Monday, 17 July 2017

Grandad

Our family has been dealing with some difficult news in recent days. My grandfather on my mother's side was diagnosed with cancer a few weeks ago and passed away in his sleep on Wednesday night. I had seen him for the first time in far too long a few weeks ago, but before the diagnosis. He had already been suffering badly with neurological problems and a recent fall that broke his hip. In some ways I'm happier he's no longer suffering because, brave a face as I put on at the time, seeing his frustration and pain was heartbreaking.

I was glad to see him before he went because we were so close especially when I was younger. Grandad was a massive figure in my childhood. Every weekend we would go from Kirkcaldy to Glenrothes. Almost every family holiday, usually in a bloody caravan, he and gran would be with us. If I was playing football, in the back garden or even at primary school when we moved to Aberdeen, he was there (slightly too) enthusiastically willing me on. We played golf (badly). We went to football games, including my first ever visit to Hampden. He got me interested in computing and built my first computer. He supported education in a big part because he left school very early to a fruit and veg stall in Largs before joining the Navy (serving in Malta where my mum was born) and had to fight to give his children and grandchildren the very best opportunities he never had. He helped me and my sister go to one of the best schools in the country, to play musical instruments and have lessons. He took me to see PSV Eindhoven's stadium on the only day it didn't rain when we were in Holland. He'd take me to HCS, the Rosyth-based manufacturing business he helped to run, and to Fibrehub in Freuchie, a technology company for whom he had a long association.

Ian Edmiston was a proud, self-made, entrepreneurial man who was fiercely loyal to his family and constantly willing them on to achieve all they could, making substantial personal sacrifices in the process. He wasn't perfect (goodness knows I've acquired some of his more stubborn "personality traits") but I want him to be remembered for the goodness in his heart and his bloodymindedness in the cause of others.

Probably the most embarrassing moment for me with grandad was when, as an 8-year old starting to get into football, I asked him to accompany me in the Aberdeen end at the CIS Insurance Cup final against Celtic in 2000. A lifelong Celtic supporter, grandad applauded the decisive finish in that match, insisting "but it was a good goal!" much to the chagrin of those around us! We left 5 minutes before the end...

It was perhaps fitting, my own footballing loyalties aside, that he should have bowed-out just after Celtic's "Invincibles" went the domestic season undefeated. Football was always my grandad's passion. One of the last things we did together was watch the highlights of the Scotland v England game on my iPad in his hospital room. I saw his face light-up at the sight of Lee Griffiths' two perfectly taken free-kicks, and for a moment at least, it was like his hurt and struggle had dissipated. I promised him if he kept trying with his physio, I would find a way to take him to a football game. I would like to think now that whenever I'm at Firhill he'll be looking down on me from somewhere, somehow, and that he'll still be proud.

I'll miss you, grandad.

Life - An Update

You may have noticed both my blog and (to a slightly lesser extent) my social media activity has been more anodyne of late.

There are several reasons for that, but one of them is that, at the end of next month, I will be joining the civil service as a "Generalist" on its graduate Fast Stream programme. In anticipation of that, I have been slowly weaning myself off expressing views of a potentially party political and governmental nature. Call it a "transitional period" in which Graeme and the Statutory Civil Service Code are brought into alignment...

My first six-month posting is with the DWP in London, and therefore entails a change of location after spending eight years in Glasgow. I've found a place in Muswell Hill in North London, which is very nice, but will mean an adjustment and my first big move in 8 years. The Northern Line commute will be "interesting" but I'm looking forward to a change of pace and environment after spending a sustained period in academia so early on in life.

Speaking of which, the thesis is (almost!) done and I should have that submitted before I move south. Cutting a massive piece of work down to size is difficult and laborious, but does ultimately make it better and more readable. I'll need to come back up to Glasgow to sit my viva before the year is out but mentally I am looking forward to moving on.

People often wonder whether they'd do things differently if they had their time again. Had other opportunities arisen, I suspect I probably would not have gone and taken on a PhD straight after my undergraduate degree. Although it was a tremendous opportunity to be given the resources to embark on a project like that, the pressure, weight of expectation, and sheer extent of self-direction involved did at times get the better of me and contributed to mental health problems that I am thankfully now (mostly) on top of. Although the PhD itself can be a very lonely experience, the extra time at University did, I suppose, benefit me in non-academic ways. I made many friends I otherwise would not have, owned a beautiful classic car I otherwise would not have bought, and learned a lot about myself in those four years.

A couple of weeks ago, I sold my MG Midget. Unfortunately, circumstances dictate that it just would not be practical at this stage in life to keep a car, let alone one that was, shall we say, temperamental and impractical for a daily form of (mainly) city-based transport. NFA has gone to a good home, though, and I got a good stint out of her.

2017, then, has been and will be a year of considerable change. That's before I mention the passing of our stubborn family cat Mungo just before Easter at a grand 21 years of age, the arrival of my sister and brother-in-law's new kitten Merlin, my dad's new job as Presbytery Clerk that will see him and mum return permanently to Glasgow for the first time since 1991 and some sad news I'll save for another post.

Sometimes it feels like everything is happening at once, and you've not really got control of things. The last year or so more than ever has made me appreciate the importance of stability in life. Never underestimate it.

Tuesday, 20 June 2017

Judicial Review of a Confidence and Supply Arrangement

An interesting story appeared in The Guardian today, in which it emerged that there may be an attempt to judicially review any agreement entered into by Theresa May's Conservative and Unionist Party and the Democratic Unionists. Having failed to secure an overall majority in the June election, May needs the DUP, at a minimum, to abstain on all major votes if she is to command the confidence of the House of Commons and to get crucial Parliamentary bills passed.

The central contention of those seeking to challenge a "confidence and supply" arrangement is that, if the UK Government were to make concessions of particular political or constitutional salience, it would undermine the duty of the British Government to be "rigorously impartial" as to the exercise of sovereign power with respect to the territory. This undertaking is contained in Article 1(v) of the Belfast Agreement.

I believe this challenge will fail, for several reasons:

This isn't the Government acting

A confidence and supply arrangement is not entered into by the UK Government. It is instead a political agreement, between political parties, to vote in certain ways in a Parliamentary assembly. There is, I think, an arguable case that a coalition agreement might be treated differently, because it forms the pretext-upon which government ministers are appointed from different parties. Ministers are clearly a part of the government and the presence of DUP ministers might reasonably have been thought an act of governmental partiality were the Irish nationalist community not also involved in the arrangement.

Crucially, however, commitment in the Good Friday Agreement is concerned with the obligation of governments to remain impartial; it does not commit every political party, or every member of the legislature, in the UK or Republic of Ireland to avoid alliances, even formal, with one or more Northern Irish political parties where there is common purpose or interest. The distinction between acts of government and acts of parliamentary caucuses is an important one.

The inference of the contrary position - that this is a governmental and not a party-political act - is that no government can ever rely-upon the voting or abstention of a sectarian political party from Northern Ireland in order to pass a piece of legislation. This, intuitively, does not seem tenable. It would defeat the whole point of Northern Ireland returning representatives to the Westminster Parliament in the first place. That they are there is for a purpose: while Government may be expected to operate with impartiality in how it exercises its power with respect to the six counties and the devolved government and two communities there, Parliament is not so bound.

The content of an agreement would not in fact compromise "rigorous impartiality"

Even if it is rejected that a confidence and supply arrangement is party-political rather than governmental, it still falls to show that the government's conduct would be unlawful. "Rigorous impartiality" is a bespoke phrase in the Good Friday Agreement. But what does it actually mean? It does not mean, surely, that a British Prime Minister cannot express a personal view that Northern Ireland should, in any border poll, choose to remain a part of the United Kingdom. The Conservative and Unionist Party, and its two Prime Ministers since the Agreement came into force, have never sought to conceal precisely this view. The clue is, in part, in their party's name. Clearly, then, adherence to a position on that question does not itself constitute falling short of "rigorous impartiality".

For an arrangement to compromise the impartial exercise of "the power of sovereign government" then, there must be something more substantial to it. The mere fact that a political agreement exists, and that it involves a sectarian party, does not mean that the UK Government is, by necessity, now partial concerning the question of "the power of sovereign government" in Northern Ireland. If an agreement saw the UK Government's programme undertake to act in ways that would (have a realistic prospect of) very clearly picking sides on an issue of contention being addressed at Stormont, or altered the protection of fundamental rights or some other part of the Belfast Agreement designed to protect the rights of nationalists/republicans in the six counties, we might reasonably conclude that "rigorous impartiality" has been fallen short of.

This would have to mean something like caving to a demand on parades or placing obstacles in the way of an Irish Language Act. Such commitments would likely, however, be in neither of the political interests of the Tories or the DUP. They are unlikely to be part of the agreement precisely because of how they would be received politically, regardless of any legal obligations.

This is not a domestic legal obligation

Perhaps more practically, the "rigorous impartiality" provision is in all likelihood not a (domestically) justiciable issue, or at any rate a subject matter to which the exercise of governmental power attracts considerable judicial deference. The Good Friday Agreement is in essence a treaty between two sovereign states. Its provisions, in and of themselves, are not legally binding in a UK court. The Good Friday Agreement does, however, have a slightly special relationship with the law in the UK in that it is directly referred to in the Northern Ireland Act as the multi-party, political, basis for the restoration of Northern Irish devolution. This allows judges to, among other things, take into account the intentions of the parties in that agreement when interpreting constitutional statutes and the content of their provisions. This makes the GFA different from, say, the Calman Commission's Report, the Edinburgh Agreement, or the Smith Commission proposals in Scotland, all of which would likely be less easily used as constitutionally relevant materials for judges interpreting provisions of the Scotland Act.

Importantly, however, the Good Friday Agreement is not enshrined in domestic law. At best it represents political undertakings that frame the pretext for the Northern Ireland Act itself. The Northern Ireland Act does not commit the UK Government to behave with "rigorous impartiality" on this issue, nor does any other statute. If there is a potential breach of law here, it is of international law and not of domestic constitutional law.

This is important because, unless otherwise expressly authorised, it is not within the gift of the domestic courts of the UK to prevent a minister from undertaking their office's powers and duties (as they relate to foreign affairs) in contravention of international law. The prerogative power would be particularly important here, as might political forms of constitutional accountability (like Parliament's scrutiny of any deal). But as a matter of domestic law there is no hard constraint. This is the important difference between a judicial review in this case and, say, the judicial review in R (Miller) v Secretary of State for Exiting the European Union where what was being contested was the existence of a legal power in domestic law to make a notification under a treaty.

Why an overtly common-law challenge would (probably) also fail

Any argument then, would rely-upon a contortion of common-law grounds of review. Perhaps they might maintain that, by failing to take into account the relevant considerations of the undertakings of the GFA, the Prime Minister had exercised her power improperly. Perhaps even they might argue that no reasonable Prime Minister properly applying their mind to the question would conclude that the grave constitutional (if political) undertaking of rigorous impartiality was compatible with whatever agreement was reached.

Even if these issues were regarded, in principle, as justiciable, it is difficult to see how a court would interrogate the decision so meticulously as to annul that of the original decision-maker (the Prime Minister). It would be very easy on her part to show that her decision has seriously contemplated the implications on the peace process, even if one might politically and quite radically disagree with her.

Perhaps more importantly, courts are generally deferential when it comes to constitutional disputes. The generous reading-in of materials in Robinson v Secretary of State for Northern Ireland, for instance, had the effect of relaxing apparently plain legal obligations to allow for political negotiations to take precedence during the crisis. A court that went out of its way to say that a Prime Minister was acting irrationally for going into an agreement of this sort would in effect be doing the opposite: giving legal properties to negotiations concerned with profound high-politics.

Parting thoughts

This (potential) case is interesting from my perspective because my doctoral thesis is concerned, in part, with the judicial treatment of constitutional secession negotiations. I look at questions like, for example, what a court would do if the UK, Canadian or Spanish Governments refused to enter into secession negotiations to honour a (constitutionally valid) referendum result on the part of Scotland, Quebec or Catalonia to secede. Even in the Canadian case, where their Supreme Court articulated constitutional duties to "negotiate" a response to a clear result, however, they stopped short of saying that they would intervene in a dispute of that nature if those duties were not honoured.

It seems to me that the duty to uphold rigorous impartiality in Northern Ireland is of a similar order. The Courts will not intervene except in the most clear-cut cases of interests being compromised, and even then they will do so on the basis of overt statutory authority, not by reading-in the Good Friday Agreement.

This is not to diminish the political importance of those undertakings. We should have grave concerns about any government, whether formally or informally, that is dependent upon sectarian parties to get its legislative agenda through. Constitutionally, however, at best these references to the Belfast Agreement seem to me to restate the constitutional tensions that already exist. They do not solve them.

Tuesday, 13 June 2017

On Hung Parliaments and Confidence

The Fixed Term Parliaments Act has no shortage of detractors and is often misunderstood. One of the (misplaced) criticisms that has been made of the FTPA is the effect it would have on constitutional convention and practice concerning the vote on a Queen's Speech or a Budget. I wrote this post to try to explain both how the convention concerning the appointment and resignation of governments operates and how, if at all, this has been affected by the FTPA.

The Historical Position

Historically, a Commons defeat on a major bill that was core to the governing platform of the incumbent government would be indicative that the government had "lost the confidence" of the House of Commons. In a Parliamentary democracy (unlike a presidential democracy) a government that does not command the confidence of the elected legislature has lost its legitimacy: its right to govern. As in any other walk of life, if a set of office-holders have "lost the confidence" of those that put them there, we clearly don't just mean that they are wrong; we mean that they are no longer fit to assume their position and to be custodians of their office. A Prime Minister is expected to resign: it is their constitutional duty to do so even if legally they are not required to.

But did they actually have to resign?

The only alternative to resignation that was historically open to a Prime Minister was to ask the Queen to dissolve Parliament and to bring about a new set of elections. It might reasonably be thought, however, that this option was only open to a no-confidenced Prime Minister, where there was no clear alternative individual capable of forming a government that would command the confidence of the House of Commons. In those circumstances it would have been open to the monarch to refuse that request, though it would have been extremely unusual for a monarch to refuse such a request and become embroiled in the political merits of a premature dissolution.

In practice, in any instance where a government was composed of a single party having close to an overall majority, including ones that had not long lost them, there would not be an obvious alternative individual from another party capable of commanding the confidence of the Commons. This would make a request to dissolve Parliament and conduct fresh elections a viable course of action. Although the monarch could dismiss their Prime Minister in that interim period if they so wished, in practice they would not do so. It is constitutionally viable, though not without its problems, for the office of Prime Minister to be vacant for a short period of time and for the Cabinet to govern in the interim at the pleasure of the Crown.

Can the Prime Minister try to stay-on without majority Commons support?

Where this gets interesting is in a hung-parliament where there is a large or power-broking third-party. This might mean they have a genuine "choice" as to who they wish to provide Parliamentary support to to enable either of the other two other parties to form a government commanding the confidence of the Commons. This dilemma emerged after the 1974 February and 2010 General Elections, where the incumbent Prime Minister's party fell short of a majority and came second by seats, but where the Official Opposition failed to win an overall majority. Both Ted Heath and Gordon Brown could, constitutionally, have attempted to introduce a Queen's Speech and to try to gain support from smaller parties to see it pass, rather than resign and recommend that the Leader of the Opposition should form a government.

If they lost that Queen's Speech, however, they would be expected to resign just as Prime Minister Stanley Baldwin did following the tabling of a motion of no confidence against him on the opening of the 1923 Parliamentary session. He had won the plurality but not the majority of seats in that election, and the other two parties tabled that motion. The resignations of Ted Heath and Gordon Brown were pre-empting a loss of confidence; they were taking the election result, rather than a vote of confidence, as a direct if indicative cue for what they anticipated Parliament would do.

This explains why Theresa May was entitled to continue to stay on as Prime Minister despite falling short of a majority and despite not yet having immediately secured a confidence commitment from the DUP. Under the current Parliamentary arithmetic, the Conservative Party not only is the most viable party to lead a government; it is probably the only party that conceivably could do so. After all, it only requires the DUP to abstain on a vote of confidence to win it if all their own MPs back it; a Labour-led administration would require the explicit support of the DUP (and several other disparate parties) to win a confidence vote. Only if it subsequently becomes clear that Theresa May could not count on the DUP not to oppose her in a confidence vote would an expectation of resignation emerge.

If a coalition or supply-and-confidence deal were to break down during a Parliament, the expectation would be either that an agreement in principle has been reached to form a new Commons majority with another other party (to form a new government) or that no party was able to command the confidence of the House. If the former is the case, the Prime Minister is expected to resign. It would be expected that the Queen invites the Leader of the Opposition (or whoever the coalition parties have agreed is best placed to lead a government) to form a government. If the latter is the case, the Prime Minister might be allowed instead to seek a General Election.

For whom ought a Prime Minister to have resigned?

Technically of course, the Queen can invite anyone to form a government and can ask for the resignation of a Prime Minister. By convention, and extremely sensible practice, she does not do so.

It is possible that someone else from within their own party would be the person best placed, rather than the Leader of the Opposition, in which case it would be open to the Prime Minister to offer their resignation to the monarch and recommend that she invite them to form a government instead. The monarch in modern times would normally seek to avoid involving themselves in any decision of this nature, but a Prime Minister would be putting them in that position if their recommendation to appoint internally was not the most-supported option by the House of Commons.

There is no immediate such example that springs to mind of this happening in British political history. What there is precedent for is a Prime Minister resigning as the leader of their political party before resigning as Prime Minister, once their successor has been appointed according to the relevant party rules. This was what happened with David Cameron's handover to Theresa May, Tony Blair's handover to Gordon Brown and Margaret Thatcher's handover to John Major. In those instances the successor to the Prime Minister was obvious: the leader of the party with a majority of seats in the Commons. It would have been inconceivable in 2007 for the Queen to invite David Cameron to form a government, or for her to ask Neil Kinnock to form one in 1990 or Jeremy Corbyn in 2016.

Unfortunately, without modern precedent for situations where a majority did not exist, the involvement of the monarch is inevitable should a Prime Minister recommend that a member of their own party should be invited to form the government but a sizeable part of the Commons objects that someone else (probably but not necessarily the Leader of the Opposition) should instead be invited. There would need to be constitutional rules put in place to preserve that institutional distance as things stand.

What counts as a motion of no confidence?

A Queen's Speech is clearly a defining question of confidence. It represents the government's proposed legislative programme for the Parliamentary session. Rejecting that is tantamount to rejecting its right to govern.

The annual Budget may be slightly different. Although Finance Bills are critical to the functioning of a government, the failure of a specific budget might not mean that the legislature does not have the confidence in the government to pass a budget. This is an observation that SpinningHugo has made before, though I would add a specific example in support of this premise. While governing as a minority government in Scotland, the SNP initially failed to pass its budget in January 2009. After making concessions to other political parties, it passed at the second attempt. That budget was not taken as an indication that the Scottish Government had lost the confidence of the Scottish Parliament, though repeated failures to get a budget through might.

Another way that the House of Commons can indicate that it has no confidence in the government is simply to table a motion to that effect and to win that vote. This was how James Callaghan was defeated in 1979. Believing that no other individual could any more clearly command the confidence of the House of Commons as elected, he asked the Queen to dissolve Parliament, allowing a fresh set of elections to take place.

What does the Fixed Term Parliaments Act change?

The Fixed Term Parliaments Act 2011 removes the prerogative power of premature dissolution of Parliament. The Prime Minister can no longer ask the Queen to dissolve Parliament.

Instead, if an early General Election is to be held, there must either be a vote in favour of one in the Commons supported by not fewer than 434 MPs (as happened to trigger the 2017 General Election) or if a very specific procedure happens.

If the House of Commons passes a motion by a simple majority saying:
"That this House has no confidence in Her Majesty’s Government."
And then 14 days pass without it passing a motion saying:
 "That this House has confidence in Her Majesty’s Government."
Parliament is dissolved and a General Election takes place.

This has, effectively, replaced an executive power to trigger an election with a legislative one. The Prime Minister no longer gets to decide whether or not a General Election should be held. This Act, therefore, by implication withdraws the alternative course of action available to a Prime Minister if their government loses a vote of no-confidence. Constitutionally, their only option is to resign. The next best placed person ought then to be invited to form a government. This will often be, but does not have to be the Leader of the Opposition.

What does it not change?

This transfer of power does not change the constitutional conventions that apply concerning whether or not a government should resign. The dissolution of Parliament, in itself, has no bearing on whether or not the Prime Minister is the best placed person to command the confidence of the Commons, even if, during an election itself, there is no sitting House of Commons to express confidence or no confidence.

This transfer of power does not change what constitutes a "vote of no confidence" for the purposes of determining whether or not a Prime Minister is under a constitutional duty to resign. This is a common mistake that both Members of Parliament and journalists have frequently parroted in the last few days. It says instead that, following a specific type of no confidence motion, either a government commanding the confidence of the House must be formed within a fortnight or an election must happen. The Act is completely and utterly silent as to what, constitutionally, ought to happen in that 14 day window.

So what should/could happen?

If the Queen's Speech is voted down, one of three things could happen:

1. The Prime Minister resigns and the Queen invites the Leader of the Opposition to form a government.

If this happens, it is open to the Tories as the largest party immediately to table a motion of no-confidence under the terms of the Fixed Term Parliaments Act in any government the Leader of the Opposition attempts to form. The (then) Prime Minister would then have to (a) successfully form a government within 14 days and get a positive confidence motion passed; (b) resign; or (c) remain in his position while a General Election takes place.

2. The Prime Minister resigns and the Queen either delays in appointing a new Prime Minister or immediately invites another individual from the current government (probably a senior member of the Cabinet) to attempt to form a government.

If this happens, it is open to the combined party effort that voted-down the Queen's Speech to bring a motion under the terms of the Fixed Term Parliaments Act and do exactly as the Tories would do in scenario 1.

3. The Prime Minister breaches constitutional convention and refuses to resign.

If this happens, Parliament has a remedy available to it that is constitutionally proper: it can table a FTPA motion of no-confidence and trigger an election.

What's the problem?

What is arguably unhelpful about the Fixed Term Parliaments Act is that the use of "confidence" in the simple majority election trigger may itself be understood as creating an obligation on the government to resign. In scenario 1, for example, this would mean the Leader of the Opposition, within literally hours of being invited to form a government and accepting, could be put under a constitutional duty to resign.

Common sense, however, says that this is clearly not what a motion under the Fixed Term Parliaments Act intends if it immediately follows the resignation of another confidence-defeated government. This is even more clearly not the case when you consider what would have happened before the FTPA was passed. If a Queen's Speech had fallen, and a Prime Minister requested the dissolution of Parliament, the monarch could, constitutionally, have refused that dissolution. In those circumstances, the Prime Minister would have still been expected to resign.

If, however, on attempting to form a government, the invited Leader of the Opposition concluded that they could not command the confidence of the Commons either, they too would then have asked the monarch to dissolve Parliament and bring about another General Election and it would be much more difficult, constitutionally, for the monarch to deny that request. That is what this 14-day period is, constitutionally, intended to do: give a new Prime Minister a chance to broker a deal to form a government.

The nomenclature could, therefore, be cleaned-up a little, but the Act does in fact separate perfectly constitutionally consistently, the questions of formation of a government from the calling of an election.

The real problem?

The only plausible problem with this arrangement is that the political incentives, for a long time, connected the powers and duties of the prime minister as they related to the formation of a government and the dissolution of parliament, and made them almost exactly concurrently exercised. The Fixed Term Parliaments Act breaks the two apart more explicitly. It arguably shifts the political incentives, moreover, on the part of a Prime Minister to take-up option three articulated above. It may now be much easier for a Prime Minister to defy constitutional convention that they should resign on losing a Queen's Speech, on the grounds that "well if they table a FTPA motion of no-confidence I'm only staying on for 14 days anyway before the people can decide". This argument might be especially potent if they represent the largest party and there is no realistic prospect of the Official Opposition forming an alternative government on the present Parliamentary arithmetic.

In these circumstances, it is particularly important that political actors should bring pressure to bear that the existing and not excised constitutional conventions concerning the resignation of a Prime Minister are properly respected. And if they are not respected, as with any other constitutional convention, Parliament should make full use of its remedial powers by forcing the Prime Minister to hold a General Election, and then the electoral process should allow voters to cast a judgment whether the Prime Minister's abuse of power is egregious and indefensible.

If your argument is that these protections are poorly enforced, then I agree. But that's an argument against relying upon constitutional conventions; not against the Fixed Term Parliaments Act. At best it is an argument that the office of Prime Minister should be appointed following an express nomination of a candidate by the House of Commons on a term that expires following the holding of a General Election. It would better guarantee that any appointment to the office of Prime Minister did in fact command the confidence of the Commons. This approach could, for instance, be modeled upon the approach to election of First Minister in the devolved assemblies.

Under sections 45 and 46 of the Scotland Act 1998 for example, the Presiding Officer shall recommend to the monarch a nominated individual to become First Minister, as chosen by the Holyrood Parliament. Such a nomination takes place whenever there is a vacancy, or following an election. If no nomination is made within 28 days, the Parliament is dissolved and another election is held. In the event of a vacancy, the Presiding Officer can delegate the functions of First Minister to another individual for the duration of that vacancy. This approach might clean-up the ambiguity of what is meant by a "confidence" motion in the FTPA.

The truth is that the old system that preceded the Fixed Term Parliaments Act would have handled this type of situation no better than the current one. It allowed Prime Ministers to escape resignation by appealing immediately and directly to the country, even when an alternative viable government could be formed from the democratically elected Parliament. These decisions are no longer a privilege the Prime Minister enjoys, exploiting in the process the political sensitivity of the Crown. It is instead for Parliament itself to decide.

For a Parliament man like me, that is, when all is said and done, a no bad thing.

Tuesday, 28 March 2017

Secession Referendums and the United Kingdom

My PhD supervisor, Prof Adam Tomkins, is the John Millar Chair of Public Law and a Conservative MSP for Glasgow. We disagree on many things. One of the things we quite radically disagree on is the proper function of referendums in the British constitution: especially secession referendums.

This disagreement can be illustrated in part by a recent statement he made on Twitter. Today the Scottish Parliament, with the support of the MSPs from the minority SNP Scottish Government and those of the Scottish Green Party, voted by a majority of 69 to 59 in favour of a motion. That motion formally requests that the Westminster Parliament should pass enabling legislation, which would authorise the Scottish Parliament to legislate for a second independence referendum. It indicates that the most suitable moment for that to take place would be between the conclusion of a proposed UK Brexit deal and the elapsing of the 2-year time period after which the UK regardless ceases to be in the EU. This would be between autumn 2018 and spring 2019.

Clarifying the disagreement

Adam takes the view that a referendum should not be held during that period. On the merits, I tentatively take the view that that timetable has no real advantage over a referendum held in 2020 or 2021, from just about anyone's perspective. Scotland will be taken out of the EU as part of the UK regardless, even if temporarily, under that timescale. Where I disagree with him is what the constitutional process should be for deciding whether and how an independence referendum should be held.

Adam's Argument

His argument is that:
"Lawful, fair secession referendums are an act of statecraft. Different countries do them differently. In the UK we do them by agreement. Here, it's not for one side unilaterally to demand a secession referendum. Timing, and other matters, must proceed by agreement. This would be the case whether or not the losing side last time had vowed that such votes are "once in a generation""
I may well be drawing unfair inferences from this argument, but I don't think it takes us very far. Purely descriptively, he is correct, in my view, that as a matter of law a referendum cannot be legislated for on Scottish independence without explicit authorisation of the Westminster Parliament. This authorisation, legally, must take place either by way of primary legislation or under a "s30 Order" relaxing the range of devolved matters of the Scottish Parliament. On this point, then, I take his side rather than that of other Scottish legal academics, who argued last time that the Scottish Parliament might not need that consent, because they disagreed that a Referendum Bill would "relate to reserved matters".

The problem here is that this legal starting point tells us almost nothing about who should be allowed to call a secession referendum and in what circumstances, which is the nub of what people are actually and substantively disagreeing about. It also does not tell us anything about what principles should govern when legislatures should be prevented from authorising those referendums. We have no answer to the normative question as to how the process ought to go forward, or not go forward. We have only a shell, unless we are to infer from the default position of the Scotland Act that the intention is to confer a veto power on the Westminster Parliament. If we believe it should have a veto, we must squarely confront the reasons that it should have that veto: what interests is this veto designed to protect, and is the veto necessary to protect those interests?

The UK "approach"

Adam maintains that constitutional practice in the UK requires that referendums on secession should only take place "by agreement". This is a strongly contestable claim and one that is wanting for precision (though the standard disclaimer of "Twitter only allows 140 characters" does of course apply). He also says that our constitutional practice is different from other countries (one example might be Canada, where provinces have no legal bar on a referendum) though this is a descriptive observation; not a normative justification.

One reason Adam's descriptive claim is contestable that he is basing this position on, specifically, the way the 2014 referendum was held for Scotland, and not on the basis of a UK-wide constitutional norm. The Scottish Parliament had no say, for example, over whether and subject to what conditions the UK's secession referendum from the European Union should be held. It is not obvious that the UK Parliament should have power over a referendum on, say, an area normally falling within the competence of a devolved legislature either: there is clearly something unspoken here that is regarded as special to secession referendums.

Any referendum on the holding of a border poll for Northern Ireland to decide whether they should become part of Ireland is not subject to intergovernmental negotiation; on the contrary, there is a legal duty on the part of the Secretary of State for Northern Ireland if it appears likely to him that a majority of those in Northern Ireland wish to leave the UK and become part of the Irish Republic. He is legally required so to act, even if the majority of those elected at Stormont are against the holding of such a poll. Although the National Assembly of Wales would also probably not have the competence to hold a secession referendum, the scheme under which it has devolved powers is completely different from that of Scotland and it does not have the same kinds of restriction.

Moreover, other territories with a UK relationship have completely different norms that govern the circumstances in which secession referendums may be held. Gibraltar and the Falklands Islands, for example, do not need Westminster consent to hold a referendum on secession. When the UK refused to recognise the Western Australia secession referendum of 1933, it was not because it had denied dominions the right to hold such plebiscites, but because the Commonwealth of Australia itself had refused Western Australia that power.

My point here is that, if we are talking about strict constitutional law, the UK has no common method of settling this question at all. The Edinburgh Agreement was merely one way of ensuring a fair and legal referendum was held; it's not the only way and it's not a norm that we have to abide by.

What norms do we have?

But if you do think it is a norm we should abide by, I think we have to be much clearer about what it involved, what norms and precedents it set and whether those norms are and ought to be legal or merely in some looser sense constitutional. We would need compelling reasons, constitutional reasons, not just political ones, to depart from the approach we took last time.

Adam says that "it's not for one side unilaterally to demand a secession referendum". But who are the "sides" here? Do we mean it's not for one Government or for one Parliament so to demand? Or do we mean political parties or caucuses? This is important if we are making normative claims about what, constitutionally, should happen. What has happened here is that the Holyrood Parliament has "demanded" the power to hold a referendum, though it is not acting "unilaterally" in the sense that it is not (yet) purporting to hold a referendum without the necessary legislative consent of the UK Parliament. The Members of the Scottish Parliament who oppose the holding of a second referendum have a different constitutional role from that of the UK Government or the Members of the UK Parliament, even though they may, many of them, share party allegiances. The question "should a referendum be held" is not the same as the question "should the Scottish Parliament be allowed to hold a referendum".

The failure to treat those questions as distinct fudges this debate considerably. It would be constitutionally consistent for Unionist parties to say that the Scottish Parliament should be allowed to decide whether or not to hold a referendum, without saying that they believe such a referendum should be held. They may look politically inconsistent if they vote for one but against another, but political deftness is not a defence for eschewing constitutional norms.

If Adam and others are of the view that the Edinburgh Agreement provides a framework or precedent for how we should proceed, we need to look behind the mere fact of disagreement about whether a referendum should be held and to look instead at what constitutional principles guided the conclusions of the UK Government last time to accept that a referendum should be permitted to be held by the Scottish Parliament. There are two clues to what drove this. The first is the acceptance of the existence of a political mandate to hold a referendum. Bluntly, we need to be clear exactly what the minimum thresholds are here. Is it sufficient for the Scottish Parliament to vote in favour of either having or exercising the power to create a constitutional duty to take steps to enable that to happen? If not, why not? And what additional expectations or qualifiers, constitutionally, are we insisting upon, and why? The second is how we establish the existence of a political mandate to give effect to other constitutional norms, particularly conventions.

Political Mandates

Constitutionally, the UK is quite opaque about what constitutes a political mandate for the purposes of constitutional conventions that guide the behaviour of legislatures and governments without courts getting involved. The Salisbury-Addison Convention refers to proposals contained in the governing party's manifesto, for instance, but it provides little if any guidance on what should happen in the event of minority or coalition government. The UK Parliament did publish a Joint Report of the Commons and Lords into constitutional conventions in October 2006, in which precisely this issue was raised, but there was disagreement as to its scope.

On one view as long as a party is able to form a government commanding the confidence of the Commons, Salisbury-Addison applies; on another it only applies to outright majority governments. The honest truth is we do not have a coherent set of principles to explain how and to what extent this convention concerning the existence of a "political mandate" transfers, if at all, from Westminster to Holyrood, given that the relationship between Commons and Lords is very different from Westminster and Holyrood. It is our "best guess" but nothing more than that. This lack of clarity means we do not have a clear answer about what to do with a minority Holyrood government on an issue, even where enough support from opposition parties is gathered to gain support behind a manifesto proposal. The UK Government opposed the holding of a Scottish referendum before 2011 in the absence of a Holyrood mandate: what was it about that Holyrood election that changed things? How do we decide that a referendum should be allowed to happen is not the same as asking how we decide whether a referendum should happen.

What must be agreed and by whom?

The Edinburgh Agreement itself did impose limits and restrictions on the manner of the exercise of a referendum power. It placed a time limit on its exercise, but did not prescribe a date. It limited it to a binary question, but did not prescribe a wording. It prescribed some of the rules and institutions applicable to the referendum, but did not set its franchise or dictate its campaigning rules.

The Edinburgh Agreement, insofar as it articulated principles at all, said that most of these matters were "for the Scottish Parliament to determine". If "agreement" is the basis on which secession referendums is to be held, and we base that principle on the constitutional practice of the Edinburgh Agreement, we must surely also take into account the constitutional practice of that agreement too? If a second referendum is to be held, we need compelling reasons other than political expediency for explaining why the UK Government should have more of a say over the terms of such a power than it did last time around.

This, in my view, means that it would be constitutionally inappropriate (though clearly not legally incompetent) for the UK Government to use its position in the UK Parliament to insist upon controlling the franchise of a second referendum. There seems to me to be no logical nexus between who may vote in the referendum and whether or not it should be held. It would also be very suspect, save to exclude ambiguity or bias, if they were to insist on a role in setting the question beyond making it a binary choice. It would in any case be logical on the Scottish Government's part for pragmatic reasons to use the same question as last time given the Electoral Commission said it was intelligible and not biased.

Timing

The only area in respect of which the UK Government is arguably on firmer ground is with respect to the timing around which a power may be exercised by the Scottish Parliament. Even then, we need a constitutional argument for why a power over timing justifies an outright veto over whether a referendum should be held at all. Put simply, what constitutional principles are protected by letting the UK Government determine when, at all, the Scottish Parliament can hold a referendum? This question is, again, not the same as the question when should the Scottish Parliament hold a referendum.

This question also breaks-down into a further inquiry: what kinds of control over the timing are necessary to protect fundamental constitutional interests? Should the UK Government be allowed, in extremis, to dictate the date? Should they be allowed to impose a time limit? Should they be allowed to impose a minimum waiting period? If there are additional concerns about a referendum taking place during a time of constitutional uncertainty (with Brexit negotiations) or that one is held too soon after a previous one, just what, in the terms Adam puts it, is it that has to be "done by agreement" between Governments and Parliaments, and what it is that has merely to be "done by agreement" between Members of the Scottish Parliament? What aspects of this process can the Scottish Parliament not be trusted to get right?

These are questions that the UK Government have not answered. If a power on restricting the timing of a referendum is not itself one that is subjected to checks and balances, it is in essence a legal veto. That is a drastic position that should demand clear constitutional justification, not just a descriptive statement of constitutional fact.

Conclusion

Saying that referendums must proceed by agreement does not tell us how they ought to proceed, and it does not tell us what constraints ought to apply, what it is reasonable to insist upon and what we should do if people cannot agree. Without those constraints referendums aren't "only held by agreement" at all. You are instead giving a partisan veto to a political institution dominated, structurally, by pro-Union politicians, and you have to provide a constitutional, not just a political, defence for that.

I do not think it is sustainable to make a constitutional argument against Holyrood being entitled to legislate for a second referendum on Sturgeon's timescale unless you reject, and reject openly, honestly and clearly, the notion that whether or not Scotland should be an independent country is ultimately a decision that should be for the Scottish people to choose or not to choose to take. It involves the rejection of the Claim of Right, the political articulation of the idea that the UK is a union constitution, not a unitary one, and that it is the sovereign right of the Scottish people to determine the form of government suited to their needs. The Scottish Parliament is the only democratically elected legislature that provides a representative basis for an expression of the will of the Scottish people.

And you know what? It's fine to reject that. But given it is the sentiment upon which much of the political legitimacy for the devolution settlement rests, good luck with that.