Written evidence from Unlock Democracy (PAC 20)

Public Administration and Constitutional Affairs Committee

Parliament and the UK Constitution inquiry

What are the most important issues when considering the role of Parliament in the constitution?

1. Parliamentary sovereignty is an underlying principle of the UK’s uncodified constitution. Assessment of the role of parliament in the constitution should be made through this lens. In the UK’s parliamentary democracy, a crucial role played by the sovereign Parliament is to act as a check and balance on the Government. Parliamentary sovereignty is in place to act as a constitutional protection for the people against the Government.

2. A strong parliament - and in particular a strong House of Commons - is necessary as a means for the public to have a say. It is important for public trust in our democracy that the public perceives parliament as a body that is able to scrutinise the government effectively and hold it to account.  Where parliament is seen to be undermined by the government, or is unable to exert its sovereignty, there are implications both for public trust in politics and for the functioning of UK democracy.

3. The uncodified nature of the UK’s constitution presents a number limitations for parliament’s ability to scrutinise the government and hold it to account. The persistence, for example, of codified conventions and Royal Prerogative powers, tilts the overall power balance in favour of the executive. Key questions about our democracy, rights, and freedoms are left in some instances by default in the hands of the government rather than parliament.

4. The government should be able to enact the legislative agenda it was elected on. However, the uncodified rules and unwritten norms that strongly feature in the UK’s constitution mean that the government of the day is able to – and evidently does – act beyond its electoral mandate.

5. This leaves many core features of the UK’s existing political settlement subject to the whims of the government of the day. The government, if it so wished, could abolish local government. Amending the devolution acts, and therefore the referendum-endorsed devolution settlements, would also be in the government’s power, through the use of delegated legislation in the EU Withdrawal Act

6. Given the fragile nature of the UK’s constitution and therefore parliament’s role in it, the committee should examine the impact of the UK’s uncodified constitutional settlement itself on the role of parliament. Unlock Democracy believes that the uncodified nature of the UK’s constitution creates an inherent power imbalance between parliament and government, one which cannot be adequately redressed through piecemeal reform.

7. The UK is now an outlier amongst developed democracies, counted only amongst two other democracies - New Zealand and Israel - to have unwritten constitutions. With Israel moving towards codifying its constitution, this club will soon be even smaller.

8. A written constitution would protect fundamental rights and freedoms, and create stability for UK democracy. Although parliament is meant to be sovereign, in practice this sovereignty has been substantially eroded, particularly during the Brexit process.

9. Amongst many issues, the UK’s unwritten constitution creates a fundamentally underlying instability in our democracy. It is particularly challenging for members of the public to understand what protections they have against government overreach, what fundamental rights they have recourse to, and what parliament can and cannot do on their behalf.

10. This process will fundamentally change the nature of the UK constitution, since, as Professor Vernon Bogdanor has highlighted, Brexit will return the UK to an “unprotected constitution” where “our rights will once again be at the mercy of Parliament”.[1] Unlock Democracy would go one step further, to argue that many of our rights - specifically, those derived from EU law and now functioning in the statue book as part of the body known as ‘EU Retained Law’ - will be at the mercy of the government, rather than Parliament, given the extensive delegated legislation powers it has secured in the EU (Withdrawal) Act to amend this new body of law.

11. Exiting the European Union presents an existential threat to parliamentary sovereignty, not least because of the breadth of the Royal Prerogative power of treaty-making, discussed in more detail later in this submission.

12. The referendum result in favour of leaving the European Union, and its interpretation by the executive, has injected popular sovereignty into the UK’s constitutional settlement which has directly conflicted with parliamentary sovereignty. This committee should examine how best to reconcile these two competing sources of sovereignty. In lieu of clarity over which source of sovereignty takes precedence, Brexit has demonstrated that the government co-opts popular sovereignty to enact its agenda.

13. Given these existential challenges, Unlock Democracy believes that exiting the EU is both the opportune and now necessary moment to codify the UK’s constitution through a constitutional convention.

What are the most important areas in which the relationship between Parliament and the Government needs to be examined?

14. Unlock Democracy believes the following areas, while not an exhaustive list, deserve particular examination by the committee:

Constitutional conventions

15. Conventions that form part of the UK’s constitution are ill-defined and not legally binding. This makes them open to exploitation by the government at the expense of parliamentary scrutiny and executive accountability. Some conventions are in place to constrain government power, or to allow Parliament to scrutinise the use of prerogative powers. These have been shown to act an ineffective check.

16. After the Iraq war Gordon Brown established the convention that the government must seek parliament’s consent before deploying troops abroad using the ‘war powers’ prerogative. David Cameron adhered to this convention when parliament voted against military action in Syria in 2013. However, it has not always been applied consistently. Two years previously in 2011 the same government held a vote on military action in Libya three days after announcing it would participate. More recently in April 2017, the Prime Minister Theresa May ignored this convention by making the decision to launch airstrikes in Syria without first seeking the consent of parliament.

17. The erosion of the convention of individual ministerial responsibility is a further example of how the government can choose to ignore conventions when it suits, and highlights how little recourse to action parliament has in such instances. Former Secretary of State for Work and Pensions Esther McVey breached the ministerial code by misleading parliament in misrepresenting National Audit Office figures to justify an acceleration of the government’s Universal Credit rollout, and subsequently refused to resign. Similarly, whilst Secretary of State for Exiting the EU, David Davis misled parliament over both the existence and substance of impact assessments of Brexit’s impact on a variety of sectors.

18. In both of these cases, the convention of individual ministerial responsibility would have ordinarily meant that both of these ministers should have resigned. In both cases there was a definitive breach of the ministerial code. Yet in both cases the convention was ignored, and parliament was unable to take any action.

19. Conventions, when ill-defined and unchecked as they currently are, are subject to abuse by the executive. The examples mentioned previously are illustrative of how conventions can be ignored when inconvenient, and Parliament is left unable to hold the government to account effectively.

Royal Prerogative powers

20. Royal Prerogative powers are unacceptably broad and ill-defined in nature. The only attempt to write a definitive list of Royal Prerogative powers was in 2009 in the government’s Governance of Britain Report, which acknowledged the indeterminate nature of these powers and difficulty interpreting them.

21. Interpretation of prerogative powers by the courts was required most recently when a case was brought against the government regarding the triggering of article 50. The government’s position was that article 50 could be triggered without seeking parliamentary approval using their prerogative power to break treaties. The claimants argued that to do so was illegal as it would begin a process that would affect the rights of UK citizens, and only Parliament has the ability to remove or create rights. The Supreme Court ruled in favour of the claimants and the government subsequently introduced a bill to obtain the authority to trigger article 50. Crucially, had this case not been brought forward by members of the public, the government could have overstepped their constitutional powers and set a precedent for changing the rights of citizens without the consent of parliament.

22. The prerogative power of treaty-making is a further example of how prerogative powers undermines parliamentary sovereignty, by giving unacceptably broad and unchecked power to the government.

23. In exiting the European Union, it has been the fact that treaty-making is a prerogative power that has given the government considerable control over the Brexit negotiations and final deal. The use of the prerogative has enabled the government to act unilaterally in negotiations, for example in setting red lines and negotiation objectives. The Withdrawal Deal is will bind future parliaments, and yet parliament has played no role in shaping its substance.

24. Without clearer definition of these powers and checks and balances on their use, the government will be able to bypass Parliament when making important decisions about future trade deals.

25. Parliament does have the power to object to treaty ratification. This power has existed since the 1920s as a convention, and was only recently put on a statutory footing in the Constitutional Reform and Governance (CRaG) Act 2010. There are many limitations to this power. There is no opportunity to amend the treaty, which can only be wholly rejected, and this power still falls short of an affirmative vote.

26. Furthermore, in the House of Commons there is no process for holding a debate and vote to object to ratification. The house must pass a resolution, and unless there is the opportunity for an opposition day debate in this short time frame, they are largely reliant on the government making time to hold a vote.  Since the CRaG Act came into force Parliament has not objected to the ratification of a single treaty[2]. Parliament’s powers in regards to treaty ratification hardly constitute meaningful involvement in the treaty process.

Delegated legislation

27. Delegated legislation is in need of substantial reform. While being a necessary part of the legislative process, the present system gives the government too much power to make policy changes to primary legislation. The current system enables the government to use this legislative mechanism to make policy changes to primary legislation, even though the intended application of delegated legislation is to enable only limited technical and administrative changes to primary legislation.

28. It has become increasingly frequent for the government to use delegated legislation to make policy changes to legislation that would be unlikely to get through parliament. Allowing fracking to take place in national parks, abolishing maintenance grants for higher education in England, and implementing the ‘rape clause’ as part of child tax credits reform, are recent changes that have been made using delegated legislation.

29. Concerns about delegated legislation and its scrutiny are not new, and standards around the acceptable use of delegated legislation have already been established by parliament. The Legislative and Regulatory Reform Act (2006) provides clear ‘red lines’ around what delegated legislation can and cannot be used for.

30. Delegated legislation and its scrutiny was discussed at length during the passage of the EU (Withdrawal) Act. Concessions made by the government - agreement to implement a new sifting committee - suggests an awareness that current procedures for parliamentary scrutiny of delegated legislation are insufficient. It is unfortunate that this new procedure, although imperfect and not going as far as Unlock Democracy would prefer, was not extended to the scrutiny of all delegated legislation, rather than just the delegated legislation in the EU (Withdrawal) Act.

31. Regarding recommended reforms, we refer the committee to the extensive work done by the Hansard Society on this matter, and the reforms they have proposed to the system of scrutinising delegated legislation. Unlock Democracy supports the Hansard Society’s proposed model of a ‘sift and scrutiny’ committee, detailed in ‘Taking back control for Brexit and Beyond’ (2017).

Government control of the timetable

32. The government’s control of the parliamentary timetable and alternative avenues for legislating, such as private members’ bills, has meant that legislating outside of government business are deprived of having any meaningful force.

33. The private members’ bill system and Opposition Day Debates have at times been reduced to debating club sessions by the government. When the government instructs its members to not attend debates, or allows the filibustering of PMBs, MPs are prevented from doing good work behalf of their constituents.

34. Such actions undermine the public’s perception of the UK parliament as an institution that can conduct business, rather than acting simply as a debating club. A cultural change towards giving backbenchers more autonomy will take some time, and the process in moving towards this shift needs to be defended.

35. Where reforms have been particularly lacking is in giving the public a greater voice in parliamentary proceedings. The mechanism for petitioning was not implemented as recommended in the Wright report, where it was recommended that the Procedure Committee would become the Procedure and Petitions Committee, and giving petitions a greater significance in House proceedings.

In what ways have Parliament's and the Government's roles and responsibilities changed and how has this affected their relative powers?

Parliamentary scrutiny

36. It has been a positive development in recent years that a greater role for backbench MPs has been created through various reforms. The Wright reforms strengthened the role of backbenchers within parliament. The Backbench Business Committee has given parliament greater control over timetabling business than it had previously.

37. The Backbench Business Committee has scheduled debates on a wide range of topics such as the future of legal aid, the collapse of Carillion, improving air quality, and surgical mesh. These and other subjects widely captured the public’s attention, but the government may not have wanted to make time for debate. This is good for public perception of MPs and the reputation of debate in parliament.

38. The independence of select committees has also been strengthened, with a number of positive consequences. Chairs of select committees have been increasingly using their mandate to develop the investigative nature of the committees beyond scrutiny and into policy development. The election of chairs has created an alternative career path for backbench MPs which is also positive. In general, select committees are playing an increasingly prominent role both in parliament and in the eyes of the public, and this is to be welcomed.

39. Select committees have also demonstrated an invaluable role in scrutiny work on a wide range of topics. For example, the work being done by the Digital, Culture, Media and Sport Committee, Chaired by Damian Collins, on ‘fake news’ has shown that select committees can undertake extensive investigatory work and collaborate with parliamentarians from around the world on pressing issues of an international nature. Hosted in Westminster, the International Grand Committee on Disinformation and ‘Fake News’  is a prime example of how the work of select committees can go as far as facilitating international collaboration, dialogue and action on some of the most pressing issues of the day.

Exiting the EU

40. The UK’s imminent exit from the European Union will have significant implications for the power balance between the UK government and parliament, as well as between the government and the devolved legislatures.

41. Exiting the EU presents challenges for the UK’s entire constitutional settlement. The process has thrown up questions not just about the role of parliament in the UK constitution, but also brings into question the efficacy of the system of parliamentary sovereignty. The popular sovereignty of the referendum produced a result that conflicted with the known views of the majority of parliamentarians. Unlock Democracy believes that the government, having co-opted the ‘will of the people’, in enacting its interpretation of the referendum result, has fatally undermined parliamentary sovereignty. The government expects parliament to act in deference to the perceived ‘will of the people’, rather than acting as the sovereign institution in the UK’s democracy.

42. Leaving the EU also requires an examination of not just the interaction between the government and parliament, but also the UK legislature and the devolved legislatures. The creation of UK-wide frameworks, for example, should require statutory involvement from the devolved legislatures. Given the trend towards devolution in the past decades, and in particular the establishment of the devolved legislatures which have pursued differing agendas, any UK-wide framework defined solely by the UK government would pose a serious challenge to the legitimacy of these devolved institutions.

Treaty-making

43. In the context of exiting the EU, the prerogative power of treaty-making presents one of the most significant challenges to the UK’s present constitutional settlement as underpinned by parliamentary sovereignty.

44. In leaving the EU, the government will take on a make more significant role in making treaties, which is currently done by the EU. The scope of the modern trade deal has evolved beyond dealing with simply tariffs. The modern trade deals is concerned with standards and regulation harmonisation so as to enable the free trade of goods and services touches on many aspects of public and private life, such as: the standards of the food we eat; regulations governing the medicines we take; rules protecting citizens’ personal data; and the power of the government to manage public sector procurement. This has significant implications for domestic policy-making. The mechanisms to implement trade deals and remediate trade disputes - such as ISDS courts – also present challenges for scrutiny by parliament.

45. One argument frequently put forward to assert that trade should not be transparent is that it weakens the negotiating hand. This has been the government’s justification for giving a parliament a limited, if non-existent role in the Brexit negotiations. The government did not allowed Parliament to participate in the development of the UK’s negotiating position and was consistently reluctant to provide even the most basic information about the progress of negotiations. For example, the Prime Minister publicly labelled giving Parliament a meaningful vote on the Brexit deal as a move which would “incentivise” the EU to offer the UK a “bad deal”[3].

46. The ratification of the EU-Canada Comprehensive Economic and Trade Agreement (CETA) using the Royal Prerogative exemplifies how the use of the treaty-making prerogative deprives parliament of the ability to undertake the most basic scrutiny.

47. Prior to CETA being ratified the UK parliament was not allowed to debate the deal, let alone vote on it. The Secretary of State for International Trade Liam Fox said MPs would not be offered a debate on the CETA deal until after it had been ratified[4] which would have made any objections or amendments politically and practically impossible to implement. This decision led the European Scrutiny Committee to require Dr Fox to give emergency evidence[5] on why he did not offer MPs a debate, giving no opportunity for oversight and scrutiny.

48. The Secretary of State’s current attitude suggests a similar approach will be taken in the negotiation and ratification of future trade deals post-Brexit. Letters released by the Department for International Trade between the UK and the US trade representative in December 2017 outlined how a wide range of information relating to a future US-UK trade deal will remain classified for four years after the conclusion of talks[6].

49. Many countries have procedures which put their national parliaments at the heart of negotiations without jeopardizing their national interests. Some legislatures in Europe provide us with examples to look to for how parliaments are involved in mandating their government’s position in treaty negotiation:

1. For intra-EU negotiations this is often done by a committee with special responsibility for EU affairs.
2. In Denmark, prior to an EU Council meeting the minister concerned is required to appear before the European Affairs Committee. They give an oral presentation outlining the government’s negotiating position, including potential criticisms and the parameters they will operate in. The Committee is able to ask questions and debate the matter. The Committee is then asked to accept or reject the position, and if members representing more than 90 of the 179 seats have stated their opposition to the position the minister must return with a revised proposal at a later date[7].
3. Similar systems are also in place in Finland[8] and the Netherlands[9], although the mandate in these countries is politically but not legally binding.

50. As well as having power to influence the government’s negotiating position in advance of trade deals being negotiated, parliament needs to be able to provide effective and meaningful scrutiny of trade deals. At present, there are insufficient opportunities for parliament to be meaningfully involved in shaping, scrutinising or ratifying trade deals.

November 2018