Monitor 65: Testing constitutional times

The latest issue of Monitor, the Constitution Unit’s regular newsletter, has been published today. The issue covers all of the major UK constitutional developments over the past four months, a period that has included the High Court and Supreme Court rulings in the Article 50 case, the unveiling of Theresa May’s Brexit plan and the election of Donald Trump as President of the United States, plus much else besides. The front page article is reproduced here. You can read the full issue at this link

monitor-65-coverPolitics remains fast-moving. Its unexpected turns have raised fundamental questions about the constitutional order, in the UK and beyond – including the rightful place of voters, elected legislators, governments and judges in political decision-making – as well as the media’s role in questioning those decisions.

Here, Brexit remains the dominant preoccupation. The previous issue of Monitor reported how ‘ministers have repeatedly insisted that they are in charge of the Brexit negotiations and that to reveal their hand to parliament in advance would weaken their negotiating position’. A lot has changed since then.

Following rulings by the High Court on 3 November, and Supreme Court on 24 January, ministers had to accept that they require parliamentary approval to trigger Article 50; at the time of writing, the European Union (Notification of Withdrawal) Bill has now passed through the Commons and awaits scrutiny in the Lords (see page 3). Even before the bill’s introduction, the government had conceded (in December) that its Brexit plan would be published prior to triggering Article 50, and (in January) that this would include a white paper – commitments necessary in order to see off potential Commons defeats. With help from the courts, parliament has rediscovered some of its teeth.

Continue reading

The process of Brexit: what comes next?

me 2015 (large)

In a new report published jointly by the Constitution Unit and the UCL European Institute, Alan Renwick examines what the process of Brexit is likely to look like over the coming weeks, months, and years. Here he summarises five key lessons.

wp2_arenwick_front_coverThe phoney war around Brexit is almost over. For months, two immediate questions have dominated discussions: How can Article 50 be triggered? And what sort of deal will ministers seek? The Supreme Court’s ruling on 24 January answered the first question. We know much more now about the second through Theresa May’s Lancaster House speech and last Thursday’s white paper. The Article 50 bill is being debate in parliament. By the end of March – if the government gets its way – we will be entering a new phase in the process.

The question is: What comes next? Can the government deliver on its wish list? Can parliament provide effective scrutiny?  Will the courts intervene again? How is Brexit likely to play in the devolved nations? Is a second referendum at all likely?

In a new report, I offer answers to these and related questions. Here I summarise five key points.

1/ The UK government is very unlikely to get what it says it wants.

The government has set out highly ambitious goals. It wants not just a divorce agreement, but also a complex, deep, and bespoke deal on the UK’s future relationship with the European Union, encompassing a comprehensive free trade agreement, a novel form of customs association, and ongoing cooperation in areas including policing, security, and research. Furthermore, it wants all of this to be both negotiated and ratified within two years.

Whether such a deal will emerge is impossible to say; but achieving it within two years certainly looks very unlikely. First, EU leaders (so far at least) have said they will not negotiate on these terms. Rather, they initially want a divorce deal only; once that has been negotiated, they propose a transitional period that preserves many features of EU membership while detailed negotiations on future relations are conducted. Thus, the first round of the negotiations will be a discussion of what the negotiations are actually about.

Second, even if the UK government gets its way in this opening round, the negotiations thereafter will be immensely complex and difficult. They will range across most policy areas. Not only will the UK be negotiating with the EU: in addition, there will be intense negotiations among the twenty-seven remaining member states and between the European Council, European Commission, and European Parliament. Whitehall’s resources for all of this are very tight, and experienced negotiators with relevant expertise are thin on the ground.

Third, a deal such as the Prime Minister proposes will have to be agreed by the European Parliament and ratified by every member state. As the troubles faced in the Walloon parliament by the Canadian free trade agreement show, there is no guarantee that ratification will be smooth. Indeed, in some countries ratification could be subject to a citizen-initiated referendum, as occurred in the Netherlands last April for the EU–Ukraine Association Agreement.

If no deal has been done and ratified within two years, the UK government will have three main options: press for an extension to the negotiation window (which would require unanimous agreement of the member states); accept the EU’s proposed transition phase; or decide that the UK is leaving without any deal. Ardent Brexiteers dislike the first two options. But most observers think the hard and disorderly Brexit implied by the third entirely unpalatable. A government that pursued it could well be forced from office, triggering deep political turmoil.

Continue reading

Northern Ireland after the election

Alan_Rialto2

The Northern Ireland Assembly election on 2 March is likely to be followed by a difficult political negotiation. Alan Whysall argues that it must not be mere political sticking plaster. There is no real alternative to the basic architecture of the institutions, but there are fundamental issues to be dealt with about the way they operate. And that is too important to be left to politicians alone: people in Northern Ireland outside politics need to get involved in setting the agenda.

As my previous blog post, published last week, outlined, we are likely to be in a profoundly difficult position after the election on 2 March, whatever the result. The recent departure from the Assembly through ill-health of Martin McGuinness, a figure of stature and experience, will make things no easier. There will be at most three weeks to find a basis for the restoration of devolved government – failing which fresh elections would by law be called. More likely, Westminster would conclude that it had to reimpose direct rule: but that would make reaching a settlement much more difficult and protracted. It is probably the last thing that any of the main parties want, but we may be back to games of chicken; and there is a risk of politics running out of control.

There is likely to be an intensive political negotiation whatever happens. Preferably, it would if necessary take place in parallel with a resumed devolved government, with the parties agreeing to stay until perhaps September – however imperfect from the good government point of view. Here are some thoughts about how it should be approached.

First, flawed though its operation has been, the present set of institutions is the best we can hope for in current circumstances – subject to some adjustments to the way it functions.  So long as the electorate continue to vote largely for parties representing one part of the Northern Ireland community or other, if there is not a form of government that engages the energies of both then constructive politics will be impossible. Nationalists are likely to see attempts to replace mandatory coalition with something else, whatever the safeguards offered, as an unacceptable attempt to undermine their influence.

But the system needs to operate in a new political climate if it is to function stably and effectively: for that it needs new attitudes, new ideas, new people. This is not to dismiss the Northern Ireland political class wholesale: they operate in the environment they are given.

But the present politics yield no vision, hence inspire no-one. Politics in Northern Ireland is probably even more of a bubble activity than elsewhere in the western world. In particular it turns young people off. It discourages reflection about the most important long term problems, fixating on the traditional issues. There is an obsession with scandal, because the system is widely seen as corrupt – probably much more than it in fact is. And people deplore the lack of respect among politicians – witness the widespread welcome when Ian Paisley Jr, unlike others in his party, spoke warmly and decently of the ailing Martin McGuinness.

Continue reading

Northern Ireland: where now?

Alan_Rialto2

The Secretary of State for Northern Ireland has called a fresh Assembly election for March 2, following the spectacular and unexpected collapse of the devolved Executive. The campaign seems likely to be divisive. Reviving devolved partnership government at the end, in a sustainable form, will be difficult, argues Alan Whysall, but is still the only way forward.

The deputy First Minister of Northern Ireland Martin McGuinness resigned last Monday, following the refusal of the First Minister, Arlene Foster, to step down pending investigation of her role several years ago, when Minister for Enterprise, in establishing the Renewable Heat Incentive scheme. The scheme (described in detail in Foster’s statement to the Assembly) was based on one in Great Britain with similar objectives, of encouraging burning of renewable fuels over traditional ones. But unlike that scheme, it provided for a subsidy that turned out to be greater than the market price of the fuel – so the more you burned, the more you earned – and did not taper with increasing use, nor reduce in rate if overall demand increased. The Northern Ireland system is left committed to making payments above its budget that may amount to £500 million over 20 years.

Everyone acknowledges that there have been, as the Audit Office concluded, ‘serious systemic failings’. But this is the latest of a string of affairs, involving DUP ministers as well as others, where rumours abound, though with no real evidence so far, of more serious malpractice. Foster’s DUP successor as Enterprise Minister fanned the flames in a TV interview: following prayers for divine support in telling the truth, offered on camera and with the assistance of a clergyman, he alleged that when the extent of the problems with the scheme emerged advisers to Foster, then Finance Minister, and to Peter Robinson, then First Minister, had sought to delay its closure.

Parts of the media have pursued this story energetically. The parties that had chosen to go into opposition in this Assembly following the May 2016 elections called loudly for Foster’s ejection from office, at least pending an enquiry. Sinn Féin, elected with the DUP on the Fresh Start agenda and pursuing a tacit non-aggression pact, were at first more measured. But as the clamour grew and the story developed, amid suggestions that they were DUP patsies, they asked that she should step aside pending inquiry. She declined.

The DFM’s resignation letter, however, lays out many other grievances bottled up in private by Sinn Féin over the preceding months. They have made clear that resumed devolved government depends on resolving them.

Continue reading

The Scottish government’s Brexit paper suggests that the last thing Nicola Sturgeon wants is an independence referendum

Jim-Gallagher

Yesterday the Scottish government published a detailed policy paper, setting out options for how Scotland could remain in the EU single market following Brexit. In this post Jim Gallagher argues that the paper, which focuses on options that would involve Scotland remaining part of the UK, suggests that Nicola Sturgeon would rather avoid a second independence referendum. The First Minister may instead be edging towards a confederal solution that the majority of Scots might sign up for.

The publication of the Scottish government’s policy paper on Brexit, Scotland’s Place in Europe, may signal something of a change in tone from the SNP leadership. Reading it, one can only conclude that last thing Nicola Sturgeon wants is an independence referendum.

Certainly Sturgeon’s tone contrasts with the noises off from Alex Salmond, who has been energetically laying the groundwork for a rerun of 2014, or some of Scottish government Brexit minister Mike Russell’s earlier rhetoric. It is still possible to conclude from the paper and the logic of the SNP’s argument that, if they don’t get the concessions they hope, then they will be demanding another independence referendum. But the big message from the paper and its presentation is not bullying language about when a referendum might be called: it is that the SNP don’t think leaving the EU justifies repeating the independence poll at all. Instead they are setting out ways the UK can leave the EU without one. Can the UK stay in or near the single market, or at least can Scotland? If it can the UK leaves the EU, but the SNP won’t find themselves demanding ‘indyref2’.

Responses from Unionists

Opponents of independence can respond in different ways. It’s easy enough to mock. Many, supporters and opponents alike, will say it’s fear. Maybe fear of losing – two-thirds of voters don’t want yet another poll, and independence support is where it was in 2014. Around 400,000 nationalists seem to dislike the EU as much as the UK  and might not vote to leave the UK just to join the EU again. So despite what Alex Salmond says, the prospects of another referendum are not hopeful for the SNP and a second defeat would surely be fatal to the cause.

Continue reading

English votes for English laws one year on: a critical evaluation

dom

On 28 November the Constitution Unit hosted a seminar in parliament to mark the publication of a major new report by Professor Michael Kenny and Daniel Gover evaluating the first year of the new English votes for English laws procedures in the House of Commons. Kenny and Gover summarised their findings before two respondents, Roger Gough and Oonagh Gay, offered their thoughts on the report and the EVEL system. Dominic Walsh reports.

In his speech in Downing Street following the Scottish independence referendum David Cameron drew attention to the ‘English question’. ‘We have heard the voice of Scotland’, the then Prime Minister said, ‘and now the millions of voices of England must be heard’. With this in mind a set of procedural changes to the workings of the House of Commons, known as ‘English Votes for English Laws’ or EVEL, were proposed by the Conservatives at the last general election. These were implemented through changes to standing orders in October 2015.

There was great fanfare about the introduction of EVEL at the time. Over a year on, however, it appears to have faded almost entirely from the public view. How has the procedure worked in practice during its first 12 months? Has it been a success so far, or have criticisms of it been vindicated? These questions are addressed in a new report published jointly by the Centre on Constitutional Change, the Mile End Institute and the Constitution Unit, supported by the Economic and Social Research Council. This was launched at a Constitution Unit seminar held at Westminster on 28 November. What follows is a summary of the event; the authors, Daniel Gover and Professor Michael Kenny have written a separate blog post outlining their report in more detail.

Overview of the report

Michael Kenny introduced the event by outlining the aims of the project. These were to evaluate EVEL’s first year of operation, to examine whether the evidence bears out the criticisms made of EVEL, and to explore options to make EVEL more legitimate and transparent. He also gave some background by summarising recent historical trends which gave rise to the adoption of EVEL as policy by the Conservatives.

By and large, Kenny argued, EVEL has worked as intended thus far. However, major issues of legitimacy remain. The partisan division in the Commons vote introducing the measure was stark: every single MP who voted in favour was a Conservative, and all who voted against belonged to an opposition party. This may raise concerns that EVEL will not survive a change of government – particularly as the procedure was introduced through changes to standing orders rather than legislation, meaning that it could be repealed or suspended through a single vote. Kenny also added the caveat that the current Conservative government has a larger majority in England than in the UK as a whole and so the system has not yet been ‘stress-tested’ in circumstances where different English and UK majorities on pieces of legislation are likely.

Continue reading

Negotiating Brexit in a devolved state: the dynamics of intergovernmental relations

nm

Theresa May has repeatedly declared her commitment to involving the devolved governments in the Brexit process. In this post, Nicola McEwen discusses the likely dynamics of Brexit negotiations between the UK’s four governments. She argues that if the intergovernmental process fails to give a meaningful voice to the devolved governments this could have serious and long-lasting repercussions for territorial politics across the UK.

 As we ponder the forthcoming Brexit negotiations between the UK government and the EU27, another set of negotiations is already underway. The UK government and the devolved administrations have kick-started a period of intergovernmental relations which promise to be more intense than any that have gone before. This is a high stakes process. The extent to which it gives a meaningful voice to the devolved governments represents the Union’s biggest test since the Scottish independence referendum.

The Prime Minister has frequently declared her commitment to engaging with the devolved governments. After her symbolically significant visit to meet Scotland’s First Minister shortly after she assumed office, Theresa May noted: ‘I have already said that I won’t be triggering Article 50 until I think that we have a UK approach and objectives for negotiations – I think it is important that we establish that before we trigger Article 50.’ There have been some mixed messages since then, but at October’s plenary session of the Joint Ministerial Committee (JMC) – the first since December 2014 – the PM continued to insist she wanted the input of the devolved administrations in shaping Brexit: ‘The country is facing a negotiation of tremendous importance and it is imperative that the devolved administrations play their part in making it work.’ Quite what part she envisages them playing remains unclear.

Continue reading