Constitutional Change and Upper Houses: the Italian Case

downloadOn 11 and 12 June 2018 the Constitution Unit co-hosted a workshop at Rome LUISS university, on ‘The challenges of reforming upper houses in the UK and Italy’. This is the second in a series of posts summarising the speakers’ contributions. Professor Carlo Fusaro, a leading proponent of Matteo Renzi’s failed Senate reform of 2016, reflects on why the proposals were defeated and what wider lessons can be learned from their failure.

In a previous blog, Constitution Unit Director Meg Russell set out some more general obstacles to bicameral reform. In this post, reflecting on the recent Italian experience, I argue that the challenges of reforming second chambers have changed, and grown, significantly in recent years.

Constitutional change is difficult by design. Transformation of those constitutional bodies which have a say in the decision making process of constitutional revisions is even more difficult, the most difficult of all. This is something we all have been acutely aware of for decades both in Italy and abroad. Continue reading

Is a second referendum on Brexit possible? Seven questions that need to be answered

jess_sargent.000alan_renwick.000Meg.Russell.000 (1)Two years on from the Brexit vote, the benefits of a second referendum are being hotly debated. In this post, Jess Sargeant, Alan Renwick and Meg Russell identify seven questions that should be considered before parliament decides whether a second Brexit referendum will take place.

Last week a Sky poll suggested that 50% of the public would favour a three-way referendum on the UK’s future relationship with the EU. This follows calls from key figures including Justine Greening, Dominic Grieve, and Tony Blair, as well as a campaign launched by The Independent for the public to be allowed a vote on the final deal. Number 10 has categorically rejected these calls, stating that there will be no further referendum on Brexit ‘in any circumstances’. Nonetheless, talk of a second referendum is likely to continue. Whether you are a supporter or an opponent of that proposal, there are some big important questions about the practicalities of such a referendum that need to be explored. This post sets out some of the most crucial questions. In further posts over the coming weeks, we will begin to explore some of the answers.

1. Would it be possible to hold a referendum in the time available?

To hold a referendum in the UK, parliament must first pass primary legislation, which clearly takes time. To complicate matters, during the bill’s passage through parliament, the Electoral Commission must assess the ‘intelligibility’ of the proposed referendum question – which usually takes ten weeks. There are then other key steps after the bill has received royal assent. The Electoral Commission and the local authorities that must run the poll need sufficient time to prepare. Campaigners on both sides must be designated, and the current legislative framework – the Political Parties, Elections and Referendums Act 2000 (PPERA) – sets out a ten-week regulated campaign period.

The time taken to go through these steps in actual referendums has varied. The legislation for the 2016 EU referendum was introduced 13 months before polling day. For the 2011 AV referendum this was nine and a half months, with only 11 weeks between royal assent and the poll. If the UK is to leave the EU on 29 March 2019 (exit day), such long timescales clearly are not feasible. A big question is therefore, in the current exceptional circumstances, whether the time needed for each step can be compressed – and if so, by how much and with what consequences? For a new referendum to have public legitimacy, these are crucial questions demanding careful answers. Continue reading

Is the UK-Scotland Supreme Court case the start of a new phase of constitutional conflict?

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The UK and Scottish governments are engaged in a legal dispute about the Scottish Parliament’s Brexit legislation, leading to the matter being argued before the UK Supreme Court on 24 and 25 July. Akash Paun fears this could be the start of a new phase of conflict between Westminster and Edinburgh.

In July, the UK and Scottish governments squared off at the UK Supreme Court in a case relating to the Scottish Parliament’s EU ‘Continuity’ Bill (the Continuity Bill) and whether or not it is constitutional, in light of the provisions of the Scotland Act 1998.

The purpose of the Continuity Bill is to ensure there is continuity in Scottish law after Brexit. It retains EU law in devolved areas such as the environment and food standards, and creates powers for Scottish ministers to amend the law so it can operate effectively outside the EU. It therefore has a similar purpose to the UK government’s European Union (Withdrawal) Act (the Withdrawal Act), which was passed at Westminster in June, controversially without Scottish consent for the devolution provisions.

The Continuity Bill was passed by the Scottish Parliament in March, but two of the UK Government’s senior Law Officers, the Attorney General and the Advocate General for Scotland, referred the bill to the UK Supreme Court in April. This is the first time a bill passed by a devolved parliament has been challenged in this way. A similar continuity bill for Wales was also passed in March, but it is now being repealed following agreement between Westminster and Cardiff over the terms of the Withdrawal Act. Both the Welsh and Northern Irish governments were represented at the hearing. 

This is a complex case, as more than one of the judges themselves remarked during the proceedings. Judgment is expected in the autumn, and the Continuity Bill could be ruled within or outside the competence of the Scottish government, or it could be referred back to Edinburgh for amendment, in order to make it compatible with UK law. Continue reading

Making referendums fit for a parliamentary democracy: Lords debate responds to recommendations of the Independent Commission on Referendums

On 19 July, a debate took place in the House of Lords on the impact of referendums on parliamentary democracy. During the debate, several speakers drew upon the recently published report of the Independent Commission on Referendums, which was established by the Constitution Unit last year to review the role and conduct of referendums. Jess Sargeant and Basma Yaghi summarise the debate.

On 10 July the Independent Commission on Referendums (the Commission) launched its final report; just a week later the pertinent topic of the role of referendums in parliamentary democracy was debated in the House of Lords. Discussion echoed many of the key points of the Commission’s report, which was regularly cited in support of speakers’ arguments.

Referendums and parliamentary democracy

A major theme of the debate was the tensions that can arise between referendums and representative institutions. In opening the debate its sponsor, Lord Higgins (Conservative), argued that allowing people to vote directly in a referendum diminishes the ability of elected representatives to employ their own judgment regarding the issue at hand. Lord Bilimoria (Crossbench) raised the predicament of MPs whose constituencies voted leave but who believed that it was in the UK’s best interests to remain in the EU. By way of example, he mentioned the difficulties some MPs had experienced when making their decisions as to how to vote on the European Union (Notification of Withdrawal) Act, an issue discussed by the Unit’s Director, Meg Russell, on our blog. Continue reading

Beating the boundaries? The stalled debate on how to draw up the UK’s parliamentary constituencies

A major 2011 shake-up of the rules governing how the UK’s parliamentary constituencies are drawn has proved controversial. While the new rules deal with the long-standing issue of substantial inequalities in constituency electorates, they also threaten frequent major disruption of the country’s constituency map. But attempts to square the circle by revising the 2011 legislation seem stalled, and the new rules themselves have yet to result in new constituencies. Charles Pattie, Ron Johnston and David Rossiter offer their view of where we are, and where we should go from here.

Largely unnoticed outside Westminster, an important debate has been going on over how to redraw the UK’s constituency map. The current rules for doing so are enshrined in the Parliamentary Voting System and Constituencies Act 2011 (the Constituencies Act). But since the start of this year, two major proposals have been made to revise aspects of the Act. In February, the House of Commons Public Administration and Constitutional Affairs Committee (PACAC) published a report setting out its proposals (and in late May, the government responded). And a private member’s bill sponsored by Labour MP Afzal Khan, containing a different set of recommended changes is still making its way through parliament. Continue reading

No end to hereditary peer by-elections in the House of Lords?

downloadThe House of Lords is not entirely unelected; July saw two new peers appointed following elections involving a very small, select group of electors. In this post, former Clerk of the Parliaments David Beamish discusses the process by which hereditary peers can be elected to the Lords, how the system came to exist, and the continuing efforts to remove the remaining hereditaries altogether. 

It was announced on 18 July that Lord Bethell had been elected to fill a vacancy among the 90 elected hereditary peers in the House of Lords – the 34th such vacancy to be filled by means of a by-election. The vacancy arose from the retirement of the Conservative peer Lord Glentoran (the House’s only Winter Olympic gold medallist) on 1 June. These by-elections are conducted using the alternative vote system and, despite there being 11 candidates, Lord Bethell did not need any transfers of votes, receiving 26 of the 43 first-preference votes cast by Conservative hereditary peers.

This was the second by-election this month: on 4 July the Earl of Devon was elected to fill a Crossbench place vacated by the retirement of Earl Baldwin of Bewdley, grandson of Stanley Baldwin and a tireless campaigner against water fluoridation. The Earl of Devon received 7 of the 26 first-preference votes of Crossbench hereditary peers and it took five transfers of votes for him to be elected.

Viscount Mountgarret was a candidate in both by-elections, receiving no votes in either. His optimism when deciding to stand the second time might have been fuelled by the success of the Earl of Oxford and Asquith, who was elected by the whole House in 2014 and sits as a Liberal Democrat, having previously been an unsuccessful candidate in a Crossbench by-election in 2011 and in Conservative by-elections in 2011 and 2013.

At least one more by-election is in prospect: Lord Northbourne, a Crossbench hereditary peer, has given notice that he will retire on 4 September.

Where do by-elections come from? The House of Lords Act 1999

The present arrangements whereby 92 hereditary peers sit in the House of Lords derive from the House of Lords Act 1999, which removed most of the 750 hereditary peers but provided, under the so-called ‘Weatherill amendment’, for two office-holders (the Earl Marshal and the Lord Great Chamberlain) and 90 elected hereditary peers to continue as members. The 90 comprised 15 peers willing to serve as deputy speakers or committee chairs, elected by the whole House, and 75 peers representing 10 per cent of the hereditary peers in each party or group: 42 Conservatives, 28 Crossbenchers, 3 Liberal Democrats and 2 Labour peers; they were elected by the hereditary peers in their respective groups. Continue reading