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The issue of whether the government would allow Parliament a vote (it seems as though it will) and whether any such vote will be meaningful (it won’t be) has dominated Brexit coverage since the referendum. This has been a distraction from the main event – not least because the EU Withdrawal Act makes any vote meaningless. When the Conservatives and Labour whipped their MPs in the same direction, they whipped away Parliament’s power and gave it to the EU and UK government.

The place where Parliament has actually had most success is not  taking back control of what’s happening, but actually finding out what’s going on (or not going on). This was symbolised by the apparent success last month in forcing the government to release the 58 studies about the likely economic impact of Brexit.

MPs and the public first got wind of these ‘studies’ back in the summer when David Davis mentioned them on the Andrew Marr show: (see p.11 of this transcript):

“That  data’s  being  gathered,  we’ve  got  50,  nearly  60  sector  analyses already done, we’ve got planning work going on in the customs,  we’ve  got  planning  work  going  on  22  other  issues  which  are  critical,  127  all  told.  All  of  them  have  got  to  be  grounded  before  we come to a conclusion what it looks like.”

Repeated FOI requests for the studies by the MEP Molly Scott Cato and others failed, as the government appeared to argue it would undermine their ability to negotiate (and there are certain protections under FOI that might support this rather bland statement).

In November, Labour then used an obscure piece of parliamentary procedure to force the government into releasing its Brexit impact studies, as this blog by Andrew Defty explains. Using a motion for a return, Labour ‘transformed a non-binding opposition day motion into a binding resolution of the House’ (see more on these here in this 1999 report Section 3 (ii)).

However, the government then responded with an admission (or confession) that the ’50’ or ‘60’ – or possibly 127 – pieces of analysis are not what they seem: “As we have made clear, it is not the case that 58 sectoral impact assessments exist”. The statement went on to explain that the papers are a

“… wide mix of qualitative and quantitative analysis, contained in a range of documents developed at different times since the referendum. It examines the nature of activity in the sectors, how trade is conducted with the EU currently in these sectors and, in many cases, considers the alternatives after we leave as well as looking at existing precedents. This analysis ranges from the very high level overarching analysis to sometimes much more granular level analysis of certain product lines in specific sectors.”

At some point, a discerning reader could conclude, Davis was being ‘economical with the truth’. Either the impact studies exist (or existed) in some form, or they didn’t. It now seems that ‘Brexit studies’ doesn’t mean, as it were, ‘Brexit studies’. And whatever they are, they won’t be fully released (though the ultimate power may lie with the DExEU committee here).

Back in July of 2016, when Brexit meant Brexit and Theresa May had a majority, her new government asserted that it was for government to declare and trigger article 50 and then conduct the subsequent negotiations in a confidential way. The government were keen to keep things closed and secret. There was to be, famously, no running commentary.

In September 2016 Davis, the new secretary of state for Brexit, made it clear the limitations of any openness, saying he would be “as open as I can. More accurately, the Government will be as open as they can”. He argued that it may be ‘the most complicated negotiation ever’ but there would be ‘debates, reports by Select Committees and hearings’ and he promised:

“We will certainly match and, hopefully, improve on what the European Parliament sees. At given times, that will be tactical, I am afraid. I do not want to be boring about it, but this is likely to be the most complicated negotiation of modern times. It may be the most complicated negotiation of all times. By comparison, Schleswig-Holstein is an O-level question. We will not always be entirely free agents, but we will be as open as we can be.”

He also spoke of the impossibility of secrecy:

“… I will seek to be as open as is possible…Even were I to decide that I was going to behave like Rasputin and keep it all entirely secret, I would fail. It would not be possible… other Governments would do it. In the Government’s own interest, it is a better idea to be more open than is perhaps traditional, but always subject to the overriding point that we cannot pre-empt the negotiation.”

 In October the report from the House of Lords EU Select Committee took a rather stronger view of what right Parliament had (2016).

“One of the key objectives of parliamentary scrutiny is to ensure transparency – to cast a light on the actions of the executive. It is, we suggest, essential that many elements of the forthcoming negotiations – for instance, negotiations affecting acquired rights, or future cooperation between UK and EU police forces—should be conducted transparently.” (House of Lords EU 2016a).

Since then, Parliament has been the key to shining more light on Brexit. The sheer volume of investigation and scrutiny can be seen below:

Scrutiny of Brexit by Parliament, 13 July 2016 – 19 June 2017

Written questions 490
Written answers 819
Select committee inquiries begun 55

(House of Commons/UK Parliament: IFG)

 

Select committees launched more than 55 inquiries into various aspects of Brexit, though some were curtailed by the June 2017 General Election. In December 2016, the Liaison Committee was the first body to subject the Prime Minister to detailed scrutiny of the government position on Brexit revealing, perhaps inadvertently, that her approach was one of secrecy and that she appeared unaware of how exactly article 50 functioned. In one day in November 2017, in a ‘bumper day for select committees’, six select committees questioned different officials and Ministers on various aspects of Brexit. In March 2017, the new DExEU Select Committee scrutinised the government’s objectives and positions and questioned Davis, who confessed there had been no preparation for what would happen in the event of Brexit talks breaking down and that any financial settlement will favour the EU. The debate around the European Union (Notification of Withdrawal) bill from January to March 2017, triggered by the Supreme Court ruling, also gave a focus to discussion and debate and revealed more about the prospects and government plans.

All this pressure has given us far more information that the government seemed prepared to give before. We have had two major Prime Ministerial speeches and one, heavy, evidence session (with another due December 20 this year). Ministers have appeared and explained (and sometimes contradicted each other) regularly. We’ve also had a Brexit White Paper (that, you’ll be pleased to know, gave us all 14 weeks holiday a year).

Brexit has not, of course, been fully opened up by Parliament. The government refused some of the more transparent options, such as a cross-party approach via Royal Commission, in 2016 and again in 2017. The January White Paper was described as ‘largely devoid of content because the UK government’s concern about negotiating secrecy’ and offered ‘as few concrete positions as it is possible to imagine’. The government also resisted Parliamentary motions to mandate regular updates on Brexit to Parliament in the future.

Nevertheless, Parliament was key in forcing appearances. Far more is known than before, and benchmarks have been lain down with the legislature’s action leading to far greater understanding of the government’s views and preparation. And here is what has proved so damaging: the lack of preparation. Westminster’s digging and pressure have revealed not what has been done but what has not been done. There is no hidden grand plan, but a void at the heart of government thinking on the most important event in the last 60 years. And this is what the ‘58’ studies symbolise. As General Montgomery once said: “I have not been told of any master plan and I must therefore assume there was none.”

See my paper ‘Brexit and Open Government in the UK: 11 Months of May’ (June 19, 2017). Available at SSRN: https://ssrn.com/abstract=2988952

As the Exiting the European Union Committee (once more) debates the 58 Brexit Studies with David Davis, two Birkbeck Politics academics reflect on what the struggle between Westminster and the government tells us about power, Parliament and Brexit.

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Dr Dionyssis G. Dimitrakopoulos

Governing is (perhaps) not what it used to be but there are some things that have not changed much.  The possession and significance of privileged information is one of them.  Distributing and (more broadly) utilising sensitive information is part of the tools of government.  That is why one of the most significant concerns of parliaments in democracies is getting hold of this information.  Without it, there is no way they can hold government to account.  But even in the absence of this oversight, the credibility of a government’s position is at stake. Without credible information (indeed, without information that is known to be credible), how can a government formulate good public policy?  This was at the heart of the previous coalition government’s now forgotten review of the balance of competences between the UK and the EU. A key reason why it was barely mentioned after its conclusion was the fact that it did not fit the narrative that the Conservatives wanted to construct in relation to the UK’s membership of the EU. The credibility of government-held information is more important in the context of controversial negotiations like the one that the UK government is currently conducting with the European Union (first) in relation to the terms of the UK’s exit.  A large part of the controversy that surrounds the referendum is built on the systematic use of lies by supporters (including ministers) of the winning side.  Now that they must deliver on their promises, the fundamental weakness of their arguments is beginning to show.  This is demonstrated, for example, by the government’s acceptance of the EU’s preferred sequencing and the reported acceptance of the EU’s calculation of the UK’s legacy debts (usually and misleadingly referred to as ‘exit bill’), i.e. the expected costs to which the UK has agreed whilst still a member of the EU.

Until the earth-shattering news of Meghan Markle’s engagement to Prince Harry, the debate inside the UK on the ongoing Brexit negotiations was dominated by the thorny issue of Northern Ireland and the impact of Brexit on the British economy.  The British Parliament managed to extract from the government a commitment to share hitherto unpublished sectoral studies that assess Brexit’s likely impact on several sectors of the British economy.  The latest twist in this sorry and lengthy saga – which highlights, instead of concealing, as the UK’s Conservative government intended, the weakness of its negotiating position – saw the government effectively refuse to reveal this information to British parliamentarians.

This may come as a surprise to many but it is perfectly in keeping with both the country’s enduring constitutional settlement and the Conservative Party’s – especially its loudly Eurosceptic wing’s – duplicitous stance on the issue of parliamentary sovereignty.  Although Westminster is frequently referred to as ‘the mother of all parliaments’ one must be careful for the system is neither balanced, nor is it characterised by the centrality of Houses of Commons and Lords that its title suggests.  As early as 1867, Walter Bagehot was observing that ‘[i]n England a strong Cabinet can obtain the concurrence of the legislature in all acts which facilitate its administration; it is itself, so to say, the legislature’.  He noted that ‘[t]he efficient secret of the English Constitution may be described as the close union, the nearly complete fusion, of the executive and legislative powers’.  One of the ways in which this fusion is achieved is highlighted in RHS Crossman’s famous introduction to the 1963 edition of Bagehot’s classic book:

Once elected by the Commons the Prime Minister exerts power greater than those of any American President […] In this new middle class regime, in fact, the nation is run by a board of control headed by a powerful managing director’.

But even if one ignores the real and enduring balance of power between the British executive and legislature, it would be unreasonable to expect a UK government to bend to the will of parliament on matters European given the historical precedent.  As I have argued in detail in an article in the Journal of Common Market Studies, acting in a comparable context in the early 1990s again under a Conservative government with a slim majority in the House of Commons, an arrangement put in place in 1980 obliged the government of the day to (normally) refrain from giving its assent to EU legislative proposals as long as the parliamentary scrutiny of these proposals in Westminster had not been completed.  Crucially though, the government retained the right to decide that due to ‘special reasons’ – agreement at the level of the EU need not be withheld (House of Commons Debates, vol. 991, 30 October 1980, col. 843). It was – and is – up to the government of the day to make that decision and all they need to do is simply explain these reasons in Parliament.  In other words, one should not be surprised by the current government’s stance. It is consistent with the essence of the UK’s constitutional arrangement as well as the ruling party’s tradition, no matter what Conservative Eurosceptics said when they were not running the country.  If Brexit is about ‘taking back control’, why not share with our elected representatives these impact studies?

In reality, the current government’s real problem lies in either a) the really bad news that these studies would reveal to the British public or b) the weakness of way in which these studies were constructed.  Either way, the government’s dogged fight to conceal them is much more revealing than they want it to be.

Follow the author and Birkbeck’s Politics Department on Twitter: @DGDimitrakop @bbkpolitics

A copy of the Bill to trigger article 50, in front of the Houses of the Parliament in London.

     (image from nigel AdamsMP  http://www.selbyandainsty.com)

The European Union (Notification of Withdrawal) Act has received Royal Assent, signalling the complete capitulation of Parliament to the government’s claimed authority to set the terms of Brexit, despite the Supreme Court’s best efforts. In passing the government’s Bill unamended, the House of Commons bowed not to the will of the people but to the will of the government to promote a particular approach to implementing the outcome of the referendum. The government has apparently decided on a ‘hard Brexit’. There is surely a majority in the House for a softer version, but MPs proved incapable of organising themselves to set the agenda and vote for that.

It is a puzzle why the government is apparently intent on propelling the UK towards the hardest form of Brexit, and why Conservative Remain MPs have allowed this to happen. The most charitable interpretation is that the government’s position is a bargaining strategy. To have any hope of getting other EU members to agree to a special relationship, the UK has to make it appear credible that it will walk away without an agreement. This, incidentally, makes it vital that Parliament is not allowed to vote on the final deal or non-deal, as it would surely reject a non-deal, and EU partners know this. Whether the bargaining strategy will work or not, we will find out, but there is an uneasy sense that the UK is playing chicken with a juggernaut. It will be very difficult for the other twenty-seven to find the flexibility that the UK demands.

The constitutional issue that this raises concerns the government’s power to negotiate on behalf of the UK without parliamentary constraints. The judgments in the Miller case clarify this power. Even while the judges determinedly stated and restated the principles of parliamentary sovereignty, they all agreed on the existence of executive prerogative in the area of international relations. Prerogative powers, as the majority judgment puts it, relate to ‘important areas of governmental activity which .. are essential to the effective operation of the state’, including foreign affairs: diplomatic relations, the deployment of armed forces abroad, and the making of treaties.

The judgments in Miller turned on the question of whether this prerogative power could be invoked to end the UK’s membership of the EU. The majority held that the government could not invoke its authority over foreign affairs in dealing with the EU, as EU law has become part of domestic law. To treat EU membership as a matter of prerogative would be to assert prerogative powers to change domestic law, and that is untenable. Parliament makes the law, not the executive. But here the legal position comes up against the realpolitik of negotiation, and it is surely this that meant there was no rebellion on the Conservative side, with the lonely exception of Ken Clarke. Conservative MPs with Remain constituencies followed the logic of power that has served their party well for a century: their government is leaving the EU and their task is to ensure that it has the bargaining power to do so on the best possible terms.

The finding that EU law is part of domestic law has important practical effects. A remarkable achievement of the EU is that it has replaced diplomacy and executive discretion in international relations with a system based on law. While this legal system is integrated by the supremacy of the Court of Justice in Luxembourg, it is first and foremost a system based in domestic law, routinely accessible to businesses and citizens. The effect is that a UK-based business which finds itself excluded from trading or operating in another state can challenge the regulatory authority that is obstructing it in the courts of that state. The British government need not get involved; indeed, very often the higher echelons of government in the other state do not get involved either. They can leave the question to the relevant regulatory body, which wins some cases and loses others in its dealings with its own business community and citizens, and has the same relationship with those based abroad (provided they are in the EU).

In its Brexit plans, the government has been forthright in its determination to leave this system. Bringing an end to the jurisdiction of the Court of Justice is the main subject of chapter 2 of the Brexit White Paper, ahead of controlling immigration (ch 5) and ensuring free trade (ch 8). In future, aggrieved citizens will have to turn to their consulates. Businesses that find their market access blocked by a regulatory agency will have to ask the UK government to take up their case, instead of being able to seek the protection of EU law in the courts of the country that has blocked them.

A charitable interpretation of the government’s strategy is that it is trying to secure a strong negotiating position; a less charitable interpretation is that senior members of the present government fundamentally reject an international system based on law. They prefer bargaining and diplomacy to the settlement of disputes by independent authorities. One explanation of this preference is that judicial settlement of international disputes has a tendency to spill over into areas of domestic law which have no apparent cross-border aspect. Indeed, it is arguable that the Court of Justice has done little to prevent this spillover, as it has over time given up the self-restraint that confined its decisions to matters with cross-border effects. Still, the hostility of the present government to judicial authority is striking. Courts are, apparently, all tarred with the brush of progressive liberalism. The Court of Justice has blotted its copybook with the British government with decisions upholding the rights of EU migrants to receive social security benefits. This is small beer financially and economically, compared with, say, the same Court’s decision that the City of London must have non-discriminatory access to the euro derivatives market, but the government seems unable to weigh up the gains and losses in a rational way.

Brexit will mean the replacement of law by diplomacy in economic relationships with the EU. Diplomacy is an area of prerogative power; leaving the EU will enlarge the domain of this power. The national sovereignty that is being reclaimed by Brexit is not parliamentary sovereignty: it is executive authority. What is at stake is not parliamentary power, but the balance of power between a judiciary that is part of a supranational legal order on one hand, and the executive (and the legislature it dominates) on the other. The primary impact of leaving the EU will be to reduce the authority of the judiciary and and increase that of the executive.

We will not see international relations widely discussed and debated in Parliament: it is an area where secrecy prevails. The Supreme Court did its best to allow Parliament to have a say on Brexit, unequivocally rejecting the claim that the referendum result could be put into effect directly. Parliament’s capitulation shows us how referendums really work. They permit the expression of a general ‘will of the people’, but the people’s will is susceptible to interpretation, and it is the political executive that has seized the power to interpret. Parliamentary democracy and the rule of law are squeezed between the general will and the strategic executive, between the moment (but only a moment) of democratic expression and the long-drawn-out process of closed door negotiations.

This is a shortened version of a forthcoming Commentary in the journal Political Quarterly. The full text can be found at http://www.pqblog.org.uk/2017/03/parliamentary-sovereignty-and-brexit.html

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May’s Prime Ministership will be forever defined by Brexit. It is now her fate, destiny and the task that will be her legacy: and it will send her to the top or the bottom of the Prime Minister rankings.

On 20th December, just before Christmas, we got perhaps the most information yet when the Prime Minister made her first appearance before the House of Commons Liaison Committee-read it here and see it here. Overall, the session seemed to veer between ambiguity, wait-and-see and vagueness with immigration the site of a very tense encounter with Yvette Cooper (see Q48-56). So what did we learn? There will be speech in January and a plan published at some point soon but what did the appearance itself tell us?

  1. May still thinks secrecy is the best policy

Despite all that has happened since July, the government will still seek to keep their plans, priorities and intentions secret, or at least preserve as much secrecy time as possible. May’s answers were studded with phrases such as ‘I look forward to going into more detail about those early in the New Year’ and ‘when we feel that it is appropriate to give any indications of those details, we will do so’ and the wonderfully uninformative ‘you will see what we publish when we publish it, if I may put it like that’ and ‘negotiations are negotiations’. May’s secrecy could be habit or style or, as commentators such as David Allen Green have argued, is less about concealing positions from the EU 27 and more about managing domestic expectations and papering over deep divisions within her Cabinet.

  1. May wants government in charge

Again, despite all that has happened (and what could happen next) May seemed determined to make sure government was in charge-parliament can discuss but not decide. She announced that ‘it is my intention to ensure that Parliament has ample opportunity to comment on and discuss the aspects of the arrangements that we are putting in place’. This exchange showed the limits of what Westminster would be allowed to do:

Chair: Is it your intention that Parliament should vote on a final deal once it has been negotiated? This was a question put to you earlier.

Mrs May: It was a question put to me earlier, and what I have said is that it is my intention that Parliament should have every opportunity to consider these matters. What I am also clear about is ensuring that we actually deliver on the vote of the British people, which was a vote to leave the European Union.

Chair: Okay. Again, was that a yes or a no?

Mrs May: I gave the answer I gave, Chairman.

  1. Is May making some wiggle room?

The discussion was studded with ambiguities. There was mention of ‘practical changes’, ‘practical aspects’, ‘there may very well be practical issues that have to be addressed’ or ‘it’s a matter of practicality that we need to discuss with the European Union’ and the classic ‘these are matters of detail that would need to be looked into’.

  1. Is May a master of the detail?

Perhaps the point that should cause most concern is that May is not fully in charge of the detail. Towards the end of the session the Chair corrected what appeared to be an erroneous interpretation of article 50 by the Prime Minister.

Chair: But you didn’t completely rule out completing the negotiations within the negotiating period but applying an implementation date at some point after 2019. That is specifically provided for in the treaty—that is article 50(3)—and that is what I am seeking clarity on.

Mrs May: Article 50(3) is not about an implementation phase. It is about an extension of the period of negotiation.

Q97 Chair: Well, I think that is a matter of interpretation. Let’s just read it out. “The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement”, so that date of entry into force of the withdrawal agreement can be after 2019. Indeed, it is generally understood to be capable of that interpretation by most people who have looked at it. That is why I have been asking you this question. I just want clarity about that question.

Mrs May: Sorry, Chairman; in that case, I misunderstood the question you were asking me earlier, because I thought you were asking me about the reference at the end to the European Council agreeing with the member state that the period be extended.

Q98 Chair: That’s the negotiating period.

Mrs May: That’s the negotiating period, yes.

Q99 Chair: You did give a very clear answer to that question. I am asking you a different question, Prime Minister.

Mrs May: I would expect us, as I hope I tried to answer in the first place, to be able to negotiate a deal within the two-year period that is set out.

Chair: We are all agreed on that.

Mrs May: But it may be the case that there are some practical aspects which require a period of implementation thereafter. That is what we will need, not just for us but for businesses on the continent and others, but that has to be part of the negotiation that is taking place.

Q100 Chair: I quite understand, and that is what you said earlier. Just to clarify, you may therefore seek to use the discretion provided by article 50(3) to negotiate an implementation date after the end of the completion of the negotiations, even if the negotiating period is within the two-year framework.

Mrs May: We will discuss whether we need an implementation phase. The point at which the treaties cease to apply may be a different issue from whether or not you have got an implementation phase.

Perhaps the confusion was due to nerves, poor briefing or misunderstanding. This is the most charitable interpretation, though even that is rather worrying given that the Liaison committee is nothing as to the sort of pressure she will face behind closed doors and in the glare of the media as Brexit gets under way.

The fact that the Prime Minister appeared to look again at article 50 in her folder, after having misunderstood it, could tell us of a deeper problem. Remember Theresa May was to be the ‘introverted master of detail’ whose forensic skills would see us through, yet she appeared not to know off by heart the 261 words that will dominate Britain’s future-and misinterpreted them and ducked when challenged. This may be a blip or could be the shape of things to come.

 


There may be trouble ahead… EPA/Andy Rain

David Cameron’s 2015 election victory is all the more powerful for being almost completely unexpected. But as the euphoria dissipates, the obstacles in his path are coming into focus. Above all, he faces two tricky and complex problems: the promised EU referendum and future arrangements with Scotland (and by extension, the other parts of the UK).

The EU referendum was in large part a gamble to see off UKIP and settle his party, but now he looks likely to do it as soon as possible, perhaps even in 2016, banking on a status quo bias to keep us in. And on Scotland, he has committed to implement further devolution and push through the jointly agreed Smith Commission proposals. In both cases, the devil’s in the detail.

On the EU, lots of the specifics are unclear. We don’t yet know what the question on the referendum ballot might be, or what “reforms” to the EU will convince us to stay – and the coming struggles over them promises to be vicious.

On Scotland, it is about giving the new SNP stronghold “the strongest devolved government in the world” – but there will be a need, as Nicola Sturgeon put it, to discuss these issues in more detail (and ditto for Wales). Devolution may also flow back into the Europe debate – Cameron has already refused a separate EU referendum for Scotland but could he hold that line?

On both these pressing matters, Cameron is up against assorted bodies and people who could make his life harder. They can all be dealt with separately, but if they join forces, they could drain Cameron’s political energy and time – the two things a prime minster can least afford to lose.

Houses divided

Cameron’s majority is 12 (or actually eight or 16, as Colin Talbot points out. This is far better than most expected, but it depends on the solidarity of an increasingly rebellious party.

The trouble for Cameron is that parliamentary rebellion is habit-forming: the more you rebel more likely you are to do it again in the future. And the last parliament was the most rebellious since 1945 (here are its top seven rebellions against him).

This bad news gets worse: the two biggest issues that Conservatives rebelled over were constitutional matters and Europe – the two most urgent problems for the next five years. Party management and discipline will be crucial, but even that may not stave off problems if Cameron’s majority is whittled away over time. Just ask John Major, whose 22-seat advantage in 1992 withered to zero by the end of 1996.

The new block of 56 SNP MPs has limited practical power in the Commons, but its members can still use their electoral dominance and high media profile to keep Scotland high up the agenda. And in the event of a Tory rebellion, or a vanishing majority, the opposition parties’ ability to co-ordinate could determine Cameron’s room for manoeuvre.

Don’t forget the House of Lords

The House of Lords is often overlooked, but its potential power to delay and disrupt a government agenda is great – and growing. As Meg Russell demonstrated, since 1999 the Lords has clearly started to feel more legitimate and more prepared to defeat the government: its members did so 11 times in 2014-2015 and 14 times in 2013-14.

The Conservatives are now heavily outgunned in the House of Lords, with 224 peers facing off against 214 Labour ones, and 101 (presumably livid) Liberal Democrats and 174 cross-benchers-as Meg Russell explains here.


Dark times. Robert Pittman/Flickr, CC BY-ND

The Lords will be duty-bound to pass an EU referendum bill due to the Salisbury Convention, which means the Lords have to pass manifesto policies. However, there are plenty of other venues for lawmakers to vent their anger or disrupt the government’s timetable for other parts of its reform programme. Select committees in both the Lords and Commons expressed concerns at the lack of consultation on the Smith proposals, boding ill for the constitutional arguments ahead. Concern in one house triggers worries in the other, so wherever it crops up, Cameron will need to take it seriously.

Outside parliament, it remains to be seen whether the eurosceptic right-wing media will be satisfied with any concessions or reforms Cameron gets from Brussels. It may prefer to give the oxygen of publicity to the SNP (particularly the very media-savvy Salmond) and treat us to a long and fascinating Cameron-vs-Sturgeon battle royale.

Cameron also invoked English nationalism in the election campaign, going so far as to launch an England-only manifesto, but it remains to be seen if he can channel and control the mounting pro-English clamour in the right-wing press over the coming months while simultaneously making concessions to Europe or Scotland.

Finally, of course, are his rivals. Behind Cameron are a number of senior Conservatives with at least semi-public leadership ambitions. He’ll have to manage them with precision. In the almost certain event of an EU referendum, he would have to make a very tough choice: whether to ask all ministers to all support staying in, or as Harold Wilson did in the 1975 referendum, to let everyone temporarily agree to disagree.

Equally, there’s no knowing how Cameron’s discontents and potential rivals might react to new devolution settlements. Perhaps the future leadership contenders are already plotting to court English nationalism for party and media favour.

Cameron’s leadership capital is high for the time being, but with so little room for division, his promise to step down by the 2020 election may come back to haunt him. As he seeks to deal with the “Scottish lion” and slay the EU dragon – or at least negotiate with it – everything could get complicated and intensely political very quickly.

Originally published on the Conversation.

 

 

In the wake of the latest ‘Cash for Access’ revelation, Ed Miliband has committed to limit MPs outside earnings to £10,000 per year and introduce a ban on all second jobs. The Labour party will start tomorrow, using its opposition day to propose a bill on the subject. These proposals fit with a series of steps since the 1990s designed to open up and regulate this area as controversy has grown about extra earnings and work. But how will these latest changes impact on MPs and the public?

In terms of MPs, the two issues are whether the new proposals will be implemented and whether they will work. Implementing a ‘cap’ and (eventual) ban on outside earnings would represent an easy win for a new Labour government in 2015, a symbolic step that would have ‘signalling effect’ for the new government’s attitude towards such behaviour. On a more partisan level, it will hit Conservatives much harder than Labour. Research by the Guardian indicates that this would impact on 63, or 1 in 5, Conservative MPs who currently earn over £63,000 as against only 20, or 1 in 12, Labour MPs. You can see more numbers from the Telegraph here.

However, it all may depend on whether Ed Miliband has the numbers in the new House and what politics exists around the change. As Meg Russell pointed out, a number of things need to align for any reform of Parliament to happen – a mixture of a relevant crisis, political will and the right context. Remember David Cameron’s cutting down of the House of Commons to 600 MPs?

The second question for MPs is whether it will work. The reforms are part of a longer trajectory of change towards regulation and transparency. The danger of is that such change can drive poor activity into hard to reach places, away from publicity and into dark corners. It could also trigger other unwanted debate, such as around what MPs do with their time or, more disturbingly, Members getting a pay rise – new Prime Minister Miliband is not likely to want to propose bumping up salaries to £150,000.

What of the public? The new proposals are designed to help increase trust and put an end to lobbying scandals. One basic question is whether the public will notice. It is claimed that few even know the name of their MP, though recent research has challenged this. The public does support a complete ban on second jobs (see page 6 of this polling) and, as research by Rosie Campbell and Philip Cowley shows, they do not approve of wealthy MPs, objecting to both the ‘sums and the source’, with a particular dislike of directorships. Their experiment concluded that any sum of money earned while an MP, whether above or below the cap, is problematic.

Whether this will then increase public trust is a far bigger, and more complex, question. It may reduce the space or room for manoeuvre in this one area. However, hopes of ‘improving trust’ over-simplify how we think and process information-the MPs’ expenses scandal ‘confirmed’ to many that MPs were corrupt rather than ‘revealed’ it to them. Voters generally suffer from  a negativity bias and the continual string of ‘cash for…’ revelations are likely to have fed already deeply held views about UK politics. Nor will it end other sources of Parliamentary controversy, from the revolving door to the picking of leaves. So while it may help change behaviour, looking at the graph below, it appears unlikely any one thing can dramatically improve trust in MPs.

Worthy fig 1

Source: Ipsos Mori; House of Commons Library Research

This was original posted on the LSE Politics and Policy blog

Ben Worthy is a Lecturer in Politics at Birkbeck College, University of London..

 

Lewis Whyld/PA

Originally posted on the conversation

The former culture secretary, Maria Miller, is the latest in a series of MPs to have been caught up in an expenses controversy. The issue of what parliamentarians do with their allowances has now embarrassed or damaged a great many MPs, from Gordon Brown downwards. In a few cases, as with Miller, it has led to resignations. It has also, for a few, led to prison.

Since the first revelations in the Daily Telegraph in May 2009, which saw parliament lose its speaker, there has been a continual flow of expenses-related stories. In 2011 Liberal Democrat MP David Laws resigned; in 2012 Labour MP Denis MacShane stepped down (and was later imprisoned); and in 2013, George Osborne (and many others) were exposed over their use of first-class train tickets.

In parallel, there were rows over the MPs’ pay rise and the continued existence of IPSA, the independent regulator. Scrutiny of allowances has also been seen in local government, the police and even universities. But expenses revelations don’t always end in resignation or prison. What makes each case different?

How it gets out

The first difference is how someone is found out. The chain of accountability is often complicated. Just after the scandal, David Cameron himself said:

What the Daily Telegraph did – the simple act of providing information to the public – has triggered the biggest shake-up of our political system. It is information – not a new law, not some regulation – just the provision of information that has enabled people to take on the political class, demand answers and get those answers.

Actually, finding the information can be trickier than it looks. Far from being a “simple” story of “information provision”, the expenses scandal is a great example of how difficult it can be to bring information to light.

The FOI request for a selection of MPs’ expenses was first made in 2005. It then took a four-year campaign by journalists using FOI laws, the FOI appeal system and then the courts. The information was finally released by a very old-fashioned mode of disclosure: a leak. Interestingly, according to the original Telegraph story, Miller’s expenses problems appear to have stemmed from a well-placed tip-off rather than detailed public scrutiny.

The next step, “demanding answers”, can be just as difficult. Once information is disclosed, holding the MP in question to account requires the right context and environment. The level of media interest and the “amount” of wrong done determines how any scandal unfolds, and what (if any) price the politician pays.

Who did it?

The second factor is, of course, the individual politician involved. Who the politician is, how they react, and the media and public view are all crucial. George Osborne was unlikely to suffer more than blushes over his minor train ticket kerfuffle, and was very well protected. It may even have helped that he had history of previous minor “slip-ups”. Miller’s situation was far more precarious. Her very brief first apology and apparent attempts to “influence” the press and commissioner worsened the situation. Her actions lost the support of the party; just as importantly, her position at the centre of the Leveson reforms made her unpopular (to say the least) with large swathes of the press.

Five years on from the storm of 2009, the expenses issue continues to bubble away under the surface of Westminster politics, occasionally bursting to the top unpredictably as the result of leaks, tip-offs or assiduous research and throwing up sudden squalls of varying ferocity. When controversy reappears, the exact effect depends on many things: how the information was obtained, how it is then used and who it relates to. The only certainty is that we haven’t heard the last of expenses yet.

Ben Worthy teaches on the Parliamentary Studies module at Birkbeck.

One of the key tasks of any Parliament is scrutiny. But what is scrutiny? What makes it effective and how does it work?

Jessica Crowe from the Centre for Public Scrutiny gave us an insight as part of our Parliamentary Studies course. Parliament has recently altered its scrutiny powers but what effect has it had? Many things can hold back Parliament from scrutiny from party loyalty to lack of resources or lack of tools. Jessica measured Parliament’s performance against the CFPS’s own key principles of good scrutiny: that it serve as a constructive ‘critical friend’, amplifies the voices and concerns of the public, is led by independent people who take responsibility for their role and that it drives improvement in public services.

In Parliament, scrutiny comes in different forms, from formal arenas to informal pressure. We often see the high profile, attention grabbing scrutiny, such as the recent questioning of the heads of MI5 and GCHQ. This grabs the headlines and can initiate change. Yet it can also be counter-productive. In a highly political and adversarial place like Parliament, such scrutiny may look like, and may be, an attack. The danger is that ‘political theatre’ and point-scoring can replace proper scrutiny that ‘voices concerns’. Moreover, such behaviour can provoke resistance rather than change.

Yet there is more informal, more subtle sorts of scrutiny. This may be picking up on gaps or pointing out mistakes. It is what the Centre calls the ‘critical friend’ approach-questioning but constructive. The legislative change around mobile homes in 2013, calmly pressured for by the Communities Select Committee, was a nice example of a more soft but successful approach. This is also an area where the House of Lords performs well, though it usually gets little attention, as Lord Norton points out here.

The Wright reforms of 2010 have strengthened Parliament’s scrutiny powers in numerous ways, giving backbenchers and Select Committees more power and control. However, problems remain, particularly in the involvement of the public where the new e-petitions site appears to have evoked sound and fury without too much to show. Other Parliaments such as the German Bundestag may offer a model.

Jessica pointed out that, closer to home, one place Parliament could learn from is local government. Since 2000 a series of reforms have sought to make local government scrutiny better (see this report). Local government is typically less partisan, managing to successfully balance voicing concern while remaining a critical friend. As with many areas, local government is also a site of experiments and public involvement. Jessica pointed to the success of Boston, where the controversial local issue of immigration was confronted through a wide ranging local government discussion with residents (see here and other examples here). Perhaps the future of scrutiny is local.

The department would like to thank Jessica for an interesting and thoughtful talk. Thanks also to Dr. Meg Russell for her help and input.  You can see Jessica’s blog and slides here and visit the Centre for Public Scrutiny here.

 

 

Here’s a first puzzle from our Parliamentary Studies Course.

On one level the answer to this question is obvious. Parliament, of course, makes the law. It is a ‘legislature’. It is where all those making the law gather. It’s the place where laws or Acts are passed. Technically speaking the House of Commons, House of Lords and Monarch together make law. So why would we ask?

As Philip Norton points out, legislatures may be slightly misnamed. If you ask a slightly different question, such as ‘who is responsible for most laws that get passed?’, the problem becomes a bit clearer. The government is responsible for most of the legislation that goes through Parliament, probably 95% per cent.

The government generally has a majority in the House of Commons that can (generally) get legislation through. Not always, as MPs can rebel as we saw over Syria. But generally government gets its way. It also controls most of the timetable, making it doubly powerful. The House of Lords can only delay and the Monarch hasn’t refused since the Eighteenth century.

This means that Parliament doesn’t make legislation. It gives assent. So it legitimises or authorises the law that the government wants.  The question is whether this matters?

It matters if you think about what Parliament can do. The UK Parliament cannot, except in very unusual situations, ‘stop’ a government. The Lords can only delay legislation and the Commons has a majority of pro-government MPs subject to party discipline and loyalty (though they are getting much less loyal). We could not see a US shutdown or gridlock.

It matters if we are researching Parliament. It means Parliament cannot normally make law but it can have an influence on the legislation pushed through by government. Occasionally the House of Commons or Lords can temporarily block or cause obstacles  but it is very rare that you ‘see’ influence like this-only when something goes wrong, like over reform of the House of Lords. More subtly, it can and does exert influence on a daily level in other ways-the informal quiet route, through amendments, questions and debates.

It may also matter a great deal for public expectations. If the public expect Parliament to be making laws and just see the government pushing through what it wants they may feel a little bit disappointed. The confusion among the public around what Parliament does or does not do may stem from this.

So Parliament has many roles and much influence, some subtle, some not so subtle. But it doesn’t really make the law.

Parliamentary Studies is a new course for 2013 that is jointly run by the Department of Politics at Birkbeck and the Parliamentary Outreach team. The course includes talks by officials from Parliament as well as guest lectures by a journalist, an MP and a Peer.  As part of the course we are holding a seminar open to all:

‘Holding to Account: How Effective is Parliamentary Scrutiny?’

Jessica Crowe, Executive Director of the Centre for Public Scrutiny

6.30 pm Thursday 7th November

Room 633, Birkbeck main building

Free and open to all.

 

The House of Lords is one of the great conundrums of British politics. Every radical government since 1911 has tried to reform it, with varying degrees of success. Yet it still remains, 102 years later, unelected, half reformed and, to some, a matter of ‘unfinished business’. The House of Lords is now increasingly packed (if not after the recent ‘top up’ full to the brim) with political appointees. Any new attempt at change faces two obstacles: the lack of agreement in the House of Commons and a lack of interest among the public. Continue reading