likely get their way without too much difficulty. Conservative MPs were remarkably united when the bill was going through the Commons, and Ken Clarke (a longstanding Europhile) was the only rebel.

If MPs delete the amendments or offer alternatives, the bill will go back to the Lords. Peers will then have to decide whether they wish to stick to their guns or yield to the Commons. In most cases, the Lords choose the latter route, but in this case, it may take them a while to reach that point.

If the two Houses can’t come to an agreement, the bill will be lost. But I can’t see Labour pushing things that far since they support the bill as a whole. More than likely, they will ask peers to insist on the amendments once, then throw in the towel. At that point, I suspect a lot of the Crossbenchers will follow their lead (the LibDems may decide to hold out until the bitter end, but they need significant support from Labour and the Crossbenches to prevail). Once that happens, the bill will finally be ready for Royal Assent.

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Why Did Theresa May Sit On The Steps Of The Throne?

If you watched the beginning of the second reading debate on the European Union (Notification of Withdrawal) Bill in the House of Lords, you may have noticed Theresa May watching the debate from the steps of the throne. Although Prime Ministers rarely venture there, the steps of the throne are frequently occupied when the House is in session. But why do so many people hang out there?

The steps of the throne serve as a sort of spectators’ gallery. However, the right to sit there is restricted to a curious gallimaufry of individuals, including:

  • members of the House of Lords;
  • hereditary peers who were removed from the House of Lords pursuant to the House of Lords Act 1999;
  • eldest sons/daughters of member of the House of Lords;
  • Irish peers;
  • Church of England bishops;
  • the Dean of Westminster Abbey; and
  • Privy Counsellors.

The practice of sitting on the steps of the Throne began as a way for the eldest sons of peers to gain experience of the House before they inherited their seats. Eventually, that right was extended to the eldest sons of life peers, and later on, the eldest child of any peer in the House regardless of gender. Hereditary peers who were removed from the House in 1999 got the right to sit on the steps as a sort of consolation prize.

Nowadays, many of the people on the steps are serving peers who wish to watch its proceedings but don’t have time to stay for an extended period of time. If you’re watching a debate in the chamber itself, you’re expected to stay for the whole thing, so sitting on the steps of the Throne can be a great alternative if you’re pressed for time.

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Speaker Bercow’s Trump Remarks Land Him In Hot Water

The BBC reports that a Conservative backbencher has launched a bid to remove John Bercow from the Speaker’s chair after he said that Donald Trump should not address Parliament in Westminster Hall when he pays a state visit to the United Kingdom. Once again, the ‘Marmite Speaker’ is embroiled in controversy. But why is this such a controversial issue, and could it really drive him from office?

In order to understand the flap over Bercow’s Trump remarks, it’s important to remember, unlike the Speaker of the House of Representatives in America, the Speaker of the House of Commons is supposed to be politically impartial. This convention is taken very seriously. Upon taking the chair, the Speaker resigns their party membership, and they are expected to remain apolitical even after leaving office, which is why former Speakers sit as Crossbenchers in the House of Lords.

Bercow’s criticism of Trump has stretched this convention to the breaking point. The merits of his position are beside the point. It’s not the Speaker’s place to weigh in on public controversies. Nor can he claim to be speaking on behalf of MPs since the House has not taken a stance on the matter (Bercow would do well to reflect on the words of his seventeenth-century predecessor, William Lenthall: “I have, Sir, neither eyes to see, nor tongue to speak, in this place, but as the house is pleased to direct me, whose servant I am here”!). Furthermore, Bercow’s actions were profoundly discourteous to the Lord Speaker of the House of Lords and the Lord Great Chamberlain. They too must sign off on any address by Trump, yet Bercow evidently failed to consult them before making his pronouncement.

Unfortunately, this behavior is par for the course with Bercow. He has a tendency toward self aggrandizement that manifests in ways both large and small. When he first took office, he decided that he wouldn’t wear court dress beneath his gown as tradition dictated (while his two immediate predecessors also changed the Speaker’s outfit, they struck a much better balance between modernity and tradition). Bercow (a straight, cisgendered man) also incorporated LGBT-related imagery into his official coat of arms. While he does have a commendable record when it comes to LGBT rights, his use of the Pride flag and pink triangles seems more than a little presumptuous.

Far more problematic is Bercow’s behavior in the chair. He has a reputation for making snarky comments that often seem mean-spirited. These remarks make nice soundbites, but in the end they damage the office of Speaker. Chairing the Commons is a difficult task, as MPs can test the patience of even the most even-tempered Speaker. It’s vital that the Speaker keep their cool at all times, and they cannot allow MPs to rattle them (I can’t imagine Betty Boothroyd or Bernard Weatherill getting into a shouting match with the Government Chief Whip!) There is also a feeling among many Conservative MPs that Bercow is biased against them, despite the fact that he was a Tory before assuming the chair. Ultimately, this is a subjective issue that cannot be proven or disproven, but the fact that a significant number of MPs question his impartiality is a serious strike against him.

To be fair, Bercow’s track record as Speaker is not wholly bad. He does stand up for backbenchers, and his rulings made it easier for Euroskeptic backbenchers to pressure David Cameron into allowing a referendum on Britain’s EU membership. His willingness to allow Urgent Questions has put ministers on the hot seat more often. These things balanced out his foibles for many years, but the Trump controversy may finally tip the scales in the opposite direction.

But for now, Bercow is probably safe. The motion of no confidence is in the form of an Early Day Motion, which are almost never debated let alone voted on. In theory, either the Government or the Opposition could place the motion on the agenda, but that’s unlikely to happen. The Backbench Business Committee could decide to give the motion parliamentary time, but that seems like a long shot, too. But you don’t necessarily need a formal vote of no confidence to force a Speaker from office. Bercow’s immediate predecessor, Michael Martin, ended up resigning even though only 22 MPs had signed a motion of no confidence in him (though many MPs were calling for his resignation from the floor of the House). Something similar might well happen to Bercow. If his opponents can get MPs from across the House to put pressure on the Speaker, he will almost certainly throw in the towel. It’s a tall order, but not beyond the realm of possibility.

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Commons Clerks Ditch Wigs, Keep Robes

The Speaker of the House of Commons, John Bercow, today announced that the Commons’ clerks will no longer wear horsehair wigs and court dress while sitting at the table. They will, however, keep their black gowns, and male clerks will continue to wear white bow ties (female clerks will wear neck bands). Despite protests from MPs, the Speaker stuck to his guns, claiming that the clerks themselves favored the choice and that it would make the Commons “marginally less stuffy.”

I’ve long been fascinated by the issue of court dress in the United Kingdom. While the casual observer might be tempted to assume that it’s something that’s been around since time immemorial, most of its components are actually comparatively recent. The horsehair wigs and bar jacket, for example, only came about in the eighteenth century. I find it interesting that clothing from this one period has become fossilized.

This change has led to protests from the Conservative benches, with Sir Gerald Howarth and Jacob Rees-Mogg voicing their objections. But according to the Clerk of the House of Commons, few table clerks wear court dress as it is. It’s expensive (£4,000 a suit), and the Commons authorities have been reluctant to spend that kind of money each time a new clerk is appointed.

While I personally think that wigs and court dress add gravitas to the House, I understand the rationale for the change. In an age of austerity, it’s hard to justify spending thousands of pounds to equip support staff in horsehair wigs and court dress. And unlike Bercow’s changes to the Speaker’s outfit, the clerks’ outfit will maintain a high degree of visual continuity. The missing wigs will obviously be noticeable, but the gowns will help obscure the differences between a bar jacket and a regular suit jacket, and clerks will continue to wear the traditional neckwear. Plus, the old-style attire will continued to be worn on formal occasions such as the State Opening of Parliament.

Balancing tradition with modernity is always a challenge, but in this case, I think they got it right.

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Government Loses Brexit Case

In a widely expected ruling, the Supreme Court ruled that the Government cannot trigger Article 50 without Parliament’s consent. I won’t go over the ruling in detail, as I’ve already discussed it here and here. Suffice it to say, I think the Supreme Court made the right choice. Ministers cannot use the royal prerogative to alter domestic law. To do so would fly in the face of centuries of British jurisprudence.

The court was also right to reject the notion that the devolved governments can veto Brexit. Foreign affairs are reserved to the British government, and the devolved legislatures have not been asked to consent to Westminster legislation that alters the competencies of EU institutions, even when it would affect  devolved matters. Besides, the practice of seeking the consent of the devolved legislatures before Westminster legislates on matters within their competency is a political convention, not a legal convention. It does not abridge the supremacy of the Westminster Parliament. As Lord Neuberger of Abbotsbury observed at paragraph 145 of the majority judgment:

While the UK government and the devolved executives have agreed the mechanisms for implementing the convention in the Memorandum of Understanding, the convention operates as a political restriction on the activity of the UK Parliament. Article 9 of the Bill of Rights, which provides that “Proceedings in Parliament ought not to be impeached or questioned in any Court or Place out of Parliament”, provides a further reason why the courts cannot adjudicate on the operation of this convention.

Of course, as a matter of comity, the British government might wish to secure the consent of the devolved legislatures, but it is not legally necessary. That being said, if the British government acts without their consent, they must be prepared to accept the consequences of that decision.

Now, all eyes will be on Parliament. The Government has promised a short Brexit bill later this week, and they hope to take it through the Commons within the space of a fortnight. There has been talk that Labour and the SNP will try to amend the bill to ensure barrier-free access to the single market (among other things), but their chances of succeeding seem slim. They would need the support of every MP who isn’t a Conservative, along with 13 defections from the Government benches.

The House of Lords will be more of a wildcard since the Government doesn’t have a majority there. But while it will be easier for peers to amend the bill,  the Government can always have the Commons reject their amendments during ‘ping pong.’ That would force the Lords to either insist on their amendment (and potentially scupper the whole bill) or give way. Historically, the Lords usually give way when faced with opposition from the Commons, and I suspect that will be the case here as well.

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Why Are Ambassadors To The UK Accredited To ‘The Court of St. James’?

Donald Trump has indicated that New York Jets owner Woody Johnson will be America’s next ambassador to the United Kingdom. According to the BBC, the President-Elect introduced Johnson as “the ambassador Woody Johnson, going to St. James” at a luncheon. But why is he said to be ‘going to St. James’?

‘St. James’ refers to St. James’s Palace, which was originally built by Henry VIII between 1531 and 1536. At the time, the Palace of Whitehall was the King’s principal residence, and Henry was looking for a retreat from the formality of court life. St. James’s Palace was used as an alternative residence until the end of the seventeenth century.

Following the destruction of the Palace of Whitehall in 1691, the court moved to St. James’s Palace. It remained the Sovereign’s principal residence and the monarchy’s administrative hub until the reign of George III. He found the Tudor building antiquated and uncomfortable, so in 1761 he purchased a nearby mansion known as Buckingham House for his wife’s use. ‘The Queen’s House’ became the royal family’s preferred home, though St. James’s was still the official site of the court and the venue for state ceremonial.

The distinction between the home of the court and the home of the monarch was formalized at the beginning of Victoria’s reign. Since 1837, ‘Buckingham Palace’ has been the Sovereign’s primary residence, and it has become the setting for most ceremonial events as well.[1] However, St. James’s Palace remains the official home of the court and a working royal palace. Today, it houses the offices of the Chapel Royal, the Central Chancery of the Orders of Knighthood, the Royal Collection Trust, and the Marshal of the Diplomatic Corps. It is also the nominal place of issue for many royal warrants, though in reality, they are signed wherever the Queen happens to be.[2]

Ambassadors continue to be accredited to St. James’s because they are technically a liaison between their own head of state and the Queen.[3] However, diplomatic ceremonial is conducted at Buckingham Palace, so Woody Johnson may never actually set foot in St. James’s Palace.

NOTES

[1] There some exceptions to this rule. St. James’s is where the Privy Council meets upon the accession of a new sovereign.And because it houses the Chapel Royal, the royal family continue to use St. James’s for certain religious ceremonies. Each Epiphany, a pair of Gentlemen Ushers make offerings of gold, frankincense, and myrrh on behalf of the Queen. The Chapel Royal was also the venue for Victoria’s wedding to Prince Albert and Prince George’s christening.

[2] Oddly enough, some documents are said to come from Buckingham Palace rather than St. James’s Palace. If there is an official explanation for this discrepancy, I’m not aware of it. However, I’ve noticed that procedural warrants (e.g., warrants directing the Lord Chancellor to seal a document with the Great Seal) refer to St. James’s, while substantive warrants (e.g., the warrant appointing the First Minister of Scotland) refer to Buckingham Palace.

[3] Nations in the Commonwealth send ‘High Commissioners’ rather than ‘ambassadors.’ This is because, at one time, all Commonwealth countries had the British monarch as their head of state, so the normal rules of diplomatic accreditation would not apply. The workaround was to exchange representatives at the government level, and this tradition continues, even in the case of Commonwealth countries that have become republics.

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What’s Happening In Northern Ireland?

 

Devolved government in Northern Ireland has been dealt a major setback today when Sinn Fein announced that they wouldn’t nominate a new deputy First Minister following Martin McGuinness’ resignation last week. McGuinness resigned over a renewable energy scheme championed by First Minister Arlene Foster when she was Minister for Enterprise, Trade and Investment.

Under the power-sharing arrangements established by the Belfast Agreement and its successors, the First Minister and deputy First Minister are the joint heads of the Northern Ireland Executive (i.e., Northern Ireland’s government), so Foster also had to step down when McGuinness resigned. Although she was duly renominated by the Democratic Unionist Party, Sinn Fein’s refusal to nominate a deputy First Minister effectively prevents her from taking office again. This means that the Northern Ireland Executive can no longer function, and the Secretary of State for Northern Ireland must invoke section 32 of the Northern Ireland Act 1998 and advise the Queen to hold an extraordinary election for the Northern Ireland Assembly.

The current situation represents a grave threat to the devolution settlement in Northern Ireland. If the newly elected Assembly still can’t agree on a First Minister and deputy First Minister, devolved government may well have to be suspended. In that case, Northern Ireland would once again be ruled directly from Westminster, though the British government is doing its best to downplay this possibility.

One can only hope that the election will generate light rather than heat, and the political parties (and their respective communities) will be able to figure out a way to continue working together for the good of Northern Ireland as a whole.

 

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Why Don’t British Supreme Court Justices Wear Robes?

A reader recently asked:

Why didn’t the Supreme Court justices wear robes and wigs during the Brexit case? Is that normal? 

The answer is yes, it’s normal. Supreme Court justices have worn ordinary business attire during oral arguments since the court’s inception in 2009. This tradition was inherited from the Appellate Committee of the House of Lords, which was the United Kingdom’s highest court before the Supreme Court. Because it was a committee of the House of Lords, its members dressed like legislators rather than judges.

The latitude in dress also extends to the lawyers who argue before the Supreme Court. Although formal court dress remains the default, lawyers can ask for permission to dispense with their wigs and gowns. If the opposing side agrees, the court will invariably allow them to dress down.

news-release-121001

Photo courtesy of the UK Supreme Court.

The Supreme Court is not entirely robe-less, however. On ceremonial occasions such as the State Opening of Parliament, they wear elaborate black-and-gold robes modeled after those worn by the Lord Justices of Appeal, though the Supreme Court’s robes have the court’s emblem on the back.

Incidentally, Britain’s Supreme Court justices are not alone in eschewing robes. Their counterparts in New Zealand also wear business attire, and they do so for similar reasons. Until 2004, the Judicial Committee of the Privy Council in London was New Zealand’s final court of appeal, and members of the Judicial Committee wear normal clothes because they are technically acting as Privy Counsellors rather than judges. But on ceremonial occasions, the kiwi justices wear full-bottomed wigs and scarlet robes like those worn by High Court justices in England.

 

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Government Ditches Plans To Curb Lords’ Powers

In a move that should surprise no one, the Government has decided that it will not try to abolish the House of Lords’ veto over statutory instruments.

While the Parliament Act 1911 removed the Lords’ veto over Acts of Parliament, it did not make any provision for statutory instruments, so they can still be blocked by peers. In practice, the upper house’s veto over secondary legislation is rarely exercised (peers have only rejected seven statutory instruments since 1950).

This power became a matter of controversy last fall when peers voted to delay the Government’s proposed tax credit cuts. At the time, Ministers were adamant that the Lords’ veto needed to go, and they asked Lord Strathclyde (a former Leader of the House of Lords) to come up with an alternative. He recommended that the absolute veto be replaced with a suspensory veto.

The problem with this is that peers are actually quite good at scrutinizing statutory instruments. In fact, they’re arguably better at it than the Commons. As the Hansard Society points out, Lords committees are more engaged and more influential, and individual peers are more likely to delve into the minutiae of statutory instruments. The Lords’ veto ensures that the Government must engage with their criticisms, and its abolition would lessen ministerial accountability. In theory, MPs could provide the same level of scrutiny, but that would require some substantial changes to the way the Commons transacts its business, and the Government has every reason to preserve the status quo.

The Lords’ veto over statutory instruments provides a meaningful check on the Government’s power. As long as peers continue to use it judiciously, there is no reason to get rid of it.

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