Constitutional reform: then and now (1995-2020)

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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Five years of ‘EVEL’

In the wake of the devolution settlements of the Blair years, political pressure to answer the ‘West Lothian Question’ persisted. In 2015, the proposed answer was ‘English Votes for English Laws (or EVEL). Today, on its fifth anniversary, Daniel Gover and Michael Kenny assess how EVEL has worked, during one of the most volatile political periods in living memory.

On 23rd October 2015, the ‘English Votes for English Laws’ (or EVEL) procedures came into force in the House of Commons. Introduced by David Cameron in the aftermath of the Scottish independence referendum, these new rules were designed as an answer to the notorious ‘West Lothian Question’ – the late Tam Dalyell’s resonant enquiry about why Scottish, Welsh and Northern Irish MPs should continue to be able to vote on matters that only affected England after devolution, while MPs in England were not able to reciprocate in devolved areas.

When EVEL was introduced, the procedures were sharply criticised by opponents. For some, the reform would not only be logistically difficult to implement – likely to be ‘incomprehensible’ to MPs and the public alike – but would also threaten the UK’s constitutional makeup. In particular, it was argued that EVEL would establish ‘two classes of MP’ at Westminster, undermining the ability of non-English MPs to represent their constituents’ interests. Others, meanwhile, criticised the procedures as too tame, and falling short of providing adequate representation to England.

The five-year anniversary provides an opportune moment to review how this contentious reform has fared in practice. Yet the wider territorial politics of the UK have also undergone significant changes in the intervening period. The questions to which these complicated rules were a response have become ever more pressing, but whether EVEL can provide a sustainable response to the increasingly fraught question of English devolution is increasingly doubtful.

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Choosing a Prime Minister: their exits and their entrances

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Seventeen of the Prime Ministers to take office since 1900 left office for reasons other than defeat at a general election. In this blogpost, Rodney Brazier, author of the recently published Choosing a Prime Minister, reflects on how those Prime Ministers have secured and surrendered the keys to Number 10, and the Queen’s role in their appointment.

It’s unlikely that Boris Johnson spends much time thinking about the next election. Thanks largely to him the government obtained an 80-seat Commons majority at the polls just over six months ago, and each member of his Cabinet gave pledges of personal loyalty before getting their jobs. What could possibly go wrong? But if any of his close advisers were to read my book Choosing a Prime Minister then brows might furrow. The book notes that 17 of the two-dozen individuals who have occupied Number 10 since 1900 were forced to leave without any push from the voters. Illness or old age, revolts in the governing party, loss of the confidence of the House of Commons, or personal political blunders all contributed to that high total. Indeed, three of Johnson’s four immediate predecessors (Tony Blair, David Cameron and Theresa May) quit without the electorate’s help. Ill health and party coups were the main, but not at all the only, causes of all those 17 exits. Johnson himself had a brush with death in March. I would bet good money against the present Prime Minister leading the Conservatives into the next general election.  Continue reading

Brexit and parliament: where did it all go wrong?

meg_russell_2000x2500.jpgParliamentary arguments over Brexit may now feel far behind us, but the bitterness of those arguments has left scars on our politics. Meg Russell examines four factors which contributed to the parliamentary ‘perfect storm’ over Brexit, concluding that ‘parliament’ largely got the blame for divisions inside the Conservative Party. This was fuelled by the referendum, minority government and the inability of parliamentary rules to accommodate a minority situation. The populist anti-parliamentary rhetoric which resulted was potentially damaging, with implications for the current Covid-19 crisis, when public trust in political decision-making is essential.

Amidst the current Covid-19 crisis, last year’s Brexit clashes already feel a long time ago. But at the time, they pushed Britain’s politics and constitution to their limits. Parliament was frequently at the heart of these conflicts – with angry headlines suggesting that parliamentarians were seeking to ‘block Brexit’, and branding them ‘wreckers’ or ‘saboteurs’. Twice questions of parliament’s proper role in relation to government ended up in the Supreme Court. Boris Johnson sought a lengthy prorogation of parliament, after which the Attorney General told MPs that they had ‘no moral right to sit’. How on earth did the UK, traditionally the most parliamentary of all democracies, get into such a mess? I dissect this question in a newly-published paper, ‘Brexit and Parliament: The Anatomy of a Perfect Storm’, in the journal Parliamentary Affairs. This post summarises the article’s key arguments. The full version is freely available to read online.

I suggest that four key political and constitutional features, all unusual in the UK context, contributed to this ‘perfect storm’. It was accompanied by a rise in populist and anti-parliamentary rhetoric – of a kind which would be destabilising and dangerous in any democracy, but particularly one based on a core principle of parliamentary sovereignty – as returned to at the end of this post. The four factors were as follows:

The referendum

As charted by the Independent Commission on Referendums, referendum use has grown in UK politics, but can sit awkwardly with traditional parliamentary sovereignty. Arguments for referendums on matters concerning EU powers were made over a long period (somewhat ironically) on the basis of protecting that very sovereignty. The 2016 EU referendum – eventually conceded by David Cameron, under pressure from Conservative Eurosceptics and UKIP – was very unusual, in two important ways. First, it was what the House of Commons Public Administration and Constitutional Affairs Committee (chaired by senior Brexit supporter Bernard Jenkin) criticised as a ‘bluff-call’ referendum: where the government’s purpose was not to seek approval for a change that it supported, but to shut down its opponents’ demands. Second, the referendum was held on a broad proposition (to leave the EU), rather than a detailed prospectus. Hence when the result came in, and was not the one the Prime Minister or most MPs (even on the Conservative benches at that time) wanted, parliament was left to decide how to put it into effect. Such circumstances generated clear tensions between parliamentary and popular sovereignty. Continue reading

Ten things you need to know about a hung parliament

professor_hazell_2000x2500_1.jpgimage1.000.jpg.pngWe know there will be an election on 12 December, but the outcome, in terms of parliamentary seats and who will form the next government, remains uncertain. Robert Hazell and Harrison Shaylor answer some of the key questions about what happens if the election creates another hung parliament.

With an increasingly volatile electorate, and uncertain forecasts in the polls, it is possible the 2019 election will result in another hung parliament. Although bookmakers currently have a Conservative majority as comfortably the most likely election result, and the Conservatives are currently polling around 11 points ahead of Labour, a hung parliament is by no means out of the question. It would be the third hung parliament in four general elections. This explains what lessons can be learned from our previous experience of hung parliaments at Westminster and around the world. It addresses questions such as how a new government is formed, how long formation of that government will take, what kinds of government might emerge, and what the most likely outcomes are.

How common are hung parliaments in other countries?

In most democracies across the world, single party majority governments are the exception. Whereas the ‘first-past-the-post’ (FPTP) voting system used in the UK has had the tendency to encourage adversarial two-party politics and majority government, this is far from a default setting. Proportional representation tends almost always to produce coalitions: many countries in Europe currently have a coalition government.

Recent years have shown that, even in countries using FPTP, hung parliaments can occur quite frequently. In Canada, whose parliament uses the same electoral system as Westminster, there were 10 minority governments in the 20th century. There have already been four since 2000, including the incumbent minority government led by Justin Trudeau, formed after the Liberals lost their majority in the October 2019 federal election.

What is the experience of hung parliaments at Westminster?

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Westminster has more experience of hung parliaments than is generally recognised. There were 20 governments in Westminster in the 20th century: four were coalitions, and six were minority governments. But single party majority governments dominated after the Second World War. The 2010 coalition government was the first since 1945 and the product of the first hung parliament in 36 years. Since 2010, however, two out of three general elections have produced hung parliaments (and the fact that David Cameron’s Conservatives succeeded in obtaining an absolute majority in 2015 was a surprise). Continue reading