The Independent Commission on Referendums: issues and early ideas

The Constitution Unit has today launched an Independent Commission on Referendums, to review the role of referendums in UK democracy and consider how the rules and practice could be improved. The Commission’s members represent a range of political opinions, with expertise extending across all major UK referendums of recent years. Alan Renwick and Meg Russell highlight some of the key issues that have led to the Commission’s establishment.

The Constitution Unit is pleased to announce the launch of an Independent Commission on Referendums. The UK’s recent experience of referendums has prompted various criticisms of their use and conduct. With referendums now an established part of UK democracy, a review of their regulation and practice is needed. The Commission’s twelve members – listed in full on its webpages – include two former cabinet-level ministers, four other present or former parliamentarians, as well as senior figures from the worlds of regulation, journalism and academia. With their immense expertise and experience, and supported by international research conducted by the Constitution Unit, they will be very well placed to develop constructive and thoughtful recommendations for the use and conduct of referendums in the UK.

We make no attempt in this post to prejudge what the Commission members might conclude. Rather, we highlight some of the key issues and concerns that have led to the Commission’s creation and prompted such distinguished individuals to take part.

When and how should a referendum be called?

The most fundamental question is that of when referendums should be called – indeed, whether they should ever be held at all. Recent referendums in the UK have raised many doubts. In Wales in 2011, some queried whether voters could reasonably be expected to decide on what many saw as relatively technical changes to the devolution settlement. Turnout just above one third of eligible voters suggested that public engagement was low. Two months later, voters across the UK were asked to vote on an electoral system – the alternative vote system – that few campaigners really wanted, primarily due to bargaining between the two coalition partners. In Scotland, the question of who should have the power to call an independence referendum has been and remains contested. Since the Brexit referendum last year, some on the losing side have vowed ‘never again’, and even some of those prominent on the winning side have suggested that this was a vote that shouldn’t have been held. In its recent report Lessons learned from the EU Referendum, the Commons Public Administration and Constitutional Affairs Committee (PACAC) – chaired by arch-Brexiteer Bernard Jenkin – criticised the use of what it styled a ‘bluff-call’ referendum, initiated by the government on a proposal that it opposed in the hope of shutting down debate on the issue.

The UK currently has few agreed principles on when referendums can and should be held – parliament can, in principle, call a vote on anything it likes at any time by passing enabling legislation. In practice, some conventions have begun to emerge as to when a referendum is considered appropriate, and in 2010, the Constitution Committee of the House of Lords proposed a list of constitutional matters that might need to go to popular vote. Yet any such norms remain relatively weak.

So it is worth considering whether it would be desirable – and indeed even feasible – to stipulate more precisely when referendums should be held or how they should be called. PACAC suggested that ‘bluff-call referendums’ should stop, but is there any way of giving such an exhortation real-world weight? Many other democracies do specify the processes for triggering referendums much more tightly, and investigation of the options here will be important.

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Assessing the durability of the Conservative minority government: lessons from New Zealand

Minority government is rare in the UK, but relatively common in many other parliamentary democracies. In this post Jonathan Boston considers the prospects for Theresa May’s government. He draws on the experience in New Zealand, where since becoming the norm in the late 1990s minority governments have proved durable. However, he argues that present circumstances in the UK mean that May’s current government is very unlikely to last a full term.

Minority governments in Britain are relatively rare. But this is not the case in many other parliamentary democracies, especially those with proportional representation voting systems.

During the post-war period, about a third of governments in advanced democracies lacked a parliamentary majority. They were thus dependent on one or more supporting parties, often through a negotiated agreement on matters of confidence and supply. Such agreements vary significantly in policy specificity, consultative arrangements and expected duration.

Minority government in New Zealand can be effective and durable

In New Zealand, there were no post-war minority governments until 1996 when the mixed member proportional (MMP) electoral system was introduced. The impact was immediate and significant: no party has won an overall parliamentary majority since then and during most of these years the party or parties represented in the cabinet lacked a majority.

It has, however, developed some novel governance arrangements to cope with the political exigencies of MMP. In most parliamentary democracies, members of parties supporting a minority government do not hold ministerial office. In New Zealand, by contrast, it is common for only one party to be represented in the cabinet; this party, in turn, is supported by several minor parties, each of which holds a ministerial post outside the cabinet.

Collectively, the government and support parties have a parliamentary majority, but ministers outside the cabinet are not bound by collective cabinet responsibility unless specifically agreed between the parties. There is, in effect, ‘selective collective responsibility’, with ministers able to advance different views publicly on important matters of public policy.

These arrangements have proved both effective and durable: the 1999 Labour-led Government survived three terms in office and the current National-led Government, formed in 2008, is close to completing its third term and will likely retain office after the election in September.

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Unison v Lord Chancellor: the things that landmark constitutional cases are made of

On Wednesday the UK Supreme Court ruled court fees for claims before employment tribunals, introduced by the coalition government in 2013, to be illegal. Christina Lienen argues that this judgement is likely to join the ranks of landmark constitutional decisions, given its characterisation of the UK constitution as founded in common law and therefore in the hands of judges rather than politicians.  

On Wednesday, in a single majority judgement, the United Kingdom Supreme Court (‘UKSC’) declared the recently introduced court fees for claims before employment tribunals and employment appeal tribunal to be unlawful. In this post it is argued that Unison v Lord Chancellor [2017] UKSC 51 promises to join the ranks of constitutional landmark decisions owing to (i) the autochthonous choice of legal sources and particularly the reliance on common law constitutional rights, and (ii) the unequivocal commitment to the rule of law. Their significance is underpinned by the vigorous scrutiny with which the arguments on both sides were examined as well as by the quashing remedy given.

The facts and the law

The law in question is the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013, SI 2013/1893 (‘the Fees Order’), adopted by the Lord Chancellor in the exercise of his statutory powers. Under the rules, a claim can cost a single claimant between £390 and £1600. In September 2014, Unison issued a claim for judicial review seeking to have the Fees Order quashed on the grounds of effectiveness and discrimination, mainly on the basis of European Union law, although partial reference was made to some domestic authorities and judgements by the European Court of Human Rights. The Supreme Court went down the common law route instead, asking whether the fee order was ‘unlawful under English law’. Lord Reed’s judgement is endorsed by all members of the panel, with Lady Hale writing a separate judgement on the issue of discrimination, which is not considered at great length in the majority judgement.

The autochthonous choice of legal sources and common law constitutional rights

The constitutional magic of the judgement happens in paragraphs 64 to 104. By saying that ‘the right of access to justice is not an idea recently imported from the continent of Europe, but has long been deeply embedded in our constitutional law’ [64], Unison echoes the jurisprudence on common law constitutional rights that was shaped powerfully by other UKSC judgements, including notably Osborn v Parole Board [2013] 61 UKSC, A v British Broadcasting Corporation [2014] UKSC 25, Kennedy v The Charity Commission [2014] UKSC 20, and also Rhodes v OPO (by his litigation friend BHM) and another [2015] UKSC 32 and Beghal v Director of Public Prosecutions [2015] UKSC 49. Similar to those cases, Unison displays an emphasis on (a) the historical foundation of these rights by reference to Magna Carta [74], (b) intellectual authority by reference to Sir Coke’s seminal Institutes of the Laws of England, which address the right of access to the courts [75], and (c) case law from the first peak of common law constitutional rights in the 1980s and 1990s, prior to the passing of the Human Rights Act 1998 [76-80]. Particular attention is paid to the Court of Appeal decision in R v Lord Chancellor, ex p Witham [1998] QB 575, which is used as precedent.

Importantly however, Unison goes further than these authorities. In contrast to Osborn, it not only puts the common law centre-stage by making it the starting point of the legal analysis but also implies, in the context of this right at least, the sufficiency of the common law [89]. Furthermore, in contrast to A v BBC, this judgement is more consistent as both the law and the application of the law to the facts is common law based rather than ECHR or EU law based, thereby mirroring the approach in Rhodes. Finally, citing R v Secretary of State for the Home Department, ex p Leech [1994] QB 198 and R (Daly) v Secretary of State for the Home Department [2001] UKHL 26, Lord Reed says that ‘even where primary legislation authorises the imposition of an intrusion on the right of access to justice, it is presumed to be subject to an implied limitation’, thereby bolstering the authority of the common law and the discretion of the courts in the face of explicit statutory human rights abrogation [88]. This last point is closely connected to the court’s commitment to a rich notion of the rule of law.

Lord Reed does not refer to his judgements in Osborn, A v BBC and the like, but instead spends considerable time discussing judgements from the first wave of common law constitutional rights. Perhaps this means that the substantive constitutional right in question, here access to the courts, is considered more pertinent than the underlying power of the courts to develop these rights. None of the younger judgements engage the right of access to the courts. Or perhaps the fundamental question as to the power of the courts to locate constitutional rights at common law and to enforce them against legislation was being avoided.

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To devolve or not to devolve? The European Union (Withdrawal) Bill and devolution

The European Union (Withdrawal) Bill, published last week, is likely to have sizable implications for the future of devolution in the UK. In this post Michael Keating considers these, suggesting that the provisions of the bill may move the UK closer to a more hierarchical model of devolution, in which the broad principles are set in London and the details filled in across the nations.

One of the many contentious details of Brexit is what will happen to those competences that are currently both devolved to Scotland, Wales and Northern Ireland and also Europeanised. As the United Kingdom has a ‘reserved powers’ model of devolution, all powers not expressly reserved to Westminster are devolved. This means that in a range of fields including agriculture, fisheries, the environment and parts of justice, powers are shared between Europe and the devolved level, with no UK departments and common UK policies only in so far as there are common EU policies.

After Brexit, if nothing were done, these competences would revert to the devolved level. There is a broad recognition that there will need to be some UK-wide frameworks in the absence of European ones, and a linkage between the UK and devolved levels. Agricultural support and fisheries management are devolved but international agreements in these fields are reserved. If future international trade agreements include agriculture, there will be a need for provisions on permissible levels of support and subsidy. Agreements in fisheries will include the management of stocks. There will need to be arrangements for a level playing field across the UK in industrial aid and agriculture support. Environmental policy spills over the borders of the UK nations, calling for cooperation.

The question is about what form these frameworks will take and who will be responsible for making them. At one end is the position of the Welsh government, which has argued that devolved competences should remain devolved and that common frameworks, where necessary, should be negotiated among the four UK nations. This would be done through a UK Council of Ministers modeled on the EU Council of Ministers. Another suggestion has been that the UK would lay down broad frameworks for policy, while leaving the powers otherwise devolved. The UK government has recently been suggesting that this would merely reproduce the existing arrangements, in which the devolved bodies are bound by EU frameworks. They implement, rather than make, policy and would not, therefore, lose powers.

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Pre-appointment scrutiny hearings: parliament’s bark delivers a stronger bite than MPs realise

For the past decade House of Commons select committees have held pre-appointment scrutiny hearings with preferred candidates for some of the most senior public appointments. Many select committee chairs and members consider these to be a waste of time because there is no power of veto. However, research published in a new Constitution Unit report suggests that they have much more influence than committees realise. Robert Hazell outlines these findings.

Although little remarked upon at the time, one of Gordon Brown’s more significant constitutional reforms was the introduction of pre-appointment scrutiny hearings. Following his 2007 White Paper The Governance of Britain, the government agreed that candidates for 50 of the most senior public appointments would be scrutinised by the relevant select committee before the government confirmed their appointment. Some select committee chairs and members consider such hearings a waste of time, because they have no power of veto; but Constitution Unit research has shown that they have more influence than select committees realise.

In the last ten years select committees have conducted just over 90 pre-appointment hearings (for a full list see here). The Constitution Unit has conducted two evaluations of their effectiveness: first in 2009, studying the first 20 hearings; and second in 2016-17, when we looked at the next 71. We found three cases where the candidate withdrew following a critical hearing; and two instances where statements or disclosures at a hearing subsequently triggered a resignation. So pre-appointment scrutiny undoubtedly has an impact, even though committees have no formal power of veto: they are an important check on the integrity and effectiveness of senior public appointments, and a curb against ministers abusing their powers of patronage. And their effectiveness cannot be measured solely by the number of negative reports – the select committee hearings also help to deter ministers from putting forward candidates who would not survive this additional public scrutiny.

The puzzle remains that select committee chairs do not recognise how much influence they wield. There are two reasons for this. First, the baleful example of Washington: when pre-appointment scrutiny was introduced, many MPs anticipated that the hearings would be like confirmation hearings in the US Senate, which does have a power of veto. Second, although pre-appointment scrutiny does provide an important check, it is rare for an individual committee or chair to have experience of thwarting an appointment: there have only been five such cases in the last ten years. So for most committees, most of the time, pre-appointment scrutiny can feel like a bit of a chore.

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The European Union (Withdrawal) Bill: constitutional change and legal continuity

The long-awaited ‘Great Repeal Bill’, to be known officially as the European Union (Withdrawal) Bill, was published last Thursday. The bill is a complex mix of constitutional change and legal continuity. Jack Simson Caird highlights some of its main elements.

Nine months after Theresa May first announced that there would be a ‘Great Repeal Bill’, and three and a half months after triggering Article 50, the European Union (Withdrawal) Bill (EUW Bill) was published on 13 July 2017.

Constitutional change

The EUW Bill repeals the European Communities Act 1972 (ECA) (clause 1). The ECA provides the ‘conduit pipe’ through which EU law flows into the UK, and represents a central component of the UK’s current constitutional architecture. The key provisions of the EUW Bill replace the ECA with a new constitutional framework. The main constitutional changes in the EUW Bill include:

  • the creation of a new distinct body of law known as ‘retained EU law’;
  • broadly-framed delegated powers for government to alter this body of law;
  • new instructions to the courts on how to interpret retained EU law; and
  • amendments to the legislation that underpin devolution.

Legal continuity

The government’s position is that the primary purpose of the bill is to provide a ‘functioning statute book’, ensuring legal continuity after exit day. The bill’s most-far reaching provisions, in terms of their direct legal effect, are those which retain existing EU-derived law (clause 2) and convert most directly-applicable EU law (clause 3). However, the continuity provided by these provisions must be seen in context of the reality that leaving the EU will also require major constitutional and policy changes in a relatively short, and currently uncertain, time frame.

Balancing continuity and change

Since the announcement of the intention to convert the acquis (the entire body of EU rights and obligations) ‘wholesale’ through this bill, the government has claimed that the general rule is that the ‘same rules and laws’ will apply on the day after Brexit. While a significant proportion of EU law will be able to be preserved, this general position masks the complexity of legislating for Brexit:

  • the delegated powers in the bill will be used to amend retained EU law in significant ways, notably to reflect the withdrawal agreement;
  • a proportion of EU law will no longer apply once the UK is outside the EU;
  • the government is bringing forward a number of bills to make substantive policy changes in areas currently covered by EU law; and
  • preserved EU law will function differently as retained EU law than it did as EU when the UK was an EU member state and subject to the full force of EU law.

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The report of the Scottish Parliamentary Reform Commission: Westminster as a model for reforming Holyrood?

The Scottish Parliament’s Commission on Parliamentary Reform, established by the Presiding Officer last year, reported in June. Its recommendations include that committee conveners should be elected by the whole Parliament, changes to First Minister’s Questions, the extension of the legislative process from three stages to five and the establishment of a new backbench committee. Ruxandra Serban summarises the report and notes that several of the most substantive recommendations would bring the Scottish Parliament’s procedures closer to those of the House of Commons.

The Commission on Parliamentary Reform was established on 26 October 2016 by the Presiding Officer of the Scottish Parliament, Ken Macintosh MSP. It was chaired by John McCormick, a former Controller of BBC Scotland and UK Electoral Commissioner with special responsibility for Scotland, and included 10 other members: five from civic society appointed by the Presiding Officer, and one nominated by each political party represented in the Scottish Parliament.

The Commission was appointed to review the evolution of the Scottish Parliament in the 18 years since its founding, and to assess its capacity to deal with the additional sets of responsibilities devolved through the Scotland Act 2016 and expected to result from the Brexit process. The Commission convened between November 2016 and June 2017, and sought evidence through meetings and public events, written submissions, oral evidence sessions and an online survey.

The report published on 20 June 2017 makes reference to the set of principles proposed by the Consultative Steering Group (CSG) in 1998 as the key benchmark against which to measure the effectiveness of the Scottish Parliament, and upon which to base suggestions for reform. The CSG was set up in 1997 by the UK government to consider institutional design options for the Scottish Parliament. Its report set out four principles to inform the functioning of the new parliament: power-sharing; accountability; open and accessible participation; and equal opportunities. Since then, some questions have been raised about whether the Scottish Parliament has truly managed to embody the principles of ‘new politics’ envisaged by the CSG, or whether it is in fact a ‘Westminster model’ parliament (notably here and here).

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