Jack Sheldon (Bennett Institute, University of Cambridge) looks at the constitutional issues facing Britain's next Prime Minister.
Following the announcement of Theresa May’s imminent resignation, the long-anticipated contest within the Conservative Party to succeed her has begun.
The campaign will inevitably be dominated by Brexit. But events over the past three years have shown that the future of relations with the EU cannot easily be separated from the future of the domestic Union. The candidates will thus need to give careful thought to how they will approach the major statecraft challenges presented by territorial politics across the UK if they become Prime Minister.
Renegotiating the Northern Ireland backstop will be popular with Conservative MPs – but a new Prime Minister might soon face the same dilemma as Theresa May
The Northern Ireland ‘backstop’ has been the main driver of opposition to the Withdrawal Agreement within the parliamentary Conservative Party and their confidence-and-supply partners the DUP. Consequently, there are strong short-term incentives for leadership contenders to commit to renegotiating it, in the hope that it might yet be possible to get a deal that doesn’t cut across Brexiteer red lines on the Single Market and customs through the House of Commons. Pledges to this effect have already been made by Jeremy Hunt, Boris Johnson, Esther McVey and Dominic Raab.
In reality, substantive changes to the backstop will be extremely difficult to deliver. It remains the position of the EU27 and the Irish Government that the Withdrawal Agreement will not be reopened. Keeping an open Irish border has become highly salient in Ireland and the EU, and the new Prime Minister will need to appreciate that this means there is next to no chance that they will be open to trading the guarantees provided by the backstop for the loosely-defined ‘alternative arrangements’ envisaged by many Conservative MPs. The same dilemma Theresa May faced might thus soon confront her successor – whether, as an avowed Unionist, to recoil from a no-deal scenario that would undoubtedly have disruptive effects at the Irish border and strengthen the case for an Irish border poll, or whether the delivery of Brexit trumps everything else.
The new Prime Minister will also need to make broader decisions about how to approach Northern Ireland
There are also broader questions that the next Prime Minister will need to face in relation to Northern Ireland. Fairly or not, there is a perception that the post-2010 Conservative governments have been disengaged from the still fragile politics of Northern Ireland and shown poor literacy of the post-Good Friday Agreement settlement in comparison to their Labour predecessors and the Irish government. Trust in UK ministers to act as neutral convenors of cross-party talks has declined, especially in the period since the confidence-and-supply agreement with the DUP was concluded. This has hampered attempts to restore devolved government, which has now not operated for two-and-a-half years.
Candidates to be the next Prime Minister ought to consider what they might do from the start to gain the trust of key actors on all sides in Northern Ireland. Rhetorical commitments to the Good Friday Agreement are unlikely to be sufficient – these will need to be backed up by real steps demonstrating a change of approach. A starting point may well be for the Prime Minister to personally engage more closely with and take into account the perspectives of all of the political parties in Northern Ireland, not just the DUP – even if the confidence and supply agreement, due for a review at the end of the current parliamentary session, continues.
Scottish independence is on the agenda – but an imminent referendum is unlikely
Neither opinion polls nor the European Parliament election results suggest that there is a clear pro-independence majority in Scotland, even as the Scottish National Party continues to dominate the Scottish political scene. Nevertheless, as the Brexit crisis has unfolded the Scottish government has become increasingly confident in pressing its case for a further referendum on Scotland’s future. First Minister Nicola Sturgeon has announced her government would like to hold one before 2021. If this is to happen it will, before too long, require a fresh request to be made for the UK parliament to grant a section 30 order authorising a referendum.
In the current context, the only politically possible reply for a Conservative leader will be to decline – as Theresa May did in March 2017. However, as the experience in Catalonia where the Spanish government has refused to allow a referendum demonstrates, declining does have the potential to cause an extended constitutional stand-off that may seriously damage wider relations between governments. There is no simple answer to this, but how to approach such a situation should at least be in the thinking of leadership candidates.
There are unresolved questions about the overall territorial constitution – and some signs of interest from leadership candidates
For the last few years territorial politics has been characterised by disagreements and mistrust between the UK, Scottish and Welsh governments. While strongly divergent perspectives on Brexit are a big part of this, so too are differing understandings of the constitution and institutional machinery for intergovernmental relations (IGR) that it is widely agreed is unfit for purpose. A review of IGR initiated by the governments last year was expected to take up some of these issues, but progress has been slow. If the new Prime Minister wants to get off on a strong footing in building effective relationships with the devolved governments, making this review a priority would be a good start
There are some early signs of interest from leadership candidates in the UK government’s overall approach to devolution, for example from Rory Stewart who has proposed a Secretary of State for the Union combining the existing territorial offices and Michael Gove who recently called for UK ministers to spend money in devolved areas. There is a danger that some of these ideas might end up provoking intergovernmental conflict rather than easing it if they are viewed by the devolved governments as recentralising devices, so careful thought is needed.
England also has territorial politics – and this may come to the surface before long
The European Parliament elections again highlighted the major divisions between different parts of England that have become evident since the Brexit referendum. Whatever ultimately happens with Brexit, the frustrations that many voters on both sides of this divide have with Westminster politics will be difficult to put a lid on. They could yet develop into calls for wider constitutional change that addresses the place of England within the UK. The likeliest direction for Conservative leadership candidates to go is towards support for further decentralisation reforms, building on the combined authorities established in parts of England by the Cameron and May governments. As Professor Michael Kenny has argued, there is a strong case for this to be framed more in terms of responding to regional identities as opposed to economics than has been the case to date.