How Would a Hung Parliament Play Out? Back to the 1970’s…

It appears to be more than a wobble. Discussion of a traditional mid-election blip in polls for the Conservatives has developed into predictions (notably by YouGov) of a hung parliament with the Conservatives as the largest party. However, other polls still indicate that a Conservative majority remains the most likely result next week. Nevertheless, it is worth discussing what could happen in a hung parliament. In a hung parliament, the rules on government formation are well established. The Prime Minister is only expected to resign when it is clear that an alternative government has emerged. However, the parties would be expected to conduct negotiations to see what shape an alternative may take.  In 2010, the fact that only an agreement between the Liberal Democrats and Conservatives could deliver a majority meant that was always going to be the most likely result.

YouGov has suggested that the result would be –

Conservative 310
Labour 257
SNP 50
Northern Irish Parties 18
Liberal Democrat 10
Plaid Cymru 3
Green 1
Other 1
UKIP 0

 

If a hung parliament does occur, no one is predicting that Labour would be the largest party, making these numbers a good scenario to work through. Although 326 is seen to be the magic number as that guarantees an overall majority, a government can survive if they just fall short of this. Ordinarily, the Speaker and his two deputies do not vote, and Sinn Féin do not take up their seats in Westminster. Assuming Sinn Féin returns four MPs (as they did in 2015), this makes the target 322. With this as the target, there are two main possibilities.

Conservative & Northern Irish Unionist MPs

The Conservatives could govern as a minority government with the support of the Unionist MPs from Northern Ireland in a confidence and supply agreement. In 2015, the Democratic Unionist Party and the Ulster Unionist Party each won eight and two seats respectively. These estimates would mean that the Conservatives are just short of the revised target of 322 by two votes. In such circumstances, the Unionists would be expected to support the Conservatives, and the Ulster Unionists propped up the fag end of Major’s government as it stuttered towards the 1997 election. The sticking point would be the border between Northern Ireland and the Republic, as both Unionist parties would seek assurances that the open border is retained and that Brexit would not otherwise compromise the Peace Process. Furthermore, given Jeremy Corbyn’s “past” as regards the IRA, it would be inconceivable for the Unionist parties to form an agreement with Labour. The benefit of this arrangement is that it would have relatively few moving parts.

Progressive Alliance and EVEL

“A Progressive Alliance”, would see Labour and the SNP as the main players. These two parties working together would still not be enough for an overall majority. Any agreement would be likely to require a commitment from Jeremy Corbyn for a date for the second Scottish Independence Referendum (“IndyRef 2”). Corbyn has hinted that he would be willing to make such a concession. Other possible parties, include the support of the Liberal Democrats, whose primary demand would presumably be a referendum on the Brexit deal, and any Green and Plaid Cymru MPs. The difficulty would be the constant negotiation required to keep all parties satisfied. A serious constitutional difficulty is English Votes for English Laws (“EVEL”). EVEL is the procedure in the House of Commons by which a law that affects only England needs the approval of a majority of English MPs. The problem for the “Progressive Alliance” is that it would only have a minority of English MPs as a majority will be Conservative. This was the case in the last two elections (in 2010 the Conservatives majority in England was 63, in 2015 it was 105) and are clearly on course to do similar at this election. Given that Labour’s flagship issues such as the abolition of tuition fees are English only issues, this “Progressive Alliance” will lack the English majority it requires to get these proposals through the House of Commons using the EVEL procedure.

Another consideration against a progressive alliance are the positions of some Labour MPs. John Woodcock has gone on record as saying that despite standing as a candidate for Labour, he would not support any motion that would make Jeremy Corbyn Prime Minister. Other Labour MPs are likely to find themselves in a similar position and have a serious and difficult decision to make. These MPs could be critical if the parliamentary arithmetic is as tight as YouGov suggest.

Back to the 1970’s?

The closest parallel to all of this is 1974 when Edward Heath called an election asking the question, ‘Who Governs’? This led to Heath losing his majority, and then losing office after failing to reach an agreement with the Liberals led by Jeremy Thorpe. Harold Wilson led a minority government for Labour, calling a further election after in October. This resulted in Wilson gaining a majority of 3, with Labour managing to remain in government four and half years with support from the support of the Liberal Party (the Lib/Lab pact), the Ulster Unionists, and the Scottish Nationalist Party and Plaid Cymru. This government fell after the nationalists withdrew their support, and the government lost a vote of no confidence in 1979.

The great irony was the concern that Jeremy Corbyn was taking the country back to the 1970’s. If a hung parliament is the result next week, the person taking the country back to the 1970’s is not Jeremy Corbyn, it is Theresa May.

IndyRef 2: Adding a New Dimension to Brexit

Today, Nicola Sturgeon made her announcement that not only does she seek a second independence referendum, but that she intends to hold it at some point between late 2018 or early 2019. The Scottish Government will seek the approval of the Scottish Parliament as soon as next week, and then seek approval from Westminster to hold the referendum, known as a Section 30 Order. This process is similar to the process undertaken for the first independence referendum held in 2014.

Following Brexit, this has been inevitable since it was clear that the SNP’s demands for a “differentiated” exit from the EU (with Scotland retaining access to the internal market) are not going to met. Indeed, such orders were unlikely ever to be delivered as the EU chiefly operates through its Member States rather than internal nations, regions, or any other subdivision. Brexit is the “material change” in circumstances that the SNP requires for a second referendum. What makes Sturgeon’s speech a surprise is that the SNP also stated that there needed to be “clear and sustained evidence” of support for independence before a second referendum. The lack of this evidence suggested that despite Brexit, IndyRef 2 was more of a medium-term probability than a short-term certainty.

Sturgeon’s speech has attempted to convert IndyRef 2 into a short-term certainty. This move is to take advantage of present conditions, of being in a strong position at Holyrood (albeit just short of a majority), a Conservative Government at Westminster and most of all, Brexit. The first of those conditions, the SNP’s position at Holyrood, is doubtful in the long-term. As the saying goes “to govern is to choose”, and the strain of being in office since 2007 means that the SNP’s popularity may have peaked. When reaching the summit, the only direction is down, even if it is a slow descent. The electoral system for the Scottish Parliament makes it difficult for the SNP to retain its hegemony in perpetuity. Only a small reduction in SNP support will close the window of opportunity for a second referendum. Sturgeon has decided to take the opportunity now to maximise the advantages for the independence cause of Brexit and the Conservative Government at Westminster.

The intention is to hold the referendum as early as autumn 2018, in the belief that the shape of UK’s exit from the EU will have emerged by that point. This is also the UK Government’s belief, but this is at best uncertain. Agreements in principle can be reached during the negotiations, but there is no deal until the whole deal is approved. It is entirely possible that negotiations degenerate into last minute compromises (on both sides). It would not be the first (or last!) EU negotiation to do so.

Entangling Scottish independence with Brexit in this way is unwise. Under Article 50, the UK will leave the EU two years after the UK has notified the EU of its intention to do so, which will be March 2019. Should Scotland vote for independence, they will not have left the UK by the time the UK has left the EU. For the first independence referendum, the SNP indicated that negotiations for Scotland to leave the UK would take at least eighteen months. Applying that to IndyRef 2 means that Scotland would leave the UK in 2020. Only then could Scotland begin the process of joining the EU. There is no guarantee that Accession to the EU will take place at all or be on terms acceptable to Scotland. Just like in 2014, the biggest issue is likely to be the currency, and potential adoption of the Euro, and not every EU country will automatically welcome Scotland with open arms (i.e. Spain, concerned about encouraging the Catalonian independence movement). The worst scenario of all would be for Scotland to be outside both the UK and EU. Essentially, Sturgeon has made a choice to leave one union to which 63% of Scotland’s exports go, to seek potential membership of another union that receives 16% of its exports. While the economic arguments for Brexit were more balanced (44% of the UK’s exports go to the EU), this cannot be the case with IndyRef 2.

It’s not clear that Sturgeon will get her way. The breakdown in relations between the Scottish and UK Governments is shown by the unilateral manner of Sturgeon’s actions. There has been no repeat of the Edinburgh Agreement with the two governments agreeing on the basis for the first referendum. By contrast, conflict is now hard-wired into the development of this referendum. Blame for this does not rest exclusively at Bute House, but is shared with the UK Government. A “hard” Brexit will intensify the impact of leaving the EU, intensifying Scottish (and for that matter Northern Irish) dissatisfaction with leaving the EU against their will. Accompanying the intention of a “hard” Brexit should have been a clear commitment to devolving to Holyrood many of the powers returned from the EU. The UK Government’s White Paper on Brexit was, at best, vague on this point. This touches a more fundamental problem. There appears to be a lack of a coherent plan within government linking the emerging federalisation of the UK and devolution to English cities to Brexit.

The critical area for conflict will be the timing for IndyRef 2. Sturgeon indicated that the timing of IndyRef 2 is a matter for Scottish Parliament. This was not the case for the 2014 Referendum. The Section 30 order, (passed by Westminster granting the Scottish Parliament the power to legislate for the referendum) made clear that the referendum had to be held by the end of 2014. The UK Government may view the timetable announced by Sturgeon as unsustainable, and will not want to open a second front with the conclusion of the EU negotiations still pending. A more likely date is later in 2019 or 2020 once the UK has left the EU, with any transitional arrangement in place.

Already Sturgeon’s intervention has had an effect; Article 50 will now be towards the end of the month rather than this week. Compared to the Miller case, this is far greater challenge to Theresa May’s plans for Brexit. It has forced Scottish concerns to become a key part of the UK’s thinking on Brexit, adding an extra dimension to the Brexit negotiations, which were already described as a game of three-dimensional chess. How many more dimensions will be added before March 2019?

Preview on Miller – An Article 50 Bill? – Parliamentary Fun & Games

This week, the Prime Minister, Theresa May, has unveiled her twelve-point plan for Brexit as March 31st, her self-imposed deadline for invoking Article 50, draws ever closer. Yet, constitutionally there may be two hurdles to clear before invoking Article 50. These hurdles are only “maybes” because it depends on the decision of the Supreme Court in Miller & Dos Santos v Secretary of State for Exiting the European Union. The Supreme Court has announced that judgment will be handed down on 24th January at 9:30 am.

This post considers the main point in the Miller case, that, for the Government to invoke Article 50, an Act of Parliament granting the Government the legal authority to do so is required. There are other points, including what has become known as the “devolution issue”, that consent of the devolved legislatures is required to invoke Article 50. Miller also has the potential to raise other profound points of constitutional law, but this depends on the approach that the Supreme Court decides to take.

THE HOUSE OF COMMONS

In my view, it is highly likely that the Supreme Court holds that an Act of Parliament is required for the government to invoke Article 50. The Government has already made clear that, if necessary, they will introduce a Bill into Parliament (called in this post the ‘Article 50 Bill’) soon after the Supreme Court’s decision. The Government’s intention is for this Bill to be as short as possible, to protect it against amendments by parliamentarians wanting to make a last-ditch attempt to block Brexit.

Certainly, in the House of Commons, such parliamentarians are unlikely to prevail. It’s clear that the parliamentary politics has moved more quickly than the legal process. When the Supreme Court was hearing Miller case, the House of Commons overwhelmingly approved a motion (by 461 votes to 89), that “calls on the Government to invoke Article 50 by 31 March 2017”. This highlights how the House of Commons as a whole has already approved the principle of Brexit. This is despite the SNP and as many as 60 Labour MPs (possibly defying their party whip) indicating that they will vote against an Article 50 Bill. With estimates showing that around 75% of English and Welsh MPs represent constituencies that voted to leave, the parliamentary arithmetic is clear that any Article 50 Bill will pass the Commons.

THE HOUSE OF LORDS

The House of Lords is likely to be more difficult. At a basic level, the House of Lords were more strongly in favour of remaining in the EU than their elected counterparts in the Commons. Also, the Government lacks a majority in the Lords, which makes passing any legislation more difficult with the Government suffering defeats on amendments relatively frequently (for example on fifteen occasions since May 2016)

Constitutionally, their Lordships may be emboldened by the knowledge that any Article 50 Bill will now lead to the UK leaving the Single Market. This is because there is now a stronger argument that an Article 50 Bill does not benefit from the Salisbury Convention. This is a constitutional convention which means that any legislation that implements a manifesto commitment of the Government is granted a second reading (i.e. approved in principle) and is ultimately passed by the Lords subject to their ability to amend the legislation. The theory behind this is that as the House of Lords are unelected, they should not obstruct legislation for which the Government can claim a mandate, for it has been “approved” by the electorate.

The issue is that the Salisbury Convention may not apply to an Article 50 Bill because the Conservative manifesto at the 2015 General Election stated, “We are clear about what we want from Europe. We say: yes to the Single Market” (p 72) and “we benefit from the Single Market… [and] will not let the integration of the Eurozone jeopardise the integrity of the Single Market or in any way disadvantage the UK” (p 73). The tone of the relevant section of the manifesto was to commit to a referendum, and respect the outcome, but that the Conservatives support the UK’s membership of the Single Market. From this, it is far from clear that the Government has a manifesto commitment to take the UK out of the Single Market. This may be enough for some peers to feel that they are constitutionally entitled to block any Article 50 Bill.

To take such a view would be to the exclusion of other broader constitutional principles. Notably, the referendum itself and the role of direct democracy in the constitution. It should be remembered that the House of Lords also passed the legislation authorising the referendum. Many peers, aware of their unelected status, will not seek to impede the democratic process. It’s one thing for an elected MP to block an Article 50 Bill, in the face of the referendum result, as they remain accountable for their decisions at the next general election. However, this would be another thing entirely for an unelected peer to do. The House of Lords must try and reconcile the differences between their constitutional functions honed to give effect to representative democracy and develop principles in response to the more targeted sledgehammer of direct democracy.

oIt’s most likely that the House of Lords would recognise their limitations and yield to the mandate of the referendum while attempting to amend an Article 50 Bill. Should they seek to overreach their position, and go as far as blocking the Bill, the inevitable consequences would extreme and self-defeating. The future of the House of Lords in its present form would be placed under considerable pressure, placing at risk the important role that it plays in the legislative process as a ‘revising chamber’. This would all be a pyrrhic victory as the Government could prevail, in any event, through invoking Parliament Act procedure. The Government could introduce the Article 50 Bill a second time, which, if the Lords blocked it again, could still become law. The veto of the House of Lords is only suspensory, not absolute. The problem would be that this process takes a minimum of one year, which would wreck the Government’s schedule entirely.

AN EARLY GENERAL ELECTION?

A more likely solution is that the Government would seek a general election. The obstacle here is the Fixed-term Parliaments Act 2011. Section 1 states that a general election would be held (as indeed it was) in May 2015. Then the provisions of the Act kick in, the effect of which is that the next election is due in May 2020. A general election can only be held before then if 66% of MPs vote for it, or if Theresa May loses a vote of no confidence. Neither of these is likely to happen. Alternatively, the Government could introduce a bill to Parliament which would effectively reset the 2011 Act, by amending section 1 of the Act to a date of the Government’s choosing. For example, a date in March. While this would delay the Article 50 process, this is far quicker than using the Parliament Act. The Government would portray the House of Lords as being the cause of the need for the general election, and the unelected House of Lords could not possibly refuse this second bill and hope to retain any credibility.

BE CAREFUL WHAT YOU WISH FOR?

Should events become so extreme, the conclusion would only be self-defeating. Those seeking to block an Article 50 Bill would either be seeking to block Brexit or try to achieve a “soft Brexit” by placing pressure on the Government to change tack. As discussed above, the ultimate effect of any such efforts with an Article 50 Bill would be an early general election. Polls indicate that an early election would lead to a Conservative government with a far larger majority, emboldened by being elected on a manifesto to leave the Single Market. The current lack of clear democratic mandate and the Government’s small majority are tools which can be utilised to scrutinise and pressurise the Government as it negotiates with the EU. Further, given the inevitable concession by the Government that Parliament will vote on any exit deal, the Government’s small majority in the Commons will remain a consideration throughout the negotiation process. For those concerned about Brexit, it is better to use the current questions over the legitimacy of the Government’s position as a tool of constraint rather than becoming the reason why the Government seeks to remove those constraints. Those concerned that Brexit may result in the UK’s slide towards a Singapore style economy need to understand that it could be their actions that make such an outcome more likely.