Five key questions about coronavirus and devolution

_MIK4650.cropped.114x133

The coronavirus is a once in a generation event that has required an almost unprecedented response from government at all levels, from Westminster to West Lothian. Akash Paun argues that it has raised five crucial questions about the politics of devolution at a time when efficient and effective intergovernmental relations are crucial. 

Coronavirus has hit all parts of the UK and has required a comprehensive response by government at all levels – central, devolved and local. The crisis has raised (at least!) five big questions about devolution, intergovernmental relations and the politics of the Union:

  • Does the crisis show that the UK and devolved governments can cooperate effectively?
  • To what extent does devolution enable policy divergence between the UK nations?
  • How is the crisis affecting the operation of the devolved institutions themselves?
  • How is the pandemic response being funded – and with what impact on devolution?
  • What might this period mean for wider constitutional debates and the Union?

It is too early to give a definitive answer to any of these questions. But developments over the past few months already point to some preliminary conclusions, as well as identifying important lines of investigation for future research.

The UK and devolved governments can work together – at least in a crisis

One important finding, as the Institute for Government (IfG) recently concluded, is that the UK and devolved governments have shown the ability to work together well at various points over the past three months. Given the many disputes over Brexit, the Union and other matters in recent years, and the underlying weaknesses of the UK’s system of intergovernmental relations, it was far from a foregone conclusion that the different administrations would be able to cooperate at all.

But credit should be given where it is due. In early March, the UK and devolved governments published a joint Coronavirus Action Plan – a rare sighting of a government policy paper that was co-branded by the four administrations. There was close working too on the Coronavirus Act, which was drafted with significant devolved input before being passed at Westminster with devolved consent under the Sewel Convention. And devolved leaders participated in meetings of the COBRA emergency committee throughout this period, helping to ensure that major announcements, not least the imposition of the lockdown in late March, were coordinated between the capitals. Continue reading

Irish unification: processes and considerations

Oran.Doyle.191119.jpg

Earlier this year, the International Association of Constitutional Law published a blog symposium on Irish Unification: Processes and Considerations, convened by Professor Oran Doyle. Here, Professor Doyle summarises the  contributions to the symposium. 

The Belfast/Good Friday Agreement (GFA)—the agreement between the parties in Northern Ireland and the related international treaty between the British and Irish governments that was central to the peace settlement in 1998—built a new model of power-sharing politics on the foundation of a territorial compromise. On the one hand, Ireland and Irish nationalists accepted the legitimacy of Northern Ireland’s status as a component part of the United Kingdom. They thereby relinquished a territorial claim to the whole island of Ireland that had been advanced in different ways since independence and partition of the island of Ireland in 1921-22. On the other hand, the United Kingdom and unionists accepted that Northern Ireland would only remain part of the United Kingdom for as long as a majority of people in Northern Ireland so wished it. They thereby relinquished the right of the United Kingdom to preserve its own territorial boundaries.

In 1998, Irish unification seemed a distant prospect. The priority for most Irish nationalists—and certainly for all Irish governments—was to make the new political arrangements work, not to advocate for a united Ireland. But demographic change was slowly producing an electorate more open to unification, and Brexit has now dramatically increased the attractiveness of a united Ireland replete with EU membership. As a result, although opinions on the likelihood of a united Ireland diverge widely, the territorial compromise of 1998 is under pressure. Continue reading

What the RHI Inquiry tells us about the ‘chilling effect’ of freedom of information laws

worthy

The report into the Renewable Heat Incentive scheme provided an insight into the functioning of government in Northern Ireland. Ben Worthy examines the extent to which it revealed that freedom of information laws have produced a ‘chilling effect’ and affected the completeness of the public record when it comes to ministerial discussions and decisions.

One of the biggest fears for transparency campaigners is that Freedom of Information (FOI) laws could create an incentive to hide instead of open up. Could the presence of such laws lead to officials and politicians trying to hide from them, or even fight them? The particular concern is that laws designed to increase transparency might instead empty out the official record, so that meetings go un-minuted, conversations go unrecorded and that important audit trails simply disappear. Even where it goes on, this so-called ‘chilling effect’ is notoriously hard to prove. 

This was one of the many concerns raised as a consequence of scrutiny of the Renewable Heat Incentive (RHI) scheme in Northern Ireland. The alleged mishandling of the scheme partially led to the collapse of the Northern Ireland Executive in January 2017 and prompted an official inquiry, which reported last month. Back in March 2018, giving evidence to the RHI Inquiry, the Head of Northern Ireland’s Civil Service, David Sterling, admitted that ‘the practice of taking minutes had “lapsed” after devolution’ and mentioned FOI specifically as a factor. Continue reading

The Sewel convention and Brexit

mcewen-e1527685912390In March, the Constitution Unit co-published a new report, Parliament and Brexit, in which some of the UK’s leading academics examine how parliament has managed Brexit to date, and how it might seek to handle the issue in future. Here, Nicola McEwen discusses how the Sewel convention, which regulates the relationship between the UK Parliament and its devolved counterparts, was put under strain by Brexit.

There are four legislatures in the UK, but only one of these is sovereign. The sovereignty of the Westminster parliament remains one of the most important principles of the UK constitution. Each of the devolution statutes made clear that conferral of law-making powers on the devolved institutions ‘does not affect the power of the Parliament of the United Kingdom to make laws’ for Scotland, Northern Ireland and Wales – including in areas of devolved competence. But Westminster’s parliamentary sovereignty is offset by the constitutional convention that it will not normally legislate in areas of devolved competence, or alter the competences of the devolved institutions, without their consent.

That convention, commonly known as the Sewel convention, has become an important principle underpinning UK devolution. It represents a tacit understanding that the devolved institutions, each of which was founded on popular consent in a referendum, have primary democratic and political authority over laws within their areas of competence.

From the outset, the scope of the Sewel convention was ambiguous. The UK and devolved governments have frequently disagreed on the extent to which UK legislation necessitates legislative consent from the devolved institutions. When tasked with determining its status following its inclusion in the Scotland Act 2016 and the Wales Act 2017, the Supreme Court in Miller I concluded that it remained a convention rather than a legal rule, therefore ‘the policing of its scope and the manner of its operation does not lie within the constitutional remit of the judiciary’. The Court thus left it to politicians and parliament to determine the operation and interpretation of the convention. Continue reading

The Johnson government’s constitutional reform agenda: prospects and challenges

thumbnail_20190802_092917.jpgThe Conservative Party’s manifesto for the 2019 general election included a commitment to set up a Constitution, Democracy and Rights Commission (as discussed previously on this blog by Meg Russell and Alan Renwick) and engage in a wider programme of constitutional reform. In February, the Unit hosted an event to discuss the new government’s constitutional reform agenda: Sam Anderson summarises the main contributions. 

Page 48 of the Conservative manifesto for the 2019 general election committed to a wide range of constitutional reform proposals – including repeal of the Fixed-term Parliaments Act (FTPA), an ‘update’ of the Human Rights Act (HRA), and the creation of a ‘Constitution Democracy and Rights Commission’ to examine broader aspects of the constitution. On 4 February, the Constitution Unit held an event to discuss the implementation of this agenda, entitled ‘The Johnson government’s constitutional reform agenda: prospects and challenges. The panel consisted of two Conservatives: Lord Andrew Dunlop, a member of the House of Lords Constitution Committee and former Parliamentary Undersecretary of State for Scotland and Northern Ireland; and Chris White, a former Special Adviser to William Hague, Andrew Lansley and Patrick McLoughlin. Professor Meg Russell, Director of the Constitution Unit, chaired the event. The following is a summary of the main contributions. 

Lord Dunlop

Lord Dunlop suggested that the key question for the new government is what ‘taking back control’ means in constitutional terms. The years since the Scottish Independence referendum in 2014 have been incredibly rich for those interested in the constitution. We have seen a deadlocked parliament, an arguably ‘activist’ judiciary, and fracturing Union, whilst foundational concepts like parliamentary sovereignty, the separation of powers, and the rule of law have come under scrutiny. It would be wrong, however, to see the government’s manifesto commitments as simply a direct response to the political and constitutional crisis of last autumn. Brexit placed a number of areas of the constitution under strain, but for Dunlop, it is the long-term context that is key to explaining the proposals in the manifesto. In his opinion, the proposals are not about ‘settling scores’.

For a number of years, EU membership, the devolution settlements and the HRA have all to varying extents limited parliament’s law-making powers. For example, Lord Neuberger, former President of the Supreme Court, has pointed out the profound changes that the HRA has brought to the role of judges in relation to interpretation of statute law, and retired Supreme Court Justice Lord Sumption’s recent Reith Lectures have contributed to a long-running debate about the proper role of judges in a democracy. In Lord Dunlop’s view, the proposals on page 48 of the manifesto reflect the fact that Brexit has put additional pressure on an already strained constitution, and should therefore prompt us to consider whether the constitution is operating as it should.  Continue reading

The history behind Nicola Sturgeon’s call for a Claim of Right for Scotland

gtwuaP6C (1)

Nicola Sturgeon has stated her intention to endorse a modern Claim of Right for Scotland, but there has been little discussion about the 1988 Claim that is the precedent for her new proposal. David Torrance describes the Claim’s history, and argues that it has meant different things at different times to various people.

Speaking in Edinburgh last week, First Minister Nicola Sturgeon said she intended to invite Scotland’s ‘elected representatives’ to ‘come together to endorse a modern Claim of Right for Scotland through a new Constitutional Convention’ to:

‘declare that it is for the Scottish Parliament to decide whether and when there should be an independence choice and build support for that principle amongst civic Scotland.’

The First Minister was referring to the 1988/89 Claim of Right, which argued for a Scottish Constitutional Convention. That Claim is much cited but little studied. This blog will look at three different uses of the Claim: devolutionist, nationalist and the ‘right to choose’.

Origins and publication

The impetus for the Claim of Right was the 1987 general election. The Campaign for a Scottish Assembly established a Constitutional Steering Committee (CSC) of ‘prominent Scots’ to make practical recommendations on persuading the UK government to devolve power. The idea of a 1689-like Claim probably came from a fringe group called ‘Scotland-UN’, which had submitted Scotland’s Claim of Right to Self-Determination to the United Nations in 1980.

Sir Robert Grieve, an eminent planner, led the cross-party CSC, which included Una Mackintosh (widow of the Labour MP and devolutionist John P Mackintosh), Judy Steel (a Liberal) and three prominent SNP figures: Isobel Lindsay, Neil MacCormick and Paul Henderson Scott. It was drafted by a retired civil servant called Jim Ross. Professor James Kellas called them ‘worthy Scots from the middle-class professions’.

Henderson Scott believed the final CSC report ‘was closer to the views of the SNP than of Labour’, with its talk of the Union as ‘a glaring anomaly’ and ‘a threat to the survival of a distinctive culture in Scotland’. Yet as the cultural historian Scott Hames has observed, the Claim ‘veers away from the consequences of its central argument’ and instead urges the creation of a constitutional convention ‘to draw up a scheme for a Scottish Assembly’. Continue reading

The Secretary of State’s power to call a border poll in Northern Ireland: why British-Irish institutional cooperation is essential

Should there be a referendum on the issue of Irish unification, the Irish government would be expected to play a central role. Etain Tannam argues that Brexit created new tensions in British–Irish relations and has highlighted the need to have firm institutional cooperation between both governments before any referendum is called. As Irish unification would alter greatly the Irish state and the Irish electorate would have to approve of unification by referendum vote, the Irish government’s role is highly significant, even though it has no formal powers in this area in the Belfast/Good Friday Agreement. Moreover, the sensitivity of the unification issue and the need to avoid increasing the sectarian divide imply that longer term management by both governments and joint framing of the issue is required.

The Brexit referendum in 2016 almost immediately reignited the issue of Irish unification, given that a majority of the population in Northern Ireland voted to remain in the EU, including the vast majority of cultural Catholics. The unification issue has surfaced periodically since 2016, though with the exception of Sinn Féin, Irish political parties do not wish to place it on their agendas given its sensitivity. It is clear however that combined with demographic changes in Northern Ireland and the impact of Brexit on support for Scottish independence, there is far more informal discussion of Irish unification than in previous decades. Only the Secretary of State for Northern Ireland has the statutory power to call a referendum on Irish unification, if they perceive there to be evidence of majority support in Northern Ireland for unification. However, in practice, given the fundamental implications for the Irish state and given Irish governments’ role in the peace process and in the Belfast/Good Friday Agreement, the Irish government would be expected to play a central role.

There are many reasons why the Irish government’s role would be crucial. Unification would have complex and wide-ranging impacts on Ireland, necessitating an Irish input into the timing of a referendum on unification. Many referendums could be required to amend the Constitution, dealing with a range of issues, including federalisation of the state and of protection for unionist identity in a new state.  Continue reading