In the 2021-22 session of parliament, government defeats in the House of Lords reached record levels. Sam Anderson argues that two key factors combined to drive this phenomenon. First, the Johnson government pursued a controversial legislative agenda. Second, it seemed in some cases unwilling to compromise where evidence suggests that previous governments would have done so.

There were numerous examples throughout Boris Johnson’s premiership of his government’s rocky relationship with parliament. One recent manifestation – noted elsewhere – was that there were an unprecedented 128 government defeats in the House of Lords in the 2021-22 parliamentary session. This led some government supporters to suggest that the Lords has become a ‘House of opposition’ that ‘views themselves as there to obstruct’ the government. But is this assessment fair?

The Constitution Unit’s tracking of when and on what topics governments are defeated in the House of Lords offers key insights. With data stretching back to 1999, we can compare such defeats between different governments over time. This blog uses such data to dig deeper into the 128 defeats, seeking to understand what might have caused them. First, I argue that a large number of bills covering topics that have long animated the Lords was a factor. Second, I suggest that pressures which have in the past increased the chances that the government would make some sort of concession to the Lords had less effect under Johnson.

Lords defeats over time

The Constitution Unit’s Meg Russell – who now serves as its Director – began recording defeats in 1999, when the House of Lords Act removed most hereditary peers, breaking the Conservative dominance of the chamber. Since then, no single party has had a majority in the Lords, making governments of all parties more vulnerable to defeats there than in the Commons. Votes are of course just one form of parliamentary influence, but the Lords’ ability to defeat the government has been an important source of institutional power.

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The Conservative Party’s manifesto for the 2019 general election included a commitment to set up a Constitution, Democracy and Rights Commission (as discussed previously on this blog by Meg Russell and Alan Renwick) and engage in a wider programme of constitutional reform. In February, the Unit hosted an event to discuss the new government’s constitutional reform agenda: Sam Anderson summarises the main contributions. 

Page 48 of the Conservative manifesto for the 2019 general election committed to a wide range of constitutional reform proposals – including repeal of the Fixed-term Parliaments Act (FTPA), an ‘update’ of the Human Rights Act (HRA), and the creation of a ‘Constitution Democracy and Rights Commission’ to examine broader aspects of the constitution. On 4 February, the Constitution Unit held an event to discuss the implementation of this agenda, entitled ‘The Johnson government’s constitutional reform agenda: prospects and challenges. The panel consisted of two Conservatives: Lord Andrew Dunlop, a member of the House of Lords Constitution Committee and former Parliamentary Undersecretary of State for Scotland and Northern Ireland; and Chris White, a former Special Adviser to William Hague, Andrew Lansley and Patrick McLoughlin. Professor Meg Russell, Director of the Constitution Unit, chaired the event. The following is a summary of the main contributions. 

Lord Dunlop

Lord Dunlop suggested that the key question for the new government is what ‘taking back control’ means in constitutional terms. The years since the Scottish Independence referendum in 2014 have been incredibly rich for those interested in the constitution. We have seen a deadlocked parliament, an arguably ‘activist’ judiciary, and fracturing Union, whilst foundational concepts like parliamentary sovereignty, the separation of powers, and the rule of law have come under scrutiny. It would be wrong, however, to see the government’s manifesto commitments as simply a direct response to the political and constitutional crisis of last autumn. Brexit placed a number of areas of the constitution under strain, but for Dunlop, it is the long-term context that is key to explaining the proposals in the manifesto. In his opinion, the proposals are not about ‘settling scores’.

For a number of years, EU membership, the devolution settlements and the HRA have all to varying extents limited parliament’s law-making powers. For example, Lord Neuberger, former President of the Supreme Court, has pointed out the profound changes that the HRA has brought to the role of judges in relation to interpretation of statute law, and retired Supreme Court Justice Lord Sumption’s recent Reith Lectures have contributed to a long-running debate about the proper role of judges in a democracy. In Lord Dunlop’s view, the proposals on page 48 of the manifesto reflect the fact that Brexit has put additional pressure on an already strained constitution, and should therefore prompt us to consider whether the constitution is operating as it should.  (more…)

 Despite the UK Supreme Court managing to find unanimity regarding the legality of the attempted prorogation of parliament in  September, the rest of the country, including its national newspapers, appeared to divide along Leave/Remain lines regarding the correctness of the judgment. Sam Anderson and Robert Hazell analyse how the national press discussed the political and constitutional questions raised by the judgment.

The government’s resounding defeat in the Supreme Court is one example of the rolling constitutional drama that breaks in the news almost daily. However, when it comes to media coverage of these stories, the key consideration is almost always ‘What impact will this have on Brexit?’ Issues are reported through the Leave/Remain divide, with popular news outlets framing events for their audiences. This post seeks first to examine the extent to which this has occurred with the prorogation case by looking at eight national newspaper editorials, and the way they have framed the political implications of the judgment. Then, using the same editorials, we will examine whether there is consensus around important constitutional issues that have arisen in this case, such as the proper role of the Court and the importance of the independence of the judiciary. We coded the editorials on both these questions, and found that the case was framed by almost all the papers to some degree through a Brexit lens, and that there is a lack of consensus on the constitutional issues.  

The political questions

The first issue was coded on a scale of -5 to five. Zero reflects the position of the Court: that the judgment concerned the specific prorogation issue, but was neutral with regards to the political implications of the decision. Editorials which argued the judgment would have negative political implications for the government and the Brexit process were assigned a negative number up to -5, depending on the extent they engaged in direct criticism of the judgment, and promoted the government’s policy of getting Brexit done. Editorials that argued that the judgment would have positive political implications for the government and Brexit process were assigned a positive number up to five, depending on the extent to which they were directly critical of the government and its Brexit policies. All eight articles were independently coded by two researchers. Where discrepancies occurred, a mid-point was taken. 

Paper	Implications for Brexit
Sun	-5
Mail	-4
Express	-2
Telegraph	-1.5
Times	0.5
FT	2
Independent	3
Guardian	4.5

 

Looking qualitatively, there were three overarching positions taken. Of the eight publications, four were critical of the judgment and its  potential political implications. The Sun described the Prime Minister as the victim of a ‘staggering legal coup’ and accused the Court of having done the bidding of Remainers. The Daily Mail was less virulent, but still argued the case was a victory for Remainers, and emphasised how the judgment allowed MPs (including ‘masochistically intransigent Eurosceptic zealots’) to continue to try and block the will of the electorate. The Daily Express was less direct but warned politicians that the case should not be used as a way to try to avoid Brexit. The Daily Telegraph made the only substantive comments on the case, noting pointedly that the Supreme Court overruled the High Court’s finding of non-justiciability, and gave some explanation for the prorogation: the government had only been ‘trying to carry out the democratic will’ of the people as expressed in the referendum.  (more…)

On 22 July, the Unit, in association with The UK in a Changing Europe, hosted four experts on the legislative process, including our Director, Professor Meg Russell, for a panel discussion of parliament’s handling of Brexit. Sam Anderson summarises the main contributions. 

On 22 July, the Constitution Unit held a packed event entitled ‘Brexit and Parliament: an end of term report’. As well as launching Unit Director Professor Meg Russell’s new Senior Fellowship with The UK in a Changing Europe, it offered a key opportunity to reflect on parliament’s recent performance on Brexit and what may lie ahead. The other contributors were Hilary Benn MP, Labour Chair of the Commons Exiting the European Union Select Committee; Chris White, Managing Director of Public Affairs at Newington Communications and former adviser to two Conservative Leaders of the House; and Dr Brigid Fowler, Senior Researcher at the Hansard Society, who leads its work on parliament and Brexit. The event was chaired by Dr Daniel Gover, Research Fellow at the Constitution Unit and Lecturer in British Politics at Queen Mary University of London. The discussion included whether parliament had used some of its more innovative procedures appropriately, potential next steps in the backbench fight to stop ‘no deal’ and public perceptions of how parliament is performing in the Brexit process.

Meg Russell

Meg Russell gave an overview of the three key research areas that her new fellowship will focus on.

1. How direct and representative democracy relate to each other in the UK

This has been one of the main issues raised by the 2016 referendum. The centrality of parliamentary sovereignty in the UK constitution means that there is a natural tension between representative democracy – where decisions are made by parliament – and direct democracy, involving the use of referendums. Referendums can undoubtedly create tensions with parliament’s representative function; however the Unit’s Independent Commission of Referendums concluded that in certain circumstances referendums can usefully complement parliamentary sovereignty.

The concepts of direct democracy and the overriding mandate of the referendum have fed debates about the role of parliament that have taken a ‘darker turn’ in recent months. Challenging parliament’s decisions is legitimate in a democracy, but threatening the right of parliament to sit and perform its constitutional and legal functions is something we never expected to see. This rhetoric seeks ‘to pit the people against parliament’, with the ‘worrying implication that the executive should cut loose’ of the accountability that lies at the heart of our system, in the name of the people. For example, many responses to a recent tweet from former Conservative MP Nick Boles, in which he expressed concern about the government ‘muzzling’ parliament, invoked ‘the will of the 17.4 million’, with some suggesting that the will of MPs no longer matters. Prorogation has been advocated by a number of Brexiteer MPs, to prevent parliament blocking a ‘no deal’ Brexit. However it has been criticised by other prominent Leavers, such as Sir Bernard Jenkin, Chair of the Commons Public Administration and Constitutional Affairs Committee, and Andrea Leadsom, former Leader of the Commons.

2. The power of parliament over government policy

Professor Russell’s previous work has looked at the ways parliament exercises its power, including through select committees and the legislative process. Parliament is more powerful – and exercises that power in more subtle ways – than many often assume. The Brexit process has demonstrated this in a high profile way. A number of established patterns have continued: one is the anticipatory influence that the Commons has on government, such as when Theresa May offered MPs a vote on ‘no deal’ in March to avoid it being forced upon her. In addition, the Commons and the Lords have largely worked together as partners not rivals; the scrutiny role of select committees and the Commons chamber have been shown to play an important role in testing the claims and policies of ministers; and opposition days have been used in a number of ‘imaginative’ ways. (more…)