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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The 2020 US presidential election: nine lessons

As reported in the latest issue of Monitor, the US presidential election raised even more constitutional issues and questions about the US system of elections than many anticipated. Colin Provost and Nadia Hilliard of the UCL Centre for US Politics discuss how the election was administered, and the roles of the judiciary, Electoral College and social media in the process.

The US presidential election of 2020 has been perceived by many observers as one of the most important elections in American history. A highly polarised electorate turned out in record numbers in the middle of a pandemic and for the first time, the incumbent president refused to concede after a clear result, while pushing a steady, yet unsubstantiated series of claims about voter fraud and voting irregularities. Given the highly unusual set of circumstances surrounding this election, it is worth considering how well US institutions performed with respect to the conduct of a free and fair election, and what lessons should be learned for future electoral cycles.

1. States can run elections smoothly.

Although federal laws that are harmonised across the states might seem to make more sense for national elections, the US Constitution allows each state to set its own election laws, as long as they are in compliance with the 1965 Voting Rights Act and other relevant, federal legislation. Keeping that in mind, it is important not to understate the fact that, on average, the states performed well in terms of administration of this election. Despite the pandemic, millions of people were able to vote and perhaps more importantly, a large subset of those people were able to vote by mail, so that they would not have to put their health in jeopardy by waiting in long – and often cramped – queues. Ultimately, those votes were all counted, even if a victor could not be declared until 7 November —five days after election day.

2. US electoral institutions are resilient.

The institutions of election administration proved to be resilient in the face of baseless allegations of voter fraud and voting irregularities: those allegations were many, and continue to be made. In a normal election year, post-election lawsuits are practically non-existent, but in 2020, the Trump campaign filed dozens of lawsuits across several states, nearly all of which have been found to be lacking in merit, while tweeting inaccurate information about the election and its results. Georgia senators David Perdue and Kelly Loeffler suggested that Georgia Secretary of State Brad Raffensberger – the state official in charge of overseeing elections and certifying the results – should resign after not finding evidence of electoral fraud in that state. Additionally, President Trump invited the leadership of the Michigan legislature to the White House, apparently with the goal of getting them to nominate different electors to the Electoral College that formally votes in the new president than those selected by the Michigan Democratic Party. The only legal basis for this occurring is if one believed that Joe Biden did not clearly or lawfully win the state, even though his margin of victory was in excess of 150,000 votes. Finally, a large number of Trump allies in Congress, the media and elsewhere supported these actions, implicitly or explicitly. Despite all these challenges, the votes were counted and certified by all 50 states and the District of Columbia.

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

The 2019 general election saw more women run for (and win) seats in the House of Commons than ever before. However the level of abuse those women received was also higher than ever, and affected them disproportionately compared with men. Sofia Collignon explains what we can learn from the data about the experience of female candidates.

After parliament voted in November 2019 to trigger an election – which took place in December – a record number of women presented themselves for office, as 37% of candidates were female. This is an improvement of eight percentage points over the number of women standing just two years earlier, in 2017 (29%). Perhaps more relevant is that a record number of female candidates actually went on to become MPs (220), comprising 34% of the total number of members of the House of Commons (+5%) and making up a majority of both Labour and Liberal Democrat MPs. The increase in the number of women standing for office and winning a seat is undeniable progress for the representation of women in the UK. But this positive scenario becomes more pessimistic if the violence experienced by women in politics is considered.  

Drawing on data from the Representative Audit of Britain (RAB) survey of 2019 candidates, this blog post summarises the degree to which women and men candidates suffered harassment and intimidation while campaigning for the 2019 general election in the UK and the nature of the abuse they experienced. It shows that women are distinctly affected by abuse, harassment and intimidation in two ways: the frequency of the abuse and the motivation behind it. 

The frequency of abuse

The analysis of RAB 2019 responses indicates that 49% of candidates reported that they suffered some form of abuse, harassment or intimidation while campaigning. This is an increase of 11 percentage points compared with 2017. The proportion is significantly higher for women (61%) than men (44%). It is particularly worrying to notice that, despite multiple initiatives, the findings of a 2017 inquiry by the Committee on Standards in Public Life (CSPL) and frequent media coverage, harassment against women increased by 16 percentage points, almost twice the increase observed among men (see Figure 1). Not only were more women standing for office, but they were also reporting more acts of intimidation, threats, physical and psychological violence. 

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Why we need an independent Electoral Commission

The UK’s guardian of public ethics is reviewing the role of the Electoral Commission in regulating election finance. The evidence submitted to the inquiry shows wide support for maintaining, and in some ways enhancing, the Commission’s functions. But the regulator’s position is also challenged from some quarters, and the House of Commons Public Administration and Constitutional Affairs Committee is currently conducting its own enquiry. Alan Renwick and Charlotte Kincaid argue that the debate raises important wider questions about the place of checks and balances in our system of democratic governance.

The Committee on Standards in Public Life – the body charged with monitoring ethical standards in public life in the UK – is conducting a review of electoral regulation. The terms of reference focus largely on the role of the Electoral Commission in regulating election finance. The first stage was a public call for evidence, and the responses were published last month. 

Grabbing some media headlines was a suggestion in the response from the Conservative Party that the Electoral Commission might be abolished, with its core functions transferred to other bodies. This was not the only option put forward in the submission. Indeed, the central proposal appeared rather to be that the Commission should continue to operate, but with a more restrictively defined remit. Nevertheless, the general tenor was striking. The submission said: ‘The Electoral Commission consistently lobbies for itself to be given more powers – this is not an argument for doing so. Rather, this is public choice theory in action: quangos seeking to expand their remit for their own sake.’

Following the same logic, however, that is a political party seeking to abolish or curtail the remit of the regulator of political parties. If the argument from public choice theory has any force against the Electoral Commission, it has the same force against the Conservative Party. Both the Commission and the Conservatives have interests at stake here. But both also have a wealth of relevant experience. Their arguments should be judged on their merits, with an eye to the possibility that they may be skewed by the organisations’ particular interests.

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The next steps for reforming the Senedd

In September, the Committee on Senedd Electoral Reform published a report that recommended a wide range of reforms to the Welsh Parliament’s arrangements, including increasing the number of Members of the Senedd, adopting a new electoral system, and implementing measures to improve diversity. In this post, Michela Palese summarises the key recommendations and reflects on the likely next steps.

Reform of Wales’s legislature has been on the political agenda for many years. Earlier this year, the first phase of reform led to the extension of the franchise to 16- and 17-year olds; to changing the name of the Welsh Assembly to the Welsh Parliament/Senedd Cymru and of its members to Members of the Senedd (MS); and to changes around electoral administration. These reforms were part of the Senedd and Elections (Wales) Act 2020, which became law on 15 January.

Another area of reform, which has yet to be taken forward, is the size of the legislature itself. Constitutional developments in Wales, particularly following the Wales Act 2017, have meant that the Welsh legislature has acquired new, primary law-making powers, including in relation to its size and electoral arrangements, and is now recognised as permanent within the UK’s constitutional settlement, alongside the Welsh government. The 2017 Act also moved Wales from a conferred powers model of devolution (an anomaly in the UK’s set-up) to a reserved matters model similar to that of Scotland, as recommended by the Unit in 2016

These significant new legislative powers have not been matched, however, by an increase in the number of members of the legislature (hereafter, MSs or Members of the Senedd, though note their name was Assembly Members/AMs until May 2020), which have remained at 60. 

There has been much, long-standing debate around this issue – it is broadly accepted that 60 MSs are insufficient to carry out the important legislative and scrutiny work of a fully-fledged parliament, with its own committee system, particularly if one considers that 14 MSs (around 23% of the total) are part of the executive.

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Elections and COVID-19: how can next May’s polls go ahead safely and democratically during a pandemic?

Elections set to take place across the UK in May 2020 were postponed for 12 months due to COVID-19. Election administrators and policymakers now have less than eight months to prepare for the possibility of holding polls during a pandemic. Sarah Birch, co-author of a recent British Academy briefing on holding safe and democratic elections during COVID-19, discusses the key obstacles to a successful poll and offers some recommendations for making sure the May elections are fair and safe.

An election requires the largest peace-time mobilisation that any state has to undertake. Even at the best of times, this is a major administrative feat. Conducting an election during a pandemic is far more daunting still, as electoral authorities have to consider the health of voters, polling and counting staff and campaign organisers, together with the health of democracy. 

If an election is to serve democratic aims, it is hugely important that it is both fair and seen to be fair. Those running elections while COVID-19 remains a problem must clearly safeguard the process in terms of the health of those involved; they will also need to ensure popular confidence in procedures that will in some ways be different from what voters are used to. 

Any change to normal practices is bound to attract attention, and potentially suspicion. The recent British Academy report, How to hold elections safely and democratically during the COVID-19 pandemic’, indicates that there are several things that electoral authorities can do to make sure that COVID-specific measures work.

If the pandemic has not been vanquished by May 2021, these suggestions may be of use to elected representatives and administrators in Scotland, Wales, London and local authorities across England, all of whom will be making arrangements for polling. These recommendations are also relevant to countries around the world that are preparing elections over the coming months.

Firstly, it makes sense for electoral authorities to use strategies that are part of their existing toolkits, rather than trying out completely new ideas (such as internet voting) that cannot be tested properly in the time available. The UK has extensive experience of postal voting, so this is a tool that can be relied on and potentially promoted for wider use. 

It will not make sense to implement other changes to the electoral system at this point, such as the proposed introduction of ID at UK polling stations. Pandemic-related measures will be challenging enough to develop, introduce and communicate, without the government also trying to roll out a whole new way of voting.

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Public consultation on unification referendums on the island of Ireland.

alan.jfif (1)conor_kelly_500x625.jpg_resized.jpgchk_headshot500x625.jpg (1)The Constitution Unit is leading a Working Group on Unification Referendums on the Island of Ireland. This week, it launches a public consultation, seeking views from people in Northern Ireland on the issues it is considering. In this post, Alan Renwick, Conor Kelly, and Charlotte Kincaid outline the purposes of the group’s work and the kinds of questions that it is asking.

Readers can access the consultation survey by clicking here.

The Working Group on Unification Referendums on the Island of Ireland is examining how any future referendum on Northern Ireland’s constitutional future would best be run. Such a referendum – sometimes known as a ‘border poll’ – would decide (alongside a parallel process in the Republic of Ireland) whether Northern Ireland should remain part of the United Kingdom or become part of a united Ireland.

A referendum like this could occur in the future. Under the 1998 Belfast/Good Friday Agreement, the Secretary of State for Northern Ireland may call a poll at any time. He or she would be required to do so if at any time it appeared likely that a majority of those voting would back a united Ireland. Most of the evidence suggests that this is some way off. But there are also signs that the majority in favour of the existing Union may have weakened, and that trend may continue. 

Yet, despite the possibility of a referendum, almost no thinking has been done about what the process would involve. The Working Group is seeking to fill that important gap. It takes no view on whether a referendum should happen or what the outcome of such a vote should be. But we think that planning for a referendum is important. Some people are eager for a vote in the coming years and will therefore no doubt be keen to discuss it. Others, we realise, view the prospect with great trepidation, and may not wish to give the idea undue prominence. We fully respect that. But we hope that even these people will see the value of planning ahead, just in case. Holding a vote without thinking through the process carefully in advance could be very destabilising, to the detriment of people across Northern Ireland.  Continue reading