The Constitution Unit blog in 2020: the year in review

As was the case last year, 2020 has been a fascinating time to be writing about the UK constitution, its institutions and those involved in working within them (more so than anyone could have predicted in January). As the year draws to a close, blog editor Dave Busfield-Birch offers a roundup of the blog year just gone, as well as a look at the reach of the blog through the lens of its readership statistics. 

2019 was a year of constitutional flux and tension, with a new Prime Minister, a new Brexit deal and a new parliament. As challenging as 2019 was, however, 2020 has proved no less of a test for the constitution, its institutions and actors. It was always likely that the Brexit talks would not prove easy, and that the government’s Commons majority would not mean the Johnson government would automatically be able to bend parliament to its will. The pandemic has, of course, magnified the complexity of the government’s pre-existing challenges and raised a whole new number of policy problems, creating constitutional flashpoints aplenty. 

Below are our most popular blogs from the past year, preceded by a personal selection by me, at the end of my third year as blog editor.

Editor’s picks

The 2019 election campaign shows that abuse, harassment and intimidation of candidates is getting worse, especially for women, by Sofia Collignon.

It’s difficult to call this one of my ‘favourite’ blogs, but it’s definitely one of the most important that we produced this year. Women candidates continue to disproportionately experience intimidation and harassment during general election campaigns, and Sofia Collignon eloquently describes the specific problems they face. I have advised victims of harassment, discrimination and gender-based violence for most of my adult life, so this is a topic very close to my heart: sadly we still have a very long way to go.

The role of monarchy in modern democracy, by Robert Hazell and Bob Morris.

I studied history as an undergraduate and I always tended to focus on periods when the monarchy itself was in crisis and being challenged by other institutions. I therefore always enjoy editing Robert and Bob’s blogs on the subject. At the end of a busy year for the monarchy, which has had to adapt to both ‘Megxit’ and the pandemic, this blog stands out, summarising as it does the main conclusions of their new book, The Role of Monarchy in Modern Democracy: European Monarchies Compared. The book is fascinating, and I would also recommend viewing the launch event (chaired by Jonathan Dimbleby) on our YouTube page, where you can find video recordings of all our 2020 events. 

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100 years of the Government of Ireland Act: how it provided a model for Westminster-Edinburgh relations

The Government of Ireland Act 1920 is 100 years old tomorrow. David Torrance examines the legislation and its impact, arguing that a number of the constitutional conventions that regulate relations between Westminster and Holyrood have roots in those that applied to Stormont between 1920 and 1972.

Wednesday 23 December marks the centenary of royal assent for the Government of Ireland Act 1920 (the ‘1920 Act’). That this created the part of the UK known as ‘Northern Ireland’ and its border is well known, but its devolution settlement – a parliament, government, governor and prime minister – has largely faded from public consciousness.

As the historian Graham Walker has observed, Northern Ireland ‘serves as a reminder that devolution and constitutional change has a long, complex, and fascinating history, and did not just appear magically at the end of the twentieth century’ [1]. Indeed, this blog will argue that many of the constitutional conventions now associated with Holyrood-Westminster relations have antecedents in those which developed between Stormont and the UK parliament between 1921 and 1972. There was also one major difference, self-determination, analysis of which concludes this piece.

A ‘sound custom’ of non-interference

Speaking during Lords consideration of the Scotland Bill in 1998, Lord Sewel observed that ‘as happened in Northern Ireland earlier in the century’ the government would expect ‘a convention to be established that Westminster would not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish parliament’. This would later come to be known as the Sewel convention.

The Northern Ireland precedent acknowledged by Lord Sewel was established in 1922 when Home Secretary Edward Shortt (who had responsibility for GB-NI relations at the time, as there was no Northern Ireland Office) advised withholding royal assent for a bill abolishing the Single Transferable Vote method for local government elections (a matter ‘transferred’ to Belfast). When Northern Ireland’s Prime Minister Sir James Craig and his Cabinet threatened to resign, assent was granted.

By 1953, a Treasury document could state that:

In practice the United Kingdom Parliament refrains from legislating on matters with which the Northern Ireland Parliament can deal, except at the request and with the consent of Northern Ireland. It is recognised that any departure from this practice would be open to objection as impairing the responsibility which has been placed on the Northern Ireland Parliament and Government.

HM Treasury, Northern Ireland, the Channel Islands and the Isle of Man: A Treasury Paper, December 1953, page 9
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Devolution and the Union: then and now

The COVID-19 pandemic has highlighted some of the flaws of the UK’s uneven devolution arrangements, and the mixed success of intergovernmental forums. Charlotte Kincaid summarises discussions from a Unit webinar in which four experts from across the UK tracked the country’s bumpy journey of devolution, and where it might go in the future. The webinar was the final instalment of the Unit’s series of celebrations to mark its 25th anniversary.

The details and arrangements of devolution have been played out in the public sphere while the UK has attempted to grapple with a pandemic. The public has seen devolution very much in action, with each part of the UK implementing its own lockdown measures and support packages, demonstrating the autonomy and limitations of devolved governments. With devolution in the forefront of the public mind, it was the opportune moment to discuss the journey so far, and where devolution is headed. The summaries below are presented in the order of the speaker’s contributions.

Scotland

Michael Keating, Professor of Politics at the University of Aberdeen and former Director of the Centre on Constitutional Change, described Scottish devolution as an ambivalent project, and noted that there have always been different understandings of what devolution means. For some, it is a modification of the unitary state of the UK, for others the UK is a union of self-governing nations which come together for common purposes, while another group view it as a project in the direction of federalisation. In recent years these foundational issues have grown in relevance due to a number of constitutional confrontations. 

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Referendums on Irish unification: How would they best be designed and conducted?

The interim report of the Working Group on Unification Referendums on the Island of Ireland, published today, concludes that referendums on the question of Irish unification should be called only with a plan for the processes that would follow. In this post, the Chair of the Working Group, Alan Renwick, sets out some of the group’s key provisional findings. The group is seeking feedback on these, in advance of its final report next year.

The Working Group on Unification Referendums on the Island of Ireland was established last year to examine how any future referendums on whether Northern Ireland should stay in the United Kingdom or become part of a united Ireland would best be designed and conducted. The group, based at the Constitution Unit, comprises 12 experts from universities in Northern Ireland, the Republic of Ireland, Great Britain, and the United States. It has no collective view on whether holding such referendums would be desirable or not, or what the outcome should be if referendums were held. 

The project continues the Unit’s long history of research into referendums, stretching back to the 1996 report of the Commission on the Conduct of Referendums, whose recommendations for new legislation helped pave the way for key reforms in 2000. More recent work includes the 2018 Independent Commission on Referendums and last year’s Doing Democracy Better report. We also have a track record of examining future constitutional possibilities—such as Scottish independence or the creation of an English parliament—without taking a view on their desirability.

Why the Working Group was established

We created the Working Group because referendums on the unification question might happen in the future, and what this would involve needs to be thought through. The Brexit process has shown the dangers that can arise if a referendum is called without proper planning. Repeating that in Northern Ireland’s sensitive context would be highly unwise. Yet no such plan exists. The 1998 Belfast/Good Friday Agreement makes some key provisions, as we elaborate below. But it leaves many important points unspecified. We do not believe referendums to be imminent: the evidence is that the majority in Northern Ireland would currently support maintaining the Union. But opinion could evolve in either direction in the future. 

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A Scottish constitution: should it be devised before or after independence?

If voters choose independence in a referendum, Scotland will need a constitution. Elliot Bulmer argues here that there are advantages to creating and debating a new constitutional document before trying to navigate the choppy waters of becoming a separate nation.

Scotland and a written constitution

Despite being rejected in the 2014 referendum, Scottish independence has not disappeared from the political agenda. With a series of recent polls showing clear majorities in favour of independence, the question is sure to be revisited.

The Scottish National Party (SNP) has long had a policy of adopting a written constitution for Scotland. The party’s substantive proposals have remained remarkably consistent since the publication of a first draft constitution in 1977: a written constitution with an enforceable bill of rights largely based on the European convention, a unicameral parliament elected for fixed terms by proportional representation, and a parliamentary executive operating under a trimmed-down constitutional monarchy. In a nod to Harshan Kumarasingham’s description of India and Ceylon (as it then was) as ‘Eastminsters’, I have previously described the SNP’s constitutional plans for Scotland as a kind of ‘Northminster’ system: a Nordic-wannabe proportional variation of the Westminster Model that is infused by a desire to ‘keep up with the Johansens’, or Westminster-on-Forth, twinned with Oslo.

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The origins of the Cabinet Office Constitution Unit (1974–79): documenting the pitfalls of constitutional reform

In 1974, the Cabinet Office established a ‘Constitution Unitfollowing a difficult birthing process, which operated until the election of the Thatcher government in 1979. It was this Unit that inspired our own founding Director, Robert Hazell, when naming the newly-formed Constitution Unit 25 years ago. As part of this latter Unit’s 25th anniversary, Joseph Ward examines its earlier namesake, its founding and work, and what lessons we can learn from its role within government.

The 1970s was a decade marked by rising distrust in Britain’s political institutions. Intransigent governing problems, from inflation to nascent nationalism, fuelled a narrative that Britain was in crisis. Commentators in both academia and the press talked of a crisis of ‘governability’, with the state seemingly unable to keep pace with the demands placed on it by the public. 

In response to these trends, the Wilson government(s) of 1964–70 and 1974–76 instigated a series of constitutional reform measures. After creating the Kilbrandon Commission on the Constitution in 1969, Wilson sought to revisit the findings of the inquiry once returned to government in 1974, creating a bespoke Constitution Unit within the Cabinet Office to implement proposals for devolution to Scotland and Wales in particular. This ‘Constitution Unit’ was the conscious inspiration for the name adopted by UCL’s Constitution Unit when it was founded by Professor Robert Hazell in 1995, and which is currently celebrating its 25th anniversary

This blog post examines a selection of the Constitution Unit records held at the National Archives to document how the unit came about and to consider the struggles within the state over its remit. The political turbulence of that period, especially after James Callaghan succeeded Harold Wilson in 1976, presented the Unit with many challenges, as did the magnitude of its task. The post concludes with some reflections on the origins of the Unit to consider any lessons it might hold for constitutional reform in the contemporary context.

Foundations: The Kilbrandon Commission on the Constitution

In response to significant by-election wins for Plaid Cymru and the Scottish Nationalists in the late 1960s, Harold Wilson set up a Royal Commission on the Constitution in 1969, tasked with examination of ‘the present functions of the central legislature and government in relation to the several countries, nations and regions of the United Kingdom’ (Cmnd. 5460: 32). Its course was characterised by turbulence and disagreement: the commission took 4.5 years to report, more than one member resigned before it completed its work and the initial Chairman, Lord Crowther, died in 1972 midway through the inquiry. 

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Five years of ‘EVEL’

In the wake of the devolution settlements of the Blair years, political pressure to answer the ‘West Lothian Question’ persisted. In 2015, the proposed answer was ‘English Votes for English Laws (or EVEL). Today, on its fifth anniversary, Daniel Gover and Michael Kenny assess how EVEL has worked, during one of the most volatile political periods in living memory.

On 23rd October 2015, the ‘English Votes for English Laws’ (or EVEL) procedures came into force in the House of Commons. Introduced by David Cameron in the aftermath of the Scottish independence referendum, these new rules were designed as an answer to the notorious ‘West Lothian Question’ – the late Tam Dalyell’s resonant enquiry about why Scottish, Welsh and Northern Irish MPs should continue to be able to vote on matters that only affected England after devolution, while MPs in England were not able to reciprocate in devolved areas.

When EVEL was introduced, the procedures were sharply criticised by opponents. For some, the reform would not only be logistically difficult to implement – likely to be ‘incomprehensible’ to MPs and the public alike – but would also threaten the UK’s constitutional makeup. In particular, it was argued that EVEL would establish ‘two classes of MP’ at Westminster, undermining the ability of non-English MPs to represent their constituents’ interests. Others, meanwhile, criticised the procedures as too tame, and falling short of providing adequate representation to England.

The five-year anniversary provides an opportune moment to review how this contentious reform has fared in practice. Yet the wider territorial politics of the UK have also undergone significant changes in the intervening period. The questions to which these complicated rules were a response have become ever more pressing, but whether EVEL can provide a sustainable response to the increasingly fraught question of English devolution is increasingly doubtful.

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Moving Westminster into a multi-parliament world: the Commons takes a fresh look at devolution

The UK’s devolved institutions in Northern Ireland, Scotland and Wales celebrated their twenty-first anniversary this year. Their powers have changed several times since their creation, but much of this has occurred in an ad hoc way, without deep consideration at UK level of the overall devolution framework. Paul Evans explains how a new Procedure Committee inquiry into how the House of Commons should adapt to the ‘territorial constitution’ presents an opportunity to give some key devolution issues the attention they deserve.

Devolution in the UK turned 21 this year, and watching it grow has been a fascinating study in making up the constitution as you go along. The Scotland Act 2016 and the Wales Act 2017 (each of them the third major reworkings of the statutory basis of devolution in those nations in less than 20 years) declared the devolved legislatures there, along with their governments, to be a permanent part of the UK’s constitutional arrangements, which could be abolished only with the consent of the people in a referendum. 

In both those nations 16- and 17-year olds have been newly enfranchised and will participate in the elections of their parliaments next year. The Northern Ireland Assembly restarted (once more) in January after a three-year absence, and in May the Welsh Assembly renamed itself the Welsh Parliament (or Senedd Cymru if you prefer to use the UK’s – so far – only other official language). 

All in all, the journey towards a pragmatic form of de facto federalism in the UK has been a remarkably peaceful and generally good-natured velvet revolution. So perhaps it’s not so surprising that the House of Commons Procedure Committee has not felt the need to have a major review of the implications of devolution for the workings of the Commons since 1999.

Watching its progeny develop their own values and make their own decisions has, nonetheless, been a challenging learning experience for Westminster. The assertions of devolution’s permanency and its implication of equality of esteem between the four legislatures of the UK has often appeared more rhetorical than real. Whitehall seems never to have fully come to terms with the loss of centralised control which devolution necessarily entails. But, collectively, the elected members of the four legislatures have done little better in opening up and sustaining channels of communication – though some good work has been done at the margins. 

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