The last Prime Minister of the Union?

Posted on July 28, 2019 by The Constitution Unit

Last week, Boris Johnson was elected leader of the Conservative and Unionist Party, but concerns have been voiced about the potential consequences of his premiership for the Union. Michael Kenny assesses the validity of those concerns and how they might be alleviated.

‘The last Prime Minister of the United Kingdom’. This damning, but also hopeful, judgement of the implications of a Boris Johnson premiership from the SNP’s Westminster leader Ian Blackford, expresses a sentiment that is widely held in UK politics, and is not confined to Scottish nationalist circles.

In fact, this particular outcome is very unlikely given how long – as we are currently learning – it takes countries to leave unions of which they are members. But it is undoubtedly true that his tenure in office will have a very significant impact upon the increasingly strained internal politics of the union, and could well ignite major political crises about the constitutional positions of Scotland and Northern Ireland. It is highly unlikely that Johnson will be the PM who oversees the break-up of Britain; but he may well go down in history as the catalyst for its dissolution.

So what does Johnson have to do to make sure that he does not become the leader who sends the UK to the brink?

In his election campaign he joined some of the other contenders in signalling his awareness of the need for the Union to be given a much higher priority in the thinking and policies emanating from Whitehall and Westminster. And this is certainly not a bad place from which to start. But there is a real risk that the kind of ‘hyper-unionism’ which, as our research shows, has emerged in official and political circles as an assertive response to heightened anxieties about the prospects of the UK, could well — if done without strategy or sensitivity — rebound on its author, deepening an ingrained scepticism about UK politicians and the central state in the outer parts of the UK. Continue reading →

The next PM’s territorial challenges

Posted on May 31, 2019 by The Constitution Unit

The next stages of Brexit are now set to happen under a new Prime Minister. The chosen candidate will have to work with governments in Wales and Scotland that are openly critical. Northern Ireland may be without a government and the English regions may lack a unified voice, but neither can be taken for granted, especially as the new PM will rely on the DUP for confidence and supply. Leaving the European Union therefore cannot be separated from the challenges of maintaining the domestic union, as Jack Sheldon explains.

Following the announcement of Theresa May’s imminent resignation, the long-anticipated contest within the Conservative Party to succeed her has begun.

The campaign will inevitably be dominated by Brexit. But events over the past three years have shown that the future of relations with the EU cannot easily be separated from the future of the domestic Union. The candidates will thus need to give careful thought to how they will approach the major statecraft challenges presented by territorial politics across the UK if they become Prime Minister.

Renegotiating the Northern Ireland backstop will be popular with Conservative MPs – but a new Prime Minister might soon face the same dilemma as Theresa May

The Northern Ireland ‘backstop’ has been the main driver of opposition to the Withdrawal Agreement within the parliamentary Conservative Party and their confidence-and-supply partners the DUP. Consequently, there are strong short-term incentives for leadership contenders to commit to renegotiating it, in the hope that it might yet be possible to get a deal that doesn’t cut across Brexiteer red lines on the Single Market and customs union through the House of Commons. Pledges to this effect have already been made by Jeremy Hunt, Boris Johnson, Esther McVey and Dominic Raab.

In reality, substantive changes to the backstop will be extremely difficult to deliver. It remains the position of the EU27 and the Irish government that the Withdrawal Agreement will not be reopened. Keeping an open Irish border has become highly salient in Ireland and the EU, and the new Prime Minister will need to appreciate that this means there is next to no chance that they will be open to trading the guarantees provided by the backstop for the loosely-defined ‘alternative arrangements’ envisaged by many Conservative MPs. The same dilemma Theresa May faced might thus soon confront her successor – whether, as an avowed unionist, to recoil from a no-deal scenario that would undoubtedly have disruptive effects at the Irish border and strengthen the case for an Irish border poll, or whether the delivery of Brexit trumps everything else.

Continue reading →

Taking stock: what have we learned from the European elections?

Posted on May 28, 2019 by The Constitution Unit

Last week, voters across the UK (and indeed, across the European Union) took part in the European Parliament elections. Now that we know the outcome, Alan Renwick examines the impact on the results of both the rules that governed the election and the strategies of the parties.

The European elections raised important questions about how the voting system – and parties’ and voters’ reactions to it – might influence the results. Would the imperfect proportionality of the system harm the smaller parties? Should those parties – particularly the three Britain-wide anti-Brexit parties – have formed an alliance? Could voters maximise the impact of their ballots through tactical voting? Now that the results are in, it is time to take stock.

The impact of the rules

As I set out in an earlier post, European Parliament elections in Great Britain use a list-based system of proportional representation (while those in Northern Ireland use Single Transferable vote, or STV). This system is proportional, but not very. The D’Hondt formula for allocating seats favours larger parties. So does the fact that the number of seats available in each region (ranging from three in the North East of England to ten in the South East) is fairly low.

The results would certainly have been different had the elections been held using First Past the Post, as was the case for European elections in Great Britain before 1999. This system, still used for Westminster elections, awards a seat to the largest party in each constituency. Had voters cast the same votes as they did on Thursday, the Brexit Party would under First Past the Post have won almost every seat in England and Wales outside London and the Home Counties; the Liberal Democrats and Labour would have dominated in London and parts of its environs; the SNP would have captured every seat in Scotland; and the Conservatives would have been wiped out. In fact, many voters would not have cast the same votes as they did. For example, the anti-Brexit parties could probably have agreed joint candidates much more easily than under the actual system, helping them to secure some extra seats. But the Brexit Party would very likely still have scooped up most seats on less than a third of the vote. Continue reading →

If there’s a second referendum on Brexit, what question should be put to voters?

Posted on September 13, 2018 by Constitution Unit

jess_sargent.000 alan_renwick.000 download.001 In the fourth in a series of posts on the mechanics of a possible second referendum on Brexit, Jess Sargeant, Alan Renwick and Meg Russell consider what question should be asked. This would be crucial for any vote to command legitimacy. Various models have been proposed, but some are far more credible than others in the current context.

This is the fourth in a series of posts on the possible mechanics of a second referendum on Brexit. Having previously discussed the timetable, and the circumstances in which suc h a referendum might be called, this post considers what kind of question should be put to voters.

Which options might voters be asked to choose between?

Three main options could be considered for inclusion in any further referendum on Brexit:

leave the EU on the terms the government has negotiated
leave the EU without a deal
remain in the EU

Some might add a fourth option: to reopen negotiations. But any option put to a referendum must satisfy two criteria: it must be feasible, and it must be clear. An option to reopen negotiations would fail on both counts: the EU might well refuse to reopen negotiations; and there would be no certainty as to what the UK might secure from such negotiations. A referendum of this kind could not ‘settle’ the issue of the UK’s relationship with the EU.

What form might the question take?

With three options in play, decisions would need to be taken about which of them should appear on the ballot paper, in what form, and in what combination. Continue reading →

No end to hereditary peer by-elections in the House of Lords?

Posted on July 24, 2018 by The Constitution Unit

The House of Lords is not entirely unelected; July saw two new peers appointed following elections involving a very small, select group of electors. In this post, former Clerk of the Parliaments David Beamish discusses the process by which hereditary peers can be elected to the Lords, how the system came to exist, and the continuing efforts to remove the remaining hereditaries altogether.

It was announced on 18 July that Lord Bethell had been elected to fill a vacancy among the 90 elected hereditary peers in the House of Lords – the 34th such vacancy to be filled by means of a by-election. The vacancy arose from the retirement of the Conservative peer Lord Glentoran (the House’s only Winter Olympic gold medallist) on 1 June. These by-elections are conducted using the alternative vote system and, despite there being 11 candidates, Lord Bethell did not need any transfers of votes, receiving 26 of the 43 first-preference votes cast by Conservative hereditary peers.

This was the second by-election this month: on 4 July the Earl of Devon was elected to fill a Crossbench place vacated by the retirement of Earl Baldwin of Bewdley, grandson of Stanley Baldwin and a tireless campaigner against water fluoridation. The Earl of Devon received 7 of the 26 first-preference votes of Crossbench hereditary peers and it took five transfers of votes for him to be elected.

Viscount Mountgarret was a candidate in both by-elections, receiving no votes in either. His optimism when deciding to stand the second time might have been fuelled by the success of the Earl of Oxford and Asquith, who was elected by the whole House in 2014 and sits as a Liberal Democrat, having previously been an unsuccessful candidate in a Crossbench by-election in 2011 and in Conservative by-elections in 2011 and 2013.

At least one more by-election is in prospect: Lord Northbourne, a Crossbench hereditary peer, has given notice that he will retire on 4 September.

Where do by-elections come from? The House of Lords Act 1999

The present arrangements whereby 92 hereditary peers sit in the House of Lords derive from the House of Lords Act 1999, which removed most of the 750 hereditary peers but provided, under the so-called ‘Weatherill amendment’, for two office-holders (the Earl Marshal and the Lord Great Chamberlain) and 90 elected hereditary peers to continue as members. The 90 comprised 15 peers willing to serve as deputy speakers or committee chairs, elected by the whole House, and 75 peers representing 10 per cent of the hereditary peers in each party or group: 42 Conservatives, 28 Crossbenchers, 3 Liberal Democrats and 2 Labour peers; they were elected by the hereditary peers in their respective groups. Continue reading →

The politics of polling: the report of the Committee on Polling and Digital Media

Posted on April 26, 2018 by The Constitution Unit

On 17 April, the House of Lords’ ad hoc Committee on Political Polling and Digital Media published a report, following its inquiry into the effects of political polling and digital media on politics. At an event organised by The Constitution Unit, Lord Lipsey, who chaired the Committee, discussed the report with a panel that consisted of Baroness Jay of Paddington, a Labour peer who served on the Committee; Will Jennings, of the University of Southampton; and Martin Boon, a professional pollster. Dave Busfield-Birch offers a summary of their comments.

Following an inquiry that took evidence from a variety of experts, industry professionals, and ministers, the Committee on Political Polling and Digital Media published its report on the subject on 17 April. The Constitution Unit organised an event to publicise the release of the report, which consisted of a panel discussion (summarised below) and a lively and interesting Q&A session. Committee Room 2 in the Palace of Westminster was full when Jennifer Hudson, Senior Lecturer in Political Behaviour at the UCL Constitution Unit, introduced the panel, on which she served as Chair. Lord Lipsey and Baroness Jay of Paddington introduced the report on behalf of the Committee. They were then followed by Will Jennings, Professor of Political Science at the University of Southampton, and Martin Boon, who provided the perspective of a professional pollster.

Lord Lipsey

As chair of the Committee, Lord Lipsey noted that he had enjoyed working on the inquiry that produced it, although he did acknowledge that the report was ‘slightly unusual’ in one key respect. Normally, parliamentary inquiries examine government policy, and the recommendations in their reports are aimed at influencing it. This report, however, had focused its attention on the workings of the polling and digital media industries and it is they who are the targets of most of its recommendations. One recommendation that was intended to influence government policy called for the Electoral Commission to have a wider statutory role in regulating and monitoring polling during election periods.

Lord Lipsey then went on to offer some background to the report, saying that it had partially been prompted by the existence of three big polling ‘bloopers’ in recent British political history. In 2015, polls had widely predicted a hung parliament; instead, the Conservatives secured a parliamentary majority. At the next general election in 2017, the Conservatives experienced an unexpected result in the opposite direction: where polls had predicted an increased majority for Theresa May, the voters delivered a hung parliament and a government that now relies on DUP support for its parliamentary majority. Finally, the referendum on leaving the European Union produced a vote for Brexit that the polls had largely failed to predict. Lord Lipsey was careful, however, to point out that despite these three unexpected results, people should be careful of jumping to conclusions about the state of the polling industry. The Committee found no statistical evidence that polls are getting worse internationally. However, he did warn that the failure of polls to predict three otherwise unexpected results in succession would mean that pollsters should expect ‘not to get much sleep’ during the next general election campaign. Continue reading →

The future of referendums: what role should they play and how should they be conducted?

Posted on March 23, 2018 by The Constitution Unit

Two decades have passed since there was last a serious consideration of how the UK uses referendums. For this reason, the Constitution Unit established the Independent Commission on Referendums to examine whether and how the way in which referendums are regulated in the UK should be changed. Ahead of a public event in Edinburgh, the Commission’s research director, Dr. Alan Renwick, explains its terms of reference.

The referendum is now entrenched as a part of the UK’s political system. The principle that a referendum is needed before some fundamental constitutional changes – notably in relation to sovereignty – are made has become well established. It seems likely that politicians will continue from time to time to find it useful to manage conflicts by proposing to put certain decisions to the people.

Yet, crucially important though referendums are, there has been little concerted thinking of late about how they should be conducted. Two inquiries carried out in the 1990s – by the UCL Constitution Unit’s Nairne Commission and by the Committee on Standards in Public Life – led to the creation of some basic rules, laid down in the Political Parties, Elections and Referendums Act 2000. But these rules were always incomplete: for example, they say nothing about who is entitled to vote in a referendum. They are also now two decades old. Much has changed in the intervening years – not least through the rise of the internet and social media. Four major referendums have also been held in that period – on Welsh devolution (2011), the Westminster voting system (2011), Scottish independence (2014), and EU membership (2016) – from which lessons can be learned. Many observers have been dismayed by the conduct of those referendums, whether they agreed with the results or not. A careful review of whether we could do better is therefore overdue.

That is the task of the Independent Commission on Referendums, established by the Constitution Unit last autumn to examine the role and conduct of referendums in the UK and consider what changes might be desirable. Comprising twelve eminent individuals with diverse perspectives on referendums, including current and former parliamentarians, journalists, regulators, and academics, the Commission is due to report this summer. It is keen to hear as many views as possible, it is holding seminars in all of the UK’s capital cities. The Edinburgh seminar is the next in this series, co-hosted with the Royal Society of Edinburgh next Monday. Continue reading →

The Crown: What does Netflix’s dramatisation and the celebritisation of an evolving monarchy mean for the royal family in 2018?

Posted on February 6, 2018 by The Constitution Unit

With Prince Philip now retired from his public role and Prince Harry set to marry an American actor in the spring, the royal family has entered 2018 in the midst of a period of change. Yet change is nothing new; the monarchy is constantly evolving. Bob Morris asks where does it now stand and what further changes may be expected? He also discusses the historical accuracy and cultural impact of the popular Netflix drama, ‘The Crown’.

As the monarchy enters 2018, unavoidable demographic effects are becoming more apparent. The Queen is now 91 and Prince Philip has announced his retirement from official duties at the age of 96. The Queen remains commendably diligent in her public duties, notching up nearly 300 engagements in 2017, although none of those took place abroad. There it is evident that the Prince of Wales (himself close now to 70) has increasingly taken up the burden, assisted principally by the Duke of York and the Princess Royal. As in recent years, the latter continues to be the busiest member of the family for domestic engagements.

There continue to be small, mostly low-voiced susurrations of speculation about whether the Queen will herself ‘retire’ in some way when, for example, she reaches her husband’s age; whether she will be succeeded by Prince William rather than by Prince Charles; whether the new king would remain Head of the Commonwealth; and at what point any of the fifteen Commonwealth states where the Queen remains monarch (known as the realms) will turn themselves into fully-fledged republics. Continue reading →

The Lords and the EU Withdrawal Bill: 10 predictions

Posted on January 24, 2018 by The Constitution Unit

The European Union (Withdrawal) Bill has completed its bumpy passage through the Commons and now moves to the Lords, where the government falls well short of a majority. In this post Meg Russell explores what the Lords is likely to do with the bill, making 10 predictions and, in doing so, busting some common myths. She concludes that the bill will be heavily amended, but any suggestion that the Lords will ‘block Brexit’ is misconceived.

The European Union (Withdrawal) Bill completed its passage through the House of Commons last week. During its two-day second reading, eight days in committee on the floor of the House and two-day report stage, it got a pretty bumpy ride. In a fascinating test for a minority Conservative government, amendments were fended off on a range of issues, but various concessions were also given, and the government suffered one defeat. Now the bill passes to the House of Lords, where the numbers are far more stacked against the government. As of today, the Conservatives held just 248 out of a total 794 Lords seats, with Labour on 197, the Liberal Democrats 100 and independent Crossbenchers 183. In recent years this kind of party constellation has meant that even governments with comfortable Commons majorities have been frequently defeated in the Lords. So what can we expect from the second chamber on this highly sensitive bill? Here are 10 broad predictions:

Amendments are likely, right from the outset

1. There is little doubt that the bill will be significantly amended in the Lords. Even on relatively uncontroversial bills, scrutiny by peers frequently results in changes. But this is precisely the kind of bill that peers get most exercised about. The legal arrangements that it seeks to put in place for Brexit are highly technical and complex. The bill’s central purpose is to repeal the European Communities Act 1972, but at the same time to maintain legal continuity by creating a new body of ‘retained EU law’. This process in itself raises many difficult constitutional points (as indicated further below). In addition, the bill includes extensive ‘delegated powers’, allowing ministers to amend retained EU law with limited parliamentary oversight. This combination of a constitutional focus plus sweeping delegated powers, even leaving aside the disputed context of Brexit, guarantees that Lords scrutiny will be intense. It will almost certainly result in changes. Continue reading →

Referendums in UK democracy: how should they work in practice?

Posted on November 28, 2017 by The Constitution Unit

The Independent Commission on Referendums, established by the Constitution Unit to review the role of referendums in UK democracy, has now met twice. One of the issues they are considering is rules for how referendums should work in practice. The Commission’s Research Assistant, Jess Sargeant, summarises the issues for consideration.

In a previous blog post I explored some principles that could be used for deciding when a referendum might be appropriate. The Independent Commission on Referendums is also considering how referendums should work in practice. The following post explores some key practical questions.

Should there be rules for when a referendum is required, permitted or prohibited?

The UK is unusual among comparable democracies in that referendums are held ad hoc: there are very few standing rules on when referendums are to be held. This means, at least in theory, that there are no restrictions on matters that a referendum may be held on: it could be held on any issue within parliament’s legislative competence.

Many other democracies have provisions in their constitutions setting out when a referendum must be, can be, or cannot be held. Constitutional issues are the most common category of issues on which a referendum is required. For example, Ireland, Australia and Japan require referendums on any bills amending the constitution. In Austria, Spain, Lithuania and Iceland amendments to certain key parts of the constitution must be approved in a popular vote. There are also examples of referendums being required on other issues: Denmark has mandatory referendums on transfers of sovereignty and changes to the voting age.

Where referendums are not required on constitutional amendments, there is often a mechanism allowing a parliamentary minority to trigger one, as is the case in Italy, Austria and Spain. In some democracies, legislation can be put to a referendum if requested by a body so empowered by the constitution. This could be the parliament, as in Denmark and Austria, the president, as in Ireland and Iceland, or groups of citizens, as in Italy and the Netherlands. Where referendums are permitted on legislation, certain types of legislation are often exempt: most commonly, finance, budgetary and tax laws or legislation implementing treaties.