The ‘Brexit Freedoms’ Bill and Retained EU Law

Video

This was another session with the Constitution Unit of University College London.

The topic of “skeleton bills” and “Henry VIII powers”, which have been highlighted a lot in recent political blogs and podcasts, was also prominent here. Although this problem is said to be particularly bad in the post-referendum era, it has been in the making for many decades. I asked the panel (at 1 hour and 35 seconds in):

“If the trend towards skeleton bills and secondary legislation gas been noticed for many decades, does this indicate a problem with the permanent government rather than the politicians?”

It was put to the panel simultaneously with two other questions. I will try my best to disentangle the answers.

Doctor Tom West said: Absolutely this is a long-running trend. The Legislative and Regulatory Reform Act 2006 had very wide powers and people called it the “Abolition of Parliament” Bill. There are all sorts of examples of this being an issue, such as the financial crisis of 2008. Ministers, once they’re no longer in power, will come clean that there is an issue – Theresa May mentioned it at an IfG lecture last week. It’s very difficult while you’re in power to give up these very convenient ways of making law through secondary legislation. Brexit and COVID have raised the profile of this problem, but it is not exclusive to them. That’s what our Delegated Legislation Review Programme is looking at – we think there’s a need for a reset of the whole system of what these powers can be used for in the first place and how they can be scrutinised. We are in the middle of developing proposals.

Ruth Chambers said: This trend towards framework bills has been going on a long time. I’ve worked on environmental legislation for over twenty years. Just to give one practical example – it used to be that when governments would state consultation requirements on the face of the bill they would be quite explicit about which sorts of people and groups the minister should consult before taking powers forward. Now the more standard construction says the ministers can consult whoever they think they need to. Obviously that has consequences – bills often lack the future-proofing edge. It doesn’t matter how many times you have that conversation with ministers while they’re passing legislation, it doesn’t quite register that at some point in the future someone else will be wielding those powers. It also has huge implications for the public – the public businesses and civil society organisations really need to stay the course and engage with the secondary legislation not just the bill.

A Note on the Leadership Race

As Boris Johnson’s premiership draws to an undignified conclusion, a new leader of the Conservative & Unionist Party is to be elected for the third time in just over six years.

When last that happened, Professor Norton blogged about about four different types of Prime Ministers: Innovators who want to implement specific and ambitious goals of their own design (e.g. Thatcher), reformers who want to implement the goals of the party overall (Attlee), egoists who are in it for their own fame (Eden, Wilson, Johnson) and balancers who are concerned with keeping the peace between rival factions (Macmillan, May). He has not claimed these to be definitive or exclusive, but merely the labels he finds most useful. Recently he has revisited the idea.

In my view the roles of innovator and reformer are a little difficult to distinguish, as political ideas are often credited to the prime minister who enacted them even when their invention was owed to another (e.g. much of Thatcherite thinking was actually the product of Sir Keith Joseph). It might be better to merge them into one category of ideologue.That of balancer more obviously stands apart as someone less ambitious about specific goals and more concerned about overall stability. Egoist, of course, is something that few politicians would admit of themselves and which often comes across as a slur (not that it is untrue).

At present the nomination window has yet to formally open let alone close, so the field is still prone to change, but let us take a look at those declaring so far:

  • Kemi Badenoch (Saffron Walden), lately a junior local government minister
  • Suella Braverman (Fareham), current Attorney General
  • Jeremy Hunt (South West Surrey), current health committee chair
  • Sajid Javid (Bromsgrove), lately health secretary
  • Penny Mordaunt (Portsmouth North), a junior trade minister
  • Grant Shapps (Welwyn Hatfield), current transport secretary
  • Rishi Sunak (Richmond Yorks), lately Chancellor of the Exchequer
  • Elizabeth Truss (South West Norfolk), current foreign secretary
  • Tom Tugendhat (Tonbridge & Malling), current foreign affairs committee chair
  • Nadhim Zahawi (Stratford-on-Avon), current Chancellor of the Exchequer

At present Sunak and Truss are perceived as most likely to make the final ballot. Sunak seems to be positioning himself as a balancer. He wants to be perceived as a safe pair of hands and broadly popular among the public. Truss is going more for the ideologue side, particularly those who had favoured a harder departure from the European Union. Both are obviously egoists at heart, given that both appear to have registered their campaign websites some time before there was any hint of Johnson’s resignation. Concerns have long been raised about Truss spending government money on her own publicity, while Sunak seems to have hired a social media specialist to improve his personal brand.

Among the other candidates, Mordaunt and Tugendhat might be considered together. Their support (and that for defence secretary Ben Wallace, who was the front-runner before he ruled himself out) seems to come from the same source – a desire to clean up the party’s image and get politics back to normal. The quest for them is less about any specific policy goals and more about cleaning up the party’s image. They are seen to have demonstrated competence in their roles so far (a rare treat in modern politics) and avoided the scandals plaguing those at the top. Their military backgrounds are likely a large part of their appeal.

Javid and Hunt are somewhere in between. Hunt was the runner up in 2019 and has stayed out of Johnson’s government, so is a champion for the opposing faction (especially Remainers). Javid is more closely associated with Johnson but not seen as a lackey to the extent that Sunak or Truss are. Both are well-established within the parliamentary party so probably seek the same safe-hands image, as well as leaning on their reputations as businessmen.

Badenoch and Braverman both have fairly low national profiles which they are probably hoping to raise. They are unlikely to win but may be securing higher offers in the new cabinet or the next leadership election, whenever that may be. The former is well regarded for her chamber and studio performance, and promoted as a competent officeholder, whereas the latter seems to be favoured more as a stalking horse for an economic sect of the party.

That leaves Shapps and Zahawi, whose analysis must be very carefully phrased. Like Hunt and Javid they both have business backgrounds, but these may prove more a hindrance than a help. Shapps has several times attracted controversey over the conduct of his companies as well as denial of operating them under pseudonyms while serving in the Commons. In late 2015 he had to resign from the government due to alleged negligence in handling bullying claims within the party. He’s even been caught editing his own Wikipedia page to remove inconvenient details. Zahawi is distrusted by some in the party for having accepted a great office of state from Boris Johnson immediately before demanding he step down. There have also been numerous concerns raised about his private business interests, and flags raised by HMRC over his tax affairs.

Without commenting on the veracity of these particular claims, it raises the prospect of another category of leader – the featherer. Like egoists, no candidate would outright admit to being one, but unlike them the goal is less to acquire personal fame and more to protect one’s personal interests – or those of a different person supporting them. This would be hard to use in an academic textbook though, since such nest-feathering typically does not become known until many years after the accession has taken place.

UPDATE (12th July)

Shapps and Javid have withdrawn, Rehman Chisti dipped his toe but shortly withdrew again. Badenoch, Braverman, Hunt, Mordaunt, Sunak, Truss, Tugendhat and Zahawi have qualified for the first round.

A Blackmailer at Frogmore

Today’s virtual outing was with the National Archives again. James Travers, Cultural Property Manager, was promoting his new book on the “ghost” of Caroline of Brunswick, Queen of George IV.

The centrepiece of the book, and the lecture, was Thomas Ashe, whom the injured consort had commissioned to write her memoirs. His book The Claustral Palace was suppressed from publication, for it would have revealed the intimate life stories of her sisters-in-law who were confined at Frogmore House.

How much of the novel was true is unclear, but it put Ashe in conflict with the government as well as George IV’s brother the Duke of Cumberland (later Ernest Augustus I of Hanover).

Travers’s lecture was quite convoluted in its story, which combined with his soft way of speaking and some technical glitches at my end meant it wasn’t always easy to follow the plot, so reading the book itself is probably necessary to get a full understanding.

An odd way to promote oneself

In early July, two by-elections are to take place in the upper house, following the retirement of the Lord Brabazon of Tara in April and the death of the Lord Swinfen in June. Both were among the Conservative section of the excepted hereditary peers, which means there is no partisan competition for their replacements.

Despite the smallness of the electorate, the statements made by the twelve peers to offer their candidacy have been released on Parliament’s website. Most are essentially short CVs, with nothing particularly jumping out save Lord Wrottesley’s self-description as “closet tree hugger, as reflected in my business interests”, apparently forgetting that the whole point of being a closet anything is precisely not to announce it in public.

The exception is the Earl of Dudley, who instead of giving any information about himself simply linked to his YouTube channel, technodemic. Its content comprises nothing but music videos, some featuring (I would guess) the earl himself and others made up of television clips. There is a lengthy description on the about page, but confidence is not inspired by the lack of an avatar, nor the names of some of the channels to which he subscribes.

Somehow, I don’t think he’ll win.

UPDATE (6th July)

The by-elections have been won by the Lords Remnant and Wrottesley. Dudley received no votes at all.

Link

Today’s virtual lecture was by the York Festival of Ideas, starring Eleanor Parker.

I asked her at what point in English history the Saxons and Normans were no longer considered different races/nations. She replied that the Normans quickly came to call themselves English, but that twelfth century sources still indicate a cultural and linguistic split, with non-Francophones held back in life.

EXTERNAL LINKS

York and Swinfen

Late last night Professor Norton blogged about the decease of his noble friend Roger Swinfen Eady, 3rd Baron Swinfen. The photograph he used in his post was a screenshot of him in the upper chamber on 1st February 2018, taken from parliamentlive.tv, and displayed on his Wikipedia page. I know because I put it there.

Swinfen was not photographed for an official parliamentary portrait, nor in any other setting that resulted in an image released with a Wiki-compatible licence, so I had to resort to a Fair Use screenshot, as with so many other deceased parliamentarians, in order to illustrate his page. Thankfully the fact that both houses (and indeed the devolved legislatures) have recently gotten into the habit of publishing high-quality portraits under CC-BY-3.0 or similar means that such a trick will likely be needed less often in the future.

Of course, I also illustrated his coat of arms a year ago, and being the copyright owner for that graphic I released it under the same.

Last month Norton blogged on a different topic – the repeated floating by the government of plans to move the House of Lords to York. Not, to be clear, moving Parliament as a whole along with the royal households, the senior courts and the departmental headquarters of the executive, but just moving the upper house while leaving everything else in London. On Thursday he secured a lengthy debate in the chamber on that topic. The peers who spoke were unanimous in their savaging of their proposal. Many of the issues I commented on Norton’s post regarding the practical absurdities of a separation and the apparent powerlessness of ministers in the upper house to influence their Commons colleagues were repeated by members in their speeches. My favourite contribution was by the Lord Addington: Michael Gove’s comment was the sort that usually comes up halfway through the third round in a pub, that should be forgotten by the end of the fourth, and certainly not remembered the next morning.

Streets, Railways and Brownfields

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Today’s virtual outing took an unusual turn, featuring the London Natural History Society. The title proved a little misleading as the lecture was less about the streets and railways themselves than the plants growing on them.

At about 50:45, I asked Dr Spencer which species were most advantaged or disadvantaged by the presence of a railway line. He said the most advantaged were wind-dispersed plants, such as the “classic story” of Oxford ragwort which was confined to the walls of that town from the sixteenth to the nineteenth century when the railway arrived to blow its seeds around the country.

Power and pageantry: The coronation of King Richard III and Queen Anne

Another date with the National Archives, this time featuring Dr Sean Cunningham,the head of Medieval Records.

I was faintly amused when he brought up a still from The White Queen (2013) featuring Aneurin Barnard and Faye Marsay, if only so he could point out the inaccuracies. Then again, this coronation does not have many other televisual depictions to my knowledge.

Thanks for the Memoiries

Politician’s autobiographies are a strange beast. Everyone who’s anyone (and some who maybe aren’t) eventually publishes a weighty tome detailing their time in (or out of) power with a view to putting a favourable account of themselves in the public’s minds, as well as perhaps generating income and attention lost since holding office. A few of these, such as Alastair Campbell or Alan Clark, become famous in their own right but I suspect the majority sink into obscurity as fast as their authors do.

When I discovered it four days ago, the Wikipedia article on British political memoirs was a left much to be desired. The list was long and disorganised. After many hours of code crunching, I had rearranged it into three big tables, searchable by name and publication date. I also added details of the authors’ notability as well as the publisher. The list is, of course, incomplete, given that there are new memoirs coming out every year as well as older ones overlooked (indeed I discovered a few along the way), but with as much as is already there I can spot a few trends. Harper and Collins (together or apart) got the top picks of the right wing while Penguin and Random House (ditto) got the left’s. I don’t know if that says anything about those companies’ corporate politics or if it’s just a herd mentality among their clients. Biteback, a company dedicated to political publications, is happy to print for any party.

I am sometimes struck by how early some of these books were published: Jess Phillips, who became MP for Birmingham Yardley in 2015, released her first book Everywoman in 2017 and already seems to be on at least her third. Gerald Kaufman published How to be a Minister in 1980, when his own ministerial experience amounted to just five years as a junior minister. Maureen Colquhoun wrote A Woman In The House having been voted out of the Commons after just five years. Even those who have served a long time still stand to miss out on what happens after – Ken Clarke’s Kind of Blue, debuting in 2016, mentioned how he was glad that Kaufman cut ahead of him when taking the oath in 1970, for he had no desire to be Father of the House. I presume he didn’t expect Sir Gerald to die so soon, to say nothing of the chaos of 2019.

The titles of such books are also interesting. Both Parmjit Dhanda (Gloucester 2001-10) and Matthew Parris (West Derbyshire 1979-86) described themselves as “outsider”. Almost forty of the books listed actually had “memoir” as part of the name. Some attempted puns on their own names, such as Coming Up Trumps or Teddy Boy Blue. Of particular significance is the number of books actually named after people other than the subject: Three Conservative autobiographers defined themselves in relation to Thatcher, while only one Labour book similarly refers to Blair.

Although a large proportion of the writers end up being members of the House of Lords at some point, relatively few devote more to it than a brief note in the epilogue. Those who were MPs tend to regard their time on the green benches as their real career, with ennoblement marking its end. Often the book is already out by the time the scarlet robes are put on. Clement Attlee stands out here – he apparently wrote and released As It Happened in 1954 while he was still leading his party!

FURTHER READING