THE UK MONARCHY: MOVING TO A REGENCY THAT DARE NOT SPEAK ITS NAME?

Bob Morris

The recent consolidation of the Queen’s and the Prince of Wales press offices under the Prince’s former press secretary and a YouGov poll(i) apparently showing warmer feelings towards the Prince’s deputising increasingly for his mother draw attention again to the gradual anticipatory transfer of functions between the Queen and her heir. How constitutionally is all this to be understood?

Abdication – the ‘A’ word

We are firmly told there isn’t going to be one. The Queen swore to serve all her days and she continues to mean it. Some other – lesser? – monarchies use abdication to pass on the throne to mature heirs with yet many years still in front of them(ii) and before the abdicator is senescent. That way the crown may still be held for decades and the appearance of continuity – thought to be one of monarchy’s advantages – preserved.

In such cases, abdication has been a response to generational arithmetic which, if its course is not revisited, could with modern longevity result in a succession of gerontocrats.(iii) Thus without an ‘A’ event and, just taking an example almost at random, it is possible to imagine a monarch plausibly likely to survive until a few years past their centenary to be succeeded by an octogenarian ruling for a decade or so to be succeeded in turn by a mere sexagenarian pushing 70 themselves succeeded by a similar aged heir.

Vernon Bogdanor is not moved by the arithmetic argument: ‘…the notion of abdications strikes at the heart of the British monarchy. For it implies that monarchy is a vocation that one can choose or abandon at will.//As soon as the monarchy becomes a matter of choice, its usefulness is greatly lessened’.(iv) But the first point naturally raises the question whether monarchy is not in the end a public office like any other public office. If so, then the view of the office holder would normally be subordinate to the interests of good government – and not entirely without regard either to the demands upon the incumbent in their old age. The second point – utility – raises just what, constitutionally, monarchy nowadays does – a point dealt with further below.

Regency

The law is clear: there can be a regency only when it can be authoritatively certified that one is necessary because of the mental or bodily infirmity of the sovereign (or for some other definite cause). The Regent has to be able to satisfy all the normal requirements for succession (Including not being a Roman Catholic but being in communion with the Church of England) and swear the relevant oaths. Prohibited from assenting to Bills changing the succession or reneging on the constitutional guarantee to the Church of Scotland, the Regent otherwise assumes all the sovereign’s functions.

Happily, the statutory criteria for a regency cannot at present be satisfied. There may come such a day but, without mental infirmity for example, bodily infirmity would have to be quite extreme to render the sovereign ‘incapable for the time being of performing the royal functions’ – the key statutory test. At what point, for example, would the sovereign become incapable of signifying assent – what sufficient minimal physical gesture, and as assessed by whom – to statutes, orders in council, church and other appointments recommended by ministers?

Short of becoming regent, an heir has no ‘hard’ constitutional position except to represent the sovereign for purposes that do not require the exercise of powers only the sovereign can exercise.(v) In a modern ‘welfare’ monarchy, this leaves quite a lot of room in the case of general ‘public duties’. For example, there is no reason why the heir could not read the sovereign’s speech at fresh Parliamentary sessions. Similarly, the heir could represent the sovereign at a range of public events varying from the annual review of the household regiments to attending the annual assembly of the Church of Scotland or leading on inward and outward state visits. The heir has already substituted for the sovereign at the biennial Commonwealth Heads of Government Meeting.

Present position

What seems to be happening is a movement to co-reigning where the sovereign is closely and explicitly shadowed by the heir but as the junior partner. The talk of an imminent ‘soft’ regency that is sometimes heard seems misplaced because no transfer of constitutional power is involved. There are ancient precedents for co-reigning monarchs but in very different circumstances: the aim seems mostly to have been to signify a preferred succession in turbulent times rather to arrange any real, immediate transfer of authority. Nonetheless, what is on hand does seem to be more a species of co-working than any other recognisable model.

Does any of this matter?

Were the sovereign still also the chief executive, then wooliness would be best avoided. Situations where there could be doubt whether an ageing sovereign could be relied upon to rein in a reckless heir’s dabbling in military matters or plundering the treasury cannot now arise. This is because the monarch is no longer the chief executive of the state: the modern head of state function in the UK is nowadays best understood as the hereditary president of a de facto republic.

The former key constitutional functions of granting Parliamentary dissolutions and selecting prime ministers no longer exist: the first was removed by the Fixed-term Parliaments Act 2011 (which substituted a statutory procedure) and the second by agreed procedures for government formation set out in a Cabinet Office Manual. The royal assent to Bills has long been a routine formality and, it has recently been argued, is ripe for statutory regulation.(vi) Otherwise no constitutional or executive function is exercised except on the advice of responsible ministers. Nonetheless, as Vernon Bogdanor points out, there are certainly important monarchical functions left, chief among them being the relationship with the prime minister, head of state in fifteen other Commonwealth ‘realms’ and headship of the Commonwealth itself. In addition, the crown is one of the few institutions operating throughout the UK. Though the longer term range of the role must be in doubt, the sovereign remains also involved in forms of UK-wide civil religion.(vii) The ‘welfare’ monarchy may beneficially continue to draw attention to causes that otherwise might struggle to obtain recognition. Helping an ageing sovereign more closely has advantages for both the sovereign and the heir, and co-working prepare the way more acceptably for accession – even to the point perhaps of smoothing passage to headship of the Commonwealth for accession to which there are, as yet, no agreed rules.

It seems, therefore, that the nation can expect a period of experimentation with co-working where, perhaps opportunistically, roles are transferred in relation primarily to public duties. One outcome should be a better prepared heir. Another – when that heir succeeds – might be a fresh look at the merits of resort in the long run to abdication as a part of succession planning.

Footnotes
(i) ‘Feet up, Ma’am, Let Charles do the work, Sunday Times 26 January 2014.
(ii) Thirty-two years each in the case of Queens Juliana and Beatrix of the Netherlands.
(iii) See Robert Hazell’s post – ‘Shouldn’t we allow our monarchs to abdicate, like the Dutch’ – 19 February 2013.
(iv) Daily Telegraph 20 January 2014.
(v) Brazier R. (1995) ‘The constitutional position of the Prince of Wales’, Public Law, 401-416, discusses the then minimal substance, a discussion taken further in Evans v Information Commissioner [2012] UKUT 313 (AAC). See also Perry A. (2013) ‘Constitutional Conventions and the Prince of Wales’, Modern Law Review, 1119-1128.
(vi) Brazier R. (2013) ‘Royal Assent to legislation’, Law Quarterly Review, 184-204.
(vii) For a recent discussion, see Bonney N. (2013) Monarchy, Religion and the State: Civil religion in the United Kingdom, Canada, Australia and the Commonwealth (Manchester, Manchester UP).

Lords vote on constituency boundaries: when is a defeat a defeat?

Last night in the Lords, the government’s Electoral Registration and Administration Bill was amended, to delay the planned boundary review of Commons constituencies (which was previously agreed in the Parliamentary Voting System and Constituencies Act 2011). In short, this was the Liberal Democrats wreaking their revenge on the Conservatives for the collapse of Lords reform. 72 Lib Dem peers voted in favour of the amendment, and it passed by 300 votes to 231.

This is undoubtedly a major blow for David Cameron and his Conservative colleagues. But was it a government defeat? The Independent reports it as a ‘bruising defeat on the Government’, but the Guardian more cautiously avoids using the D word in this way, only suggesting that should Cameron try to reverse the decision in the Commons he ‘would be defeated’, while the BBC makes no mention of the word at all.

For those of us who monitor parliamentary voting, this episode presents a dilemma. While commentators can skirt around the word, we need to decide whether this was a government defeat or not. The Constitution Unit’s website has long provided a breakdown of government defeats in the House of Lords as they happen, but this doesn’t quite fit the category. While the Conservatives whipped in favour of keeping the legislation as it was, the Liberal Democrats whipped against. Those voting for the amendment included Lib Dem ministers. Party leader Nick Clegg had made clear his intention to scupper the proposals when Lords reform was dropped, and defended his peers’ decision today, as the BBC story reports. This was clearly not a government win, and nor was it a free vote, but when the Deputy Prime Minister himself is applauding the decision, it can hardly be described as a defeat either.

Like us, the House of Lords authorities keep a running total of government defeats. Their own website chooses to describe this as a government defeat, on the basis that the government Chief Whip acted as a ‘teller’ for those wanting the bill to stay as it was. But the Liberal Democrat Chief Whip (who is also the government Deputy Chief Whip) was among those voting for it to change. I do not criticise the decision of the House of Lords’ authorities: they had to decide very quickly which way to jump. The support of the government Chief Whip is normally a pretty definitive indicator of the government’s position. But we are now in new territory, where the government – at least on certain matters – has no unified position. It seems that we need a new category for such parliamentary decisions. We have chosen for now to call this a ‘coalition split vote’. Comments and alternative suggestions are welcome below. It would be particularly interesting to know how such episodes are viewed in other jurisdictions more familiar with coalition government. The British are novices at this stuff.

This peculiar episode illustrates two more interesting things: the first is how little attention the media pays to the House of Lords. Had Liberal Democrat ministers gone through the division lobbies against their Conservative colleagues in the Commons this would have been huge political news. But because it occurred in the Lords, it didn’t even make last night’s BBC headlines. The second interesting factor is why this didn’t happen in the Commons. Cameron does not have the numbers in the Commons to overturn the decision, so it is not just a numbers issue, and he is unlikely to overturn the decision. But the second chamber’s culture of ‘self-regulation’ was crucial to this vote. The clerks’ official advice had been that the amendment was ‘inadmissible’ because it was ‘not relevant to the bill’. But peers decided to vote for it anyway. In the Commons such an amendment would have been ruled out of order by the Speaker and MPs would have been denied a chance to vote on it. In the Lords, all poor Leader of the House Lord Hill of Oareford (who has only been in post for a week, following Lord Strathclyde’s resignation) could do was plead with peers to follow convention (see here, column 490).

‘The Politics of Coalition’ by Robert Hazell & Ben Yong is shortlisted for Political Book of the Year

Congratulations to Professor Robert Hazell and Dr Ben Yong. Their book ‘The Politics of Coalition’ (Hart Publishing) has been shortlisted for Political Book of the Year in The Paddy Power and Total Politics Political Book Awards, which has been set up to celebrate and reward excellence across all areas of political publishing. The awards ceremony will take place at the BFI IMAX cinema on the 6th February 2013.

See Professor Hazell and Dr Yong discuss the book at our October 2012 seminar: https://www.ucl.ac.uk/constitution-unit/events/public-seminars/201213/politics-of-coalition

For more information on the Coalition Government project: https://www.ucl.ac.uk/constitution-unit/research/coalition-government

For more information on the awards and the shortlisting: http://politicalbookawards.com/#totalpolitics

 

1.The judges need to respond to Chris Grayling’s challenge to the authority of the European Court of Human Rights

This is Part One of a personal dialogue between a former political journalist and a lawyer over the increasingly politicised question of how the UK upholds human rights law. In particular it focuses on the role of the European Court of Human Rights which is being blamed for delay and perverse decisions. While in this post I do not support the simplistic case against the ECtHR   I argue that the independent judiciary ignores it at its peril, even while the political parties are in deadlock over what to do. If you haven’t already guessed, I’m the ex political journalist. Part 2 of the dialogue is by my legally qualified colleague, Patrick O’Brien.    

There is a real problem about the roles of the European Court of Human Rights and Convention which judges and lawyers who live with it should not dismiss as mere ignorance and political bigotry. By itself the usual retort that such questioning  only encourages dictators and damages Britain’s human rights reputation no longer carries the day. In high profile cases, appeals to the Court have lengthened the process of obtaining decisions and  have delivered results which distance justice from current political and public opinion. More significantly, the Court’s very status in our system is being questioned.  The new Justice Secretary and Lord Chancellor Chris Grayling, the first non- lawyer to hold the office, wishes  to tilt the traditional balance between the legal and political parts of the constitution in favour of asserting parliamentary sovereignty above the authority of the Convention and the Court and to some extent, British judges.

Is there a sense in which the ECtHR is the “real” Supreme Court of the United Kingdom, as many people seem to believe?  If it is not, why do we pay so much attention to it and why does it attract so much political ire? Why does it seem to be so difficult to correct misunderstandings about the Court and the Convention upon which its rulings are based? Can we clear up once for all, when we comply with its rulings and when not?  Could we even ignore it altogether? Surely the Human Rights Act was intended to deliver rights based justice more quickly and more sensitively to British public opinion?

This is a problem which Parliament will not solve any time soon. With an all-party Commission on a  Bill of Rights unlikely to heal a coalition split over the future of human rights law when it reports shortly, could the judiciary solve at least part of the problem themselves?

The ECtHR’s distance from British political opinion was evident over prisoners’ voting rights, when the court handed down a decision which was compatible with much practice on the continent but furiously opposed by the Conservatives with tacit support across the floor. This ruling has led to Grayling  presenting for consideration  the option of Parliament defying the Court and substituting new legislation which could create a constitutional impasse.  To be fair, it is hard to see what British judges could do to prevent it. Of this more later.

Judges however may be able to do something about the number of appeals in controversial cases. In September the outgoing Lord Chief Justice Lord Judge expressed “real fury” that it had taken eight years to extradite the Muslim cleric Abu Hamza to the US. and gave a broad hint that  the ECtHR  was partly to  blame.

“ I do not think, if you go through the processes, you will discover that the delays in that particular case, or in many like it, are actually to be levelled at the doors of the courts here. I cannot remember when — I was one of the judges who decided that case in the extradition proceedings. Was it 2007? So far as we were concerned, that was the end of it. That is really all I can say.”

But was it all he could say? Answering a different question, on whether in certain important cases the “real” Supreme Court was in Strasbourg, he replied :

“Well, I do not agree with the premise. The Human Rights Act is absolutely unequivocal in its language .  It requires our courts to “take account” of decisions of the European Court in Strasbourg, and, properly applied, that means that the decisions of the European Court are not necessarily binding on our courts. It is inevitable that cases which involve the interpretation of the Convention will end up — go to the European Court for decision. But, as I said, the Human Rights Act itself is quite unequivocal in its language — and, if I may say so, that is as it should be.” 

Another cause célèbre is Abu Qatada. A succession of Home Secretaries have been made to look like fools. In this area, ministers have become critics of the system more than its guardians. This may not be the fault of the courts alone but the timeline of the Abu Qatada case is surely unacceptable. Not only is the Court’s efficiency but its very role is questioned and not only by Conservatives.

Consider a couple of prominent responses to the Abu Qatada case.  The reaction from the voluble Conservative backbencher Peter Bone is not untypical. Here, as clearly as it could possibly be put, is a bundle of misunderstandings and prejudices about the European Court of Human Rights and its relationship to British Courts.  Even so, does Mr Bone have a point?

Enough is enough – put this terrorist on a plane and send him home and worry about the European Court afterwards.

.The highest court in this land, our Supreme Court, has said he can go back. Now, if the highest court in this land says he can go back, then he can go back.

We should not be kow-towing to this ‘Mickey Mouse’ European court.

More worrying because rather more sophisticated is the reaction to the prisoners’ voting rights decision from the former solicitor general Edward Garnier QC, to Joshua Rozenberg on BBC Radio 4’s Law In Action:

If this were a decision of the Supreme Court in this country, or the high court or the court of appeal, I would feel a lot more uncomfortable, both as a politician and as a lawyer. Because it is this interesting, and strange, and somewhat small ‘p’, political body known as the European Court of Human Rights are from all sorts of different backgrounds, political and legal, the imperative to bend the knee is less.

 Adhering to judgments of a court to which we are signed up by treaty is an aspect of the rule of law, which we must obey. And we can’t pick and choose the laws we want to obey. But, the prime minister has a choice to make and I suspect that the choice he will make is: ‘Thank you, Mr Attorney, for your very careful advice, but I can’t quite hear you.’”

From a former law officer, this seems like breathtaking casuistry and cynicism to this ordinary citizen. No wonder that public opinion is becoming exasperated with the criminal justice system when ECtHR decisions can be received on a take- it- or leave- it basis one day and a matter of painful compliance the next. Just as depressing is that the point doesn’t seem to have clocked with the legal establishment who seem to accept such arbitrariness as a matter of course.

What sounds like more nudge- nudge, wink- winking was apparent on 22 November when the new Lord Chancellor and Justice Secretary Chris Grayling announced a joint committee of MPs and peers to consider three options, two  a choice between  limited prisoners’ voting rights and the third, retaining an outright voting ban. On the advice of the Attorney General he personally forbore from recommending his ideal last option of defving the ECtCR, because this could mean he was breaking the law, unthinkable for a Lord Chancellor as a leading guardian of respect for the law and  judicial independence. Later he speculated that others ministers might be similarly bound by the ministerial code but the rest of  Parliament  he claimed, could act differently. The episode may still turn out to be  no more than a  melodramatic demonstration against an ECtHR ruling loathed by the Conservatives and which indeed makes the Prime Minister “physically sick.”  But the world has been put on notice that a majority Conservative government would wish significantly to curtail the role of the ECtHR in the British system.

The widening gap between the “legal” and “political” understandings of the status of the ECtHR could not have been more clearly expressed than in following exchanges between Grayling and prominent lawyers at his appearance before the Lords Constitution Committee the previous day.

Lord Pannick :… This country signed up to the convention and it might be thought therefore we have a legal obligation as a matter of international law to comply with the judgments of the European Court of Human Rights—not just those that we agree with, but all of them, and not to do so, to defy the European Court, is simply a breach of the rule of law.

 Chris Grayling: It is certainly the case that we have an obligation to comply with the rulings of the European Court but, as we also know, parliamentary sovereignty supersedes those rulings…. Ultimately, Parliament can say, “We are not prepared to accept that.”…

 Lord Goldsmith: Can I follow that up please, Lord Chancellor, because I am a little taken aback by the way you have expressed that? The point that Lord Pannick was putting to you, with which I agree, is that the obligations that we assumed as a country when we signed up to the European convention are not political obligations, they are legal obligations, and we are therefore obliged to follow them

 Chris Grayling: You would be aware that any legislative change that results from a court decision has to pass through Parliament. You talk about the legal position: the legal position as set out by Lord Hoffmann, as acknowledged and set out by the Attorney General two weeks ago, is that Parliament has the right to exercise sovereignty and to decide not to follow the instructions of the European Court of Human Rights. That is the legal position. That is a matter for Parliament to decide whether it wants to follow that route.

 Lord Goldsmith: I do not agree with that as a statement of the legal position, but that may be the difference between us.

How will the judiciary respond to Grayling? Are they in any position to present a united front?  They must be worried. Interpretations of Strasbourg decisions vary. British courts are obliged to “take account” of the Court’s rulings; but what does “take account” mean?  In his paper “Smoke and Mirrors: the Human Rights Act and the impact of the Strasbourg case law”, Richard Clayton QC observed:

When Lord Phillips and Lord Judge gave evidence to the Select Committee on the Constitution in October 2011, Lord Phillips expressed the view that in the end, Strasbourg was always going to win because we have the HRA. Lord Judge on the other hand stressed that it is at least arguable that having taken account of the decisions of the ECtHR  our courts are not bound to follow them. Lord Judge’s views were given strong support by Lord Irvine the former Lord Chancellor who presided over the enactment of the HRA, in his recent lecture, A British Interpretation of Convention Rights; and in February 2012 ,the Supreme Court appeared to welcome the possibility of going beyond the Strasbourg case law.

In his Kingsland lecture a year ago, the former Conservative leader Michael Howard said he didn’t think it would be “enough” even if British efforts succeeded to extend the “margin of discretion” for national governments to interpret the Convention. Howard called for  “something more comprehensive”, such as that hinted at by the Attorney General Dominic Grieve for a British Bill of Rights to carry out a “rebalancing” of the Human Rights Act. Howard went on to observe:

Little wonder that we have already heard demands for parliamentary input into the selection of the next British judge to be nominated to the European Court of Human Rights. If present trends continue it can only be a matter of time that similar demands are made in the context of the appointment of judges to our domestic courts. After all, this is what happens in countries like the United States where the judges exercise similar power.

What effect would such a development have on judicial independence? Is it not time that the judges got their act together on the ECtHR? The prospects for Parliament acting soon are not good.  In its report due out by the end of year, the Commission on a British Bill of Rights is unlikely to reconcile conflicting views on the scope of human rights.  A  Conservative majority government would probably try to enact a British Bill but it could be a long haul to reach the sort of consensus needed for a constitutional measure of this kind.

In the meantime with a new President of the Supreme Court in post and a new Lord Chief Justice of England and Wales imminent, is it too much to hope for, that the judges might steal a march on the politicians and reach greater clarity among themselves?

Over to you, Patrick.  

   

Not all splits are coalition splits

Posted on behalf of Peter Waller

The political commentariat love nothing more than predicting the end of the coalition, driven by splits and crises. And we have seen a rash of such stories this week over both energy policy and Leveson.

But the truth is a bit more complicated – and more interesting  -  than that.

Energy first. Until the middle of this year, DECC had been a beacon of coalition harmony in that both a Lib Dem Secretary of State and a full team of Tory Ministers were happily pursuing  a common policy with no obvious internal rows. There were admittedly some well reported disagreements with both George Osborne and Vince Cable -  but no one in Whitehall would regard those as anything other than conventional Departmental tensions not coalition ones.

But then Cameron sacked the mild mannered and coalition friendly Charles Hendry and replaced him with the much more populist and known climate change sceptic John Hayes. The only way to interpret this change was that the Tories were aware of growing unrest on their own backbenches – mainly on windfarms but also on energy costs  – and decided to throw them a little red meat.

And Hayes immediately decided that his new role entitled him not only to be a flagship for those restive backbenchers but to use his new role to attack his own Department’s policy in public. He hasn’t exactly been successful in that in that Ed Davey has first rebutted him and then proceeded to issue an Energy Bill which is far closer to existing policy than anything Hayes would support. DECC hasn’t got everything it wanted in the Bill – but what is missing can be put down to  the traditional funding concerns of the Treasury.

So is this a coalition split? No, for the very good reason is that it is actually a clear case of our old friend, the Tory split. Certainly the other leading Tory in DECC, Greg Barker, seems to have not the slightest problem with the policy he had been pursuing first with Huhne and now Davey.

Similar considerations apply to Leveson – though it is early to predict exactly how that will pan out when people have actually read it.  The interesting thing here is that over 50 Tory backbenchers have already come out in favour of statutory back-up to the press regulatory system. So again, it seems that the Tories are split rather more than the coalition is split.

But there are interesting lessons to be learnt from both energy and Leveson. We at the Constitution Unit have long believed that there will be no coalition split because it is highly unlikely to benefit either partner from ending it before 2015.  But what we are now seeing is the impact of the coalition on the way that politics is conducted in the UK.  That means a junior minister can attack his own Departmental policy and not be sacked. Government backbenchers don’t wait until their Prime Minister has announced his response to  a report before announcing how they will vote. And the Prime Minister and the Deputy Prime Minister can argue their different cases at the dispatch box on the same day.

To my mind that is nothing but healthy. As a former Whitehall civil servant, I know there are numerous issues on which there is genuine disagreements behind closed doors. If coalition means we see a few more of those disagreements out in the open, then three cheers!

Video: The Politics of Coalition

Robert Hazell and Ben Yong

Date and Time: Wednesday 10 October, 1.00pm
Venue: Council Room, The Constitution Unit

The Politics of Coalition is authored by the Constitution Unit’s Prof Hazell and Dr Yong and was published in June. It is the tale of two parties struggling to maintain the first coalition government at Westminster for over 60 years, and asks what the major challenges were in the first 15 months, and how have they were managed.

With the authorisation of Prime Minister David Cameron, Deputy Prime Minister Nick Clegg and the Cabinet Secretary, Sir Gus O’Donnell, Robert Hazell and Ben Yong interviewed over 140 ministers, MPs, Lords, civil servants, party officials and interest groups about the coalition and what impact two-party government has had upon Westminster and Whitehall.

The Politics of Coalition tells how the Coalition has fared in the different arenas of the British political system: at the Centre; within the Departments; in Parliament; in the parties outside Parliament, and in the media.

As the coalition approaches the half-way point of its five-year term, Hazell and Yong will discuss how the findings of the book are likely to play out.

The latest special adviser reshuffle

The full breakdown of special adviser movement.
Note: an asterisk denotes change due to Lena Pietsch’s return from maternity leave; SSoS refers to ‘Senior Secretary of State’.

Last Friday, the Cabinet Office published the first list of special advisers (spads) in post since the September 2012 reshuffle.

It appears they were uploaded at 7.08pm that night. An hour earlier, Andrew Mitchell had resigned his post as Chief Whip. Mitchell had only just appointed a new spad, Meg Powell-Chandler, and he may have been planning to appoint another. Since spads’ appointments are technically terminated when their appointing Minister leaves office, Powell-Chandler’s tenure was abruptly cut short.

Andrew Mitchell’s replacement as Chief Whip is Sir George Young, who left the Cabinet only six weeks earlier. His return brings the possibility that Robert Riddell, his spad as Leader of the House (2010-12), will make a return to government. Young is unlikely to keep on Powell-Chandler or appoint anyone else, because the Chief Whip under Coalition has so far only taken on one on spad, giving the other ‘slot’ to their deputy from the partner party.

Since the reshuffle, a couple of significant appointments have been made at the centre of government, with Oliver Dowden and Ryan Coetzee being brought in to the Prime Minister and Deputy Prime Minister’s offices, Dowden as Deputy Chief of Staff And Coetzee as Clegg’s chief strategy spad.

Some line departments now have more than two spads. Michael Gove and Iain Duncan-Smith now have three spads each. Another impending appointment means that BIS will now have four spads in the department: two for Vince Cable, two for the Conservative ‘junior’ ministers, Michael Fallon and David Willetts.

Jeremy Hunt has kept one of his spads from DCMS, Sue Beeby, and has agreed to appoint a second spad, Sam Talbot-Rice. Talbot-Rice is not included on Friday’s release because he had not started in his post. The Constitution Unit understands that he will take up his post on November 19 and will act as Hunt’s ‘policy special adviser’. Chris Grayling (MOJ) and Maria Miller (DCMS) are two Secretaries of State likely to hire a second spad soon.

Both of Andrew Lansley’s spads at DH have left the government, unique among spads with reshuffled ministers. The only spad to leave their post without their minister being reshuffled was Bridget Harris. She was one of the six Lib Dem ‘departmental’ spads appointed to monitor developments across government, reporting to Nick Clegg.

Three spads have moved to work for different ministers in different departments. Amy Fisher has moved from Defra to MOJ; Victoria Crawford from DFT to DFID; Guy Levin from DCMS to DFID. That is unusual: spads are usually personal appointments, and move with their minister.

Jonathan Caine is unique as spad to the Secretary of State for Northern Ireland. As predicted in a previous blog post, he is the only spad who has remained in a department in spite of a change of Secretary of State. That may be explained by his previous history: he was a spad in NIO under John Major for five years before being brought back in 2010. Arguably, he is an ‘expert’ spad.

But it is worth noting that the pending appointment in DH and BIS means that the Government will soon set a record for the number of spads in government. With fourteen joining and only ten leaving, the number of spads in post increased between July and October 2012 from 81 to 85. But the reported appointments at DBIS and DH as well as potential appointments in the Whips’ office, MoJ and DCMS mean that the number of spads can be expected to reach 87 and perhaps as high as 90, topping the previous record of 85 spads in 2004 under Labour. The rise in numbers may be brought about by the fact of coalition (and the need for greater cross party interaction); and recognition of the need for more politically committed advice and assistance to Ministers. But it is also a product of the rise in the number of ministers in the Coalition Government—especially ministers attending Cabinet.

Last weekend, the Public Administration Select Committee (PASC) published its report ‘Special Advisers in the thick of it’. The Committee came out against a cap on the numbers of spads. That was sensible: the focus should be on the effectiveness of special advisers, not their numbers. Spads are here to stay, and the sooner we have a dispassionate and informed debate about their role, the better. But whether or not the public and Westminster observers will agree is a different matter.

MH

[This post was edited on 23/10/12 to take account of Coalition practice in appointing spads to whips.]

Francis Maude’s Ambitious Civil Service Review

In the mid-term ministers’ fancy lightly turns to thoughts of civil service reform. The current government is no different. In recent months, various figures in the Coalition have expressed growing frustration about the performance of the civil service. And so it comes as no surprise that Francis Maude, Minister for the Cabinet Office, announced at the beginning of August that he would commission a review of government structures in other countries and multilateral organisations. This review would include examining various governments’ operation and accountability, identifying best practices and making recommendations for how these could be adopted in the UK. It’s a competitive bid, all for the princely sum of £50,000.

You can read the Cabinet Office’s proposal here. It’s certainly ambitious. The Constitution Unit was mentioned as one of the possible contenders for the bid, which was very flattering, but unrealistic, for reasons we set out below. And it has recently emerged that a number of other think tanks have also politely declined to submit a bid.

It’s worth thinking about the practical aspects of the proposed review. The terms of reference are very, very broad. The successful external consultant is expected to look in detail at six different countries’ bureaucratic systems at a minimum; and to look not just at the relationships between ministers and the bureaucracy, and how policy advice is provided, but successes and failures, public and parliamentary accountability mechanisms … the list goes on. Some of these six countries—New Zealand, Australia, Singapore, France, the United States, Sweden—actually have very different systems with very different experiences. The review also insists on examining the European Union (why?).

The vast scope of the proposed review means that the external organisation would need a substantial number of staff already in place, or else a very, very quick recruitment process. That would exclude a good number of organisations (like the Unit, for instance). And the comparative nature of the review also means this large project team would probably need to be already familiar with the countries in question. So not just a large team, but a large expert team. Experts or consultants cost money. That sum of £50000 begins to look less and less realistic.

Moreover, the final report is meant to be ready within two months. That is a very short time indeed. As a point of comparison, the IfG—one of the biggest, most well-staffed think tanks in the UK—is taking one year to examine many of the issues raised by the Cabinet Office proposal.

The final kicker is that the external consultant is expected to meet regularly with the Minister so that he can discuss progress and ‘provide direction’ for the project. This, coupled with the implied requirement of familiarity with comparative public administration across six countries, the short time within which they are expected to deliver, and the low sum of money being offered, raises real issues of neutrality and impartiality. The terms of reference suggest that Maude already knows what he wants, but that he needs an ‘external’ consultant to somehow legitimate it.

A final point. Francis Maude is asking for too much, too quickly. If these are the kinds of goals he thinks are realistic, is it any surprise that he and his colleagues are disappointed by the performance of the civil service?

EDIT 28 September 2012: since this blog post, Maude has announced that the Institute for Public Policy Research has won the £50,000 contract.

The chamber has become too big, and the patronage enjoyed by the Prime Minister is indefensible

Meg Russell’s letter in The Times

Sir, Lord Steel of Aikwood (“Clegg will look petulant if he walks away”, Aug 8) has suggested that the Constitution Unit might assist in finding the long-term way forward on Lords reform. We would of course be happy to do so. But he is also right that Clegg and Cameron should now be pressed to put through lesser but essential reforms, having abandoned their more ambitious Bill. The chamber has become too big, and the patronage enjoyed by the Prime Minister is indefensible. He still decides how many peers are appointed, when, and from which party. Also indefensible is the absurd system of “by-elections” to replace the remaining hereditary peers when they die.

As David Steel has emphasised, all agree that reforms to end these anomalies are necessary and would strengthen Parliament. The only disagreement is over whether they are sufficient. Nick Clegg told the Commons on May 17 last year that “the key thing is not to make the best the enemy of the good. That approach has stymied Lords reform for far too long”. He was right, and he should remain true to that principle now.

The price of constitutional revenge: Ron Johnston and Charles Pattie outline possible consequences of the Liberal Democrats voting down the proposed new Parliamentary constituencies

On Monday, 6 August, the Deputy Prime Minister, Nick Clegg, announced that because the Prime Minister could not deliver Conservative party backbench support for the coalition’s House of Lords Reform Bill, it was being withdrawn. Mr Clegg interpreted this as the Conservative party failing to deliver on part of its coalition agreement – a point also made by other Liberal Democrat spokespersons (rather unsuccessfully in some cases, as with Jeremy Browne on the next day’s Today programme). As a consequence he would instruct his party to vote against the main Conservative component in the package of constitutional changes in that agreement – the Boundary Commissions’ recommendations for 600 new Parliamentary constituencies involving a reduction in the number of MPs, much greater electoral equality and more frequent (every five years) redistributions.

Two days later, David Cameron indicated his determination to proceed with the review arguing – according to The Independent, 8 August 2012 – that every MP should agree that ‘the House of Commons ought to be smaller, ought to be less expensive and we ought to have seats that are exactly the same size’. (No convincing evidence was ever cited in the long Parliamentary debates over the Parliamentary Voting System and Constituencies Act, 2011, to sustain his first two oughts, and of course the legislation does not require exact equality, only that the range of constituency electorates should be no more than 10 per cent of the average – i.e. 7643 voters.)

The Boundary Commissions are currently just over half-way through their review implementing the new rules for redistribution. They have published their initial proposals and undertaken the first stage of the public consultation process. Revised recommendations are expected in October, and after a further period of consultation they are expected to complete their work in mid-2013. Their final recommendations have to be delivered by October 2013 and presented to both Houses for approval. When they are tabled in the House of Commons, Mr Clegg (who was responsible for the Act which created the new situation, though it was steered through by a Conservative Minister, Mark Harper) would have been expected to present the Orders. There is, of course, a precedent for a Cabinet Minister presenting such an Order, only for his whips to ensure it was defeated – James Callaghan in 1969 – although that did not have the potential to bring down a government. Mr Clegg may well pass the task to another, but if he does instruct his MPs, including all Liberal Democrat Ministers, to vote against and assist Labour in defeating the Orders this could lead to the coalition’s demise!

What would happen then is uncertain. Under the Fixed-Term Parliaments Act, 2011 (another element of the coalition constitutional package) a general election can only be held before the scheduled date of 7 May, 2015, if either:

  1. The House of Commons passes a motion to the effect that ‘There shall be an early Parliamentary general election’, with the number voting for that motion being at least two-thirds of the number of seats in the House (including current vacancies); or
  2. The House of Commons passes a motion ‘That this House has no confidence in her Majesty’s Government’ and a further motion ‘That this House has confidence in her Majesty’s Government’ is not then passed (presumably on another potential government, with a different leader, than that in which no confidence was recently expressed) within fifteen days of the first motion.

If the government falls as a consequence of the vote on the new 600 constituencies, therefore, an immediate general election may follow if the House of Commons so decides. It would be fought in the existing 650 seats.

Of course, if Labour and the Liberal Democrat MPs all voted against the Order, it would not necessarily fail. Together they could muster 312 votes (assuming a Labour win in the forthcoming Corby by-election) to the Conservatives 304. Everything would then depend on the 25 other MPs who normally attend and vote (i.e. excluding Sinn Féin’s five plus the Speaker and three Deputies): nine Scottish and Welsh nationalists, eight from the DUP, three from the SDLP, three from single-member parties (Alliance, Green, Respect) and the two independents. It would be possible, but difficult, for the Conservatives to use ‘sweeteners’ to manufacture a majority of 321 without their coalition partners, if they were determined to get the new constituencies in place for the 2015 election.

And David Cameron has indicated that they will be determined. The legislation was introduced because the Conservatives believe – rightly – that they have been substantially disadvantaged by the operation of the electoral system for two decades. They also believe – wrongly – that the major reason for this is the current inequality in constituency electorates, which substantially favours Labour. That component of the pro-Labour bias is much less than they sometimes claim. Nevertheless, analysis of the Boundary Commissions’ initial recommendations clearly indicates should be the Conservatives will be the major beneficiaries of the first implementation of the new system for redistributions and the reduced number of MPs. In 2010, they gained a lead over Labour of 48 seats. If that election had been fought in the Commissions’ proposed new seats, best estimates suggest that their lead over Labour would have been extended to 68 seats (in a House of only 600 MPs compared to the current 650). With the Liberal Democrats estimated to win only 46 seats (they got 57 in 2010), the Conservatives would have been only two seats short of an overall majority (and with Sinn Féin MPs not voting would in effect have a very small one).

Of course, the Commissions will probably change their recommendations (though not extensively, given the constraints they are working under) after they have considered the representations received: these have included strenuous efforts by each of the parties to alter the proposed boundaries in their electoral favour in many areas, by suggesting alternative configurations that better meet the deployed criteria (community ties, continuity of representation, special geographical considerations etc.) other than electoral equality. Indeed, if all of the Conservatives’ counter-proposals were implemented (which is very unlikely, despite their very professional, painstaking approach to the task) they might expect to have won a further 13 seats than in those constituencies proposed by the Commissions: with Labour losing twelve the gap between the two parties would be 93 seats rather than 68, and the Conservatives would have had a workable majority. (Of course, if the other parties’ counter-proposals were all implemented the situation would not be so rosy: Labour’s would close the gap to only 47 seats, for example.)

The implication is that between now and October 2013 the Conservatives will do much to try and win back Liberal Democrat support for the new constituencies – based on arguments made by Mr Clegg in Parliament in 2011 that the rules used to produce them are much fairer than those previously deployed. Whether that involves a much more limited reform of the House of Lords, along the lines being vigorously promoted by David Steel (an ex-leader of Mr Clegg’s party), or other ‘concessions’ in a renewed coalition agreement remains to be seen. (The Conservatives may also have to convince some of their own MPs that the exercise is worth it. Many were surprised by the extensive fracturing of the constituency maps in the Commissions’ initial proposals – one termed them ‘somewhat more disruptive than we had in mind’ – and although most indicated their support for greater equality, fewer MPs, and more frequent redistributions in their representations to the Commissions, in some cases this was clearly grudging support as they faced the possibility of having to seek re-election from a very different seat to that currently represented.)

At this stage, however unlikely it might be that Mr Clegg carries out his threat (assuming he is still leading his party in a year’s time), it is illuminating to rehearse briefly several other scenarios that might play out.

The first – although very unlikely, because of the loss of face it would involve and the potential use of Parliamentary time – is that the 2011 Act is repealed in autumn 2012. The Boundary Commissions will then terminate the present exercise and the previous legislation will come back into play. This requires them to undertake a review every 8-12 years. The last one was completed in 2007 (2004 in Scotland) and in order to meet that timetable they (especially the English Commission) may deem it necessary to start a review in 2013. It would not report until after the 2015 general election, however, which would have to be fought in the current 650 constituencies with some at least of the pro-Labour biases accentuated in seats that were created using 2000-2001 electoral data. New constituencies would only be in place in time for the 2020 election – but with at least the same number of MPs as now, and perhaps a few more.

One of a second pair of scenarios would eventuate if the Boundary Commissions complete their current task in 2013, but their recommendations are then voted down by Parliament. In that case too, the 2015 election would be held in the current 650 constituencies. Much will then depend on who wins that election. If the Conservatives do, or they are the largest party in a new coalition government, they will presumably retain the current legislation (perhaps with some amendments: they were pressured to retain Public Hearings and may try again to abolish them – like the previous Local Inquiries, they continue to be dominated by the political parties). The Boundary Commissions will, under the 2011 Act, start their next review in 2015-2016, to produce a House of 600 members by October 2018, for use at the 2020 election. The 600 constituencies currently being created would probably form the basis for that exercise, although significant changes in some areas may be needed because of population movements, re-warding by local government boundary commissions, and the impact of Individual Electoral Registration, assuming that legislation passes.

If Labour forms a government in 2015, however, or is the largest party in a coalition, it may well repeal the 2011 legislation, which it vigorously opposed, especially in the long and tedious House of Lords Second Reading debates. The Boundary Commissions would then have to begin a new review based on the rules set out in the Boundary Commissions Act, 1986 (before it was amended by the Parliamentary Voting System and Constituencies Act, 2011). Under those conditions, it is unlikely that that review would be completed in time for new constituencies to be in place for the 2020 general election (particularly in England: it may be completed and its recommendations implemented in the other three countries). In that case an election would be held 2020 in the 650 constituencies based on data some twenty years old, with very substantial electoral inequality (although, given the growing re-population of urban England recently reported, this may not be as much to Labour’s advantage – except in Scotland and Wales – as it has been previously). The new constituencies, based on 2015 electoral data, would then be ten years old when first used in 2025 – exactly the situation the Conservatives sought to avoid with the 2011 legislation.

Half-way through the two decades from 2000, there are already substantial variations in constituency electorates within each country. In December 2011, for example, the average English constituency contained 72,522 voters but three (including the two Wirral seats) had electorates below 60,000 and a further 47 had 60,000-65,000: at the other end of the scale, three (Manchester Central, East Ham and the Isle of Wight) had electorates in excess of 90,000, and another 45 had 85,000-90,000. By 2020, the variation would be much greater. Meanwhile, in over-represented Wales the current average electorate is just 57,465, and four of the 40 constituencies have fewer than 50,000 voters.

Finally, if the Commissions’ recommendations for 600 new constituencies are accepted by Parliament in 2013 and used for the 2015 general election, what happens next remains a matter of conjecture. If Labour wins then it will probably seek to amend the Act, creating new rules (probably with a wider range of acceptable electorate sizes that the 5 per cent maximum variation from the average currently enacted and different guidelines for the conduct of public consultation, and perhaps also with less frequent redistributions than every five years)? If so, the outcome could well be another new set of constituencies considerably different from those used for the 2015 election. If the Conservatives win, they are more likely to retain the current rules – though some at least of their MPs are uneasy about them. At one stage before the 2010 election there was talk of reducing the size of the House of Commons in two tranches – to 585 MPs in 2015 and then 500 in 2020 (a goal supported by some Liberal Democrat MPs). After the problems with the current redistribution that is probably now off their agenda!

*****

If a week is a long time in politics, a year is a geological era and much may happen to change Mr Clegg’s stance – if not that of his Conservative partners – before the Orders based on the Boundary Commissions’ current reviews are placed before Parliament and voted on. But if, for some reason, those new constituencies are not in place in time for the 2015 general election, the result will not only be a larger House of Commons than that legislated for in the coalition government’s early months, but also a very unsatisfactory, ancient, set of unequal constituencies (both across and within each of the UK’s four countries) and all the biases this can introduce to the electoral system’s operation. As seemed possible at times in 2010, Labour could win a majority even though it wasn’t the largest party!

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