Category: Blog

Rosie Frost provides an overview of a recent report published by the Westminster Foundation for Democracy,  into the roles that parliaments can play in peacebuilding processes. The full report was written by Professor Nina Caspersen and Dr Gyda Sindre at the University of York and can be viewed here.

Parliaments: the missing piece?

Since 1992, Westminster Foundation for Democracy has supported democratic systems as they emerge out of conflict and into peace and stability. Currently, we have a number of programmes doing just that, from Lebanon to the Western Balkans, from Sri Lanka to Bangsamoro.

The existing academic literature on parliaments’ role in peacebuilding is scarce. Studies on conflict resolution and peacebuilding focus on peace agreements, multilateral organisations, state executives and the military, or at the other end of spectrum, on grassroots community groups and citizens.  Parliaments – the institutions with the capacity to bridge these two – have largely been overlooked.

We commissioned a research paper with the University of York to analyse the experience of some parliaments we’ve worked with, and help build an understanding of the role of legislatures in conflict-affected states. Using case studies, this research focused not on what parliaments could or should do, but what they have done.

The research is clear: parliaments matter. How they implement peace agreements, how they formally operate, and how they govern in relation to peacebuilding has an impact on the peacebuilding process. For WFD and other democracy assistance practitioners there are a few key takeaways for our work.

Facilitate parliaments’ support of peacebuilding

In some cases, parliaments have had a positive impact on peacebuilding. Parliaments have the ultimate legal responsibility for the implementation of peace agreements, including institutional reform and devolution. They have also led the implementation of transitional justice. For example, in South Africa, a parliamentary standing committee oversaw preparations for the Truth and Reconciliation Commission and handled amnesty applications that came through that process.

In their formal structure, parliaments in a post-conflict state often guarantee the representation of all conflict identities or ethnicities, through a power-sharing design or when former armed groups participate in the democratic process as newly formed political parties.  Formal rules have also reserved seats for women, such as in Rwanda.

In the long-term, parliaments have great potential to act as platforms for constructive debate and collaboration between groups, govern in support of peace and stability, and help to set the state or region on a path to a more peaceful future.

Parliaments that can support peacebuilding tend to be strong and high-capacity. The challenges they face are more likely to be the result of political conditions, and so support from democracy assistance practitioners should be focused on broad notions of conflict resolution. WFD has a unique convening power which is an important tool to build connections both within parliament and between parliament and outside actors. This should be an important aspect of any peacebuilding initiatives.

Build up sidelined parliaments

Some parliaments have had a negative impact on peacebuilding processes because they are not strong enough to prevent executive dominance, or they are side-lined. For example, in Colombia, obstruction by the President who initially refused to sign Congress-approved legislation to implement the peace agreement, demonstrated the vulnerability of parliament to executive overreach. In such cases, especially where the parliament is new, capacity training and institutional support from WFD and others could be central to the long-term peacebuilding.

Parliament cannot be ignored

What we cannot do is ignore parliaments altogether. Parliaments can be significant spoilers in peace processes. All the characteristics of a pro-peacebuilding parliament could also be used to spoil a peace process. 

Their power to implement a peace agreement means that they can, of course, also choose not to. This includes national parliaments obstructing devolution to new regional ones. And a power-sharing parliament is far from a guaranteed success. Power-sharing arrangements usually include a minority veto, and this allows parties who wish to obstruct the peace process to do so. In Northern Ireland, deadlock saw direct rule imposed from Westminster four times in the first decade of Stormont’s existence, although our report finds that “collaboration is much more dominant than we might expect”.

Of course, parliament is a heterogeneous institution. It is made up of many separate component parts: MPs, staff, political parties, committees, as well as the processes and powers associated with the different roles it performs. Each of these can function differently, and so it is very hard to be clear cut about what impact a parliament is having on peacebuilding.

But we ignore parliaments at our peril. Parliaments may not hold all the power, but they are integral for the successful implementation of peace agreements and for progress towards long-term peace and stability.  There is a valid and important role for democracy support in peacebuilding processes, and a lot at stake from our absence.

Rosie Frost is the Evidence and Learning Officer at the Westminster Foundation for Democracy, where she works on building the evidence base for democracy assistance.

In the first blog post from our annual conference series, Professor Meg Russell offers insight into the challenges, opportunities and lessons drawn from the parliamentary management of the pandemic.

In the UK and around the world parliaments have had to adjust their practices to the unexpected new environment of COVID-19. This has brought major challenges but, some suggest, also opportunities in terms of suggesting future means for parliaments to adapt. This post starts from the core principles of parliamentary functioning, briefly reviews practice under COVID-19, and considers the primary opportunities and challenges presented. It concludes that the future lessons from this unique period reinforce some familiar themes; but they also raise significant conundrums and trade-offs between the different essential principles of what parliaments are there to do.

Principles

Stripping back to the basics, what are parliaments for? Legislative studies scholars have suggested various overlapping lists of functions. For example in the Oxford Handbook of Legislative Studies, Amie Kreppel provides a list of four, which I will boil down to three:

Other terms often mentioned in such classifications include deliberation –much of which takes place publicly – and legitimation, meaning all of parliaments’ functions help them generate broad public support for policy.

Practice

It is easy to see how the circumstances of COVID-19 have challenged some of these principles.

The threats to representation were pretty immediate and obvious. With limits on travel, requirements for social distancing, and heightened risks for people with certain health conditions, parliamentarians gathering from all over the country immediately became a problem. Some legislatures responded by limiting the number who could participate – with those decisions often taken by leaders and whips. Others moved their proceedings online. The UK House of Commons initially did the latter, but then rolled this back in a quite problematic way which breached principles of equal participation.

Effects on linkage were perhaps less dramatic, but the pandemic has clearly made it more difficult for MPs to meet their constituents, and others, face-to-face.

With respect to policy-making there has been concern in the UK and many other countries about the extent of emergency powers granted to executives to deal with the crisis, and the limits on parliamentary oversight. That’s the most obvious effect. But there have also been others. In some legislatures (including initially the House of Commons) limits were applied to ‘non-urgent’ business, such as private members’ bills. This raises questions about who decides what’s urgent. In addition, there are clear interactions between these different effects – if the mode of representation is impacted, that will affect policy-making as well, as discussed below.

Opportunities

It may be counterintuitive to see opportunities in such a difficult situation, but the hasty move to virtual proceedings in many parliaments has demonstrated that there may be positive lessons to learn.

These primarily affect representation. Remote working, where available, has facilitated continued participation for parliamentarians with caring responsibilities, or health conditions, or who may not be able to travel. This has raised questions about whether such modes of working could help, longer term, in supporting more diverse legislators. For example the Centenary Action Group, which promotes enhanced women’s representation, has a campaign ‘to promote the benefits of virtual parliament measures for women and minority groups and encourage the continued use of technological advances’.

Although they remain largely untested during the pandemic, changes to greater virtual working could also have important impacts on linkage. If MPs work more frequently from home, this could facilitate greater local presence and local work. If available, such options would surely be taken up – particularly by MPs with more distant constituencies. But this would raise familiar conundrums about the extent to which constituency work compromises the effectiveness of MPs’ policy work in parliament.

In terms of that policy-making function, most of the impacts have been negative (see below). But clearly there would be benefits in more diverse participation – not just by parliamentarians, but for example by witnesses to parliamentary committees being able to give evidence remotely.

Challenges

Unsurprisingly, the list of challenges is longer. If MPs are shut out (as remains the case in the Commons, despite repeated complaints), that obviously damages representation. At one level this might just be considered a UK quirk, but it highlights the first of many problems with COVID-19 and policy-making.

The Commons is famously an executive-dominated institution, particularly with respect to setting the agenda – Standing Order No. 14 guarantees default government control. In May ministers chose not to renew the temporary order facilitating virtual participation, causing this to lapse – despite opposition by the chamber’s Procedure Committee. This illustrates how, if parliaments do not control their own agendas, this creates opportunities for government (and sometimes opposition) leaders to centralise power.

Similar centralisation is seen in the emergency powers taken by governments to tackle the pandemic. In the UK, MPs often felt shut out – with numerous statutory instruments published at short notice and brought into effect without parliamentary oversight. It was six months before backbenchers forced concessions out of government via a threatened rebellion on renewal of the Coronavirus Act, gaining promises of future votes.

But the challenges for policy-making go far further, and some are far more subtle. While formal proceedings – for example questions, committees and scrutiny of legislation – have been maintained as far as possible during the crisis, much of legislatures’ most crucial influence normally goes on informally and behind-the-scenes. Meetings between parliamentarians (both within and across parties), between them and party leaders or ministers, and between all of these groups and journalists, facilitate crucial informal communication. Some of this is planned, but much depends on chance ‘corridor conversations’. In addition to lacking these communications, ministers, whips and others find it difficult to ‘read the mood’ when the chamber and corridors are largely empty, and some members are logging in over Zoom.

Summing up the lessons

Some of the lessons from the crisis are obvious, and reinforce things that legislative studies scholars already knew. For example, the government’s control of the House of Commons agenda is problematic; extensive policy-making via delegated legislation is undesirable, and scrutiny mechanisms badly need improvement; much of parliament’s power is exerted informally and behind the scenes.

Where it gets difficult, however, is that the potential benefits of virtual participation for parliaments’ representative functions, and possibly linkage functions, become threats when considering impacts on their policy-making functions. The crucial role of informal and behind-the-scenes communications mean that parliamentary effectiveness will greatly suffer if many members are not physically present. In the UK, in the middle of a continuing pandemic, arguments for maximal virtual participation remain principled ones, to restore parliamentarians’ equal rights. But longer term, this isn’t just an argument about tradition versus modernity – it raises complex questions about how to balance the different functions of parliaments and their needs to operate effectively.

Professor Meg Russell FBA is Director of the Constitution Unit, and a Senior Fellow at The UK in a Changing Europe studying ‘Brexit, Parliament and the Constitution’.

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

Practitioners and academics in comparative politics frequently refer to a set of ‘Westminster model’ countries which are similar in some way. But in a new article, summarised here, Meg Russell and Ruxandra Serban show that definitions of the ‘Westminster model’ tend to be muddled, or even absent, and that its meaning is far from clear. Insofar as defined political attributes are linked to the ‘model’, key countries associated with it now lack many of those attributes. The term has hence become increasingly outdated, leading the authors to suggest that it should now be dropped.

Dr Ruth Dixon of the Blavatnik School of Government, University of Oxford, who was a Parliamentary Academic Fellow in 2018–19, discusses the efficacy of parliamentary scrutiny during 2016-2017. The post was originally published on the House of Lords Library blog but has been kindly shared with the PSA Parliaments group.