The UK at a constitutional crossroads

Alan Trench discusses Ways forward for the United Kingdom, a new report from the Bingham Centre for the Rule of Law which considers the constitutional issues that the UK as a whole will need to address in the short and medium term.

The impact of the Scottish independence referendum has been wide-ranging. It raises a number of questions about how the UK works as a whole and its territorial constitution, as well as ones about Scotland.  But for all the importance and urgency of these issues, they have not yet been subject to any wide-ranging or sustained scrutiny.  A new report from the Bingham Centre for the Rule of Law, available here, seeks to change that and look at what issues the UK as a whole will need to address in the coming months and years.  The review commission has been chaired by Sir Jeffrey Jowell QC, and its membership and remit are set out here

The Commission’s starting point was to consider the implications of the piecemeal, ad hoc approach to devolution taken so far.  Its view is that this has reached the end of its road.  The knock-on effects of the Smith Commission proposals for Scotland mean that this now creates serious constitutional difficulties beyond Scotland.  A more systematic view, considering the UK as a whole, is badly needed. 

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What the Queen said – and what she didn’t say

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Following yesterday’s Queen’s Speech, Robert Hazell considers the constitutional issues that featured, as well as those which were notable in their absence.

There were few surprises in the Queen’s Speech announcing the new government’s legislative programme. Like his admired predecessor Tony Blair, David Cameron knows that the public have little interest in constitutional issues, so the constitutional items came last, just before foreign affairs. England got mentioned first, with devolution to English cities; then more powers for Scotland, Wales and Northern Ireland; English votes for English laws; the EU referendum; and a British bill of rights. What are the key issues to look out for in relation to each of these items? And what other items didn’t get a mention?

The Scotland Bill will be introduced early, because that was promised in the Vow, and the coalition government published draft clauses in January. It will implement the proposals of the Smith Commission, but go no further. It appears to be a done deal, but will be attacked on both sides. The SNP attack is predictable: they will say their resounding victory in Scotland is a mandate to go much further. But the bill also risks being attacked on the government side. The Smith proposals are based on no underlying principles and were very hurried, with no consultation amongst the political parties and endorsed only by the three main party leaders. When the details are examined, unionists on all sides may start to worry about their feasibility, and compatibility with the union. Whitehall was bounced into Smith like everyone else, and no one can confidently say how the fiscal arrangements will work in practice.

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Routes to EVEL: The challenges facing Chris Grayling in introducing English votes on English laws

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With the Queen’s Speech due tomorrow, we continue our series of blogs about devolution and its consequences, drawing on the Unit’s latest report Devolution and the Future of the Union. Here Robert Hazell analyses the commitment to English votes on English laws, looking first at its history, and then at its prospects.

Cynics might assume that the Conservative policy of English votes on English laws was an opportunistic slogan designed to garner votes in England, but never intended to be implemented in practice. Some attribute the commitment to David Cameron, who flourished it in the aftermath of the Scottish independence referendum. But the policy goes back much further than that, having appeared in the last four Conservative manifestos, from 2001 onwards. In the 2015 manifesto it was given added emphasis by being repeated four times, and spelt out in unusual detail in chapter 7.

The details were developed by the outgoing Leader of the House of Commons, William Hague, who chaired a Cabinet Committee which produced a White Paper published last December. It now falls to the new Leader of the House, Chris Grayling, to implement the policy in the new Parliament. What are his objectives; what are the main obstacles to introducing EVEL; and what would be a sensible way forward?

The logic of EVEL

The case for EVEL rests upon principles of fairness and accountability. Now that issues such as education and health are devolved to the Scottish Parliament and Northern Ireland assembly, it seems wrong that Scottish and Northern Irish MPs should continue to have a vote on such issues in England, or England and Wales. They have no accountability to the people of England; while the only people to whom they are accountable, their constituents in Scotland and Northern Ireland, are no longer affected by decisions made in relation to England. The conclusion is that English matters should be determined by English MPs alone.

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Can David Cameron call a second election? How does that fit with the Fixed Term Parliaments Act?

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Robert Hazell outlines how the Fixed Term Parliaments Act restricts the new government from calling a second election. He writes that if Cameron wanted to take a gamble to boost his slender majority, he would have to work within the confines of the Act given the likely complexities of any attempt to repeal it.

This is the third in a series of posts based on the Unit’s latest report, Devolution and the Future of the Union, published here.

Now that David Cameron has won, but only with a slender majority, speculation will turn to whether his government will last a full five years; and whether he could improve his numbers by calling a second election. In the run up to the election there was talk of the new government calling a second election after a year or so, as Harold Wilson did in 1966 and again in 1974. This kind of speculation is wild. It is no longer possible for the Prime Minister to seek an early dissolution, because the prerogative power to dissolve Parliament was abolished by the Fixed Term Parliaments Act 2011. It is now up to Parliament to decide whether there should be an early election. Under the Act there are only two ways in which Parliament can be dissolved early:

  • By a motion ‘that there shall be an early parliamentary general election’ passed by at least two thirds of the House of Commons (s 2(1))
  • By a formal no confidence motion, in the statutory form prescribed in the Act (that ‘this House has no confidence in Her Majesty’s Government’), passed by a simple majority of those voting (s 2(3)). If no alternative government can be formed within 14 days which can command confidence, Parliament is dissolved and an early election held.

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The Nineteenth Amendment is a constitutional milestone in Sri Lanka’s ongoing political development

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At the end of April, the Sri Lankan President’s 100-day programme of governance reforms culminated with the passing of the Nineteenth Amendment to reduce the powers of the presidency. Asanga Welikala reviews the progress that has been made since January, and argues that despite difficulties and necessary compromises, the Amendment represents a change for the better in Sri Lanka’s governing arrangements.

With the election of Maithripala Sirisena to the presidency in January 2015, Sri Lanka embarked on a 100-day programme of constitutional and governance reforms. The promise of far-reaching changes to abolish, or at least substantially reduce, the powers of the executive presidency had been the keystone of Sirisena’s presidential campaign. The previous President, Mahinda Rajapaksa, had not only constitutionally extended the powers of this already over-mighty institution, but had also extra-constitutionally instituted a control regime based on nepotism, clientelism, ethnic chauvinism, and corruption. Sweeping away this institutional apparatus of authoritarianism and its more informal – but also more ingrained – network of patronage and protection through constitutional reforms brought together the otherwise disparate coalition of political forces that supported Sirisena’s candidacy.

While reforming executive presidentialism was the centrepiece of the 100-day programme, it also included a raft of other proposals, including freedom of information legislation and reforms to the parliamentary committee system, as well as economic reliefs. This collection of policy proposals did not make for the most coherent of programmes, and neither did it seem realistic within a 100-day period. Predictably perhaps, the government’s energies have been focused on the presidential reforms and other proposed measures have fallen by the wayside, bar some measures to ease the cost of living, and some small but symbolically significant steps toward ethnic reconciliation. Corruption prosecutions in particular have been conspicuous by their absence. However, the excesses of the Rajapaksa regime had been such that the majority that voted for its ouster has been willing to settle for progress on the main issue.

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Scotland has voted for the union and for distinctiveness. Delivering both could present acute challenges

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After a dramatic referendum and UK general election, the Scottish remain divided on both independence and on whether to increase tax and public spending, while the English are becoming increasingly vocal in the devolution debate. Jim Gallagher considers the possibilities of a constitutional relationship that will satisfy Scottish aspirations and also be acceptable to the UK as a whole.

This is the second in a series of posts based on the Unit’s latest report, Devolution and the Future of the Union, published here.

Within the last year the Scottish people have said two apparently contradictory things. They want to stay in the United Kingdom, and they want to be represented by the SNP. In Holyrood, the SNP exercise dominant control over both Parliament and government. In Westminster, they will be the overwhelming Scottish voice, but will control nothing.

The partisan politics of the general election have been extraordinary. The Labour vote collapsed, and the SNP showed remarkable skill in building a coalition of voters, some for independence, others perhaps against austerity. But this tells us less about overall Scottish attitudes on either question than meets the eye. Scotland remains divided on both independence and on whether to increase tax and public spending, and not on the lines you might expect. Many independence supporters are anything but high spending socialists.

Constitutional challenges

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Will plans for a British bill of rights be reduced to a bill for England only?

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Opposition from Scotland, Northern Ireland and Wales could pose a serious challenge to Conservative plans to scrap the Human Rights Act. Robert Hazell and Bob Morris write that if the new government tries to push ahead regardless, it may only be able to create an English bill of rights, with potentially negative consequences for the UK as a whole. 

This is the first in a series of posts based on the Unit’s latest report, Devolution and the Future of the Union, published here.

The Conservative manifesto, building on pledges in previous manifestos, contained these statements about replacing the Human Rights Act with a British bill of rights:

  • We will scrap Labour’s Human Rights Act and introduce a British Bill of Rights which will restore common sense to the application of human rights in the UK. The Bill will remain faithful to the basic principles of human rights, which we signed up to in the original European Convention on Human Rights (p.73)
  • The next Conservative Government will scrap the Human Rights Act, and introduce a British Bill of Rights. This will break the formal link between British courts and the European Court of Human Rights, and make our own Supreme Court the ultimate arbiter of human rights matters in the UK (p.60).

We have not yet seen the detail, and the draft bill which the Conservatives promised to publish before the election never materialised. The plans are likely to raise a whole series of difficulties, with the judiciary, with the House of Lords (where the bill will have a very difficult passage – see here and here), and with the Council of Europe, if the UK tries to remain in the ECHR but somehow leave the jurisdiction of the European Court of Human Rights. But this blog concentrates on a further difficulty closer to home, which is opposition from the devolved governments and assemblies.

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