Source: British Parliament News
07 January 2019
The Public Administration and Constitutional Affairs Committee (PACAC) today publishes its report examining the status of resolutions in the House of Commons. It says resolutions should be treated seriously, as expressions of will of the UK’s elected representatives, but may have no legal effect. It also cautions that both Parliament and Government should be careful about setting precedents with long-term effects in reaction to short-term political pressures.
The report follows both the decision made by the Government to whip its Members not to vote on some opposition motions and the controversial revival of the ‘humble address’ to force government to disclose specified documents, such as the Attorney General’s legal advice.
Launching the report, the Chair of the Committee, Sir Bernard Jenkin MP, said:
“The relationship between Parliament and Government lies at the heart of our democracy in our constitution, and it is the basis of public trust in our political institutions. However, our system is one of parliamentary government, not government by Parliament, and PACAC’s report reflects this.
“Resolutions of the House are an expression of the will of the nation’s elected representatives, and so should be treated seriously, but how Government responds is a matter of politics, not law. The evidence from the Clerk of the House was unambiguous. Parliament can only change the law by the law. The Commons cannot bind the Executive or compel a minister to act through a resolution unless it is specified in law. It is for ministers to decide how to respond to a resolution of the House.
“PACAC concludes that it is for the House of Commons, not the Government, to determine what is legitimate scrutiny, and the Government is expected to engage in good faith with resolutions of the House of Commons, even if it cannot implement their terms as expressed, or chooses to disagree. While we took no direct evidence on the question of Brexit, this is clearly relevant to what may or may not happen next.
“It is also true that the credibility of Parliament’s sovereign powers depends upon their being exercised responsibly. There are good reasons why government legal advice has been protected from disclosure. Parliament and government must be mindful of the need to avoid setting long-term, far-reaching precedents through actions designed to address short-term political considerations. Our report clearly states the case for such a balance and we make a number of practical recommendations to the way House resolutions considered and responded to.”
The Committee concludes in the report that:
That by whipping Members to abstain on Opposition Day Motions, the Government risks showing a lack of respect to the House, with counter-productive consequences.
It is for the House, not for Government, to determine what constitutes legitimate scrutiny. Government should therefore engage with resolutions properly, and in good faith.
That the Procedure Committee may wish to consider whether changes to House of Commons practices and procedure are required, following several resolutions that have sought to direct Ministers.
Whilst use of the motion for return via a Humble Address has its limits, they nevertheless remain a recognised power of the House, and should be complied with.
Given the return to prominence of the Humble Address, the Procedure Committee may wish to consider whether it might be updated to reflect contemporary usage, e.g. to make contentious or confidential Government papers available to the House.
Opposition Day Motions in the 2017 Parliament
The report underlines that not resolutions are not usually legally binding, but they can have a political effect. Similarly, voting on every motion is not a requirement of Members, but the Government’s decision since the 2017 election to abstain on certain Opposition Day Motions, whilst dismissing them as acts of political point-scoring, has led to the status of resolutions being devalued.
How resolutions are considered and responded to, and who determines the timescale
Ultimately, whether the Government has abstained on a motion – and whatever its reason for choosing to do so – does not absolve it of its duty to respond to resolutions in a timely fashion, the Committee argues.
Whilst the report welcomes the recognition by the Leader of the House of the need for a departmental response within 12 weeks, it also argues that many resolutions can and should be addressed far sooner; particularly if the Government is not minded to comply with the view of the House.
Motions for return (the ‘Humble Address’)
The report emphasises that whilst the procedure known as the ‘Humble Address’ had fallen out of use until recently, a ‘motion for return’ falls within the House’s existing and recognised powers and as such, should be complied with. The recent controversy surrounding the publication of the Attorney General’s legal advice prepared by demonstrates the need for Government to take Commons resolutions seriously.
However, PACAC cautions against the limits of such motions being exceeded, giving the example of a motion that seeks to direct Ministers to legislate. Similarly, the report warns that overuse of procedures to direct Government activity risks undermining the credibility of resolutions.
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