The latest edition of Monitor, the Unit’s regular news update on constitutional issues, was published today. In this lead article from Monitor 77, Meg Russell and Alan Renwick discuss a Brexit deal that has already led to tension with the EU; change at Number 10 and in the Lords – but not the Commons; concern about scrutiny of both Brexit and the pandemic; multiple threats to the Union; preparations for elections throughout Britain, a new Unit project and two new Unit reports.
As 2020 ended, it appeared that UK politics might – as in the US – be entering a new phase. Brexit had dominated the previous five years, at least until COVID-19 came along. But the trade deal between the UK and the EU, reached on 24 December after months of negotiations, and enshrined into UK law in an extraordinary parliamentary sitting six days later, suggested that this debate might at last be put to bed.
The Vote Leave duo of Dominic Cummings, Boris Johnson’s de facto chief of staff, and Lee Cain, Number 10 Director of Communications, dramatically left their posts in November. They were widely seen as driving the Johnson government’s initially abrasive style, characterised by confrontation with parliament, the Civil Service, parts of the media, and various basic norms of Britain’s uncodified constitution. The announcement that former civil servant Dan Rosenfield would become the new Number 10 Chief of Staff suggested that a more measured approach might prevail.
Yet indications of fundamental change may prove illusory. Many aspects of the UK’s future relationship with the EU – notably over financial services and long-term arrangements for fishing – are unresolved. Chief Brexit negotiator Lord (David) Frost was recently appointed to Cabinet, highlighting that his job is far from done. Recurring negotiating rounds may become a permanent political feature.
That is most starkly clear in Northern Ireland, which remains subject to many EU rules under the terms of the Protocol on Ireland/Northern Ireland. Frictions in post-Brexit trade across the Irish Sea, compounded by the European Commission’s ill-judged (if rapidly reversed) decision to suspend key Protocol provisions, led many unionists to demand its scrapping. The Commission and the UK government responded that they were committed to making it work.
Number 10’s confrontational politics have partly moderated: relations with Conservative backbenchers have improved; and Johnson made no attempt to exploit the European Commission’s Protocol blunder. Nonetheless, backbenchers cried foul when, despite assurances to the contrary in September, fresh lockdown restrictions, including those imposed over Christmas, were introduced before parliament could debate them – with MPs’ demands for a Commons recall ignored. In late November, ministers used procedural chicanery to block expansion of virtual Commons participation and a similar episode followed in February over amendments to the Trade Bill concerning agreements with countries alleged to have committed genocide. These problems illustrate a basic weakness highlighted in a Unit report by Meg Russell and Daniel Gover published in January. Taking Back Control: Why the House of Commons Should Govern its Own Time argues that the government has disproportionate influence over what MPs get to debate and when.
The House of Lords’ powerlessness over its own affairs was also illustrated in December. Johnson announced the appointment of 16 new peers – including one who had been rejected by the Appointments Commission – while parliament was in recess and unable even to express disapproval.
While relations with the Civil Service may be partially healing, the Independent Adviser on Ministerial Interests resigned in late November after Johnson rejected his conclusion that Home Secretary Priti Patel had breached the Ministerial Code due to her treatment of officials. That same month, the Commissioner for Public Appointments, who steps down in April, expressed concerns about aspects of the government’s approach.
With respect to the role of the courts, the government’s intentions for reform of judicial review remain opaque. The Independent Review of Administrative Law has reported to the Ministry of Justice, but neither its findings nor the evidence submitted to it have been published. A further inquiry – the Independent Human Rights Act Review – was announced in December, and will take a more transparent approach.
Meanwhile, proposals announced for legislation to promote safety online were greatly diluted from those originally sketched out by Theresa May’s government in April 2019. Damage to democracy is no longer recognised as one of the harms that online communications can cause.
But the greatest uncertainty concerns the future of the Union. Since last summer, polls in Scotland have consistently shown majorities for independence. Elections across Great Britain look set to go ahead in May and the SNP, if it returns to power in Scotland, intends to pass legislation for a referendum. This will force the UK government to choose between allowing the vote and contesting the Scottish Parliament’s right to call it through the courts. Johnson has claimed that he will refuse consent for any such ballot, but many in his own party are wary of the backlash that may trigger.
Remarkably, it is Nicola Sturgeon’s predecessor as First Minister, Alex Salmond, who may scupper her plans. His allegations to a Scottish Parliament committee, including that she broke the Ministerial Code, could bring her down if substantiated. Sturgeon has denied them vigorously. But the latest polls suggest setbacks to the independence cause. The pro-Union parties clearly sense an opportunity, but are also struggling. In December, Keir Starmer announced a ‘constitutional commission’, advised by former Prime Minister Gordon Brown, focused on developing a plan for greater devolution across the UK. But the following month Scottish Labour lost its leader. Anas Sarwar is the new leader, elected in February. The same month, Downing Street’s Union unit lost two leaders within weeks of each other.
The political situation in Northern Ireland is also fragile. While the Executive continues to exist, disagreements between the parties render it deeply dysfunctional. There is no current majority for unification with Ireland, but future directions are impossible to predict. In this context, the unit published the interim report of the Working Group on Unification Referendums on the Island of Ireland in November. This examines how any future referendums on the unification question would best be designed and conducted, while taking no view on whether such votes would be desirable.
This remains, therefore, a period for major constitutional reflection and review. The government’s plans for a Constitution, Democracy and Rights Commission were formally dropped in December, extinguishing prospects for government-initiated public engagement with central questions about balance in the constitution. This gap will hopefully be partially filled by a new project recently announced by the Unit, which will conduct large-scale polling and convene a citizens’ assembly focused on the kind of democracy that people in the UK want. Such citizens’ assemblies have become an increasingly important part of our political landscape, and the evidence collected through these two methods should form an important source for public officials and politicians of all parties in healing some of the divisions exposed by Brexit, and charting a constitutional road ahead.
You can read the full contents of Monitor 77 here. To get future issues direct to your inbox, you can subscribe to Monitor and sign up to our other mailing lists, for news of events and publications here. You can also subscribe to the blog for free in the left sidebar of this page. If you value the blog and Monitor, you can also donate to the Unit here.
About the authors
Professor Meg Russell FBA is Director of the Constitution Unit, a Senior Fellow at The UK in a Changing Europe studying ‘Brexit, Parliament and the Constitution’ and co-author of Taking Back Control: Why the House of Commons Should Govern its Own Time.
Dr Alan Renwick is Deputy Director of the Constitution Unit and the Chair of the Working Group on Unification Referendums on the Island of Ireland.