Category Archives: Elections and referendums

Are unionists the biggest threat to the Union?

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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

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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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‘The festering issue’ – the legality of a second independence referendum

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With the Scottish government gearing up for a second independence referendum, questions have been raised about whether or not the Scottish Parliament can legislate for such a poll in a way that the courts will find lawful. In this post, David Torrance discusses the wording of the relevant legislation and the impact of subsequent caselaw, concluding that the prevailing legal understanding is that even a consultative referendum would be outside the scope of the parliament’s powers.

During the House of Lords’ consideration of what would become the Scotland Act 1998, Lord (Donald) Mackay of Drumadoon (a former Lord Advocate and subsequently a Scottish judge) told peers it would be ‘perfectly possible to construct a respectable legal argument’ that it was within the legislative competence of the soon-to-be-created Scottish Parliament to pass a bill authorising an independence referendum.

Lord Mackay added that he remained ‘convinced that the law on this matter should be clarified. If it is not then the festering issue as to whether the Scottish parliament is competent to hold such a referendum will rumble on.’ That was arguably a dictionary definition of prescience.

The debate, if not ‘festering’ does indeed ‘rumble on’ nearly a quarter of a century later, yet much of the commentary seems curiously circular, turning over arguments which might have been relevant in 1998 or 2012 but are less so in 2022. Chief among these is the idea that an ‘advisory’ or ‘consultative’ referendum might pass muster if the dispute were to reach the Supreme Court.

But first let us return to the Lords in 1998. Speaking for the government, Lords Sewel and Hardie (respectively a Scottish Office minister and the then Lord Advocate) were clear that an independence referendum bill would ‘relate to’ the reserved matter of the Union between Scotland and England and would therefore be ultra vires and outside the competence of the Scottish Parliament. As Lord (David) Hope of Craighead later observed, ‘the Scotland Act provides its own dictionary’.

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Post-election negotiations in Northern Ireland must set the Belfast Agreement on a firmer footing and re-establish constructive politics

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Alan Whysall, Honorary Senior Research Associate of the Constitution Unit, looks at the Northern Ireland Assembly elections held last week. He suggests that the foundations of the Belfast/Good Friday Agreement continue to weaken, and there is no sign of the government offering any response that might strengthen them; its proposals on the Northern Ireland Protocol risk making matters worse. Alan’s discussion paper on Northern Ireland’s political future: challenges after the Assembly elections was published last Friday, and is summarised in this blog, and discussed in this podcast.

The election results, though well forecast by polling, were reported in dramatic terms by media outside Northern Ireland, with coverage focusing on Sinn Féin displacing the Democratic Unionist Party (DUP) as the largest party.

They reflect the increasing polarisation of Northern Ireland politics, fuelled by unionist concerns over the Northern Ireland Protocol. So Traditional Unionist Voice, to the right of the DUP, tripled its vote. The DUP lost approaching a quarter of its vote – but probably, with its line that only it could ensure there was a unionist First Minister, scooped up some support from the Ulster Unionists, who fared poorly. In the event, the DUP won 25 seats, more than many predicted.

But the line about First Ministers was heard even more on the other side, resulting in more nationalist votes going to Sinn Féin. That made it the largest party in the Assembly with 27 seats. The nationalist SDLP lost out grievously; with eight members, it is too small to gain a ministerial position.

The other notable phenomenon in the election, though, was the rise of the centre ground, those identifying as neither unionist nor nationalist – which means now, almost exclusively, the Alliance party. Alliance more than doubled its Assembly seats to 17. It is now the third largest party, instead of fifth. The binary assumptions of the Agreement, that politics is essentially about unionist and nationalist blocs, may be increasingly unsustainable.

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Northern Ireland’s political future: challenges after the Assembly elections

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The Constitution Unit has today published a new discussion paper entitled Northern Ireland’s political future: Challenges after the Assembly elections. Here the author, Alan Whysall, Honorary Senior Research Associate at the Unit, introduces it. A further paper on longer-term prospects for Northern Ireland will be published later this year.

Northern Ireland voted for a new Assembly yesterday; the results will emerge over the coming hours and days. Thereafter, talks will begin on the formation of a new Executive. What happens in these negotiations matters profoundly for the future of Northern Ireland. It should also be of great concern to ministers in London. The future of the power-sharing arrangements that have brought stability to Northern Ireland for almost a quarter of a century may be at stake.

In current difficulties, there is also the potential to bring about change for the better. The paper explores what renewal of the Agreement might involve.

The present situation

Northern Ireland’s governing arrangements follow the principles set out in the Belfast/Good Friday Agreement, signed in 1998. Core to the Agreement is the principle of power-sharing. The Executive is headed by a First Minister and a deputy First Minister, who must come from different political traditions, and who exercise equal powers conjointly. All but the smallest parties in the Assembly – which is elected by proportional representation – are entitled to hold ministerial briefs.

These arrangements are in a state of semi-collapse. The largest party in the outgoing Assembly, the Democratic Unionists, withdrew its First Minister in February, meaning that the Executive has, since then, been unable to meet. Though other ministers remain, they are effectively caretakers. There is a period of up to six months following the election in which to find political agreement on forming a new Executive. The DUP says it will not go fully back into the Executive unless its demands are met for changes to the Northern Ireland Protocol. Shifts in voting patterns may mean institutional changes are called for. But there are deeper failings within the Northern Ireland polity.

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