Tag Archives: centre for constitutional change

The next PM’s territorial challenges

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jack_sheldon.1The 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.

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Intergovernmental relations: a blueprint for reform

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downloadSince the Brexit referendum in 2016, the case for an overhaul of the management of intergovernmental relations has become much stronger. Jack Sheldon explains that in a new report, he and his colleagues have advanced the first detailed proposals for reform of the existing arrangements. These include formalising and restructuring the current ad hoc system, implementing a method of consensus decision-making, and increasing the transparency of the system.

It is widely agreed that the ad hoc and under-developed arrangements for relations between the UK government and the devolved governments in Scotland, Wales and Northern Ireland are in urgent need of an overhaul. Even before the vote to leave the EU, several parliamentary committees, leading politicians and a number of constitutional experts called for reform. Since 2016 the case has only become stronger. Brexit-related ‘IGR’ has been marked by sharp disagreement over policy and process, against the background of low trust between governments. And it is envisaged that IGR will assume greater importance in the coming years, given the need to implement, govern and review ‘common frameworks’ in devolved areas currently covered by EU law.

In a new report Professor Nicola McEwen, Professor Michael Kenny, Dr Coree Brown Swan and I advance proposals for reform of the Joint Ministerial Committee (JMC) structure – the primary forum within which formal IGR takes place. While the need to renew the JMC has frequently been recognised in recent years, few detailed proposals have been made. We seek to fill this gap, setting out 27 conclusions and recommendations. Our report is also distinctive in drawing heavily on experience of IGR in five broadly comparable multi-level political systems – Australia, Belgium, Canada, Italy and Spain. We were invited to produce the report by officials in the UK and devolved governments who are currently working on a review of IGR commissioned by the JMC itself, and hope that our conclusions will help to shape thinking as the review proceeds.

Principles of IGR

Existing principles underpinning intergovernmental relations, as articulated in the Memorandum of Understanding on devolution, are broadly stated and prone to being interpreted very differently by the various parties involved. For example, what amounts to ‘good’ communication and what is ‘practicable’ with respect to information exchange are matters of (often diverging) judgement. Continue reading →

Intergovernmental relations and the English question: options for reform

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downloadA week after the state of intergovernmental relations (IGR) in the UK was highlighted by the UK government’s law officers standing in opposition to their devolved counterparts in the UK Supreme Court, the Public Administration and Constitutional Affairs Committee published a report on improving IGR after Brexit. Jack Sheldon discusses the methods by which England could gain distinct representation — something it currently lacks — in a new IGR system.

At the end of July the House of Commons Public Administration and Constitutional Affairs Committee (PACAC) published Devolution and Exiting the EU: reconciling differences and building strong relationships. This is an impressive report, containing original recommendations on a range of aspects of the UK’s territorial arrangements.

It is particularly notable that the MPs chose to devote substantial sections of the report to the English question. These focus, in particular, on the often overlooked issue of England’s representation in intergovernmental relations (IGR) forums such as the Joint Ministerial Committee (JMC). PACAC’s attention to this reflects a growing appreciation, including in official circles, of the salience of questions about how England is recognised and represented within the UK’s changing systems of governance. It is also timely, with a JMC-commissioned review of IGR machinery currently in progress ahead of the proposed negotiation of post-Brexit frameworks in areas such as agriculture, fisheries and environmental protection.

The issue

Since the JMC was established in 1999, it – and its sub-committees – have been composed of ministers from the UK government and the devolved governments in Scotland, Wales and Northern Ireland. PACAC highlights the fact that this leaves the UK government wearing ‘two hats’, as representative of both England and the UK as a whole.

This dual role has caused multiple concerns. Many in the devolved governments fear that the UK government will favour England. In evidence to PACAC Carwyn Jones, the Welsh First Minister, suggested he could not have confidence that fishing quotas would be allocated fairly if DEFRA was the English representative in negotiations, whilst also being ultimately responsible for making the allocation. Meanwhile, regional and local interests in England feel overlooked. Andy Street, the West Midlands ‘metro mayor’, was among those who told the committee that the English regions’ voices were not heard as loudly in Whitehall as those of Scotland, Wales and Northern Ireland. Finally, some have argued that under current arrangements England is denied a national voice, resulting in the devolved areas securing preferential treatment – especially in relation to finance. Continue reading →

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

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me-2015-large-e1485255919145.jpgTwo 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 →