The Johnson government’s constitutional reform agenda: prospects and challenges

thumbnail_20190802_092917.jpgThe Conservative Party’s manifesto for the 2019 general election included a commitment to set up a Constitution, Democracy and Rights Commission (as discussed previously on this blog by Meg Russell and Alan Renwick) and engage in a wider programme of constitutional reform. In February, the Unit hosted an event to discuss the new government’s constitutional reform agenda: Sam Anderson summarises the main contributions. 

Page 48 of the Conservative manifesto for the 2019 general election committed to a wide range of constitutional reform proposals – including repeal of the Fixed-term Parliaments Act (FTPA), an ‘update’ of the Human Rights Act (HRA), and the creation of a ‘Constitution Democracy and Rights Commission’ to examine broader aspects of the constitution. On 4 February, the Constitution Unit held an event to discuss the implementation of this agenda, entitled ‘The Johnson government’s constitutional reform agenda: prospects and challenges. The panel consisted of two Conservatives: Lord Andrew Dunlop, a member of the House of Lords Constitution Committee and former Parliamentary Undersecretary of State for Scotland and Northern Ireland; and Chris White, a former Special Adviser to William Hague, Andrew Lansley and Patrick McLoughlin. Professor Meg Russell, Director of the Constitution Unit, chaired the event. The following is a summary of the main contributions. 

Lord Dunlop

Lord Dunlop suggested that the key question for the new government is what ‘taking back control’ means in constitutional terms. The years since the Scottish Independence referendum in 2014 have been incredibly rich for those interested in the constitution. We have seen a deadlocked parliament, an arguably ‘activist’ judiciary, and fracturing Union, whilst foundational concepts like parliamentary sovereignty, the separation of powers, and the rule of law have come under scrutiny. It would be wrong, however, to see the government’s manifesto commitments as simply a direct response to the political and constitutional crisis of last autumn. Brexit placed a number of areas of the constitution under strain, but for Dunlop, it is the long-term context that is key to explaining the proposals in the manifesto. In his opinion, the proposals are not about ‘settling scores’.

For a number of years, EU membership, the devolution settlements and the HRA have all to varying extents limited parliament’s law-making powers. For example, Lord Neuberger, former President of the Supreme Court, has pointed out the profound changes that the HRA has brought to the role of judges in relation to interpretation of statute law, and retired Supreme Court Justice Lord Sumption’s recent Reith Lectures have contributed to a long-running debate about the proper role of judges in a democracy. In Lord Dunlop’s view, the proposals on page 48 of the manifesto reflect the fact that Brexit has put additional pressure on an already strained constitution, and should therefore prompt us to consider whether the constitution is operating as it should.  Continue reading

The government’s proposed Constitution, Democracy and Rights Commission: what, why and how?

meg_russell_2000x2500.jpgalan.jfif (1)The Conservative Party manifesto promised a ‘Constitution, Democracy and Rights Commission’, but as yet little is known about the government’s plans. Meg Russell and Alan Renwick reflect on what such a Commission might look at, and how it might go about its work. They conclude that a long-term perspective is important, so that the Commission is not just ‘fighting the last war’ over Brexit. Given the fundamental nature of the questions that may be asked, citizens should be fully involved.

Page 48 of the Conservative Party manifesto committed the government to establishing a ‘Constitution, Democracy and Rights Commission’ within its first year. This could have a far-reaching remit, covering ‘the relationship between the Government, Parliament and the courts; the functioning of the Royal Prerogative; the role of the House of Lords; and access to justice for ordinary people’, plus the operation of the Human Rights Act. Creation of such a body is clearly an ambitious enterprise, with potentially long-lasting effects – but, as yet, very little is known about the government’s plans for the Commission. This post first explores the ‘what and why’ of the Commission: which issues might it need to address, and what is the motivation behind it? Second, we consider the ‘how’: specifically, in terms of how the public could and should be involved.

What will the Commission review, and why?

The list of topics potentially ascribed to the new Commission is long, and covers some absolute fundamentals of the constitution. While the UK has seen much constitutional change in recent decades – most obviously Labour’s post-1997 programme, which included devolution and Lords reform, and the subsequent Constitutional Reform Act 2005 which established the Supreme Court – these developments involved no formal review of the core relationships between different constitutional branches. Indeed, Labour’s programme was often criticised as piecemeal, and for failing to go back to first principles. In some ways, a review of these fundamentals is therefore refreshing. But questions such as the proper balance of power between government, parliament and courts, and the role of the monarchy are also extremely big, complex and delicate.

So why are such challenging questions being asked now? This is where the Commission’s potential role gets more troubling. The UK has recently witnessed an exceptionally turbulent period in constitutional terms, with the referendum vote for Brexit followed by a significant struggle over its implementation. Particularly during 2019, tensions ran very high between government and parliament, with the Supreme Court becoming involved via the prorogation case. That these tensions helped motivate the proposed Commission seems clear from other words in this section of the manifesto, which suggest that ‘The failure of Parliament to deliver Brexit… has opened up a destabilising and potentially extremely damaging rift between politicians and people’. Leaving aside the question of which parliamentarians exactly were responsible for blocking Brexit, this statement highlights how concerns about the most recent period (including the Supreme Court’s role) have driven some on the Conservative side to seek reform.  Continue reading

Light and shadows: the RHI scandal and the temptations of secrecy

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The RHI inquiry in Northern Ireland has led to concerns about a record ‘void’ that has left room for doubt and suspicion. Ben Worthy argues that the lack of a record might aid political deniability, but means that politicians also can’t be truly exonerated when accused of wrongdoing.

Marilyn Stathern, in her famous article on the ‘Tyranny of transparency’, asked: ‘what does visibility conceal’?  While openness can shed light on some areas, it can also create shadows and shade to hide in. One of the biggest fears for transparency campaigners is that openness will create an opposite and equal reaction. Instead of letting in the light, could freedom of information laws, open meetings or open data lead to officials and politicians trying to hide from them, or even fight them? Could it create what’s called a ‘chilling effect’, whereby officials and politicians bury their decisions elsewhere?

Finding any firm evidence for resistance, avoidance or concealment is notoriously difficult. It could take place in numerous ways, whether avoiding questions or requests, keeping records and decisions off paper, or using non-official emails or networks like WhatsApp. It’s hard to prove a negative, that something isn’t happening and, if avoidance done well, it should stay hidden. Only the most incompetent or inept are likely to be caught.

A few concrete examples have surfaced. We have had flashes of an apparent ‘chilling’ in the Trump White House and closer to home with Michael Gove using a private email address for public business in 2012 (as urged by his then adviser Dominic Cummings). More worrying was the evidence in Scotland in 2018 that some parts of government were engaged in ‘deliberate delaying tactics and requests being blocked or refused for tenuous reasons’. But are these isolated cases or the tip of an iceberg of systematic resistance? Studies have come to varying conclusions and a select committee in 2012 concluded that there was no firm evidence.

However, it now looks as though transparency campaigners’ worst nightmare has come to pass in Northern Ireland’s RHI scandal, as detailed in Sam McBride’s new book Burned. The RHI scandal, as the later Inquiry FAQ explains, concerns ‘the non-domestic renewable heat incentive… a financial incentive for businesses to move away from non-renewable sources of energy’. However, the FAQ goes on, ‘how the scheme came about in the form in which it was adopted, how it has been operated and the possible financial consequences of the scheme have become the source of considerable public concern’. You can see the background here and a timeline. Continue reading

Ten things you need to know about a hung parliament

professor_hazell_2000x2500_1.jpgimage1.000.jpg.pngWe know there will be an election on 12 December, but the outcome, in terms of parliamentary seats and who will form the next government, remains uncertain. Robert Hazell and Harrison Shaylor answer some of the key questions about what happens if the election creates another hung parliament.

With an increasingly volatile electorate, and uncertain forecasts in the polls, it is possible the 2019 election will result in another hung parliament. Although bookmakers currently have a Conservative majority as comfortably the most likely election result, and the Conservatives are currently polling around 11 points ahead of Labour, a hung parliament is by no means out of the question. It would be the third hung parliament in four general elections. This explains what lessons can be learned from our previous experience of hung parliaments at Westminster and around the world. It addresses questions such as how a new government is formed, how long formation of that government will take, what kinds of government might emerge, and what the most likely outcomes are.

How common are hung parliaments in other countries?

In most democracies across the world, single party majority governments are the exception. Whereas the ‘first-past-the-post’ (FPTP) voting system used in the UK has had the tendency to encourage adversarial two-party politics and majority government, this is far from a default setting. Proportional representation tends almost always to produce coalitions: many countries in Europe currently have a coalition government.

Recent years have shown that, even in countries using FPTP, hung parliaments can occur quite frequently. In Canada, whose parliament uses the same electoral system as Westminster, there were 10 minority governments in the 20th century. There have already been four since 2000, including the incumbent minority government led by Justin Trudeau, formed after the Liberals lost their majority in the October 2019 federal election.

What is the experience of hung parliaments at Westminster?

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Westminster has more experience of hung parliaments than is generally recognised. There were 20 governments in Westminster in the 20th century: four were coalitions, and six were minority governments. But single party majority governments dominated after the Second World War. The 2010 coalition government was the first since 1945 and the product of the first hung parliament in 36 years. Since 2010, however, two out of three general elections have produced hung parliaments (and the fact that David Cameron’s Conservatives succeeded in obtaining an absolute majority in 2015 was a surprise). Continue reading