Month: October 2020

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From anti-terrorism legislation to COVID emergency laws: Can sunset clauses live up to their promise?

Franklin De Vrieze, Senior Governance Adviser at Westminster Foundation for Democracy (WFD), and Sean Molloy, Lecturer in Law at Northumbria University consider the efficacy of sunset clauses as a means to ensure democratic accountability.

COVID-19 emergency legislation is often fast-tracked, approved without much parliamentary scrutiny, expanding executive powers while limiting individual rights. Can sunset clauses provide a counterbalance by guaranteeing the temporary nature of the COVID-19 emergency legislation? Experience from anti-terrorism legislation suggests that sunset clauses may reinject democratic accountability, but only if there is a high quality and evidence-based review practice.

Legislative responses to emergencies

The effects of the September 11 (2001) attacks were felt well beyond the United States. The ‘global war on terror’ led many countries to usher in emergency laws to combat the threat posed by terrorism. The Canadian Anti-terrorism Act, for instance, introduced a range of new offences and authorized new intrusive powers, such as preventive arrest. For its part, the UK government introduced the Anti-Terrorism Crime and Security Act (2001). Under the act, significant powers were transferred to the government with the effect that individual rights and liberties could be circumvented as a matter of course. For instance, the police can forcefully obtain fingerprints and other identifying features from an individual to ascertain their identity, and the government may regulate telephone companies and internet providers to retain data for the purpose of national security.

In both the UK and Canada, as with many other contexts, the response to terrorism involved limiting individual rights and liberties while at the same time expanding executive power.

The logic of sunset clauses

It is at the juncture between short-term responses and longer-term consequences that sunset clauses find pride of place in emergency legislation. Sunset clauses are provisions that determine the expiry of a law or regulation within a predetermined period. They provide that at a certain point in time, specific and often the most intrusive provisions on civil liberties cease to have effect. In this way sunset clauses seek to ensure the temporal nature measures that extend the reach of government powers or limit human rights,

Because sunset clauses provide for evaluation of the legislation passed, they can help to claw back a degree of democratic oversight and legislative scrutiny. For some, the requirement to respond in haste to an emergency provides the justification for fast-tracking law and sidelining normal processes of parliamentary scrutiny. The review processes attached to sunset clauses are thus a way of reinjecting a degree of scrutiny and oversight in ways not possible when emergency laws are expedited through fast-tracked processes. In the UK, for example, the 2001 Act required annual renewal of the provisions allowing indefinite detention. It required the Home Secretary to appoint someone to review the operation of that part of the act and report annually.

Sunset clauses, at least in theory, are thus a way of enabling countries to respond to immediate threats while at the same time ensuring that expanded powers and limitations on rights do not become the new normal.

Sunset clauses and COVID-19

The use of sunset clauses in terrorism legislation is instructive when thinking about the inclusion of similar provisions in emergency legislation adopted in response to COVID-19.

The speed of response has been paramount to limiting the effects of COVID-19, justifying, in turn, the passing of fast-tracked legislation in ways that ‘differ’ from normal processes of parliamentary scrutiny. Invoking fear and uncertainty, it is the unknown and the unpredictability of the virus, as with the threat of terrorism, which has legitimized the widening of executive powers while at the same time limiting individual rights.

Yet, the risks associated with the fast-tracked nature of legislation, the broadening of state power and curtailment of civil rights and liberties in the context of terrorism, are equally present in the COVID-19 era. Like the threat to terrorism, COVID-19 shows little signs of desisting and retreating into distant memory. At what point, therefore, should the emergency response to COVID-19 desist to prevent the ‘new norm’ becoming one of government overreach and restricted rights?

As with the terrorism legislation, sunset clauses are seen as part of the answer. Indeed, in Scotland, Ireland, Germany, Singapore, the Democratic Republic of Congo, Uzbekistan, Serbia, Albania and North Macedonia sunset clauses have featured in emergency legislation, as documented in the WFD Pandemic Democracy Tracker. This, in turn, reflects an inherent confidence in what sunset clauses can achieve and a faith in the theoretical potential of sunset clauses being realized in practice. But is this confidence justified?

Future response

The Canadian experience with anti-terrorism legislation helps us answer this question. The Canadian House of Commons voted against renewing the provisions prior to their expiry under the terms of the sunset clause. Central to this decision was a detailed hearing before parliamentary committees examining the operation of the legislation and practice. By contrast, in the UK, notwithstanding the sunset clause in the 2001 Act, the emergency legislation remained in place until replaced by the Prevention of Terrorism Act 2005. This is not in any way unique. The 2001 Patriot Act in the US remains in force even today.

A comparison between the UK and Canada shows that the practical impact of sunset clauses is often determined by the quality of debate that precedes the discussion about whether to repeal emergency legislation. Indeed, a Law Commission report pointed out that the UK civil society group JUSTICE was “sceptical about the quality of debate triggered by the sunset clauses in the UK Anti-Terrorism Crime and Security Act 2001, noting that the annual debates have been rushed affairs and seem to offer little of the substantive scrutiny that is required in respect of such sweeping measures (indefinite detention of foreign nationals and control orders respectively).”

We cannot simply commend those countries that have included sunset provisions in their COVID-19 legislation. We must think about how to ensure that they live up to their promise. This ought to involve drawing lessons from positive examples of Post-Legislative Scrutiny so as to help inform how the reviews of emergency legislation will play out. A few questions would be particularly relevant.:

  • Who is reviewing the legislation?
  • Who is being invited to participate in the review? Are human rights groups, civil society and academics permitted to contribute?
  • What is being examined? Is it, for example, technical aspects, or the impact of emergency measures?
  • If the latter, the impact on whom? For example, what role does age, class, or gender play in the analysis?
  • Is it merely primary legislation being examined, or also secondary legislation adopted under, for instance, enabling Acts?
  • To what extent are lessons from other contexts part of this analysis? Will there be a gender-sensitive approach to scrutiny?

Sunset clauses in practice

Notwithstanding the theoretical merits of sunset clauses, their effect in practice is often determined by the review processes. While they can reinject democratic accountability and evidence-based review, they can also serve merely to rubber-stamp existing powers. They can exist on paper but have little impact in practice. They can be renewed on an ongoing basis, often with little or insufficient scrutiny. Thus, adherence to sunset clauses must itself be scrutinized and lessons must be drawn from other contexts to inform the review processes that accompany them.

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Braking the law: Is there, and should there be, an executive veto over laws made by parliament?

During the Brexit crises of 2019, something exceptionally rare happened twice in less than six months: parliament passed legislation without the government’s consent. But are there constitutional veto mechanisms that governments can use to prevent this? In a new Unit report, Paul Evans explores this question in detail. He summarises his conclusions here.  

What do executive vetoes look like?

Many constitutional democracies include mechanisms whereby a head of state can veto a law made by the legislature, but few of these are absolute vetoes. Most are suspensory, inviting the legislature to think again, but giving it the last word. The US Constitution is the most obvious example of such an arrangement. France has a broadly similar system but, as with many if not most such vetoes, it isn’t used. Some states (for example Iceland) enable the president to put a law to a referendum. Others (such as Ireland) leave the last word with a constitutional court, but only on matters of constitutionality, not on grounds of political disagreement.

In the UK (and most of the old dominions which retain the Queen as head of state) such an arrangement looks impossible. The executive and the legislature are fused – they can’t have different views. The executive as a lawmaker in the UK only exists as an element of the sovereign parliament (the somewhat misleadingly titled ‘Crown-in-Parliament’). The sovereign has no personal stake in the making of law. They must do as parliament decides. As long ago as 1867, Walter Bagehot expressed this constitutional fact with typical rhetorical brio:

The popular theory of the English Constitution involves two errors as to the Sovereign. First, in its oldest form at least, it considers him as an ‘Estate of the Realm’, a separate co-ordinate authority with the House of Lords and the House of Commons. This and much else the Sovereign once was, but this he is no longer. That authority could only be exercised by a monarch with a legislative veto. He should be able to reject bills, if not as the House of Commons rejects them, at least as the House of Peers rejects them. But the Queen has no such veto. She must sign her own death warrant if the two Houses unanimously send it up to her. It is a fiction of the past to ascribe to her legislative power. She has long ceased to have any.

Withholding of royal assent

Nonetheless, when the first stirrings of what was to become the Cooper-Letwin Act (the European Union (Withdrawal) Act 2019) began in the Commons in early 2019, it was suggested in some quarters that ministers could advise the sovereign to refuse royal assent to an Act agreed upon by parliament. The same argument re-emerged six months later in relation to the Benn-Burt Act (the European Union (Withdrawal) Act (No. 2) 2019), which Boris Johnson insisted on referring to repeatedly as the ‘Surrender Act’. But, despite these theoretical arguments, subsequent events appear to have confirmed that this concept of a royal veto is definitely a dead letter. Queen Anne was the last sovereign to decline the royal assent to an Act passed by parliament – in 1707 (or 1708 if you prefer to apply retrospectively the change of the new year from 25 March to 1 January in 1752).

It was discussed again as a possibility in 1913/14 in relation to the Government of Ireland Act – the first to be passed under the Parliament Act 1911, that is without the consent of the House of Lords. The leader of the Conservative opposition, Arthur Balfour, at the time argued that ‘It is surely obvious that if a prerogative ought rarely to be used, it cannot become obsolete merely because it is rarely used’. But it wasn’t used then.

And at the only other point, 2019, in the more than 300 years since Queen Anne may have defied parliament (it’s not clear that she really was) when it seemed at all plausible that the government might want to exercise a veto over a bill passed by the two Houses, it wasn’t used yet again. It might be yet another century before such an occasion recurs – surely even Balfour would be hard pressed to claim that a theoretical power which has lain unexercised for over 300 years is a living part of the constitution.

Royal assent isn’t even a thing

For all practical (and most theoretical) purposes, the notion that whether to grant royal assent is a choice is no longer part of the UK constitution, and there is no gap in the mechanics by which it is signified into which a veto could be inserted. It would be a useful if small contribution to having a more comprehensible and stable constitution if parliament simply found a way to declare this truth to be self-evident, so that we didn’t have to rerun the argument again when parliament did something of which a government disapproved.

Stopping bills before they’ve even started

Mostly the problem never arises because, in what we think of as normal times, government has pretty much exclusive power of legislative initiative at Westminster, through its control of the agenda of the House of Commons, and unique ability to control the time available for legislation to be passed. When the government has a reliable majority, at least in support of its central policies, if any bills it dislikes do get off the ground it can use its majority to kill them. But if the barriers of agenda control and timetabling powers have been overcome, as they were on the two occasions in 2019 when the Cooper-Letwin and Benn-Burt bills became Acts, and a majority is uncertain, there may be other ways in which the executive could seek to stymie non-government legislative initiatives, by preventing the Commons even being able to vote on a matter.

A Commons courtesy

It was suggested last year that the requirement, in a pretty limited number of cases, to secure the Queen’s consent to bills touching upon the prerogative powers of the sovereign could be used to thwart parliament’s will. But the practice has nothing really to do with the government – ministers are only the postmen plying between the Westminster and Buckingham palaces.

Could ministers plausibly simply fail to ask the sovereign for their consent or delay delivering their reply and so prevent a bill getting a third reading if it affected one of the prerogative powers which theoretically are exercised by the Crown but in practice are exercised by the government? In theory they could, and foot-dragging over this process could in theory be a way of delaying testing the will of parliament.

But it is not a veto. The practice is a self-imposed rule of parliament. It is a courtesy to the reigning monarch. It is not a constitutional principle. If it were to be deployed by ministers as a weapon of delay (which would itself be a breach of our constitutional conventions), parliament could ask the sovereign directly. Or, of its own volition, unilaterally set the requirement aside (if there were a majority to do so).

To avoid any future potential embarrassment to the sovereign through ministerial misbehaviour over this task, the sensible thing to do would be for the Crown to make clear that its prerogatives are placed at the disposal of parliament in perpetuity (a promise that could be reaffirmed at the start of each new parliament or even each new reign for ceremonial purposes).

Circumscribing the prerogative is what parliament does. It doesn’t need to ask anyone’s permission to perform one of its central functions.

Who holds the purse strings?

There is another residue of the constitutional ‘Crown’ though which does offer the executive a form of anticipatory veto, through which it can prevent the Commons agreeing legislation of which it disapproves without having to test its majority. The ‘rule of Crown initiative’ prevents the House of Commons from initiating or increasing public expenditure. The principle of the rule is replicated in different forms in many constitutions and basic laws throughout the democratic world, but especially in the old dominions.

The rule’s application to legislation at Westminster means that a non-ministerial MP cannot introduce a bill of which the main purpose would be to give rise to some new form of public expenditure or taxation. But it also requires that any clause of any bill which has been introduced which would entail novel expenditure or create a new ‘charge upon the people’ must be sanctioned by a separate ‘financial resolution’ before it can proceed to its committee stage – and the motion for such a resolution can only be moved by a minister acting on behalf of the whole government.  Without such prior authorisation any amendment entailing significant revenue implications proposed to a bill at any stage of its career would be ruled out of order by the Chair and would not be selected for debate or decision.

The ‘Crown’ in this case is squarely the government of the day – the sovereign in person has no part in the rule’s application and in practice is not consulted about its use. And while in the past there was a convention that if a bill got a second reading a minister would propose such a motion, the rule has been used increasingly in recent years to block non-government bills from making progress.

In the 2017-19 session a private member’s bill was put forward to reverse the provisions of the Parliamentary Constituencies and Voting Systems Act 2011 which cut the size of the House of Commons from 650 to 600. The government refused to table a financial resolution which would have enabled it to progress beyond second reading (which it had secured by 229 votes to 44). An attempt by the opposition to secure a resolution to set aside the rule to allow the bill to progress in committee failed narrowly.

In the previous session a private member’s bill to hold a referendum on membership of the EU, which received a second reading by 283 votes to none, was also blocked from making any further progress by the absence of a government-sponsored money resolution. Another backbench bill in the same session, designed largely to remove the so-called ‘bedroom tax’, which obtained a second reading by 306 to 231 votes (an astonishing turnout on a private members’ Friday) was blocked from further progress by the same device.

So the ‘Crown’ – in this context the government of the day – can frustrate the progress of a significant proportion of unwelcome legislation during its passage, even if it cannot command a consistent majority in the House of Commons to defeat such a bill in open combat under the rule of Crown initiative. The Cooper-Letwin and Benn-Burt Acts escaped this trap by not entailing any significant expenditure. But bills to legislate, for example, for a second referendum, or a Norway-style trade relationship with the EU, or to revoke or significantly delay the effect of Article 50 probably would have been caught. So they were never tried, even at a stage where there might have been an outside chance of one or other of them commanding a majority in parliament.

It all comes down to money in the end…

If there is an executive veto in the UK constitution, it is the rule of Crown initiative. The way it is currently applied is a significant factor in balancing legislative power in favour of the executive even where the government cannot be sure of being able to command a majority in the Commons; and there is little obvious scope for the legislature to work around it. And without money to spend, the scope of politics is pretty limited – though not, as the two Cooper-Letwin and Benn-Burt Acts demonstrate, completely voided.

Could we make this all a bit clearer?

If we had a written constitution in the UK then perhaps this report would not have been needed. It seems a reasonable expectation that people should be able to find, pretty easily, the answer to the question of whether the executive has a veto over laws made by their parliament. But the status of royal assent is still claimed by some to be undetermined. And few, if any, will know that parliament isn’t allowed to propose new ways of spending money without the government’s prior permission.

If the executive veto doesn’t exist, should we invent it?

Perhaps, were we to have the constitutional convention that some reformers dream of, the question of whether we should have an executive veto would come up. What might the answers be?

On whether there should be some form of veto after parliament has agreed the law, the choice looks fairly binary. Either we can make clear that the sovereign as head of state has no discretion over whether to promulgate the laws made by the legislature. Or, looking to international best practice, we could decide that there needs to be a constitutional longstop to protect the people from the risk of an out-of-control elective dictatorship (making the notion of a ‘constitutional monarchy’ – as opposed to Bagehot’s ‘disguised republic’ – more real). The sovereign could be given a veto (whether suspensory or final) over laws which were repugnant to the constitution and the rule of law, or were not made in accordance with due process. But that veto could not be exercised on the advice of his or her ministers, who are part of parliament and derive their authority from it. The sovereign would need an independent source of advice which was outside and above party politics. It could be the Supreme Court. Or we could try and devise another council of the wise – but it would need to enjoy a very high level of trust.

On the question of whether the legislature should be limited in its ability to propose new ways of spending public money without the prior permission of the government, the potential answers look more complicated. Many other democracies have the equivalent of the rule of Crown initiative in their constitutional documents, and the need to enable executives to balance their income and expenditure is generally an accepted requirement of good government. On the other hand, the US Constitution, for example, places the power of financial initiative firmly with the House of Representatives. And there are many shades of control between an outright fiscal emasculation of the legislature and a free-for-all.

If we were looking for a middle way, New Zealand might have something to teach us. There, they replaced the rule in 1995 with something called the ‘executive financial veto’. It does what it says on the tin. But importantly, it places formal requirements of justification and explanation on the executive when the veto is exercised and opens the door to negotiation between parliament and government. And in 2005 they stripped the residue of the rule, which had been bequeathed to them by Westminster, out of their Constitution Act. That made clear that the rule was a self-imposed discipline accepted by their parliament, and that it was up to parliament to decide whether to retain it. It meant the basis for the rule no longer depended on an obscure theology developed by an invisible priesthood around some mysterious and unassailable entity called (entirely misleadingly) the ‘Crown’.

This blog has been kindly shared by the Constitution Unit Blog.

See the original post here

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How did parliamentary procedure change while Theresa May was Prime Minister?

Thomas Fleming of Nuffield College discusses his recent research into parliamentary procedural change during the premiership of Theresa May.

Parliamentary procedures have many important political consequences. Yet during the premiership of Theresa May, British parliamentary procedure was scrutinised, criticised, and challenged to an extent unprecedented in recent years. This placed intense pressures on the important ‘rules of the game’ governing parliamentary politics in Britain. In a recent article in Parliamentary Affairs, I have described these pressures and their consequences.

How was parliamentary procedure challenged?

This period saw four areas of parliamentary procedure come under particularly intense scrutiny and pressure.

First, the government’s control of the agenda – a key feature of parliamentary politics at Westminster – was challenged by several controversial rulings by the then Speaker, John Bercow. Bercow initially broke with convention by allowing a vote on a backbench amendment to the government’s timetable for the ‘meaningful vote’ on their Brexit deal. After that deal had been defeated in the Commons twice, Bercow angered the government further by ruling that they couldn’t bring it back for a third vote unless it were a substantially different proposition.

Second, the government’s agenda control was also challenged by backbench MPs who opposed the government’s approach to Brexit. On several occasions backbenchers voted to set aside the parliamentary rule granting the government near-total control of the Commons agenda (Standing Order 14), and set the agenda themselves. This highly controversial move gave backbenchers the opportunity to hold ‘indicative votes’ on various alternative Brexit approaches, and to rapidly pass legislation in April 2019 which aimed at preventing (or at least delaying) a ‘no deal’ Brexit.

Third, this period saw intense controversy around the procedures by which MPs cast their votes in parliament. Historically, MPs have only been able to vote if they are physically present. Between 2016 and 2019 there was ongoing discussion of the adverse effects of this rule for MPs who are new parents. Despite a growing consensus around Professor Sarah Childs’ proposal that new parent MPs be entitled to vote by proxy, the government was slow to actually implement any reforms. In the end, this change was only implemented after high-profile controversies involving the MPs Jo Swinson and Tulip Siddiq highlighted the need for urgent change.

Finally, this period saw considerable scrutiny of the process by which backbench MPs propose legislation known as ‘private members’ bills’.  This process has long been criticised as opaque and open to obstruction. But its shortcomings received widespread public attention when a Conservative MP, Christopher Chope, blocked bills which aimed to ban ‘upskirting’ and increase the protection of children from female genital mutilation. Much criticism in the press and from fellow Conservatives was focused on Chope himself. But this incident also appeared to validate existing concerns about parliament’s rules, and the ease with which individual MPs are able to block their backbench colleagues’ legislative proposals.

How did parliamentary procedure change?

Given how many parliamentary debates and newspaper column inches were occupied by these discussions, they led to surprisingly little formal change in how the House of Commons works.

Of the four areas of pressure discussed above, only one – proxy voting – saw any change in the Commons’ formal rules. In January 2019, the Commons adopted a system allowing new parent MPs to nominate another MP as a proxy to vote on their behalf. This system was only established on a temporary basis, but looks set to become permanent. When it was initially due to expire in January 2020, the scheme was extended without any opposition. Moreover, it has subsequently been widened to grant proxy votes to MPs who are unable to attend Westminster in person due to the coronavirus pandemic.

However, the three other areas of pressure on parliamentary procedure described here saw no changes in the Commons’ formal rules. In fact, this period saw remarkably little formal parliamentary reform. Using data from the ParlRulesData Project, I have calculated how far the House of Commons’ formal rules were altered during the tenure of every prime minister since 1945. This shows that only three post-war prime ministers – Anthony Eden (1955-57), Alec Douglas-Home (1963-64), and James Callaghan (1976-79) – oversaw less extensive changes than Theresa May.

 While this period saw very little formal change to parliament’s rules, it did nonetheless see significant informal change. When backbenchers voted to suspend Standing Order 14 and take control of the Commons’ agenda for themselves, this was a highly significant innovation. The government has had virtually monopoly control of the parliamentary agenda for over a century, despite some recent decentralization. This innovation also outlasted Theresa May’s premiership – a similar procedure was used again in September 2019 when MPs fast-tracked a bill designed to prevent Boris Johnson from pursuing a ‘no deal’ Brexit at the end of October.

However, this temporary informal development is unlikely to become permanent, for several reasons. Most importantly, the MPs behind these measures seem to have only conceived of them as temporary expedients. Their goal was not to permanently alter the way the Commons’ agenda is set. Instead, they wanted to facilitate discussion of alternative approaches to a situation they saw as an emergency. For example, in March 2019, Sir Oliver Letwin told the Commons that he hoped future MPs ‘… will not for many decades face an emergency of the kind that we are currently facing, because this is not a way of proceeding that I think any of us would like our country to face in the future’. It thus seems unlikely that MPs will seek to entrench this practice as a regular part of Commons procedure. Even if they did, such attempts are highly unlikely to pass, given the sizeable majority secured by the Conservatives at last year’s general election.

Why was there so little change?

How can we explain this combination of long-term procedural stability and significant short-term procedural innovation? Crucially, parliamentary rules do not change simply because they are challenged or criticized. Instead, Philip Norton has argued that significant long-term changes usually require favourable political conditions – a window of opportunity, a clear reform agenda, and leadership. All three of these conditions were arguably absent between 2016 and 2019. It was a period of severe political turmoil, with little time for parliament to focus on anything except Brexit. Proposals for procedural change were largely ad hoc responses to events, rather than part of a coherent overall reform agenda. Perhaps most decisively, the government showed little interest in procedural reform in this period, let alone leadership.

However, temporary change was still possible because of divisions in the Conservative party over Brexit. The Conservative MPs who voted to let backbenchers control the agenda were not trying to permanently alter parliamentary rules. Instead, they used temporary procedural changes to address specific, time-limited grievances with the government’s approach to Brexit. Despite these temporary changes, the overall pattern in this period is clear. Between 2016 and 2019, parliamentary rules in Britain were challenged extensively but changed very little.

Thomas Fleming is a DPhil Candidate in Politics, Nuffield College and Non-Stipendiary Lecturer in Politics, St Edmund Hall