The new government’s constitutional reform agenda – and its challenges

Following the surprise election of a Conservative government with a small majority, Meg Russell and Robert Hazell offer an overview of the constitutional reforms which are likely to be prioritised and the associated difficulties that may arise.

Credit: mla_digital, CC BY NC SA 2.0

Now that the election result is clear, it’s possible to start thinking through the likely constitutional reforms on the new Conservative government’s agenda. Some of these items are obvious, and others less so. Many of them are very challenging, as we explain below – and will expand in more detail on this blog in the coming days and weeks.

Scottish and Welsh devolution

The biggest story in this election, including as the results came in, has been Scotland. The challenge for Prime Minister Cameron is to hold the UK together, at the very moment when the SNP has almost swept the board in terms of Scottish seats. The Conservative manifesto, like those of the other UK-wide parties, committed to implementing the recommendations of the Smith Commission to devolve further fiscal and welfare powers to Scotland. The Scottish people have been led to believe that will happen easily and early in the new parliament. But this may be difficult. The Smith proposals were strongly criticised by two parliamentary committees – in both Commons and Lords. The SNP will press for more, in pursuit of full fiscal autonomy; while devo-sceptic Conservative backbenchers may argue for less. The sensible thing may be to introduce proposals via a draft bill, to see whether middle ground can be found.

There is also trouble brewing in Wales. In the St David’s Day declaration the coalition government announced devolution of income tax powers to Wales, which could be introduced following a referendum, and adoption of a ‘reserved powers’ model similar to Scotland. But the offer was swiftly denounced by the Welsh First Minister Carwyn Jones, who condemned the proposals as lacking fair funding, pressing an unnecessary referendum, and failing to match Scotland in powers offered or respect shown. The Conservatives are committed to legislation on further Welsh devolution, but it will take a while to sort out the wrangling, especially over funding.

Meanwhile in Northern Ireland, unnoticed at the end of the last parliament, the Corporation Tax (Northern Ireland) Act 2015 has given power to the Northern Ireland executive and Assembly to vary the rate of corporation tax from 2017. The SNP have been quick to demand equivalent powers for Scotland.

English Votes on English Laws

The other key part of the devolution puzzle is England. The Conservative manifesto made no fewer than four separate commitments to introduce English Votes on English Laws or ‘EVEL’ (see pages 49, 69, 70, 79). This has consistently been Conservative policy since 2001 but was not implemented under the coalition – partly due to Liberal Democrat resistance, but also due to internal disagreements on the Conservative side. The government’s White Paper on The Implications of Devolution for England set out three options for implementation from the Conservative side alone. But the politics of EVEL have now changed. This has for years been seen as an anti-Labour policy, given that party’s dominance of Scottish seats, but with Labour’s wipeout it has suddenly become a question of blocking voting rights for the SNP. This could prove undermining and divisive, when Cameron is seeking to broker agreement with the SNP on further powers for Scotland (see above). It could also prove divisive within the Conservative party, which couldn’t agree before the election on which model of EVEL to support. The SNP has to date largely respected EVEL by convention, but during the campaign repeatedly expressed aspirations to block austerity measures, including in England on crucial issues such as the NHS – which could be problematic for a Prime Minister with a small majority.

Europe

The other high-profile issue that a Conservative government puts firmly back on to the agenda is of course Europe. The Conservatives have promised an in-out referendum by 2017, and for Cameron this was a red line issue. His narrow majority means that his Eurosceptic backbenchers are in a strong position to hold him to his promise. They will ensure that the referendum bill passes the Commons; but it may run into greater obstacles in the House of Lords. In that chamber the Liberal Democrats and Crossbenchers hold the balance of power, meaning that along with the Labour opposition, a referendum bill may get a rocky ride. But the real difficulties will come after. The government won’t be able to prevent Eurosceptic MPs campaigning to leave the EU. They could be as many as 100, which would split the Tory party down the middle.

Human Rights

Difficulties also await the Conservatives’ long-held commitment to repeal the Human Rights Act and replace it with a British Bill of Rights. Commentators have puzzled over what such a Bill of Rights would contain, and the commitment has some senior critics – most notably former Attorney General Dominic Grieve – within the Conservative party. The party will now have to spell out exactly what it means by a British Bill of Rights (which had been promised in draft before the election), and put this into legislation if it wants to follow through. But any such bill is likely to face difficulties with the devolved governments, who want to stay in the ECHR and the jurisdiction of the Strasbourg court. It will also face enormous resistance from the House of Lords, given the presence of senior lawyers on the Crossbenches, and the implacable opposition of both Labour and the Liberal Democrats. The commitment was included in the Conservative manifesto (page 73), but may nonetheless stretch the Salisbury Convention to its limits.

Electoral Reform

For some, the general election has put electoral reform back on the agenda. This has been called for by the most obvious bodies, and also prominently by UKIP. But, as Alan Renwick has noted, the obstacles to reforming the Commons voting system remain as big as ever. Most reformers want PR, but AV could also have helped resolve tactical voting dilemmas and helped Unionist parties hold onto some seats in Scotland (and other seats elsewhere). Either AV or PR could contribute to holding the Union together, by reducing artificial ‘electoral deserts’ for parties in certain areas of the country. Nonetheless, the Conservatives are instinctively opposed, and their manifesto promised to ‘keep First Past the Post’ (page 49) – a commitment which will be strengthened following an election that gave them 51% of the seats on 37% of the votes. What the party is committed to is a return to changing electoral boundaries and reducing the number of MPs. This is another policy which will attract resistance – including in the Lords – from Labour and Liberal Democrats.

House of Lords Reform

A Conservative win takes large-scale House of Lords reform off the political agenda. The party’s manifesto explicitly stated that ‘this is not a priority in the next Parliament’ (page 49). Labour and the Liberal Democrats (and the Greens, Plaid Cymru and SNP) included ambitious reform commitments, but are now in no position to press for these to be put into effect. But the Conservative manifesto did go on to commit the party to ‘addressing issues such as the size of the chamber and the retirement of peers’, which may prove challenging in practice. As Constitution Unit research has shown clearly, the size of the Lords grew more rapidly under Cameron 2010-15 than in any period in post-war history, and badly needs bringing under control. Yet at the same time Cameron will find himself in a far weaker position in the Lords than he was during coalition, so may be tempted to appoint more Conservative peers. His initial challenge is to resist demands for dissolution appointments from other parties, and to apply iron restraint. Doubtless he is already regretting his lavish Liberal Democrat appointments, bringing that party to over 100 peers while it now holds only 8 seats in the Commons. Some sort of forced retirement system might begin to look attractive.

Fixed Term Parliaments Act

Cameron may also come to regret having introduced the Fixed Term Parliaments Act, as the only major constitutional reform passed by the coalition government. It will prevent him from calling an early second election if he wants to improve his numbers, because the Act abolished the prerogative power of dissolution. It will also deny him a weapon with which to threaten rebellious backbenchers. He may be tempted to try to repeal the Act, as Conservative backbenchers urged in a debate last October. But there are technical and political difficulties. Legislating for a return to the status quo ante would confer on the PM the advantage of choosing the date of the next election, which could be hard to publicly justify. Yet repeal would not simply restore the former status quo. Because the prerogative power of dissolution has been abolished, it would have to be re-created in statute; but it might prove difficult to define the circumstances in which a PM could properly request a dissolution. It may prove better to await the statutory review provided for in the Act, which must report in 2020.

A Constitutional Convention?

Given the number of difficult constitutional issues facing the government, particularly the territorial challenges, there could be some merit in establishing a Constitutional Convention involving citizens, to chew some of these questions over. This was a commitment of Labour, and the Liberal Democrats – while the Conservatives retained an open mind (see page 27) on the question, and did not publicly commit. But a convention could now have some pragmatic attractions: it would provide a less partisan and pressurised environment in which relations between the different parts of the UK could be discussed (as the SNP, while holding 95% of Scottish seats won only 50% of Scottish votes). It could avoid some divisive arguments within the Conservative party, and buy the government some valuable time. Should Cameron and his colleagues decide to pursue this option, guidelines for design of a convention backed by a wide range of academic experts were published by the Unit in the days leading up to the poll.

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Note: this post originally appeared on the Constitution Unit blog and is reposted with permission. It represents the views of the author and not those of Democratic Audit or the LSE. Please read our comments policy before posting.

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Robert Hazell is Professor of British Politics and Government & Director of the Constitution Unit.