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We should always be careful when an adjective like ‘great’ is attached to a piece of law in Britain. The Great Reform Act of 1832 wasn’t that great and the Glorious Revolution of 1688 wasn’t very glorious and wasn’t a revolution.

Theresa May’s proposed Great Repeal Act of 2017 could join these misnamed changes. Its essential purpose is to take, in one heave, all EU law and turn it into UK law the instant we finally Brexit. One commentator described it as a huge legal cut and paste job. However, even this underwhelming cut and paste could cause all sorts of political and constitutional problems as this blog explains. So here’s six questions that might determine how the ‘Great Repeal’ goes:

  1. Will the House of Commons oppose it? It’s unlikely the Great Repeal Bill will be rejected outright (though it could be). More likely is that MPs could disrupt its progress and use procedure and process to slow it, question it and possibly amend it. There are around 500 MPs who are pro-EU and 100-150 or so confirmed Brexiters. May can whip it through (see 2) but those numbers, to me, spell trouble.
  1. Will Conservative MPs rebel? May has a majority of just 16 and many of her backbenches are unhappy and could use the bill to let the Prime Minister know. The ghost of John Major and Maastricht still stalks the backbenches. Remember, it wasn’t that Major lost votes but the constant media speculation that eroded his authority.
  1. Will the House of Lords oppose it? Again, it’s unlikely they’ll oppose it outright. But the House of Lords is estimated to be around 5-1 in favour of EU membership, is packed full of lawyers and sees itself as the guardian of constitutional and civil rights. And, of course, no one controls the timetable. It’s also not clear where the Salisbury convention stands here-the referendum was in a manifesto but was the result?
  1. Who will scrutinise it? There’s all sorts of time stealing options available. The law will have to be published in draft, lengthening the whole process. There is also a convention that constitutional issues can be debated by the whole chamber of one or both Houses and are normally given plenty of time (Scottish and Welsh devolution in the 1990s both had entire days dedicated to them).
  1. Will the devolved assemblies agree? Legally there’s little they can do but protest despite the (largely formal) need for legislative consent. Politically there could be far more trouble. May’s apparent overriding of Scotland will play well to her core (English) support already the SNP are making it look like London bullying Edinburgh again. And the apparent shift to hard Brexit again raises the question of the Northern Ireland border.
  1. What will the Bill come to symbolise? If the Bill is just admin then it may pass relatively simply. But some laws come to be symbols of failure or incompetence and represent far greater issues: think of the Dangerous Dogs Act, the Hunting Act or Human Rights Act. As the main chance for Parliament to be involved in Brexit, the passage of the law could become, by default, the battleground for a three way fight between hard Brexiters, soft Brexiters and Remainers.

The danger for May is that this ‘Great Repeal’ will steal her government’s time, energy and focus. The last three Conservative Prime Ministers were all destroyed by a potent combination of EU membership and an unhappy party. Could May’s Bill help make it four?

book

Last Monday we found out what it’s really like to work for an MP courtesy of Rob Dale (@robandale),  when he spoke about his new book How to Be A Parliamentary Researcher.

  • Is it exciting?
  • Is it hard work?
  • Do you get to hear all sorts of information you shouldn’t?
  • Can you make a difference?
  • Is it more like the West Wing, House of Cards or In The Thick of It?

As Rob explains here researchers are the unsung heroes of Westminster ‘parliamentary researchers are required to support and guide their boss through these new pressures, whilst also helping them with the more traditional aspects of the role: speaking in the House of Commons, tabling questions, establishing campaigns, appearing in the media and attending many, many meetings. It is their responsibility to do much of the legwork so that their boss can focus on his or her main job; performing.’

In his talk he offered a whole range of advice from how to write the perfect CV (tailor it), how to get ahead (get campaigning) and how to do the best you can (make friends, get contacts, pay attention!).

To hear it all and our later discussion about Parliament with Rob, the Parly app creator Tony Grew and our own Susan McClaren listen in here http://backdoorbroadcasting.net/2015/11/fighting-for-a-place-in-parliament-an-evening-with-robert-dale/

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.