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00:00:00:00 - 00:00:29:11 You are listening to Parliament Matters, a Hansard Society Production supported by the Joseph Rowntree Charitable Trust. Learn More at hansardsociety.org.uk/pm. Welcome to Parliament Matters, the podcast about the institution at the heart of our democracy. Parliament itself. I'm Ruth Fox and I'm Mark D’Arcy. Coming up when everyone is talking about you, but you don't get to speak. 00:00:29:13 - 00:00:55:12 Strange case of Diane Abbott at Prime Minister's question time. Plus Henry VIII Powers. How the sinister legacy of that murderous monarch may now be a threat to parliamentary democracy. And the loneliness of the one person party, from conservative deputy chairman to Reform’s lone MP, what might the future hold for Lee Anderson? 00:00:55:14 - 00:01:17:24 But first, I suppose we've really got to start on events at this week's Prime Minister's question Time, which was dominated by the issue of the rather unpleasant remarks made about Diane Abbott, the first black woman MP who's now currently suspended from the Labour whip, incidentally, by a significant Tory donor. Sir Keir Starmer questioned the Prime Minister about it. 00:01:17:24 - 00:01:37:10 Stephen Flynn of the SNP questioned the Prime Minister about it. Other Labour MPs questioned the Prime Minister about it. Diane Abbott was at the back of the chamber standing up and down trying to catch Mr. Speaker's eye to the point when he feared for her knees. But she didn't get a word in edgewise and she was the subject of the discussion. 00:01:37:10 - 00:02:03:04 So what was going on? Yeah, it just looked terrible and absolutely appalling image of the operation in the Commons, watching public in particular for women, I have to say. So the whole week basically has been dominated by the Conservative Party and ten Downing Street being unable to get on top of this story and give a straight response. So we've got this Conservative Party donor, Frank Hester, who has donated millions and millions of pounds to the Conservative Party. 00:02:03:04 - 00:02:25:20 But he's reported to have said a few years ago talking about Diane Abbott that you just want to hate all black women because she's there. And I don't hate all black women at all, but I think she should be shot. Now, this is the subject of the discussion at PMQs, where, as you say, Keir Starmer and Stephen Flynn are trying to pin down which you see not in terms of an apology commitment to give the money back. 00:02:26:01 - 00:02:49:11 10 million quid here and Rishi Sunak for, you know, 24, 36 hours beforehand sending out ministers onto the airwaves. And they've not been giving a sort of a straight response. Was this racist language, was this misogynistic? Were they prepared to say that they'd give the money back? The line clearly was never going to hold and ministers were going out clearly with a line they weren't comfortable with. 00:02:49:13 - 00:03:21:00 Some point late in the day before PMQs, Kemi Badenoch clearly had enough and breaks ranks and she comes out and says, Yes, it was racist, Yes, it was misogynistic. But she's Minister for Women and Equalities, So yeah, but you know, he's apologized and we should accept that apology, the contrition, and move on. Now, Diane Abbott, who's at the center of this, she's apparently reported these remarks to the parliamentary liaison and investigations team, which is the police unit set up in the aftermath of the Jo Cox murder in 2016. 00:03:21:05 - 00:03:39:06 So she's the centerpiece then at PMQs. First thing that strikes me is that Rishi Sunak did not issue an apology to Diane Abbott. I mean, at no point in the remarks during PMQs does he really apologize to her. He didn't address her and she was there directly in front of him to demand no apology on behalf of the Conservative Party. 00:03:39:11 - 00:03:59:10 But then it gets even worse because, as you say, she's bobbing up and down numerous times. I mean, on Sky News calculations, 46 occasions she bobs. And this is the process by which MPs stand up in the chamber to try and catch the speaker's eye in order to ask a supplementary question at PMQs. And on each occasion, she's ignored by the speaker. 00:03:59:13 - 00:04:28:12 So it looks absolutely terrible. Now, the technical explanation for this is that the speaker, when he's chairing the Prime Minister's question time session, has to make sure that he has a straight balance between speakers from the opposition benches and speakers from the Government benches. They've got to be equal numbers. And the difficulty with that every week is that he also has to include MPs who've been randomly selected without reference to their party to ask a question. 00:04:28:14 - 00:04:51:22 And as it turned out, this time when there was the ballot for asking questions, 15 names come out. 11 of them this time were already opposition party speakers. So it was quite difficult for the Speaker to crowbar in an additional opposition party questioner. In theory, but the Speaker has very wide discretion, not least over how long he lets Prime Minister's questions run for. 00:04:51:23 - 00:05:11:15 So he could have gone through the whole list and then let it run a little bit longer so he could also allow a question from Diane Abbott. So it was certainly within the realms of possibility for him to bring in an additional person if he wanted to, but I suppose maybe he's had his fingers rather badly burned by stretching the rules in the past. 00:05:11:17 - 00:05:31:18 Yeah, but the problem with his now goal is by not applying his discretion, it looks from the outside, as you know, here is this woman who's being racially abused, who's had to sit quietly while bobbing up and down, but essentially has been rendered voiceless while the big boys at the dispatch box are duking it out. And she has to sit quietly at the back. 00:05:31:18 - 00:05:48:03 And, you know, her voice in all this debate is silenced. Not a good look, I suppose. The alternative was that he could have allowed her to raise a point of order, perhaps even tipped her off that a good idea would be to raise a point of order at the end of Prime Minister's questions and use that as a mechanism for her having her say. 00:05:48:03 - 00:06:10:14 But none of that happened. And Diane Abbott sat there throughout the whole session, the whole half hour. She was the center of discussion. She didn't get a chance to say her piece. An interesting question. We won't get an answer to this, but an interesting question would be what did the speaker, the deputy speakers, their officials talk about and discuss in relation to this? 00:06:10:16 - 00:06:30:03 So every day before parliamentary business starts, there's a meeting. It's called a speaker's conference where the speaker, the deputy speakers, the senior clerks meet and they sort of discuss what are the issues and challenges in terms of parliamentary business that they anticipate, how are they going to handle them? Selection of amendments, you know, are they going to accept an application for an urgent question and so on? 00:06:30:05 - 00:06:58:00 You would have thought that the question about Diane Abbott, because it's dominated politics, the political airwaves for the previous 24, 36 hours, you would think that that would have been discussed and think about how you would manage that. And therefore to go into PMQs, of course the Speaker will be thinking, I've really got to take many more questions from the Government benches in order to balance this lopsided outcome from the ballot for PMQ 00:06:58:05 - 00:07:13:17 Questions, but I've actually got to deal with this issue as well. Equally, you could say, well, Diane Abbott could have stood up and made a point of order at the end of PMQs. But I think also, you know, she's been in the house long enough to know what the procedures are, but I suspect she probably thought sod I don't think I'll bother. 00:07:13:21 - 00:07:30:10 It's not necessarily very satisfactory either because often when people are raising points of order at the end of Prime Minister's questions, everyone's sort of getting up and going. The chamber's empty and there's a lot of hubbub and often the Deputy Speaker is taking the chair ahead of the Speaker. So you're not getting the same audience. It's no longer prime time. 00:07:30:10 - 00:07:48:06 The TV will have cut away. And she shouldn't have to. It's a bottom line, you know, it should have been dealt with in a way that enabled her to make her point, to have of say, I'm afraid it's something else that will be held in evidence against Mr. Speaker Hoyle, that he didn't quite get this one right and he's not had a happy couple of weeks. 00:07:48:08 - 00:08:08:21 So we'll have to see what Diane Abbott's next move is. So it may be that she applies for a debate or asked to make a personal state or something, but I don't think we've heard the last of this or of her quite yet. So, I mean, as you say, the speaker's position probably, you know, a lot of these copybook, again in the eyes of quite a considerable number of backbenchers and people are not happy. 00:08:08:21 - 00:08:29:17 But I think it was a good good for Rishi Sunak either because I think it conveyed a degree of political naivete on his part in terms of the management of the issue. And also some MEPs have been saying a certain lack of grace in how he handled it in the chamber. One of those revealing little moments afterwards, both Keir Starmer and Stephen Flynn, the SNP leader, went up to have a word with Diane Abbott. 00:08:29:17 - 00:08:57:19 I mentioned Diane Abbott took the opportunity to put in a plea to have the Labour whip restored to her. Apparently she did, yeah. So again, watch that space to see what happens there, because she may have a sort of full, full on Soviet style rehabilitation process now. Well, I think the fact that for context, Diane Abbott gets more abuse than any other MP in the House of Commons and has done for years, I do think it raises that question of the duty of care that parties have to to their employees in these circumstances. 00:08:57:19 - 00:09:18:18 As you say, she lost the whip, what, nearly a year ago now for her comments, which were inappropriate. She apologized for them. But you do have to question why has it taken nearly a year to decide whether or not she should regain the whip or not? And, of course, regaining the whip or not as an election looms is fairly critical to whether she can remain as a member of parliament. 00:09:18:21 - 00:09:42:18 Yeah, and, you know, it raises all those sorts of questions about does the party have a responsibility to its employees, particularly when in the kind of situation that Diane Abbott is in, where if they're excluded from, you know, the sort of party and decision making processes and all the support structures that come with the party, she's particularly exposed because of the nature of the abuse that she particularly gets. 00:09:42:20 - 00:10:16:18 Absolutely. Well, as we're recording, Ruth, MPs are debating the estimates and mystical process by which Parliament authorizes the spending of billions upon billions of pounds of taxpayers money. You'd imagine a crowded chamber, fiery speeches, ministers under fire see the whites of their eyes. But not too much. No. So we should explain that what they're debating is what's called supplementary estimates, which are essentially the sort of the revised final departmental spending plans as we approach the end of the financial year. 00:10:16:19 - 00:10:36:11 So what changes in the department budgets do they need and what more money do they need to cover things? And interestingly, the House of Commons Library, which is an excellent resource if you're if you're not already looking at the briefing papers and research papers, listeners, it's a fabulous resource. You should sign up to their newsletters and get those in your inbox. 00:10:36:13 - 00:10:56:10 So they've produced a briefing on the estimates and they've basically said they're asking for more money than at any point in time other than during the first year of COVID since 2015/2016. When you think about what we've had in that period of political and economic dislocation, we fought the, you know, the war in Ukraine. We had the cost of energy crisis. 00:10:56:10 - 00:11:24:12 We had Brexit, and yet the request is second only to the first year of COVID. So what's the money spent on? According to the library, the three biggest drivers of this are one, the pay settlements with the public sector, and particularly the NHS, pay for the doctors, the doctors pay. And then secondly, the impact of inflation on the student loan book, which means it's actually essentially been revalued, which is costing the Department for Education a huge sum of money. 00:11:24:14 - 00:11:48:05 And then the third is asylum, which is one of the subjects of the two estimates debates today that the MPC are considering the costs of the Rwanda scheme, the costs of accommodating migrants in this country, all of the above. It's not really in the Rwanda scheme. So we haven't got to that. I mean, there's bits of that. But interestingly, the Home Office didn't put in for as much money at the start of the year in what's called the main estimates. 00:11:48:05 - 00:12:08:14 When they put together their budgets and spending plans as they would normally do. So it's an awful lot more money coming in now. Later in the year, they're requesting parliamentary authorization for home Office. Select Committee not happy with that because it of course, it makes it much more difficult for them to scrutinize so late in the financial cycle what the government's spending the money on. 00:12:08:14 - 00:12:40:23 But essentially they asked for an extra £5.9 billion, 4 billion of that relates to the cost for asylum, 1.2 billion to implement the Illegal Migration Act. So the Act prior to the Rwanda Bill and haven't fully implemented that yet, and half a billion pounds for the Afghan resettlement scheme. Now precisely because the Home Office did not ask for as much money from earlier in the year in the start of the financial year as they could have done normally, would they actually had to get an emergency cash advance of £2.6 billion to cover them? 00:12:41:00 - 00:13:03:00 Well, we've all been through like your emergency credit card. So, yeah, people are not happy with the amounts of money and the way in which it's being profiled in the financial cycle. And it is difficult to scrutinize. But employees are looking at that in a short debate today. And I'd imagine somewhere down the list as well. The minister of defense presumably is is wanting a bit of money as well for the costs of supplying all those arms to Ukraine. 00:13:03:01 - 00:13:33:12 Yeah, So they've asked for I think it's another billion pounds to sort of replenish stocks as it's described. Well, the sort of nuggets, I mean, apparently the Grenfell Tower inquiry has returned now from here. This returned £9.9 million of unspent funding. But the COVID inquiry wants more money. So it balances out. Well, another interesting parliamentary development or perhaps development for Parliament in the future that came up this week was Sir Keir Starmer announcing that Labour would find a way to allow a debate to take place, presumably in the next Parliament. 00:13:33:12 - 00:13:57:05 Now on assisted dying. And this is something that's been rumbling around on the fringes of parliamentary activity really for quite a while. One of my annual tasks watching private members bills in my BBC days was to see if someone would finally attempt to do an assisted dying bill again after the implosion of the rather disastrous 2017 attempt at legalization by the Labour MP Rob Marris. 00:13:57:07 - 00:14:18:19 There are all sorts of people who are very strongly for it. There are all sorts of people who are very strongly against it, and the trouble with attempting to do it by a private member's bill is that private members bills are quite deliberately, procedurally extremely vulnerable. A determined group of parliamentary gorilla can stop them in their tracks and tactics like putting down endless amendments, all of which have to be debated at report stage. 00:14:18:19 - 00:14:44:09 And then you run out of time and couple of them. The bill is gone. So the idea of a government saying it will find time for the issue to be debated suggests that they're looking at another route to at least examine this issue in great detail. The other option, of course, is that the government might decide in the next parliament if it is a Labour government that they want to reframe the parliamentary timetable because of the size and scale and the legislative program and the rapidity with which they want to get on with it. 00:14:44:11 - 00:15:08:14 And one of the options is possibly a reform of private members bills. You know this, but, you know, we are advocates of some changes. You know, the Procedure Committee of the House of Commons has made recommendations for changes. So that could be an option. If you change the procedures, you make it easier, but you will resolve or address some of those procedural obstacles which would exist now in terms of the normal arrangements for private members bills. 00:15:08:16 - 00:15:29:24 And that might then be a way in which you can utilize that route for things like, as you say, the assisted dying bill. But of course, the critical question is would it be on a free vote when it seems so is a sort of moral question as opposed to something on which parties necessarily have very clear dividing? I think it would be a very, very dangerous issue to attempt to impose a party whip on. 00:15:29:24 - 00:15:53:23 You'd have a lot of people with very strong convictions on both sides of the debate who simply wouldn't be told this is how you're going to vote on this issue. And so you're setting yourself up for a quite unnecessary fight with the whips over this. This is a classic free vote issue. What I'm imagining here, I'm looking back to precedents from 20 years ago now when the Labour government put up a bill to ban hunting with hounds and indeed other forms of hunting. 00:15:54:00 - 00:16:20:00 This is after several unsuccessful attempts to do this via a private member's bill. And what they did was they put up a quite sort of vanilla bill that would still allow some licensed hunting in the aspect nation that might well then attempt to amend it. And I think it was Tony Banks, the late Labour MP, led an attempt to go for an outright ban, which got through and the hunting ban was thereby introduced. 00:16:20:00 - 00:16:38:14 But they started with quite a sort of vanilla, if I can call it that option, and left the house on a free vote, toughened it up and the House did so and eventually it was tank through the House of Lords. It took a while. That was quite a scrap over it. There were enormous countryside Alliance demonstrations on several occasions. 00:16:38:16 - 00:17:03:09 So it was it was quite a thing. And you might see something similar happen this time. Maybe the government will come up with its own wording and its own draft bill and see how MPs want to amend it. But I mentioned they would want to keep a very close eye on the precise wording because the endless legal troubles of having a badly worded bill on an issue like this, it imagine the courts would be tied in knots for years if MPs got it wrong. 00:17:03:09 - 00:17:20:06 So one way or another the government's dibs would be on the eventual product, but they'd try and go with the opinion of the House. Yeah, I mean, you've got frameworks in terms of existing drafts that have been put through the House of Lords, for example. PMBs. I mean it's an obvious candidate possibly for pre-legislative scrutiny. 00:17:20:06 - 00:17:39:16 Two committees in each House or a joint committee have a go at it, make some suggestions, take evidence. And if the government did want to, you know, make the time, it's the kind of thing which it's not going to be a huge bill. It's not going to be, one imagines a very lengthy bill. You could still give it a generous watch of time just to avoid it being criticized. 00:17:39:16 - 00:17:59:02 Yeah, of course. Through. Yeah. But on the other hand, it's the kind of thing that you might put in your sort of second tranche of bills in a session after your big ones have started through the pipeline. Once they've gone to the House of Lords, you've then got time in the Commons to fill. So you kind of want these filler bills which are smaller and which you can devote a bit of time to. 00:17:59:07 - 00:18:26:23 Yeah, indeed. I mean you talk about private member's bill, so they're just an incoming Labour government that wanted to do a lot of things very quickly, has a convenient precedent here. In 1945, when Clement Attlee's Labour government came in, the then leader of the House, Herbert Morrison, Lord President of the Council and a kind of ringmaster of the government's legislative program, actually suspended private members bills for, I think, at least one year, possibly for longer than that, in order to make more time for all the other things the government wanted to do. 00:18:26:23 - 00:18:57:02 So an interesting precedent. Yeah, that's when we really saw society within doors. Well, Mark, we leave it there for a short break. And coming up, we've got an interview with Professor David Howarth, former MP who's got a lecture with the Statute Law Society this evening to talk about Henry VIII Powers. So more after the break. If you're enjoying the Pod and think like Mark and I do, that Parliament matters, why not join the Hansard Society? 00:18:57:06 - 00:19:21:13 This year we celebrate our 80th anniversary and throughout the year we'll have a number of special events to mark this important milestone for as little as a cup of coffee each month. You can join us and follow in the footsteps of our first members, Winston Churchill and Clement Attlee. And if you're enjoying the issues that we're talking about on the pod, you'll also be getting a special members only despatch box newsletter each week where we bring together the best news and stories about parliaments here in the UK and around the world. 00:19:21:19 - 00:19:45:07 You can join by going to hansardsociety.org.uk/membership. Now it most people think of Henry VIII, they think of the six wives and their various unhappy fates. When historians think of Henry VIII, they probably think of the dissolution of the monasteries and the reformation of the English Church. When a constitutionalist thinks of Henry VIII. 00:19:45:13 - 00:20:11:00 They think of something rather more specific. The 1539 Proclamations Act, which gave that murderous monarch the power to make law by proclamation, or at least so he thought. It was heroically resisted by the parliament of the day. And the consequences of resisting Henry VIII. Well, were there for all to see. But there's a legacy to the idea of so-called Henry VIII powers that resonates through to our Constitution today. 00:20:11:00 - 00:20:51:01 And a warning note about that legacy has been sounded by David Howarth, former Liberal Democrat MP, now Professor of law at Cambridge University. David, you're extremely worried that Henry VIII powers are ultimately corroding parliamentary democracy. Explain. Well, you probably start with what Henry VIII power is. It's a power created by an act of Parliament. And the act of Parliament says that a minister can make further changes, not just in terms of secondary legislation filling in details, but in changing primary legislation that is changing other acts of Parliament. 00:20:51:03 - 00:21:14:10 Sometimes this is previous acts of Parliament. Sometimes it's the very act of Parliament being passed. Sometimes it includes future acts. And that kind of power, it means that ministers can bypass parliament. They needn't go through having the readings of bills. They needn't go through the committee stages and the detailed consideration of bills in the two houses. 00:21:14:13 - 00:21:39:12 So they can just in effect say we've decided to rewrite the law in the following way. This is it, and that's that nothing Parliament can do about it. That's right. And the problem with that is that it just ignores Parliament. So usually they're set up so that there could be one vote in each House, although in past times that could be set up so that you couldn't have a vote in the House of Commons because the government controls the agenda and you wouldn't have the time to do it. 00:21:39:14 - 00:21:58:20 You were reliant on a vote in the House of Lords, and the House of Lords wouldn't do it because they were afraid that they weren't democratically legitimate. And if they kept doing that sort of thing, the Commons would get rid of them. So in effect, this is ministers changing the law and not just changing minor or but changing fundamental law, if that's what the power allows. 00:21:59:00 - 00:22:25:00 And how long has this been going on? Because you point in in the lecture that you're giving about this subject to the regulatory reform bill, the legislative legislation, as in 2006, to be fair to Henry VIII, as we explained, he didn't get away with getting this sort of power and perhaps he didn't want it in the first place and all sorts of historical debates about what exactly was going on in the Proclamations Act. 00:22:25:02 - 00:22:53:05 And I used to sit at lunch in my college in Cambridge next to Geoffrey Elton, the great Tudor historian, who explained that this is all nonsense and that there was no such thing as a Henry VIII clause in Henry VIII’s time. So the first one that you can track down is in the 1880s, the Local Government Act in the 1888, but there were more of them in subsequent decades, including ones passed by the great Liberal government of 1906 and from the early twenties. 00:22:53:07 - 00:23:25:08 Academics, reformers, judges, parliamentary committees constantly complained about them. There was another bout of them under the Thatcher government. So there was a committee of inquiry chaired by Geoffrey Rippon, if remember him reporting in the late eighties and then further complaints and reports. Lord Judge, Chief Justice made a speech about it. Various academics, rights lawyers and committees, the House of Lords saying this is a bad thing and should be stopped. 00:23:25:08 - 00:23:48:22 The question that really has to be asked about this is why does Parliament wear it? Why do parliamentarians put up with being bypassed in this way? You give ministers the power to do really quite fundamental changes to the law and they have no role. That's right. And that's what my lectures about. The question is why does the political system, including government backbenchers, put up with this kind of thing? 00:23:48:24 - 00:24:11:24 The normal argument for Henry VIII clauses is it's a sensible convening. It's to allow ministers to tidy up the statute book if there are anomalies or if not all the changes that were logically required by a piece of legislation have been spotted by the Office of Parliamentary Counsel, or if there are conflicts in the future that you need to tidy up. 00:24:12:00 - 00:24:45:14 So that's the standard argument. But the problem is that doesn't explain the extent of powers that are being granted now. Both the powers of granted under the new Labour. When I was an MP in the bill you referred to in 2006 but also more recently vast powers being granted under the Brexit legislation, under the Strikes Act, under the new Regulation of Subsidy Act, vast powers which can apply not just to law in the past but also law in the future. 00:24:45:16 - 00:25:15:07 And if you look at those acts and the kind of powers being granted, they're not just noncontroversial matters. I remember sitting in a committee room in the Commons in 2006 listening to Jim Murphy, very affable minister, saying that you would never use the Labour minister, that Labour ministers. So you would never use these powers for anything controversial. And of course, eventually on that bill, the government gave way in lots of different ways, but they never allowed anyone else to define what was controversial. 00:25:15:12 - 00:25:47:22 They always kept that power to decide what was controversial. The sky's the limit. Yeah, and the problem is that if you've got that sort of power, what you've got the power to do is to change policy in quite fundamental ways without parliamentary discussion. And especially the acts have been passed in the past five years. What they allow is the government to kind of sweep away previous legislation by previous parliaments that stand in the way of the policy that they're adopting and even to allow them to change their own policy drastically without further parliamentary discussion. 00:25:47:24 - 00:26:07:13 And that's very interesting. It kind of says to the opposition, you've had your say, you've lost, you have no role anymore in policymaking. The no, no, no argument to be heard from you just go away and even says that to government backbenchers. The government backbenchers have had their go and this is as far as they get and they get no further say. 00:26:07:14 - 00:26:25:24 So It's protecting the Government's ability to make policy without parliamentary scrutiny. Are you of the view that we should abolish them altogether in the way that, for example, or Johnson you mentioned, you know, recently died suddenly, but former convener of the crossbench peers his great speech on this talked about consigning Henry VIII pounds to the dustbin of history. 00:26:25:24 - 00:26:44:01 Now the counterargument when we at the Hansol Society have always said is, well, let's look at the function, not just the form that actually Henry VIII powers, for example, to change a name in a bill. If you were changing either government department or a pension benefit or something, you needed to rename things, you needed to amend primary legislation for that. 00:26:44:03 - 00:27:08:03 Genuine tidying up is fine. But as you say, the much greater scope to amend policy is where this becomes worrying. And it is it really the powers or is it actually than the fact that the scrutiny procedures downstream are so poor? Well, it's both the House of Lords, as you say, is just always worried that it's an illegitimate institution and so won't exercise even the powers it's formerly got. 00:27:08:05 - 00:27:35:11 The House of Commons is subject to majority rule, although it's not always subject to majority rule. So when you have a minority government, there's more of a scope for the commons to do things. But nevertheless its procedures basically don't have much effect on these sorts of order. There are very complicated procedures for some sort of order, especially ones under the Leg and Rig Act as it became, which allows other committees to have a say. 00:27:35:13 - 00:27:54:01 But normally all you get is a 90 minute debate in a committee room, which members use to attack the government on some issue of the day. There's a motion passed that the committee has considered it that goes to the House without further discussion. And if there is a vote, it's a vote on pink paper on a Wednesday lunchtime without any proper debated deferred division. 00:27:54:06 - 00:28:22:10 The test is whether this power goes beyond the mere technical. One test I'm interested in is if you have a statute that would be taken by the courts impliedly to repeal some previous statute, then of course that's the kind of circumstance where it'd be okay to have a power to make the implied repeal explicit. But that doesn't justify any candidate power for future law. 00:28:22:12 - 00:28:39:12 There's a kind of strange formula that I've been developed which builds in a Henry Yates clause to change past laws and any other law passed in this session. So it's all self rewriting. Yes, that's right. So. sorry, we've changed their mind. So we're going to have a different policy. And sometimes it's also to amend the act and change the power. 00:28:39:13 - 00:29:15:18 That's right. To amend itself, which which is always the problem with the initial draft of the 26. And that's too much. Right. That allows policy change. And you have some very alarming examples in your speech about the kind of things that they might do. There were some alarming examples under the original draft of the 2006 Act, which allowed the power to be used on the act itself to remove all the restrictions, and then for the government to give itself powers to to rule by decree that would only be subject to a single vote in the House of Lords before it became law. 00:29:15:20 - 00:29:37:05 And that's why the Bill was, was called by my colleagues in the Cambridge law faculty, the abolition of Parliament Bill, because it reduced the whole of voluntary democracy to one vote in an undemocratic House to be fair to the government, the time they kind of gave way on that and the act as passed, includes a provision that the powers can't be used on the Human Rights Act and can't be used on the act itself. 00:29:37:07 - 00:29:58:10 And so they did build in safeguards eventually. But as I'm going to say in the lecture, there are certain aspects of the powers given they were just not give away, they wouldn't give away the right to decide themselves. This basic question about whether the power is being used technically or being used substantively, that question they kept to themselves. 00:29:58:12 - 00:30:19:00 So whether or not it's tidying up or whether it's something so big that it ought to justify a full dress, parliamentary debate, maybe even an all singing, all dancing bill going through parliament. That's right. And so it come back to your initial question. The point is not just what the test should be, but who decides who decides whether this is technical or not. 00:30:19:02 - 00:30:45:16 So what are the choices? You can give it to the government? Which will government? You can give it to the courts. Nobody wants you can give it to the commons. But that's subject to majority rule and gives the Lords what they want use it. So this is why it's a terrible problem. One possibility is to give it to a joint committee of the Commons and the and the Lords in the same way as the Human Rights Committee to say that they get to decide. 00:30:45:18 - 00:31:16:14 And we've had examples of this kind of sorting committee being proposed, for example, during the Brexit legislation. Yeah, and one of the things that's happened as a result, I mean really since the legislative and regulatory Reform Act is that we have had these safeguards, these forms of strengthened scrutiny procedure. And I actually think that that the House of Lords has sort of focused on that, trying to get those amendments into bills to constrain the powers that ministers are seeking rather than saying, actually, is this power appropriate and should we strike it out because they don't want to have that confrontation with. 00:31:16:19 - 00:31:42:09 Yeah, with government. That's part the problem. But ironically, actually the provisions that did eventually end up in the Legislative and Regulatory Reform Act, known as the legislative and regulatory reform order process, the super affirmative is what it's it's sort of procedurally known as that actually has kind of a rebounded on the government now because actually it's quite a tough scrutiny process to go through and it takes quite a long time. 00:31:42:09 - 00:32:03:08 So they actually have not brought over the years anywhere near as many of these legislative and regulatory reform orders as they expected. And in fact, government advice is that it's better to use primary legislation often because it's quicker. Yeah, that's fair. Normally can't amend one of these orders any kind of statutory judgment you can't amend. That's one of the big problems of it. 00:32:03:10 - 00:32:23:11 And so there's a thing called super affirmative procedure where you don't actually of amendments, but parliament can suggest amendments. You can say, well, we would have passed this if we'd said this. And that goes back to the minister in the business and then decide whether to incorporate the amendment or not, and then you bring it back what we have in 2006 and do something else, which is something called committee veto. 00:32:23:13 - 00:32:45:21 And the committee veto allows other committees, select committees by majority to block that have been used not so far as I know, Ruth. I know well, the committee recommended that they not proceed. I think it was the horse race betting. I forgotten that one. And invite the government I think dropped that in the end. But no, I mean, it's not become a sort of stand off, no case. 00:32:45:24 - 00:33:08:08 No, no. But going back to your point about amendment and you say part of the problem is it can't amend and we've been looking at this through all delegated legislation review and it's incredibly difficult to conceive of a scenario in which you could introduce an amendment of statutory instruments laid under powers in acts granted to ministers because it undermines the principle of delegation in the first place. 00:33:08:08 - 00:33:40:04 Why are we doing this? But secondly, you'd have to have a mechanism for reconciling the views of both houses, which means parliamentary time. It means a form of parliamentary ping pong. So we've argued that actually that's not practical. But what you could have is a mechanism to put forward a proposal to amend the motion to approve the instrument, indicating what changes they'd like to see, to bring the legal instrument within the bounds of acceptability for common landlords. 00:33:40:06 - 00:34:00:12 Yeah, well, that is basically the super affirmative. That's, that's the bill that's the basic structure, super affirmative. And it's also got something in common with the rather peculiar procedure for bills going through under the Parliament. But the question that lies behind this is why we delegating this to ministers in the first place. You've got what kind of powers will be delegate. 00:34:00:14 - 00:34:28:09 You've got a very scary section in the speech about the underlying mentality of this, what you call the Whitehall view of parliamentary democracy, which is essentially that once you've had an election result, Parliament is there to rubber stamp the proceedings of the majority. Yeah. So the Whitehall view of the Constitution, which becomes very clear to anyone who turns up in Westminster, is that Parliament's job after an election is simply as a counting device to work out who's won the election. 00:34:28:11 - 00:34:54:13 Then after that, their only job is to supply the government with the finance and the laws that it needs to implement their manifesto on which the government was elected and that Parliament's job is not to do anything to block all those questions that call for questions and that Parliament actually is simply when it when it's debating, it isn't really bating law, it's simply letting off steam. 00:34:54:15 - 00:35:19:16 Business is not to make policy. The government makes policy on the basis of what is put to the electorate. So the point of view is a view of democracy, not an anti-democratic philosophy. It's very particular view of the way democracy works, not as a parliamentary democracy, but as a quasi presidential system with Parliament just making noises. It's a sort of rubberstamp chamber and a letting off steam chamber better than bottling it up, I suppose. 00:35:19:16 - 00:35:43:06 But what's the alternative? Well, the alternative is the theory of the Constitution that all lawyers seem to believe in treating the Supreme Court in the middle of two cases, which is that we have a military being the prorogation propagation case now being the idea that we're a parliamentary democracy. And that means that parliament gets to decide things. Parliament is the center of the constitution, not ministers. 00:35:43:08 - 00:36:07:00 Elections elect members of parliament. They have programs which they're committed to, but to the electorate. But I think the world always changes. It's not possible just to have this simple of the mandate always needs to be further discussion. Things turn out more difficult than you expected, and so policy needs to be decided by the interaction between the Government and Parliament, in particular the Commons. 00:36:07:02 - 00:36:29:00 In reality, that's what actually happens. The most important relationship in any Parliament is that between the Government and its own backbenchers. Now quite a bit of this happens not in public, though, quite a bit does happen in public. You can hear backbenchers complaining about things and then ministers go and try and assuage their fears either in debates or talk to them afterwards. 00:36:29:06 - 00:37:12:08 There is that parliamentary aspect of the way we are governed and the Westminster view of the Constitution, in contrast to the Whitehall view, is to emphasize that and to say that's what we are. We are a parliamentary democracy in the sense that the most important institution in the Constitution is the House of Commons. Let me just devil's advocate here, because I've been a researcher of this stuff and an advocate for change for well over a decade now, banging my head against a brick law like like many who are advocating change in this area, the argument in Whitehall is if MPs were interested in this stuff and wanted to stop it, they could buy the House 00:37:12:08 - 00:37:31:17 of Lords. You know, the argument is, you know, the drafters, for example, get blamed quite a lot by the House of Lords that the civil service is part of the problem, that they are allowing standards of legislative practice to slip. The argument from the drafters would be, well, you know, you keep allowing it to happen because you keep accepting the powers in the first place. 00:37:31:17 - 00:38:00:22 If you didn't accept the powers, if you rejected them, then we would be able to say to ministers, look, this will not get past the House of Lords. But at the moment the evidence is that it will get past the House of Lords. If the Minister wants it, they can have it if they're prepared to stand up to the House of Lords a little bit in the Commons, it's that the argument in Whitehall is, and indeed elsewhere, is that they're abdicating their role as legislators, that they are just not carrying out the kinds of parliamentary scrutiny that would have been conducted in your day time. 00:38:00:23 - 00:38:25:11 15 years ago. It is just on a slow route getting worse. It is getting worse. And you just need to think about what the process is that's making it worse. The process is one that happens within the parties and the party leaderships. Party leaderships love it when MPs take no interest in legislation. When Labour had big majorities, there was this kind of weird system that they'd be sent back to their constituencies for weeks. 00:38:25:12 - 00:38:49:12 Yes, right. In a kind of rota. Yeah. So that they wouldn't bother the government and they could go and campaign in the seat, have it in the next parliament. Yeah. Well if we get another, you know, get 500 Labour in place, I mean what are they all going to be doing. So the party leaderships are committed to a view of the Constitution which is the one on the Whitehall view section originally called the Whitehall View, the Hilary Armstrong view of the Constitution. 00:38:49:14 - 00:39:08:09 Hilary Armstrong, the Labour Chief Whip, who one of the main advocates for it. If you bumped into and ask her how things work, she'd say, There are all these people trying to vote against things that's anti-democratic. So so the parties, the people driving this, you then get a kind of selection of indirect selection process where people who want to be. 00:39:08:09 - 00:39:31:13 MP You don't necessarily think that being an MP has got anything to do with legislation. They would prefer to be campaigners or local champions. I mean, my own party was very much to blame for the idea of an MP being a local champion as opposed to a national politician interested in legislation. And that is even worse effects on local government where these MPs go hang around their seats getting in the way of the local council. 00:39:31:17 - 00:39:57:14 It's not just Labour to blame, it's also Lib Dems. And recently you can see why Conservative leadership wouldn't want MP to be interested in legislation when they were in 20 1719. That was his worst nightmare in the Conservative Party leadership's history. Right? So the parties are pushing this and ministers are part of it. And actually the civil service also is to blame, you know, very pro civil service view this. 00:39:57:14 - 00:40:20:24 But civil servants just serve the devil's advocate. I know, I know. But civil servants have been known basically to push this view on their ministers. They can conveniently it's just very convenient for civil service as well. So yes, the culture of British politics is not very favorable to parliamentary democracy. I mean, that cannot be turned around. I mean, is this something that's just an irreversible tide? 00:40:21:01 - 00:40:58:14 Well, I don't think it's irreversible, but there are big elements that go into making it the way it is. So one of those is just these official ideologies of the party leaderships in the new Labour days. The additional thing of corporatism, of the idea politics was about the management of the economic interests. And you'd see in the 2006 act, a specific reference in the consultation section of ACT to consulting the organizations which were representative of interests, a very corporatist view where consulting those interests was more important than consulting members of Parliament. 00:40:58:19 - 00:41:21:08 That's one of the reasons why they weren't bothering with Parliament. You've also got the intellectual culture of free looking academia. You know what students now being taught that will affect them in 20, 30, 40 years time when they're the people doing this in politics course, especially in political philosophy courses, there are very anti parliamentary philosophers who are now very prominent. 00:41:21:10 - 00:41:39:23 So it looks like a big task. But it's possible to fight back. It's possible to say that we do need a parliamentary democracy. Punish democracy would be a good idea for various reasons. Different reasons might attract different people. For example, if you're if you're a citizen, you don't have time to follow everything that's going on in Poland. That was naive. 00:41:39:23 - 00:42:00:18 It wasn't that the Internet was going to mean everybody would be following every single legislative instrument that was coming out of government or parliament, and we'd all become of citizens all the time. Well, the problem with that is there isn't enough time in people's lives. And if if people really did do that, they wouldn't be going out to work. 00:42:00:19 - 00:42:24:19 It will just be impossible. And so you need some kind of process some parliamentary institution which will draw people's attention to times when things are going badly wrong and when they should pay attention. There needs to be some kind of trip wire which could engage the wider population more strongly, in particular instances where it's worth paying their attention to it. 00:42:24:21 - 00:43:02:06 So Parliament needs to be it needs to be are actors that kind of trip wire because nobody else around will do it. And you can only do that if things are paying attention to legislation, If they're just wandering around moaning about as if they were the county councilor, then they're not doing that trip wire job. So I think you can put forward practical arguments and ideological arguments which would reinforce the view that what we're missing is the parliamentary democracy and part of the framework of what we've been putting together with our review of delegated legislation, of proposals is, is that how can we construct almost an incentive framework that doesn't just incentivize, I'm pleased to 00:43:02:06 - 00:43:22:11 take more interest and engage with legislation more, but also persuades government that whilst they may not like it, there's actually some benefits for them through the process. So I know Mark is a mark, as we discovered in the last episode, was a bit of a cynic about this idea of any reform proposals that would involve the government giving up power for its reasons. 00:43:22:12 - 00:43:41:02 Yes, but, but you know, we therefore have to think quite creatively about how do we pitch the arguments for change to make this process more effective. You know, one of them, for example, you talked about when you have these instruments being debated in these these committees in the House of Commons, I mean, it's almost a complete waste of time. 00:43:41:04 - 00:44:07:04 It's also a big waste of time, ministerial time. You know, ministers have to set aside 90 minutes in the diary. The civil servants have to do it. They have to prepare a speech. This is not just a lecture to us and it's a ritual and it barely lasts 20 odd minutes on average. Nobody's satisfied with the process, the complexity that's come about through all these extra scrutiny procedures that have had to be built in to exercise some degree of control over the powers is now creating problems for the civil service. 00:44:07:04 - 00:44:30:10 I mean, the number of instruments that are having to be withdrawn or you've got an error, right? This is problematic. My PhD student, now at the University of Hertfordshire Kate Ollerenshaw worked out that 1.4 or 5% of all statutory instruments were correcting errors in other statutory instruments? Yeah, it's not a particularly technically accurate process. It's not very efficient or effective as it stands. 00:44:30:12 - 00:44:52:08 Well, we will be publishing our final proposals from the review shortly, but in the meantime, thank you, David Howarth, for coming on the pod for a really interesting discussion and your Statute Law Society lecture, we will link to it in the show notes. Great. Thank you very much. And Ruth, we're back again and let's talk about a new site that now lurks within the Commons chamber. 00:44:52:08 - 00:45:14:12 If the speaker in his chair looks towards his left about halfway down the chamber in minority party row, there are a couple of imposing new figures there in the shape of, first of all, George Galloway, newly elected as victor of the Rochdale byelection for his Workers Party and sat right next to him was Lee Anderson. Not long ago he was deputy chair of the Conservative Party. 00:45:14:14 - 00:45:40:06 Then got suspended from the party whip for his remarks about Sadiq Khan. Now he's the sole MP for the Reform Party, the inheritor of the Brexit Party organization. Nigel Farage is its president. Richard Tice is its leader. They've now got a voice in the Commons chamber. Interesting question is what's he going to do? Because a single MP on their own can't always make that much impact in Parliament. 00:45:40:06 - 00:46:02:19 The loneliness, you might say, of the one person party. Yeah, but they undervalue. They will find it is difficult to make an impact. They can make occasional speeches from the back benches when they get selected, but you lack the support structures that come with being part of a broader party structure, the sort of the briefings and so on for advice on legislation, the whips to tell you how to vote, which to tell you how to vote. 00:46:02:19 - 00:46:20:16 Interestingly, the backbench groups were quick to kick him out of the Conservative Party WhatsApp groups. So, you know those kinds of messages. Lifeline, isn't it? Yeah, he's a bit of a political shapeshifter. This is his third party in six years because of course he was also prior to coming into parliament, he was a late party member. He was the Labour Party councilor. 00:46:20:16 - 00:46:45:00 Indeed he was working in the office of Gloria de Piero, who was Labour MP for Ashfield. He switched then, as you've seen, to the Conservative Party, he was elected under their banner and now part of him he's reform's vicar in the House of Commons. So was quite a four minute mile across the political spectrum going on there. But it's an interesting tell that he recognizes that it's going to be a very different role for him as a single MP. 00:46:45:02 - 00:47:18:07 He's withdrawn his name from the early day motion, criticizing the speaker and expressing no confidence in the speaker. After the opposition day debate, a few weeks ago that we talked about on a previous episode. So he's he's recognizing that he perhaps needs a slightly different relationship with the speaker if he's going to get called at all. I suppose the model really for the one person party is actually Caroline Lucas, who has been fabulously effective as a single MP in the House of Commons and has wielded influence far beyond the strength of her party, which is just her. 00:47:18:09 - 00:47:41:15 She's this sort of must have accessory for cross-party motions. You know, if you want to get a cross-party bandwagon going, get Caroline Lucas And you signed up the Green Party in a single stroke and she's a very, very effective performer. She's managed to represent her party across a vast spectrum of political issues, and she's been a constant presence in the Commons chamber, and that's the model to aim for. 00:47:41:15 - 00:48:01:12 Now, will either George Galloway, all the Anderson, manage anything approaching that performance because it takes both street smarts and an incredible levels of energy? Yeah, no would be my answer. And also Caroline, because of the nature of what she stands for, because of her own personality, she's been able to work together with some of the other smaller parties. 00:48:01:12 - 00:48:26:11 So although there aren't any formalized structures for this, they have clumped together to support each other in terms of producing things like briefings and staffing support and so on, and working together in a co-operative manner on things like amendments. I suspect that kind of group are not going to be able to fully understand Galloway's He's a much more well, they're both much more combative figures, and I don't think they'll find it very easy to work with each other either. 00:48:26:11 - 00:48:51:10 I watched the press conference at which Lee Anderson announced he was switching to the Reform Party, and Richard Tice, his party leader, constantly saying that a major reason for reform to be concerned at the moment was the election of George Galloway. They didn't like the idea that he was now representing a seat in the Commons. So that doesn't exactly suggest that those two are going to be able to work effectively together, even though they were at one point sitting right next to one another in the chamber. 00:48:51:10 - 00:49:12:20 Yeah. The other thing about Lee Anderson's position is he has previously put his name to support a private member's bill brought in by the Conservative MP Anthony Magnall. That would require MPs who change parties mid Parliament to resign, to step down, to fight a by election. Now, interestingly, Lee Anderson has decided that actually he's not going to do that. 00:49:13:01 - 00:49:33:12 Now he's citing the fact that there's a possibility of a general election in a few weeks, few months, and therefore it would be a waste of time and money for his constituent to go through it twice, I suppose. So that's his argument, which I think probably holds for the next few weeks, because of course, if we are to have a may election, Parliament has to dissolve on the 26th of this month. 00:49:33:12 - 00:50:09:09 So it's less than a fortnight away now. But if that doesn't happen, we haven't got to my election, then there's an argument that perhaps he should fall through on his previously expressed principles. And of course there's a particular precedent here in the shape of Douglas Carswell, who switched from the Conservative Party to what was then UKIP back in 2014 and did fight a by election and made a point of saying that he had to go back to his employers, the voters of his Clacton constituency, to get their endorsement for his shift of party, and that was applauded warmly as a sort of new, more or less Westminster form of politics by the then UKIP leadership 00:50:09:09 - 00:50:22:21 rackets. Nigel Farage doesn't seem to be being applied this time. Now I suppose you can say. Fair enough. If there's going to be a general election in a matter of weeks, it's a bit silly. He'd have a by election, then immediately have another general election. You barely get time to get back into the Commons before you're out again. 00:50:22:23 - 00:50:54:03 That argument, as you say, holds for a little while. But if this Parliament's going to roll on for another six months, perhaps the the voters of his actual constituency ought to be consulted. Now, you mentioned the bill from Anthony Magno. Now he's he's the MP for Torridge in Devon, where the previous MP was Sarah Williston, elected as a conservative, she shifted to what started off as Change UK and then went through any number of different incarnations and she ended up fighting the seat as a Liberal Democrat in 2019 and lost it to Anthony Mangal. 00:50:54:03 - 00:51:15:07 And he came up with a private member's bill aimed at saying precisely that. MPs who changed their party allegiance, should cause a by election, should see whether their constituents support what they've done. And the interesting thing about this was who opposed it? This was a ten minute rule, Bill, where you make a ten minute speech on a motion to bring in a bill on a particular subject. 00:51:15:09 - 00:51:43:06 And another person, if they're against it, can make a ten minute speech against. And the MP who spoke against on this occasion was Steve Baker, also known as Rebel Commando, who had been the unofficial whip of the Brexiteers when it organized the Tory rebels in the build up to Brexit. And he made an astonishing speech. One of the most brilliant speeches I've heard in the House of Commons, in which he argued that MPs shouldn't be subject to this because they the ability to defy their own parties. 00:51:43:08 - 00:52:02:15 And he said, I reserve the right to burn down my own party if it betrays the principles on which I was elected. A fantastic speech to make. But it underlined the point that subjecting MPs to the idea that if they change their party allegiance, they have to have a by election helps tighten the grip of party machines on them. 00:52:02:21 - 00:52:26:01 So it was quite an interesting moment. Lee Anderson I suspect it may have a prospect of holding his Ashfield seat. It's a very funny place with quite particular local politics. It's a large independent group that gets an awful lot of votes. They're now often forgotten that the Liberal Democrats came within a couple of hundred votes of winning that seat in 2010, and the person who was their candidate then is now the leader of that independent group. 00:52:26:01 - 00:52:46:11 So there's all sorts of ways in which the votes could divide in Ashfield and all sorts of results may be possible. Watch that space. Well, Malcolm, we were going to talk about the fact that next week, if the Prime Minister wants a general election on the 2nd of May, he'd have to dissolve Parliament on the 26th of March and therefore next week we'd be looking at the announcement of the general election. 00:52:46:11 - 00:53:09:11 But some, as we're talking, I gather that the Prime Minister's gone on TV in the West Country and confirmed that there will not be a general election on the 2nd of May. So I suppose he could change his mind in the next week or so, but seems unlikely. Yeah, well, it never seemed like a particularly probable adventure to embark on given the state of the polls at the moment. 00:53:09:11 - 00:53:33:15 I think the Government is very much in Travolta micawber mode at the moment, staying alive and waiting for something to turn up. So no great surprise there. We'll get a chance, I'm sure, to talk about the mystic rituals of the parliamentary wash up where they clean through the remaining legislation in short order. But that's for another day. So it looks like the election ball is just going to keep running through to the summer or the autumn, and we'll have to see what happens. 00:53:33:18 - 00:53:58:12 Therefore, I'd be very afraid. Yeah, I think I think in the circumstances we'll call it a day Mark and see you next week and not an election. See you then. Well that's all from us for this week's episode of Parliament Matters, please hit the follow or subscribe button in your podcast app to get the next episode as soon as it lands and help us to make the podcast better. 00:53:58:12 - 00:54:15:19 By leaving a rating or review on Apple or Spotify and sharing your feedback. Our producer tells us it's important for the algorithm to give the show a boost and tell us more about the algorithm. What do I know about algorithms? 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