Deal or no deal, the UK government needs a new strategy for the Union

_MIK4650.cropped.114x133Almost seven months after the EU and UK agreed to extend the Article 50 process, a new Brexit deal has been agreed. Akash Paun argues that whether the new deal passes parliament or not, the Brexit process so far has demonstrated that the UK government needs to change its strategy for maintaining the cohesion of the Union.

In his first public statement as prime minister, Boris Johnson made two constitutional pledges that stand in tension with one another. On the one hand, he promised to strengthen the UK, which he described as ‘the awesome foursome that are incarnated in that red, white and blue flag, who together are so much more than the sum of their parts.’ But in the same speech, he reiterated his determination to take the UK out of the EU by 31 October ‘no ifs, no buts’ and, if necessary, no deal. Brexit has already strained relations between the UK and devolved governments. A no deal departure would make matters even worse, and would run directly counter to the PM’s ambitions to strengthen the Union.

The Scottish and Welsh governments strongly oppose leaving the EU without a deal. In a joint letter to the prime minister in July, the Scottish and Welsh first ministers argued that ‘it would be unconscionable for a UK government to contemplate a chaotic no deal exit and we urge you to reject this possibility clearly and unambiguously as soon as possible.’ The Scottish Parliament and Welsh Assembly have also explicitly voted against no deal.

The Scottish Government intends to seek Westminster authorisation for a second independence referendum in any case, but this plan may be accelerated if the UK leaves the EU with no deal, at least if the polls look promising for advocates of independence. The Welsh Labour government is committed to making the Union work, but faces a challenge from the pro-independence Plaid Cymru. First Minister Mark Drakeford has expressed his ‘dismay… at the carelessness with which the new UK government has treated the future integrity of the Union,’ and warned that Wales’ commitment to the Union is not unconditional.

In Northern Ireland, meanwhile, a no deal Brexit would make it even more difficult for power-sharing between unionists and nationalists to be restored. The DUP and Sinn Féin are diametrically opposed on Brexit, and no deal would drive them further apart. The UK is likely to impose direct rule in this scenario, to ensure that ministers have the necessary powers to respond to any economic and security challenges that arise. This, coupled with the hardening of the Irish border, is likely to bolster the nationalist case for a ‘border poll’ on Irish unification (for more on this see the Unit’s blog and report on how such a border poll might be affected by Brexit and the questions that need to be answered before it can happen).

For these reasons, a new Institute for Government report on No Deal Brexit and the Union concludes, a no deal Brexit would be a high-stakes gamble with the future of the Union. These risks were recognised by Theresa May, who was reported to have ruled out no deal specifically because of its potential to destabilise the Union.

Westminster and Whitehall need to change their approach to devolution

If Boris Johnson is serious in his commitment to the Union, then he will need to develop a new strategy for managing the territorial constitution. This will become particularly urgent in a no deal scenario, but it is necessary whatever happens with Brexit.

Two decades after devolution, the UK is best understood as a voluntary partnership between its four nations, each of which has the right to self-determination. That does not mean the devolved nations are entitled to declare unilateral independence overnight. If there is to be another ‘indyref’ in Scotland then this must be the product of agreement between Westminster and Holyrood. Similarly, an Irish border poll should only take place once there is a clear plan for reunification, including for how the interests of the unionist community would be protected in a united Ireland. But it does mean that if the Union is to survive, it must be because a majority of people in all four parts of the UK are persuaded that its survival is in their interests.

The UK government will therefore need to provide assurance to the devolved nations that their interests and autonomy will be protected. Devolution left intact the principle of parliamentary sovereignty, meaning Westminster can make and unmake any law. But devolved autonomy was protected via the Sewel Convention, under which consent is sought for UK legislation that affects devolved areas or amends the devolution settlements.

The status of the convention is in limbo following the passage, without Scottish consent, of the EU Withdrawal Act 2018, which empowered UK ministers to impose new constraints on the Scottish Parliament. The Scottish Government consequently refused to consider consent for any other Brexit legislation, including the trade, agriculture, fisheries and immigration bills that are due to reintroduced to parliament soon. The Sewel convention will need to be revived and reformed, with stronger guarantees that Westminster will not rewrite the rules of devolution without agreement.

At a more practical level, the UK government should improve how it takes devolved views into account when policy and legislation are developed. To make this happen, the government should step up its investment in Whitehall’s devolution capability. This has long been acknowledged as a necessary task and some useful steps have been taken, such as a dedicated devolution training campaign created after the Scottish independence referendum. But there is much more to be done, as a government review led by Lord Dunlop is expected to conclude later this year.

Departments should also be held accountable for how they engage with devolved counterparts. Another post-2014 innovation was that departments were asked to develop ‘devolution capability plans’ that set out their approach to devolution and the systems that they were developing to improve relations with the devolved bodies. It is not known whether these plans still exist. It is also difficult to assess their impact because none were published. But the principle underlying them was a good one. Each department should set out its approach to devolution, ideally in a public document. There should be accountability for implementation of these plans, with scrutiny by parliamentary committees and assessment by the Cabinet Office, drawing on feedback from devolved counterparts and other stakeholders.

In addition to these capability issues, the UK government should accelerate work on the review of intergovernmental relations (IGR), in partnership with the devolved administrations. This review was announced in 2018, but it has made little visible progress, aside from the publication of a set of aspirational principles in the summer. It is clear, however, that resetting IGR for the post-Brexit Union is a pressing task, especially in a no-deal context in which decisions will need to be taken between the different governments more urgently. In particular, new systems for joint decision-making and dispute resolution will be required for common frameworks in areas currently governed by EU law. Likewise, UK ministers should take seriously the need to involve devolved counterparts when future negotiations take place on trade and other international agreements that will affect devolved competences.

Brexit has already proved a serious test for devolution. As the UK finally takes a decision about its place in Europe, it must also rethink the nature of its own domestic Union and the relationships between the nations of these islands.

If you enjoy the Constitution Unit blog, sign up for updates in the left sidebar, join our mailing list for news of our events and research, and support us through a one-off or regular donation. Donations are crucial to funding the blog, and the Unit’s research.

This post first appeared on the blog of the Centre for Constitutional Change and is cross-posted with permission of the author. 

About the author

Akash Paun is a Senior Fellow of the Institute for Government, and an Associate Fellow of the Centre on Constitutional Change. He is a co-author of No Deal Brexit and the Union, published on 16 October 2019 by the Institute for Government. He tweets as @akashpaun

 

 

How to make the select committee system more effective and influential

220px.Official_portrait_of_Dr_Sarah_Wollaston_crop_2Dr Sarah Wollaston, Chair of the Liaison Committee, discusses its new report into how the system of select committees can operate more effectively, both in terms of their place within the House of Commons and their external impact. New ways of working and more powers are suggested, such as taking a ‘digital first’ approach to reports and formalising formalising further the arrangements for the Prime Minister to appear before the Liaison Committee.

Even at times of deep political division, select committees often show parliament at its best. MPs work together across party lines to reach consensus and to hold the government of the day to account. This June marked the fortieth birthday of the departmental select committee system. The Liaison Committee, which is made up of the chairs of all select committees, took the opportunity to review what select committees do and how they do it, publishing our recommendations on 9 September, in a report entitled The effectiveness and influence of the committee system.

Our report introduces a new set of aims and objectives that better reflect the work of modern select committees. From climate change to social care, the impact of Brexit to fake news, select committees have become a driving force for investigation into emerging issues of the day. They have always been a place where the administration, policies and spending of government has been scrutinised. Since the banking crisis of 2008, they have increasingly become a place where those outside government who hold significant public roles or power over people’s lives can be held publicly to account. We recognise this role in investigating areas of public concern in our new aims and objectives and call for it to be reflected in our formal remits.

The new objectives talk about what we do; they also talk about how we do it. We have made progress in hearing from more diverse groups of people and engaging directly with the public in new and more inclusive ways. The Health and Social Care and Housing, Communities and Local Government Committees, which worked alongside a Citizens’ Assembly on Social Care, and the Petitions Committee’s inquiry into the online abuse of disabled people, are exemplars of how committees are increasingly engaging with people outside the usual groups who contribute and including those who have lived experience. Continue reading

Miller 2/Cherry and the media – finding a consensus? 

thumbnail_20190802_092917.jpgprofessor_hazell_2000x2500_1.jpg Despite the UK Supreme Court managing to find unanimity regarding the legality of the attempted prorogation of parliament in  September, the rest of the country, including its national newspapers, appeared to divide along Leave/Remain lines regarding the correctness of the judgment. Sam Anderson and Robert Hazell analyse how the national press discussed the political and constitutional questions raised by the judgment.

The government’s resounding defeat in the Supreme Court is one example of the rolling constitutional drama that breaks in the news almost daily. However, when it comes to media coverage of these stories, the key consideration is almost always ‘What impact will this have on Brexit?’ Issues are reported through the Leave/Remain divide, with popular news outlets framing events for their audiences. This post seeks first to examine the extent to which this has occurred with the prorogation case by looking at eight national newspaper editorials, and the way they have framed the political implications of the judgment. Then, using the same editorials, we will examine whether there is consensus around important constitutional issues that have arisen in this case, such as the proper role of the Court and the importance of the independence of the judiciary. We coded the editorials on both these questions, and found that the case was framed by almost all the papers to some degree through a Brexit lens, and that there is a lack of consensus on the constitutional issues.  

The political questions

The first issue was coded on a scale of -5 to five. Zero reflects the position of the Court: that the judgment concerned the specific prorogation issue, but was neutral with regards to the political implications of the decision. Editorials which argued the judgment would have negative political implications for the government and the Brexit process were assigned a negative number up to -5, depending on the extent they engaged in direct criticism of the judgment, and promoted the government’s policy of getting Brexit done. Editorials that argued that the judgment would have positive political implications for the government and Brexit process were assigned a positive number up to five, depending on the extent to which they were directly critical of the government and its Brexit policies. All eight articles were independently coded by two researchers. Where discrepancies occurred, a mid-point was taken. 

Paper Implications for Brexit 
Sun -5
Mail -4
Express -2
Telegraph  -1.5
Times  0.5
FT  2
Independent 3
Guardian  4.5

 

Looking qualitatively, there were three overarching positions taken. Of the eight publications, four were critical of the judgment and its  potential political implications. The Sun described the Prime Minister as the victim of a ‘staggering legal coup and accused the Court of having done the bidding of Remainers. The Daily Mail was less virulent, but still argued the case was a victory for Remainers, and emphasised how the judgment allowed MPs (including ‘masochistically intransigent Eurosceptic zealots) to continue to try and block the will of the electorate. The Daily Express was less direct but warned politicians that the case should not be used as a way to try to avoid Brexit. The Daily Telegraph made the only substantive comments on the case, noting pointedly that the Supreme Court overruled the High Court’s finding of non-justiciability, and gave some explanation for the prorogation: the government had only been ‘trying to carry out the democratic will’ of the people as expressed in the referendum.  Continue reading

Northern Ireland and a border poll: hard truths

Alan_Rialto2 (1)The Brexit issue continues to fuel speculation about the prospects of Irish unity following a border poll. Here Alan Whysall, Senior Honorary Research Associate at the Constitution Unit, author of the Unit’s paper on the subject published in March, and a member of the working group bringing in colleagues from Belfast and Dublin that will look further at the implications of a poll, warns that there are serious dangers looming here for both parts of Ireland – as well as the British government and the wider UK.

The potential breakup of the UK is now spoken about more often than it has perhaps been since the 1920s, fed by the heated politics of Brexit and by evolutions in opinion revealed in polling in Northern Ireland (and Scotland). Some polling in England suggests a willingness to contemplate this, especially if it is the price of Brexit. The subject is sometimes raised rather matter-of-factly in discussion in Great Britain, on an apparent assumption that quick and clean breaks are possible. 

In the case of Ireland, at least, this is not so. There are a number of hard realities meaning that any process of Irish unity is likely to be drawn out, and at all stages capable of tipping over into heightened tensions, instability and conflict. And hence a serious preoccupation for the UK, as well as for Ireland. The situation requires handling with extreme care and sensitivity, and not least from London. But its conduct in the last few weeks has all tended to exacerbate the situation.

This blog sets out some of the realities and pitfalls – and why the latter are at present becoming more likely and more serious.

Northern Ireland has a right to leave the UK on the basis of the majority vote

Northern Ireland differs from other parts of the UK in that there is a principle already established in political agreements and in international law that it should leave the UK and become part of a United Ireland in certain circumstances – if a majority of its inhabitants voting in a poll, and the majority also in the rest of Ireland, is in favour. This is a cornerstone of the Good Friday Agreement, and embodied also the parallel Treaty between the UK and Ireland.

And there is a mechanism to bring the principle to life: the Secretary of State for Northern Ireland, with parliamentary approval, must call a referendum (usually called in Northern Ireland a ‘border poll’) at any time it seems likely that a majority would favour Irish unity. 

Continue reading

Female leaders can amplify the voices of other women in politics

avatar.jpgIt has long been said that women in politics act as role models and influencers for the women that come after them. But what is less clear is whether or not there is a causal effect on the impact of female MPs as a result of having female ministers in charge of government departments. Jack Blumenau has analysed two decades of parliamentary data and argues that women don’t just inspire other women, they amplify their voices and increase their impact on parliamentary debates and outcomes.

In an interview in 2013, Betty Boothroyd – the first female Speaker of the House of Commons – paid tribute to her political mentor, Barbara Castle. Castle holds an important position in the history of British political feminism not only because of her promotion of seminal legislation such as the Sex Discrimination and Equal Pay Acts, but also because she was the first woman to lead a series of important government departments, including Overseas Aid, Transport, and Employment. In her interview, Boothroyd pointed to the important effect that Castle’s leadership had on her own career: ‘She was my role model because I felt, well, if Barbara can do it then I can do it.’

As key figures in the legislative process, female cabinet ministers seem natural candidates to be “role models” to other women in UK politics. Historically, women have been under-represented in cabinet positions and so the appointment of a female cabinet minister might help to break down gendered sterotypes about the policy areas to which women are entitled to contribute. Similarly, there is also evidence from previous research that female politicians employ a distinct political style which is more cooperative and encouraging than that of their male colleagues. If these behavioural differences persist amongst leadership figures, the appointment of a female cabinet minister may promote a culture that is more conducive to, and encouraging of, the participation and influence of other female MPs.

In a recently published article, I investigate whether there is systematic evidence for the type of female leadership effects described by Boothroyd. In particular, I focus on the relationship between female cabinet ministers and other female MPs in UK politics, and look for evidence of these effects by examining parterns of participation in nearly 15,000 parliamentary debates between 1997 and 2017.

Parliamentary debates matter because they represent the main opportunity for MPs to express their positions on different policy options. If some types of MP routinely speak at greater length than others in debate, or are systematically more influential in their spoken contributions, then this could have important consequences for the representational function of our parliamentary system. Continue reading

Holding a Queen’s Speech in October risks heaping more embarrassment on the Queen

professor_hazell_2000x2500_1.jpgAfter its first attempt at proroguing parliament was found to be unlawful by a unanimous Supreme Court, the government now seems set on a shorter prorogation, to be followed by a Queen’s Speech. Robert Hazell argues that a Queen’s Speech is not just unnecessary, it is also undesirable if the government wants an early election.

In the past couple of weeks the Queen has been wrong-footed by two of her Prime Ministers. On 19 September there was the disclosure by David Cameron in his memoirs that he had sought the Queen’s help when he feared the Scottish independence referendum might be lost. And on 24 September the Supreme Court delivered its judgment declaring that Boris Johnson’s advice to the Queen to prorogue parliament for five weeks had been unlawful. It followed that the Order made by the Queen in Council to prorogue parliament was itself unlawful, null and void. 

Buckingham Palace indicated its ‘displeasure’ at the first episode. On the second, the Palace has maintained a dignified silence; but it is said that when Boris Johnson phoned the Queen upon his early return from New York, he apologised for giving her unlawful advice. Although that in itself provoked a constitutional thunderclap, there may be even bigger thunder clouds to come if Johnson persists with his plans for a Queen’s Speech in mid-October, while also calling for early elections.

Few commentators have remarked on this, but there is an inherent contradiction between these two objectives. A Queen’s Speech usually follows an election, rather than preceding one. If it is delivered in mid-October, and is swiftly followed by an election in November, then the Queen’s Speech will be not so much the government announcing the legislative programme for the next session, but more of an election manifesto. The Queen will have been used to make a Conservative party political broadcast.  Continue reading

Which MPs are responsible for failing to ‘get Brexit done’?

meg_russell_2000x2500.jpgToday Boris Johnson will give his leader’s speech at Conservative Party conference, doubtless with a central argument about the need to ‘get Brexit done’. MPs have been blamed for the failure to achieve this. But which MPs precisely are responsible? Meg Russell argues that opposition parties cannot normally be expected to deliver government policy. Instead, government backbenchers usually have that role. It is resistance from Conservative backbenchers – including Johnson himself and others promoted to his Cabinet – to supporting Theresa May’s deal that provides the most obvious reason for Brexit not having been agreed.

The slogan for this year’s Conservative Party conference, under the leadership of the new Prime Minister Boris Johnson, is to ‘get Brexit done’. Immediately following the Supreme Court ruling against the government last week, ill-tempered exchanges in the House of Commons saw the Prime Minister repeatedly blaming parliamentarians for failing to deliver Brexit. For example, Boris Johnson commented thatPoliticians of all parties promised the public that they would honour the result. Sadly, many have since done all they can to abandon those promises and to overturn that democratic vote’. In contrast he pledged thatWe will not betray the people who sent us here; we will not’, adding that ‘That is what the Opposition want to do’. Far stronger words, characteristically, have been ascribed to his chief adviser Dominic Cummings in blaming parliament for the Brexit impasse. Several papers have reported Cummings as suggesting that it was ‘not surprising’ that people are angry with MPs, as they have failed in their duty to get Brexit done. Given the risks that such comments further stoke such public anger against our democratic institutions, it seems important to consider exactly which MPs primarily bear responsibility for the failure to agree a Brexit plan.

First, a quick recap on what happened in the months before Johnson took office. His predecessor, Theresa May, pursued a lengthy negotiation with the EU27 – resulting in a withdrawal agreement that was signed off on 25 November 2018. Under the terms of Section 13 of the European Union (Withdrawal) Act, this deal was then put to an initial ‘meaningful vote’ in the House of Commons on 15 January 2019. However, it was defeated by MPs by a whopping 432 to 202 votes. The Prime Minister subsequently brought the deal back for a second such attempt on 12 March. By this point various MPs had been brought round to supporting the deal; but it was nonetheless still heavily defeated, by 391 votes to 242. A third and final attempt at getting the House of Commons to agree the deal then occurred on the originally-planned Brexit day, of 29 March 2019. This was not a ‘meaningful vote’ under the terms of the Act, as Speaker John Bercow had hinted that such a move could be ruled out of order – on the basis that MPs cannot just repeatedly be asked to vote upon the same proposition – but it was again an in-principle vote on the deal. Again the gap between supporters and opponents narrowed, but the government was defeated by 344 votes to 286 – a margin of 58. Hence a further 30 MPs would have needed to switch from opposing to supporting the deal in order for it to be clearly approved. Continue reading