Monitor 81. Johnson falls; what’s next for the constitution?

Today, the Unit published the 81st edition of Monitor, which provides analysis of the key constitutional news of the past four months. In this post, which also serves as the issue’s lead article, Meg Russell and Alan Renwick reflect on the collapse of Boris Johnson’s government, increasing concerns about ministerial and parliamentary standards, and continuing doubts about the future of the Union.

The preoccupying question in UK politics over recent months increasingly became when – rather than whether – the Prime Minister would be forced from office. In April, Boris Johnson was fined for breaching restrictions on social gatherings during lockdown, and the Commons referred him to its Privileges Committee for allegedly misleading parliament. In May, the Conservatives suffered steep losses in the local elections, and Sue Gray’s official report into ‘partygate’ was finally published, concluding that the ‘senior leadership at the centre, both political and official, must bear responsibility’ for the culture of disregard for the rules that had emerged. In June, Johnson survived a vote of no confidence among his MPs and the loss of two parliamentary by-elections, followed by the resignation of the Conservative Party Co-Chair, Oliver Dowden. But the resignation of Deputy Chief Whip Chris Pincher in early July, and Number 10’s bungled reaction to it, finally brought the Prime Minister down.

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Parliament’s watchdogs: independence and accountability of five constitutional regulators

The Unit today published a new report, Parliament’s Watchdogs: Independence and Accountability of Five Constitutional Regulators. Robert Hazell explains that public awareness of these regulators is low and the position of some of them in public life is precarious. He calls for several measures, including putting the CSPL on a statutory footing, protecting watchdogs from dismissal, and repealing the legislation allowing the government to produce a strategy statement for the Electoral Commission.

Origins of this study

The constitutional reforms of the last 25 years have seen an upsurge in the number of constitutional watchdogs. The Constitution Unit anticipated these developments from the start, with an early report on constitutional watchdogs in 1997 (Unit report no. 10). This interest was continued by Oonagh Gay and Barry Winetrobe, who wrote two major reports on watchdogs: Officers of Parliament: Transforming the Role (Unit report no. 100, 2003) and Parliament’s Watchdogs: At the Crossroads(Unit report no. 144, 2008).

Today sees the launch of a new report, Parliament’s Watchdogs: Independence and Accountability of Five Constitutional Regulators, (Unit report 195), by Marcial Boo, Zach Pullar and myself. Marcial Boo, former Chief Executive of IPSA, joined the Constitution Unit in late 2020 as an honorary research fellow. We asked him to do a study of those watchdogs which are directly sponsored by parliament, working with Zach Pullar, a young law graduate who has since become a Judicial Assistant in the Court of Appeal. There is an obvious tension with watchdogs whose role is to scrutinise the executive (like the Independent Adviser on Ministers’ Interests), being themselves appointed and sponsored by the government. Less obvious, but just as fundamental, is the tension for watchdogs whose role is to regulate the behaviour of parliamentarians, being themselves appointed and sponsored by parliament.

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Northern Ireland: how can power-sharing be revived?

Alan Whysall was a panellist in the session on Northern Ireland at the Unit’s State of the Constitution conference on 23 June. This revision of his talk draws on his paper for the Unit on Northern Ireland’s Political Future, and its accompanying blogpost. He argues that stable power-sharing can only return through good faith inclusive negotiation – which is not a part of London’s current approach – and a reinforcement of the foundations of the Belfast/Good Friday Agreement.

It is essential to bring all the Belfast/Good Friday Agreement institutions back as soon as possible: that unlocks the potential for political progress. Without the institutions, polarisation grows; the longer they are away, the harder ultimately the Agreement settlement is to sustain. And there is no alternative as a framework for the stable government of Northern Ireland.

Devolution still has wide popular support and the political class has a strong self-interest in restoring the institutions, if only because paying them not to undertake government is becoming unpopular. But there are big questions about how.

The government’s approach

Can the institutions be stably restored the government’s way? Setting aside for now judgements about the government’s approach, its integrity, or the extraordinary contents (breach of international obligations, vast delegation of powers to ministers) of the Northern Ireland Protocol Bill, this seems to me to be doubtful.

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Are unionists the biggest threat to the Union?

There has been much debate in recent years (on this blog and elsewhere) on the validity of a second referendum on an independent Scotland. Defence of the Union has often been by reassertion of the unitary nation-state model. Michael Keating argues that this demonstrates a fundamental misconception of what union means, and that the nationalism implied by the nature of a union maintained by law, rather than the consent of its people, represents a threat to the continuing Union of the United Kingdom.

In its 2020 White Paper on the Internal Market, the British government described the United Kingdom as a ‘unitary state’. Although, for many at Westminster, this might sound rather banal, it betrays a serious misunderstanding of what is, and always has been, a plurinational union. Such misunderstandings are pulling the Union apart.

Four dimensions

In my book State and Nation in the United Kingdom, I spell out the difference between a unitary nation-state and a plurinational union by reference to four dimensions: demos; telos; ethos; and sovereignty.

Demos refers to the people and whether they are singular or plural. When prime ministers declare that ‘the British people’ voted for Brexit, they are invoking a unitary demos, but begging the question of what ‘the British people’ actually means. In fact, the peoples of ‘these islands’ have varied national identities, some identifying only as British and others not seeing themselves as British at all. It is not as simple as four separate identities because, within each of the component nations, there are complex forms of belonging and multiple forms of national identification. Some unionists are now arguing that Britishness is a common, overarching identity but that, underneath it, are the local varieties. Yet this does not work either. Britishness itself is experienced and defined very differently from one part of the United Kingdom to another. The fact that the United Kingdom does not even have an adjective for its citizens indicates the difficulty of fitting Northern Ireland in. Britishness is analogous to what the philosopher Wittgenstein called a ‘family resemblance’. Any two members of the family may share a feature in common but there is no feature common to them all.

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Wales needs a larger Senedd, but a closed list system is not the best way to achieve it

The Senedd in Wales recently voted to support plans to increase its membership, following the report of a special committee, which endorsed proposals put forward by Labour and Plaid Cymru. Laura McAllister argues that the need to enlarge the Senedd is clear, but that proposed changes to the voting system are flawed and could undermine public support for reform.

That the Senedd marked its twenty-first ‘coming of age’ birthday by seeking to recast itself with a fundamentally altered institutional shape should surprise few familiar with devolved politics. Wales is often referred to as the land of commissions and inquiries. Each of these inquiries into the most ‘unsettled’ devolution settlement has recommended that the Senedd should increase from its current 60 Members (MSs) to a figure between 80 and 100. The story of these inquiries can be found on the Senedd website.

I chaired the Expert Panel on Assembly Electoral Reform in 2017, which was charged with looking at the size of the Senedd, its electoral system and extending the franchise to younger voters. Our Panel’s recommendations were that:

  • The number of members should be increased from 60 to at least 80, and preferably closer to 90. We concluded that this was needed because the Assembly (its name was changed to ‘Senedd Cymru/Welsh Parliament’ in 2020) had acquired a much greater role than the one it had in 1999, and also that its powers were expected to expand further. We concluded that the Senedd could not be expected to continue functioning optimally and delivering for the people of Wales if it remained at its current size.
  • That a new electoral system should be introduced to accommodate this increased size and to make the relationship between votes cast and seats won more proportional. Our favoured system was Single Transferable Vote (STV) accompanied by prescriptive, legislative gender quotas, though the Panel also regarded a Flexible List system of proportional representation (PR) as a viable alternative.
  • That the minimum voting age in Senedd elections should be reduced to 16 as a means of boosting democratic participation.  We regarded it as essential that the lowering of the voting age should be accompanied by high-quality education about politics in schools and other places of learning. This last recommendation was enacted through the Senedd and Elections (Wales) Act 2020 and came into force for the 2021 Senedd elections.

There was deemed insufficient political consensus to advance our first two recommendations around size and electoral system change in time for the 2021 election, despite a report from the Senedd Committee on Electoral Reform chaired by Labour MS Dawn Bowden, which almost exactly replicated our report’s recommendations. This committee did acknowledge that time had effectively run out and instead called for legislation early in the Sixth Senedd to increase its size to between 80 and 90 Members from the 2026 election, with all MSs elected by STV.

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