Devolution and the Union: then and now

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The COVID-19 pandemic has highlighted some of the flaws of the UK’s uneven devolution arrangements, and the mixed success of intergovernmental forums. Charlotte Kincaid summarises discussions from a Unit webinar in which four experts from across the UK tracked the country’s bumpy journey of devolution, and where it might go in the future. The webinar was the final instalment of the Unit’s series of celebrations to mark its 25th anniversary.

The details and arrangements of devolution have been played out in the public sphere while the UK has attempted to grapple with a pandemic. The public has seen devolution very much in action, with each part of the UK implementing its own lockdown measures and support packages, demonstrating the autonomy and limitations of devolved governments. With devolution in the forefront of the public mind, it was the opportune moment to discuss the journey so far, and where devolution is headed. The summaries below are presented in the order of the speaker’s contributions.

Scotland

Michael Keating, Professor of Politics at the University of Aberdeen and former Director of the Centre on Constitutional Change, described Scottish devolution as an ambivalent project, and noted that there have always been different understandings of what devolution means. For some, it is a modification of the unitary state of the UK, for others the UK is a union of self-governing nations which come together for common purposes, while another group view it as a project in the direction of federalisation. In recent years these foundational issues have grown in relevance due to a number of constitutional confrontations. 

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The 2020 US presidential election: nine lessons

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As reported in the latest issue of Monitor, the US presidential election raised even more constitutional issues and questions about the US system of elections than many anticipated. Colin Provost and Nadia Hilliard of the UCL Centre for US Politics discuss how the election was administered, and the roles of the judiciary, Electoral College and social media in the process.

The US presidential election of 2020 has been perceived by many observers as one of the most important elections in American history. A highly polarised electorate turned out in record numbers in the middle of a pandemic and for the first time, the incumbent president refused to concede after a clear result, while pushing a steady, yet unsubstantiated series of claims about voter fraud and voting irregularities. Given the highly unusual set of circumstances surrounding this election, it is worth considering how well US institutions performed with respect to the conduct of a free and fair election, and what lessons should be learned for future electoral cycles.

1. States can run elections smoothly.

Although federal laws that are harmonised across the states might seem to make more sense for national elections, the US Constitution allows each state to set its own election laws, as long as they are in compliance with the 1965 Voting Rights Act and other relevant, federal legislation. Keeping that in mind, it is important not to understate the fact that, on average, the states performed well in terms of administration of this election. Despite the pandemic, millions of people were able to vote and perhaps more importantly, a large subset of those people were able to vote by mail, so that they would not have to put their health in jeopardy by waiting in long – and often cramped – queues. Ultimately, those votes were all counted, even if a victor could not be declared until 7 November —five days after election day.

2. US electoral institutions are resilient.

The institutions of election administration proved to be resilient in the face of baseless allegations of voter fraud and voting irregularities: those allegations were many, and continue to be made. In a normal election year, post-election lawsuits are practically non-existent, but in 2020, the Trump campaign filed dozens of lawsuits across several states, nearly all of which have been found to be lacking in merit, while tweeting inaccurate information about the election and its results. Georgia senators David Perdue and Kelly Loeffler suggested that Georgia Secretary of State Brad Raffensberger – the state official in charge of overseeing elections and certifying the results – should resign after not finding evidence of electoral fraud in that state. Additionally, President Trump invited the leadership of the Michigan legislature to the White House, apparently with the goal of getting them to nominate different electors to the Electoral College that formally votes in the new president than those selected by the Michigan Democratic Party. The only legal basis for this occurring is if one believed that Joe Biden did not clearly or lawfully win the state, even though his margin of victory was in excess of 150,000 votes. Finally, a large number of Trump allies in Congress, the media and elsewhere supported these actions, implicitly or explicitly. Despite all these challenges, the votes were counted and certified by all 50 states and the District of Columbia.

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The Fixed-term Parliaments Act: should it be amended or repealed?

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A parliamentary committee has been established to review the effectiveness of the Fixed-term Parliaments Act 2011. Rather than wait for its conclusions, the government has published a draft bill designed to return control of the timing of general elections to the executive. Robert Hazell examines the issues the committee will have to consider, and proffers some possible improvements to the status quo.

On 1 December the government published its draft bill to repeal the Fixed-term Parliaments Act 2011 (FTPA). This would implement the commitment in the Conservative 2019 manifesto, which pledged: ‘We will get rid of the Fixed Term Parliaments Act – it has led to paralysis when the country needed decisive action’. The bill would revert to the previous system, and restore the prerogative power of dissolution. As the government’s Foreword explains:

The Bill makes express provision to revive the prerogative power to dissolve Parliament. This means once more Parliament will be dissolved by the Sovereign, on the advice of the Prime Minister. This will enable Governments, within the life of a Parliament, to call a general election at the time of their choosing.

The bill also contains an ouster clause to make sure that the exercise of the power of dissolution, and any decision relating to that power is non-justiciable and therefore not open to challenge in the courts. Alison Young and Mark Elliott have published detailed legal critiques of the bill which analyse the effectiveness of the ouster clause, and whether the power of dissolution that has been revived is now a statutory power, or a prerogative power. This blog does not go into the legal complexities, but focuses on the politics, and the possible outcomes from the review of the bill by the joint parliamentary committee established in November.

The joint parliamentary committee, and previous committees

The FTPA has all along contained a built-in mechanism for its own review, in a final section added during its parliamentary passage in 2011. Section 7 provides that between June and November 2020 the Prime Minister should arrange for a committee to review the operation of the Act. That committee was established last month, with 14 MPs and six members of the House of Lords. The Committee held its first sitting on 26 November, when it elected former Conservative Chief Whip Lord (Patrick) McLoughlin as its chair, and set a deadline of 4 January for the submission of evidence. The Committee held its first oral evidence session on 10 December, with Stephen Laws and Professor Alison Young; the next session is on 17 December, with former Commons clerks Lord Lisvane and Malcolm Jack.

But two parliamentary committees have already recently reviewed the operation of the FTPA: the Lords Constitution Committee, and the Commons Public Administration and Constitutional Affairs Committee (PACAC). The Lords Committee held two evidence sessions, in autumn 2019 (including evidence from me); but it was a further year before the Committee published its report in September 2020, as summarised here by its chair Baroness (Ann) Taylor. The long delay suggested the Committee had difficulty agreeing its recommendations, and the report instead raised a series of basic questions about any legislation to replace the FTPA. 

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Parliaments and COVID-19: principles and practice; challenges and opportunities

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Unit Director Meg Russell analyses the challenges and opportunities for reform facing parliaments during the COVID-19 pandemic, which has raised complex questions about how to balance the different functions of parliaments and their need to operate effectively.

In the UK and around the world parliaments have had to adjust their practices to the unexpected new environment of COVID-19. This has brought major challenges but, some suggest, also opportunities in terms of suggesting future means for parliaments to adapt. This post starts from the core principles of parliamentary functioning, briefly reviews practice under COVID-19, and considers the primary opportunities and challenges presented. It concludes that the future lessons from this unique period reinforce some familiar themes; but they also raise significant conundrums and trade-offs between the different essential principles of what parliaments are there to do.

Principles

Stripping back to the basics, what are parliaments for? Legislative studies scholars have suggested various overlapping lists of functions. For example in the Oxford Handbook of Legislative Studies, Amie Kreppel provides a list of four, which I will boil down to three: 

  • Representation takes many forms, often including – as is central to the UK House of Commons – geographic representation. Numerous, diverse, individuals participate in the legislature, underpinned by a crucial democratic principle of equality, where each ultimately has an equal vote.
  • Linkage is closely connected to this – as parliamentarians provide a voice in parliament to their voters, and remain accountable to them.
  • Policy-making – for example through approving bills – is perhaps what parliaments are best known for. Connectedly, they have a control function in holding executives to account. For simplicity, I treat these two functions together.

Other terms often mentioned in such classifications include deliberation –much of which takes place publicly – and legitimation, meaning all of parliaments’ functions help them generate broad public support for policy.

Practice

It is easy to see how the circumstances of COVID-19 have challenged some of these principles.

The threats to representation were pretty immediate and obvious. With limits on travel, requirements for social distancing, and heightened risks for people with certain health conditions, parliamentarians gathering from all over the country immediately became a problem. Some legislatures responded by limiting the number who could participate – with those decisions often taken by leaders and whips. Others moved their proceedings online. The UK House of Commons initially did the latter, but then rolled this back in a quite problematic way which breached principles of equal participation.

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Constitutional reform: then and now (1995-2020)

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In the latest blog celebrating the Constitution Unit’s 25th anniversary, human rights academic and advocate Francesca Klug recounts how aspects of the constitutional agenda of the mid-1990s were realised, and what lessons we can learn about how to entrench its achievements, prevent democratic backsliding and stop erosion of hard-won rights.

When I was at school, I learned nothing about the British constitution, but one thing I did absorb was this: although we do not have a written founding document, our invisible constitution was apparently uniquely successful and therefore inviolable. However, during the 1980s, I gradually became aware that there was something a bit odd about this perfect constitution. In other democracies, many of the controversial or unpopular measures introduced by Margaret Thatcher’s governments – such as the ‘poll tax’ and broadcasting and book bans – could be challenged in the courts. In the UK, however, there was nothing citizens could do to overturn such policies, except take to the streets to protest or wait up to five years for another election. 

This powerlessness and lack of accountability was a major driver behind the founding of Charter 88 in 1988, led by Anthony Barnett and Stewart Weir. I was lucky as a relatively young activist to be asked to join its council. We called for holistic change: a democratic second chamber, electoral reform, devolution, freedom of information and a bill of rights. And we had one major overall objective: we wanted the people of this country to have more power over the decisions which affected them; what in today’s money might be called ‘taking back control’. We sought this not for its own sake, but as a means of making our society fairer. 

It took a little time, but this message started to persuade people at the highest levels of the Labour Party. John Smith succeeded Neil Kinnock as Leader following the Conservatives’ 1992 general election victory and the following year he gave a landmark speech to Charter 88, entitled ‘A Citizens’ Democracy’. For the first time, he articulated a clear objective for wholesale constitutional reform. Its purpose, he said, was to ‘restore democracy to our people – for what we have in this country is not real democracy: it is elective dictatorship.’ The use of the term ‘elective dictatorship’ is interesting, as it partly echoed Lord Hailsham, a former Conservative Lord Chancellor, who had coined the phrase two decades earlier. Notably, in this speech Smith committed the Labour Party to the introduction of a human rights act based on the European Convention of Human Rights (ECHR), which turned 70 years old this month. 

John Smith died unexpectedly the following year, but Tony Blair, despite some scepticism, largely kept faith with his predecessor’s commitment to constitutional reform. The precise objectives articulated by Smith, however, seemed to wither away and the purpose of the proposed policies became more obscure. In particular, there was no unified narrative to link them together and no sense of what might come next. 

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