The sovereignty conundrum and the uncertain future of the Union

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Brexit has led to numerous clashes between London and the devolved governments, raising fundamental questions about the very nature of the United Kingdom, in a context where the European Union is no longer available as an ‘external support system’. Michael Keating argues that we need to find new constitutional concepts for living together in a world in which traditional ideas of national sovereignty have lost their relevance.

Since the Brexit vote, there have been repeated clashes between the UK and devolved governments. Some of these concern policy differences, notably over the form Brexit should take. Some reflect the inadequacies of mechanisms for intergovernmental relations. There is an inevitable rivalry between political parties at different levels. Beneath all this, however, are fundamental questions about the nature of the United Kingdom as a polity and where ultimate authority lies, especially after 20 years of devolution.

On the one hand, there is the classic or ‘Westminster’ doctrine, according to which sovereignty resides with the Monarch-in-Parliament. In the absence of a written, codified and enforceable constitution, this is the only foundation of authority. In this view, Westminster has merely ‘lent’ competences to the devolved legislatures, which can be taken back at any time, however politically imprudent that might be. Westminster may not often exercise this power but it provides a trump card in any conflict with the devolved authorities.

This is a powerful doctrine but at the same time an empty one since it rests on a tautology. Westminster is sovereign because, by dint of its sovereign authority, it says it is. The point was illustrated in the debates on the 1978 devolution legislation when an alliance of unionists and nationalists defeated a clause asserting that Westminster remained supreme, the nationalists because they did not want it to be true and the unionists because it was redundant. Westminster sovereignty is a myth, that is a story that may be true or false but works as long as people believe it. When the spell is broken, as it has in recent years, its supporters have to fall back on other arguments. There is a historical argument, that parliamentary sovereignty is rooted in constitutional practice; a normative argument, that in an age of universal suffrage, it really amounts to popular sovereignty; and an instrumental argument, that it allows for powerful and effective government. All are open to question. The historical argument is based on English practice and challenged in Scotland. The normative argument assumes that there is a single UK people with one channel for expression, rather than multiple peoples, the smaller nations having more inclusive electoral systems. The instrumental argument needs to be proven empirically rather than asserted.

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Can Boris Johnson stop Indyref2?

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With the Scottish Parliament elections approaching, the Unit gathered together three experts to discuss the prospect of Boris Johnson seeking to block a second Scottish independence referendum, and how the Scottish government might respond to such efforts. Charlotte Kincaid summarises the contributions.

With the May 2021 Scottish Parliament elections approaching, and the recent attention on the continuing political conflict between First Minister Nicola Sturgeon and her predecessor Alex Salmond, eyes are very much on Scotland and the prospect of a second independence referendum (‘Indyref2’). Boris Johnson has said he would refuse a referendum, but is this possible, and what would be the ramifications? To explore the possibility of Indyref2 and how such a referendum would be brought about, the Constitution Unit hosted a webinar with three experts: Professor Aileen McHarg of Durham Law School; James Forsyth, political editor of The Spectator magazine; and Dr Alan Renwick, Deputy Director of the Constitution Unit. The summaries below are presented in order of the speakers’ contributions.

Professor Aileen McHarg

Professor McHarg explored a number of pathways to a referendum from a legal perspective. She first addressed if the UK government can prevent a second Scottish independence referendum: it can, and it isn’t required to agree to a Section 30 order, or amendments to the Scotland Act to enable Holyrood to legislate for a second referendum – as was the case for the 2014 referendum.

But can the Scottish Parliament legislate for a referendum without a Section 30 order? This is less clear. The SNP has marked its intention to unilaterally introduce a referendum bill with or without a Section 30 order if it wins a majority in Holyrood following the May elections. If the bill passed, it would be subject to legal challenge. If the bill were judged as beyond the Scottish Parliament’s competence, any referendum which followed would not have a legal grounding, and in Aileen’s view, the idea of a referendum was ‘a non-starter’. She described talk of a wildcat referendum – such as that experienced in Catalonia in 2017 as ‘entirely misplaced’. There would be questions concerning the legitimacy of a unilaterally-called referendum, even if it were ruled lawful by the Supreme Court; unionists may be unwilling to engage in such a referendum.

Another possible pathway, although unlikely, is Westminster legislating to dissolve the Union. This is possible because a referendum on Scottish independence is not a legal requirement of independence.

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The marginalisation of the House of Commons under Covid has been shocking; a year on, parliament’s role must urgently be restored

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A year ago today, the House of Commons returned from Easter transformed by Covid. Since then, accountability for far-reaching government policy and spending has often been limited, many MPs have been excluded from key virtual proceedings, and whips now hold over 500 proxy votes. Meg Russell, Ruth Fox, Ronan Cormacain and Joe Tomlinson argue that the combined effect in terms of parliament’s marginalisation has been shocking, and that there are risks of government becoming too comfortable with decision-making which evades proper parliamentary scrutiny. One year on, more robust parliamentary accountability must urgently be restored.

A year ago today, the House of Commons returned to business transformed by Covid. Since March 2020, the public has lived under some of the UK’s most restrictive peacetime laws, and to support the economy public money has been spent on a vast scale. Yet parliamentary accountability for, and control over, these decisions has diminished to a degree that would have been unthinkable prior to the pandemic. One year on, with lockdown easing, the restoration of parliamentary control and functioning is now an urgent priority.

This post highlights five ways in which the government’s approach to the House of Commons during Covid has marginalised MPs. In a parliamentary democracy, government accountability to parliament is a core constitutional principle. But in a national emergency, when time for normal process is short, the gravity of the situation can require that parliamentary scrutiny be temporarily sacrificed in exchange for broader accountability. Yet the government has failed to keep its side of the bargain. Too frequently, announcements have been made at press conferences, or briefed privately to the media, rather than presented for democratic scrutiny and questioning by MPs. Ministers have sought extraordinary powers while consistently excluding both the House of Commons as a whole, and certain MPs, from participating in proper oversight.

In the early days of the pandemic necessity arguably justified this approach. But a year on, a real risk exists of damaging precedents being set. This is magnified by the fact that some recent developments have accelerated negative trends predating the pandemic. Unless MPs collectively take a stand against parliament’s continued marginalisation by ministers, what was once extraordinary risks becoming the norm.

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Online harms to democracy: the government’s change of approach

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Two years after the publication of the government’s Online Harms white paper, the government has published its final consultation response. Its commitment in the white paper to legislate to prevent online harms to democracy has disappeared, to the frustration of many inside and outside parliament. Alex Walker reflects on the government’s decision to ‘abandon the field’ and argues that a laissez-faire approach could lead to negative consequences.

It is expected that the Queen’s Speech on 11 May will include the government’s long-awaited Online Safety Bill. This will be a major piece of legislation with significant implications for the regulation of digital technology companies in the UK. However, when it is introduced it now seems highly unlikely that it will encompass measures to prevent harms to democracy, as was initially indicated.

The Online Harms white paper published in April 2019 set out a position that recognised the dangers that digital technology could pose to democracy and proposed measures to tackle them. This was followed by an initial consultation response in February 2020 and a full response in December. In the course of the policy’s development, the democracy aspect of the proposals has disappeared. The government now points instead to other areas of activity. This represents a shift away from the ambition of the white paper, which promised to address online harms ‘in a single and coherent way.’

Online Harms white paper: April 2019

The white paper first put forward the government’s intention for a statutory duty of care that would make companies responsible for harms caused on their platforms. This would include illegal harmful content, such as child abuse and terrorist material, but also some forms of harmful but legal content, including disinformation and misinformation. The white paper explicitly framed some of its proposals for tackling online harms in relation to the consequences for democracy. It detailed some of the harms that can be caused, including the manipulation of individual voters through micro-targeting, deepfakes, and concerted disinformation campaigns. It concluded that online platforms are ‘inherently vulnerable to the efforts of a few to manipulate and confuse the information environment for nefarious purposes, including undermining trust’. It recognised that there is a distinction to be drawn between legitimate influence and illegitimate manipulation.

The white paper also set out what the government expected to be in the regulators’ Code of Practice, and what would be required to fulfil the duty of care. This included: using fact-checking services, particularly during election periods; limiting the visibility of disputed content; promoting authoritative news sources and diverse news content; and processes to tackle those who misrepresent their identity to spread disinformation. It stated that action is needed to combat the spread of false and misleading information in part because it can ‘damage our trust in our democratic institutions, including Parliament.’

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FTPA Joint Committee lays down marker for the future

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The Fixed-term Parliaments Act 2011 placed a legal obligation on the Prime Minister to make arrangements for a committee to review the legislation before the end of 2020. That committee was duly created, and published its report last month. Robert Hazell and Meg Russell offer a summary of the committee’s report, which was rightly critical of the government’s draft repeal bill, but argue that the committee ‘ignored’ the weight of the evidence in some key areas.

On 24 March the parliamentary Joint Committee to review the Fixed-term Parliaments Act 2011 (FTPA) published its report. The committee was established last November under section 7 of the FTPA, which required the Prime Minister in 2020 to make arrangements for a committee to review the operation of the Act, and if appropriate to make recommendations for its amendment or repeal. The review was carried out by a Joint Committee composed of 14 MPs and six members of the House of Lords, and chaired by former Conservative Chief Whip Lord (Patrick) McLoughlin.

The government pre-empted the review by publishing a draft FTPA (Repeal) Bill a week after the committee was established. The Conservative and Labour manifestos in 2019 had both contained a commitment to get rid of the FTPA. As a result the committee focused a lot of attention on the government’s draft repeal bill. But the report devotes almost equal space to the FTPA and how it might be amended, in case parliament prefers to go down that route, now or in the future.

There was clear interest in the committee for retaining but improving the FTPA. The government had a bare partisan majority (11 out of 20 members), and not all Conservative members supported the government line. But the committee managed to avoid any formal votes, instead referring in parts of the report to the majority or minority view. On some key issues the majority view went against the weight of evidence received.

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