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

Monitor 67: Brexit blues

The latest issue of Monitor, the Constitution Unit’s regular newsletter, has been published today. The issue covers all of the major UK constitutional developments over the past four months, a period that has seen several rounds of Brexit talks, the introduction and second reading of the EU (Withdrawal) Bill, the publication of the Burns review on the size of the House of Lords, plus much else besides. The front page article is reproduced here. You can read the full issue at this link

The previous issue of Monitor was published just after the surprise result of the snap general election. The Prime Minister was back at the helm, but with a reduced number of MPs, and dependent on a confidence and supply arrangement with the Northern Ireland Democratic Unionist Party (DUP). We noted that the road ahead looked rocky.

So it has proved to be – though Theresa May remains in post, and the real parliamentary showdowns seem still to come. The Prime Minister has been dealt an exceptionally difficult hand – managing legislation on Brexit of unprecedented constitutional complexity, alongside the fractious negotiations with the EU, while leading a divided party in a House of Commons in which she has no partisan majority. Over the summer, and particularly during the party conference season, her leadership was regularly questioned, but must gain some stability from the fact that few would really want to be in her shoes. Meanwhile, rumours suggest that she has used the threat of a Boris Johnson premiership to coax other EU leaders to the negotiating table.

As discussed on pages 2–3, the official Brexit negotiations have made slow progress. Despite Theresa May’s attempted injection of momentum through her Florence speech in September, EU partners have not yet agreed to move on to ‘Phase II’ (i.e. post-Brexit trade arrangements), and a serious sticking point remains the so-called ‘divorce bill’. Partly as a consequence, the prospect of a ‘no deal’ outcome has increasingly been talked up. This is presented by some in the Conservative Party as a necessary negotiating strategy to get the EU-27 to give the UK what it wants, but others seem to view it with a degree of relish. Meanwhile, business groups appear to be increasingly concerned.

One thing that remains little-known is the state of public opinion, and how that may develop. While the June 2016 referendum came up with a Leave result, today’s question of what Leave should mean is a good deal more complex. As such, it is not readily suited to opinion polling. Here the results of the Citizens’ Assembly on Brexit, run by a team led from the Constitution Unit and funded by the ESRC (see page 15), can shed some useful light. Assembly members, who included more Leave than Remain supporters, expressed a preference for the kind of bespoke trade deal that the government says it is seeking. But members were very clear that if this cannot be achieved, a ‘no deal’ outcome was undesirable. They preferred that the UK remained a member of the Single Market and Customs Union to this. Politicians should reflect on such findings carefully, because boxing themselves in to no deal could prove electorally dangerous.

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Assessing the durability of the Conservative minority government: lessons from New Zealand

Minority government is rare in the UK, but relatively common in many other parliamentary democracies. In this post Jonathan Boston considers the prospects for Theresa May’s government. He draws on the experience in New Zealand, where since becoming the norm in the late 1990s minority governments have proved durable. However, he argues that present circumstances in the UK mean that May’s current government is very unlikely to last a full term.

Minority governments in Britain are relatively rare. But this is not the case in many other parliamentary democracies, especially those with proportional representation voting systems.

During the post-war period, about a third of governments in advanced democracies lacked a parliamentary majority. They were thus dependent on one or more supporting parties, often through a negotiated agreement on matters of confidence and supply. Such agreements vary significantly in policy specificity, consultative arrangements and expected duration.

Minority government in New Zealand can be effective and durable

In New Zealand, there were no post-war minority governments until 1996 when the mixed member proportional (MMP) electoral system was introduced. The impact was immediate and significant: no party has won an overall parliamentary majority since then and during most of these years the party or parties represented in the cabinet lacked a majority.

It has, however, developed some novel governance arrangements to cope with the political exigencies of MMP. In most parliamentary democracies, members of parties supporting a minority government do not hold ministerial office. In New Zealand, by contrast, it is common for only one party to be represented in the cabinet; this party, in turn, is supported by several minor parties, each of which holds a ministerial post outside the cabinet.

Collectively, the government and support parties have a parliamentary majority, but ministers outside the cabinet are not bound by collective cabinet responsibility unless specifically agreed between the parties. There is, in effect, ‘selective collective responsibility’, with ministers able to advance different views publicly on important matters of public policy.

These arrangements have proved both effective and durable: the 1999 Labour-led Government survived three terms in office and the current National-led Government, formed in 2008, is close to completing its third term and will likely retain office after the election in September.

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Monitor 66: The most unexpected election

The latest issue of Monitor, the Constitution Unit’s regular newsletter, has been published today. The issue covers all of the major UK constitutional developments over the past five months, a period that has included the unexpected general election result, the confidence and supply agreement between the Conservatives and DUP that followed, Nicola Sturgeon’s announcement of plans for a second referendum (later ‘reset’) and the beginning of Brexit negotiations, plus much else besides. The front page article is reproduced here. You can read the full issue at this link

Current British politics is rarely dull. Added to the unexpected result in the 2016 Brexit referendum and the subsequent Miller case regarding parliament’s role in the process (not to mention the Conservatives’ unexpected outright majority in 2015), we now have our second hung parliament in seven years, a resurgent Corbyn-led Labour Party, and a previously popular Prime Minister who appears to be on the ropes. All this following a general election that few expected, and that some even thought pretty much impossible under the 2011 Fixed-term Parliaments Act.

Following the successful passage of the European Union (Notification of Withdrawal) Act, authorising the trigger of Article 50 (see page 4), Theresa May surprised almost everybody on 18 April by proposing a general election for 8 June. Having started with what looked like an unassailable lead in the polls, in an election where she sought to strengthen her hand in parliament during the Brexit negotiations, she managed instead to lose her slender Commons majority and was forced into a confidence and supply arrangement with Northern Ireland’s Democratic Unionist Party (DUP) (see page 6). Her authority within her own government is much diminished, and ministers have openly squabbled with each other over Brexit priorities. Meanwhile, Labour’s unexpected gains leave its previously fractious parliamentary party appearing suddenly united behind Jeremy Corbyn.

The results were also a blow to Nicola Sturgeon, whose Scottish National Party (SNP) lost twelve seats to the Conservatives, six to Labour and three to the Liberal Democrats. Conservative leader Ruth Davidson (who spoke at a packed Constitution Unit event during the campaign) in contrast made a strong case for the Union and gained further stature and negotiating power. Sturgeon acknowledged on 27 June that she would have to put the campaign for a second Scottish independence referendum on hold for the time being (see page 11).

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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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