A cross-party committee of the Privy Council should be established to seek consensus on the terms of Brexit

Following last week’s general election result Theresa May is likely to face severe difficulty in negotiating Brexit successfully unless she seeks cross-party consensus. In this post Jim Gallagher suggests that consensus could be achieved through a special committee of the Privy Council, the membership of which would reflect the House of Commons and also contain representatives of the devolved legislatures.

It will be impossible for a minority government with a weak Prime Minister to negotiate Brexit successfully, against a ticking clock, if it deals with the issue in the normal way of British politics. Government cannot formulate policy privately, then seek to sell it to the House of Commons while talking fitfully to the devolved administrations. Theresa May’s administration can be held to ransom, if not by the DUP, by factions in her own party. The opposition will sense blood and might be keener to bring down the government than do a European deal. The devolved will stand on their rights to consent. So even if she can negotiate some agreement with Brussels, she will fail to secure a domestic legislative consensus and the deal will fail.

The government has already used up two of the 24 months allowed for this negotiation and succeeded only in weakening its position. As a result, the UK is faces a high risk of crashing out the EU in an unmanaged way.

Leaving the EU presents the British state with an unprecedented problem. It must be handled in an unprecedented way. Other countries might consider a government of national unity to give the negotiators authority to commit to a deal. We seem too partisan for that, but some senior figures in both government and opposition parties are already saying openly that a cross-party consensus will need to be built on this question. To build such a consensus, however, is anything but straightforward and will require a degree of trust and information sharing that is wholly alien to our normal way of doing government business – to which Westminster and Whitehall will default unless something radically different is devised.

If government tries to develop policy behind closed doors, keeping the devolved at arms-length and negotiating tactically secure a day-to-day majority in parliament, it will almost inevitably fail. There is certainly very little chance of completing the process in time for the agreement to be settled and ratified in Europe as well as here.

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Managing the new parliament: some challenges for Theresa May’s minority government

The unexpected election result leaves the Conservatives seeking to establish a minority government, with support from the Democratic Unionist Party’s ten MPs. With fewer than half the seats in the House of Commons, and barely more than half when adding the DUP, Theresa May’s new government will face many additional challenges in parliament. Meg Russell explores some of the clearest examples.

Following weeks of speculation about the general election result, few were contemplating the prospect of a minority government led by Theresa May. The Prime Minister proposed the election in the clear expectation of an increased House of Commons majority, citing (in a rather exaggerated manner) difficulties in parliament. Instead she now doesn’t have a majority at all. With one seat still to declare, the Conservatives are on 318 in a 650-number House. Combined others (excluding seven Sinn Féin, who do not take their seats), have 324. May’s government is hence liable to be outnumbered without relying on the support of the 10 DUP members, with whom she has opened talks.

The Prime Minister’s initial statement gave little detail of the form that the relationship with the DUP is likely to take, but it is assumed that she will seek a single-party minority government rather than a formal coalition. The Constitution Unit’s December 2009 report Making Minority Government Work suddenly looks like essential reading, for politicians and politics-watchers alike. As it sets out, there are various options in a situation where a government lacks a single-party majority. One is a formal ‘confidence and supply’ arrangement, whereby another party (or parties) pledge to support the governing party (or parties) in confidence votes and on essential funding decisions; another is for the government to simply negotiate support for policies on a case-by-case basis. A coalition is the most formalised arrangement, with both parties signed up to a programme and liable to both have ministers in the government.

Our report emphasised (as repeated more recently on this blog by one of its authors) that minority governments are not unusual in other democracies, and can be relatively stable. Nonetheless, particularly in the UK context where majority governments are the norm, such an arrangement will present a number of fresh (or enhanced) challenges for the government in managing its relationship with parliament. These may affect all kinds of areas of policy; but the Prime Minister will be perhaps most troubled about their impact on the Brexit process.

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The Irish government is pursuing Northern Ireland’s interests more actively than the UK government

Northern Ireland has been on the sidelines of the UK general election campaign, despite continuing political deadlock and the major unresolved questions resulting from Brexit. Brian Walker suggests that this reflects a general disengagement with Northern Ireland from the May government, which has taken the view that the North’s political issues are for their politicians to sort out. The Irish government can now be said to be pursuing Northern Ireland’s interests more actively.

Northern Ireland is accustomed to being tucked away on the sidelines of a UK general election. While it is part of the constitutional nation, it is barely part of the political nation, if that is defined by electing members of the UK government. (Scotland look out!). Its electoral cycle and political interests can fundamentally clash with those of the government at Westminster.  ‘Westminster will always put its own interests first, even if ours are about life and death’, is a familiar refrain. The snap 1974 ‘Who Governs Britain’ general election did for the first fragile power sharing Executive within weeks of its formation when voters returned a full house of MPs bent on bringing it down.  Power sharing did not return for a quarter of a century.

The collapse of the 2016 Assembly

Power sharing suddenly collapsed in the New Year under the impact of the Remain referendum result locally, which put the minority coalition partner Sinn Fein on the winning side and provided them with a test run for a bigger challenge. Devolved government remains in limbo, at least until after the snap general election on 8th June. In Ireland many nationalists rate Brexit as creating the biggest crisis since partition almost a century ago. Unionists and the British government are more circumspect.

Before the EU referendum, the Assembly had seemed to be going quite well. It had survived two terms with deadlocks but avoided collapse. Nationalists seemed broadly content with the constitutional status quo. The Sinn Féin vote had dipped and the DUP were comfortably ahead by ten out of 108 seats. A Fresh Start agreement brokered by the British and Irish governments at the end of 2015 ended a deadlock over welfare cuts that had lasted a year. It even led to behind the scenes talks between the DUP and Sinn Féin to settle a new style budget, as they campaigned for the Assembly election of 2016.

But the combination of a regional Remain majority, a bitter row over holding the DUP First Minster Arlene Foster responsible for a botched renewables heating scheme and the fatal illness of deputy First Minister Martin McGuinness created enough combustible material for Sinn Féin to pull out of the Assembly early this year, obliging the British government to call another election. The campaign unleashed a flood of resentment at what republicans regarded as DUP majoritarian behaviour and lack of respect for Irish culture. In particular, they pointed to the failure of unionists and the British government to implement totemic equality measures like the Northern Ireland Bill of Rights provided for in the Good Friday Agreement and the Irish Language Act provided for in the St Andrew’s Agreement.

Unionists as usual saw Sinn Féin as exaggerating minor grievances to advance the republican cause but were thrown on the defensive over resisting Sinn Féin’s demand for Foster to be suspended from office. A nationalist ‘surge’ in turnout in the Assembly election that followed in March, bluntly to ‘stick it to Arlene Foster’, brought Sinn Féin within two seats of replacing her as First Minister, as the overall nationalist result overturned the unionist bloc majority for the first time. The Sinn Féin boycott won the endorsement of their voters.   Northern Ireland had turned a chapter. The Westminster election on 8 June will be another sectarian contest to gain advantage in the existential question of Irish unity, ahead of the interparty talks on the Assembly’s future which it is hoped will resume immediately afterwards.

The political scene – changing utterly?

There are profound doubts that the talks can succeed anytime soon. It remains a sticking point for Sinn Féin for Foster not to return to office until a public inquiry rules on her conduct in about a year’s time. Moreover, when the prospect of a hard border began to emerge, Sinn Féin quickly saw the political possibilities. A re-erected border would not only be a throwback to an unlamented past; it offers a potential new route to a united Ireland. Perhaps the time has come for Sinn Féin to abandon the frustrations of power sharing in a coalition of opposites, and build on the nationalist-dominated Remain majority to create momentum for a united Ireland within the EU, launched by a border poll, followed if necessary by another poll in seven years time as the Good Friday Agreement permits?

‘She doesn’t care’

The May government’s response to the Assembly breakdown is strikingly different from the close involvement of the Blair years, when peace through paramilitary disarmament and disbandment was the main objective. Without such a big issue to compel her attention, Theresa May has followed the Cameron precedent and has remained immune to appeals from local politicians and civil society to intervene personally. ‘Leave it to themselves to sort out’ is the mantra. This UK government displays less sensitivity to the Northern Ireland implications of key policy issues than the old days of the peace process. For instance, motivated it would seem by the Prime Minister’s frustrations over deporting Abu Qatada and a visceral dislike of European courts, the Conservative manifesto looks forward to a review of the Human Rights Act when the Brexit process  has concluded, even though the HRA is entrenched in the Good Friday Agreement and any change is strongly opposed by Northern nationalists and her Irish government partners.

May’s former junior minister at the Home Office, Northern Ireland Secretary James Brokenshire, paid more attention to his party than his ministerial interests when he spoke out in favour of halting prosecutions of soldiers for actions long ago, giving support to a Conservative backbench campaign first sparked by what happened in Iraq and Afghanistan rather than Northern Ireland. It therefore came as no surprise to local opinion when Sinn Féin rejected him as a mediator in interparty talks to get the Assembly going again. Brokenshire has remained on the sidelines, his role largely limited to extending time limits for the fitful and so far unproductive talks without an active chair, an agreed agenda or any obvious sense of direction. His main leverage is to threaten another Assembly election in what would be Northern Ireland voters’ twelfth trip to the polls since the Westminster election of 2010. In fact creeping direct rule restored by primary legislation is the more likely option if the talks drag on much beyond the summer Orange marching season.

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Is the Fixed-term Parliaments Act a dead letter?

The ease with which Theresa May was able to secure an early dissolution last week has led to suggestions that the Fixed-term Parliaments Act 2011 serves no useful purpose and should be scrapped. Drawing on wider evidence of how fixed-term parliaments legislation works in other countries, Robert Hazell argues that there is a danger that it is being judged prematurely, on the basis of a single episode. Future circumstances in which a Prime Minister seeks a dissolution may be different, and in these cases the Fixed-term Parliaments Act may serve as more of a constraint.

On 19 April the House of Commons voted by 533 votes to 13 to support the Prime Minister’s motion for an early general election, easily surpassing the two-thirds threshold required for dissolution under the Fixed-term Parliaments Act 2011. In the preceding debate Conservative MPs such as Sir Edward Leigh and Jacob Rees-Mogg argued that the Fixed Term Parliaments Act served no useful purpose, and should be scrapped; while others such as Peter Bone said that it demonstrated the Act was working. Which of them is right? Was this a vindication of the Fixed-term Parliaments Act, in allowing a degree of flexibility, with the formal decision to hold an early election now being made by parliament, and not the executive? Or did it show that the Act is an emperor without clothes, as Sir Edward Leigh put it, because no opposition party can ever be seen to vote against the prospect of an early election?

There is a risk of the Fixed-term Parliaments Act being judged prematurely, on the basis of a single episode. This blog draws on a wider evidence base of how fixed term parliaments legislation works in other countries, set out in our 2010 report on fixed-term parliaments.  Almost all European countries have fixed terms, and in the Westminster world fixed-terms have recently been introduced in Canada, as well as most of the Canadian provinces, and most of the Australian states; only the Australian federal parliament, New Zealand and Ireland have no fixed-term laws, but in Australia and New Zealand the maximum term is three years. These countries show varying degrees of flexibility, with differing safety valves for extraordinary dissolution.

Mid-term dissolution is the most crucial aspect of any fixed term parliament law, balancing the need for government stability against democratic accountability. Key considerations are how and by whom dissolution may be initiated, what threshold must be reached, and any limitations on the process. The coalition government in 2010 initially proposed a 55 per cent threshold for dissolution, but that proposal was widely misunderstood to apply to no confidence motions as well. In introducing the Fixed-term Parliaments Bill, Nick Clegg set the record straight, explaining that no confidence motions would still require a simple majority; but raised the bar for government initiated dissolutions to two thirds of all MPs, based on the two thirds requirement in the devolution legislation. The justification for a higher threshold for government-initiated dissolution is that it should make it impossible for governments to call an early election without significant cross-party support.

But such a dual threshold is rare in other parliaments. Figure 1 sets out the threshold requirements for dissolution and confidence motions elsewhere in Europe.  In all cases the threshold for a no confidence motion is a simple or absolute majority (an absolute majority being of the total number of MPs, rather than of those voting). In those cases where dissolution can be triggered by a parliamentary vote, the threshold is the same

Figure 1. Source: K. Strøm et al, Delegation and Accountability in Parliamentary Democracy (Oxford: Oxford University Press, 2006), Table 4.12.

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Now that Article 50 has been triggered, reality will start to bite

Following the triggering of Article 50, the honeymoon period is over for Theresa May. Oliver Patel outlines the main challenges which the UK faces in the upcoming negotiations. He argues that securing a deal within the two period will be hard enough. Securing a deal which pleases everyone – or anyone at all – will be virtually impossible.

Theresa May has had an easy ride so far. Up until now, she has only had to worry about pleasing her core domestic audiences. Now that Article 50 has been triggered, however, reality will start to bite. The two-year road to Brexit is fraught with uncertainty, obstacles and challenges. Two stand out above all else. First, given the complexity of the task, two years is an extremely short length of time in which to negotiate and finalise the UK’s withdrawal. Second, getting a deal which satisfies everyone – the British public, the EU and its 27 member states – will be virtually impossible. Theresa May needs to negotiate with 27 other countries, each with their own interests and priorities, who arguably have the upper hand in the talks. Her task is an unenviable one.

Is two years enough?

The triggering of Article 50 marks the beginning of a two-year process in which the UK and the EU must negotiate and conclude a withdrawal agreement. From May onwards, after the European Council have agreed upon official negotiating guidelines, the negotiations can begin in earnest. If no deal is reached within two years, the UK leaves without an agreement (unless the EU unanimously decides to extend the negotiations). Two years is a remarkably short length of time in which to complete what is routinely described as the most complex task undertaken by the British government since World War II. EU leaders have made it clear that they want the negotiations to end in October 2018, to allow time for any withdrawal agreement to be reviewed and ratified. This means that the UK could have no more than 18 months to negotiate its exit.

This short timeframe makes the entire process particularly challenging. Sorting out the practical aspects of the divorce will be complex in the extreme. Resolving thorny issues such as the Irish border, the status of EU nationals in the UK and UK nationals in the EU, the future participation of the UK in EU regulatory bodies, and the financial liabilities which the UK owes the EU, will be highly time-consuming, not least due to the complexity and contestability of the issues involved.

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The government’s Brexit white paper: a missed opportunity

Nick-WrightOn 2 February the government published its white paper on Brexit, which was intended to provide further detail regarding the overall aims the government would be pursuing once Article 50 has been triggered. Nick Wright assesses this document, concluding that whilst it does expand on some of Theresa May’s key pledges set out in the Lancaster House speech in several areas it remains unclear exactly what the government is seeking. One example of this is the idea of a UK-EU strategic partnership, which is proposed in the white paper but not expanded on. Overall, it is hard not to see the white paper as a missed opportunity.

The government’s Brexit white paper, published in the aftermath of the House of Commons vote on the second reading of the ‘Brexit’ bill, received a mixed response.

Following Theresa May’s Lancaster House speech in January, the white paper was intended to provide further detail regarding the overall aims the government would be pursuing once Article 50 has been triggered. However, although it does expand to some degree on the Prime Minister’s 12 key pledges, in several important areas it remains unclear precisely what the government is seeking.

This is particularly true on the question of the UK’s post-Brexit relationship with the EU. Here, the white paper makes a potentially significant proposal: to establish a strategic partnership, something Brexit Secretary David Davis also underlined in his statement to the House of Commons. It does not, though, offer any specifics on what such a relationship might look like.

What makes this frustrating is that whilst embryonic and lacking in detail, this is nonetheless an idea deserving of attention. As a foreign policy instrument, strategic partnerships have been an important feature of EU efforts to structure its relationships with key international partners. If properly developed, therefore, a UK-EU strategic partnership could offer the basis for the kind of positive vision for the post-Brexit future the Prime Minister articulated as one of her objectives.

Why not, then, use this as a formal framework for the new UK-EU relationship, enabling co-operation in certain key and clearly defined policy areas to be maintained? And why not use the opportunity of a white paper to signal this agenda boldly and clearly?

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Following the Supreme Court ruling, what happens next?

robert_hazell (1)me 2015 (large)

Following today’s Supreme Court judgement, the focus of attention shifts back to parliament.  How long will it take for parliament to pass the necessary legislation? How likely is it that the legislation will be amended? Robert Hazell and Alan Renwick assess the implications for the Brexit timetable, and the government’s negotiating strategy.

What will happen to the government’s timetable?

The government have confirmed that they will introduce a short bill, probably just one or two clauses, which it will seek to pass as a matter of urgency. Bills have occasionally been passed through parliament in a few days, or even a few hours. But that can only happen if both chambers recognise the urgency, and support the bill. Crucially, the government would need to get majority support for a timetabling motion in the House of Commons to expedite the process. That might not be forthcoming in a House where three quarters of MPs voted for Remain. (In 2012 Nick Clegg had to abandon his Lords Reform bill after the government lost the timetabling motion following a big Conservative rebellion).

In the House of Lords, the government has no majority, and no control over time. The Lords Constitution Committee and the Lords EU Committee will both want to scrutinise the bill and its implications. The Lords will not block or wreck the bill, but they will want to give it proper scrutiny; especially if they think the scrutiny in the Commons has been inadequate.

Can the bill be amended?

In November government sources suggested the bill would be ‘bombproof’. Parliamentary officials say that is a fantasy. All sorts of ingenious amendments can be tabled, on process as well as substance: requiring a white paper to be published setting out the government’s negotiating position; seeking a second referendum on the negotiated terms; requiring the government to acknowledge that Article 50 notification is revocable, etc. Debate risks exposing continuing splits within both the Conservative and the Labour parties. Because the referendum specified nothing about what Brexit means, the battle continues between Brexiteers, who mostly support a hard Brexit, and Remainers hoping for a soft Brexit. Meanwhile Labour remains split on how to respond to the referendum outcome – to respect the will of the 52 per cent (who make up a majority in constituencies such as Stoke-on-Trent Central, where the forthcoming by-election will be hard fought), or speak up for the majority of Labour voters, who backed Remain. Speaking in parliament after the judgement, Labour’s Shadow Brexit Secretary, Keir Starmer, indicated that Labour would seek to amend the Article 50 legislation to require a white paper on the government’s plans, stipulate mechanisms for parliamentary scrutiny of the negotiations, and hold a ‘meaningful’ vote on the final deal. Legislation gives all groups in parliament multiple opportunities to table amendments or extract promises or impose conditions on the government during its passage.

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