Clause 11: the Schleswig-Holstein question of the EU Withdrawal Bill

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Today, the House of Lords will continue its scrutiny of the EU (Withdrawal) Bill by discussing Clause 11, which provides that the power to amend retained EU law in areas currently devolved to Edinburgh, Cardiff and Belfast would transfer from Brussels to Westminster, rather than to the relevant devolved body. Jim Gallagher discusses how the UK and Scottish governments are at odds over this issue and offers some potential solutions to a dispute that has now been referred to the UK Supreme Court. 

The current dispute between the Scottish and UK governments is increasingly coming to resemble the Schleswig-Holstein question, in that almost no-one really understands this technical, legal issue, but it has produced some apocalyptic rhetoric. Nicola Sturgeon has said it could ‘demolish’ devolution. Having competing pieces of legislation seeking to preserve EU law after Brexit is said to be a ‘constitutional crisis’. This hyperbole favours alliteration over analysis, but there are some real constitutional issues at stake here, obscured by political noise and intergovernmental argument.

The nub of the argument is quite simple: both sides agree Holyrood’s powers will increase after Brexit, but disagree about when and how. Both governments do have a point. The UK government, overwhelmed by Brexit, want to keep control of some Brussels policies until orderly replacements are settled. The Scottish government stands on the principle that anything affecting Holyrood’s powers requires its specific consent. Reasonable people could do a deal here. The Welsh government already have, and the issue is now being debated in the House of Lords at Report stage of the Brexit Bill. It is worth taking stock of why it matters.

‘Taking back control’ – To Edinburgh, Cardiff and (maybe) Belfast

Back in July 2016, once the first shock of the referendum result was over, I pointed out that Brexit should increase devolved powers, and so in a sense make the UK more federal in nature. Powers ‘taken back’ from Brussels should be distributed amongst the various legislatures of the UK according to the allocation made in the devolution settlements. This will make the devolved administrations more powerful in two ways. Obviously, they will no longer be constrained by EU law, so there would be no more EU law challenges on Scotland’s minimum alcohol pricing. Less obviously, since most EU competences deal with things managed better over large areas, they will work more smoothly at a UK level than as a four nations patchwork. Hence the (shared) desire for ‘UK frameworks’. Given devolution of the policy issues, the devolved administrations will have an effective veto, or at least a strong influence, over these frameworks. During one debate in the House of Lords, Lord Forsyth of Drumlean called that ‘the tail wagging the dog’. Continue reading

Why the UK holds referendums: a look at past practice

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Since the first referendum in the UK above the local level was held in 1973, there have been three UK-wide referendums and ten referendums covering parts of the UK. In order to inform its recommendations about the circumstances in which referendums should be held, the Independent Commission on Referendums is examining the circumstances in which UK referendums have been held. In this post, Jess Sargeant explores the political history of referendums in the UK.

1973 Northern Irish Border Poll

The first non-local referendum in the UK, the 1973 Northern Irish border poll, followed the sharp deterioration in the security and political situation in the preceding years. When the UK government imposed direct rule, it pledged to hold a referendum on Northern Ireland’s future status within the UK. The purpose was to demonstrate public support for the Union, which would act as baseline for future negotiations. Although the referendum was largely boycotted by the Catholic population, the overwhelming vote (98.9%) in favour of remaining part of the UK was used legitimise the continuation of the constitutional status quo.

1975 European Economic Community membership referendum

The UK’s first national referendum was held just two years later, in 1975, on membership of the European Economic Community (EEC). The UK had joined the EEC in 1973. In opposition, Labour was deeply divided on this. A referendum was first proposed in 1970 by Tony Benn, who opposed EEC membership. The idea gained little traction at the time, but future Prime Minister James Callaghan described it as ‘a rubber life-raft into which the whole party may one day have to climb’. Labour adopted the policy of putting EEC membership to a public vote in 1973, and this occurred after the party’s return to power in 1974. Continue reading

Monitor 68: A constitution in flux

The latest issue of Monitor, the Constitution Unit’s regular newsletter, was published today. The issue covers all of the major UK constitutional developments over the past four months, a period that has seen the EU (Withdrawal) Bill pass from the Commons to the Lords; the failure of talks in Northern Ireland; and a significant government reshuffle. Abroad, Ireland is considering a permanent constitutional change and Japan has seen a constitutional first as its current emperor confirmed he is to abdicate. This post is the opening article from Monitor 68. The full edition can be found on our website. 

The UK is experiencing a period of deep constitutional uncertainty. In at least four key areas, structures of power and governance are in flux. Screenshot_20180308.210141 (1)

The first of these, of course, is the nature of the UK’s future relationship with the European Union, to which the Brexit negotiations will shortly turn. The degree to which the UK continues to pool its sovereignty with other European countries depends on the form of that relationship: how far, and on what issues, the UK continues to adhere to EU rules, align closely with them, or follow its own separate path. Theresa May set out her most detailed proposals yet in a speech at Mansion House on 2 March, advocating close alignment outside the structures of the EU Single Market and Customs Union. On 7 March, the President of the European Council, Donald Tusk, published draft guidelines for the EU’s position. As before, this emphasises ‘that the four freedoms of the Single Market are indivisible and that there can be no “cherry picking.”’ What deal will emerge from the negotiations is entirely unclear.

The government’s preferred path will face stiff resistance in parliament too. In late February Jeremy Corbyn signalled that Labour wants a UK–EU customs union (an issue also central to the conclusions reached by the Citizens’ Assembly on Brexit). Consequently the government now risks defeat on an amendment to the Trade Bill pursuing the same objective, tabled by Conservative backbencher Anna Soubry. Beyond that, an amendment to the EU (Withdrawal) Bill passed in the House of Commons in December guarantees that the deal between the UK and the EU agreed through the Brexit negotiations will need to be endorsed by an Act of Parliament in the UK. Brexit’s opponents are increasingly vocal and organised, and occupy a strong position in Westminster. The odds remain that Brexit will happen, but that isn’t guaranteed. Continue reading

What an English Parliament might look like – and the challenges of giving it proper consideration

meg_russell (1)Jack.000Constitution Unit researchers have been working on a detailed project on Options for an English Parliament, whose final report has just been published. In this post, report authors Meg Russell and Jack Sheldon reflect on the key design questions associated with the two main models for an English Parliament, and how proposals for such a body relate to wider political questions about the UK’s territorial future.

The idea of an English Parliament has a long history, but has been particularly actively lobbied for over the 20 years since the creation of devolved legislatures in Scotland, Wales and Northern Ireland. Originally an idea mostly taken up by politicians on the right, the proposal has recently begun attracting greater interest also from those on the political left. Supporters seek closer equity with the existing devolved areas, including more explicit representation of English interests, accountability for England-wide policy-making, the airing of English ‘voice’, and a forum where English identity can flourish. Yet some serious concerns have also been raised about the prospect of an English Parliament, most centrally fears that an elected body representing 85% of the UK population would become too dominant, stoking territorial tensions and destabilising the UK Union itself.

Starting with these aspirations and concerns, we have examined the available evidence from UK and overseas experience to explore the options for an English Parliament – on a Nuffield Foundation-funded project, which has just produced its final report. This sought neither to advocate for or against establishment of an English Parliament, but to tease out the kind of design decisions needed, and their likely implications. We identified that two primary models have been proposed for an English Parliament – which we call the separately elected and dual mandate models – and focus our analysis primarily on these. Proponents of both have set out relatively little detail about what in practice would be involved. But if an English Parliament is to be viable, some kind of blueprint is clearly required. We hope that our analysis will help to illuminate this debate, and provide useful insights for both supporters and sceptics of the idea of an English Parliament. Our conclusions relate not just to the institution itself, but to the knock-on effects it could have on UK-wide institutions and on UK territorial politics as a whole.

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A ‘dual mandate’ English Parliament: some key questions of institutional design

meg_russell (1)Jack.000Almost 20 years after the creation of the devolved governments in Scotland, Wales and Northern Ireland, England is the only country of the United Kingdom without its own devolved executive and legislative body. Meg Russell and Jack Sheldon offer their view on whether or not a dual mandate English Parliament is desirable or if it has the proper characteristics to be considered a parliament at all. 

Calls for establishment of an English Parliament have been made for years, particularly following Labour’s devolution in the 1990s to Scotland, Wales and Northern Ireland. Initially such proposals were largely confined to the right of politics, and appeared a relatively fringe interest. But in the aftermath of the Scottish independence referendum, and the new powers devolved to the Scottish Parliament, proposals have also begun to be heard from the political left. Nonetheless, advocates have rarely elaborated on their proposals in detail, and there are many unresolved questions relating to the likely powers, functions, structure and composition of such a body. Since autumn 2016, the Constitution Unit has been working on a research project exploring the options, and a detailed report is due to be published shortly. This post will concentrate primarily on the key institutional questions raised by what is known as the ‘dual mandate’ model for an English Parliament, which some proponents suggest could be implemented as an incremental next step from ‘English votes for English laws’ (EVEL). We ask whether this model for an English Parliament is as innocuous as it looks, and indeed whether what it proposes is a parliament at all.

Models for an English Parliament

The most instinctively obvious model for an English Parliament is to create a completely new body, elected separately from the House of Commons, to mirror the legislatures in Scotland, Wales and Northern Ireland. Variants of this separately-elected model have been proposed by such figures as David DavisFrank Field and Paul Nuttall. It is also favoured by the Campaign for an English Parliament, founded in 1998. Establishing such a body would be a big decision, entailing significant political upheaval and cost. The idea has many opponents, including experts such as Vernon Bogdanor and Adam Tomkins. A key concern is that a new elected body representing 85% of the UK population would, in the words of the House of Lords Constitution Committee, “introduce a destabilising asymmetry of power”. For all of these reasons, adoption of this proposal continues to appear politically unlikely.

The second model is what we call the dual mandate model, which is presented as a more incremental change. Here Westminster MPs representing English constituencies would meet as an English Parliament at certain times. Proponents see this as building on the existing EVEL procedures, creating a far clearer delineation at Westminster between England-only and UK business (and thus dealing once-and-for-all with the famous ‘West Lothian question’). The most prominent supporter has been John Redwood, but similar arrangements have also been proposed by MP Andrew Rosindell, Welsh AM David Melding, journalist Simon Heffer and writers from the Adam Smith Institute think tank. Nonetheless, this model is rejected by the Campaign for an English Parliament as ‘English Parliament lite’. Continue reading

Options for an English Parliament: policy powers and financial arrangements

Ongoing Constitution Unit research is exploring options for an English Parliament. Two of the most fundamental questions concern what policy powers such a body would have and financial arrangements. Jack Sheldon suggests that an English Parliament would be likely to have policy and fiscal powers resembling those of the Scottish Parliament, and that a new funding formula would be required to cover the costs of devolved services. These developments would have major implications not only for England but also for the other parts of the UK.

Since last autumn Professor Meg Russell and I have been working on a research project exploring the options for an English Parliament. Although there have been various calls over the last 20 years to establish such a body, how might it actually work in practice? Two of the most fundamental questions, which have major implications for other aspects of institutional design, concern what policy powers an English Parliament would have and what kind of financial arrangements would be possible. This blog post focuses on these questions.

What English Parliament supporters have said

English Parliament supporters emphasise restoring equality among the UK’s nations, in light of what they see as the unfairness of present devolution arrangements. It is thus unsurprising that they have often set the powers of the Scottish Parliament as a benchmark. The Campaign for an English Parliament (CEP) state prominently on their website that they campaign for an institution ‘with powers at least as great as those of Scotland’. This demand has been echoed by MPs who are in favour, including David Davis, Frank Field and John Redwood. In the aftermath of the Scottish independence referendum Redwood wrote that ‘As we seek to put into legislation what Gordon Brown called Home Rule for Scotland we must do the same for England’.

To the extent that they have addressed finance, advocates of an English Parliament have focused on criticism of the Barnett Formula, which provides more generous per capita government spending in Scotland than in England. Eddie Bone of the CEP has linked the continued use of the formula to ‘closures of A&E departments and council services across England’. Frank Field has likewise been highly critical of the formula, saying that ‘it is totally unacceptable that the poor in [his] constituency should be less well supported than the poor in Scottish constituencies’. Proponents have said less about what sort of financial arrangements they envisage following an English Parliament’s establishment.

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The report of the Scottish Parliamentary Reform Commission: Westminster as a model for reforming Holyrood?

The Scottish Parliament’s Commission on Parliamentary Reform, established by the Presiding Officer last year, reported in June. Its recommendations include that committee conveners should be elected by the whole Parliament, changes to First Minister’s Questions, the extension of the legislative process from three stages to five and the establishment of a new backbench committee. Ruxandra Serban summarises the report and notes that several of the most substantive recommendations would bring the Scottish Parliament’s procedures closer to those of the House of Commons.

The Commission on Parliamentary Reform was established on 26 October 2016 by the Presiding Officer of the Scottish Parliament, Ken Macintosh MSP. It was chaired by John McCormick, a former Controller of BBC Scotland and UK Electoral Commissioner with special responsibility for Scotland, and included 10 other members: five from civic society appointed by the Presiding Officer, and one nominated by each political party represented in the Scottish Parliament.

The Commission was appointed to review the evolution of the Scottish Parliament in the 18 years since its founding, and to assess its capacity to deal with the additional sets of responsibilities devolved through the Scotland Act 2016 and expected to result from the Brexit process. The Commission convened between November 2016 and June 2017, and sought evidence through meetings and public events, written submissions, oral evidence sessions and an online survey.

The report published on 20 June 2017 makes reference to the set of principles proposed by the Consultative Steering Group (CSG) in 1998 as the key benchmark against which to measure the effectiveness of the Scottish Parliament, and upon which to base suggestions for reform. The CSG was set up in 1997 by the UK government to consider institutional design options for the Scottish Parliament. Its report set out four principles to inform the functioning of the new parliament: power-sharing; accountability; open and accessible participation; and equal opportunities. Since then, some questions have been raised about whether the Scottish Parliament has truly managed to embody the principles of ‘new politics’ envisaged by the CSG, or whether it is in fact a ‘Westminster model’ parliament (notably here and here).

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