Category Archives: Constitutional reform

Christoph Smets: A UK senate: Competition for the Commons or federalising representation?

OLYMPUS DIGITAL CAMERAAfter the warning shot fired from the ballot boxes of the Scottish electorate in this year’s referendum on independence, the West Lothian question has stirred with renewed power. It seems to have triggered a highly unconventional response on the part of the Labour party’s leader, Ed Miliband, who – as reported by James Hand and Donal Coffey – has recently promised to abolish the House of Lords altogether and replace it with a senate, should Labour win next May’s general election.

The exact form and composition of such a senate would be decided by a Constitutional Convention, but it appears that, for the moment, the model favours another directly elected chamber, representing regions or counties and cities. This seems odd, considering the House of Commons’ primary function: Since voters in the UK do not vote for a party but for a candidate only, who is also only eligible for a single constituency, the voting system in the UK is already aiming to represent not only the people, but the people of a certain city or region (which, in fact, is the House of Commons’ historic root). After replacing the second chamber with another elected representative body, now concerned with representing “towns, cities, regions [and nations]”, the question arises who would have the more legitimate claim to representing the people of any given area: the MP or the MS (Member of Senate)?

A second chamber representing the states (or Länder, in the case of Germany) isn’t all that new to a German legal scholar, and it may be surprising to hear one such criticising plans of regional representation, but there is a difference between the German and the (proposed) British approach, which, at first sight, does not seem to improve democratic legitimacy: whereas the (would-be) future UK Senate would be elected, the German upper chamber, the Bundesrat, represents the federal states themselves and is made up of delegates from the governments of the already existing federal states’ parliaments. This fact leaves little room for any doubts as to who is representing the people, and who is not. It is more or less an institutional interest group, de facto representing the interests of the states vis-à-vis central government (which is made up of the same parties holding the majority in Parliament).

Since all UK countries – barring England (!) – have their own parliaments, a senate design of this kind could be fitting, but it would necessitate the constitution of a separate English parliament, thus easing the West Lothian question.

Looking at Britain’s European neighbourhood, a middle ground between popular vote and nomination by governments is currently occupied by France, where the Sénat is elected indirectly on the sub-regional level of the départments (101 in 27 regions for the whole of France), mostly voted for by members of the even lower level of city parliaments.

Looking at Mr Miliband’s plans in more detail, it would see senators being elected not solely on a regional basis, but would see “an elected Senate that properly represents the towns, cities, regions and nations that make up the United Kingdom. […] This regional and national representation will avoid duplicating the constituency link of MPs […].”

So, Mr Miliband’s senate would mean an amalgamation of both the “state model” – as practised in Germany, large parts of Europe and the US (where the term “senate” most likely is borrowed from) – as well as a regional model more akin to France. But this kind of mixed design also sends a mixed message: if voting in the UK countries would be based on constituencies it would conflict with the last part of the statement, but if voting in all parts of the UK would be based on regions it would conflict with the former commitment to towns, cities, regions and nations, emphasis added. So, a UK Senate in the proposed form should logically trigger a mixed election procedure: By the UK countries’ general electorate for Scotland, Wales and Northern Ireland and by the electorate of certain regions, (towns and cities?) in England. This, however, would neither fit the purpose of regional representation within the UK countries, nor federalisation or devolution for England, but only the lack of English regional representation, perceived by Mr Miliband.

But the weighing of senate models might obstruct the broader picture: It transcends prudent parliament design, devolution and representation, touching on the very core of British government as Her Majesty’s Government, and Britain as a constitutional monarchy. Abolishing the House of Lords also means abolishing peerage (at least as the right to sit in parliament), and in doing so a royal prerogative, by far exceeding the importance even of the Parliament Acts 1911 and 1949. It would mean abolishing a part of British constitutional identity. It is therefore not only prudent, but necessary to see House of Lords’ reform as a result of a truly open and transparent dialogue, which cannot – by its nature – be at the discretion of any single party.

As a means for guidance, one might consider how any proposed change compares to the road travelled thus far. It has been one determined by a history of Britain’s very own way of government, one that does not do away easily with a time-honoured modus operandi simply because the current situation suggests a change in approach. One might therefore take a look at the institutional roots of “senates” in the respective countries: Both Germany and the US for instance share a history of having evolved from pre-existing states or principalities, later having been bound together by a supreme power of common government. While at first glance this seems to be exactly the case for the UK as well (albeit with a predominant English role), there is – in contrast to Germany and the US – no history of these states themselves being institutionally represented at the central power, what with the historic House of Lords being made up of noblemen mainly representing themselves, not necessarily their regions. As hinted to above, since the split of parliament into an upper and lower House in the times of Edward III., this was actually the task of the House of Commons, but even they did not represent Scotland, Wales and so on, but the shires or counties, of the Kingdom of England (and later of Great Britain and the United Kingdom respectively).

While both in Germany and in the US, states or principalities were caught up in a continuous institutional power struggle with central government, the representation of noblemen (and later -women) in the House of Lords was indiscriminate to the extent that the peers were bound together rather against the Commons (with a friendly working relationship in the last decades) with the dominant constitutional struggle of British modern history being one of parliament (meaning in this case the House of Commons) against king or queen, not principalities against the ruling house of the Kaiser or North vs. South like in the US. While therefore the representation of states both in Germany and the US has always been a matter for “senates”, in the UK it has mostly – albeit indirectly – been accomplished by the House of Commons.

It must thus be argued that the currently favoured senate model with a shift of regional representation from the Commons to a senate is one that does not easily fit the British way of government and its history, at least not in an evolutionary way (that last point also having been made by James Hand and Donal Coffey). But while the last two decades or so of British history have seen highly increased devolution to Scotland, Northern Ireland and Wales, the notion of increased power for the UK countries’, especially for (Northern) Ireland, dates back to the 19th century. So, one might say that there is an evolution towards devolution. That notion entails not only more legislative powers, but elected legislatures: the UK countries have, to a significant extent, already taken regional representation into their own hands. From the English viewpoint, this devolution has come about as diminishing English, in the sense of common British, powers. This – and the role of England as the historic nucleus of the United Kingdom – may explain the difference in approach regarding the idea of representing Scotland, Wales and Northern Ireland nationally on the one hand, and England regionally on the other. With devolution still progressing (for instance by proposals to make permanent the Scottish Parliament), the urge to keep the kingdom together is in Mr Milibands model translated into a “House of regions and nations”, the contradictions of which I have pointed out above.

But if one were to simply adopt another country’s model, thus ignoring British idiosyncrasies, one would not solve questions specific to the past and present developments within the UK. So, a “State House” model for the UK could have features of both European and British traditions: If the general electorates in England, Scotland, Northern Ireland and Wales were to vote for their own parliaments (which in fact, barring England, they already do), concerned with regional representation, these state parliaments could legitimately and with regional focus deal with problems specific to the respective states’ questions and problems. This is also signified by the results of the general elections for Scotland, Wales and Northern Ireland, which turned out seats for members of common British parties as Labour and Conservatives, but also regional parties as Plaid Cymru, SNP, DUP, Sinn Féin and others. The common interests of the United Kingdom could then – with better focus – be dealt with by a senate of states’ representatives. The German model would see those simply nominated by states’ governments (see above), but as there is a British tradition for the House of Lords to be made up by peers belonging to parties, a British “State House” could see senators being elected by the UK countries’ parliaments. This way, there would be democratic legitimation for the senators by way of indirect voting while actually providing the “clearly defined different role for the Senate” as desired by Mr Miliband. This could also provide an opportunity for a reduced size of the upper chamber, which has been in the debate for quite some time now. A question which cannot be elaborated on here, is that of powers and competencies, which would have to be newly negotiated when introducing such drastic change, keeping in mind for instance that some (e. g. veto) rules have their basis in the historic struggle between the House of Lords with its noble origins and the House of Commons as the democratic force in the narrower sense.

But the centrifugal force of devolution is not only eased by the creation of a “State House”: Great Britain and Northern Ireland have been and still are united as one kingdom. While further federalisation almost certainly will a trigger a fresh debate on the future of British monarchy, the institution of a common head of state and the way in which this office is executed has – as evidenced by the development of the Commonwealth of Nations – an integrating effect. This is especially true for the UK countries, which form the “homeland” of a monarch still being the head of fourteen states, foremost Australia, Canada and New Zealand.

But if the UK does decides for fundamental constitutional change, the “State House” model might just work.

 

Christoph Smets is a Teaching Fellow/Senior Research Assistant at the Heinrich-Heine-University Düsseldorf

 

Suggested citation: C. Smets, ‘A UK senate: Competition for the Commons or federalising representation?’ UK Const. L. Blog (1st December 2014) (available at http://ukconstitutionallaw.org)

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James Hand and Donal Coffey: Miliband’s senate of the regions and a constitutional convention conundrum

donalJamesHandEd Miliband’s recent proposal for ‘an elected Senate that properly represents the towns, cities, regions and nations that make up the United Kingdom’ included reference to a ‘UK-wide Constitutional Convention’.

There has, of late, been increased talk of a constitutional convention, fuelled particularly by the Scottish Referendum and the question of devolution (see, e.g., on this site blog posts by Cormac Mac Amhlaigh and Robert Hazell). Earlier this year, the Labour Peers Working Group proposed that there should be a convention to consider ‘the next steps on further reform of the House of Lords and any consequential impact on the House of Commons and on Parliament as a whole’ (para 3.14) but there was support for a wider constitutional convention when their report was debated in the House of Lords (for an earlier post on this see here). Ahead of the Labour Party conference, the day after the Scottish Referendum result, Ed Miliband announced that a full Constitutional Convention would be set up in 2015 to discuss further devolution and reform at Westminster. As noted above, his more recent announcement that the House of Lords should be replaced with a senate of the cities, regions and nations again refers to the ‘UK-wide Constitutional Convention’ but its role seems to have changed markedly in the six weeks between announcements. The proposal for such a senate was greeted with arguably unfair allegations of hypocrisy following Labour’s role in the demise of the Nick Clegg’s House of Lords Reform Bill 2012 but of greater concern is the premise behind the proposal and the role of the UK-wide Constitutional Convention.

In his announcement of a Constitutional Convention for the UK (two days before the Labour Party conference and some six weeks before his Senate announcement), Ed Miliband stated that the convention would not look solely at devolution matters but also ‘look at new ideas for representation including reforms at Westminster and the case for a Senate of the Nations and Regions’ (emphasis added). Within those six weeks, the role of the convention had gone from considering the wider constitutional position and the case for a senate as part of that to, as regards the legislature’s second chamber, working out the details of the prescribed ‘solution’ (the abolition of the House of Lords and its replacement with a senate) and how it might fit with further devolution. Under the original announcement, the convention would have considered whether the idea of such a senate was the best way forward in light of the whole evolving constitutional settlement and not be solely restricted to the details. The changing state of local government was enough for Harold Wilson to defer consideration of specific regional membership of the Lords in the 1968 White Paper (Cmnd. 3799, para 23). Ed Miliband – who places great emphasis on regional representation and representation from our ‘great cities’ at the same time as his local government spokesman talks of counties rather than regions – has, however, sought to determine the outcome for the second chamber before the devolution (and indeed the consequential powers of the House) has been considered by the convention he intends to set up.

In the debate on the 2012 Clegg Bill, Baroness Boothroyd, the widely respected former Speaker of the House of Commons, asked ‘in the simplest and most mundane terms that [she could] command: in what way would the nation benefit and parliamentary proceedings be enhanced by the abolition of this House of experts and experience, and its replacement by a senate of paid politicians?’ Judging from his recent announcement, Ed Miliband’s response today would be that there would be ‘greater representation for the regions’. In his speech he said ‘[i]t cannot be right that the North West has almost the same population as London but only a small fraction of London’s number of peers… London is our capital and one of the world’s great cities but it cannot be right London has more members of the House of Lords than the East Midlands, West Midlands, Wales, Northern Ireland, the North East and Yorkshire and Humber added together.’ No source is given but the wording is very similar to a 2008 analysis by the New Local Government Network (p.15). This report looked at main residences for expenses purposes and showed a heavy London/South East and rural bias. However, looking at residences is a very misleading approach. As the House of Lords Library Note on Regional Representation in the House of Lords notes, citing Russell & Benton, just because many members have a London home does not make the House ‘London-centric’, not least as if they are active members a base in the capital is sensible (p.8). Furthermore, people have other ties to areas such as where else they live and have lived or have worked. The Library note attempts to address this by looking at territorial designations within titles and this does show a much wider spread of locations with, for example, Greater Manchester and surrounding areas well served (p.14). This, too, however does not give a full picture as it excludes those peers who do not have a location in their title and the choice of title is only one facet of somebody’s ties. For example, Lord Callaghan of Cardiff took his title from his constituency but was born and educated in Portsmouth and later farmed in East Sussex.

It may be that the current proposal for the senate, and the emasculation of the convention, owes more to current political machinations than considered constitutional reform. It could be seen to form part of a broader Labour scheme to answer the West Lothian question without adopting the recommendations of the McKay Commission. This Commission proposed that decisions effecting England, or England and Wales, should be taken only with the consent of a majority of English, or English and Welsh, MPs (see further here). In contrast, the Labour proposals seek to devolve power to the English regions (howsoever defined), which would affect the McKay reasoning by fundamentally altering the relationship between Westminster and the English regions. Lords reform is the copestone to this devolution project. Ed Miliband’s progression from a possibility of Lords reform to be determined by a constitutional convention in the immediate aftermath of the Scottish referendum, to his determination that the convention would merely set out the terms of such reform may have been a response to David Cameron’s recent call for an English-centred settlement of the West Lothian question.

The proposed constitutional convention in the UK will be likely to draw on the parallel Irish constitutional convention which recently completed its work (see here). The terms of reference of the convention were drawn up in advance by the Government and, in that sense, the recent Labour proposals are arguably in line with the Irish model. The major notable failure in constitutional reform in Ireland since the establishment of the convention was the proposal by the Government to abolish the Senate. The 32nd Amendment to the Constitution Bill was defeated in a referendum. The question was not referred to the constitutional convention as it formed part of the programme for Government. A similarly pre-judged outcome may ultimately hole Labour’s devolution proposals below the waterline.

If a well-constituted constitutional convention, with power to look at the whole picture, concluded that a federal or quasi-federal system was appropriate, then there could be clear scope for the second chamber to be a House – or Senate – of the Regions. However, that is far from the case that Ed Miliband is now making. If he succeeds, the destruction of a highly respected second chamber (albeit one in need of evolutionary reform) on such flaky foundations could be highly detrimental to our legislature and the legislation it produces.

 

James Hand is an Associate Senior Lecturer at the University of Portsmouth.

Donal Coffey is a Senior Lecturer at the University of Portsmouth.

 

(Suggested citation: J. Hand and D. Coffey,‘Miliband’s senate of the regions and a constitutional convention conundrum.’ U.K. Const. L. Blog (23rd November 2014) (available at http://ukconstitutionallaw.org/)).

 

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Robert Hazell:You want a constitutional convention? This is what you need to think through first.

robert_hazell1

In the run up to the Scottish independence referendum, and its aftermath, calls have grown for a constitutional convention to discuss further devolution, as well as wider constitutional reforms. Yet most constitutional conventions around the world have failed to deliver subsequent reform. Careful thought therefore needs to be given to the purpose, scope and terms of reference, timetable, selection of members, budget, staffing and links to government and Parliament if a convention is to have any chance of success. Robert Hazell addresses each of these issues in turn.

Purpose

A constitutional convention is a group of people convened to draft a constitution (like the drafters of the American constitution in Philadelphia in 1787), or to consider specific constitutional reforms. In recent times conventions have come to include ordinary citizens, like the Irish Constitutional Convention which met from 2012 to 2014. A convention may be established for several reasons:

  • To build cross party consensus for further constitutional reforms
  • To harness expert opinion to chart a way forward
  • To develop a more coherent overall reform package, rather than further piecemeal reforms
  • To bring in ideas from outside the political elite
  • To create greater legitimacy and support for the convention’s proposals
  • To generate wider participation through innovative methods of public engagement.

A constitutional convention is not the only means of achieving these purposes. If the main objective is to build cross-party consensus, then cross-party talks are the obvious vehicle (as in the cross party talks which preceded the Belfast agreement, or the current talks on further devolution to Scotland led by Lord Smith of Kelvin). If the main objective is to harness expert opinion, then the best vehicle may be an expert commission. In recent years expert commissions have been successfully used to chart the way ahead for further devolution, with the Calman Commission in Scotland leading to the Scotland Act 2012, and a series of commissions leading to the grant of further legislative powers to Wales. But the extraordinary levels of public engagement during the referendum campaign in Scotland have created an expectation that for proposals to command legitimacy, there must be greater citizen involvement in producing them. The Scottish experience lies behind calls for a constitutional convention. But alternative models exist (for example, inter parliamentary talks); and there is no single model for a constitutional convention (see Alan Renwick’s excellent pamphlet, and Fournier et al’s book When citizens decide: Lessons from citizens’ assemblies on electoral reform OUP 2011).

Scope and terms of reference

One argument advanced for a constitutional convention is that it would enable development of a coherent overall reform package, rather than further piecemeal reforms. People have suggested that it should address the unfinished business from previous reforms: an elected House of Lords, a British bill of rights, reform of party funding, a written constitution. A list of reform proposals from all sides of the political spectrum could include the following:

  • Renegotiating the balance of competences. In/Out referendum on EU
  • Human rights. Repeal of the Human Rights Act. British bill of rights. Exit from ECHR, Council of Europe
  • Reform of House of Lords. Further improvements to ‘transitional’ appointed House; directly elected second chamber; federal second chamber to represent nations and regions
  • Reforms to House of Commons. Reducing size of House to 600. Changing the voting system. Votes at 16. Extending expatriate voting rights
  • Reform of party funding
  • A written constitution for the UK. This would offer the widest scope, encompassing all the above.

A convention charged with resolving such a wide range of different issues would face an impossible task. Each issue has proved intractable; in combination they are insuperable. Even if the convention is asked just to consider further devolution in the UK, the agenda would be sizeable. It includes the following items:

  • Further devolution to Scotland, of tax and welfare. What else? Devo more or Devo max?
  • Devolution finance, reform of the Barnett formula
  • Further devolution to Wales (Silk report 2 on legislative powers)
  • Further devolution to Northern Ireland (e.g. of corporation tax)
  • Devolution within England: an English Parliament. Regional assemblies, city regions.       Combined authorities, elected mayors, restructuring local government, reforming local government finance
  • Rebalancing the Centre.       English votes on English laws.       Entrenching the devolution settlement. Combined Secretary of State for the Union. Federal second chamber.

This is a big agenda, and a convention charged with considering further devolution would need to have a phased work programme and prioritise certain items. Depending on the political context, it might decide to prioritise work on the English Question (see my earlier blogpost on The English Question).

Timetable

That brings us to the timetable. This must fit the agenda of the next UK government, and the wider political and electoral cycle. What results (if any) are required before the next UK general election in May 2015, the next Scottish elections in May 2016, the introduction of a British bill of rights, or a possible In/Out EU referendum in 2017? Practical realities mean it would be almost impossible to establish a convention before the May 2015 election. In other countries the lead in time required to set up a convention from the formal decision to establish one has typically been six months (see column 2 in the table below). Informal negotiations within the governing party and with other parties can extend that time further: in British Columbia and Ontario it took two years from the initial decision to establish an Assembly to the Assembly starting work. The table below shows the scope, timetable, budget and staffing of previous conventions. It is incomplete, and I would welcome help in filling the gaps and adding details of other conventions, but the data suggest that establishing a convention is a big and complex task, requiring careful planning with long lead in times.

Data about previous constitutional conventions

 

constitutional-conventions

Once established, the timetable of a convention will depend on what it is asked to do. Three of the conventions listed above had a single task, devising a new electoral system. The Irish convention had eight tasks; the Icelandic convention a single huge task, creating a new constitution. The timetable will also depend on the size of the convention, and its working methods. The larger the convention, and the more participatory and inclusive its working methods (eg holding regional meetings), the longer it will take to complete its task.

Establishing the convention: membership, budget, and staffing

Much has already been written about the different options for selecting citizens to serve on a convention so that it is representative of all parts of the UK, and of gender, age, socio-economic background, ethnic minorities, disabled people etc (see Alan Renwick’s pamphlet and the Electoral Reform Society evidence). Ensuring adequate representation from all parts of the UK and all these different variables may result in a large convention: the Electoral Reform Society suggest 200-220 people. That in turn would require a large budget, for servicing large meetings, travel etc. The two Canadian conventions each cost $5m. The Irish convention cost only 1m euros, but was squeezed very tight: those involved say it needed twice the time and twice the money to do justice to its remit. In an age of austerity, with further cuts to come, a Rolls Royce convention may not be feasible. Proponents will need to think how far the size and cost can be scaled back without compromising the integrity of the exercise.

Even a scaled back convention is likely to cost low millions. If the government decides not to establish a convention, it is unlikely that anyone else could afford to do so. But it is conceivable that civil society organisations might try, through a large donation or innovative fund raising through crowdsourcing. They would then have to decide the terms of reference, the timetable, the membership, budget and staffing of the convention, and they would be responsible for the success or failure of the enterprise.

Working methods of the convention

Again, much has been written about this. The convention will need a strong online presence, with an excellent website, podcasts of all its sessions, and imaginative use of social media. It will need to commission and publish evidence, hold public meetings, and it may want to publish working papers and consultation papers. It will also need the ability to commission expert reports, to establish sub committees or expert committees, to commission polling data or other research. An expert panel can help to advise the convention, source and brief the relevant experts, and ensure it draws upon the widest possible research and evidence base.

Links to representative government and legislatures and the political process

Finally, the convention needs to maintain strong links with government and with Parliament to ensure that it carries them along with its thinking. Other conventions have failed in part because they have been too removed from the political process. One way of bringing the two together is to include politicians in the convention, as in Ireland where one third of the members were politicians, and two-thirds ordinary citizens (with mixed success, leading one adviser to suggest that any future convention might have only citizen members and a separate panel of parliamentarians as a conduit and sounding board). Another is to require the convention to deliver an interim report, and then to hold a parliamentary debate so that parliamentarians are informed of the convention’s thinking, and can feed back their initial reactions.

Conclusion

A constitutional convention sounds an attractive idea. But a convention established hastily, overloaded with too many tasks, inadequately staffed or required to report too quickly is almost certain to fail. That will be damaging to the cause of deliberative democracy as well as to constitutional reform. Those who call for a constitutional convention have focused almost exclusively on its membership, and how those members would be selected. As much thought needs to be given to its purpose, terms of reference, timetable, budget, leadership and staffing, as well as its links to government and Parliament. If equally careful thought and planning is given to all those things, a convention stands a much greater chance of success.

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

 

This post originally appeared on the Constitution Unit Blog and is reposted with thanks.

 

Notes on Table 1

[i] The government that established the BC Citizens’ Assembly was elected in May 2001. It had promised an Assembly as part of a more ambitious reform package that included new public accounting standards, open cabinet meetings etc. There was some opposition in caucus to the idea of holding an Assembly, so it took time for the Premier to generate the necessary support. An expert, Gordon Gibson, was commissioned to prepare a plan for the Assembly, and reported in Dec 2002. In May 2003 the legislature endorsed the proposal, with amendments, and the government’s proposed chair. In August the selection process started with the first mailing of invitations. Selection meetings around the province went on over the fall and the Assembly was then ready to meet in January 2004.

[ii] It took 18 months from the Premier’s announcement of his intention to establish a Citizens’ Assembly, in November 2004, to the Regulation creating the Assembly and appointing the chair in March 2006. It then took a further six months to set up the Assembly, which started work in September 2006.

 

 

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Mark Elliott: Scotland has voted “no”. What next for the UK constitution?

MarkAfter a very long — and at times electrifying — campaign, a modest but decisive majority of those who participated in the referendum on Scottish independence have voted “no”. In one sense, this is the end of the process — even if, bearing in mind the main UK parties’ still-to-be-fulfilled promises about further devolution, it is only the beginning of the end. In another sense, however, it might turn out to be only the end of the beginning.

Had Scotland voted “yes”, this would have represented a constitutional shock of seismic proportions, and would quite conceivably have resulted in major constitutional changes in the remainder of the UK. It is less certain that such changes will follow the “no” vote. Nevertheless, it is likely that the “no” vote will leave at least some sort of — and potentially a very significant — constitutional legacy thanks to the conferral upon the Scottish Parliament of the additional powers promised by the main UK parties during the final weeks of the independence campaign.

It is not, however, obvious that the changes provoked by the referendum will — or should — be confined to the beefing up of the existing devolution system. As the debate moves on from the falsely binary form — independence or Union? — it took during the campaign, a more searching and granular debate can and will succeed it. (“Falsely” binary because, as I have argued before, both independence and Union are highly catholic concepts that bear a range of meanings and are capable of shading into one another.) That debate will concern not the apparently extreme options that were on offer to the people of Scotland, but the constitutional smorgasbord of possibilities that arise when we consider what kind of Union should exist, as we move forward, between England, Northern Ireland, Scotland and Wales.

Federalism?

The obvious counterpoint to the present system is a federal one. Some — including Lady Hale JSC — have gone so far as to argue that the UK is already a federal system. This is incorrect as a matter of technical constitutional law, since the principal hallmarks of a federal system are absent from the UK. The system of devolution is asymmetrical, with different parts of the UK having different types and amounts of power (and, in England’s case, none); the relationship between the central government and each of the four home nations is different; and the legal power vested in devolved institutions is insecure in the sense that it flows from UK legislation that remains within the legal control of the Westminster Parliament, as distinct from being enshrined in a written constitution that is immune from unilateral amendment by a single institution.

However, recognising that the UK does not conform to the technical paradigm of the federal model gets us only so far — not least because, like independence and Union, federalism is a concept whose elasticity tells against over-emphasis of technicality. Demonstrating an admirable grasp of such matters, former Prime Minister Gordon Brown, in an article in the New Statesman in June 2014, points out that the UK’s constitutional architecture increasingly tends towards, even though it does not fully conform to, a federal model. For example: in theory, the present system depends upon the Westminster Parliament’s ongoing acquiescence in the autonomy of devolved institutions, because, in theory, Westminster could unilaterally override legislation enacted by — or even unilaterally change, diminish or abolish the powers of — such institutions. However, the theoretical position described by the doctrine of the sovereignty of the Westminster Parliament is radically transformed when viewed through the prism of political reality. From this perspective, the true measure of constitutional security enjoyed by devolved institutions in the UK is comparable to that which is enjoyed by their counterparts operating elsewhere under federal arrangements.

Yet for all that the current arrangements may disclose traces of federalism, they also remain clearly distinguishable from that model. Its adoption would entail major constitutional innovation, bearing in mind that the vast majority of the country — i.e. England — is currently exempt entirely from the devolution scheme. A genuinely federal model would involve the creation of exclusively English institutions sitting — alongside their equivalents in the other three home nations — under the umbrella of pan-UK federal institutions. This would represent an enormous constitutional change; and while the scale of that change is not in itself a good reason for rejecting it, such a fundamental alteration to the constitutional fabric ought not to be undertaken lightly.

Whether a federal system in the UK would be appropriate must be considered holistically. It would be blinkered to advocate its adoption merely because it would be in the perceived interests of one or some — as opposed to all — parts of the country. By definition, a federal model would be all-encompassing, and would change the basis of the relationship between all four home nations, as well as the relationship between those nations and central institutions of the UK state. But in spite — or perhaps because — of such radical implications, talk of federalism is on the rise as we emerge, blinking, from the Scottish independence debate.

This is likely so for two reasons. From the perspective of the devolved nations, federalism offers a degree of lock-in to the decentralisation of power which outstrips that which can be supplied by mere devolution. And although, as noted above, the constitutional security enjoyed by devolved institutions is considerable under the current system, a federal model would (among other things) supply greater and more-formal guarantees concerning both the balance of power and (just as importantly) the process by which any further alterations to that balance would fall be negotiated and secured. Meanwhile, from the perspective of England, federalism offers the prospect of a form of “home rule” that would address concerns about the increasingly anomalistic lopsidedness of the existing constitutional architecture. Viewed in this way, a shift to a federal model might facilitate the containment of English nationalist tendencies, which are certain to be awakened in the aftermath of the Scottish independence debate.

England

The position of England cannot be considered in isolation — any change to its position would necessarily have implications for the situation of the other home nations — but it is increasingly obvious that it must be confronted head-on. England has long remained (as Richard Rawlings pithily puts it) “the spectre at the [devolution] feast” because its sheer political, numerical and economic weight has generally been judged to exempt it from the case in favour of devolution. A very large part of that case has always been that Scotland, Wales and Northern Ireland should be afforded an opportunity to move out of the shadow cast by England by virtue of its size, thereby allowing those parts of the country to live out their distinct political, cultural and economic identities. (There are, it goes without saying, other layers of complexity that apply in the particular case of Northern Ireland.)

On this view, to propose the extension of the devolution settlement to England would be nonsensical: it hardly needs to step away from its own shadow. However, the position is surely more complex than this. Even if the initial impetus for devolution is understood in the way sketched above, it does not follow that — now that there is devolution elsewhere — devolution remains inapposite in England. It is one thing to argue that the arguments forming the initial impetus for devolution had particular purchase in relation to the three smaller home nations; it is another thing to argue that the inapplicability of those arguments to England ought permanently to exclude it from any recognition within the devolution settlement. What, then, might be the positive arguments in favour of revisiting England’s position? Two are particularly pertinent.

The first argument concerns fairness; it is an old one, but it is no less compelling for that. The so-called West Lothian problem — which concerns the capacity of Westminster MPs representing non-English constituencies to legislate on matters affecting only England — is an increasingly pressing one. At its heart lies a basic unfairness stemming from an absence of reciprocity: while English MPs have renounced involvement in whole swathes of devolved matters, MPs representing constituencies located in devolved nations remain capable of influencing, sometimes decisively, the passage of legislation affecting only England.

Moreover, the electoral-college function served by the Westminster Parliament — its political composition determines which party or parties form the UK Government — means that the West Lothian problem is capable of distorting the political make-up of what is, for many purposes, the English government. Indeed, in 2010, the Conservative Party could comfortably have formed a single-party majority government had only English constituencies been taken into account.

It was always only matter of time before this issue is transformed from one that concerns constitutional anoraks into one that impinges significantly upon popular consciousness and stokes resentment. And that time has very likely now arrived. As the competence of devolved institutions expands — resulting in commensurate diminishment of Westminster’s involvement in matters affecting the devolved nations — so the anomalistic nature of the involvement of MPs from outside England in purely English affairs becomes more glaring. Indeed, it is highly unlikely that promises of further powers for Edinburgh will be politically deliverable unless accompanied by a resolution of the West Lothian problem.

The second argument concerns identity. One of the purposes of devolution is to acknowledge and to give institutional life to differential national identities within the UK. Do existing arrangements adequately accommodate this need as it pertains to England? One response to this question is (as mentioned above) to argue that English national identity receives adequate expression thanks to the size of England coupled with its (ambivalent) representation within the pan-UK Parliament and Government. However, whether this is so depends, at least in part, on how well UK institutions are able to perform their secondary function as English institutions (a question that takes us back, at least in part, to the West Lothian problem). A further issue, however, is whether the focus of this debate should be an undifferentiated English identity or multiple English identities — and this, in turn, invites questions about the extent to which we should be concerned with England’s place in the Union, and the extent to which we should instead be concerned with the place of English regions within England.  A complex set of issues — encompassing not only devolution to but also devolution within England — therefore arises.

Big-bang constitutionalism — or a typically British response?

Where, then, does this leave us? A dramatic response would be a form of “big-bang constitutionalism” involving a fundamental rethink about how the constitution works, how the four home nations relate to one another, how they relate to the UK tier of government, and where and how more-local levels of government should fit in.

The upshot might be a genuinely federal model involving the creation of an English Parliament and an English Government invested with powers similar to those wielded in Edinburgh, coupled with confining the Westminster Parliament and the UK Government to matters that need to be dealt with on a pan-UK basis. The adoption of such a system would necessarily entail the enactment of a written constitution enjoying a hierarchically superior legal status, so as to render the balance of power between the different tiers of authority constitutionally secure and impervious to unilateral disturbance — the absence of such characteristics being incompatible with a federal model. But while a “federal” system is increasingly in the contemplation of those arguing the case for Scotland to remain a UK with a reimagined constitution, it is not at all clear that the language of federalism is being used in a technical sense as opposed to being a rhetorical flourish. It is also widely argued that a truly, technically federal system in the UK would be highly problematic given that one of the four sub-federal units, i.e. England, would be so large and dominant, accounting for around 85% of the population. As Professor Vernon Bogdanor recently pointed out in The Times (£):

there is no federal system in the world in which one unit represents more than 80 per cent of the population. The nearest equivalent is Canada, where 35 per cent of the population live in Ontario. Federations in which the largest unit dominated, such as the USSR, Czechoslovakia and Yugoslavia, have not been successful.

A second possibility would be to roll out devolution to England, too. This would stop short of a federal model, since the new English (like the existing devolved) institutions would be creatures of the Westminster Parliament, lacking the constitutional security inherent in federalism. Such a system would also remain distinguishable from federalism because the devolved institutions in each part of the country would continue to wield different types and amounts of authority. As such, a system encompassing devolution in England would — by definition — not amount to full-blooded adoption of a federal system.

It would, however, represent a major constitutional change — and, as such, it would run up against much the same problem as the one cited by Bogdanor above: namely, England would acquire a distinctive institutional machinery that would (on the argument adopted by Bogdanor and others) risk destablishing the Union thanks to England’s relative size. We should not, however, adopt this argument unthinkingly, given the position at which we have arrived today. In its present condition, the Union is hardly in a particularly stable condition. It is therefore at least worth balancing any risk of destablisation against the possibility that creating English institutions might in fact exert a stablising influence, by enabling English nationalist impulses — which, as surely as night follows day, will be ignited by perceptions that Scotland is being accorded preferential treatment through the devolution of additional powers — to be accommodated within the Union.

A third possibility — and by far the most likely one, bearing in mind the Prime Minister’s statement of this morning — is an incremental, as distinct from a big-bang, approach. Such an approach would be of a piece with the incrementalist, pragmatic tradition that is arguably the defining characteristic of British constitutionalism. This tradition treats constitutional reform as an ongoing process — one that addresses challenges as they arise, rather than undertaking holistic reimaginings of the system. If this tradition prevails, then a Scottish “no” vote — and the associated conferral upon Scotland of additional powers — will likely trigger a series of consequences.

First, the possibility of conferring further powers upon devolved institutions elsewhere in the UK will arise. If Scotland is given additional powers in the aftermath of the “no” vote, it is inevitable that Northern Ireland and Wales will agitate for equivalent treatment.

Second, the West Lothian problem will be confronted, whether in the way proposed by the McKay Commission or otherwise, whilst stopping short of the more-radical option of creating wholly distinct (either federal or devolved) English institutions. Of course, as those who have wrestled with the West Lothian problem well know, there are no easy answers to it. Even curtailing the capacity of non-English MPs to influence English law is not a magic bullet, not least because this creates a further problem known as the “shifting majority”, the difficulty being that an administration formed from a party with a pan-UK majority would be unable to secure its English legislative programme if it were to lack a majority of English MPs. Indeed, the shifting-majority problem is a good illustration of the problems invited by piecemeal, as opposed to holistic, constitutional reform: pull at one loose thread, and a wider unravelling may follow.

Once — as, at some point, there inevitably will be — a UK government that commands a majority in the House of Commons thanks only to the ballast accorded by MPs from outside England, this problem will become all to apparent. It will strike at the heart of the Westminster model, according to which the government of the day commands — and must command — a majority in the House. In contrast, once the West Lothian Question is resolved, the possibility arises of a UK  government being incapable of securing a majority in the House of Commons on the vast majority of the — English — legislative business transacted there. While, therefore, the notion of “English votes for English laws” may sound as modest as it is sensible, it opens up a new can of worms that may be hard to contain. In particular, if the resolution of the West Lothian Question results in a de facto English Parliament within the Westminster Parliament, it will be hard to resist some degree of reform on the executive plane. The logic of an (effectively) English Parliament may, in other words, dictate the establishment of (in some form) an English government. A real possibility, therefore, is that tackling the West Lothian Question will — unintentionally — turn out to be the mere precursor to more far-reaching institutional reform, the logical endpoint of which is something more closely akin to English devolution of full federalism.

Third, even if reticence around pan-England institutions closes off discussion about devolution to England, it is likely that greater attention will be given to devolution within England: that is, devolution not to all-England institutions but to regional English institutions. Indeed, Nick Clegg and David Miliband have already said as much. Such proposals fell spectacularly flat when proposed in north-east England a decade ago, but that is not to say that different proposals would also fail. However, whether devolution within (rather than to) England is a fitting response to the challenges arising from the Scottish referendum is another question. The answer to it turns on (among other things) the prevailing sense (or senses) of belonging that operate in England: do those living in England identify with — and wish to be represented by — institutions that reflect an undifferentiated notion of Englishness, or would they identify more readily  with institutions standing for particular sub-strands of English identity?

Fourth, the constitutional position of devolved institutions in Scotland, Wales and Northern Ireland will become increasingly entrenched — not by dint of legal security wrought through the adoption of a technically federal model and the disavowal of Westminster’s sovereignty which that would entail — but thanks to the ongoing solidification of constitutional conventions that render unilateral interference by London in devolved affairs every bit as inconceivable as central incursions into local matters within a federal system.

These incremental steps would not amount to wholesale constitutional reform, but they form part of a narrative that it has been possible to discern for some time: of a system that is moving irrevocably away from the centralist model that was once said to characterise the UK constitution, and towards a system that, while not federal in the classical sense, is manifestly not unitary in nature.

Just as it does not now, so the UK constitution would not, were these things to come to pass, conform to any particular, identifiable model. It would not, for instance, be neatly characterisable as a federal system; nor could it be described as a unitary state. Rather, the constitution would remain — as it has been for centuries — messy and incomparable. But these characteristics are not necessarily negative ones. Untidiness is a price that is arguably worth paying for a system that exhibits a degree of flexibility, albeit that the practically irreversible dispersal of power that devolution is accomplishing inserts brakes upon that flexibility which are novel in this country. Nor is uniqueness necessarily something to be disparaged. That the UK constitution compares to no other should not inevitably be taken to mean that there is something defective about it. Rather, it is testament to the uniqueness of our epic constitutional story. The “no” vote in Scotland means that — at least for the foreseeable future — that story will endure. Nevertheless, it is hard to deny that — in ways that are, in the immediate aftermath of the referendum, difficult to forecast with absolute certainty — the “no” vote will be shown by history to have marked a profound turning-point in that story.

Mark Elliott is a Reader in Public Law at the University of Cambridge. This post was first published on his blog, Public Law for Everyone. Mark can be found on Twitter as @DrMarkElliott.

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Graham Allen: Kick-starting the debate on a codified constitution for the UK

Graham AllenDoes the United Kingdom need a codified constitution? It’s a question on which generations of law students will have had to write essays, burning the midnight oil and scribbling or tapping away into the night, rehearsing the pros and the cons. But I want it to be something else: the start of a lively and passionate public debate that could result in real change to our country’s democratic set-up.

Parliament’s Political and Constitutional Reform Select Committee, which I chair, has just launched a major consultation which aims to do just that—get people to think properly for the first time about whether having the political rulebook written down in one place might actually be a positive development for our democracy.

Example constitutions

The consultation follows on from a unique four-year project which has seen the Committee working collaboratively with King’s College London. At the end of July, we published the results of this work in a report called A new Magna Carta? The report represents the most comprehensive attempt to date to provide different detailed models of a codified constitution for consideration and comparison. It includes three illustrative blueprints that show what form a codified constitution could take:

  • A constitutional code: a document sanctioned by Parliament, but without statutory authority, and which would set out the essential existing elements and principles of the constitution and the workings of government.
  • A constitutional consolidation Act: a consolidation of existing laws of a constitutional nature, the common law and parliamentary practice, together with a codification of essential constitutional conventions.
  • A written constitution: a document of basic law by which the United Kingdom would be governed, setting out the relationship between the state and its citizens, including an amendment procedure and some elements of reform.

There have been previous attempts to produce illustrative constitutions for the UK. Among the notable examples are O. Hood Phillips QC (1970), Lord Hailsham (1976), Frank Vibert (1990), John Macdonald QC (1990), Tony Benn (1991), and the Institute for Public Policy Research (1991). Professor Robert Blackburn, who created the blueprint constitutions on the Committee’s behalf, has drawn on some of these previous attempts, and in presenting different options he has moved the debate forward. The blueprints can be regarded as standalone documents, in the sense that each is an example of a particular approach to codifying the constitution, or as three stages, resulting in a fully codified constitution.

The process of codification

In addition to the blueprints, the report contains a paper setting out the process that could be adopted in the preparation, design and implementation of a codified constitution. Using the three blueprints, the paper suggests that different models of codification would require different processes. The paper recommends that in the case of the constitutional code, “the Cabinet Office prepare a first draft of the document, building on its pre-existing guide to the law, conventions and rules on the operation of government set out in its Cabinet Manual.” For the Constitutional Consolidation Act, the paper recommends “it would be appropriate for the purpose and scheme of the proposal, together with the reasoning behind it and any problems and issues to be settled, to be set out in an initial Green Paper, inviting public and parliamentary response.” The suggestion is then that the Government ask the Law Commission to carry out the task of consolidation. In a letter to Professor Blackburn, Sir David Lloyd Jones, the Chairman of the Law Commission of England and Wales wrote: “the task of bringing together in one statute, and modernising the language of, various provisions of existing statute law relating to constitutional matters is one for which, in principle, the Commission would be well suited.”

In the case of a fully-fledged written constitution, the paper suggests that “the most suitable way forward would be for a Commission for Democracy to be set up under ministerial authority for the purpose, following cross-party talks reaching consensus on its general aims, form of composition and method of working.” Its initial task would be to draw up a written constitution, which would then be subject to political and popular approval. But a Commission for Democracy could also be a permanent part of our society, with a remit to improve the quality of our political democracy and enhance engagement.

Why now?

Of course, an essential pre-requisite to any of these processes would be cross-party agreement that codification was necessary. I believe that that agreement might be closer than people think. This is a very opportune moment to be revisiting and revitalising the debate on codification. We are living through a period of considerable constitutional change. During the past 20 years, under Governments of different political stripes, significant developments have included the removal of most hereditary peers from the House of Lords, freedom on information legislation, the establishment of the Supreme Court, the introduction of fixed-term Parliaments, and the domestic legal entrenchment of human rights. There has been devolution in Scotland, Wales and Northern Ireland, but there is still suffocating over-centralisation in England, with local government acting merely as the delivery arm of central Government. The United Kingdom itself is under stress. We’ve also had our first collation Government in recent times. Some constitutional flexibility is a good thing, but I believe it’s also important that people have somewhere to go where they can find and understand the country’s constitutional arrangements—the framework within which change is taking place.

Evidence of disengagement with mainstream politics is all around us. It can be seen in turnout rates for recent elections and the rise in support for what is essentially an anti-politics party. People don’t feel that politicians represent their views or understand their lives. But I don’t think people are apathetic about politics. They care passionately about local and global issues. They just feel that the world of mainstream politics is remote, inaccessible, and frankly sometimes incomprehensible.

A codified constitution wouldn’t solve all these problems. But it would be a start. It would mean that for the first time in the history of our country people would be able to go to one document to find the rules that govern how the state exercises power in our democracy. I hope that, in time, the constitution would become a tangible source of national pride. Every school child would know where to find it.

Consultation

The Select Committee’s consultation, which runs until 1 January 2015, is asking people firstly for their views on whether the UK needs a codified constitution. It then asks for feedback on the three blueprint constitutions that we have published. We are also interested in hearing what people think should be included in or excluded from a codified constitution and their views on the paper about the process of creating a codified constitution. Responses can be submitted via our website: www.parliament.uk/new-magna-carta-consultation They can be as short as a few sentences or as long as 3,000 words, and they can focus on one aspect of the debate, or many. We’ll be publishing the responses we receive as written evidence on our website as the consultation progresses, so there will be a chance to see the contributions that have already been submitted. After January, we will be working on a report so that we can present the responses to Government ahead of the general election.

Alongside the consultation, the Committee is running a competition to write a rousing 350-word preamble to a codified constitution for the United Kingdom. My attempt is available to read on our website, along with other entries we have received. I’m sure that, as constitutional lawyers, you’ll be able to do a better job than I did and I urge you to have a try. Entries can be submitted via our website: www.parliament.uk/pcrc-preamble

As we approach the 800th anniversary of Magna Carta, this is a once-in-a-lifetime opportunity to shape the future of our democracy—to look forward, as well as back—and to have your say on what the next 800 years should look like. Please read our report on A new Magna Carta? and take this chance to get involved.

 

Graham Allen is Member of Parliament for Nottingham North, and Chair of the Political and Constitutional Reform Committee.

Suggested citation: A. Allen, ‘Kick-starting the debate on a codified constitution for the UK’ U.K. Const. L. Blog (14th August 2014) (available at http://ukconstitutionallaw.org).

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James Hand: Lords response to Labour Peers’ Working Group Report – A Programme for Progress: The future of the House of Lords and its place in wider constitution.

James-Hand-140-x-150The House of Lords have recently debated the Labour Peers’ Working Group report looking at the future of the House of Lords and its place in a wider constitution. The report was published on 28th May 2014 and was generally well received by contributors from all sides during the 4 hour motion to take note. Lord Dubs, one of the authors, has set out the key conclusions of the working group here but in summary they seek to achieve in the interim a smaller House of Lords, limited to 450 members, ahead of a constitutional convention to decide on the future of the House of Lords and, potentially, other constitutional issues. The report also dealt with other matters such as recommending the final abolition of the remaining hereditary peers’ right to sit (in contradiction to the compromise in 1999 ‘binding in honour’ on those who assented that they should remain until the second and final stage of reform had taken place), ceasing to wear robes during introduction and some procedural reforms. This post, however, shall focus on two significant issues arising from the debate: the prospects for a convention and the division over the means for the reduction in the size of the House.

A constitutional convention

There has been much talk of a constitutional convention in Scotland should the Yes campaign win September’s referendum there (see e.g. Aileen McHarg’s and Katie Boyle’s blog posts) but regardless of the outcome of that referendum the constitutional position of the whole UK, and the House of Lords within it, is open to question following years of piecemeal constitutional reform. With one or two notable exceptions, there was general support among the speakers for the proposal that there should be a convention.

While the report limited the scope of the proposed convention to considering ‘the next steps on further reform of the House of Lords and any consequential impact on the House of Commons and on Parliament as a whole’ (para 3.14), some speakers took a wider approach. Lord Gordon of Strathblane, for example, endorsed the idea but held that the way European legislation was dealt with and the operation of the House of Commons would be higher up the list for consideration by such a body and Lord Norton of Louth, who had previously argued for one before with a different scope, considered that we need one ‘to help us make sense of where we are, and not necessarily to tell us where we should be going—Parliament can decide that once we have a much clearer appreciation of where we are in terms of the structures and relationships that form our constitution’ (at col 952). Only two peers from some 40 peers who spoke, expressed opposition: Lord Stephen questioned whether any convention could come up with any new answers about the Lords and Lord Howarth of Newport thought that the political parties should distance themselves but that the process ‘might valuably be undertaken by academics and think tanks, which could elucidate the issues and offer useful ideas.’ He further stated that a ‘royal commission, or a commission or convention, will get things wrong… [w]hat they recommend will be found not to work’ before going on to note to the shortcomings of the US Constitution and the 1990s Scottish Constitutional Convention (at col 959).

Significantly, both front benches spoke positively of a wider convention. Lord Hunt of King’s Heath, for the Opposition, noted that not ‘all noble Lords are in favour of such a proposal, but we cannot consider Lords reform in isolation from the many other pressing issues that we face in relation to the constitution, not least, as [Lord Maxton] said, in today’s era of new technologies, and also, as the noble Lord, Lord Phillips, said, in view of young people’s disengagement from politics’ (cols. 983-984). For the Government, Lord Wallace of Saltaire went further:

The case for a commission or convention is out there. There was an excellent report by the House of Commons Political and Constitutional Reform Committee last year which suggested that the Government have no view on this issue at present. However, personally and as a Minister, this is a question that we ought to be debating in the last year of this Parliament. I welcome what the noble Lord, Lord Foulkes, and others are doing. It is one that we all need to consider because we need to look at how all of this runs together. (col. 987)

That is not say that a convention will be immediately forthcoming as time is too short to define what is sought before the election, but that the topic of a convention is, to quote Lord Wallace, ‘precisely the sort of thing’ that could usefully be considered in the last year of a fixed-term parliament which could then be taken forward by the next government. A constitutional convention for the UK (or rest of the UK) can thus be seen to be more likely than it has been in the past.

Reducing the size of the House

There was broad agreement that the House of Lords needed to be smaller and, with one exception, that it should be smaller than the House of Commons. The Act passed in the last session (colloquially termed the Norton-Steel-Byles Act) sought to reduce membership through expulsion due to criminal offence, voluntary resignation and removing those who failed to attend any sitting during a session (the first of which is in force now and the latter two due to come into force this summer). The report proposed a more drastic threshold of 60% of sittings in a session (which they curiously refer to as an average (at para 8.11)), unless there are exceptional circumstances, and a compulsory retirement for all those who reached the age of 80 in the preceding session (at paras 8.5-8.6).

To have an arbitrary age limit cut-off is inherently discriminatory – in another context it has been described as ‘the statutory age of senility’ – and the justification is slight. Its proponents describe it as the least worst alternative. However, there was support by a number of peers for an evolution of the process that saw the hereditary peers whittled down (attributed to Billy Bragg by the Joint Committee on the Draft House of Lords Reform Bill and as, for example, written about here). Each Parliament, the parties could determine how many peers each should have (possibly based on the general or other election results, either by each election or through using a rolling average) and then elect or select within themselves which peers should remain. Lord Norton of Louth when preferring such a scheme to an arbitrary age limit noted that it ‘would enable the issue of overall size, as well as party balance, to be addressed effectively’ (col. 952). Lord Haskell appeared to prefer a one-off repeat of the Weatherill hereditary peer reduction followed by a formula allowing new peers to be allocated between the parties and the cross-benches (col 980). The proposal fared less well on the front benches. Lord Hunt of Kings Heath drew an unflattering comparison with the hereditary by-elections (where there are sometimes more candidates than remaining peers to act as electors, particularly with regard to the Labour hereditaries) and considered that the cut-off at the age of 80 was the least worst option (col. 983). Lord Wallace of Saltaire pictured ‘a wonderful series of bloodlettings within each of the two groups’ (seemingly forgetting about the Liberal Democrats and others) but, when challenged by the Earl of Sandwich, acknowledged that it was ‘one way of addressing the question of topping up after the election’ (cols 988-989).

In seeking to dismiss the concept of a modified-Weatherill approach to the question of the numbers of sitting life peers (either as a one-off or occurring each Parliament), the frontbench spokesmen appear to have overlooked a number of issues. Lord Hunt was concerned that a system that sought to replicate the general election results would be a strange basis for a distinct House. However, he fails to take account of a sizeable presence of cross-benchers (fixed in one version of the proposal at 20%) which would automatically render the make-up of the House different from the Commons. Furthermore, a system of rolling averages – to avoid temporary blips in electoral support being reflected in the less democratic, less powerful, more reflective House – could be used if a longer term view was sought or, to reflect the differences in different elections, a formula comprising local and European results instead or as well could be adopted. While such a system to reduce the peers – and in the Norton, if not Haskell formulation, keep the number in regular (and reasonably proportional) check – is derived from the Weatherill reduction of peers, to disparage it based on the hereditary peer by-elections is to ignore the differences in size of much of the electorate (there are, for example, over 200 Labour life peers (and nearly 100 Lib Dems) but they have only four sitting hereditary peers each). What would take place would not be a ‘blood-letting’ in Lord Wallace’s words but a pruning (or re-potting if former peers returned following a change in the political wind) which could take account of the age and past attendance but would do so in the round and not as an arbitrary cut-off. Such a system would allow peers to emulate the now late Lord Wilberforce, who regularly attended over 100 times a year, even when in his mid 90s, if they had valuable contributions to make while allowing others to retire if they so wished or to take a sabbatical and return if there was sufficient support amongst their colleagues. Only if there had been a large number of appointments during a session (which could be prevented by a statutory appointments commission) or there had been a radical change in support would there ever likely be a sizeable change in membership (which would be further reduced by both the option of retirement and the inevitability of death).

There seems to be near universal agreement that the House of Lords’ size needs to be constrained, not least as the risk now looms large of a ballooning house if new appointments are made to reflect changing strength in the Commons looms (as predicted by Robert Hazell & Ben Seyd and Meg Russell) even if there is not unanimity about the actual size. It would, on the precedent of the Weatherill amendment, only take a small change to legislation to bring about a system of indirect election as mooted by Lord Norton of Louth which would retain much of the existing strengths (and membership) of the House and which could act to prevent chamber-hopping (see e.g. Meg Russell’s piece from March) and allow more time for a wider-ranging constitutional convention to take place.

 

James Hand is an Associate Senior Lecturer at the University of Portsmouth

(Suggested citation: J. Hand, ‘Lords response to Labour Peers’ Working Group Report – A Programme for Progress: The future of the House of Lords and its place in wider constitution’ U.K. Const. L. Blog (29th June 2014) (available at http://ukconstitutionallaw.org/)).

 

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Merris Amos: Scotland, Independence, and Human Rights

Merris Amos.jpgIn its weighty tome, Scotland’s Future, the Scottish Government promises that at its heart, an independent Scotland will have “the respect, protection and promotion of equality and human rights.” Furthermore, this will not be just an empty gesture but will be “enshrined in a written constitution to bind the institutions of the state and protect individuals and communities from abuses of power.” The promise is also made that as an independent state, Scotland will live up to its international obligations on equality and human rights. Furthermore, protections already enjoyed will continue in a written constitution. These will include the rights contained in the European Convention on Human Rights (ECHR) but other rights will also be considered for inclusion. Specifically mentioned are the rights contained in the UN Convention on the Rights of the Child and principles designed to “deliver greater equality and social justice.” Any new rights or future changes will be developed in “full consultation with the people of Scotland”. It is also promised that Scotland will continue to have its own human rights body.

If the intention is to encourage a “yes” vote from those basing their vote for or against Scotland’s independence on human rights protection alone, this is a very good start. Leaders of the major political parties in the rest of the UK find it difficult to mention the words “human rights” let alone make promises to improve the legal protection of human rights or explore the possibility of adding new rights to those already protected by the Human Rights Act (HRA). Officially, the most recent pronouncement was from the Commission on a Bill of Rights which reported in 2013. Unable to agree on much, a majority of the Commission concluded that there was a strong argument in favour of a UK Bill of Rights which would build on all of the UK’s obligations under the ECHR and provide no less protection than was contained in the HRA. However, a different majority concluded that socio-economic rights were not something that should be included and that the present declaration of incompatibility contained in section 4 of the HRA should be retained as “there was no desire for conferring on courts a power to strike down inconsistent Acts of Parliament.” There has been very little progress on human rights law reform since.

By contrast, whilst the details are limited, the Scottish Government’s promises about human rights would address at least three of the problems with the current state of legal protection of human rights in the UK which the Commission on a Bill of Rights failed to do. First, as the Scottish Government itself recognised, whilst Scotland’s current equality and human rights framework is strong, that framework’s future cannot be guaranteed under current constitutional arrangements. The same goes for the rest of the UK. Once campaigning gets under way for the 2015 UK general election, it is likely that the repeal of the HRA will once again be a feature of the Conservative Party’s campaign as it was for the 2010 general election. Including human rights protection in a written constitution offers much more effective protection from the political winds of change than that offered by a mere Act of Parliament. Although it is likely that politicians would continue to criticise politically unpalatable judgments, such as those concerning prisoner voting, such criticism would be unlikely to be accompanied by promises to repeal or amend the constitution, particularly if the new constitution occupied a special place in the hearts and minds of the Scottish people. The experience of other countries demonstrates that including human rights protection as a key part of a written constitution also improves knowledge of and respect for human rights law, particularly if changes to present arrangements are developed in full consultation with the people of Scotland.

Second, whilst the details are not clear, it is likely that a written constitution containing human rights protection would mean that the legislation of the new independent Scottish Parliament would be vulnerable to legal challenge in the courts were it to be incompatible with human rights law. Whilst under the Scotland Act 1998 this is the situation at present in relation to the devolved legislation of the Scottish Parliament, it is not the situation in respect of the laws of the Westminster Parliament. Under section 4 of the HRA all a court can do is issue a declaration of incompatibility and wait for government, and Parliament, to change the law with all the delay and uncertainty that this entails. And finally, given the traditionally strong commitment to social justice in Scotland and willingness to include in the written constitution rights additional to those in the ECHR such as children’s rights and principles designed to “deliver greater equality and social justice”, it is likely that by contrast to the rest of the UK, human rights protection in an independent Scotland would extend to justiciable economic, social and possibly cultural rights. As appreciated during the lengthy process towards a Bill of Rights for Northern Ireland, often such rights have a more concrete meaning for people than civil and political rights and can help to muster support for human rights law generally whilst providing much needed protection for vulnerable individuals in an era of growing inequality.

Involving the people of Scotland in the future of human rights law, entrenching the outcome in a written constitution to which the legislature was subject, extending protection to economic, social, cultural and other human rights and support for a strong independent human rights commission would undoubtedly place an independent Scotland in the leading position on the protection of human rights when compared to the remaining countries of the United Kingdom. Were the HRA to be repealed following the next general election, the comparison would be even starker. But before planning a move to Scotland, it is important to be realistic about what will actually be achieved in relation to human rights protection were Scotland to achieve independence.

With a limited portfolio, it is fairly simple for the present Scottish government to be positive about human rights protection. Issues which have caused consternation for politicians at Westminster, such as the detention, control and deportation of terrorist suspects, have not arisen in the Scottish legal or political system. An independent Scotland would have responsibility for all matters including immigration and national security and much more difficult human rights questions would arise. Whilst it may be resisted, there would be a strong temptation to water down promised human rights protection in the face of public perceptions that human rights law is a “villain’s charter” an “obstacle to protecting the lives of citizens” and “practically an invitation for terrorists and would-be terrorists to come to Scotland”. Such notions have been prevalent in the UK print media over the last 14 years, including Scotland. Much initial work would have to be done to essentially rebrand the idea of human rights in the minds of the public, ensure sufficient education and promotion and encourage respect for the human rights parts of the written constitution. As the experience of other states demonstrates, the budget for an “open, participative and inclusive constitutional convention” would be considerable.

A related issue is what relationship Scottish courts in an independent Scotland would have with the European Court of Human Rights (ECtHR) when adjudicating on human rights claims. It is assumed that Scotland would be a party to the ECHR and thereby accept the right of individual petition to the ECtHR. Were the new constitution to be silent on the matter, it is also likely that Scottish judges would make full use of the jurisprudence of the ECtHR. Whilst there is considerable political mileage in the idea of a “Scottish” approach to human rights interpretation and application, which would garner respect and a margin of appreciation for Scotland before the ECtHR, again it is necessary to be realistic. It is only in a small minority of claims that there is actually room for a national approach. A recent example is the UK broadcasting ban on political advertising which was upheld by the ECtHR in Animal Defenders International v United Kingdom 2013. Other attempts to seek respect for a UK approach to human rights from the ECtHR, the blanket ban on prisoner voting for example, have not been successful.

In relation to the range of rights to be protected, it is important to appreciate that there exists a strong narrative force in the UK, and other national jurisdictions, against making economic and social rights justiciable in the same way as civil and political rights. As noted above, this was the conclusion of the Commission on a Bill of Rights and despite the promise of the Scottish government, the result of further consultation with powerful interests groups may mean that this promise is impossible to deliver. As it was for the HRA, a first step may be simply to offer protection to the rights contained in the ECHR and Protocol No.1, as noted in Rights Brought Home, the White Paper accompanying the Human Rights Bill, “ones with which the people of this country were plainly comfortable”. And finally, it is not clear from Scotland’s Future how the written constitution would limit the power of the Scottish Parliament to legislate. It is possible that human rights protection may afford Scottish judges something more than a declaration of incompatibility but less than a strike down power raising similar problems of delay and effectiveness which have bedevilled section 4 of the HRA.

Whatever the outcome of the referendum, by making the protection and promotion of equality and human rights as a part of a written constitution one of the issues for consideration, the Scottish Government has set an excellent example. Should the vote be for independence, those with the power to embrace and reform human rights law in the rest of the UK should take careful note.

Merris Amos is a Senior Lecturer at the School of Law, Queen Mary, University of London.

(Suggested citation: M. Amos, ‘Scotland, Independence, and Human Rights’ U.K. Const. L. Blog (13th May 2014)  (available at  http://ukconstitutionallaw.org/).

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Filed under Constitutional reform, Devolution, Human rights, Judicial review, Scotland, UK Parliament