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Rishi Sunak and Keir Starmer in parliament (CC BY-NC-ND 2.0) by UK Parliament.
Pre-election politics and the constitution
Constitutional politics – just like politics more broadly – is increasingly framed by the UK’s looming general election. That must take place within the next 10 months, but could be called within weeks. Each party is preparing its pitch to voters, and preparatory changes – some of them controversial – have been made to electoral law.
A Conservative priority is to ‘stop the boats’ that carry asylum seekers across the English Channel. The Supreme Court ruled in November that one of the policies through which ministers hope to advance that aim – sending some asylum seekers to Rwanda – was illegal, as asylum seekers there could be returned to home countries where they are in danger (see below). The government responded to this judgment by upgrading its previous memorandum of understanding with the Rwandan government to a treaty and by introducing legislation that, if passed, will declare Rwanda to be a safe country, prevent courts from deciding to the contrary, and empower ministers to ignore injunctions granted by the European Court of Human Rights (see below).
These moves seem motivated by a belief among ministers that seeing flights take off for Rwanda is essential for their party’s prospects at the ballot box. But, in attempting this, they risk placing electoral expediency ahead of the rule of law. The Rwanda bill is criticised for breaching the UK’s obligations under international law and for undermining the separation of powers between parliament and the judiciary. Both of these points are central to the British constitutional tradition.
Labour, meanwhile, is keen to show voters that it shares their distaste for how politics has been conducted in recent years. It wishes to establish an ‘Integrity and Ethics Commission’ charged with upholding standards in government, the detail of which remains unspecified. And Keir Starmer has insisted that he would sack any minister found to have seriously broken the Ministerial Code. A sympathetic biography of Starmer published in late February said the party was carefully examining recent proposals for reform from a commission led by former Conservative Attorney General Dominic Grieve. The same book also highlighted potential interest at the highest levels of Labour in using citizens’ assemblies to aid effective policy-making.
The proximity of the election seems also to have contributed to an increasingly vexatious tone in political debate. In November, the Prime Minister, Rishi Sunak, sacked his Home Secretary, Suella Braverman, for comments about the police that were widely viewed as inflammatory. In February, the Conservative whip was withdrawn from Lee Anderson after he made Islamophobic remarks. Labour faced similar woes, having to disown its candidate in a by-election in Rochdale for having propagated conspiracy theories about Israel. That by-election was subsequently won by controversial former MP George Galloway.
In February, the House of Commons descended briefly into chaos during a debate on the conflict in Israel and Gaza (see below). The Speaker, Lindsay Hoyle, had side–stepped convention to allow voting on a range of options, in order, he said, to diffuse tensions. But that failed, generating fury, particularly from SNP MPs, whose attempt to expose Labour splits was consequently lost. Hoyle’s position remains precarious. But a deeper concern is that an opportunity for serious debate of a supremely sensitive issue was instead weaponised by all sides as a forum for partisan game-playing. The arguments were partly fuelled by fears about threats against MPs, only weeks after the Jo Cox Civility Commission published proposals for how to tackle abuse and intimidation in politics (see below). Labour MP Stella Creasy is among those recently raising concerns about the way in which the personal targeting of MPs risks driving out reasoned debate.
Meanwhile, certain rules for the forthcoming election itself have been altered (see below). Some of these changes are positive. Notably, new constituency boundaries came into force in November – the first to be implemented without the possibility of political interference. But other changes are more controversial. A ‘strategy and policy statement’ now ‘guides’ the Electoral Commission – a move that many see as violating the Commission’s vital independence. Campaign spending limits were suddenly increased. Legislation now before parliament would allow constraints on direct marketing by candidates to be lifted. But calls for other changes - made by the Electoral Commission, the Lords Constitution Committee, and others – have not been heeded.
For many people, the sense of constitutional gloom was heightened by worries over the health of the monarchy (see below). The King was diagnosed with cancer and withdrew from public engagements. The Princess of Wales had major surgery and ceased all her duties. While the King was known to have wanted the royal family to ‘slim down’, these sudden unexpected changes perhaps expose some of the risks of going too far.
Away from Westminster, there was good news in Northern Ireland, where devolved government resumed in early February after a two-year hiatus (see below). Northern Ireland has its first nationalist First Minister, in Sinn Féin’s Michelle O’Neill. Early indications were that she was working effectively with the new deputy First Minister – Emma Little-Pengelly of the DUP. The new Executive’s in-tray is formidable, however, and questions about how the power-sharing institutions can be put on a more secure footing remain.
Wales will also shortly have a new First Minister, Mark Drakeford having announced in December his intention to step down (see below). The outcome of the resulting leadership election – contested between ministers Vaughan Gething and Jeremy Miles – is due to be announced on 16 March.
Steps towards major reform of the Welsh Senedd meanwhile continue. A bill to expand the chamber from 60 to 96 members passed its first stage of parliamentary scrutiny in January. Controversially, the bill would also replace the current mixed electoral system with a proportional system based solely on closed lists.
Wider constitutional reforms have also been considered in Wales: a commission set up to examine options, chaired by Laura McAllister and Rowan Williams, published its final report in January. Yet neither the Conservatives nor – at UK level – Labour have signalled any willingness to countenance significant change.
Finally, while political developments in the devolved nations often resonate little in London, one court judgment in Northern Ireland raised eyebrows (see below). The High Court in Belfast ruled that large parts of the so-called ‘Legacy Act’ passed last year are incompatible not only with the European Convention on Human Rights, but also with ongoing obligations in EU law, and it disapplied them on that basis. The ruling has been appealed by the UK government. But it serves as a reminder that, even after Brexit, Westminster cannot always do what it pleases.
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Government policy on Rwanda
The government introduced the Safety of Rwanda (Asylum and Immigration) Bill to parliament in December. This responds to the Supreme Court’s judgment against the government’s Rwanda asylum policy (see below) by seeking to declare in statute that Rwanda is a safe country and placing limits on courts’ ability to find otherwise.
The bill has been criticised by opposition parties who reject the whole Rwanda policy, and by some on the right of the Conservative Party who want even greater limits on the scope for legal challenges. However, despite much advance speculation about a possible Conservative rebellion, the bill passed its Commons second reading comfortably, with several government backbenchers abstaining, but none voting against it. Later stages saw more overt opposition, with 61 Conservative MPs backing one amendment, and 11 voting against the bill’s third reading. However, the bill passed the Commons unamended. As Monitor went to press, it was having a far tougher time in the Lords, where it had suffered 10 government defeats by large margins, some of which (such as a Labour amendment insisting it must be in ‘full compliance with domestic and international law’) may prove difficult to overturn in the Commons.
The bill’s critics have been given plenty of ammunition by a series of committee reports. The Lords Constitution Committee suggested that using a statute to rule on the factual question of Rwanda’s safety raises concerns about the separation of powers. It also highlighted implications for the rule of law and the universal application of human rights, which were echoed in a highly critical report from the Joint Committee on Human Rights.
Rishi Sunak and the President of Rwanda, Paul Kagame (CC BY-NC-ND 2.0) by UK Prime Minister.
The bill was accompanied by a new treaty with the Rwandan government, which was intended to address the Supreme Court’s concerns. In January, the Lords backed a recommendation from its International Agreements Committee that the treaty should not be ratified until the promised improvements to Rwanda’s asylum system had been implemented. This is the first time that the Lords has voted against a treaty in this way. However, its recommendation is non-binding: section 20 of the Constitutional Reform and Governance Act 2010 simply requires ministers to issue a statement explaining the reasons for ratification. MPs have greater potential power to delay ratification, and a debate was requested by the Commons Home Affairs Committee, but the government’s agenda control allowed it simply to not schedule a debate. The Unit explained parliament’s role in treaty ratification in a briefing, recently published on our blog.
The wider system of treaty scrutiny was the subject of a new report from the Commons Public Administration and Constitutional Affairs Committee, which recommended several reforms to enhance parliament’s role. These include requiring active Commons approval for any legally binding international agreement, as well as the setting up of a new treaty sifting committee, which would have the power to recommend extending the current 21-day scrutiny period for treaties.
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Parliament and military action
The UK’s air strikes in Yemen in January refocused attention on the question of parliament’s role in scrutinising and approving government decisions on military action. The government is not constitutionally required to consult parliament on military deployments, which are ordered under the royal prerogative, although there have been growing expectations of parliamentary consultation following the 2003 vote on the Iraq war.
Rishi Sunak made a statement to the Commons after the initial 11 January strikes. This gave MPs a chance to debate the government’s course of action, though not to vote on it. Sunak made a further statement after a second round of strikes, as did Defence Secretary Grant Shapps after an additional series of strikes in early February.
This follows the same approach taken in April 2018, when Theresa May’s government authorised attacks on targets in Syria. That action was undertaken without prior parliamentary approval and was followed by a prime ministerial statement to the Commons. However, parliament’s past role has varied, with different deployments seeing MPs offered a prior vote, a retrospective vote, or no debate at all.
Some opposition parties – including Plaid Cymru, the Scottish National Party and the Green Party – criticised the lack of prior parliamentary debate. The Liberal Democrats proposed legislation to require prior parliamentary approval of military deployments (with some exceptions). Introduced as a private members’ bill, this has little chance of becoming law. Keir Starmer had previously proposed something similar, but has now suggested he would be open to other, non-legislative, routes to codifying a role for parliament. The challenges facing such codification were recently discussed on the Unit’s blog.
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Commons Speaker faces controversy
February saw the Speaker of the House of Commons, Lindsay Hoyle, facing a row over his handling of an SNP opposition day debate about a ceasefire in Gaza and Israel. Hoyle departed from conventional practice by selecting both a Labour amendment and a government amendment to the SNP’s motion. While government amendments to opposition day motions are voted on after the main proposal, those from other opposition parties are voted on before it. Hoyle’s selection therefore raised the possibility of the SNP’s motion not being voted on in its original form. This ended up happening once the government withdrew from proceedings (ostensibly in protest at the Speaker’s breach with convention).
A furious Commons argument ensued, with the Speaker being criticised for departing from usual practice in a way that appeared to benefit the Labour Party. Hoyle later apologised, but fuelled further criticisms by suggesting that he had been partly influenced by threats to MPs’ safety. The procedural background and implications of this episode have been discussed in more depth on the Unit’s blog.
The Speaker also compounded his unpopularity with the SNP by appearing to offer it a future ‘emergency debate’ but then not accepting its application for one. He now faces a serious challenge to his position. The SNP and Plaid Cymru have called for him to stand down, and almost 100 MPs have signed a motion of no confidence in him. Though the government and the Labour Party have not joined these calls for Hoyle to go, his noticeably ‘hands-off’ approach to the following week’s noisy session of Prime Minister’s Questions suggests his authority in the House has been dented nonetheless.
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Parliamentary standards
The House of Commons Commission published new proposals in December to allow the ‘risk-based exclusion’ of MPs from the parliamentary estate. The new rules, if implemented, would allow a panel of MPs to exclude a member based on the potential risk that they might pose to the parliamentary community. The assessment would be triggered by the police informing the Clerk of the Commons of serious allegations of a violent or sexual offence by a member (in practice, this would likely occur following an arrest). These proposals update plans published last summer (see Monitor 84). The Lords Procedure and Privileges Committee proposed a scheme for peers charged with sexual offences to be automatically excluded, and a standing order to give it effect. Both were approved by peers on 28 February.
Separately, the Commons Standards Committee’s inquiry into the standards system is now taking evidence. The inquiry, launched last July, is examining ‘the landscape of bodies and processes that have some role in regulating the conduct of MPs’, with a view to establishing whether the system might be streamlined and better communicated to MPs and the public.
The Standards Committee concluded its investigation into Conservative MP Scott Benton. Benton was found to have offered to lobby ministers, table parliamentary questions, and supply confidential documents in exchange for payment, in a meeting with undercover reporters purporting to represent the gambling industry. The committee recommended a 35-day suspension. Benton appealed the finding via the Independent Expert Panel, but this was unsuccessful: the panel found that the original investigation was procedurally fair and that the sanction was proportionate. MPs confirmed the sanction without the need for a vote, triggering the recall process (see below).
In the Lords, Lord (Robert) Skidelsky was suspended for a month after its Conduct Committee upheld a finding by the Commissioner for Standards that he had breached the Lords Code of Conduct by running a charity from his parliamentary office and failing to properly register relevant interests.
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Appointments to the House of Lords
Rarely does an issue of Monitor pass without new controversies about appointments to the House of Lords. Since the last issue, the most eye-catching such appointment was that of former Prime Minister David Cameron, who rejoined parliament in November to take up the role of Foreign Secretary as part of the mini reshuffle following Suella Braverman’s sacking as Home Secretary (see below). This briefly shifted media attention away from Braverman, until publication of her highly critical letter to the Prime Minister the following day.
Subsequently, on Friday 9 February, 13 new political peerages were announced. The most unusual among these was that of Plaid Cymru member Carmen Smith, who becomes (only a few months after the appointment of Charlotte Owen) the youngest ever life peer, aged 27. Such appointments, alongside the known ambitions of Conservative former Cabinet minister David Frost, who is on the party’s candidate list to become an MP, raise the rather worrying prospect of the Lords becoming a training ground for the House of Commons.
The latest appointments, the remainder of which comprised eight Conservative nominees and four Labour, also aggravate concerns that the chamber’s Conservative dominance could drive a future Labour Prime Minister to boost its 800-plus membership further in order to rebalance it. In an interview in December, Labour Leader in the chamber Baroness (Angela) Smith of Basildon sought to reassure people that this would not be the case.
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A Foreign Secretary in the Lords
Cameron’s appointment raised immediate questions about how the new Foreign Secretary could be held to account in parliament. The last Foreign Secretary to serve from the Lords was Lord (Peter) Carrington, until 1982, and even this was somewhat controversial. Enhancing procedures agreed when Gordon Brown appointed senior figures to his Cabinet from the Lords, the Foreign Secretary will face a monthly dedicated question time in the chamber (distinct from other questions in the Lords which are on a daily cross-departmental basis).
Lord (David) Cameron of Chipping Norton (CC BY-NC-ND 2.0) by ukhouseoflords.
Following concerns raised, including by House of Commons Speaker Lindsay Hoyle, about accountability to MPs, the Commons Procedure Committee conducted a swift inquiry into the options. It suggested in January that Cameron should be able to answer questions and make statements from the bar of the House at the end of the chamber, rather than the dispatch box where Commons ministers speak. A brief debate was held on the proposals the following day, but no formal decision has yet been taken.
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Electoral Commission Chair speaks out
At the start of a year that is almost certain to include a general election – as well as a range of local elections in England and Wales – the Chair of the Electoral Commission, John Pullinger, gave two interviews in which he was unusually frank about shortcomings in the UK’s electoral architecture.
Speaking to The House magazine, he repeated previously voiced concerns that funding cuts and other complications have increased the risk that an election may fail. He also highlighted a need for electoral law to be simplified, arguing that the current complexity, born of multiple rounds of amendment over the years, greatly hinders administrators, political parties, and campaigners.
In both the House interview and in the Financial Times, Pullinger also expressed worries over growing disengagement from electoral politics among the young. And he urged immediate attention to the dangers generated by AI-generated disinformation and deepfakes.
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Implementing the Elections Act
The Elections Act 2022 introduced a wide range of changes to electoral legislation in the UK. These changes are going through a phased implementation.
Changes to the processes of applying for postal and proxy votes came into force in the autumn. Applications can now be made online. But new identity checks and other limits have been introduced.
In January, the 15-year rule for overseas voting was scrapped. This means that British citizens who have previously lived in the UK can vote in elections no matter how long they have lived abroad. They can also make donations to parties or candidates.
In February, the government’s ‘strategy and policy statement’ for the Electoral Commission came into force. The provision for this statement – which is intended to enable government to signal its priorities to the Commission – was one of the most controversial aspects of the Elections Act during the bill’s parliamentary passage: opposition parties and independent experts saw it as violating the Commission’s essential independence (see Monitor 81). The government’s first draft, published in August 2022, was likewise criticised, notably by two parliamentary committees (see Monitor 83). Ministers published a revised draft in June 2023 and consulted again. The cross-party Speaker’s Committee on the Electoral Commission – the parliamentary body responsible for Commission oversight – concluded that, notwithstanding some improvements, the revised draft remained ‘as fundamentally flawed and incompatible with the Commission’s operational independence as the initial draft Statement was’. But the government decided in December that it would press on with the revised draft without further amendment.
The statement was debated in the House of Commons on 31 January; notwithstanding widespread criticisms, it passed easily on a partisan vote. Peers also expressed reservations when the House of Lords debated the matter the following week. They passed a ‘regret motion’, which, though it could not block the statement’s passage, signalled deep concern.
Meanwhile, debate has continued around another controversial aspect of the Elections Act – namely, the introduction of voter ID requirements. In September 2023, the Electoral Commission published its assessment of the first application of these new rules (see Monitor 85). In the media interviews noted in the previous story, the Commission’s chair reiterated its judgement that the provision had harmful effects and that the list of acceptable forms of ID should be extended. The government published its own analysis, carried out by independent consultants, in November. This concluded that many aspects of the system worked well, but found that awareness of the ID requirement was lower among some groups, including younger adults and people from ethnic minorities. In December, the House of Lords Constitution Committee published a detailed letter to the responsible minister setting out the conclusions of its own short inquiry into voter ID. It called on the government to consider adding to the list of acceptable forms of ID, introduce electronic ID, and redouble awareness-raising efforts.
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New constituency boundaries enter into force
New Westminster constituency boundaries were legally authorised in November. As charted in recent editions of Monitor, these were drawn up by the four Boundary Commissions – for England, Wales, Scotland, and Northern Ireland – through a process that lasted over two years and concluded in June (see Monitor 84).
This is the first time that new boundaries have come into effect automatically, removing the previous opportunity for MPs to vote them down. Under the Parliamentary Constituencies Act 2020, the draft implementing legislation had to be submitted to the Privy Council ‘as soon as reasonably practicable’ after the Boundary Commissions had reported, and, in any case, within four months. The draft was submitted to the Privy Council Office on 27 October, just before this deadline. It was not, however, submitted to a meeting of the Council itself – which is what the legislation appears to require – until 15 November, after the deadline. The Order in Council was then approved, and it came into force on 29 November.
The new constituencies do not come into being, however, until the next general election. Until then, MPs continue to represent the constituencies that elected them in 2019, and parliamentary by-elections will use the old boundaries.
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New spending limits for parties at elections
As reported in Monitor 85, Levelling Up Secretary Michael Gove announced in a written statement in July that ministers intended to increase party and candidate campaign spending limits. The changes were brought into effect through secondary legislation on 20 November. They simply uprated the limits in line with inflation, which meant that they could be made through a procedure involving no parliamentary scrutiny at all. Yet, because uprating had not occurred for some years – in some cases, since the relevant legislation was passed in 2000 – the changes were large. Limits on spending by political parties in their national campaigns were raised by 80%. Those on individual candidate spending rose by less, the exact amount varying between constituencies. Limits on certain donation thresholds went up by 49%.
Transparency International was among several democracy advocacy groups that criticised the move, noting that it would undermine the political level playing field and strengthen the perception that money brings influence. It calculated that total permitted spending by a party running candidates nationwide – including both national and constituency campaigning – would rise by 45%, from £52.5 million to £75.9 million.
The introduction of these changes coincided almost exactly with report stage in the House of Commons for the government’s Data Protection and Digital Information Bill. Among a raft of measures, many of which are uncontroversial, the bill would empower ministers to introduce regulations exempting political parties and other campaigners from rules designed to constrain intrusive direct marketing. This proposal passed through committee stage last April with little comment. But the Information Commissioner subsequently raised concerns. At Commons report stage in November, Labour suggested a possible link to the increased spending limits, and unsuccessfully moved an amendment to delete the provision. When Monitor went to press, the bill was awaiting committee stage in the House of Lords.
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Recall petitions and by-elections
Three UK parliamentary by-elections were held in February. On 15 February, the Conservatives lost two seats to Labour – Kingswood and Wellingborough – that they had previously held by substantial majorities.
Keir Starmer with new MPs Gen Kitchen and Damien Egan (CC BY-NC-ND 2.0) by keir.starmer.mp.
The party has now lost 10 by-elections during the 2019 parliament – the largest such number in the post-war era – though it also gained the seat of Hartlepool in May 2021, when support for Boris Johnson was still riding high. On 29 February, George Galloway won a by-election in Rochdale that was called following the death of MP Tony Lloyd. He took the seat from Labour, which had disavowed its candidate following his comments about the situation in Gaza.
The by-election in Wellingborough followed a recall petition, which was opened after MP Peter Bone was found guilty of sexual misconduct and bullying (see Monitor 85). The petition was signed by 13.2% of electors.
A further recall petition opened on 12 March in the constituency of Blackpool South after the House of Commons backed a 35-day suspension for sitting MP Scott Benton (see above). The petition will remain open until 22 April. If 10% or more of the constituency’s eligible electors sign the petition, a by-election will be held, assuming a general election is not called in the interim.
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Maude review of the civil service
Lord (Francis) Maude of Horsham’s long-awaited review of the civil service, first commissioned in July 2022, was published in November. Some of the report’s contents had been released by Maude ahead of publication, allowing for discussion of its key proposals in Monitor 84. Maude found the arrangements for the governance and accountability of the civil service to be unclear and incomplete, with no proper scheme of internal delegation, and little external scrutiny. He recommended that the Prime Minister’s statutory power to manage the civil service should be delegated to a full time Head of the Civil Service, supported by a Civil Service Board, and with a clear mandate to drive through a programme of improvements and reform.
He also recommended that the Civil Service Commission be expanded, with a near full-time First Commissioner, who would hold the Head of the Civil Service to account for delivery of this programme. The centre of government should then be reorganised to merge the Cabinet Office and Number 10 into an Office of Prime Minister and Cabinet, which would serve as the strategic centre. The Treasury would be split in two, with an Office of Budget and Management created to manage public expenditure and cross-cutting implementation of policy, leaving the Treasury with responsibility for economic and fiscal policy, including taxation and financial services regulation. This arrangement would align the UK with other Westminster-style governments, such as Australia, Canada, Ireland and New Zealand.
The outgoing Minister for the Cabinet Office, Jeremy Quin, published the review on his last day in office, and told the Commons that the government would not be taking forward any significant restructuring of the centre of government. He also said that other long-term recommendations would not be pursued, because if implemented now, they would detract from the focus on the Prime Minister’s five critical priorities.
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Cabinet Secretary returns and access talks begin
On 14 January, Keir Starmer confirmed that he had formally written to the Cabinet Office to request the commencement of access talks, which enable opposition politicians to hold discussions with civil servants about the policies that they are planning to implement should their party form the next government. Such talks are routine in an election year and had previously been authorised by Rishi Sunak. The arrangements for the talks between shadow ministers and Whitehall permanent secretaries will be overseen by Simon Case, the Cabinet Secretary, who returned to work on a part-time basis in January, after a period of sick leave that had lasted several months.
The Cabinet Office will be engaging in the talks during a period of handover, as it has been announced that Alex Chisholm is to step down as Chief Operating Officer of the Civil Service and Permanent Secretary at the Cabinet Office. He will depart in April, when Cat Little, who is currently assigned to the Treasury and was appointed following an open competition, will take over both roles.
Cat Little.
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Public appointments
Late last year, two senior public appointments were announced. Doug Chalmers was appointed to chair the Committee on Standards in Public Life (CSPL), and Samir Shah is the new chair of the BBC. After pre-appointment scrutiny hearings the Commons Public Administration and Constitutional Affairs Committee (PACAC) endorsed Chalmers, but the Culture, Media and Sport Committee raised doubts about Shah.
Chalmers’ pre-appointment hearing involved little probing from committee members and safe answers on his part. The DCMS Committee’s questioning of Shah was a lot sharper, leading him to decline to express a view on issues such as board level interference in the BBC, or political impartiality. The committee expressed ‘serious reservations’ about his ‘ability to provide the robust challenge that the BBC leadership requires’, and stated its expectation that Shah would come back within the next three months to demonstrate that he had sufficiently considered and addressed their concerns.
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King Charles diagnosed with cancer
The announcement on 5 February that King Charles has cancer prompted a flurry of questions about what might happen next, should his condition worsen (some of which the Unit addressed in a blogpost). The answer lies in the Regency Acts, which provide for other members of the royal family to act on behalf of the monarch. In the event of temporary incapacity, two or more Counsellors of State can be appointed on a short-term basis; whereas permanent incapacity would lead to the appointment of a Regent. Should it become necessary, the heir apparent, Prince William, would become Regent. The Counsellors of State would be chosen from a pool consisting of seven people: Queen Camilla, Prince William, Prince Harry, Prince Andrew, Princess Beatrice, Princess Anne and Prince Edward. In practice only four people would be considered eligible, since Prince Harry and Prince Andrew are no longer working royals, and Princess Beatrice has never been one.
The King has continued to perform the administrative side of his role for now, but he will undertake fewer public appearances, which will mean more royal visits being undertaken by other senior royals. Five years ago, there were 15 working royals carrying out public duties. Following the death of Queen Elizabeth, the departure of Prince Harry and Meghan, the withdrawal from public duties of Prince Andrew and retirement of Princess Alexandra, the numbers have shrunk to 10. With several becoming increasingly elderly, the numbers may soon shrink to seven. Before his accession, King Charles said that he wanted to see a slimmed down royal family; that has happened naturally, and perhaps faster and further than he expected.
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The relationship between parliament and the courts
On 14 April 2022, Boris Johnson announced a plan for asylum seekers arriving in Britain to have their claims determined in Rwanda. Almost two years later, no one has been sent to Rwanda, and both the Court of Appeal (by a majority) and the UK Supreme Court (unanimously) have ruled the scheme to be unlawful.
The Supreme Court decision, published on 15 November, declared the scheme to be unlawful because there were ‘substantial grounds for believing’ that asylum seekers would face ‘a real risk of ill-treatment by reason of removal to their country of origin’ if they were sent to Rwanda. Arguments that the policy was unlawful because of retained EU law were unsuccessful.
The government was urged to ignore the ruling by Lee Anderson – who was Deputy Chairman of the Conservative Party at the time but has since joined Reform UK after being stripped of the Tory whip – and a Conservative MP invoked the infamous ‘Enemies of the People’ headline levelled at judges in 2016’s Article 50 case.
Instead of abandoning the scheme, the government decided to legislate its way out of the problem, presenting the Safety of Rwanda (Asylum and Immigration) Bill) to parliament on 7 December (see above). The bill declares Rwanda to be a safe country and places limits on the ability of decision-making bodies (including courts) to rule otherwise.
The bill has widely been described as a threat to the rule of law, and out of step with international law. Equally concerning is the prospect of a ‘constitutional showdown’ between parliament and the judiciary, as discussed by academics and lawyers, including Professor Mark Elliott and former Attorney General Geoffrey Cox. Both have explored the possibility that the courts could revisit the ‘assumption’ that parliament is entirely sovereign and choose to strike down an Act of Parliament.
Speaking during an evidence session organised by the Commons Justice Committee, Baroness Carr of Walton-on-the-Hill, the Lady Chief Justice of England and Wales, responded to a report that the government intended to redeploy 150 judges to hear Rwanda-related appeals by saying that judicial assignments and the allocation of court resources were ‘exclusively a matter for the judiciary’.
Lady Justice Carr.
Carr also denied that judges had given the ‘green light’ to the government’s proposal to legislatively exonerate every person convicted due to the Post Office Horizon scandal. As a serving judge, Carr was not asked to – and did not – comment on the constitutional propriety of the legislation, which involves parliament circumventing the established legal process for quashing convictions. Lawyers have expressed mixed views, and the government has stressed that the bill is not intended to set a precedent for the relationship between parliament, the executive and the judiciary, but is designed to respond to a unique set of circumstances.
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The Jo Cox Civility Commission
On 24 January the Jo Cox Civility Commission, which was co-chaired by Conservative peer Baroness (Gabriel) Bertin and Labour shadow minister Lord (Vernon) Coaker, released its final report on the impacts of abuse and intimidation on British politics. The Commission found that abuse and intimidation – both online and offline – have become a worsening problem affecting politicians at all levels. The report was welcomed by MPs and public figures from across the political divide. It claims that a toxic and often dangerous environment deters many people from a career in public life and reduces the talent pool for elected officials.
The report made 28 recommendations, including the creation of a centrally funded unit to address abuse and intimidation, public awareness campaigns to promote civility, providing teachers with enhanced training so they can educate children about online misinformation, and encouraging social media platforms to provide better channels for reporting abuse. The report also recommends various improvements to the training and funding of the police to help them provide better security.
Some MPs who have announced that they will not stand at the next election – such as Conservative minister Mike Freer – have specifically cited safety concerns as part of the reason for their decision. Safety fears have also prompted Mother of the House Harriet Harman to suggest a return to hybrid proceedings, plus government confirmation of increased funding for MPs’ security. Such concerns were also linked to the Speaker’s decision to allow Labour’s amendment of an opposition day motion, which prompted calls for his resignation ( see above).
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England
In a major milestone for English devolution, 10 mayoralties will go to the polls on 2 May. These are London (where the London Assembly is also up for election), North-East, Tees Valley, York & North Yorkshire, West Yorkshire, South Yorkshire, Greater Manchester, Liverpool City Region, East Midlands, and West Midlands.
South Yorkshire’s election has been brought forward from 2026, as the powers of the mayor – currently Labour’s Oliver Coppard – are being expanded to include the role of Police and Crime Commissioner (PCC). The mayor for the West Midlands, and the newly created York and North Yorkshire mayor, will also become the PCCs for their areas.
In late 2023, the government agreed two further devolution deals, with Hull & East Yorkshire, and Greater Lincolnshire. Each of these areas will elect a mayor in May 2025. That will coincide with elections for the mayors of the West of England and Cambridgeshire & Peterborough; and the new directly elected mayors of Norfolk and Suffolk county councils. This will make a total of six mayoral elections (at present) in May 2025.
Late 2023 also saw the first ‘level 2’ devolution deals. A level 2 area has no elected mayor, and fewer powers are available than in ‘level 3’ areas. Level 2 deals have been agreed with Devon and Torbay, Lancashire, Blackpool and Blackburn with Darwen, and Cornwall. The Cornwall deal replaces an earlier proposal that they become a level 3 area, which was abandoned due to negative reaction from the local population.
Local differences of opinion continue to influence the progression of devolution in other areas of England. Leicestershire, Leicester City and Rutland is seeking a level 2 deal, after the city council rejected the idea of a mayoralty. The district councils of Hyndburn, Chorley and South Ribble have rejected the Lancashire deal – though they cannot stop it proceeding. Plymouth City Council withdrew from the Devon and Torbay devolution deal in November, before it was finalised.
In November, the government published a guidance note for mayoralties seeking to move to a ‘level 4’ devolution agreement. This would offer more powers than most mayors currently have but falls short of the ‘trailblazer’ powers offered to Greater Manchester and the West Midlands in March 2023 (see Monitor 84). This note included an update of the government’s devolution framework, showing the powers available at level 4.
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Northern Ireland
The Northern Ireland Assembly elected in May 2022 selected a new Executive on 3 February, ending two years of political stalemate. This was made possible after the Democratic Unionist Party (DUP) lifted the boycott it began in February 2022 in protest at the Northern Ireland Protocol to the EU Withdrawal Agreement, and the ‘border’ it created in the Irish Sea. The DUP’s change of position followed an agreement with the British government, reached after private negotiations which excluded the other Northern Irish political parties and the Irish government.
The DUP–UK agreement was embodied in a government paper, Safeguarding the Union, outlined in detail on the Unit's blog. Unlike previous UK government policy statements on Northern Ireland, it was cast in strongly pro-Union terms and therefore appeared to be distinctly partisan. As Northern Ireland Office minister Steve Baker described it, ‘a unionist Conservative government has agreed unionist things with the Democratic Unionist Party’. The new proposals essentially respect agreements with the EU, and the Belfast/Good Friday Agreement of 1998, and are of limited substance. Some experts, such as Katy Hayward, have argued that the London approach was inconsistent with the duty of ‘rigorous impartiality’ the Agreement imposes on the UK government.
The Prime Minister meets First Minister Michelle O’Neill (left) and deputy First Minister Emma Little-Pengelly (CC BY-NC-ND 2.0) by UK Prime Minister.
For the first time, the First Minister of Northern Ireland is not a unionist, but the northern leader of Sinn Féin, Michelle O’Neill. The symbolic significance is great, but immediate practical implications are fewer: her powers and those of the deputy First Minister – the office Sinn Féin previously held, now taken by the DUP’s Emma Little-Pengelly – are joint and equal.
Nevertheless, the united Ireland debate received a fillip after the president of Sinn Féin, Mary Lou McDonald, suggested that unity was within ‘touching distance’. Polls of all methodologies continue to show substantially less than majority support in Northern Ireland for unification, though younger people are more likely to favour it.
The return of devolved government was assisted by a new financial arrangement with the Treasury – though all Executive parties declared it insufficient, and are particularly resistant to raising more revenue locally. The Irish government also committed to substantial investment. But there is much to do to make up for public policy decisions not taken by politicians in recent years.
Whether the institutions can deal effectively with these problems remains unclear. The popularity of DUP leader Jeffrey Donaldson rose after the deal was announced, according to polling, but support for the party has fallen. Majorities within the DUP for the agreement were not overwhelming and significant party figures remain hostile. There may be conflicts as the party seeks to invoke mechanisms for blocking new EU laws (applicable because Northern Ireland remains within the European single market for goods).
The High Court in Belfast published a judgment in February on challenges to last year’s ‘Legacy Act’, parts of which it deemed incompatible with the European Convention on Human Rights (ECHR). It also held parts to be irreconcilable with guarantees in the Northern Ireland Protocol/Windsor Framework, and it therefore ordered that 10 sections of the Act be disapplied. The UK government has already lodged an appeal. Ireland has also filed an ECHR case against the UK at Strasbourg.
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Scotland
The use of WhatsApp messages by government ministers and officials has been the subject of much debate in Scotland, after numerous witnesses (including First Minister Humza Yousaf and predecessor Nicola Sturgeon) told the COVID-19 inquiry that they had followed a policy of deleting such messages. Opposition politicians were highly critical, and the Scottish Information Commissioner has launched a review of the use of WhatsApp in government, which will run alongside an existing process of reviewing FOI practice and performance. Douglas Ross, leader of the Scottish Conservatives, also criticised Scotland Secretary Alister Jack for deleting WhatsApp messages.
The SNP has continued to issue a series of independence policy documents, largely revisiting and updating material from the 2012 white paper, Scotland’s Future. The use of civil servants in their production has been questioned by the Lords Constitution Committee, and the UK government has said that it is considering additional guidance to ‘support civil servants working... on areas that may relate to reserved matters’.
More domestic attention is however focused on opinion polls, with Labour and the SNP neck and neck in general election voting intention. But voters are still split almost 50/50 on the question of independence.
The constitutional position of the Lord Advocate is also attracting political attention. The office, which is over 500 years old, was preserved almost unchanged at devolution, so that Lord Advocate Dorothy Bain, a member of the Scottish government, is both its chief legal adviser and the person in overall charge of criminal prosecutions. As prosecutor, she is responsible for a pilot scheme that would see some sex crime trials conducted without a jury. Yet she has publicly expressed concern about other planned changes to criminal trials, such as reducing the number of jurors required to secure a conviction.
SNP MP Joanna Cherry is promoting a private member’s bill in the Commons which seeks to separate the prosecution and advisory roles. That bill will not become law, but the issue is a live one: in February, Alister Jack wrote to Humza Yousaf to ask for an ‘update’ on the proposal, which was a 2021 SNP manifesto commitment. Changing the role would require amendments to the Scotland Act 1998, which means that the Scottish government cannot act alone: it will need UK parliamentary support to enact any changes.
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Wales
The final report of the Independent Commission on the Constitutional Future of Wales was published on 18 January. The report, which was discussed in detail at a Unit event, states that independence is a ‘viable option’ but would be the most risky choice for Wales given its implications for currency, borders and trade.
The commission made 10 recommendations, which include a citizen-based process to draw up a statement of constitutional principles for Wales, legislative intervention by Westminster to create new intergovernmental mechanisms, and removal of constraints on how the Welsh government manages its budget. Policing, justice and rail infrastructure were all recommended for quick devolution to the Welsh government.
Wales Secretary David TC Davies is on the record as opposing additional powers for Cardiff. His Labour shadow, Jo Stevens, said that Labour will ‘not be looking at the devolution of policing and justice’, although it will ‘explore’ devolving youth justice and probation policy, as proposed by the Brown Commission (see Monitor 83).
Welsh First Minister Mark Drakeford and Scottish counterpart Humza Yousaf (CC BY 2.0) by Scottish Government.
Any Welsh government that seeks to persuade Westminster to change its position will be led by a new First Minister. Mark Drakeford announced his resignation in December, prompting a party leadership election in which only Welsh MSs are eligible to stand. Two candidates are running: Minister for the Economy Vaughan Gething (who came second to Drakeford in the previous election), and Minister for Education Jeremy Miles. The result is due to be announced on 16 March, just after Monitor is published.
On 30 January, Senedd members voted in principle in favour of reform plans which will see the Senedd expand to 96 members and end the 'first past the post’ voting system in Wales. But the reliance on a closed-list proportional representation system has come under fire. The Senedd committee scrutinising the bill expressed ‘significant reservations’ about the proposed use of closed lists. Welsh Labour MS Mike Hedges and former Plaid Cymru Leader Lord (Dafydd) Wigley also made media interventions in which they criticised this aspect of the plans. Counsel General Mick Antoniw defended closed lists as a compromise option and said that the system can be reviewed after the next Senedd election in 2026. The bill that would enact the changes is now going through detailed committee scrutiny.
The Welsh government published its Delivering Justice for Wales Progress Update on 22 February. The document notes that while the justice system remains formally controlled by Westminster, the Welsh government continues to take innovative actions such as developing a vision for policing in Wales and using its influence in devolved policy areas to promote crime prevention and anti-racism.
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Judicial reform in Israel
The Israeli Supreme Court issued two judgments in January which posed a significant setback to the government’s proposed wide-ranging amendments to the legal system. The proposals have prompted significant rule of law concerns, as they, among other things, seek to limit the power of judges to strike down legislation incompatible with Basic Laws (laws of quasi-constitutional status: Israel does not have a codified constitution) and to remove the requirement for ministers to follow advice given by their legal advisers.
The first decision concerned proposals to remove the power of the Supreme Court to strike down government decisions deemed ‘patently unreasonable’. Prior decisions had confirmed that the Supreme Court had the power to rule against legislation that was incompatible with the Basic Laws, but it was unclear whether it had the power to review amendments to the Basic Laws themselves. Given the significance of the case, all 15 Justices sat on the panel. By a narrow majority of eight to seven, the court ruled that it had the legal authority to review such amendments, as the Knesset’s power to pass and amend Basic Laws was not unlimited. In particular, the court found that the amendment undermined the core values of Israeli democracy, specifically the separation of powers and the rule of law. Had the amendment been allowed, there would have been no legal tools to hold the government to account if it breached its duty to act reasonably, and individual rights under Israeli law could not have been legally protected. However, the (now retired) President of the Supreme Court, Esther Hayut, said in her judgment that, if the procedure for amending Basic Law became stricter, the Court could reassess its position more generally on whether it had the power to judicially review such amendments.
The second decision concerned an amendment to a Basic Law that would have effectively shielded Prime Minister Benjamin Netanyahu from being removed from office due to conflicts of interest arising from an ongoing corruption trial. Before the law was passed, Israel’s Attorney General had the authority to remove the Prime Minister from office. The amended Basic Law now provides that the Prime Minister can self-certify that they are incapacitated, but that, otherwise, they can only be removed following a medical assessment that they are physically incapable of continuing in office. The court upheld the law, but delayed its implementation, ruling that it would not take effect until the next term of the Israeli parliament commences.
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Poland's new government
On 15 October, Poland held a parliamentary election which resulted in the formation of a new government after eight years of rule by the Law and Justice party (PiS). PiS was seen by many both inside and outside Poland (including the EU) as making the country less democratic. Despite obtaining 35% of votes cast, PiS was unable to form a coalition with a parliamentary majority. Civic Platform, led by former European Council President Donald Tusk, was then able to form a government, making Tusk Prime Minister – a post that he previously held from 2007 to 2014 – in December.
During the campaign, the opposition had published 100 reforms to implement within the first 100 days of a new government, but when Monitor went to press, only a handful of the pledges had been accomplished, and some of those had led to concerns being expressed about the new government’s methods. For example, to reverse pro-PiS bias in state media, the government dismissed the heads of key state media outlets (and the boards that oversee them) by ministerial order. This triggered protests by PiS, which accused the government of subverting the proper appointment processes (which PiS had instituted when in government). Concerns have been expressed that Tusk might be ‘breaking the law in order to fix it’ and that this could set a bad precedent for both future Polish governments, and other countries that elect progressive governments following a period of backsliding.
One area of reform that is likely to take some time to complete is restoring the independence of the courts and judiciary. Justice Minister Adam Bodnar has published an Action Plan for Restoring the Rule of Law, in which he stated his intention to introduce nine bills aimed at restoring judicial independence. Proposals in the plan include removing the role of politicians from judicial appointments, with judges being elected from among their number; creating a system to ensure institutions implement judgments of the European Court of Human Rights; and making the country’s Prosecutor General more independent of the Ministry of Justice.
One obstacle to the new government’s plans is President Andrzej Duda, who has the power to veto legislation. Officially an independent, but formerly a PiS politician, he has been vocal in his opposition to Tusk’s government. He has also been accused by the speaker of Poland’s Sejm – the lower, more powerful chamber of parliament – of creating a ‘deep constitutional crisis’, after he briefly offered refuge in the presidential palace to two PiS MPs convicted of abuse of power. However, Duda can only cause Tusk problems for so long: he is term limited and must step down next year.
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Danish monarch abdicates
In her New Year’s Eve address, Denmark’s Queen Margrethe II, who is 83, announced her intention to abdicate. Two weeks later, after 52 years on the throne, she was succeeded by her son, who is now Frederik X. There is no tradition of abdication in the Nordic monarchies, and Queen Margrethe had previously said that she would remain on the throne ‘until I drop’. Her decision led to speculation that King Carl XVI Gustaf of Sweden (aged 77) and King Harald V of Norway (aged 87) – who are now Europe’s longest reigning monarchs – might too choose to step down as they grow increasingly elderly.
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Final report of the Democracy in the UK after Brexit project
The Unit’s Democracy in the UK after Brexit project published its final report in November. Funded by the Economic and Social Research Council through its Governance after Brexit programme, this project has examined public attitudes to democracy in the UK through large-scale population surveys and a citizens’ assembly. Previous publications had set out the results of individual parts of the project. This final report analyses the overall patterns. It finds high levels of concern about the health of democracy in the UK – notably about standards of ethical behaviour in public life. Research participants tended to want strong checks and balances, greater responsiveness to public opinion, and better education and information relating to politics.
The findings were discussed at a Unit seminar in late November, where speakers included leading parliamentarians and experts.
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Meg Russell and Robert Hazell appear at Commons Standards Committee
On 24 January, Unit Director Meg Russell, and former Director Robert Hazell, gave evidence to the House of Commons Standards Committee as part of its broad inquiry into the standards landscape. The inquiry is exploring whether the various standards mechanisms to hold MPs to account are adequately accessible, and whether they could be streamlined. Meg and Robert emphasised the importance of clearer signposting in the system, for example on the parliamentary website. They also welcomed the suggestion from committee chair Harriet Harman that the procedure for new MPs to take their oath after a general election might be enhanced, with members committing publicly to uphold the seven Nolan principles of standards in public life.
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Meg Russell appears at Commons PACAC
On 28 November, Meg Russell gave oral evidence to the House of Commons Public Administration and Constitutional Affairs Committee, for its inquiry into the membership of the House of Lords. She emphasised the importance of public trust in the appointments process for the reputation of parliament, quoting figures from the Unit’s Democracy in the UK after Brexit project on public dissatisfaction with current arrangements. She suggested that the Prime Minister’s patronage powers over the Lords should be greatly reduced, with far more power going to the independent House of Lords Appointments Commission, including control over the chamber’s size. Meg also emphasised the importance of an agreed formula for sharing out seats between the political parties. She suggested that one way of rebalancing the chamber and bringing its numbers down would be the complete removal of the 92 hereditary peers (rather than simply ending hereditary peer by-elections) – though a few of these members might be reappointed as life peers.
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Briefings on constitutional principles
Three new briefings have been published in the Unit’s series on Constitutional Principles and the Health of Democracy, funded by the Legal Education Foundation. The first, published in November, explains the process and regulation of public appointments, and recent calls for their reform. The second, published in January, discusses the role of the media in democracies. The third, published in February, examines how international agreements are scrutinised by parliament. Briefings are published regularly on the Unit’s blog and are available in PDF format from the project webpage.
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Staff changes
We were sorry to say goodbye in January to Tom Fieldhouse, who had worked for the Unit for over two years as its Network Coordinator, strengthening our links to policymakers and other groups. We are, however, delighted to welcome Patrick Thomas, who has joined the Unit on secondment from the House of Commons, where he has for seven years been the constitution specialist at the Public Administration and Constitutional Affairs Committee (PACAC). Supported by funding from the Joseph Rowntree Reform Trust, Patrick will develop detailed plans for possible implementation by a future government.
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Research volunteers
The Unit is, as always, grateful for the excellent work done by its research volunteers. A big thank you to former volunteers Caitlin Farrell, Wiktoria Jędrzejczak, Alexia Kotsakis and Dimitra Prekka.
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