Ask the Experts: Legal and Constitutional Implications of Brexit

On 13 June UCL Public Policy and the House of Commons Library jointly hosted an ‘Ask the Experts’ event on the legal and constitutional implications of Brexit. The panel consisted of specialists from both institutions. Marc Phoon reports.

The possible economic and social consequences of Brexit were central features of the referendum debate and continue to be discussed widely. However, of equal importance are the legal and constitutional implications of Brexit, which may very well underpin the long term outcomes of the Brexit negotiations. ‘Ask the Experts: Legal and Constitutional Implications of Brexit’, an event jointly hosted by UCL Public Policy and the House of Commons Library on 13 June, aimed to provide some clarity on this matter.

The panel consisted of staff from both the House of Commons Library and UCL. Vaughne Miller is the Head of International Affairs and Defence at the House of Commons Library and an EU law specialist. She was joined by two of her colleagues, Arabella Lang, a treaty specialist and Jack Simson Caird, a constitutional law specialist and UCL alumnus. Ronan McCrea, a Senior Lecturer from the Faculty of Laws and Christine Reh, Reader in European Politics from the Department of Political Science, both based at UCL, completed the panel. Meg Russell from the Constitution Unit chaired the event. In introducing the panel, she emphasised the high-quality, reliable and digestible briefings publicly available from the House of Commons Library, as well (of course) as the materials available from the Constitution Unit, the UCL Brexit Hub and other UCL experts.

Vaughne Miller

Vaughne Miller kick-started the discussion by offering an overview of the differing approaches taken by the EU and the UK government ahead of the Brexit negotiations. The EU, through the European Commission and European Council, has already set out its priorities for the negotiations. It is particularly concerned with issues related to EU citizens’ rights post-Brexit, the border between Northern Ireland and the Republic of Ireland and the so called ‘divorce bill’ – i.e. the financial settlement between the UK and the EU. She noted that the EU has a clearer position than the UK government because of the EU’s laws on transparency, which mean that the majority of the negotiation guidelines coming from the EU will be publicly available.

Miller went on to explain that it is not yet clear how the UK parliament is going to be kept informed about the progress of Brexit negotiations. The government has indicated that the UK parliament will be kept at least as informed as the European Parliament. Nevertheless, MPs have signalled their expectations on this matter through a report published by the European Scrutiny Committee. Furthermore, because of the general election and summer recess, there are concerns about whether there will be adequate parliamentary scrutiny of the early stages of the negotiations. Notably, select committees in the Commons which scrutinise government departments are not likely to be properly established until September this year.

Continue reading

EVEL won’t worry the new government – but the West Lothian question may well do

Following the election result some pundits have suggested that English votes for English laws might be an obstacle to the government, given its reliance on support from non-English MPs, whilst others have suggested the procedures might provide the government with an enhanced English majority. In this post Daniel Gover and Michael Kenny explain that neither of these possibilities is likely to occur. However, the territorial balance of the new Commons could cause the West Lothian question to come back to the fore – though not solely in relation to England.

Amidst the swirl of punditry and opinion unleashed by this month’s general election result, attention has once again turned to the ‘English votes for English laws’ reform (otherwise known as ‘EVEL’) recently introduced in the House of Commons. EVEL aimed to address concerns about the capacity of MPs from outside England to exercise a determining vote on England-only legislative matters. Some pundits have suggested that it may well represent an acute obstacle, of the Conservatives’ own making, to the prospects of Theresa May’s minority government given its reliance on support from MPs outside England. Others, by contrast, have wondered whether EVEL might give her the enhanced majority she needs to govern England. In fact, neither of these possibilities is likely to occur.

Indeed, some of the more outlandish claims in circulation about EVEL supply yet more evidence of how poorly understood this set of procedures still is. In our in-depth analysis of its first year of operation – Finding the Good in EVEL, published in November 2016 – we argued that the EVEL procedures should be simplified, made more transparent, and be better explained by government. But, although EVEL itself is unlikely to greatly hinder this minority government in parliament, some of the wider issues underpinning the ‘West Lothian Question’ (to which EVEL was a very belated answer) may well resurface, and it is worth pondering those at this particular moment.

EVEL and the West Lothian Question

The arithmetic of the new House does mean that questions of territorial representation could well become divisive and difficult for Theresa May, and these may add to the formidable set of challenges ahead of her. But to understand these, we should first remind ourselves of the iconic West Lothian Question posed by the late Tam Dalyell in response to proposals for devolution in the 1970s. Dalyell raised two distinct issues. His central complaint was that, were devolution to be implemented in only certain parts of the UK, MPs who represented seats where devolution applied could, in principle, determine outcomes for those who lived in non-devolved parts of the UK, whilst MPs representing the latter could not do the reverse. Implicit within this, however, was a second observation: that devolution might legitimise the idea that any UK administration needed a ‘mandate’ to introduce legislation for territories where it was not the majority party.

Continue reading

After the general election: what’s next?

Just two days after the general election, Professor Meg Russell, Dr Jennifer Hudson and Dr Alan Renwick of the Constitution Unit spoke at UCL’s It’s All Academic festival about the constitutional and political fallout. Michela Palese summarises what they said.

Theresa May called for a snap election on 18 April in order to increase the Conservative Party’s majority in the House of Commons and give herself a strong personal mandate for the upcoming Brexit negotiations. The election took place on Thursday 8 June, and its results caught both the Prime Minister and the general public by surprise. No party secured an overall majority of seats and the United Kingdom has its second hung parliament in less than a decade. The Conservatives are left relying on the support of Northern Ireland’s Democratic Unionist Party (DUP) to form a government.

On the morning of Saturday 10 June the Constitution Unit hosted an event at UCL’s ‘It’s All Academic’ Festival. In this atmosphere of uncertainty, the Unit’s Professor Meg Russell, Dr Jennifer Hudson and Dr Alan Renwick provided some initial analysis of the results and explored some of the likely challenges facing the new government.

The Unit’s Alan Renwick (left), Meg Russell (centre) and Jennifer Hudson (right)

Candidates and campaign

Jennifer Hudson analysed the election from the point of view of campaigning and the composition and diversity of the new parliament.

She argued that, contrary to the Prime Minister’s expectations, it was hard to make the case that the election was about Brexit. In fact, according to a survey that she had conducted in early May, most people did not seem to have strong feelings towards the Brexit negotiations or leaving the European Union without an agreement.

Figure 1: Feelings of the British electorate on Brexit

As shown in the diagram, around 25 per cent of respondents felt either depressed or angry about the negotiations and the prospect of exiting the EU without a deal, but the general feeling on the topic was of relative indifference. This may reflect a shift in the debate on Brexit, with a majority of ‘remainers’ accepting the result and wishing for negotiations to proceed, and only around 20 per cent continuing to claim that the UK should remain in the EU and that there should be a second referendum.

Continue reading

Following the general election, where now for Northern Ireland?

The general election result has done little to halt the steady unravelling of the political situation in Northern Ireland, and may accelerate it. In this post Alan Whysall discusses the implications of the confidence and supply agreement between the Conservatives and DUP, expected to be agreed in the coming days, and what might happen next.  

As Theresa May reaches out to Northern Ireland for support, the political situation there has been steadily unravelling. A pact with the DUP – which has been on the point of emerging for several days, and may appear today, or may not – is unlikely to stop the unravelling. It could accelerate it – not necessarily, but unless there are changes in outlook in Northern Ireland politics, not least from the British government, we risk losing many of the gains that have followed from the Good Friday Agreement.

The unravelling started a while ago…

Earlier blogs have outlined the increasing disarray in Northern Ireland politics since the turn of the year, here, here and here. The following is a brief summary for those who have not kept up.

Sinn Féin, which along with the DUP had constituted the power-sharing government in Northern Ireland, pulled the plug on it in January. Ostensibly this was because of financial scandal involving the First Minister, Arlene Foster of the DUP, in an earlier ministerial life. But the underlying causes had more to do with the way that the DUP treated nationalism, and Brexit.

An election to the Northern Ireland Assembly followed in March. It was highly polarising. Although there have been existential crises in the life of the power-sharing government in Northern Ireland, elections have generally been conducted in a spirit of renewed commitment to work together. And voters increasingly came to like and expect that language – even if there was increasing disillusion at the performance of the devolved institutions.

There was little talk of working together in this Assembly election, however. The reversion in recent months to rhetoric redolent of the days before the Agreement has been marked. Arlene Foster’s spirited attacks on Sinn Féin in fact contributed to a strengthening of its vote – the overall nationalist vote had been flagging in recent elections, but now dramatically bounced back. There was also some strengthening of the middle ground, but the more moderate Unionist and nationalist parties the UUP and SDLP did less well.

Continue reading

The performance of the electoral system: strengthening or weakening the case for reform?

In this post Alan Renwick assesses the performance of the first-past-the-post electoral system at last week’s general election. Focusing on eight criteria, he concludes that the problems generally associated with FPTP were milder in this election than in other recent elections. However, by failing to produce the single-party majority government that its proponents argue is a major advantage over proportional alternatives, the case for FPTP was nonetheless weakened.

Amidst all the profound issues affected by the election results – not least Brexit, the governance of Northern Ireland, and the sovereignty question in Scotland – the performance of the electoral system is not perhaps the most pressing. Nevertheless, a routine health check is in order. Did the electoral system perform better or worse this time than in other recent polls? Did this election strengthen or weaken the case for reform?

Any analysis of performance requires some assessment criteria. Many criteria could be used. In this post, I shall focus on eight of the most important.

1/ Single-party majority

The House of Commons is elected by first past the post (FPTP). While acknowledging its imperfections, supporters of FPTP argue that it has at least one crucial advantage over its proportional rivals: it generally produces single-party majorities, which, they say, help deliver (to coin a phrase) strong and stable leadership.

Clearly, that did not happen this time. Indeed, this was the second election in three that failed to perform as FPTP backers expect. Political scientists pointed out long before the first of those elections, in 2010, that the decline of the UK’s traditional two-party system since the 1970s had made such outcomes more likely. It is noteworthy, therefore, that this time we have a hung parliament even though two-party politics appears resurgent: the vote share of the two largest parties, at 82.4 per cent, is higher than at any election since 1970, and 17.4 percentage points up on the low of 2010. But though multipartism has declined, it has not disappeared: the minor parties still hold over 10 per cent of the seats – a higher proportion than at any post-war election before 1997. Unless things change dramatically, results such as this are likely to become fairly normal.

2/ A government with popular support

The flipside of the coin of so-called ‘manufactured’ majorities is the possibility that FPTP can give power to a government that commands only minority support among voters. Concern about this possibility reached its height in 2005, when Labour secured majority power on only 35.2 per cent of the votes cast and, given low turnout, just 21.5 percent of the eligible electorate.

This time, the Conservatives won 42.4 of the vote. Despite the failure to secure a majority of seats, that is one of the highest vote shares since 1970: only Margaret Thatcher in 1979 and (very marginally) 1983, and Tony Blair in 1997 did better. Theresa May’s party captured the votes of 29.1 of the eligible electorate. While this is the highest share secured by any party this century, it is lower than the share of any winning party between 1945 and 1997 except Labour in October 1974, owing to diminished turnout.

Continue reading

A cross-party committee of the Privy Council should be established to seek consensus on the terms of Brexit

Following last week’s general election result Theresa May is likely to face severe difficulty in negotiating Brexit successfully unless she seeks cross-party consensus. In this post Jim Gallagher suggests that consensus could be achieved through a special committee of the Privy Council, the membership of which would reflect the House of Commons and also contain representatives of the devolved legislatures.

It will be impossible for a minority government with a weak Prime Minister to negotiate Brexit successfully, against a ticking clock, if it deals with the issue in the normal way of British politics. Government cannot formulate policy privately, then seek to sell it to the House of Commons while talking fitfully to the devolved administrations. Theresa May’s administration can be held to ransom, if not by the DUP, by factions in her own party. The opposition will sense blood and might be keener to bring down the government than do a European deal. The devolved will stand on their rights to consent. So even if she can negotiate some agreement with Brussels, she will fail to secure a domestic legislative consensus and the deal will fail.

The government has already used up two of the 24 months allowed for this negotiation and succeeded only in weakening its position. As a result, the UK is faces a high risk of crashing out the EU in an unmanaged way.

Leaving the EU presents the British state with an unprecedented problem. It must be handled in an unprecedented way. Other countries might consider a government of national unity to give the negotiators authority to commit to a deal. We seem too partisan for that, but some senior figures in both government and opposition parties are already saying openly that a cross-party consensus will need to be built on this question. To build such a consensus, however, is anything but straightforward and will require a degree of trust and information sharing that is wholly alien to our normal way of doing government business – to which Westminster and Whitehall will default unless something radically different is devised.

If government tries to develop policy behind closed doors, keeping the devolved at arms-length and negotiating tactically secure a day-to-day majority in parliament, it will almost inevitably fail. There is certainly very little chance of completing the process in time for the agreement to be settled and ratified in Europe as well as here.

Continue reading

Why democrats should welcome a hung parliament

Much commentary has presented the hung parliament that resulted from last week’s general election as a source of damaging instability. In this post Albert Weale argues that democrats should in fact welcome a hung parliament, where a parliamentary majority approves measures on the basis of the merits of the arguments rather than on the basis that they were included in the majority party’s manifesto.

The UK now has a hung parliament. Does that mean that British government is no longer strong and stable but weak and wobbly? To listen to much commentary, you would think so. But for democrats there are good reasons for welcoming a hung parliament.

The prevalent view of parliamentary democracy in Britain runs something like this. General elections are occasions of accountability of governments to the people. Parties stand on their manifestos, and if they secure a majority of seats, their democratic responsibility is to implement what they have promised. Through the Salisbury convention, the House of Lords will not frustrate measures promised in the manifesto. If the people do not like what the governing party has done, they have the opportunity to get rid of that party at the next election.

In this way of thinking, the first-past-the-post electoral system occupies a crucial role. It may not deliver a fair representation of political opinion, at least as judged by the test of proportionality, but it does secure stable government. It magnifies a simple plurality of the popular vote into a majority, often a large majority, of seats in the Commons. With such a majority, a government has no excuse for not implementing the programme for which it has received a mandate. That is simply democracy.

If politics were simply a matter of a contest between left and right, with the two major parties drawn towards the centre ground, this view of democracy might have something to be said for it. In the real world it has nothing to be said for it.

Continue reading