Monitor 68: A constitution in flux

The latest issue of Monitor, the Constitution Unit’s regular newsletter, was published today. The issue covers all of the major UK constitutional developments over the past four months, a period that has seen the EU (Withdrawal) Bill pass from the Commons to the Lords; the failure of talks in Northern Ireland; and a significant government reshuffle. Abroad, Ireland is considering a permanent constitutional change and Japan has seen a constitutional first as its current emperor confirmed he is to abdicate. This post is the opening article from Monitor 68. The full edition can be found on our website. 

The UK is experiencing a period of deep constitutional uncertainty. In at least four key areas, structures of power and governance are in flux. Screenshot_20180308.210141 (1)

The first of these, of course, is the nature of the UK’s future relationship with the European Union, to which the Brexit negotiations will shortly turn. The degree to which the UK continues to pool its sovereignty with other European countries depends on the form of that relationship: how far, and on what issues, the UK continues to adhere to EU rules, align closely with them, or follow its own separate path. Theresa May set out her most detailed proposals yet in a speech at Mansion House on 2 March, advocating close alignment outside the structures of the EU Single Market and Customs Union. On 7 March, the President of the European Council, Donald Tusk, published draft guidelines for the EU’s position. As before, this emphasises ‘that the four freedoms of the Single Market are indivisible and that there can be no “cherry picking.”’ What deal will emerge from the negotiations is entirely unclear.

The government’s preferred path will face stiff resistance in parliament too. In late February Jeremy Corbyn signalled that Labour wants a UK–EU customs union (an issue also central to the conclusions reached by the Citizens’ Assembly on Brexit). Consequently the government now risks defeat on an amendment to the Trade Bill pursuing the same objective, tabled by Conservative backbencher Anna Soubry. Beyond that, an amendment to the EU (Withdrawal) Bill passed in the House of Commons in December guarantees that the deal between the UK and the EU agreed through the Brexit negotiations will need to be endorsed by an Act of Parliament in the UK. Brexit’s opponents are increasingly vocal and organised, and occupy a strong position in Westminster. The odds remain that Brexit will happen, but that isn’t guaranteed.

The second area of constitutional flux affects the relationship between the UK executive and legislature. The Withdrawal Bill has raised considerable concerns about an executive power grab, particularly through the broad-ranging powers that the government has sought for making changes through secondary legislation. The Commons, in which the government’s majority is very delicate, asserted itself in scrutinising the bill – inserting the amendment noted above and forcing the government to make other significant concessions. The Lords will likely add further changes, some of which the Commons will not overturn. At the same time, the upper chamber seems finally to be having some success in restricting the Prime Minister’s historic monopoly decision-making power over appointments of new peers. As noted by Unit Director Meg Russell in a new publication, parliament has become gradually more challenging for government to control. Will Brexit enhance or reverse this process?

The third area of uncertainty relates to the structure and pattern of devolution. Many of the powers exercised at EU level that will return to the UK after Brexit are in policy areas devolved to the authorities in Holyrood, Cardiff Bay, and Stormont. The UK government initially wanted these to be reserved in the first instance to Westminster; the Scottish and Welsh governments wanted them to transfer immediately to the devolved administrations. The UK government offered significant concessions in February, but Scotland’s First Minister, Nicola Sturgeon, rejected the proposals, and agreement is yet to be reached. At stake is not simply the ultimate location of these specific powers, for if the UK government ultimately concluded that it could proceed only by overriding the objections of the Scottish Parliament and Welsh Assembly, that would challenge the very foundations of the devolution settlement. Meanwhile, as acknowledged in a new Unit report on Options for an English Parliament, in these delicate negotiations no actor speaks uniquely for England.

Fourthly, and beyond this, there is particular constitutional uncertainty in Northern Ireland. Devolved government has now been suspended for over a year, and, a briefly flickering flame of optimism in early February was brusquely extinguished. There is little hope that this situation will change soon. The outline Brexit divorce terms that were patched together in December between the UK government and EU leaders offered warm assurances that Brexit will not affect the border between north and south in Ireland or undermine the Good Friday Agreement. But the spat over the European Commission’s draft text translating those terms into law shows how uncertain it remains whether such assurances can be fulfilled.

This pervasive atmosphere of change and flux extends well beyond Brexit and the constitution. In the social sphere, widespread allegations of sexual misconduct in film, business, charities, and elsewhere have prompted searching discussions of sexual norms. Revelations about gendered pay inequality and growing recognition of the harms done by online bullying have added to pressure for change. The political world has itself been hit by parallel developments, leading to two cabinet resignations and to two reports: one, on Intimidation in Public Life, published in December; the other – published in the week of the hundredth anniversary of the initial enfranchisement of women – on sexual harassment and the need for new complaints procedures in parliament.

Flux has also come to characterise the relationship between politics and the internet. Concerns about the effects of misinformation and ‘microtargeted’ political messaging are rife, and internet companies, government, and parliament are scrambling to catch up. These issues are central to the work of the Independent Commission on Referendums, which was established by the Unit last autumn and will report this summer.

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