Categories
Blog

Exposing the hidden wiring of the Parliament

By Ben Yong (Durham University)

‘Who runs the House?’ While most people were watching the Johnson government stumble from one crisis to another in early December 2021, peers in the House of Lords repeatedly asked this question in a rare debate on House governance. How the House of Lords (and Parliament as a whole) is run and the arrangements underpinning that may seem mundane, but ‘mundane’ issues can tell us something about the UK’s constitutional arrangements which are lost in theoretical frameworks such as political and legal constitutionalism, or separation of powers theories which focus on relationships between the branches of government.  

The Lords debate was in part prompted by a House of Lords External Management Review (‘EMR’), published in early 2021, which looked at how the House of Lords is governed and services and support administered. The EMR concluded, amongst other matters, that the accountability arrangements for the administration of the Lords were far from clear. Ultimately, the EMR recommended that the House of Lords Commission needed to be put on a statutory basis; there needed to be a clear statement of the governance arrangements; and a Chief Operating Officer should be appointed.

The debate highlighted that peers’ knowledge of the EMR and the general principles of House governance in the Lords was spotty. Indeed, some peers expressed surprise that the Leader of the House did not, in fact, lead the House (a misconception also common among MPs). Lord Davies’ comment summed up the view of many who attended the debate: ‘The governance of the House is … a mystery to me.’ Other contributions were evidence of Yong’s Law: the longer a debate on House governance continues, the greater the possibility that someone will mention catering, and its cost. Significantly, several Peers expressed fears about the imposition of bureaucratic structures upon a House which had traditionally seen itself as self-regulating.

Anyone with a knowledge of previous reviews of Lords governance would be unsurprised by this, or the EMR’s conclusions and recommendations (for a more in-depth discussion of House governance, see Ben Yong, ‘The Governance of Parliament’ in Alex Horne and Gavin Drewry (eds), Parliament and the Law (2nd edn Hart 2018) 75). Indeed, weak House governance and the confusion of parliamentarians has been a persistent issue in both the Commons and the Lords. 

So what are the governance arrangements of the Houses and why does it matter? Each House has an administrative organisation responsible for providing infrastructure and support for parliamentarians so that they can carry out their constitutional functions. This administration sustains and strengthens the House as an institution. The governance arrangements set out who is in control of the administration; and provide a line of accountability for the provision of that administration. 

One part of the governance arrangements is led by members; the other by officials. In the House of Lords, for instance, on the member side, there is the House of Lords Commission, responsible for political and strategic direction for House administration. The Commission is chaired by the Lord Speaker, and consists of (amongst others) the Leaders of the three parties, the Crossbenchers Convenor and the chairs of certain domestic Committees. Below the Commission are a number of domestic committees which scrutinise the internal working of the House (as opposed to select committees, which scrutinise the work of the executive), and support the Commission. On the official side, there is the Management Board, led by the Clerk of the Parliaments, which is responsible for implementation of Commission policies and day-to-day administration.  

Together these groups work to support peers in their work and maintain the institution. But there are problems. A key one is that the Lords House Commission is structured to be insulated against executive interference: it is cross-party in nature, and there is no government majority. Moreover, the Commission usually meets monthly and membership turnover is uneven (in the Commons, it is less than two years for most members). The result of all these factors is that political will is often lacking, or slow to crystalise. The Commission decides by consensus, if it decides at all. And even where the Commission does agree upon a course of action, it may still require agreement from the House itself. In such a political vacuum, the official-led Administration often cleaves to the status quo. 

There is also a lack of clarity about who is in charge, and therefore, who is accountable. In the debate, peers were quite confused about this. But they are right to be. There are multiple actors with claims to represent institutional interests. Even the titles of key actors suggest conflicting jurisdictional claims: there is a Lord Speaker and a Leader of the House—who is leading or speaking for the House? There is the House of Lords Commission, but as already noted, it is not the most strategic of actors. Nor is it the most visible: meetings are held in private with limited minutes often taking several weeks, if not months, to be published. It has no statutory basis. By contrast, the Clerk of Parliaments does have a statutory basis as Corporate Officer of the House (the Parliamentary Corporate Bodies Act 1992); and in practice is responsible for the day-to-day administration. But as the EMR noted, it is not clear how the Clerk is accountable to the Commission, or indeed, anyone. It is unsurprising there is confusion about who does what in the Lords.

The House of Commons has similar problems. One disgruntled former Clerk of the House gave his book on the House of Commons a harsh subtitle: ‘The Story of an Institution unable to put its own House in order’ (Barnett Cocks Mid-Victorian Masterpiece (1977)). In 2014, an ad hoc committee led by Jack Straw published a review (‘the Straw Review’) on House governance in the Commons. It was the first MP-led review of House governance in over 40 years. The Straw Review found a haphazard set of governance arrangements which lacked clarity; and a Commission which failed to provide adequate direction. 

In a way, the dilemma of governance is the problem of legislatures in condensed form: how can a group of nominally equal members collectively act together when they do not owe each other formal allegiance? With legislation, this problem is usually resolved through party majorities. But where the issue concerns not party, but rather what the institution needs, it is not easy to secure agreement. That is because firstly, it is difficult to turn parliamentarians’ minds to the institution; and secondly, there can be reasonable disagreement about what the institution does need. Without party and a clear set of governance arrangements, inertia and inaction become the obvious default. 

And so the Houses of Parliament are often slow to act on matters outside legislation, because of limited political will and a lack of clarity about who is responsible for what. The 2009 Expenses Scandal was caused in part by a failure of Commons governance to get a grip on the issue. Bullying and harassment of staff by parliamentarians in both the Commons and Lords were also failures of governance. And then there is the ongoing saga of the multibillion Restoration and Renewal (‘R&R’) project of the Palace of Westminster. The Palace is crumbling, and has been for well over a decade. This is in spite of a Joint Committee recommending a full decant from the Palace and sponsor and delivery bodies set up by statute. The Houses continue to dither and delay on timing (on R&R, see the untiring and ongoing work of Dr Alexandra Meakin).

So what? Why should we care? For one thing, the Commissions are primarily responsible for their respective House budgets—which together amounted to just under a billion pounds in 2020-1. This is not small money (although dwarfed by the budgets of the large Whitehall departments: the Home Office budget, for instance, was £16 billion in 2020-1). The governance arrangements can determine what resources are given to parliamentarians and committees. The Houses’ budgets matter, therefore, because they shape the capacity of Parliament to carry out its functions (Colin Lee and I discuss this in a chapter in the forthcoming third edition of Parliament and the Law). 

But more importantly, one reason for executive dominance over the legislature is that Parliament finds it difficult to act coherently: it is hobbled by a lack of clear leadership. Mainstream public lawyers have focused so much on the courts and issues like the location of sovereignty or legislative intent that they neglect the concrete institutional particularities of Parliament. This is not about political versus legal constitutionalism, and prioritising the ‘political’ over the ‘legal’. Rather, this is about recognising that there is more to each branch than its relationship with the others; that each branch has its own internal issues which may impede its effective functioning. Failures of governance can impact on the institution’s performance and ultimately, its legitimacy. ‘Mundane’ issues such as House governance and administration may be ‘constitutional’ matters as much as parliamentary sovereignty or legislative intent. 

My thanks to Arabella Lang, Alexandra Meakin and Patrick O’Brien for their comments on an earlier draft.

Dr Ben Yong, Associate Professor of Public Law and Human Rights, Durham Law School

This post was originally published on the UK Constitutional Law Association’s Blog. Thank you to the editors and Dr Ben Yong for allowing us to cross-post.

You can view the original post here: https://ukconstitutionallaw.org/2022/01/10/ben-young-exposing-the-hidden-wiring-of-the-parliament/

The suggested citation: B. Young, ‘Exposing the hidden wiring of the Parliament’, U.K. Const. L. Blog (10th January 2022) (available at https://ukconstitutionallaw.org/))

Categories
Blog Uncategorized

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.

Categories
Blog

The Speaker election row tells us two important things about parliament

On 26 March, its final sitting day, the House of Commons rejected government proposals to reform how the Speaker is elected at the start of the new parliament. Here Meg Russell reflects on what this teaches us about parliament, suggesting it holds two lessons. First, that the 2010 House of Commons was more resistant than its predecessors to government dominance; but second, that further reform is still needed to reduce that dominance.

Please note this blog piece was originally published on the Constitution Unit blog.