Parliament Readings

How Parliament Works → Making The Law → Nicolas Besly + Tom Goldsmith

• In the past Parliament was known as the ‘sovereignty of Parliament’ but perhaps now it could be called a ‘legislative supremacy’ due to the ways in which Parliament especially the governing party recieves power.

• Public Bills/Acts → Affect the public general law and can apply to the entire UK.

• Private Bills/Acts → Confer private and particular rights, or are local and personal in their effect.

→ Public bills may impact only certain individuals/bodies but aren’t private however combining the two creates a hybrid bill.

• Delegated Legislation → Made by a minister (or occasionally a public body) under powers conferred by an Act of Parliament. → Detailed Arrangement.

• How treaties are dealt with → The government lays a treaty before both Houses with an explanatory memorandum, and the Houses have 21 sitting days in which one or the other may resolve that the treaty should not be ratified. If necessary, there is then a subsequent stage in which a minister lays a statement of why the treaty should be ratified and can be prevented from doing so only by a further resolution of the HOC against ratification within a further 21 sitting days.

• Green Paper → Where the government has sought views on various legislative options.

• White Paper → Where it has made its intentions clear.

• “Governments of both parties are always in a hurry to demonstrate their dynamism; to seek to deliver on commitments; to respond to events; and to put their stamp on key areas of policy.” → Rushed Legislation → Lack of criticisms on government amendments.

• Lords → “The normal intervals between the different stages of the passage of a bill are prescribed by a recommendation of the Procedure Committee in 1977: two weekends between introduction of a bill and second reading, 14 days between second reading and committee, 14 days between committee and report for large and complex bills, and three sitting days between report and third reading.”

• The Select Committee format has several advantages. The committee is not just a debating forum but can take oral and written evidence, involving many more people in a formal process of consultation and making the legislative process more accessible to those outside Parliament.

• Anatomy of a Bill → Short title, statement by the relevant minister as to whether the provisions of the bill are compatible with the ECHR, a list of contents, long title → sets out the contents of the bill where all the provision of the bill must fall within the long title, words of enactment by the King, clauses/subsections, paragraphs and subparagraphs , schedule and backsheet which repeats the long/short titles, gives the bill member and the session it was introduced and lists the MP or peer introducing the bill/ the ‘member in charge’ and his or her supporters.

• Amendments are decided not in the order in which they are grouped for debate but in the order in which they apply for the bill.

• Richard Crossman, Labour Leader of the House in the 1960s → ‘The whole procedure of standing comittees (the old name for public bill committees) is insane… under the present system there is no genuine committee work, just formal speech-making, mostly from written briefs.’

• Procedures for Bills certified as relating to England/England and Wales only

→ Committee Stage → Bills certified as applying to England and only are committed to a public bill committee or the legislative grand committee (England). (Only English Mp’s) → Amendments can exclude devolved regions.

• The Procedure Committee has reported on private members’ bills repeatedly most recently in October 2016, when it reiterated a number of recommendations made in earlier reports, such as:

• Allowing the Backbench Business Committee to nominate up to four private members bills each session to be given priority on the first four available Fridays, without the need for success in the ballot. This would give a prospect of success for well-drafted bills to become laws, without relying on the votes of the ballot.

• Ensuring that each of the bills listed first on the first 7 Fridays get voted on, without the need for a closure (requiring at least 100 members to be present).

• Explicitly authorising the Speaker and his deputies to use the powers already available (but never used on private members’ Fridays to apply timelimits to speech has.)

• Characteristics of Lords → Legislative Procedure → Bill consideration at committee stage is very different. A bill can, in theory, be committed to five different kinds of committee for consideration but only two are usual. Committee of the Whole House where most bills are still considered and Grand Committee. The Grand Committee has evolved into a parallel chamber for many kinds of business in addition to committee stages on bills, motions to consider affirmative on negative statutory instruments, motions to take note of select committee reports, questions for short debate, debates on national policy statements, and general motions for debate. Another way for dealing with a committee stage is to commit a bill to a special public bill committee. It is also possible, for a bill to be committed to a select committee at any stage between second and third reading, usually after second reading, for consideration of its merits.

• No selection by the Lord Speaker (or anyone else) of amendments to be discussed and no guillotine or programme procedure and amendments can be moved at third reading.

• The Parliamentary Acts 1911-1949 and Salisbury Convention → Lords should not reject at second reading any government legislation that has been passed by the HOC and the carrying out of manifest issues.

• Lords - Revising Chamber.

• Examples of where the Lords have had a substantial effect on policy:

→ Prevention of terrorism, trial by jury, constituency boundaries, secondary market for tickets and unaccompanied child refugees.

• Royal assent does not automatically make an Act come into power, some legislation checked at post enactment → Scrutiny.

• Private Legislation → Business Related.

• The five levels of Parliamentary Control - 1. Delegated legislation that may be made and come into effect without any reference to Parliament, 2. Delegated legislation that may be made and come into effect, and that must be laid before Parliament, but on which there are no parliamentary proceedings. 3. Negative Instruments → Maybe made and come into effect, and that must be laid before Parliament and may come into effect immediately or on some future date unless either House resolves that the instrument be annulled. 4. Affirmative Instruments → These do not normally come in to effect until they have been approved by resolution of each house. 5. Super-affirmative instruments → Consultations, docil resolutions, committee recommendations made within a certain pension in order to decide whose proceeding with the draft order.

The Strathcylde Review → 1. To remove the Lords from statutory instrument procedure altogether, leaving control solely with the Commons. 2. For the House to formalise in a resolution or standing orders any convention how it exercises power over statutory instruments - i.e. to codify the convention. 3. To create a new statutory procedure allowing the Lords to invite the Commons to think again.

Lords can reject instruments and some Acts in Parliament can allow ministers to amend primary legislation. Remedial orders → Allow ministers to edit Acts to make them compatible with the ECHR. Church of England legislation must be approved by Parliament, no questions about church and state.

Mind the Gap: Political Analysis, Public Expectations and the Parliamentary Decline Thesis - Matthew Flinders and Alexandra Kelso

Expanding the Gap: The Parliamentary Decline Thesis ↴

• Key Argument → “The PDT suggests that the executive become gradually more ascendant over the legislature during the 20th Century.”

Six Key Qualities Of The PDT Thesis ↴

1. Throughout the 20th Century the PDT formed the central theme of legislative analysis.

2. The literature was normatively charged, and the ‘decline of Parliament’ was conceived of as a ‘bad’ thing.

3. Scholars frequently assumed the existence of a ‘Golden Age’ in which Parliament had been more powerful and, significantly, its Members more independent of government and of party.

4. Parliamentary decline was lamented not just in Britain, but in other Parliamentary democracies too.

5. Arguments were rarely supported by detailed empirical evidence.

6. The Parliamentary decline thesis influenced politics and the media.

Criticisms of the PDT thesis ↴

1. It remains unclear what the tangible outcome of a ‘strengthened’ parliament would be. (The normative basis of the PDT-that an increasingly powerful executive was a ‘bad’ or ‘undemocratic’ development that should be reversed-was very rarely questioned.) → Reform Parliament in order to reverse PD and restore its place in the political system.

2. The PDT failed to take history and path dependency seriously. → Reformers do not acknowledge that demands for greater legislative powers and competencies were essentially about institutional recreation, not institutional restoration.

3. The PDT is that it was rarely founded on detailed empirical evidence.

4. It had an impact beyond academe. → By becoming accepted as the orthodox position the thesis arguably affected how other actors viewed and interacted with Parliament.

5. A review of the literature on parliament throughout the 20th Century reveals that there has been an almost exclusive focus on Option 1/i.e. increasing supply through an increase in legislative scrutiny capacity vis-a-vis the executive); whereas an awareness of option 2 i.e. decreasing demand through mature reflection on the criteria against which parliament was judged, was most completely absent.

→ Does not serve legislative scholars well. → Fails to reflect the complex resource interdepencies that actually exist.

→ Scholars may have contributed to an erosion of public support in politics in general and declining levels of public confidence in parliaments in particular.

Two key arguments ↴

1. Parliament was not designed, intended or resourced to play the kind of proactive scrutiny role their contemporary expectations appear to demand.

2. Legislative control of the executive manifests itself in procedures and processes that lie beneath the visible lithosphere of parliamentary activity.

“Parliament was never expected to impose high levels of scrutiny on ministers or the bureaucracy. Parliament was designed to be subservient to a dominant party in order to facilitate and legitimise ‘strong government; a principle that was (and still is) delivered through a simple-plurality electoral system.”