Five key questions about coronavirus and devolution

_MIK4650.cropped.114x133

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

What does the election result mean for territorial representation in the House of Commons?

jack_sheldon.1We have a new parliament, a new majority government and a significant number of new MPs. As Jack Sheldon explains, the distribution of MPs by party is not even across the UK, which could have a significant impact on how the Commons handles key matters related to Brexit and the devolved administrations. 

The general election result has underlined that there are substantially different patterns of electoral competition in each of the four territories that comprise the United Kingdom. For the third consecutive election, a different party secured the most seats and votes in each of England, Scotland, Wales and Northern Ireland. Moreover, the large majority secured by Boris Johnson’s Conservatives relied overwhelmingly on an exceptionally strong performance in England – of the 365 seats won by the Conservatives, 345 are in England.

Screenshot_20191220-170327_Word

The territorial divergence that the UK’s politics has experienced over recent decades has important implications not just for election outcomes, but for the substantive activity of representation performed by MPs in the House of Commons. MPs often seek to act as ‘territorial representatives’, focusing on the specific concerns of their nation or region. This has not so far received much attention from academics, a gap which my PhD project is seeking to fill by examining the parliamentary behaviour of MPs from Scotland, Wales, Northern Ireland and two English counties, Cornwall and Yorkshire, between 1992 and 2019. Early findings suggest that substantive territorial representation is particularly prevalent among members of nationalist parties and other parties that run candidates only in one territory, but that it is also a relatively common feature of the parliamentary contributions of many members of the UK-wide parties, at least in more recent parliaments. It can take various forms including representation of the material interests, public opinion and culture and/or identity of the territory in question, or of sub-state political institutions. With crucial questions pertaining to the future of the Union set to be up for discussion, how can we expect MPs from the different parts of the UK to go about representing their territories in the new parliament?

England 

Despite being drawn so overwhelmingly from English constituencies, there are few indications that the enlarged group of Conservative MPs will explicitly focus on England as a unit. While the Conservatives introduced English votes for English laws in 2015 and some prominent Conservative MPs have called for an English Parliament in the past, the ‘West Lothian question’ has slipped down the political agenda over the past few years as Brexit has emerged as the dominant issue for the right. That seems unlikely to change now, despite some interest from external commentators such as Nick Timothy, Theresa May’s former special adviser. Conservative interest in the constitutional English question was always motivatived to a significant extent by concern that a Labour-led government might be able to force through policies applying only to England even though a majority of English MPs were opposed, as happened on a few occasions in the New Labour years. With the Conservatives now having a large majority overall, the political incentive to focus on the English question just isn’t there at the moment. Continue reading

Enacting the manifesto? Labour’s pledges and the reality of a hung parliament

professor_hazell_2000x2500_1.jpgmeg_russell_2000x2500.jpgMedia coverage in this election has been dominated by the Conservatives and Labour, and their competing policy plans. But a key difference between the parties is that, while a Conservative majority government is clearly possible based on the polls, a Labour majority government is not. Hence a Labour-led government would need to negotiate its policy with other parties, which would soften its stance. Robert Hazell and Meg Russell reflect on the lack of coverage of these questions, and what a Labour-led government would actually look like – in terms of personalities, policies and style.

Consistent opinion poll evidence during the general election campaign suggests that there are two possible outcomes: a majority Conservative government led by Boris Johnson, or a hung parliament. In the event of the latter, Johnson might still remain Prime Minister, but he has few allies – even having alienated Northern Ireland’s DUP. So a hung parliament might well result in a government led by Labour, even if the Conservatives are the largest party. But one thing is clear: nobody is really expecting a Labour majority government. 

Consequently, particularly as the polls have failed to shift into majority Labour government territory during the campaign, it is strange that so little attention has been given to the question of what a Labour-led government might actually deliver in policy terms. To navigate policy through a hung parliament this would need to be accepted by other parties. In some areas – notably the commitment to a referendum on Brexit – the parties agree; but in other areas there may be less agreement. So whilst significant attention has been paid to the radicalism of Labour’s manifesto, a hung parliament – which might lead to a minority Labour government, or less likely (given statements from the Liberal Democrats and SNP) a formal coalition – would inevitably result in some dilution. As noted in the Constitution Unit’s 2009 report on minority government, hung parliaments ‘[entail] a greater degree of compromise and concession than leaders of governments at Westminster are used to’.

Thus focus on Labour’s economic policy – such as its tax or nationalisation plans – might usefully have been tempered by journalists asking questions of the other parties about the extent to which they would accept such plans, or how they might be softened as a result of negotiation. In a country where hung parliaments are more frequent, debate about the likely compromises between parties would be far more upfront during the campaign. Instead, the UK’s legacy of single-party majority government (notwithstanding the fact that this situation has applied for just two of the last nine years) has led to parties and journalists alike avoiding such questions. This, in turn, risks leaving the public ill-informed about the real prospects post-election. 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 next PM’s territorial challenges

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 HuntBoris JohnsonEsther 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.

Continue reading

A second Scottish independence referendum without a s.30 Order? A legal question that demands a political answer

In this blog Stephen Tierney argues that the legality of a unilateral referendum organised by the Scottish Parliament is a grey area. He also offers personal reflections from his experience as a parliamentary adviser at the time of the 2014 referendum and contends that a referendum held without an agreed process would have been damaging then and would be damaging now. It is incumbent upon both governments to ensure that a political solution to the current dispute is achieved and that, in particular, such a divisive issue is not left to the courts to settle. 

The Scottish Parliament today concludes its debate on whether to request from the UK parliament a ‘s.30 Order’ under the Scotland Act 1998. This would provide unequivocal authority for the Scottish Parliament to hold a second independence referendum. Westminster is likely to refuse this request for the time being at least, raising the question of whether the Scottish Parliament can legislate to hold a referendum without such consent.

In 2012 I argued that there was a plausible case to be made that the current powers of the Scottish Parliament do indeed allow it to legislate on the subject of an independence referendum; a view shared by several colleagues. The argument was that a consultative exercise, asking the electorate if they favoured an independent Scotland, could be legally permissible. Crucial to the legality of such a referendum, however, would also be its legal inconsequentiality; it would not bind the UK government to give effect to a pro-independence outcome.

I still consider this argument to be valid; the relevant devolved powers of the Scottish Parliament have not changed since that time. But I went on to serve as Constitutional Adviser to the Scottish Parliament Referendum Bill Committee which helped shape the bills (here and here) which regulated the 2014 referendum. What became clear to me was that, regardless of whether one was a Yes or a No voter, it was far better in terms of fostering a conducive environment for debate that a referendum, without the consent of the UK parliament, was not attempted. The fact that the 2014 referendum was the product of the Edinburgh Agreement between the Scottish and UK governments is central to how commentators now look upon that referendum as a valid and deliberative, if not uncontentious, exercise in popular decision-making.

In this blog I will briefly set out the zone of legal uncertainty, one which does suggest that the Scottish Parliament’s powers in this area are potentially broader than is often claimed. My main goal, however, is to make a plea for political restraint by both governments in recognition that this is fundamentally an issue of politics and not of law, and that in the interests of a healthy, democratic political process, it is incumbent upon the two governments not to allow an uncertain area of law to become a political football.

I would emphasise that this is not a call for unilateral self-restraint by the Scottish government and Scottish Parliament; both sides must work to ensure that this matter does not end up before the courts with potentially disastrous consequences for the reputation of the UK’s Supreme Court and the health of our democracy.

Continue reading

A second independence referendum in Scotland: the legal issues

First Minister Nicola Sturgeon yesterday declared the Scottish government’s intention to hold a second referendum on independence by spring 2019. In this post Stephen Tierney discusses the steps that have to be gone through before this is realised. He suggests that although a referendum is not inevitable the Scottish government are not bluffing about it – if, as seems likely, it can gain a majority in the Scottish Parliament to request a s. 30 Order, and can convince Westminster to grant this, then the path will be set for a referendum process that could see Scotland leave the UK just as the UK leaves the EU.

Scottish First Minister Nicola Sturgeon yesterday announced the Scottish government’s intention to hold a second referendum on independence between the autumn of 2018 and the spring of 2019. The move comes ahead of the start of Brexit negotiations under Article 50 of the Treaty of European Union, expected to be triggered by the end of the month. The next two years are set to be consumed by two parallel processes that will see the UK leave the EU and could also see Scotland leave the UK in an effort to remain within the EU.

Can the Scottish Parliament hold a referendum without the consent of Westminster?

Whether the Scottish Parliament can unilaterally hold an ‘advisory’ referendum on this issue has never been finally resolved. But it seems clear that the Scottish government does not propose to test this issue; instead it will seek the consent of Westminster to a so-called s. 30 Order, thereby ensuring that the UK government will have to accept the referendum result.

A s. 30 Order would involve a temporary transfer of power from the UK parliament to the Scottish Parliament to allow the referendum to go ahead, along similar lines to the 2014 process. The Scottish government indicated its intention to go down this route in its white paper, ‘Consultation on a Draft Referendum Bill’ published in October last year, and this was also confirmed by the First Minister today when she stated that she will ask the Scottish Parliament next week for permission to request a s. 30 order.

Continue reading