Rethinking Democracy: three routes to majority government

albert_weale (1)After 65 years of single-party government in the House of Commons, the last three general elections have led to three differently constituted governments: a two-party coalition, a Conservative majority government and a Conservative minority government reliant on a confidence and supply agreement for its parliamentary majority. Albert Weale argues that if a rethinking of British democracy is required, that we must start from first principles and consider how to create ways of institutionalising political negotiation among different groups in a way that embraces an incentive towards encompassing different interests and opinions.

A UK trio

2010 – 2015 – 2017. Three elections; three results; three parliaments varying in their party balance: three types of government. Three types of majority rule.

2010 produced a hung parliament with no one party holding an overall majority of seats in the Commons, leading to a Conservative-Liberal Democrat government, the first UK government formed by a coalition of more than one party since 1945. In 2015 the UK reverted to its familiar type with one party holding a majority of parliamentary seats, and with the Conservatives able to form a single-party government. 2017 produced another hung parliament and the government exhibited yet another form: a minority government dependent on a small party, the Democratic Unionists, for confidence and supply, but without the assurance that it could carry the whole of its programme during its term of office.

These three examples illustrate the different ways in which the principle of majority rule can be interpreted. 2015 exhibits the typical pattern of government formation in the UK: one party gains a majority of seats in parliament on less than a majority of votes in the election, with the Conservatives holding just over 50% of the seats on the basis of 37% of the popular vote. On this view of majority rule, it means government by the party that can secure a majority of seats in the legislature whether or not it has secured a majority of votes in the country. No UK governing government since 1935 has secured more than a plurality of the popular vote. Continue reading

What role will the UK’s MEPs play in the new European Parliament?

simon.usherwood.staffOn 23 May, the UK participated in elections to the European Parliament. Now that we know who our MEPs are going to be, the question becomes: with the UK currently set to leave the EU on 31 October, what can they actually do? Simon Usherwood explains how the UK’s new MEPs can influence control of both the Parliament and the European Commission, and discusses the potential political consequences of exercising their legal authority.

In all of the hubbub around the European elections, the small matter of what the 73 individuals elected to serve as the UK’s Members of the European Parliament (MEPs) will actually do has been somewhat overlooked.

With that in mind, it’s useful to consider what MEPs do in both general terms and more specifically on Brexit, as well as the tension between political understandings and legal rights.

A quick refresher

The European Parliament’s role in the EU is to represent the popular will, in both making decisions and providing scrutiny of the work of the rest of the organisation. It does that on the basis of being composed of directly elected members and from the powers given to it by the treaties that underpin the EU as a whole.

This role comprises a number of different elements, each involving the 751 MEPs either as a whole or in representative sub-groupings.

The most substantial element is that of being co-legislator. Under the EU’s Ordinary Legislative Procedure – which covers most areas of EU decision-making, as the name implies – the Parliament has to agree with the Council of the EU – made up of ministers from the member states – on a piece of legislation in order for it to pass. The EP thus has not only a say, but also a veto, on most EU legislation including matters relating to the budget; and in the other cases it usually has at least some rights of consultation.

The second element is that of oversight. The Parliament’s various committees can summon officials and politicians from the other institutions of the EU to appear before them to answer questions about their conduct. Those committees can then produce reports that highlight issues and which can often force problems onto the agenda for action. In extremis, the Parliament has the power to seek the resignation of the entire Commission, the threat of which in 1999 brought about the early end of the Santer Commission. Continue reading

Brexit and the constitution: seven lessons

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The process of exiting the European Union has revealed that the relationship between law and politics was perhaps not as sound as it might once have appeared. Jack Simson Caird believes that we are in the midst of a constitutional moment that has taught us seven key lessons.

Brexit can plausibly be described as a ‘constitutional moment’. The decision to leave the EU will shape the UK constitution over the coming decades. Even if the full extent of the constitutional changes that will flow from Brexit are not yet known, future Prime Ministers will be defined (in part, at least) by their ability to oversee successful constitutional reform. The post-referendum period has revealed a great deal about the relationship between the UK’s political system and its constitutional framework. Those responsible for changing the constitution moving forward will need to learn the lessons from this tumultuous period.

1. Governing without a majority needs a change of approach

One of the principal causes of the current crisis has been the way in which Theresa May’s government approached the task of governing without a majority. In the immediate aftermath of the referendum, members of the government stressed the need to deliver on the referendum result without delay. The overwhelming sentiment was that the government, led by the Prime Minister and her Cabinet, should be left to get on with the task of negotiating a deal: a majoritarian mindset disconnected from the reality of a divided Cabinet and parliament. Instead, the government should have sought to build a majority for its proposed approach to delivering Brexit before it triggered Article 50 (or at the beginning of the 2017 Parliament).

Any future government that wishes to deliver constitutional change without a majority should look to the example of 2010 Coalition government. The coalition agreement struck between the Conservative and Liberal Democrats specified the constitutional changes that the two parties would agree to support. Theresa May’s government should have done the same and at the outset sought support for the substance of its approach for delivering Brexit.

2. Identify processes that can help to build consensus

The domestic process by which Brexit was to be delivered was not given sufficient attention early enough. Constitutional change gives rise to cross-cutting issues deserving of a special form of public and parliamentary scrutiny. In the absence of a rock-solid parliamentary majority, a special process needed to be constructed to deliver the constitutional transformation of the scale required by Brexit. The commitment to construct such a process at an early stage would have sent a positive message to other parties – and to the public – that the government was committed to finding a compromise that commanded wide support.

In the absence of a formal agreement with another party, the government could have sought to construct a bespoke process that might have facilitated cross-party support for delivering Brexit.

In the early stages of the process, suggestions that parliament should have more input in the negotiations were rejected on the basis that the government should not have its hands tied. Rather than treating these suggestions as an opportunity to bring MPs onside, they were treated as threats that could derail the process. Theresa May’s government only resorted to indicative votes and cross-party talks after the negotiations with the EU finished (and her deal or no deal strategy had failed) which did little to inspire the sense that the desire to engage was genuine.

3. Parliament needs to develop new forms of influence

The Article 50 process has demonstrated that parliament is a powerful constitutional actor. Since the Withdrawal Agreement was published in November 2018, the majorities against the Withdrawal Agreement and against a no deal exit shaped the debate. However, the Article 50 process has also shown that parliament’s influence on the substance of treaty negotiations and the legislative process is limited. Over the course of the 2017 parliament, the House of Commons inched its way to more control through innovative uses of parliamentary procedure, such as through business of the House motions and the Humble Address. The problem is that MPs only realised the extent of their power when it was too late. This meant that compromises were put together and agreed in haste. Essentially, backbench MPs made the same mistake as the government by not prioritising their influence over the process at an earlier stage.

4. The values of liberal democracy should be robustly defended

During the Brexit process, parliamentary scrutiny and debate has been characterised by some as anti-democratic. However, one of the central tenets of liberal constitutionalism is that proposals to change the constitution should be subject to scrutiny and debate. Constitutional democracy is in a very difficult place if this scrutiny and debate is not valued and defended. The core of the case for a carefully constructed procedure for constitutional change is that it enhances the democratic legitimacy of the end-product. How can constitutional reformers build the case for properly constructed change, if deliberation itself is undervalued in UK political culture?

The House of Commons and the Civil Service are restricted in their ability to defend their constitutional role by the requirements of impartiality. So, advocates of constitutional democracy need to robustly defend the role that institutions play in empowering citizens through democratic deliberation. No one is suggesting that politicians or institutions should be free from criticism (on the contrary, criticism is critical to their health and development). However, Brexit has highlighted a need for the values that underpin the basic elements of the democratic process to be defended far more vigorously.

5. Reframe the language of constitutional democracy

Prior to the referendum vote, the Vote Leave campaign demonstrated that a constitutional argument could be framed and communicated in a way that could cut through. Restoration of sovereignty (‘take back control’) was central to the Vote Leave campaign narrative. However, in the post-referendum period, the government has struggled to find a way of communicating the message that leaving the EU with a deal would empower ordinary citizens.

Of course, the reality of constitutional change is more complex than the messaging during the referendum campaign conveyed. However, it is clear that the constitutional ambition of the government was limited by its ability to communicate the value of democratic institutions. Implementing Brexit through radical constitutional change (by, for example, devolving power to English regions) would have required innovative ways of communicating this change to voters – and the government did not have this capacity.

6. Bring law and politics closer together

The Brexit process has exposed a fairly dysfunctional relationship between law and politics in Westminster. Parliamentarians have often been called out for misunderstanding some of the legal fundamentals of the Brexit process. The level of understanding of international law and EU law has been particularly problematic (although this perhaps reflects the limited incentives that parliamentarians have so far had to engage with either of these areas of law). At the same time, it is important to recognise that lawyers are not best equipped to engage with politics. As a result, the Brexit process has often been characterised by a frustratingly circular discourse. To improve the quality of debate over constitutional change, we need to bridge the gap between law and politics.

7. We need politicians that want to build a constitutional consensus

It may be that the UK’s constitutional democracy is in such difficulty that it cannot be repaired through piecemeal change. However, a more radical constitutional overhaul (perhaps in the form of a written constitution) will require politicians that are willing to prioritise finding a new constitutional settlement to resolve the post-Brexit divisions. At present, there are very few frontline politicians that prominently advocate constitutional change. It is not a message that seems to garner support.

Professor Jeff King’s inaugural lecture – delivered at University College London in April 2018 – persuasively argued that moving towards a written constitution in the UK would provide a means for citizens to take ownership over the UK’s constitutional democracy. In order to revitalise constitutional democracy in the UK post-Brexit, political leadership will need to harness this insight and communicate it to the public at large.

This article originally appeared in the June issue of Counsel and is reprinted with permission.  

About the author

Dr Jack Simson Caird is Senior Research Fellow in Parliaments and the Rule of Law at the Bingham Centre for the Rule of Law. He tweets as @jasimsoncaird

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The next PM’s territorial challenges

jack_sheldon.1The next stages of Brexit are now set to happen under a new Prime Minister. The chosen candidate will have to work with governments in Wales and Scotland that are openly critical. Northern Ireland may be without a government and the English regions may lack a unified voice, but neither can be taken for granted, especially as the new PM will rely on the DUP for confidence and supply. Leaving the European Union therefore cannot be separated from the challenges of maintaining the domestic union, as Jack Sheldon explains.

Following the announcement of Theresa May’s imminent resignation, the long-anticipated contest within the Conservative Party to succeed her has begun.

The campaign will inevitably be dominated by Brexit. But events over the past three years have shown that the future of relations with the EU cannot easily be separated from the future of the domestic Union. The candidates will thus need to give careful thought to how they will approach the major statecraft challenges presented by territorial politics across the UK if they become Prime Minister.

Renegotiating the Northern Ireland backstop will be popular with Conservative MPs – but a new Prime Minister might soon face the same dilemma as Theresa May

The Northern Ireland ‘backstop’ has been the main driver of opposition to the Withdrawal Agreement within the parliamentary Conservative Party and their confidence-and-supply partners the DUP. Consequently, there are strong short-term incentives for leadership contenders to commit to renegotiating it, in the hope that it might yet be possible to get a deal that doesn’t cut across Brexiteer red lines on the Single Market and customs union through the House of Commons. Pledges to this effect have already been made by Jeremy HuntBoris JohnsonEsther McVey and Dominic Raab.

In reality, substantive changes to the backstop will be extremely difficult to deliver. It remains the position of the EU27 and the Irish government that the Withdrawal Agreement will not be reopened.  Keeping an open Irish border has become highly salient in Ireland and the EU, and the new Prime Minister will need to appreciate that this means there is next to no chance that they will be open to trading the guarantees provided by the backstop for the loosely-defined ‘alternative arrangements’ envisaged by many Conservative MPs. The same dilemma Theresa May faced might thus soon confront her successor – whether, as an avowed unionist, to recoil from a no-deal scenario that would undoubtedly have disruptive effects at the Irish border and strengthen the case for an Irish border poll, or whether the delivery of Brexit trumps everything else.

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Taking stock: what have we learned from the European elections?

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Last week, voters across the UK (and indeed, across the European Union) took part in the European Parliament elections. Now that we know the outcome, Alan Renwick examines the impact on the results of both the rules that governed the election and the strategies of the parties.

The European elections raised important questions about how the voting system – and parties’ and voters’ reactions to it – might influence the results. Would the imperfect proportionality of the system harm the smaller parties? Should those parties – particularly the three Britain-wide anti-Brexit parties – have formed an alliance? Could voters maximise the impact of their ballots through tactical voting? Now that the results are in, it is time to take stock.

The impact of the rules

As I set out in an earlier post, European Parliament elections in Great Britain use a list-based system of proportional representation (while those in Northern Ireland use Single Transferable vote, or STV). This system is proportional, but not very. The D’Hondt formula for allocating seats favours larger parties. So does the fact that the number of seats available in each region (ranging from three in the North East of England to ten in the South East) is fairly low.

The results would certainly have been different had the elections been held using First Past the Post, as was the case for European elections in Great Britain before 1999. This system, still used for Westminster elections, awards a seat to the largest party in each constituency. Had voters cast the same votes as they did on Thursday, the Brexit Party would under First Past the Post have won almost every seat in England and Wales outside London and the Home Counties; the Liberal Democrats and Labour would have dominated in London and parts of its environs; the SNP would have captured every seat in Scotland; and the Conservatives would have been wiped out. In fact, many voters would not have cast the same votes as they did. For example, the anti-Brexit parties could probably have agreed joint candidates much more easily than under the actual system, helping them to secure some extra seats. But the Brexit Party would very likely still have scooped up most seats on less than a third of the vote. Continue reading

The politics of publishing select committee legal advice

f9pJoDDq_400x400 (1)picture.1257.1530012142Cristina.Leston.Bandeira1Parliamentary select committees at Westminster are assisted in their work by teams of impartial parliamentary staff who fulfil a variety of functions. This can include the provision of legal advice by parliamentary lawyers. In recent years, some committees have chosen to publish that legal advice. Drawing on their ongoing research, Ben Yong, Greg Davies and Cristina Leston-Bandeira examine the practice of publishing legal advice, the reasons behind it and the potential implications for the work of committees and their advisers.

In 2017, the House of Lords European Union Subcommittee on Financial Affairs took a highly unusual step. It published the advice provided by the then EU Committee legal adviser, Paul Hardy, as part of its inquiry on Brexit and the EU Budget. Hardy argued Article 50 of the Treaty on European Union allowed the UK ‘to leave the EU without being liable for outstanding financial obligations under the EU budget’ (p.63). The implications of such advice were politically controversial.

But the act of publishing in its entirety the in-house legal advice provided to the committee, and the legal adviser named, also merits serious attention. There is a small but growing trend of select committees at Westminster publishing the legal advice provided to them by the in-house lawyers of parliament (‘parliamentary lawyers’). The trend raises a number of questions: why are Westminster select committees publishing in-house legal advice; what does this tell us about the internal dynamics of select committees; and what are the implications of publishing internal advice for the House and parliament? This is the focus of our latest article, ‘Tacticians, Stewards and Professionals: The Politics of Publishing Select Committee Legal Advice’ (open access from the Journal of Law and Society).

We have been carrying out a bigger project, funded by the Leverhulme Trust, looking at the provision and reception of legal advice to the four legislatures of the UK. We have now interviewed about 75 individuals, of whom approximately 30 work or worked in Westminster.

Why is this happening?

Select committees will sometimes receive legal advice from the in-house legal services of parliament. In the House of Commons, for instance, much of this comes from the Office of Speaker’s Counsel: a small group of lawyers who are permanent, impartial House staff, employed to provide legal support and advice to the Houses of Parliament. ‘Legal advice’ can cover explanation and information to the application of relevant law to a specific set of facts, and any of the various stages in between. We focus on the more formal side of the spectrum. Continue reading