Public consultation on unification referendums on the island of Ireland.

alan.jfif (1)conor_kelly_500x625.jpg_resized.jpgchk_headshot500x625.jpg (1)The Constitution Unit is leading a Working Group on Unification Referendums on the Island of Ireland. This week, it launches a public consultation, seeking views from people in Northern Ireland on the issues it is considering. In this post, Alan Renwick, Conor Kelly, and Charlotte Kincaid outline the purposes of the group’s work and the kinds of questions that it is asking.

Readers can access the consultation survey by clicking here.

The Working Group on Unification Referendums on the Island of Ireland is examining how any future referendum on Northern Ireland’s constitutional future would best be run. Such a referendum – sometimes known as a ‘border poll’ – would decide (alongside a parallel process in the Republic of Ireland) whether Northern Ireland should remain part of the United Kingdom or become part of a united Ireland.

A referendum like this could occur in the future. Under the 1998 Belfast/Good Friday Agreement, the Secretary of State for Northern Ireland may call a poll at any time. He or she would be required to do so if at any time it appeared likely that a majority of those voting would back a united Ireland. Most of the evidence suggests that this is some way off. But there are also signs that the majority in favour of the existing Union may have weakened, and that trend may continue. 

Yet, despite the possibility of a referendum, almost no thinking has been done about what the process would involve. The Working Group is seeking to fill that important gap. It takes no view on whether a referendum should happen or what the outcome of such a vote should be. But we think that planning for a referendum is important. Some people are eager for a vote in the coming years and will therefore no doubt be keen to discuss it. Others, we realise, view the prospect with great trepidation, and may not wish to give the idea undue prominence. We fully respect that. But we hope that even these people will see the value of planning ahead, just in case. Holding a vote without thinking through the process carefully in advance could be very destabilising, to the detriment of people across Northern Ireland.  Continue reading

Five key questions about coronavirus and devolution

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The coronavirus is a once in a generation event that has required an almost unprecedented response from government at all levels, from Westminster to West Lothian. Akash Paun argues that it has raised five crucial questions about the politics of devolution at a time when efficient and effective intergovernmental relations are crucial. 

Coronavirus has hit all parts of the UK and has required a comprehensive response by government at all levels – central, devolved and local. The crisis has raised (at least!) five big questions about devolution, intergovernmental relations and the politics of the Union:

  • Does the crisis show that the UK and devolved governments can cooperate effectively?
  • To what extent does devolution enable policy divergence between the UK nations?
  • How is the crisis affecting the operation of the devolved institutions themselves?
  • How is the pandemic response being funded – and with what impact on devolution?
  • What might this period mean for wider constitutional debates and the Union?

It is too early to give a definitive answer to any of these questions. But developments over the past few months already point to some preliminary conclusions, as well as identifying important lines of investigation for future research.

The UK and devolved governments can work together – at least in a crisis

One important finding, as the Institute for Government (IfG) recently concluded, is that the UK and devolved governments have shown the ability to work together well at various points over the past three months. Given the many disputes over Brexit, the Union and other matters in recent years, and the underlying weaknesses of the UK’s system of intergovernmental relations, it was far from a foregone conclusion that the different administrations would be able to cooperate at all.

But credit should be given where it is due. In early March, the UK and devolved governments published a joint Coronavirus Action Plan – a rare sighting of a government policy paper that was co-branded by the four administrations. There was close working too on the Coronavirus Act, which was drafted with significant devolved input before being passed at Westminster with devolved consent under the Sewel Convention. And devolved leaders participated in meetings of the COBRA emergency committee throughout this period, helping to ensure that major announcements, not least the imposition of the lockdown in late March, were coordinated between the capitals. Continue reading

The Johnson government’s constitutional reform agenda: prospects and challenges

thumbnail_20190802_092917.jpgThe Conservative Party’s manifesto for the 2019 general election included a commitment to set up a Constitution, Democracy and Rights Commission (as discussed previously on this blog by Meg Russell and Alan Renwick) and engage in a wider programme of constitutional reform. In February, the Unit hosted an event to discuss the new government’s constitutional reform agenda: Sam Anderson summarises the main contributions. 

Page 48 of the Conservative manifesto for the 2019 general election committed to a wide range of constitutional reform proposals – including repeal of the Fixed-term Parliaments Act (FTPA), an ‘update’ of the Human Rights Act (HRA), and the creation of a ‘Constitution Democracy and Rights Commission’ to examine broader aspects of the constitution. On 4 February, the Constitution Unit held an event to discuss the implementation of this agenda, entitled ‘The Johnson government’s constitutional reform agenda: prospects and challenges. The panel consisted of two Conservatives: Lord Andrew Dunlop, a member of the House of Lords Constitution Committee and former Parliamentary Undersecretary of State for Scotland and Northern Ireland; and Chris White, a former Special Adviser to William Hague, Andrew Lansley and Patrick McLoughlin. Professor Meg Russell, Director of the Constitution Unit, chaired the event. The following is a summary of the main contributions. 

Lord Dunlop

Lord Dunlop suggested that the key question for the new government is what ‘taking back control’ means in constitutional terms. The years since the Scottish Independence referendum in 2014 have been incredibly rich for those interested in the constitution. We have seen a deadlocked parliament, an arguably ‘activist’ judiciary, and fracturing Union, whilst foundational concepts like parliamentary sovereignty, the separation of powers, and the rule of law have come under scrutiny. It would be wrong, however, to see the government’s manifesto commitments as simply a direct response to the political and constitutional crisis of last autumn. Brexit placed a number of areas of the constitution under strain, but for Dunlop, it is the long-term context that is key to explaining the proposals in the manifesto. In his opinion, the proposals are not about ‘settling scores’.

For a number of years, EU membership, the devolution settlements and the HRA have all to varying extents limited parliament’s law-making powers. For example, Lord Neuberger, former President of the Supreme Court, has pointed out the profound changes that the HRA has brought to the role of judges in relation to interpretation of statute law, and retired Supreme Court Justice Lord Sumption’s recent Reith Lectures have contributed to a long-running debate about the proper role of judges in a democracy. In Lord Dunlop’s view, the proposals on page 48 of the manifesto reflect the fact that Brexit has put additional pressure on an already strained constitution, and should therefore prompt us to consider whether the constitution is operating as it should.  Continue reading

The history behind Nicola Sturgeon’s call for a Claim of Right for Scotland

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Nicola Sturgeon has stated her intention to endorse a modern Claim of Right for Scotland, but there has been little discussion about the 1988 Claim that is the precedent for her new proposal. David Torrance describes the Claim’s history, and argues that it has meant different things at different times to various people.

Speaking in Edinburgh last week, First Minister Nicola Sturgeon said she intended to invite Scotland’s ‘elected representatives’ to ‘come together to endorse a modern Claim of Right for Scotland through a new Constitutional Convention’ to:

‘declare that it is for the Scottish Parliament to decide whether and when there should be an independence choice and build support for that principle amongst civic Scotland.’

The First Minister was referring to the 1988/89 Claim of Right, which argued for a Scottish Constitutional Convention. That Claim is much cited but little studied. This blog will look at three different uses of the Claim: devolutionist, nationalist and the ‘right to choose’.

Origins and publication

The impetus for the Claim of Right was the 1987 general election. The Campaign for a Scottish Assembly established a Constitutional Steering Committee (CSC) of ‘prominent Scots’ to make practical recommendations on persuading the UK government to devolve power. The idea of a 1689-like Claim probably came from a fringe group called ‘Scotland-UN’, which had submitted Scotland’s Claim of Right to Self-Determination to the United Nations in 1980.

Sir Robert Grieve, an eminent planner, led the cross-party CSC, which included Una Mackintosh (widow of the Labour MP and devolutionist John P Mackintosh), Judy Steel (a Liberal) and three prominent SNP figures: Isobel Lindsay, Neil MacCormick and Paul Henderson Scott. It was drafted by a retired civil servant called Jim Ross. Professor James Kellas called them ‘worthy Scots from the middle-class professions’.

Henderson Scott believed the final CSC report ‘was closer to the views of the SNP than of Labour’, with its talk of the Union as ‘a glaring anomaly’ and ‘a threat to the survival of a distinctive culture in Scotland’. Yet as the cultural historian Scott Hames has observed, the Claim ‘veers away from the consequences of its central argument’ and instead urges the creation of a constitutional convention ‘to draw up a scheme for a Scottish Assembly’. Continue reading

Do we need a written constitution?

image1.000.jpgPrior to the general election, several of the parties’ manifestos called for the creation of a codified constitution for the UK. In December, the Constitution Unit hosted an event to debate the merits and downsides of such an exercise. Harrison Shaylor summarises the discussion.

What did the 2019 Liberal Democrat election manifesto and the Brexit Party’s ‘Contract with the People’ (from the same election) have in common? Both advocate the need for a written constitution in the UK. So too did the Green Party manifesto, and that of the Alliance Party of Northern Ireland. Meg Russell took part in a discussion on a written constitution in The Briefing Room on Radio 4 in September, and on 28 November, the Constitution Unit held its own event entitled ‘Do we need a written constitution?’. Two distinguished law professors – Sionaidh Douglas-Scott of Queen Mary University of London and Nicholas Barber of the University of Oxford – set out the case for and against a written constitution, in a debate chaired by a former Unit Director, Professor Robert Hazell. What follows is a summary of the presentations made by each participant. 

The argument for a written constitution: Sionaidh Douglas-Scott

‘Someone, I haven’t been able to trace whom, once said: Constitution building is a bit like dentistry: there’s never a good time for it; no one does it for fun; but it’s sometimes necessary and, when it’s done right, it prevents greater pain in the future.’

Professor Douglas-Scott explained that a constitution delineates the relationships between the major institutions of state, such as the executive and the legislature, as well as between the state and its citizens. More abstractly, a constitution says something about legitimacy and power. How does the state exercise power? And when is it legitimate for it do so?

The UK is unusual in not having a written constitution, in the sense of not having the fundamental rules of the constitution codified in a single document. It is one of only a few democracies in the world which lacks one, alongside Israel and New Zealand. The reason for this is historical. Since 1688, Britain has not experienced a revolution or regime change – a ‘constitutional moment’ – like the American or the French Revolution, or the withdrawal of colonial rule. Rather, Britain’s constitution has evolved slowly over time under relative stability; it has never been deemed necessary to list the fundamental laws and principles underpinning the country’s polity. As the Constitution Unit website states: ‘What Britain has instead is an accumulation of various statutes, conventions, judicial decisions and treaties which collectively can be referred to as the British Constitution.’

This arrangement, Professor Douglas-Scott argued, is no longer adequate. The current constitution is deficient for three reasons: its lack of clarity; its failure to properly protect fundamental rights; and the inadequacy of the current devolution settlement. Continue reading

‘Taking the border out of politics’ – the Northern Ireland referendum of March 1973

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In 1973, the UK government organised the country’s first referendum, on the subject of whether or not Northern Ireland should remain part of the UK. Now, as Brexit and its potential consequences make another border poll look like an increasing possibility, David Torrance looks back on the poll, its background, and its later constitutional significance.

Introduction 

The first constitutional referendum in the history of the United Kingdom took place on 8 March 1973. It was held nearly four years after the beginning of ‘The Troubles’ – a sharp deterioration in the security and political situation in Northern Ireland. 

What became known as the ‘border poll’ (although it was also called a ‘referendum’ or ‘plebiscite’, no one could quite agree on terminology) emerged as a means by which to ‘take the border out of politics’, or so it was hoped. In discussions with the Government of Northern Ireland (NIG) on 22 March 1972, the UK government proposed transferring responsibility for law and order from Belfast to London, phasing out internment, and periodic plebiscites.

The last two were, in principle, acceptable to the NIG, but an erosion of its ‘transferred’ powers under the Government of Ireland Act 1920 was not. The Prime Minister of Northern Ireland (Brian Faulkner) and his Cabinet later resigned, and on 30 March the Parliament of Northern Ireland – known as ‘Stormont’ – was prorogued and Direct Rule from Westminster introduced for the first time since 1921.

The referendum announcement

Speaking in the Commons on 24 March 1972, Prime Minister Edward Heath said:

We… propose in due course to invite Parliament to provide for a system of regular plebiscites in Northern Ireland about the Border, the first to be held as soon as practicable in the near future and others at intervals of a substantial period of years thereafter.

In effect, Heath was proposing to transfer the principle of ‘consent’ from the prorogued Parliament of Northern Ireland (enshrined in the Ireland Act 1949) to its people, ‘the Border’ representing a proxy for a much broader constitutional question.  Continue reading

Deal or no deal, the UK government needs a new strategy for the Union

_MIK4650.cropped.114x133Almost seven months after the EU and UK agreed to extend the Article 50 process, a new Brexit deal has been agreed. Akash Paun argues that whether the new deal passes parliament or not, the Brexit process so far has demonstrated that the UK government needs to change its strategy for maintaining the cohesion of the Union.

In his first public statement as prime minister, Boris Johnson made two constitutional pledges that stand in tension with one another. On the one hand, he promised to strengthen the UK, which he described as ‘the awesome foursome that are incarnated in that red, white and blue flag, who together are so much more than the sum of their parts.’ But in the same speech, he reiterated his determination to take the UK out of the EU by 31 October ‘no ifs, no buts’ and, if necessary, no deal. Brexit has already strained relations between the UK and devolved governments. A no deal departure would make matters even worse, and would run directly counter to the PM’s ambitions to strengthen the Union.

The Scottish and Welsh governments strongly oppose leaving the EU without a deal. In a joint letter to the prime minister in July, the Scottish and Welsh first ministers argued that ‘it would be unconscionable for a UK government to contemplate a chaotic no deal exit and we urge you to reject this possibility clearly and unambiguously as soon as possible.’ The Scottish Parliament and Welsh Assembly have also explicitly voted against no deal. Continue reading

The Scottish Parliament at twenty

jim.johnston.jpg.pngIMG_20190801_195645.jpgThe Scottish Parliament is now two decades old, making it a good time to take stock of its performance and how it might seek to change its processes, behaviours and attitude following the political uncertainty of the last three years. Jim Johnston and James Mitchell have co-edited a new book, The Scottish Parliament at Twenty, which aims to answer these questions. Here, they outline how the Parliament has operated in its early years and where it might be going.

Just as the political, fiscal and economic environments have become more volatile in the twenty years since the Scottish Parliament was created, its powers have significantly increased, leaving Holyrood increasingly exposed to that volatility. Where previously it could shelter under the relative comfort of a block grant almost entirely funded through the Barnett formula, it is now much more exposed to the vagaries of economic growth, income tax receipts and demand for devolved welfare benefits. And all at the same time as dealing with the impact of Brexit. The fundamental question, therefore, is how the Parliament should respond to this increased exposure and capitalise on its new powers. 

The Parliament was not established to pursue a radically new policy programme, so much as to protect Scotland from any future Thatcher-like government. It would probably not even exist but for Margaret Thatcher. She was more successful in uniting a significant majority of Scots than any previous or (so far) subsequent politician, but that unity was based on opposition to Thatcher, her party and her policies. This opposition was then mobilised in support of a Scottish Parliament whose initial ‘logic’ was conservative, preserving well established policies and institutions and opposing innovation deemed to have been imposed on Scotland by London. But, despite this conservative reflex, commentators have focused on the extent to which the Parliament has gone its own way.  Continue reading

Why Northern Ireland can’t afford a ‘do or die’ Brexit

nick.wright.jpgBoris Johnson is demanding that the Withdrawal Agreement is scrapped and renegotiated, and is insisting that he won’t meet EU leaders until they agree to this. The major source of contention is the backstop, which guarantees an open border on the island of Ireland post-Brexit, but ties the UK to the EU’s Customs Union. In a new Brexit Insights paper, Nicholas Wright assesses the politics of the backstop and ‘no deal’, and what all this means for Northern Ireland. 

During his leadership campaign, Prime Minister Boris Johnson engaged in an increasingly shrill rhetorical arms race with his rival, Jeremy Hunt, over who will be toughest with the EU in delivering Brexit. In particular, his ire was focused on the hated ‘Irish backstop’ which has come to symbolise all that Brexiters loathe about the Withdrawal Agreement. Indeed, Mr Johnson has promised to remove this element of the deal, declaring that if the EU will not renegotiate, then the UK will leave on 31 October, ‘deal or no deal’, suggesting that the costs of exiting in such circumstances will be ‘vanishingly inexpensive if you prepare’. Such claims fly in the face of reality and nowhere can this be seen more clearly than in Northern Ireland. Indeed, it is here that the consequences of Brexit and the trade-offs implicit in its delivery are most starkly revealed.

Since the beginning of the Brexit process, the UK government has been trying to reconcile the ‘Irish Trilemma’: UK departure from the EU’s single market and customs union; an open border between Northern Ireland and the Republic; and no new trade or regulatory barriers between Northern Ireland and the rest of the UK. You can have any two, but a combination of all three is impossible. This matters because the 1998 Good Friday Agreement and all that has resulted from it were predicated on the open and invisible border and shared regulatory space that come with EU membership. These have underpinned efforts in Northern Ireland to chart a new pathway, not least by reducing the prominence and difficulty of complex questions around identity. Doing so has not been easy, something demonstrated by the collapse of power-sharing and suspension of the Assembly in Stormont. The prospect of changes to border arrangements – and particularly anything necessitating the re-establishment of any border infrastructure – therefore risks further undermining a fragile equilibrium that reflects Northern Ireland’s ‘relative peace but minimum reconciliation’. Continue reading