A referendum is a blunt political instrument to deal with complex political questions, but now that it is over Parliament will have to deal with the consequences after what has been a difficult campaign. Below are some of our early thoughts.
A general election?
The Fixed Term Parliament Act 2011 sets the date of the general election in 2020. This legislative straitjacket makes it difficult but not impossible to hold an early election should the new Prime Minister and government decide they need a fresh mandate. There is no discretion for the Prime Minister or the Monarch on this issue. There are legally only two routes to secure it.
The first is that two thirds of all MPs – 433 – vote for a motion calling for one. No single party can command that level of support so it would require a significant proportion of both Conservative and opposition MPs to vote for it. But to do so would need the parties to mutually conclude that an election would be in their interests at this point in time.
The alternative route is for a simple majority to be secured on a motion “That this House has no confidence in Her Majesty’s government”. There would then be a 14-day period during which consideration could be given to possible alternative administrations and who can command the confidence of the House of Commons. To enjoy the confidence of the House of Commons does not require that a government command the positive support of a majority of the House, merely that no combination of parties can form a majority against it. If no alternative emerges, and therefore a motion of confidence cannot be secured within the 14 days, a general election would be called.
The Electoral Registration and Administration Act 2013 made provision for lengthening the general election timetable from the previous 17 days to 25 days. This came into force with The Electoral Registration and Administration Act 2013 (Commencement No 5 and Transitory Provisions) Order 2014. The 25-day timetable does not include weekends and bank holidays (and any day appointed for public thanksgiving or mourning). In practice it therefore means a five-week election timetable.
Throughout this period Parliament would be dissolved and, unlike during recess periods, it could not be recalled. There is no legal mechanism to restore MPs in the old Parliament on a temporary basis. The proclamation dissolving Parliament for the election will set out the date of summons for the new Parliament. In the interim, no Parliament exists.
So, if politically, a general election could be secured under the terms of the Fixed Term Parliament Act, there would follow a minimum five-week period between dissolution and assembly of the new Parliament when there would be no parliamentary oversight of the executive. Given the volatile economic and constitutional environment this may be deemed unsatisfactory.
If it was deemed politically desirable, and there was sufficient support for it in both Houses of Parliament, the Fixed Term Parliaments Act and the Electoral Registration and Administration Act 2013 (Commencement No 5 and Transitory Provisions) Order 2014 could both be amended or replaced to facilitate a general election in the new circumstances. The Fixed Term Parliaments Act cannot simply be repealed as Parliament would exist in perpetuity for there would be no legal provision to bring it to an end.
The decision to leave the EU may herald significant changes in the way Parliament, and particularly the House of Commons, operates.
MPs will want some oversight of negotiations over the two-year departure period once Article 50 of the Treaty of Lisbon is triggered and they will ultimately have a vote on the final exit Treaty(s).
The scrutiny work that lies ahead will be detailed, complex and technical. MPs already struggle to effectively scrutinise financial and delegated legislation and this will add to the burden. Serious consideration therefore needs to be given to a bi-cameral solution to the scrutiny process given that Peers tend to have greater appetite for and experience of such scrutiny. It would be in both Houses’ interest not to duplicate work.
Chamber and Committees
In the Commons a regular ministerial question time may well be demanded, debates about the way ahead will be a regular feature and the Urgent Question is likely to be a key tool as backbenchers try to hold ministers to account. Similar provisions for question time and debates are likely to be requested in the House of Lords.
A stand-alone select committee or a joint committee of both Houses may be required to monitor the negotiations and decision-making, although existing departmental select committees will want to oversee their own particular departmental policy area. As a consequence we will likely see greater efforts at joint working across committees. Consideration will need to be given to how to knit together the new scrutiny work with that of existing committees that are tasked with scrutinising EU legislation, specifically the European Scrutiny Committee in the Commons and the EU Committee in the Lords.
The Liaison Committee of select committee chairs currently questions the Prime Minister three times a year – they may want an increase in these sessions.
Parliament may require additional staff and support and there will, from time to time, be a need to bring in specialist expertise, which will bring its own costs. When the bicameral Banking Commission inquiry, modelled similarly to a select committee was set up a couple of years ago it consumed resources. The requirement for scrutinising our departure from the EU will be on a much greater, and longer-term scale and the resource need will therefore be higher. Effective scrutiny will not be cheap but should not be stinted upon.
Ironically, although advocates of leave campaigned ostensibly to restore the influence of Parliament, in reality the government not the legislature will be empowered in the short term by Brexit.
Reviewing the corpus of EU law will be an enormously challenging task if mistakes and anomalies that plunge people into grey areas of legal uncertainty are to be avoided. At the heart of the leave campaign’s roadmap for navigating an exit path is their proposal for a European Union Law (Emergency Provisions) Bill which would amend but not repeal the European Communities Act 1972. But decisions will have to be taken about whether to keep, amend or repeal all the regulations made under Section 2.2 of the 1972 Act otherwise they will automatically lapse on its repeal.
Given the volume of legislation involved, in practice much of the heavy lifting will probably have to be done via delegation and through statutory instruments. This will empower the executive not Parliament and, given the complete inadequacies of Commons procedures for scrutinising delegated legislation, will frustrate MPs, not least because they do not currently have the power of amendment. The passage of this legislation may also be unduly complicated and time consuming given the need to determine the EVEL designation of each new SI for scrutiny purposes.
The process may also give rise, once again, to questions about the relationship between the Commons and Lords. As things stand, the Upper House retains its right to reject Statutory Instruments but does so very rarely. If the government does not enact the proposals in the Strathclyde Review then it is not inconceivable that the two Houses could clash on the detail of these SI’s in future if Peers feel that errors are being made in the review and amendment process. Delegated legislation, unlike primary legislation is also subject to judicial review so the door will remain open to potential legal challenge if problems arise.
The Procedure Committee of the House of Commons initiated an inquiry into the scrutiny of delegated legislation before the last election but it made little headway. The Committee may wish to restart this inquiry and, once the government confirms the exit negotiating process, it may wish to initiate an inquiry into how the House of Commons scrutiny machinery can best be established to mirror the negotiating model.
If no changes to the scrutiny process are implemented, then under current arrangements the bulk of the scrutiny burden for SIs will fall on the Joint Committee on Statutory Instruments and the Secondary Legislation Scrutiny Committee. In the last session (2015-16), 741 SIs were laid by the government before Parliament for scrutiny. In the second session of a Parliament, the number tends to creep up to nearer 1,000. In their current form it is therefore likely to be beyond the capacity of these committees to consider the existing output of SIs alongside new SIs arising from decisions made in relation to the European Communities Act.
What happens to the current legislative programme?
Nine bills have been published and await the conclusion of the parliamentary scrutiny process, and a further 16 have been promised but have not yet emerged.
It is currently unclear what will happen to them, having been drafted with regard to the UK’s obligations under EU law.
As the Prime Minister has announced his intention to resign we effectively have a caretaker government in all but name. It is likely that little further legislative progress will therefore be made pending the appointment of the new Prime Minister and Cabinet. Key decisions that were expected after the referendum such as a new runway at Heathrow and renewal of Trident may similarly be put on ice.
The Leader of the House of Commons would normally make a business statement to the House on Thursday morning. In the circumstances, however, an earlier statement may need to be made when Parliament reconvenes on Monday. Clarification may emerge in any statement the Prime Minister makes to the House on Monday or the Leader of the House may follow up with a separate statement setting out any changes to business in the coming weeks. A similar statement would be required in the House of Lords.
Once a new Prime Minister and Cabinet are chosen, if there is to be no general election, then they will have to set out their plans through statements to Parliament and, if deemed necessary, a new budget and accompanying Finance Bill.
Relations with the devolved legislatures
A number of key constitutional challenges will also need to be addressed. For example, under the devolved model, key areas of policy where EU law applies are subject not to Westminster but the devolved legislatures.
The Scottish Parliament is required to legislate compatibly with the EU. The Scotland Act 1998 will therefore need to be amended which will require the consent of the Scottish Parliament. Given Scottish support for staying in the EU, it is unclear where such a constitutional stand off would lead if that consent was withheld. Similar issues will also arise with the National Assembly for Wales and the Northern Ireland Assembly.
Historically, communication between Westminster and the three devolved legislatures has been poor. Relations tend to be conducted on a government to government basis, and the devolved government then engages with its own legislature on the issues concerned. This has resulted in misunderstandings in legislative drafting and the devolved legislatures being left out of the loop about developments with one of their sister legislatures that might have longer-term implications for themselves. In addition to whatever processes are put in place at the Whitehall level for the inter-governmental negotiations, either through the Inter-governmental Council or a new body, Parliament may therefore wish to set up a four member inter-parliamentary committee arrangement to shadow the negotiating process.
Restoration and renewal
So the constitutional and legislative challenges and the sheer volume of work will be enormous, and it is unclear how it will all fit alongside the current day-to-day workload of the government’s existing legislative plans. And of course, all this will have to be done alongside preparations for the proposed multi-billion pound refurbishment of the Palace of Westminster. The ‘restoration and renewal’ programme is a one in 150 year opportunity to reform the leading institution of our democracy. It will now take place in a very different political environment to the one we were thinking about just weeks ago. But it also presents a real opportunity to reinvent the way we legislate and the culture and practice of parliamentary politics in a manner fit for our new future.
You can buy our book, The Devil is in the Detail: Parliament and Delegated Legislation.
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