“A good place to work?” What Commons staff think of House governance

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Barry K Winetrobe examines one aspect of the current committee inquiry into House of Commons governance following the Clerk appointment fiasco. Evidence submitted by House staff reveals much which may be unsettling for House managers and MPs, but is ultimately good for the House itself.

‘We seek to ensure that the House of Commons is a good place to work’ (House of Commons Staff Handbook, para 3.2, Core Values of the House of Commons Service)

A couple of months ago I wrote a piece for this Blog on the botched efforts of the House of Commons in appointing a new Clerk/Chief Executive, and the harmful impact this would have on the House and its public reputation. On 1 September the Speaker announced ‘a modest pause in the recruitment process’, and, following a Backbench debate on 10 September, a Select Committee on House Governance chaired by Jack Straw was appointed. Its terms of reference are ‘to consider the governance of the House of Commons, including the future allocation of the responsibilities for House services currently exercised by the Clerk of the House and Chief Executive.’

The Committee is due to report to the House by 12 January. Given this tight deadline, it has been active since its full membership was agreed on 16 October. It has received and published on its website a large amount written and oral evidence, and on 20 November it helpfully produced an update on its work to date.

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English votes on English laws: much ado about nothing?

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Robert Hazell writes that if English votes for English laws were introduced, the impact would most likely be limited. He highlights that there are relatively few English laws, and that few votes in the past would have had different outcomes if EVEL had been in place.

The sound and fury generated by the debate on English votes on English laws may tend to exaggerate the likely impact of any change. There are two challenges faced by the Cabinet Committee chaired by William Hague which has been tasked with crafting a worked out policy. The first is devising a solution which is technically feasible; the second, selling that solution as being politically worthwhile. This blog post addresses the second challenge: will English votes on English laws make much difference? This is something to be explored further, when the government’s proposals are announced. The argument made here is that the questions to be asked need to go beyond the technical details, to the likely impact.

There are two reasons why English votes on English laws (EVEL) may make little difference in practice. The first is that there are relatively few English laws. We cannot confidently say how few: one of the disappointments of the McKay report was that it failed to say what proportion of bills (or clauses in bills) would be caught by its proposals. But if Hague were to ask his officials how many bills in the current parliamentary session 2014-15 might count as ‘English laws’, they would answer that there are just two: the Social Action, Responsibility and Heroism Bill, and the Modern Slavery Bill.  The first makes a very minor change to the English law of negligence, the second strengthens the criminal law on human trafficking. There is also one other measure where EVEL might apply: the Bishops and Priests (Consecration and Ordination of Women) Measure, to allow the appointment of women bishops (see Bob Morris’s recent Constitution Unit post). None of these laws is going to set pulses racing in middle England.

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Are quotas for judicial appointments lawful under EU law?

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A recent report laid out recommendations for improving diversity in the judiciary, including a quota system for women and BAME candidates. Kate Malleson and Colm O’Cinneide explore the legality of such measures under EU law, and specifically whether the quotas could be brought in under EU employment law or EU gender equality law.

In April 2014 Sadiq Khan, Shadow Secretary of State for Justice, asked Karon Monaghan QC and Geoffrey Bindman QC to review the options for a future Labour Government to improve diversity in the judiciary. On November 6th their report, entitled ‘Judicial Diversity: Accelerating change’, was published. Starting from the premise that ‘[t]he near absence of women and Black, Asian and minority ethnic (BAME) judges in the senior judiciary is no longer tolerable’, it proposes a range of recommendations designed to speed up the glacial pace of change. Perhaps the most controversial of these is for the introduction of a quota system for women and BAME candidates. The report reviews the use of quotas in other UK institutions as well as their use in judicial appointments processes around the world, before addressing the question of whether such quotas would be lawful under EU law. This is a key question: EU law casts a long shadow in this context, as the Monaghan and Bindman report makes clear, given that any legislation enacted in Westminster to give effect to a quota system in the process of judicial appointments must conform to the requirements of EU law.

There are two stages involved in any legal assessment of the proposed quota measures under EU law. The first is whether holding a judicial office is classified as being ‘employed’. If the answer is no, then the question of their legality under EU law does not arise as appointments to judicial office will not fall within its scope of application. If the answer is yes, then the judicial appointments process will qualify as ‘access to employment’ which will bring it within the scope of Article 1 of the Recast Gender Equality Directive 2006/54/EC. This will mean that the use of positive action measures, such as quota systems, in the process of judicial appointment will have to conform to the restrictions on the use of such measures set out in the relevant case-law of the Court of Justice of the EU (CJEU).

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The new political class of 2015

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There is a perception that Westminster politics is a self-serving career machine for the ambitions of a small cadre of self-reproducing politicians. To what extent is this view justified on the basis of the evidence? With six months until the 2015 general election Rosie Campbell, Chrysa Lamprinakou and Jennifer vanHeerde-Hudson assess the diversity of the parliamentary candidates selected so far.

There can be no silencing of discussions about who governs us in the wake of the Scottish referendum. As the Westminster parties try to identify means to simultaneously fix both the Scottish and English questions, whilst maximising their electoral advantage, the electorate remains sceptical about mainstream politicians’ commitment to truly represent them. We see evidence of this scepticism in the declining turnout rates at British general elections, the rise in support for UKIP and in the 1,617,989 Scots who decided that they would prefer not to be governed from Westminster at all.

The three party leaders, who travelled up to Scotland to deliver their promise of greater devolution, may not share policy preferences, but on the surface at least they have a great deal in common. All three are white, youngish-middle-aged men with high levels of education and all are career politicians.   The seeming homogeneity of the political elite feeds into a perception that Westminster politics is a self-serving career machine for the ambitions of a small cadre of self-reproducing politicians. To what extent is this view justified on the basis of the evidence? Are political parties continuing to select individuals who fit the usual mould to stand for parliament or is there evidence of increasing diversity among parliamentary candidates?

Using data from our study of parliamentary candidates (see parliamentarycandidates.org), we look at the gender, race, age and occupation of the candidates selected by party and seat winnability so far.

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Solomon Grundy does constitutional change: The Smith Commission timetable to transform the Scottish Parliament

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Stephen Tierney expresses concerns over the Smith Commission timetable, highlighting that the speed leaves little time for appropriate due diligence and detracts from the democratic credibility of the process. He argues that there is a need for restraint, and a more independent and inclusive review over a longer period.

In the month of November the Smith Commission is set to draw up the most significant programme of constitutional change for the United Kingdom since 1998. Already the period within which citizens could submit their views on this process has passed; the Commission having set a deadline of 5 p.m. on 31 October.

Such a rapid process runs counter to both the due diligence that is surely needed before any decision is taken to restructure the UK tax (and possibly welfare) systems so radically and the due process which ought to accompany such a seminal constitutional development. Unfortunately the principles of deliberative constitutional decision-making and popular democratic engagement which figured strongly in the recent independence referendum are unlikely to gain much traction in the current rush to change.

The referendum campaign was indeed a remarkable period of citizen empowerment. The turnout of 84.7% is only one dimension of this; in a deeper way many citizens were greatly invigorated by the referendum and the role they had in discussing and ultimately in making such a huge decision. The Smith Commission process, by contrast, bears all the hallmarks of a return to elite-led constitutional change; and it is deeply ironic that the impetus for such a rapid and party-led process should be the independence referendum itself. As the 18th of September approached and the polls seemed to tighten, the leaders of the main unionist parties issued ‘The Vow’, promising more powers for the Scottish Parliament and setting out a firm timetable for change.

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Scotland after the Referendum: “It was business as usual that got us into this position in the first place”

October’s seminar at the Constitution Unit entitled The Day After Judgement: Scotland and the UK after the Referendum responded to the vote on independence held in Scotland on 18 September. Professor Jim Gallagher and Professor Iain McLean discussed the future of the UK Union and the devolution of power from Westminster to Holyrood. Julian Payne reports.

At the Scottish independence referendum on 18 September more than 55% of Scots voted in favour of remaining in the United Kingdom. Last week, at the latest Constitution Unit seminar, the repercussions of this decision were discussed by Professor Jim Gallagher and Professor Iain McLean, both distinguished academics with extensive experience in devolution. The speakers emphasised that following the referendum it would be wrong to assume that we can revert to ‘business as usual’. Instead, what is required is a system of devolution for Scotland that is in line with the Union that was defended in the referendum.

The question of a referendum was first raised in 2007 when the Scottish National Party (SNP) formed a minority government in Scotland. Polling data going back to 1999 suggested that an independence referendum was never going to yield a majority yes vote. Why did the SNP say they wanted a referendum when the Scottish Parliament did not have the legal power to hold one and data suggested they were going to lose anyway? According to Prof. McLean, the insistence on a referendum for Scottish independence can be attributed to ‘cheap talk’ – it cost nothing to say and it would be voted down in the Scottish Parliament anyway. However, the election of an SNP majority administration in Edinburgh in 2011 and the promise of a referendum in the SNP manifesto meant that there was no turning back.

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The saga of Nepal’s embattled constitutional politics continues

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As the deadline for drafting Nepal’s constitution looms, it seems unlikely the Constituent Assembly will be able to deliver on time. The question of federal restructuring has been a particular roadblock, but the opaque nature of negotiations and the exclusion of minority interests have also inhibited compromise, writes Mara Malagodi.

Almost a year has passed since Nepal’s second Constituent Assembly (CA2) was elected in November 2013. Regrettably, no significant progress has been made so far on constitution drafting by the new legislature/Constituent Assembly. As a result, the peace process that put an end to a decade of civil war in 2006 remains to this day incomplete, and the country’s political situation deeply unstable.

In March 2014 the CA2 finally succeeded in adopting the many agreements reached by the first Constituent Assembly (CA1). However, the thorny issues that caused the CA1 to be dissolved without a new constitution after four years of deliberations and four extensions (2008-2012) remain embattled and divisive.

The questions of federal restructuring and form of government have polarised Nepal’s political spectrum. On the one hand, the Nepali Congress, the UML (or Communist Party), and other smaller conservative and left-wing parties advocate for territorial restructuring along the lines of devolution, and to retain a parliamentary form of government. On the other, the Maoists, alongside Madhesi and Janajati parties, promote federal restructuring along ethnic lines to secure the inclusion of the many marginalised groups, and a presidential system in which the President is elected by popular vote. The Nepali Congress and UML currently dominate the CA2, making the former institutional roadmap the most likely outcome. However, a qualified two-third majority of CA members is required to pass the new constitution. The two dominant parties are short of a handful of votes, which forces a degree of compromise. Negotiations therefore remain ongoing.

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