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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Party conferences and the constitution

­­­Artemis Photiadou offers an overview of what the three main parties had to say on current constitutional debates at their party conferences last month.

Few party conferences have been held against a more intense constitutional backdrop than this year’s, with the Scottish independence referendum result announced on 19 September, Labour’s conference commencing only two days later, followed by the Conservative and Liberal Democrat conferences (and UKIP’s conference from 26 – 27 September).

On devolution and the West Lothian question

With the joint pledge for further devolution made by Cameron, Clegg and Miliband to Scottish voters at the eleventh hour serving as the point of departure, the conferences were an opportunity for each party to outline their constitutional direction amid the relief of an unaltered Union.

David Cameron, as well as the other two party leaders, used his speech to confirm that the joint pledge will be honoured. At the same time, however, he also argued that only English MPs should vote on laws that only affect England – the Conservative party’s response to the age-old ‘West Lothian question’. References to the question, and commitments to this solution, have found their way to all three Conservative manifestos since the establishment of the Scottish Parliament in 1999 so it was perhaps unsurprising. But it was nonetheless presented with renewed purpose: the decision to bring up the matter alongside further devolution served to appease Conservative backbenchers who were not consulted over the joint pledge, and which many found unbalanced, but also as a defence against UKIP.

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Regulating the permanent campaign

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Barry K Winetrobe suggests that some modern electioneering practices, especially when well before the formal election campaign begins, could confuse and mislead voters and should be regulated.

A few weeks ago, my local paper ran a classified ad for a meeting with ‘your local parliamentary candidate’. The ad had the promoter/printer imprint on it. I was a little surprised by the absence of any political party name, and the subliminal implication that this person was somehow the only candidate for the local constituency in next May’s UK general election. Intrigued by this self-description, I went to his website, helpfully listed in the advert, and there on its content-rich home page was the phrase: ‘PPC for [the constituency]‘. Looking further into the website, I finally found a very tangential reference to his political party. He also appears in the party’s website list of PPCs (prospective parliamentary candidates).

Some days later, I received in the post a communication from that person about a major local issue, containing a multiple-choice survey covering not just that specific issue but also questions relating to national politics and the 2015 general election (e.g. ‘To help make the survey results representative, please let us know how you voted in the General Election in May 2010?’ and ‘Thinking ahead to the next General Election, as things stand today, what are the chances of you voting for each of the following parties…?’). Its ‘small print’ seems to contain the only references to the relevant political party, apparently more to fulfil data protection requirements than to inform the reader of which party is involved.

There is also the growth of the term ‘Prospective MP’ by PPCs, parties and by the media. Again this term can impart the not-too-subliminal message that the candidate concerned is not merely fighting as a ‘candidate’ to be elected but is, in some senses, the winner-designate.

All this seems to be part of a growing trend (drawn from the USA?) of stressing the personal aspect of candidates rather than their party affiliation – perhaps especially so in marginal seats (like the one I am in). While this may well be accepted as a fact of electoral life, in an era of public distrust of political parties and politicians, it does seem to add up to a situation which could, whether by accident or design, confuse, influence or mislead the electorate.

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Deliver us from EVEL?

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Bob Morris draws on the Bishops and Priests (Consecration and Ordination of Women) Measure currently passing through Parliament to consider the viability of English Votes for English Laws.

Yes, from EVEL (i.e. English Votes on English Laws), not evil as in sin.

But, surely, now there is devolution all round except in England, it must be right that Scottish, Welsh and Northern Ireland MPs should not be able to vote in Parliament on matters affecting only England when English MPs cannot vote on issues devolved to the other assemblies. As part of the reaction to the politics of the Scottish referendum, the government is accordingly considering again how EVEL might be encompassed.

England-only laws are relatively rare but one example currently before Parliament – Bishops and Priests (Consecration and Ordination of Women) Measure – would permit the appointment of women bishops in the Church of England. There could hardly be a more obvious example of an English law since the Church of England is disestablished in Ireland and Wales and was never established in Scotland. The Ecclesiastical Committee of Parliament, set up under the Church of England Assembly (Powers) Act 1919, in its 233rd Report on 30 September declared that the relevant Measure was ‘expedient’ and it will come before both Houses accordingly for a final vote.

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An English Constitutional Convention could benefit both main parties in the face of the UKIP threat

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Last week Robert Hazell set out some of the options for a possible UK constitutional convention. Here Meg Russell proposes some more specific answers to the questions that he posed: for example on what a constitutional convention should be tasked to do, timescale, and membership. She suggests that a more limited convention than Labour proposes, to a faster timetable, could offer a compromise to the benefit of all main parties.

Context

Last week on this blog Robert Hazell set out the alternate options for a UK constitutional convention. Such a body has been proposed by various democracy groups (such as the Electoral Reform Society and Unlock Democracy) since before the Scottish referendum. Immediately afterwards Labour leader Ed Miliband threw his weight behind these calls, proposing that a convention should meet in autumn 2015. The idea also has the support of the Liberal Democrats, Greens and UKIP. In the Commons debate on devolution earlier this week William Hague indicated that the government was prepared to consider the proposal (col. 179).

Yet behind this apparent consensus there are huge splits between the parties, and the debate was otherwise highly polarised along party lines. Immediately after the Scots had voted Prime Minister David Cameron raised the issue of so-called ‘English votes on English laws’ at Westminster (a long-standing Conservative commitment), on which Hague is now chairing a Cabinet Committee and promising action by late November. Labour alleges that this is amounts to sorting out the constitution in haste ‘on the back of a fag packet‘, while Conservatives view Miliband’s convention plan as ‘the long grass‘. Labour clearly has the most to lose from ‘English votes on English laws’, given its relative strength in Scotland – and is thus reluctant to engage with the Cabinet committee process. The Liberal Democrats are at best ambivalent, making it doubtful that any proposals will get through. It is tempting for the Conservatives to make political capital out of this. But party political game-playing on both sides carries major risks. First, allegations and counter-allegations followed by failure of the Westminster parties to agree may simply fuel grievances and boost the UKIP vote. Second, inaction could leave the UK in a very difficult position after the May 2015 general election. Should Labour win the greatest number of Commons seats without being the largest party in England, immediate cries of ‘crisis’ could ensue.

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Selecting the Justices: Four suggestions

As the UK Supreme Court marks its fifth anniversary, Graham Gee and Kate Malleson reflect on how the process of selecting the Justices can be improved.

Earlier this month the UK Supreme Court celebrated its fifth anniversary. There has been a flurry of vacancies, retirements and new appointments during the Court’s first five years, with only four of the original Justices remaining on the bench. The next few years should (all being well) witness a period of relative stability on the Court, with the next mandatory retirement in 2016 (when Lord Toulson turns 70). A further flurry of appointments will follow in 2018, when five Justices reach mandatory retirement. The Court’s fifth anniversary is therefore an apt time to reflect on the process of selecting the Justices—and indeed we welcome the fact that the Court is currently conducting an internal review of the selection process.

The Court’s internal review has a relatively limited remit. It is largely concerned with the workings of the ad hoc selection commissions responsible for recommending to the Lord Chancellor candidates for appointment to the Court. Each commission enjoys some limited freedom to determine its own process, but within the parameters set out in statute. The Court’s review focuses on matters such as whether commissions should define merit, whether to interview candidates and whether candidates should make a presentation as part of the selection process. To tinker with the fine details of selection processes might seem a distraction when real and visible progress in securing diversity on our top court seems unlikely absent radical reforms such as gender quotas. There is some truth to this. In this blogpost, however, we suggest four changes to the workings of the commissions that would improve the way that our top judges are selected, even if falling short of the sorts of changes required to realise a genuinely diverse Supreme Court.

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You want a constitutional convention? This is what you need to think through first

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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.

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