A cross-party committee of the Privy Council should be established to seek consensus on the terms of Brexit

Following last week’s general election result Theresa May is likely to face severe difficulty in negotiating Brexit successfully unless she seeks cross-party consensus. In this post Jim Gallagher suggests that consensus could be achieved through a special committee of the Privy Council, the membership of which would reflect the House of Commons and also contain representatives of the devolved legislatures.

It will be impossible for a minority government with a weak Prime Minister to negotiate Brexit successfully, against a ticking clock, if it deals with the issue in the normal way of British politics. Government cannot formulate policy privately, then seek to sell it to the House of Commons while talking fitfully to the devolved administrations. Theresa May’s administration can be held to ransom, if not by the DUP, by factions in her own party. The opposition will sense blood and might be keener to bring down the government than do a European deal. The devolved will stand on their rights to consent. So even if she can negotiate some agreement with Brussels, she will fail to secure a domestic legislative consensus and the deal will fail.

The government has already used up two of the 24 months allowed for this negotiation and succeeded only in weakening its position. As a result, the UK is faces a high risk of crashing out the EU in an unmanaged way.

Leaving the EU presents the British state with an unprecedented problem. It must be handled in an unprecedented way. Other countries might consider a government of national unity to give the negotiators authority to commit to a deal. We seem too partisan for that, but some senior figures in both government and opposition parties are already saying openly that a cross-party consensus will need to be built on this question. To build such a consensus, however, is anything but straightforward and will require a degree of trust and information sharing that is wholly alien to our normal way of doing government business – to which Westminster and Whitehall will default unless something radically different is devised.

If government tries to develop policy behind closed doors, keeping the devolved at arms-length and negotiating tactically secure a day-to-day majority in parliament, it will almost inevitably fail. There is certainly very little chance of completing the process in time for the agreement to be settled and ratified in Europe as well as here.

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Managing the new parliament: some challenges for Theresa May’s minority government

The unexpected election result leaves the Conservatives seeking to establish a minority government, with support from the Democratic Unionist Party’s ten MPs. With fewer than half the seats in the House of Commons, and barely more than half when adding the DUP, Theresa May’s new government will face many additional challenges in parliament. Meg Russell explores some of the clearest examples.

Following weeks of speculation about the general election result, few were contemplating the prospect of a minority government led by Theresa May. The Prime Minister proposed the election in the clear expectation of an increased House of Commons majority, citing (in a rather exaggerated manner) difficulties in parliament. Instead she now doesn’t have a majority at all. With one seat still to declare, the Conservatives are on 318 in a 650-number House. Combined others (excluding seven Sinn Féin, who do not take their seats), have 324. May’s government is hence liable to be outnumbered without relying on the support of the 10 DUP members, with whom she has opened talks.

The Prime Minister’s initial statement gave little detail of the form that the relationship with the DUP is likely to take, but it is assumed that she will seek a single-party minority government rather than a formal coalition. The Constitution Unit’s December 2009 report Making Minority Government Work suddenly looks like essential reading, for politicians and politics-watchers alike. As it sets out, there are various options in a situation where a government lacks a single-party majority. One is a formal ‘confidence and supply’ arrangement, whereby another party (or parties) pledge to support the governing party (or parties) in confidence votes and on essential funding decisions; another is for the government to simply negotiate support for policies on a case-by-case basis. A coalition is the most formalised arrangement, with both parties signed up to a programme and liable to both have ministers in the government.

Our report emphasised (as repeated more recently on this blog by one of its authors) that minority governments are not unusual in other democracies, and can be relatively stable. Nonetheless, particularly in the UK context where majority governments are the norm, such an arrangement will present a number of fresh (or enhanced) challenges for the government in managing its relationship with parliament. These may affect all kinds of areas of policy; but the Prime Minister will be perhaps most troubled about their impact on the Brexit process.

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Re-assessing the (not so) Fixed-term Parliaments Act

On Monday 22 May the Constitution Unit hosted a debate on the Fixed-term Parliaments Act. Against the backdrop of an early general election and a Conservative manifesto promise to scrap the Act, Carl Gardner and Professor Gavin Phillipson (Durham) argued the merits of the Act and the potential legal implications of its repeal. Kasim Khorasanee reports.

The Fixed-term Parliaments Act 2011 was enacted under the Conservative-Liberal Democrat coalition government to regulate when general elections were held. Previously general elections were required at least every five years but their exact timing was a matter of royal prerogative, in practice exercised by the Prime Minister. The Act fixed the length of each session of the House of Commons, unless an early general election could be called. The Act set out two mechanisms to call an early general election. The first – which was relied upon to call the 2017 general election – required at least two thirds of the Commons (434 MPs) to vote in favour of an early general election. The second was triggered if a no confidence motion was passed by the Commons and not reversed within 14 days.

Carl Gardner

Carl Gardner, a former government lawyer, led the defence of the status quo ante. He began by highlighting the risks in allowing politicians the freedom to redraw constitutional rules – both in terms of unintended consequences and selfish intent. The Act was a key case in point. Nick Clegg, as Deputy Prime Minister, had made the case for the Act by suggesting fixed terms would bring greater stability to the political system and allow politicians to focus on governing by removing the distracting uncertainty around election timings. In practice the intense speculation over whether Theresa May would call a general election in late 2016, followed by her surprise announcement to do so in mid-2017, had demonstrated the flaws in Clegg’s arguments. Gardner drew attention to David Laws’ book 22 Days in May which underlined the fact that the Act had been drawn up as a calculated political compromise designed to stabilise the coalition government in power.

Gardner went on to argue that the British constitution’s complexity and nuance had been underestimated by reformists. He noted that the Prime Minister had never been able to call elections ‘on demand’, they had always required the monarch’s explicit authorisation to do so. Furthermore there had never been popular discontent at the calling of elections or any suggestion of Prime Ministers ‘abusing’ their powers in doing so. The Act had also introduced uncertainty with respect to no confidence motions. Firstly, it was unclear whether in the 14 days after a statutory no-confidence motion the Prime Minister would be under a duty to resign, or whether they would be free to work to reverse the motion. Secondly, votes which previously might have been understood as matters of confidence – budgets, the Queen’s speech, going to war – appeared to have been stripped of this effect. Whereas Tony Blair understood losing the 2003 Iraq War vote would have meant resigning, David Cameron happily carried on after losing the 2013 Syria intervention vote. Gardner suggested that the duty for Prime Ministers to resign once they had lost the confidence of the Commons had been eroded by the Act.

Finally, on the legality of repealing the Act, Gardner asserted that where common law or prerogative powers were overridden by statute, revoking the statute would have the effect of ‘reviving’ the previous common law or prerogative. In support of this he cited the High Court decision in the famous GCHQ Case (R v The Secretary of State for Foreign and Commonwealth Affairs ex parte Council of Civil Service Unions and another [1984] IRLR 309 [73]). Although legislation such as Section 16(1) of the Interpretation Act 1978 appeared designed to prevent this reviving effect, it could be overridden by a clear expression of parliament’s will.

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Non-executive directors in Whitehall: how useful have they really been?

The role of non-executive directors in Whitehall departments has developed over recent decades. A new Constitution Unit project, led by former senior civil servants, aims to investigate the role of these outside experts and the impact they have had. David Owen introduces the project and invites contributions from those who have been involved with the work of non-executives.

What role is there for outside expertise in the running of a government department? For some time now in the UK, one way in which such input has been made has been through non-executive board members or non-executive directors. The Constitution Unit is undertaking a project to look at who non-executives are, what they do and the impact that they have had. The work is being led by former senior civil servants Alan Cogbill, Hilary Jackson and Howard Webber. We have felt encouraged following discussions with Cabinet Office, who have expressed interest in seeing the results.

Non-executives: the evolving government approach

Governments have drawn on external contributors for a long time, but the term ‘non-executive’ is thought to have been first used in the early 1990s. In 2005, the Treasury set out guidance on non-executives in its Corporate Governance Code.  The code commented that much what it said of non-executives, as well as of the operation of departmental boards, was new, ‘reflecting an agenda which has developed rapidly’. It recommended that each central government department board should have at least two non-executives, preferably more, with the aim of providing support and challenge.

Following the 2010 election, the use of non-executives developed with the appointment of a lead non-executive for government, former BP chief executive Lord Browne.

This drive formed part of Cabinet Office minister Francis Maude’s wider civil service reform plan for the civil service. He saw non-executives as having a key role in delivering savings, providing the kind of input for which consultants had previously been paid millions of pounds.

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Is the Fixed-term Parliaments Act a dead letter?

The ease with which Theresa May was able to secure an early dissolution last week has led to suggestions that the Fixed-term Parliaments Act 2011 serves no useful purpose and should be scrapped. Drawing on wider evidence of how fixed-term parliaments legislation works in other countries, Robert Hazell argues that there is a danger that it is being judged prematurely, on the basis of a single episode. Future circumstances in which a Prime Minister seeks a dissolution may be different, and in these cases the Fixed-term Parliaments Act may serve as more of a constraint.

On 19 April the House of Commons voted by 533 votes to 13 to support the Prime Minister’s motion for an early general election, easily surpassing the two-thirds threshold required for dissolution under the Fixed-term Parliaments Act 2011. In the preceding debate Conservative MPs such as Sir Edward Leigh and Jacob Rees-Mogg argued that the Fixed Term Parliaments Act served no useful purpose, and should be scrapped; while others such as Peter Bone said that it demonstrated the Act was working. Which of them is right? Was this a vindication of the Fixed-term Parliaments Act, in allowing a degree of flexibility, with the formal decision to hold an early election now being made by parliament, and not the executive? Or did it show that the Act is an emperor without clothes, as Sir Edward Leigh put it, because no opposition party can ever be seen to vote against the prospect of an early election?

There is a risk of the Fixed-term Parliaments Act being judged prematurely, on the basis of a single episode. This blog draws on a wider evidence base of how fixed term parliaments legislation works in other countries, set out in our 2010 report on fixed-term parliaments.  Almost all European countries have fixed terms, and in the Westminster world fixed-terms have recently been introduced in Canada, as well as most of the Canadian provinces, and most of the Australian states; only the Australian federal parliament, New Zealand and Ireland have no fixed-term laws, but in Australia and New Zealand the maximum term is three years. These countries show varying degrees of flexibility, with differing safety valves for extraordinary dissolution.

Mid-term dissolution is the most crucial aspect of any fixed term parliament law, balancing the need for government stability against democratic accountability. Key considerations are how and by whom dissolution may be initiated, what threshold must be reached, and any limitations on the process. The coalition government in 2010 initially proposed a 55 per cent threshold for dissolution, but that proposal was widely misunderstood to apply to no confidence motions as well. In introducing the Fixed-term Parliaments Bill, Nick Clegg set the record straight, explaining that no confidence motions would still require a simple majority; but raised the bar for government initiated dissolutions to two thirds of all MPs, based on the two thirds requirement in the devolution legislation. The justification for a higher threshold for government-initiated dissolution is that it should make it impossible for governments to call an early election without significant cross-party support.

But such a dual threshold is rare in other parliaments. Figure 1 sets out the threshold requirements for dissolution and confidence motions elsewhere in Europe.  In all cases the threshold for a no confidence motion is a simple or absolute majority (an absolute majority being of the total number of MPs, rather than of those voting). In those cases where dissolution can be triggered by a parliamentary vote, the threshold is the same

Figure 1. Source: K. Strøm et al, Delegation and Accountability in Parliamentary Democracy (Oxford: Oxford University Press, 2006), Table 4.12.

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How can referendums in the UK be improved? Lessons learned from the EU referendum

Today, the House of Commons Public Administration and Constitutional Affairs Committee (PACAC) published a report on Lessons Learned from the EU Referendum. The report touches on a variety of areas in relation to the conduct of referendums, including the role of referendums, the role of the civil service during referendum campaigns and cyber security. PACAC’s chair, Bernard Jenkin, outlines his committee’s findings, which they hope that the government will take heed of so that the country is ready for any future referendums.

Today, the Public Administration and Constitutional Affairs Committee (PACAC) has published its latest report on Lessons Learned from the EU Referendum. With Holyrood demanding a new Scottish independence referendum, it is clear that referendums have become a permanent part of the UK’s democratic system, with major implications for our system, which is based on representative democracy. PACAC’s report highlights the importance of clarity in relation to the role and purpose of referendums, and ensuring that referendums are conducted fairly and effectively.

PACAC argues that referendums are appropriate for resolving questions of key constitutional importance that cannot be resolved through the usual medium of party politics. PACAC also argues, however, that referendums are less satisfactory in the case of what might be called a ‘bluff call’ referendum when, as last June, the referendum is used by the government to try to close down an unwelcome debate. As well as a clear question, the outcome in either case must also be clear. That means there should be more clarity and planning by the government holding the referendum, so there is less of a crisis of uncertainty if they don’t get the answer they want, as in the EU referendum.

PACAC considered four other areas in relation to the conduct of referendums: the fairness of the so-called ‘purdah’ period; the administration of the referendum; the role of the civil service during a referendum campaign; and cyber security.

On purdah, the government claimed at the time that the purdah provisions would impair the functioning of government. However, these provisions were of critical importance to the fair conduct of the referendum. The purdah provisions should be strengthened and clarified for future referendums and PACAC supports the Law Commission’s proposals to consolidate the law regulating the conduct of referendums. Additionally, PACAC asserts that the purdah restrictions should be updated to reflect the digital age, and extended to cover the full ten weeks of the referendum period, as recommended by the Electoral Commission.

With regard to the administration of the referendum, the evidence gathered during PACAC’s inquiry suggests that, while not without some faults, the EU referendum was on the whole run well.  PACAC commends the Electoral Commission for the successful delivery of the referendum, which was of enormous scale and complexity.

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Why we need better Budgets

Philip Hammond’s u-turn on proposed changes to National Insurance Contributions was the latest in a growing list of Budget measures to be withdrawn in the face of a parliamentary and media backlash. Jill Rutter and Alice Lilly argue that the exceptionalism of the Budget process makes it vulnerable to poor policy making. They propose a number of possible improvements, including the introduction of a Budget cabinet committee and greater support for parliament in scrutinising tax policy.

On March 8 Chancellor of the Exchequer Philip Hammond stood up to deliver his first – and last – spring Budget. He was in such a relaxed mood that he joked that the last Chancellor to claim a spring Budget was his final one (Norman Lamont) survived only ten weeks after his speech. Within hours, the government was reeling as their backbenchers and the press denounced a change to National Insurance Contributions for the self-employed, a measure that raised the fiscally relatively trivial sum of £400m and had been welcomed by the overwhelming majority of fiscal experts as a sensible minor reform.

The measure survived only a week before Hammond was forced back to the Commons to announce he was dropping the change – for this parliament at least. The Financial Times added the NIC u-turn to the ever-expanding list (£) of Budget rabbits that turned into hand grenades when unleashed – and exploded in the face of their instigator.

So why does the Chancellor, one of the most powerful figures in government, advised by people seen (not least by themselves) as the government’s crack policy troops, keep stepping on political and policy minefields – while finding their room for manoeuvre ever more constrained?

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