Monitor 67: Brexit blues

The latest issue of Monitor, the Constitution Unit’s regular newsletter, has been published today. The issue covers all of the major UK constitutional developments over the past four months, a period that has seen several rounds of Brexit talks, the introduction and second reading of the EU (Withdrawal) Bill, the publication of the Burns review on the size of the House of Lords, plus much else besides. The front page article is reproduced here. You can read the full issue at this link

The previous issue of Monitor was published just after the surprise result of the snap general election. The Prime Minister was back at the helm, but with a reduced number of MPs, and dependent on a confidence and supply arrangement with the Northern Ireland Democratic Unionist Party (DUP). We noted that the road ahead looked rocky.

So it has proved to be – though Theresa May remains in post, and the real parliamentary showdowns seem still to come. The Prime Minister has been dealt an exceptionally difficult hand – managing legislation on Brexit of unprecedented constitutional complexity, alongside the fractious negotiations with the EU, while leading a divided party in a House of Commons in which she has no partisan majority. Over the summer, and particularly during the party conference season, her leadership was regularly questioned, but must gain some stability from the fact that few would really want to be in her shoes. Meanwhile, rumours suggest that she has used the threat of a Boris Johnson premiership to coax other EU leaders to the negotiating table.

As discussed on pages 2–3, the official Brexit negotiations have made slow progress. Despite Theresa May’s attempted injection of momentum through her Florence speech in September, EU partners have not yet agreed to move on to ‘Phase II’ (i.e. post-Brexit trade arrangements), and a serious sticking point remains the so-called ‘divorce bill’. Partly as a consequence, the prospect of a ‘no deal’ outcome has increasingly been talked up. This is presented by some in the Conservative Party as a necessary negotiating strategy to get the EU-27 to give the UK what it wants, but others seem to view it with a degree of relish. Meanwhile, business groups appear to be increasingly concerned.

One thing that remains little-known is the state of public opinion, and how that may develop. While the June 2016 referendum came up with a Leave result, today’s question of what Leave should mean is a good deal more complex. As such, it is not readily suited to opinion polling. Here the results of the Citizens’ Assembly on Brexit, run by a team led from the Constitution Unit and funded by the ESRC (see page 15), can shed some useful light. Assembly members, who included more Leave than Remain supporters, expressed a preference for the kind of bespoke trade deal that the government says it is seeking. But members were very clear that if this cannot be achieved, a ‘no deal’ outcome was undesirable. They preferred that the UK remained a member of the Single Market and Customs Union to this. Politicians should reflect on such findings carefully, because boxing themselves in to no deal could prove electorally dangerous.

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Assessing the durability of the Conservative minority government: lessons from New Zealand

Minority government is rare in the UK, but relatively common in many other parliamentary democracies. In this post Jonathan Boston considers the prospects for Theresa May’s government. He draws on the experience in New Zealand, where since becoming the norm in the late 1990s minority governments have proved durable. However, he argues that present circumstances in the UK mean that May’s current government is very unlikely to last a full term.

Minority governments in Britain are relatively rare. But this is not the case in many other parliamentary democracies, especially those with proportional representation voting systems.

During the post-war period, about a third of governments in advanced democracies lacked a parliamentary majority. They were thus dependent on one or more supporting parties, often through a negotiated agreement on matters of confidence and supply. Such agreements vary significantly in policy specificity, consultative arrangements and expected duration.

Minority government in New Zealand can be effective and durable

In New Zealand, there were no post-war minority governments until 1996 when the mixed member proportional (MMP) electoral system was introduced. The impact was immediate and significant: no party has won an overall parliamentary majority since then and during most of these years the party or parties represented in the cabinet lacked a majority.

It has, however, developed some novel governance arrangements to cope with the political exigencies of MMP. In most parliamentary democracies, members of parties supporting a minority government do not hold ministerial office. In New Zealand, by contrast, it is common for only one party to be represented in the cabinet; this party, in turn, is supported by several minor parties, each of which holds a ministerial post outside the cabinet.

Collectively, the government and support parties have a parliamentary majority, but ministers outside the cabinet are not bound by collective cabinet responsibility unless specifically agreed between the parties. There is, in effect, ‘selective collective responsibility’, with ministers able to advance different views publicly on important matters of public policy.

These arrangements have proved both effective and durable: the 1999 Labour-led Government survived three terms in office and the current National-led Government, formed in 2008, is close to completing its third term and will likely retain office after the election in September.

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Pre-appointment scrutiny hearings: parliament’s bark delivers a stronger bite than MPs realise

For the past decade House of Commons select committees have held pre-appointment scrutiny hearings with preferred candidates for some of the most senior public appointments. Many select committee chairs and members consider these to be a waste of time because there is no power of veto. However, research published in a new Constitution Unit report suggests that they have much more influence than committees realise. Robert Hazell outlines these findings.

Although little remarked upon at the time, one of Gordon Brown’s more significant constitutional reforms was the introduction of pre-appointment scrutiny hearings. Following his 2007 White Paper The Governance of Britain, the government agreed that candidates for 50 of the most senior public appointments would be scrutinised by the relevant select committee before the government confirmed their appointment. Some select committee chairs and members consider such hearings a waste of time, because they have no power of veto; but Constitution Unit research has shown that they have more influence than select committees realise.

In the last ten years select committees have conducted just over 90 pre-appointment hearings (for a full list see here). The Constitution Unit has conducted two evaluations of their effectiveness: first in 2009, studying the first 20 hearings; and second in 2016-17, when we looked at the next 71. We found three cases where the candidate withdrew following a critical hearing; and two instances where statements or disclosures at a hearing subsequently triggered a resignation. So pre-appointment scrutiny undoubtedly has an impact, even though committees have no formal power of veto: they are an important check on the integrity and effectiveness of senior public appointments, and a curb against ministers abusing their powers of patronage. And their effectiveness cannot be measured solely by the number of negative reports – the select committee hearings also help to deter ministers from putting forward candidates who would not survive this additional public scrutiny.

The puzzle remains that select committee chairs do not recognise how much influence they wield. There are two reasons for this. First, the baleful example of Washington: when pre-appointment scrutiny was introduced, many MPs anticipated that the hearings would be like confirmation hearings in the US Senate, which does have a power of veto. Second, although pre-appointment scrutiny does provide an important check, it is rare for an individual committee or chair to have experience of thwarting an appointment: there have only been five such cases in the last ten years. So for most committees, most of the time, pre-appointment scrutiny can feel like a bit of a chore.

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Monitor 66: The most unexpected election

The latest issue of Monitor, the Constitution Unit’s regular newsletter, has been published today. The issue covers all of the major UK constitutional developments over the past five months, a period that has included the unexpected general election result, the confidence and supply agreement between the Conservatives and DUP that followed, Nicola Sturgeon’s announcement of plans for a second referendum (later ‘reset’) and the beginning of Brexit negotiations, plus much else besides. The front page article is reproduced here. You can read the full issue at this link

Current British politics is rarely dull. Added to the unexpected result in the 2016 Brexit referendum and the subsequent Miller case regarding parliament’s role in the process (not to mention the Conservatives’ unexpected outright majority in 2015), we now have our second hung parliament in seven years, a resurgent Corbyn-led Labour Party, and a previously popular Prime Minister who appears to be on the ropes. All this following a general election that few expected, and that some even thought pretty much impossible under the 2011 Fixed-term Parliaments Act.

Following the successful passage of the European Union (Notification of Withdrawal) Act, authorising the trigger of Article 50 (see page 4), Theresa May surprised almost everybody on 18 April by proposing a general election for 8 June. Having started with what looked like an unassailable lead in the polls, in an election where she sought to strengthen her hand in parliament during the Brexit negotiations, she managed instead to lose her slender Commons majority and was forced into a confidence and supply arrangement with Northern Ireland’s Democratic Unionist Party (DUP) (see page 6). Her authority within her own government is much diminished, and ministers have openly squabbled with each other over Brexit priorities. Meanwhile, Labour’s unexpected gains leave its previously fractious parliamentary party appearing suddenly united behind Jeremy Corbyn.

The results were also a blow to Nicola Sturgeon, whose Scottish National Party (SNP) lost twelve seats to the Conservatives, six to Labour and three to the Liberal Democrats. Conservative leader Ruth Davidson (who spoke at a packed Constitution Unit event during the campaign) in contrast made a strong case for the Union and gained further stature and negotiating power. Sturgeon acknowledged on 27 June that she would have to put the campaign for a second Scottish independence referendum on hold for the time being (see page 11).

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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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