Beyond Brexit: Towards a British Constitution

vb_image_70x90Brexit is a major constitutional change. It creates considerable constitutional uncertainty, but also opportunity. It could prove Britain’s constitutional moment. Vernon Bogdanor argues that just as joining the EU fundamentally altered the UK constitution, so Brexit could, by exposing the very nakedness of Britain’s uncodified arrangements, prove a catalyst for a written constitution.

During the period of membership of the European Communities/European Union, the UK was subject to a written or codified constitution, which was entrenched. Brexit is a process rare if not unique in the modern world, involving as it does disengagement from a codified to an uncodified system. It is just possible indeed that Brexit will lead to a codified constitution for the United Kingdom that would bring us into line with virtually every other democracy in the modern world.

At a seminar at King’s College, London shortly after the 2016 EU referendum, Takis Tridimas, a professor of European Law at King’s said that the result represented the most significant constitutional event in the UK since the restoration of the monarchy in 1660, since it showed that on the issue of Europe, the sovereignty of the people trumped the sovereignty of Parliament. Of course, from a legal point of view, the referendum was merely advisory, but the government committed itself to respecting the result and the outcome was seen by the majority of MPs as decisive. Since June 2016, therefore, both government and parliament have been enacting a policy to which they are opposed. That is a situation unprecedented in our long constitutional history. Europe, therefore, has been responsible for the introduction of a new concept into the UK constitution, the sovereignty of the people. On this issue, the people have in effect become a third chamber of Parliament, issuing instructions to the other two. The sovereignty of Parliament is now being constrained not by Brussels, but by the people.

The effects of the European Communities Act on the UK constitution

The main constitutional consequence of our EU membership was to restrict the sovereignty of parliament. Parliamentary sovereignty must be distinguished from national sovereignty, with which it is often confused. National sovereignty is engaged whenever a country signs a treaty. It is not an absolute, it can be pooled or shared with other countries, and it is a matter of political judgement how far it should in fact be shared. But parliamentary sovereignty – the notion that Parliament can enact any law it chooses – is not like that at all. It is an absolute. One either has it or one does not. One can no more be a qualified sovereign than one can be a qualified virgin. Continue reading

Leaving the European Union, leaving the Palace of Westminster: Brexit and the Restoration and Renewal Programme

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A year after the House of Lords backed a major refurbishment of the Palace of Westminster, Alexandra Meakin discusses the relationship between the UK’s upcoming departure from the EU and the plans for MPs and peers to temporarily move out of their current home.

Anna Soubry: ‘We have to grasp this, do the right thing, and – I cannot believe I am going to say this – but in this instance, in supporting amendment (b), absolutely everybody vote leave.’

Over the past few months parliamentary proceedings have taken centre stage in our nation’s consciousness. The legislative and political machinations surrounding the UK’s planned exit from the European Union have turned the Palace of Westminster into a theatre offering endless drama and occasional farce. Indeed, the wider area around the Palace has been absorbed into the set: the pro and anti-Brexit protests in Parliament Square; the broadcasters’ gazebo village on College Green; and even the steps outside St Stephen’s entrance, which hosted an impromptu press conference. The audience following every scene, however, couldn’t fail to observe the scaffolding covering the set, the external sign of a dilapidated building, where the infrastructure is decades past its expected lifespan. Alongside the preparations for departing the EU, MPs and peers are also planning for a further departure: leaving the Palace of Westminster to enable a major refurbishment programme.

After decades of neglect, the scale of the problem inside Parliament was outlined in a 2012 report, which noted ‘if the Palace were not a listed building of the highest heritage value, its owners would probably be advised to demolish and rebuild’. On receipt of the report the governing bodies in the Commons and Lords agreed that ‘doing nothing was not an option’. They ruled out the construction of a new parliamentary building, and committed instead to further analysis of the options for repairs, and specifically whether the work could be carried out while both Houses continued to sit in the Palace. Continue reading

Why Gordon Brown’s Brexit plan might be the best available option

picture.744.1437133902Following the government’s defeat in the meaningful vote on Tuesday, former Prime Minister Gordon Brown has outlined a possible way forward for Brexit, which would involve a significant postponement of exit day and might also include a second referendum. Jim Gallagher explains why he thinks this might be the most sensible course of action.

With parliament paralysed, the country deeply divided, and trust in political institutions eroded by the aftermath of the Brexit referendum, it is easy to conclude that there is no way through the political and perhaps the economic chaos which faces the UK.

These problems feed off one another. The deadlock in parliament stokes up cynicism and polarises opinion in the country even more. Even if  Westminster compromise could somehow be cooked up, the lesson of Theresa May’s deal-making is that getting a sustainable compromise is almost impossible in the face of such deep divisions.

Voters could be forgiven for concluding that the British political system is fundamentally broken when it cannot deal with the main issue of the day. They will be right, unless we do something radically different, and something which addresses all (and not just one) of the issues. That is the attraction of the ideas put forward yesterday by former Prime Minister Gordon Brown. Continue reading

The House of Commons and the Brexit deal: A veto player or a driver of policy?

pastedgraphic-1-e1494926560214With parliament set to vote on the government’s Brexit deal today, there is much speculation about what will happen if it is rejected. Here, former Clerk of Committees Andrew Kennon analyses the potential scenarios, including whether or not the House of Commons could end up running the country directly.

A key concern for the House of Commons when voting on the proposed deal with the European Union will be not only the merits of the agreement itself, but what happens if it is defeated. In theory, parliament – and in particular the House of Commons – is the ultimate source of constitutional authority within the UK system. But, in this particular circumstance, if MPs reject what is on offer, will they be able to take the initiative and impose a different course of action, or will they simply have to wait for the government to act?

The key problem for MPs wanting to implement other solutions to the Brexit deal is time – not just 29 March but debating time on the floor of the House. The government has complete control of the business and time of the House – with the exception of specific time set aside for the opposition and backbench business. Furthermore, any solution which requires legislation could only get through parliament with the government’s support.

But is it possible to contemplate the House taking the initiative in finding a solution to Brexit? If the government’s deal does not pass in the House on 15 January, might the government really say ‘we want to hear what the House thinks of the various options’?

An ‘All-Options’ debate?

At this point many MPs will want – and the public might expect – a debate leading to a vote on a whole range of options. In procedural terms, there is a clear precedent from 2003 when the House voted on a variety of options for the composition of a reformed House of Lords – though the salutary lesson from that experience is that each option was rejected. One group of MPs will be solidly opposed to opening up the options like this: those who oppose the government’s deal and want a no-deal exit. Continue reading

Could an ‘indicative vote’ break the Brexit logjam?

albert_weale (1)An indicative vote on the government’s Brexit deal has been suggested as a means of determining which of the options available to parliament has the best chance of securing the support of the House of Commons. In this post, Albert Weale examines how an indicative vote process would work, and whether or not it offers a workable solution to what appears to be a parliamentary impasse.

Pressure is growing for an indicative vote in the Commons to break the Brexit logjam. Such a vote would allow MPs to vote on a number of alternatives to the government’s ‘deal’, as laid out in the Withdrawal Agreement announced in November. The purpose of such a vote would be to see whether there was significant support in the Commons for each of the specified alternatives. A similar exercise was tried in 2003 when the then Labour government was seeking support for reform of the House of Lords, and in particular what balance of elected or appointed members a reformed upper chamber should contain. It did not work then, but could it work in the case of Brexit? Answering this question depends on three things: how many options are voted on, how the votes are counted, and the extent to which MPs engage in strategic voting. All three elements interact in complex ways.

To understand the basic logic, consider a simplified version of the various options that are likely to be proposed. With no abstentions, a majority on a motion in the Commons requires 320 votes to pass. In Figure 1, I have shown five possible motions that could be put to an indicative vote. Other things being equal, the more alternatives there are, the harder it is to obtain a majority for any one of them. Continue reading

The Constitution Unit blog in 2018: a year in review

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2018 has been an interesting year for the UK constitution, its institutions and those involved in studying or working within them. As the year draws to a close, blog editor Dave Busfield-Birch offers a roundup of the most popular blogs of the year, as well as a look at the reach of the blog through the lens of its readership statistics. 

Obviously, Brexit has made this a very interesting time to work in political science, and the blog has benefited both in terms of increased general interest as a result, but also because there are niche topics being discussed in public now that would have generated little interest in other years. Few, for example, would have predicted in May 2016 that whether or not a motion in the House of Commons was amendable would become a hot political topic.

Below are our most popular blogs from the past year, as well as two personal selections from me, at the end of my first twelve months as blog editor.

Editor’s pick

Gendered Vulnerability’ and representation in United States politics by Jeffrey Lazarus and Amy Steigerwalt.

This was obviously a tough decision, but if you were to ask me for my favourite post of the year, this would be my instinctive choice. Jeffrey Lazarus and Amy Steigerwalt discuss their new book, Gendered Vulnerability: How Women Work Harder to Stay in Office, which argues that women’s perception of a more difficult electoral landscape leads them to adopt distinct, and more constituent-oriented, legislative strategies than their male counterparts. It is a fascinating insight into the challenges faced by women in running for, securing and retaining office. A similar blog on the UK experience, entitled Strategies for Success, was written by Leah Culhane in November. Continue reading