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. Continue reading

What an English Parliament might look like – and the challenges of giving it proper consideration

meg_russell (1)Jack.000Constitution Unit researchers have been working on a detailed project on Options for an English Parliament, whose final report has just been published. In this post, report authors Meg Russell and Jack Sheldon reflect on the key design questions associated with the two main models for an English Parliament, and how proposals for such a body relate to wider political questions about the UK’s territorial future.

The idea of an English Parliament has a long history, but has been particularly actively lobbied for over the 20 years since the creation of devolved legislatures in Scotland, Wales and Northern Ireland. Originally an idea mostly taken up by politicians on the right, the proposal has recently begun attracting greater interest also from those on the political left. Supporters seek closer equity with the existing devolved areas, including more explicit representation of English interests, accountability for England-wide policy-making, the airing of English ‘voice’, and a forum where English identity can flourish. Yet some serious concerns have also been raised about the prospect of an English Parliament, most centrally fears that an elected body representing 85% of the UK population would become too dominant, stoking territorial tensions and destabilising the UK Union itself.

Starting with these aspirations and concerns, we have examined the available evidence from UK and overseas experience to explore the options for an English Parliament – on a Nuffield Foundation-funded project, which has just produced its final report. This sought neither to advocate for or against establishment of an English Parliament, but to tease out the kind of design decisions needed, and their likely implications. We identified that two primary models have been proposed for an English Parliament – which we call the separately elected and dual mandate models – and focus our analysis primarily on these. Proponents of both have set out relatively little detail about what in practice would be involved. But if an English Parliament is to be viable, some kind of blueprint is clearly required. We hope that our analysis will help to illuminate this debate, and provide useful insights for both supporters and sceptics of the idea of an English Parliament. Our conclusions relate not just to the institution itself, but to the knock-on effects it could have on UK-wide institutions and on UK territorial politics as a whole.

Continue reading

Devolution, Brexit, and the prospect of a new constitutional settlement for the four countries of the UK


bigpic (1)Over the next 12 months the UK’s national and devolved institutions will be taking decisions that will rank amongst the most significant political events in Britain’s post-war history. In an attempt to contribute to the debate on the role of devolved bodies in the Brexit process, the Welsh Assembly’s Constitutional and Legislative Affairs Committee has produced a report on the subject. In this blog its Chair, Mick Antoniw AM, offers his personal view on the government’s current approach to Brexit and calls for a constitutional reordering of the UK once Britain leaves the EU.

Leaving the EU has turned out to be more than a mere decision to leave a Europe-wide economic and social bloc and has brought into sharp focus the future role and status of the UK in the world. What do we represent and how are we perceived? How much influence in world economic and political affairs do we really have? These questions, however, go even deeper in that they also call into question the very purpose, long-term future and stability of the UK as a country. 

For almost 50 years, since the passing of the European Communities Act, the answers to these questions have been masked by our membership of a European project that with economic and technological globalisation has been developing into a political and social union based on its collective economic strength. 

The Social Chapter, the central role of the European Court of Justice, the developing role of the European Investment Bank and the development of the EU as a trading bloc in its own right created a legal as well as an economic framework for an expanding Europe. Within this context the UK’s increasingly dysfunctional and conflicting internal constitutional arrangements have been masked and constrained by the broader EU constitutional framework and jurisdiction. 

Pandora’s Box has now been opened. British nationalism’s nakedness has been revealed and our political and constitutional nudity is now there for all to see, exposed by the absence of any clear post-Brexit plan. Now that Article 50 has been triggered, the countdown to leaving the UK has begun and on 29 March 2019 we will be out of the EU, ready or not.  Continue reading

Options for an English Parliament: implications for the UK’s central institutions

Jack.000meg_russell (1)A Constitution Unit project has been examining options for an English Parliament. One factor that must be taken into account is implications for the UK’s central political institutions. Focusing on the separately elected model for an English Parliament, in this post Jack Sheldon and Meg Russell suggest that there would inevitably be substantial implications. Both the UK government and parliament would need restructuring, and there would be pressures to move towards more formal federalism.

Since autumn 2016 we have been working on a research project exploring options for an English Parliament. Various earlier posts have covered some of our findings, and our detailed report will be published very shortly. In this post we summarise some of our conclusions on implications for the UK’s central political institutions, including the UK government and parliament. We suggest that, in contrast to the relatively modest changes at the centre that resulted from devolution to Northern Ireland, Scotland and Wales, an English Parliament would require substantial institutional restructuring.

For the sake of simplicity we assume here that an English Parliament would mirror arrangements in the existing devolved areas – that is, a directly elected body to which an executive headed by a First Minister would be accountable. Our report will also consider the implications of the dual mandate model for an English Parliament, under which the English legislature would be composed of Westminster MPs for English seats. While some of the issues covered here do not apply to that model, our report discusses how it too would have major consequences for the centre.


A necessary starting point in considering implications of an English Parliament is the powers that would be retained at UK level. Policy powers and financial arrangements for an English Parliament were covered in a previous blog post; in summary, its policy powers would probably be similar to those of the devolved legislatures in Northern Ireland, Scotland and Wales. Given the design of UK devolution, with policy areas such as education and health almost entirely devolved, this means that the legislative competence of the UK parliament would reduce very substantially. Continue reading

How the UK and devolved governments can agree on the European Union (Withdrawal) Bill


With the EU Withdrawal Bill now in the House of Lords, Clause 11 of the bill is expected to be a cause of potential trouble for the government. The Scottish and Welsh governments, as well as the Labour Party, are all currently opposed to the clause as currently drafted and it seems unlikely it will survive the Lords in its present form. Akash Paun explains the concerns of Edinburgh and Cardiff in this blog and proposes a number of possible solutions, each of which will require compromise on all sides.

The UK government is locked in dispute with the Scottish and Welsh governments over Clause 11 of the EU Withdrawal Bill. This clause prevents the devolved administrations from modifying ‘retained EU law’, the term for all the European legislation the bill will bring into domestic law.

The effect would be that all powers exercised in Brussels return to Westminster, at least initially, giving the UK parliament the ability to create binding legal frameworks in place of EU law. The devolved governments say this is unacceptable, and Edinburgh and Cardiff have refused to grant legislative consent to the bill.

The government accepts that Clause 11 needs to be amended, but it has not brought forth alternative proposals, despite promising to do so before the bill left the House of Commons. Meanwhile, the Scottish and Welsh Governments propose that Clause 11 should simply remove the requirement for devolved bodies to act in accordance with EU law. Full control of the 100-plus areas of ‘intersection’ between EU and devolved law would then revert to the devolved level.

In this case, new UK-wide frameworks would have to be negotiated on a case-by-case basis and could not be unilaterally imposed by Westminster. The concern in Whitehall is that this would increase the risks of legal uncertainty and regulatory divergence, and could make it more difficult to implement a new UK-EU economic relationship.

The bill has now entered the House of Lords with the UK and devolved governments still dug into their trenches. Recent reports suggest, however, that a peace deal may be within reach. Continue reading

A ‘dual mandate’ English Parliament: some key questions of institutional design

meg_russell (1)Jack.000Almost 20 years after the creation of the devolved governments in Scotland, Wales and Northern Ireland, England is the only country of the United Kingdom without its own devolved executive and legislative body. Meg Russell and Jack Sheldon offer their view on whether or not a dual mandate English Parliament is desirable or if it has the proper characteristics to be considered a parliament at all. 

Calls for establishment of an English Parliament have been made for years, particularly following Labour’s devolution in the 1990s to Scotland, Wales and Northern Ireland. Initially such proposals were largely confined to the right of politics, and appeared a relatively fringe interest. But in the aftermath of the Scottish independence referendum, and the new powers devolved to the Scottish Parliament, proposals have also begun to be heard from the political left. Nonetheless, advocates have rarely elaborated on their proposals in detail, and there are many unresolved questions relating to the likely powers, functions, structure and composition of such a body. Since autumn 2016, the Constitution Unit has been working on a research project exploring the options, and a detailed report is due to be published shortly. This post will concentrate primarily on the key institutional questions raised by what is known as the ‘dual mandate’ model for an English Parliament, which some proponents suggest could be implemented as an incremental next step from ‘English votes for English laws’ (EVEL). We ask whether this model for an English Parliament is as innocuous as it looks, and indeed whether what it proposes is a parliament at all.

Models for an English Parliament

The most instinctively obvious model for an English Parliament is to create a completely new body, elected separately from the House of Commons, to mirror the legislatures in Scotland, Wales and Northern Ireland. Variants of this separately-elected model have been proposed by such figures as David DavisFrank Field and Paul Nuttall. It is also favoured by the Campaign for an English Parliament, founded in 1998. Establishing such a body would be a big decision, entailing significant political upheaval and cost. The idea has many opponents, including experts such as Vernon Bogdanor and Adam Tomkins. A key concern is that a new elected body representing 85% of the UK population would, in the words of the House of Lords Constitution Committee, “introduce a destabilising asymmetry of power”. For all of these reasons, adoption of this proposal continues to appear politically unlikely.

The second model is what we call the dual mandate model, which is presented as a more incremental change. Here Westminster MPs representing English constituencies would meet as an English Parliament at certain times. Proponents see this as building on the existing EVEL procedures, creating a far clearer delineation at Westminster between England-only and UK business (and thus dealing once-and-for-all with the famous ‘West Lothian question’). The most prominent supporter has been John Redwood, but similar arrangements have also been proposed by MP Andrew Rosindell, Welsh AM David Melding, journalist Simon Heffer and writers from the Adam Smith Institute think tank. Nonetheless, this model is rejected by the Campaign for an English Parliament as ‘English Parliament lite’. Continue reading

Addressing the constitutional flaws in the EU Withdrawal Bill: The view of the Constitution Committee


Today sees the start of two days of debate in the House of Lords as the EU (Withdrawal) Bill has its second reading stage. Ahead of that debate, the Constitution Committee of the House of Lords has produced a report on the legislation. In this blogpost Baroness Taylor, who chairs the committee, explains that the Bill as currently constituted has major flaws that could cause serious constitutional problems if left unamended.

Brexit presents an unprecedented constitutional challenge for the UK. In order to achieve a smooth departure from the European Union, it is essential that there is legal certainty and continuity on exit day. The European Union (Withdrawal) Bill (the Bill) is the government’s attempt to achieve this. It attempts to deliver certainty by preserving existing EU law as it currently applies in the UK and converting it into domestic law. This is a legal undertaking of a type and scale that is unique and it poses significant challenges for both parliament and the government.

The House of Lords Constitution Committee gave early consideration to these challenges in its ‘Great Repeal Bill’ and delegated powers report and its interim report on the Withdrawal Bill itself. We are disappointed that the Government has not addressed our earlier concerns and recommendations and, as it stands, the Bill raises a series of profound, wide-ranging and interlocking constitutional concerns. The Committee’s latest report, published yesterday, explores the constitutional deficiencies of the Bill in detail, and offers a number of constructive solutions to improve this essential legislation.

At present, the Bill risks fundamentally undermining legal certainty in a number of ways. The creation of ‘retained EU law’ (existing EU law in a new domestic form) will result in problematic uncertainties and ambiguities as to what it contains and how it relates to other domestic law. The Bill fails to give sufficient clarity and guidance to the courts as to how retained EU law is to be interpreted after the UK leaves the European Union and it seeks, unsuccessfully and erroneously, to perpetuate the ‘supremacy’ of EU law post-Brexit. Continue reading