Tag Archives: UK constitution

Scotland’s Shifting Politics of the Covid-19 Crisis

Image © Scottish Parliamentary Corporate Body (Licence terms)

by Dr Kirsty Hughes
Director, Scottish Centre on European Relations

20th April 2020

As the Covid-19 crisis continues, the UK may be heading for one of the worst outcomes in terms of deaths across Europe. Criticism is rightly mounting of the UK government’s handling of the crisis, not least of the fatally lost weeks before lockdown on 23 March, and the inadequacy of testing capacity and of PPE supplies for the NHS, care workers and other front-line workers.

Yet the UK politics of this mis-managed crisis are curious. With health devolved, and considerable coordination taking place between England, Northern Ireland, Scotland and Wales, there has until now been rather little suggestion that any of the UK’s four nations could have taken a substantially different approach – albeit Nicola Sturgeon said last week Scotland might not take an identical approach on exiting from the lockdown.

But, so far, the growing criticism of the UK’s approach has been mostly targeted at the UK government, rather than asking whether the devolved administrations could and should have done something differently – and earlier – in the crucial early days of March (and also in February too).

Many Smaller European States Did Better

Impact so far has varied across the UK with its total of 16,060 deaths as of 19-20 April (a figure that mostly excludes care home deaths). England has been the worst hit by corona deaths, with 257 deaths per million of population, then Wales – 184 deaths per million, Scotland – 166 deaths per million, and Northern Ireland – 103 deaths per million. Many factors lie behind these differences (and much analysis will be done in the months ahead of that). London is and was, of course, a hotspot. And Scotland was a few days behind England in the spread of the virus. But overall the four nations of the UK were following the same, inadequate strategy.

In comparison, across Europe, countries are at different stages of dealing with the crisis – and have adopted different approaches not least different timings of lockdown, and different amounts of testing of their populations. But Scotland’s total of deaths so far does not compare well to many similarly-sized European states (with all the provisos about comparability of data and different stages of the spread of the corona virus).

Scotland, up to now, has fared worse than Ireland which has 124 deaths per million of population. More striking still are the Nordics: Norway has 31 and Finland 17 deaths per million, while Denmark has 61 per million (all as of 19-20 April). In fact, Scotland’s current position is similar to Sweden, with its less stringent approach to lockdown (and double Scotland’s population size), which has 156 deaths per million.

Clearly, other larger European states have been hit hard apart from the UK – Italy, Spain and France most notably while Germany with its different, high-testing strategy has a much lower 56 deaths per million. And some other smaller states have had high deaths too, notably Belgium with over 500 deaths per million – though this would come down by around half if only hospital deaths were included. But Greece – with twice Scotland’s population – has had just over a tenth of its deaths.

Shifting Politics

So different countries have had strikingly different experiences, so far, though all now face the very tricky, and vital, challenge of how to go about easing and exiting from lockdown to whatever the new normal will be. One of the striking aspects of the UK’s hesitation in the first half of March was the extent to which a range of organisations started to cancel events or initiate working from home policies – including events that were much smaller than the 500 person limit announced by Nicola Sturgeon on 12 March shortly before the UK government did the same. Civil society moved ahead of the politicians.

It is surely important to learn and understand some of the lessons from March now to inform Covid-19 strategy in the coming weeks. There may be several reasons why the Scottish government and other devolved administrations did not diverge noticeably from UK government strategy – despite health and education being devolved. Certainly, at first sight, it looks sensible to have a coherent, cohesive strategy across a state faced with such a public health crisis.

And the unprecedented economic damage of lockdown is one that the Scottish government may well not have wanted to trigger ahead of the UK, not least given that major economic bail-out policies do not, in the main, sit in devolved governments competence. Control of borders is not a devolved power either. But there could have been – but wasn’t – a public demand from the Scottish government for a two week earlier lockdown in early March; nor were any significantly faster actions taken at the time.

As criticism grows of the UK government’s decisions in March, it puts the Scottish government in a tricky position: they went along with those decisions, and did not criticise them at the time. Overarching responsibility may lie in London but the devolved administrations did not act as a pressure point for faster, earlier, more decisive actions. The Scottish government has been spared from much criticism in this context. This is, in part, as most focus has been on London but also as the Scottish Tories – while questioning some aspects of policy on care homes – won’t criticise a policy in line with the UK government, while SNP politicians will be loath to critique their own government.

Whether the UK government will manage an easing of the lockdown and management of the rolling corona crisis any better in the coming weeks and months is an open question. There appear to be splits in the cabinet over a more or less rapid route out of lockdown, with Boris Johnson, while still not back at work, apparently favouring a more cautious approach.

Nicola Sturgeon has said she will consider a differentiated approach to exiting the lockdown if that looks in Scotland’s best interests. Meanwhile, Scottish secretary Alister Jack has said the UK’s four nations must continue in lockstep. The lesson of the shifting politics of the crisis, so far, is that some differentiation could potentially be a plus (and would have been in March too). The tough challenges of managing testing and tracing, supplies of PPE, capacity of the NHS, and managing the extraordinary economic downturn need a clear and focused strategic approach. A pan-UK approach should not be a given for all elements of this – and indeed should not have been in March.

Do we need a written Constitution?

by Dr Andrew Blick
Reader in Politics and Contemporary History at King’s College London; Senior Research Fellow at the Federal Trust

25th October 2019

Speech by Dr Andrew Blick at the joint Federal Trust/ Federal Union event “Never-Ending Brexit?” held on 8th October 2019

Caroline Lucas (Brighton, Pavilion) (Green)

While yesterday’s Supreme Court decision upholding parliamentary sovereignty was extremely welcome, it should never have come to this. Our centuries-old unwritten constitution, based on gentlemen’s agreements, is not fit for purpose when dangerous populists are in office. Will the Attorney General therefore consider urgent proposals for a written constitution, developed with real citizens’ engagement, since our democracy belongs to all of us, not just those who think they are above the law?

The Attorney General

I have a degree of sympathy with what the hon. Lady says. I think that, as we depart the European Union, there is ground for thinking again about our constitutional arrangements and how they should be ordered. I think that, in doing so, a widespread public consultation of the kind that she is describing would be essential, because any new constitutional arrangements would have to be sanctioned by the widest possible public support and assent, so I do have some sympathy. No doubt over the coming months and years, this will be a subject of important concern to the House.


This House of Commons exchange, dating from 25 September, shows that, out of the divisive chaos of the Brexit-era United Kingdom (UK), a strange consensus has begun to form. Various politicians and commentators have begun voicing the idea that, not only is the UK political system functioning at a less than optimal level, but that it might be time to instigate an inclusive process leading to a ‘written’ constitution. This emerging perception presents both opportunities and risks. The following paper discusses how such a document might be brought about for the UK, and its possible contents.

Brexit has created uncertainty about numerous features of the UK polity. It has broken the existing party system; compromised the collective responsibility of Cabinet; undermined the relationship between the executive and Parliament; destabilised the Union; and drawn the courts and the monarchy into political controversy. At the root of this turmoil lies a tension created by an exercise in direct democracy – the referendum of 23 June 2016 – within the context of a representative system. For a period of more than three years from this point, the insistence by the UK executive that it was a custodian of an irresistible obligation to leave the European Union on whatever basis it deemed appropriate and/or was able to obtain from the EU created a series of constitutional convulsions. Even the most venerated of doctrines – the sovereignty of Parliament – came under scrutiny, with those who purported to be its fervent supporters in practice seeking to discard it in pursuit of Brexit.

The unwritten UK constitution, supposedly a source and manifestation of stability and continuity combined with a capacity for incremental change, both allowed the Brexit episode to come about, and has failed to facilitate a satisfactory response to it. It is becoming tarnished, with a diminishing band of enthusiasts. Some still hold that the flexibility and capacity for informal, incremental development that supposedly characterises our ‘unwritten’ arrangements is an advantage over other ‘written’ constitutions, on the grounds that the UK has been able to avoid greater disruption. How true such assertions have ever been is debatable. Viewed from the perspective of controversy and conflict over the status of Ireland, for instance, claims of a history of constitutional success become less plausible. They are also difficult to apply to the present.

It is relatively easy to establish wide agreement that the constitution is performing poorly, or even that it needs a major overhaul. But views of what, precisely, the problems are, and what new arrangements might be needed, are likely to vary. The first obstacle that must be overcome in any project to instigate a written constitution is that, to succeed, it should rest on the broadest consensus possible. Yet the present salience of this objective has derived from an issue so divisive – Brexit – that it is likely to infect any attempt to respond to it. In the exchange quoted at the head of this paper, the Attorney General presented a written constitution as an entity that would follow a departure from the EU, that was, from his perspective, a desirable objective, though attaining it has involved some constitutional difficulties. For others, the creation of such text would be a response to that disastrous sequence of events. They might also see it as a means of ensuring close alignment to the EU after departure, and perhaps providing a basis for re-entry in future.

The particular motives of supporters of a written constitution are likely to influence their view of its appropriate form and content. Those who have found favour with the recent performance of the Supreme Court, for instance, might wish to reinforce its role. Those who regard it as having acted improperly might wish to diminish it, or subject it to greater political influence. Indeed, whatever the precise intentions of the Attorney General, it seems likely that a written constitution that fits with the general outlook of the present government would be founded on principles that many longstanding advocates of such a text would find objectionable. What provision, for instance, might it make for justiciable human rights?

If a movement to establish a written constitution that crossed the Brexit divide was attainable at all, it probably would not be a worthwhile version of such a text; indeed, it might serve to lock in some undesirable features. Nonetheless, it would be possible to build a diverse body of support for a valuable written constitution, from the various groups that Brexit has alienated. Indeed, as well as benefiting from their support, it could help galvanise this potential coalition. Though it has lately made some progress towards closer cooperation, more is necessarily. A commitment to a written constitution could be an early and central plank in a shared programme.

But what should such a text comprise? When the idea of a written constitution comes onto the agenda, many different interests will see it as a means of entrenching their particular favoured measures. Up to a point, it is necessary for diverse groups in society and politics to assess a document as providing for their needs, if they are to be supportive of it. However, if the task of drafting and securing agreement to the text is to be manageable and delivered within a realistic timeframe, this pressure to extend beyond a core set of measures should be firmly resisted. Adding a new item may attain approval from its sponsors, but also creates the risk of alienating others, and of diluting the overall document. When approaching the task of a written constitution, there are two questions to ask. The first is: what aspects of the political system are so important that the rules pertaining to them require a special legal status reflecting their significance? Holding to this approach should avoid the problem of inflation. The object of the exercise should not be the drafting of a lengthy scroll, but of discerning and fixing the core fundamentals. Having achieved this objective, the second question is: what precisely should those rules be? In the following passages, I seek to answer both those questions, by indicating a series of categories and approaches to take to them.

The executive

A task, the urgency of which recent events have demonstrated, that a written constitution would need to perform would be to define the functions of the UK executive and the limitations to which it is subject. At present it operates in a range of important areas under authority derived from the monarchy, rather than Parliament, using a constitutional power source known as the Royal Prerogative. All governments, under any system, need a degree of discretion – for instance in the conduct of diplomacy – but it would be useful to establish more clearly what the powers are, and the extent to and way in which Parliament and the courts can supervise them. Some privileges that currently rest with the executive – including the ability to prorogue and recall the legislature – clearly should not belong to it at all and should be transferred to Parliament. Similarly, it should be made clear (if it is not already) that the suspension of an Act of Parliament by executive order is entirely prohibited. Furthermore, a written constitution should exclude the possibility of ministers advising the monarch to withhold Royal Assent from a bill that has passed through all its parliamentary stages. These prohibitions address abuses that have either been perpetrated recently or about which there has lately been speculation. There are no doubt other misuses to which executive discretion might be put. For this reason it is important that the whole of the Royal Prerogative is replaced with an arrangement more satisfactory from the standpoint of democratic oversight.

Parliament

The weaknesses of Parliament arising from its vulnerability to the discretionary powers of government would to a significant extent be resolved by the extinction of the Royal Prerogative set out above. Affirmative parliamentary approval, for instance, could be made a requirement for treaties. The legislature (or one of its chambers) could take responsibility for the election of prime ministers, if necessary by preferential voting; and could clearly remove a premier from office, without needing to trigger a procedure that could lead to a General Election.

This latter provision leads to the question of how the composition of Parliament is determined. The written constitution should prescribe the electoral system used for the lower chamber. Not all such texts internationally deal with this subject. But if the exercise discussed here is truly to address the difficulties experienced by the UK political system at present, it must replace the single member plurality (or so-called First-Past-the-Post) system with a form of proportional representation, such as Single Transferable Vote or the Additional Member System. The present method employed for electing members of the House of Commons has had the effect lately of offering the electorate as a whole a choice between two parties, both of which have been seized by extremists. Even before they had full control of the Conservative Party, a minority within its parliamentary cohort were successful in foisting their Eurosceptic agenda upon it. Under a different system, phenomena such as entryism and capture would have less salience. This reform could also force the development of a more mature political culture which emphasised negotiation and trade-off rather than zero-sum contestation. In time, it could make the UK more able to participate constructively in organisations such as the EU. The means by which the membership of the second chamber is determined are discussed below.

Territorial governance

Under the present system, significant responsibilities have been devolved to Wales, Scotland and (to the extent that is institutions are functioning) Northern Ireland, and to a lesser extent to parts of England. But the ultimate legal authority remains at the centre; and the territories do not have a direct role in decisions made on behalf of the UK as a whole. The devolved executives and legislatures rely on arrangements such as the Joint Ministerial Committee and the Sewel Convention, which fail to provide them with a secure constitutional position. Though the Sewel rule has received statutory recognition (through the Scotland Act 2016 and Wales Act 2017), the Supreme Court has insisted that it is not justiciable. Therefore there is no legal protection against the UK Parliament, if it chooses to do so, legislating in ways that interfere with the devolved systems. This imbalance could become particularly significant in a post-Brexit environment in which the UK government sought to alter the regulatory framework of the UK, perhaps to diverge from that of the EU, or align with a prospective trading partner. A written constitution could introduce a firm legal requirement that any UK legislation pertaining to devolved matters was subject to some kind of devolved approval. It might also take steps to integrate the devolved legislatures and/or executives into UK level governance. The most radical version of this measure would be the replacement of the House of Lords with a federal second chamber. The handling of England within such an arrangement would require close attention. It is too large to be incorporated as a single entity into a federal system without creating instability. The written constitution might create a mechanism whereby regions within England could, if they chose, take on self-government and be included within the federal chamber.

Human rights

UK department from the EU will make the human rights of all people living here – whether UK subjects or otherwise, since all are human – less secure. The European Union Charter of Fundamental Rights, which provides comprehensive protection – is the only aspect of European law that the European Union (Withdrawal) Act 2018 does not seek to maintain in a post-EU domestic legal order. Post-Brexit, the Human Rights Act 1998, which incorporates the European Convention on Human Rights, will be the main means of upholding rights. Those who have driven Brexit tend to be ill-disposed towards this supranational mechanism also. It is likely to be next on their list. A straightforward approach to human rights protection would be to transfer the Charter into UK law and to make it, and the European Convention on Human Rights, fully justiciable, up to the point that an Act of Parliament is void in as far as it conflicts with their provisions. Over the past decade or so there has been discussion of the idea of a ‘British Bill of Rights’ which modifies the Convention to make it more acceptable to the UK. Even countenancing this idea was to accept the premise that there was something wrong with the concept of ‘European’ and ‘human’ rights. Some have advocated it on the basis that it might successfully mollify the reasonable concerns of people who were in reality actively opposed to genuine rights protection. This project is doomed to fail, in the same way and for the same reason that implicitly accepting Eurosceptic narratives was. Ultimately it merely served to embolden the opposition and strengthen its credibility. A preferable course of action, that would avoid exercises in futility, would be to incorporate existing European texts into a written constitution.

The courts

We have lately witnessed the vital role that the courts can play in upholding constitutional standards. They have done so in the most difficult of circumstances. Their integrity and decision-making have been challenged publicly; and questions have been raised about whether they should be playing such a prominent role, and whether different means of appointing senior judges should be established. A written constitution could perform a valuable role in addressing this undesirable circumstance. It could make clear that it was entirely proper for the courts to be involved in matters of political controversy, if they were justiciable. The text could define with greater precision than currently exists what were the powers and scope of the courts, discouraging them from exceeding their proper remit, and protecting them from the charge that they were doing so. The written constitution would also empower the courts to strike down all actions and legislation – including Acts of Parliament – if finding them in violation of the provisions of the text. This measure would be one of the most important features of a written constitution, and would represent a firm break with the doctrine of parliamentary sovereignty. In recent months, Parliament has at times appeared a protective barrier against abuse by the executive. However, absent electoral reform, at some point – possibly in the near future – a government will have a majority in the House of Commons. If the executive is intent upon action that is constitutionally problematic, the legislature might become a vehicle for, rather than obstacle to, the attainment of its ambitions. In these circumstances, courts able to carry out full constitutional review would be of great value.

Amendment

For a written constitution to be meaningful it requires some form of enforcement, often judicial, as is suggested here. It must also be protected from casual alteration. At present, the UK Parliament can change the fundamental rules of the system through regular legislation. If a written constitution were introduced that did not produce a clear break with this practice, it would be vulnerable to alteration by a future Parliament in way that rendered its supposed status as fundamental law meaningless. It must be possible to change the constitution. Excessive rigidity is certainly to be avoided. However, alterations to the most important rules of a political community should require a higher than normal level of consensus. Within the federal context discussed above, there might be a need for each of the components of the UK – or at least a majority of them – to approve an amendment to the constitution.

Process

How might a written constitution be achieved? As suggested above, the political environment might seem lately to have become more receptive to this idea. But attaining the necessary combination of support for a constitution that met standards of good practice remains a difficult task. If those currently opposed to the present government – its approach to Brexit and its constitutional agenda – are unable to coalesce, they may find themselves in opposition for a protracted period. But whether they achieve the opportunity to reform the political system in the near feature, or at a more distant point, the appropriate approach to this task will be similar. The best way forward would be to establish a gathering of senior political figures of different parties and territories of the UK to agree some basic principles. It could then present them to a convention, including a randomly chosen group that was representative of the UK public. With access to expert evidence and with moderated input from the wider public, this body could consider the proposals it had received, and potentially add some items of its own to the agenda. It would then report back to the politicians. If they were content with the outcome, a constitutional text could be presented to the UK Parliament and devolved legislatures for simultaneous approval. A process of this type would be the best means both of resolving the problems of substance faced by the UK political system, and ensuring that solutions arrived at were both enforceable, and entrenched.

Johnson’s Deal Crosses May’s One Legitimate Red Line: Dividing the United Kingdom

by Ira Straus
Chair, Center for War-Peace Studies

21st October 2019

There was one fully justified Red Line buried amidst Theresa May’s long list of them: that no agreement is permissible that would draw a dividing line within the United Kingdom (see The meaning of Theresa May’s one legitimate Red Line). Drawing such a dividing line, she stated – and stated with a passion unusual to her – would be something that no UK Prime Minister could do, nor accept. One can see in this a thinly veiled meaning that to do such a thing would cross the line of disloyalty to the Realm, something no PM could legitimately do, as the safety of the Realm is always the first charge on HMG.

She was not consistent about this, to be sure. She meant by this only a prohibition against actively drawing a line of separation, such as a hard border line or customs line. She neglected to include a prohibition against serious damage to the sentiment of Union, the foundation of the continuity of the Realm. She was prohibiting only the most extremely damaging deal, one that would include a direct action of dividing the Union that is the United Kingdom; she ignored the fact that any Brexit would imperial the Union by undermining its sentiment in both Scotland and Northern Ireland.

Johnson’s deal flagrantly breaches even May’s narrow Red Line. He thereby breaches also Theresa May’s line between loyalty and disloyalty to the United Kingdom.

The contradiction of Squaring the Circle; the consistency of a Common EU Context

The Johnson deal has Northern Ireland staying in the Single Market while Great Britain leaves it. This line of division in the Deal is not erased by its formal language about Northern Ireland staying in the UK Customs Union de jure, since at the same time it keeps it within the EU Customs Union de facto. That language simply renders both halves of the equation self-contradictory. That is to say, it renders the denial of both lines of division, on the North-South Irish border and in the Irish Sea, a false denial. The border lines are real in both cases, the denial of the border lines unreal in both.

Mr Barnier indicated as much, when announcing the deal: he spoke of its contents on this issue as “squaring the circle”. These are words that mean that it is inherently contradictory and not to be taken at face value.

More: it means that the patching up that it attempts on both ends is superficial, and the promises of being alright for both sides is false. It means that the reassurances for both the intra-Ireland border and the intra-UK/Irish Sea border are prone to fall apart at any moment, and will be unable to withstand the shocks they will inevitably run into in the real world.

The only way to get around needing to “square the circle” is to cease pitting the square against the circle as the only games in town, facing each other in solitude and requiring mutual adjustment. There is only one way in turn to do this: to abandon the assumption that the square and the circle must stand alone in separate customs orders, or else in a unique customs order all by themselves, and instead keep both embedded within the same larger customs order. In other words, it requires the UK to remain alongside both Irelands inside the EU Customs Union.

Nothing less is required for the integrity of the UK. Nothing less is required for Theresa May’s one legitimate Red Line.

This is why May’s deal did keep both entities inside the EU Customs Union for an indefinite future. And why that future was to extend until such time as it could be proven, if ever, that arrangements were in place enabling the UK to leave the Customs Union without any hard border in Ireland.

To be sure, while this is necessary for the Union, it was unlikely to be sufficient in the long run. What has proved sufficient is membership in the EU for Britain and Ireland together.

That is why any form of Brexit undermines the sentiment for the Union in Northern Ireland. The importance of the EU for the peace in Northern Ireland is profound. There is a mediating value of being part of a greater Union, one within which the English are not a hegemon as they are within the British Isles alone. This is important in softening the tension about Union for Scotland and Northern Ireland alike. For the latter, it is also important for allowing the duality of identity, at once Irish and British, to be accepted calmly. That duality was inherently problematic as long as the UK remained alone with Ireland; the problem was manifested in the troubles. Once both islands were in the EU, the duality of Norther Irish identity became far less troubling.

The open border within Ireland is important not only in itself, but as an indication that the duality of identity is no longer being contested, constrained, or fought over. Catholics can identify with nationalist Ireland and move about in it freely, yet remain UK citizens, and live alongside Unionists who identify as Britons. Remove the mediating role of the EU, and the Irish border turns into a sharp symbol of the identity issue. Harden the border, even mildly, and the sharpness of the issue become potentially fatal again.

Conversely, harden the border in the Irish Sea, and the identity of the Unionist community becomes troubled, their acceptance of the existing order problematic. That is why Theresa May’s Red Line against any such hardening was necessary, if not sufficient. Its less than complete sufficiency does not detract from its necessity, rather it adds to it. The dangers of the breach in the Red Line are increased, not lessened, by the fact that it compounds a deeper identity issue.

Who will stand up for the Realm?

Theresa May has every right to denounce Johnson’s deal as an act of disloyalty to the United Kingdom. Indeed, MPs thought it remiss of her to fail to speak out against Johnson’s Deal, shouting on Saturday from the backbenches at her to rebel. They offered her an opportunity to save her soul. In refusing it, she confirmed our earlier diagnosis: that she suffered an unwillingness to take responsibility for making painful choices, and her Red Lines were dictated by her internal mental red line against taking the blame for the damage to the UK, rather than by a will to draw an adequate line against the damage itself (see Theresa May on the Couch).

Nigel Dodds, spokesperson of the DUP Parliamentary group, recalled Theresa May’s words about the inviolability of the Red Line on the integrity of the UK, and recalled that Mr Johnson had repeated her strong words, which he is now traducing. Mr Dodds stood up for the former PM, at a time when she would not stand up for herself. It remains for Theresa May to find the courage to stand up at this time for herself and for the survival of the United Kingdom.

Probably she will not. But perhaps Parliament itself will. It clearly wants to. It is a question of whether it can sustain, in face of a seemingly rogue Government in No. 10 and its ongoing campaign of intimidation, the will to stand up for itself and for its country by uniquely autonomous, innovative, and strict legislative means.

The Benn act was an important beginning in this regard. Beyond it beckons a need for further follow-up steps along its lines. There might be a need for measures that reduce the Government in several future matters of Brexit to a legal courier between Parliament and the EU, so the Government cannot act as an independent actor that could destroy the UK. This might encompass tying down this or any Brexit deal to a confirmatory referendum; tying it down also to fully complete implementing legislation, securing an extension from the EU long enough for the referendum; and establishing regular channels of direct communication with the EU.

The cloud over Northern Ireland, too, is not without its silver lining. The DUP is being forced into a shock therapy. It is seeing for the first time a profound reality: that Brexit is going to be its damnation, not the salvation it dreamed it could be.

Brexit will not bring back a long-gone UK where the Unionist community had the numbers and clout to dominate, and where England had the will to rule. It will bring only a reduced England, spiraling inward in its nationalism, while in Northern Ireland the Unionists will be left face to face with an emerging Catholic majority.

Britain plus Ireland in the EU, with fully open borders in both the Irish sea and across the isle of Eire, is the maximum salvation feasible for the Unionist community. Any Brexit is its damnation; the question is only the degree of damnation. May’s Brexit was recognized and denounced by the DUP as a damnation; so is Johnson’s. While a full reversal of views is unlikely all at once, it is possible that the shock is great enough to bring the DUP to genuine wisdom in its policy; enough perhaps to support a second referendum, that being the only face-saving way for it to save its community from Brexit.

Let us give credit where credit is due. If Johnson’s plan is defeated in Parliament and if a lengthy extension is obtained, he will have wasted only a few months’ time, dispelling in that time most of the illusions he and the hard Brexiters had fostered, and bequeathing an extension with a potentiality for bearing fruit. That compares favorably with May’s record of wasting three years and bequeathing a worse situation than she started with. If all the dangers and illusions of Brexit could be dispelled so quickly, the Brexit saga might yet come to a happy ending.

A rolling coup, 2016 to 2019

Prorogation is only a cap on it

by Ira Straus

Chair, Center for War-Peace Studies

4th September 2019

The prorogation is not an ordinary coup, but it is indeed a part of a coup d’etat. It is not a quick-topple coup in the classic mold, but a multi-year process, growing through cumulative phases into a coup far more radical than the usual military take-over.

The coup grew out of the unanticipated consequences of the referendum. Politicians felt compelled to stick to their lines about implementing the results of the referendum, which were originally throw-away PR lines as they expected the result that they supported anyway. This compulsion — partly a political PR compulsion, partly as with Theresa May a psychological compulsion — grew into an attack on the traditional British political norms: deliberation, parliamentarism, and the most basic of all freedoms, the freedom to think again. A series of red lines, or public mental blocks, was set forth.

Suppression of parliamentary deliberative norms grew month by month. The PM came to pit “the people”, meaning the fraction of the people who agreed with her, against the Parliament.

It was this practice, accompanied by an increasingly demagogic anti-parliamentary language on the part of the PM and inherited by the new PM, that was carried to a new level with the prorogation of Parliament. It gave a punctuation mark to the coup.

Was this the punctuation point that we find in the theory of “punctuated evolution”, one in which a gradual accumulation of specific changes morphs, with a sudden jerk, into a change in the overall character of the animal? Does it raise the prospect of undoing the British tradition?

It does raise this prospect, in two of the three major parts of the tradition:

First part: Does it threaten the parliamentary representative system of government? Probably not, although it has done harm not easily reparable to the balance of the system, and even more harm to the civility between factions.

Second part: Does it raise the prospect of undoing 800 years of the evolution of the country from England to Britain to Great Britain to the United Kingdom? Yes. The odds are worse than even for the survival of more than the lesser Britain.

Third part: Does it raise the prospect of undoing the traditional moderation and progressing evolutionary course of the country? Yes. We can see this already in the two leading parties.

An internal rolling coup has been going on in both major parties at the same time. Their extreme wings and outside related extremist groups have been infiltrating, taking over, and expurgating each party of its traditional views and leaders. This began before Brexit and helped motivate the Brexit referendum, among Conservatives motivating the holding of the referendum and among Labour motivating Mr Corbyn’s failure of campaigning for Remain. It was in turn raised to a qualitatively higher level by the outcome of the referendum and the subsequent Brexit processes.

Nevertheless the final outcome of the coup remains uncertain. It is in the hands of Parliament to decide whether it will acquiesce in its undermining, and in the undermining of the United Kingdom whose patrimony lies in its trust. It is aware of its other options, and of the need to act on the harder of them not just easier ones that risk failing. And it knows from the coup itself that it has only days, no longer months, to muster the will to act on them.

Comment on “Brexit – By Royal Appointment?”

by Professor Sam Whimster
Associate Director and Head of UK Futures Programme, Global Policy Institute

22nd July 2019

This is a commentary in response to the blog by our Senior Research Fellow Dr Andrew Blick: Brexit – By Royal Appointment?, published on 12th July 2019

Andrew Blick in “Brexit – By Royal Appointment?” provides a lucid insight into the mysteries of the British constitution as it relates to the monarch and the appointment of the Prime Minister. He notes a (probable) Johnson premiership from the outset could become untenable and this could place the Queen “in an uncomfortable position”. This could be stated more strongly: the Queen could be faced with the most difficult decision of her reign. While the newspapers just assume a seamless succession, the Queen must know that the outgoing prime minister, Theresa May, will be less than sincere in advising her that her successor can form a stable (?) government.

A major problem for public debate, indeed public knowledge, is the lack of clarity on the constitutional rules governing the role of the monarch. A certain romantic mystery has deliberately shrouded the second “Elizabethan Age”, but under the unremitting glare of Brexit politics this may prove to be inadequate.

The monarch is the Head of State and this is obviously true in a ceremonial and symbolic sense. But is the monarch a head of state in a political sense, in the way that many advanced republics and constitutional monarchies have a head of state? Heads of state are given discretionary powers, under a constitution, to give assent or refuse a government coalition and aspects of its formation, including personnel. Heads of state sometimes make comments about the tenor or direction of governments – as happens in the Federal German Republic, for example. At certain points then, every so often a head of state is forced to intervene politically. The “understanding” of the UK’s monarch is that she is above politics. But what happens when the tide of politics reaches the threshold of “the Palace”? The monarch is in a double bind: not acting politically could bring disrepute to the Palace (and the realm), yet at the same time the monarch is above politics.

At the institutional level of Parliament, the civil service, and the opaque nature of Councils of State and the monarch’s office, everything is done to shield the monarch from any involvement in politics. Yet Dr Blick outlines a number of very plausible scenarios where the monarch would have convincing reasons not to give Royal Assent to a Johnson government. Some have said that we have already been in this situation. In June 2017 Prime Minister May presented the Palace with the assurance that the Conservative Party’s coalition with the DUP was a done deal. A confidence-and-supply agreement was announced on 9 June and the Queen invited Mrs May to form a government on 11 June. But considerable haggling took place after the royal assent was given and before Northern Ireland’s future budget and the final agreement was reached.

This in turn raises question about the role of the civil service. In February 2010 the Cabinet Secretary published a cabinet manual intended to remove ambiguity and uncertainty in the functioning of the executive, especially the handover of governments. In particular it would remove the Palace from any involvement in who to invite to form a new government in the event of the predicted hung Parliament. In depoliticising the Palace the rulebook placed the onus on political parties to reach coalition agreements, quickly. Some thought at the time that the Coalition government should have been given more time – it had 5 days – to discuss their political arrangements, and this may have compromised the Liberal Democrats’ demands. This last point is of course open to debate, as were the options facing the outgoing prime minister. However, the Cabinet rulebook did ensure that the Palace was kept above the fray. Did the Cabinet rulebook get deployed to the same extent in July 2017 – to the extent that the Palace was seen to have behaved impeccably? There is a suspicion that Mrs May duped the Palace. The political role of a head of state remains, indeed it might be a desideratum if there was a Palace rulebook.

I will switch the argument at this juncture to legitimacy. There are quite a few in play. By legitimacy I mean the the belief held by voting citizens in the legitimacy of those who exercise power and authority. The legitimacy of government is based on party political competition, universal franchise, general elections of MPs representing their constituents, and parliamentary approval of the executive. This has been the arrangement up to now.

In addition, Parliamentary leaders are these days commoners. In claiming to possess a parliamentary majority, a would-be prime minister can also draw on his or her electoral legitimacy – and not take too kindly to any objections raised by the Palace. Blair and Thatcher are recorded as being somewhat impatient with the niceties of the role of the monarch as head of state. Likewise Mrs May herself probably felt fully justified in June 2017 in giving an assurance to the Palace that she was able to put together a majority in the House of Commons.

We also have the peculiarity that Johnson, or Hunt, will become party leader on the choice of a miniscule electorate of Conservative party members that is way out of line with the overall electorate. Political parties are free associations and their specific rules are perfectly legal. But the next Conservative party leader, if he becomes the next prime minister, will be given a far harder time than Macmillan, Callaghan, or Gordon Brown. He will face the charge of illegitimacy.

What is the legitimacy of the monarchy? In the long run it is a form of charisma that has become routinised through succession. Monarchy inherits the original charisma of kingship. And as Hobsbawn argued the traditions and trappings of monarchy – the magic bit – are also invented and reinvented. Overall, though, it is a charismatic inheritance handed down and revitalised through coronation – and considerable effort went into Elizabeth II’s coronation. Younger royals seem to be exchanging charisma for celebrity culture, a recognition that inherited charisma has a fading legitimacy in a time of popular culture and social media.

A third type of legitimacy is the “will of the people” and populism. The will of the people must be obeyed by parliament and here legitimacy of representative democracy is directly challenged. A constitutional monarchy is part of the institutional architecture of parliamentary democracy. Faced with a populist  prime minister – if  Johnson adopted a populist strategy as PM, or Farage became PM – the monarch would be moulded into an Anglosphere figurehead with no constitutional importance.

The present monarch almost certainly can ride out quite a lot of upcoming and unavoidable turbulence. The next Prime Minister may be only a two week wonder, and the Leader of the Opposition may be called to form a government. This is part of the argy-bargy of parliamentary politics. But there will be more damaging consequences if Johnson, or whoever, calls a General Election and then claims an alliance with some other party which has yet to be transacted; or, if an assurance is given to the Palace that Parliament will not be shut down while a new Brexit deal is concluded.  A Boris Johnson assurance may not command the full confidence of the Palace.

The Queen’s legitimacy as a Head of State rests on being above politics, but this makes her vulnerable to challenger legitimacies and adventurers. Having a Palace rulebook on prime-ministerial succession should be considered with some urgency rather than trusting to the Palace’s fallible judgement and discretion. Charisma itself is infallible but is also conditional on success – as even Chinese emperors found out when geomancy failed to deliver.

Parliament on the brink of Brexit: meaningful or meaningless?

by Dr Andrew Blick
Senior Lecturer in Politics and Contemporary History at King’s College London; Senior Research Fellow at the Federal Trust

26th February 2019

It is an irony frequently remarked upon that the Brexit process, though embarked upon partly in the name of the sovereignty of Parliament, has seen this institution marginalised. Some of this exclusion from meaningful involvement in Brexit has been self-imposed. Parliament approved legislation, the European Union (Referendum) Act 2015, providing for an open-ended question to be put to the public which it subsequently accepted as producing a binding requirement, in some form, to leave the EU. It then provided the Prime Minister, through the European Union (Notification of Withdrawal) Act 2017, with the statutory authority required to trigger Article 50 of the Treaty on European Union, without attaching any conditions to the exercise of this power. Parliament has subsequently proved more effective at asserting that it should have power than actually exercising it. It has lately been willing to reject options it finds undesirable, most dramatically the deal secured by the UK government in negotiations with the EU. But even when expressing negative views, parliamentarians have voted in the same direction for different and opposing reasons. The imposition of a positive course of action – a function that is surely the essence of a ‘sovereign’ body – has not been attained.

Continue reading Parliament on the brink of Brexit: meaningful or meaningless?

A way out of the Brexit chaos? Parliament should install a national government

A way out of the Brexit chaos? Parliament should install a national government

by Professor Iain Begg

Iain Begg is a Professorial Research Fellow at the European Institute and Co-Director of the Dahrendorf Forum, London School of Economics and Political Science.

This article was first published by the LSE Brexit Blog.

12th December 2018

Is there a way out of the Brexit chaos, asks Iain Begg (LSE)? With still no solution in sight for Brexit, the time has come for a more imaginative approach, he writes. The UK’s politicians need to look beyond partisan positions and tactical manoeuvring to find a way of reconciling the many trade-offs – democratic as well as economic – around Brexit.

Instead of a focus on the national interest and how to meet the daunting challenges of maintaining faith in the democratic process, the debate on the end-game of the United Kingdom’s efforts to conclude a deal for its withdrawal from the European Union has been dominated by largely procedural matters. The talk has been of meaningful votes, confidence votes, the likely effects of obscure and incompatible amendments, the details of the Irish border backstop, transitions of fluctuating durations, facilitated customs arrangements and so on. Empty rhetoric on how ‘Brexit means Brexit’ and about the ‘settled will of the people’ adds to the confusion.

Now, the government has executed one of the most spectacular ‘u-turns’ of recent times by postponing a vote in the House of Commons, despite repeatedly saying it would not. By doing so, Prime Minister Theresa May has belatedly accepted what everyone has been telling for weeks: she could not win the vote for the deal she has secured from Brussels.

Yet as the latest episodes of the saga unfold, it has become increasingly clear that the UK political system has failed to comprehend the two fundamental questions it needs to answer. First, what sort of relationship does it want with the EU. Second, what is the mechanism for deciding, given the apparent inability of Parliament to muster a majority for any deal?

What model?

The shape of a future economic relationship between the UK and the EU has been under discussion since well before the 2016 referendum. Although there are many variants, four underlying models can be distinguished.

Remaining in the EU is the first, while the second is the UK being no different from the great majority of the EU’s other global partners inhaving either no privileged access or a trade deal that does not preclude similar deals with other parts of the world. For many advocates of Brexit, this was the choice posed in the referendum and, given the vote to leave, a full (or hard) Brexit should be the outcome.

The trouble with hard Brexit is that it creates obstacles to trading with the nearest neighbours and thus implies lower prosperity. The more sanguine Brexiteers believe any costs will be only short-term and the UK economy will soon benefit from new relationships with dynamic parts of the world, but the consensus is that there will be an economic price to pay forhard Brexit.

This is why two other models have come to the fore. The withdrawal deal May has, for now, opted not to put before the House of Commons included a short and non-binding political statement setting out the expectations of a new arrangement and including provisions for avoiding a hard border in Ireland, an aim all sides agree to be vital.

While it will require long and hard negotiations, the essence of the May deal for a future relationship is that the UK would no longer be part of the single market, delivering an end to free movement of EU workers, but would stay close to the customs union. The UK would also no longer be bound by the EU’s common policies on agriculture and fisheries. However, until mutually acceptable arrangements for the Irish border can be devised, the UK would have to accept a ‘backstop’, which could mean a border between Great Britain and Northern Ireland.

Latterly, objections to the May deal have seen a resurgence of interest in a model similar to the one Norway has with the EU. It would preclude more than token curbs on free movement of workers, require the UK to continue paying into the EU and would mean the UK having to conform to many EU rules it had little scope to influence. But it would mean relatively little economic disruption and costs. Some of those calling for the Norway model have the rather fanciful view that it could be an interim arrangement.

How to decide?

The binary choice in the referendum did not allow for the latter two options, both of which have been vilified as ‘BRINO’ – Brexit in name only – and it is worth recalling that May insisted shortly after becoming Prime Minister that there would be ‘no attempts to sort of stay in the EU through the back door’. But because they are adjudged to be less damaging for the British economy, they offer a potential compromise.

As a representative democracy, the ‘normal’ means of decision-making in the UK is through Parliament voting by simple majority on legislative proposals from the government. In the 2016 referendum, Parliament chose to delegate the decision to the people, but since then government ministers and party politicians have been unable to decide how to implement the result.

As things stand, there is no majority in the House of Commons for any of the four basic options. Tinkering with this or that detail, clarifying the exceptional circumstances in which the Irish backstop would be triggered or amplifying some of the vague promises in the political statement about the future UK-EU relationship will not alter this fact.

Procedural rules in Parliament further complicate matters, but breaking the deadlock will ultimately require the House of Commons to ‘take back control’ and to assemble, and legitimise, a majority for some way forward. It could be to establish a national government (a government of national unity seems implausible…) with a primary mandate of deciding what the country wants as the outcome.

Hard choices will be needed on some of the key elements of the relationship with the EU, such as free movement, the Irish border or the scope for trade and investment deals with other parts of the world. Parliament would then have to decide which of the four models best reconciles the tensions between the different priorities.

There would then be two options. Either Parliament would have to assert its constitutional right to decide and enact the required legislation, or it could revert to asking the people in a further referendum. Accusations of betraying democracy would abound and the national government would have to brace itself for waves of protest, but is there a credible alternative?


Will Brexit Destroy the United Kingdom?

STEPHEN HASELER MEMORIAL LECTURE:

Will Brexit destroy the United Kingdom?

4th October 2018

Joint event by the Federal Trust and Global Policy Institute

The lecture was delivered by Brendan Donnelly, Director, The Federal Trust

CLICK HERE TO READ THE STEPHEN HASELER MEMORIAL LECTURE 2018

DOWNLOAD THE LECTURE (pdf file)

In this lecture our Director Brendan Donnelly takes stock of the Brexit negotiations. He argues that the painful progress of these negotiations is largely due to the fundamental weaknesses of the current British state about which Stephen Haseler wrote so eloquently. Prominent among these weaknesses are national exceptionalism, constitutional immobility and over-centralisation. Brexit is submitting the U.K.’s institutions to an existential test which they have no guarantee of surviving intact.

Professor Stephen Haseler (9 January 1942 – 20 July 2017) was the founding director of the Global Policy Institute and a Council Member of the Federal Trust until his death in 2017. In honour of his memory, the Federal Trust and the Global Policy Institute will host an annual Stephen Haseler Memorial Lecture. These annual lectures will focus on themes and issues that were close to Stephen’s heart.

 

Book launch: England Alone, by Professor Stephen Haseler

Book launch: England Alone

Joint event by the Federal Trust and Global Policy Institute

Wednesday, 15th November 2017
17.30 – 19.30, followed by a reception
84 Moorgate
London Metropolitan University
London EC2M 6SQ

 

Launch and panel discussion of the late Stephen Haseler’s last book England Alone: Brexit and the Crisis of English Identity, which he completed shortly before his death in July.

 

The themes of England Alone as set out by Stephen Haseler are:

  • The Brexit referendum result represents the end product of a crisis of English identity and confidence that has been building for over a century as the UK lost its role as a world empire.
  • The Brexiteers live in a fantasy-land about our negotiating position and power in relation to the EU, and about the viability of a new ‘global role’. They have consistently overestimated the importance of the UK in the new global order.
  • Brexit – the final result of a century of this delusion of grandeur – will, as we leave the world’s largest Single Market, leave us much poorer. And, as separatism grows in Scotland and Northern Ireland, it will also de-stabilise the Westminster state itself, including the monarchy, as the UK breaks up.
  • So devastating was the EU referendum result that the existing Parliament, where there is an anti-Brexit majority, should, as an act of real as opposed to phoney patriotism, re-align the parties and reverse Brexit in order to stay in the EU.

Behind these four themes are four critical issues that were examined by the panel: Sovereignty, Citizenship, English Identity and English Futures.

PROGRAMME

Welcome & Introduction:
Professor Chris Dixon, 
Acting Director, Global Policy Institute

Panel:

Chair: Brendan Donnelly, Director, The Federal Trust

Professor Vernon Bogdanor, King’s College London

Dr. Andrew Blick, King’s College London

John Stevens, former MEP

Professor Sam Whimster, Global Policy Institute

Open discussion

Closing remarks: Professor Chris Dixon

 

 

 

 

The Supremes say “Stop in the name of Parliament”

The Supremes say “Stop in the name of Parliament”

Brendan Donnelly

 

By Brendan Donnelly, Director, The Federal Trust

 

 

On general principles of good governance yesterday’s decision of the Supreme Court must be welcomed. Most Parliamentarians are profoundly uneasy at the erratic course Mrs. May and her government have steered over the past six months in response to the ill-defined outcome of the advisory European referendum on 23rd June. It was politically convenient for Mrs. May to claim to believe that a modern version of the divine right of kings dispensed her from the obligation to involve Parliament in these matters.  Happily, the Supreme Court has rejected such pretensions. Nevertheless, any pleasure at yesterday’s verdict must be tinged with disappointment that the Court needed to take such a decision in the first place. Continue reading The Supremes say “Stop in the name of Parliament”