Monthly Archives: September 2013

Designing Constitutions to Prevent Dictatorship

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27th September 2013

I had the privilege to hear President Marzouki of Tunisia and former President Otunbayeva of the Kyrgyz Republic speak during the launch event for Constitute on Monday.  The remarks by both Presidents were excellent and, remarkably, sincere.  They spoke very optimistically about their respective countries’ futures, while recognizing that both countries faced many challenges on their path towards development.

What struck me about both President Marzouki and former President Otunbayeva’s remarks was their focus on preventing a return to dictatorship.  Although I have no doubt that both Presidents have aspirations of democracy, their remarks were far more focused on creating constitutions that prevent a return to dictatorship than on designing constitutions that will usher in democracy.  Such an aim is certainly reasonable.  After all, both countries have recently exited long periods of repressive dictatorship and want to avoid something similar in the future.  Moreover, the goal of preventing a return to dictatorship is very pragmatic.  Consolidated, liberal democracy is not something that is achieved in a few weeks or even a few years.  Both Tunisia and the Kyrgyz Republic will be in their current transitional state for some time and, as long as they are in that state, the danger of backsliding into a repressive dictatorship is very real.  Most countries that experience a breakdown of dictatorship will transition into another dictatorship, not a consolidated, liberal democracy.  Both Presidents were very cognizant of this risk.  They both mentioned, numerous times, that many individuals within their respective countries would prefer dictatorship to the transitional state currently present in both countries.  Not only are there the elites from the old regime who long for a return to power, but many ordinary citizens prefer the stability brought by dictatorship to the uncertainty and disorder that is associated with democratisation.

The focus of the two President’s on preventing a return to dictatorship was striking because there is little scholarly literature that helps leaders to understand how to prevent backsliding towards dictatorship.  There are some studies that attempt to identify the determinants of backsliding (I was recently the discussant on a panel at the Annual Meeting of the American Political Science Association on this very topic).  However, the vast majority of social scientists who study these topics are focused squarely and exclusively on understanding the determinants of consolidated, liberal democracy.

Of course, one could say that I am splitting hairs because any variable negatively associated with democracy is a variable that promotes backsliding, right?  Perhaps, but personally, I think things are a bit more complicated than that in countries transitioning out of dictatorship.  Given their remarks, I think that President Marzouki and former President Otunbayeva would probably agree with me.  It might be unfair to suggest that they were more worried about preventing a return to dictatorship than transitioning to democracy, but it was clear from their remarks that the former was a key concern for both of them.  Their concern should be our concern.

This means asking research questions about how transitioning countries can maintain their path towards democracy, rather than slipping back into some form of dictatorship.  Such research would imply a trichotomous measure of democracy, where the groups are dictatorships, transitional countries, and democracies – e.g. as that used by (Epstein et al. 2006).  Rather than focusing solely on the institutions operating in transitioning countries, as President Marzouki of Tunisia and former President Otunbayeva did in their remarks, there are a range of factors that one could study.  Some that seem particularly promising include things like the number and type of groups involved in the transition, the constitution-making process used and how long that process lasts, involvement from the international community, etc.  Only by studying these critical moments in countries’ histories can we provide any insights for leaders and members of the development community about how they can minimise the risk that a transitioning country will slip back into dictatorship.

Announcing the Launch of Constitute: The World’s Constitutions to Read, Search and Compare

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23rd September 2013

I am pleased to announce the launch of Constitute, a website for reading, searching, and comparing the world’s constitutions.  Constitutions are critical to countries’ development.  Outcomes, like democracy, economic performance and human rights protection, are all associated with the contents of countries’ constitutions.  It is little wonder, then, that constitutions are often blamed for poor economic and political outcomes or that such outcomes commonly result in constitutional change.  Constitute aims to improve constitutional design and, in doing so, increase the likelihood that countries’ constitutions will facilitate development, rather than hinder it. Numerous countries change their constitution each year.  Already this year we have observed new constitutions in Fiji and Zimbabwe and constitutional amendments in Brazil, Colombia, the Czech Republic, Georgia, Hungary, Mexico, Switzerland and Tonga.  In addition, countries like Egypt, Myanmar, Tunisia and Yemen are all known to be in various stages of the constitutional revision process.  Some might be surprised to learn that so many countries have either recently revised or intend to revise their constitutions.  After all, constitutions are meant to be timeless documents that establish the foundations for politics and governance from one generation to the next.  This may be true in the United States or Western Europe, but most countries’ constitutions are fragile.  A typical constitution lasts only 19 years, which means that, on average, 5 constitutions are replaced and 30 are amended each year.

Despite the high level of constitutional change each year, there is no country that changes its constitution often enough for public officials to gain much experience as constitutional drafters.  Constitutional drafters are typically engaged in a task that they have never done before and will never do again.  They lack systematic information on the contents of other countries’ constitutions that could help them to decide what topics should be addressed in their constitution and how to address those topics.  Such information is hard to acquire.  There is no single location that constitutional drafters can use to access and compare constitutional documents and language – which is critical to drafters – because these documents are locked up in libraries or on the hard drives of constitutional experts.

Constitute addresses this problem by putting searchable copies of the world’s constitutions online.  However, Constitute is more than just a repository of constitutional texts.  The project draws on data collected by the Comparative Constitutions Project over the last 8 years to assign topic tags to provisions within constitutions.  This allows for powerful, topic-based searches of those texts.   There are more than 300 topics for users to choose from on the site, which range from the fairly general – e.g. the structure of the branches of government – to the very specific – e.g. voting rights for indigenous groups.  For those interested in regional or temporal trends in constitution-making, the search results can be filtered by country and year.

Our hope is that Constitute will improve constitution-making by allowing drafters to consider the full array of possible choices when determining the contents of their country’s constitution.  We also anticipate that the tool will empower domestic actors not directly involved in drafting the constitution but who are, nonetheless, integral to the success of that process.  Increasingly, constitution-making processes ask the public to participate, for example by submitting suggestions to the constitutional drafting committee or approving the completed draft in a public referendum.  Constitute will facilitate participation in these aspects of the constitution-making process by allowing groups in civil society, academia, and the general public to inform themselves about how other countries have tackled particular problems.

More generally, the constitutions available on Constitute will be of great interest to numerous domestic actors in countries all over the world.  Many constitutions are not available in digital form and tools to organize their provisions for a non-specialist are rare, even though there is substantial demand for such tools from public officials, lawyers, non-governmental organizations, students, etc.  Constitute can be used by such individuals to learn about their constitutions.  Want to know if your constitution protects freedom of religion or the right to health care or even the rights of breast-feeding mothers?  Just search for the term you are interested in, using either a topic or free text search, and filter the results to display only the country where you reside.   (For the curious reader, note that only Ecuador’s constitution mentions the rights of breast-feeding mothers.)

Constitute will increase transparency in countries throughout the world by ensuring universal access to the world’s constitutions.  We expect that access to these important documents will improve constitution-making as well as empower the general public to play a more active role in their country’s governance.

Constitute was made possible by the support from Google Ideas and the Indigo Trust.

How often do prime ministers bow to the will of parliament? Actually, all the time

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30th August 2013

David Cameron‘s defeat last night in the Commons on his motion on military intervention in Syria has been met with shock, and correctly seen as a very visible assertion of parliamentary power. But, although such confrontations are unusual, it would be wrong to assume that parliamentary checks on government ambitions are the exception. In fact, they happen all the time.

Two things are unusual about yesterday’s events. First, and most widely commented upon, they address the difficult and high-profile question of peace and war. Historically, the ability to deploy troops has been seen as part of the ‘royal prerogative’ – whereby the executive can act without explicit parliamentary consent. This came under particular pressure in the run-up to the 2003 Iraq war, when Robin Cook (Leader of the House of Commons) and Jack Straw (Foreign Secretary) persuaded Tony Blair that he should not proceed without the clear support of MPs. The result, on 18 March 2003, saw ‘the largest [vote] against the whip by government MPs since the beginning of modern British politics‘ – 139 Labour MPs defied the whip – but the Prime Minister still managed to win the vote with Conservative support. Subsequently there has been pressure to entrench a convention that parliamentary consent is required for the deployment of troops, with reports from one parliamentary committee and then another . Gordon Brown, and subsequently the coalition, have been sympathetic to such calls, but – as the second of these reports explores – the issues are complex. In 2011 David Cameron sought parliamentary approval for action in Libya, which was forthcoming – but only after the event. This sparked calls from a third committee to clarify the situation. But in short, a rejection by the Commons of such a proposal is unprecedented in recent times – at least because it has so rarely been asked the question. A useful briefing by the House of Commons Library documents how Commons debates on earlier conflicts – including Suez and the Falklands war – were generally taken without a substantive vote.

The other thing that is unusual is for a government to have to back down so publicly, on any kind of policy, in the face of parliamentary opposition. But this is not unheard of, including under the coalition. Most obviously, Nick Clegg’s Lords reform proposals were withdrawn when it became clear that he faced certain defeat in the Commons on the necessary programme motion. Earlier, the coalition’s Health and Social Care Bill had been withdrawn for a ‘pause’, due to resistance – particularly from the Liberal Democrats. Tony Blair also faced problems, notably being forced to implement a ban on foxhunting that he did not himself support, and being pressured into a free vote on a total ban on smoking in public places, leading to a reversal of government policy. All of these events took place in the very public arena of the House of Commons. What is more routine is for government to withdraw proposals following defeat in the House of Lords . As I document in my recent book, a key consideration for ministers in deciding whether to accept a Lords defeat is what the Commons will bear. When there is clear resistance from government backbenchers (as Brown faced over his proposals to detain terror suspects without charge for 42 days), plans are usually dropped to avoid possible Commons humiliation.

But this leads to the key point – which is that the real power of parliament is primarily exercised behind-the-scenes, through ministers considering what MPs are prepared to accept, and only putting proposals that they know will achieve support. When it comes to legislation, which is the topic of one of our current projects, a huge amount of effort in Whitehall goes into developing parliamentary ‘handling strategies’ to think through what will prove controversial in both the Commons and the Lords. This is very explicit in the Cabinet Office’s own guide to making legislation which also states that if ‘the Government expects to be defeated on a non-government amendment, it may wish to pre-empt a defeat by tabling a concessionary amendment’ – in other words to avoid a defeat by changing its policy before the vote. It is through these subtle and private mechanisms of communication that parliament’s primary power is felt. Indeed among our case study bills there was one – the Corporate Manslaughter and Corporate Homicide Bill – that the Prime Minister was said himself not to want, but which was introduced due to pressure from Labour MPs. It is the whips’ job, in particular, to keep in touch with parliamentary opinion through informal chats in corridors and tearooms, and ministers do the same in private meetings with MPs. If these mechanisms are working confrontations can be avoided, but parliamentary power is being exercised nonetheless.

Returning to the events of yesterday, what therefore appears to have gone wrong is communication inside the Conservative party. It is obviously more difficult for whips to keep on top of opinion during a parliamentary recess, and this can only have exacerbated the problem. What is more surprising is that when things started to look difficult the government didn’t strike a deal with the opposition so that both sides could support one resolution – the words of the government resolution and the Labour resolution were strikingly similar. But does this mark the start of a new period of confrontation between government and parliament? Probably not. A smart government is in constant dialogue with parliamentarians, and when necessary trims its ambitions to avoid public splits. If Cameron didn’t know that before, he certainly knows it now.

Time For Commons To Seize The Reform Moment

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01 September 2013

Seizing the moment

There has been much talk about shifts in the balance of parliamentary-Executive relations following the Government’s defeat on the Syria vote on 29 August, with Parliament said to be more emboldened in standing up to the Executive – despite the fact that, for example, it was still only the Government, not the Speaker or MPs, who could initiate its recall to have that debate and vote.

In a recent CU Blogpost criticising the endorsement of the ‘Wright approach’ by the Political and Constitutional Reform Committee, I outlined a way in which the Commons itself could take control of its own agenda and procedures back from the Government.  Here, I explore this issue further, in the hope that someone within the Palace of Westminster might feel that there is now, because of the events of ‘29/8’, a brief window of opportunity for a radical move forward.

The PCRC Report, and its related media and Chamber statements, made the usual call for its particular analysis to be accepted and its proposals to be implemented.  But like all such calls, it has no way of ensuring that the House – in practice, the Government – pays any heed at all to this plaintive plea.  How can the House or its committees make those reforms they may want actually happen, without being totally dependent on the Executive’s blessing?

Bypassing the Executive blockage

One approach would be to bypass existing formal structures and procedures, such as select committees or debates, as these are ultimately subject to Executive veto or control.  Alongside this Government-dominated ‘parliamentary’ Commons where the formal business of the House is conducted (mostly in public), lives an ‘institutional’ Commons, where the Government’s dominance does not apply, at least to the same degree.  At the apex of this ‘institutional House’ – a rather byzantine structure (see the House ‘organogram’) – is the Speaker, the HC Commission and the House Service (ie the House’s own staff), supported (often in private) by any number of departments, committees and the like (some of which, like the Commission and various ‘domestic’ committees, have MP or ministerial membership).

What if a ‘parliamentary reform body’ existed within this institutional structure, and not as a traditional parliamentary committee?

Crucially, the ‘institution’ operates according to public aims, objectives and principles, articulated in its Strategic and Management Plans.  These apply to the House Service, but many of them relate to the ‘parliamentary’ operation of the House (Chamber, Committee and related activities of the House and its Members), and to its relation with the public.  As such, it seems both obvious and logical for any reform proposals coming from select committees, the Government or from external sources also to be assessed against these standards.  Such compliance would also have the benefit that individual reform proposals would be designed to contribute to the achievement of an overall, consistent approach, rather than, as is the norm in the Commons, ad hoc, piecemeal and often reactive.

The HC Strategic Plan as the benchmark

The current version of the Commons’ ‘mission statement’ seems to be the Strategy for the House of Commons Service 2013-17.  For ‘reform compliance’ purposes, the key parts of the Strategy include the following:

“Our vision is that: The House of Commons will be valued as the central institution in our democracy: effective in holding the Government to account, scrutinising legislation, and representing the diverse views of the electorate. It will be seen both in the UK and abroad as a model of good practice and innovation, and will provide value for money. Members of Parliament will have the information, advice, support and technology they need to be effective in their work and to engage closely with their constituents.”

It then lists various ‘strategic goals’ with specific actions, such as

“1. We will make the House of Commons more effective by:

• supporting the House in implementing reforms to the way in which the Government is held to account and in strengthening the scrutiny of legislation

• supporting initiatives that develop new ways to represent the diverse views of the electorate

• influencing decisions on constitutional and procedural change, and being ready to respond to the outcomes

……………

3. We will ensure that Members, staff and the public are well-informed by:

• giving Members and their staff the support and access to the information they require to be effective in their role…

• giving the public the information needed to understand and appreciate the work of the House and its Members, by continuing to develop our website, education and outreach services, and opening a new Education Centre at Westminster

 4. We will work at every level to earn respect for the House of Commons by:..

• encouraging public participation in parliamentary business, including the work of select committees and the legislative process, and making the House more welcoming to the public

Within all this are various key benchmarks against which procedural reforms can, and should, be assessed, to ensure that reform proposals are ‘Strategy compliant’.

‘Speaker’s Advisory Panel on Strategy Compliance’

Just as the Speaker unilaterally set up his Advisory Council on Public Engagement in 2009-10, so he could establish something similar to assess procedural reform proposals.  I believe that the office of Speaker is a more appropriate sponsor for this body, rather than, say, the Commission or the Management Board, because the Speaker is, in the words of the parliamentary website, “chief officer and highest authority of the House of Commons”, and is political impartial in office.

Membership of this body would be a matter for careful consideration.  Arguably its membership should not to be confined to MPs or Commons officials, but also contain appropriate ‘external’ representatives, including senior former members of Westminster Model parliaments/assemblies within and outwith the UK (a retired devolved Presiding Officer would be a good option as Chair), academics and members of civic society.

The remit of the Panel would be to review all proposals for Commons reform – from relevant committees, such as Procedure, PCRC, Liaison, Privileges and Standards, and from the Government (as set out in election manifestos, Queen’s speeches, Coalition agreements etc) – and to assess how well they match the principles, vision and goals set out in the current Strategy for the House Service.

Again its working process would be a matter for careful consideration – not least to avoid unnecessary duplication of effort – but should be open and transparent, and involve the public as well as the relevant officials, Members, and ministers. It would be required to make a public report to the Speaker setting out its conclusions on the extent to which the proposals are or are not compliant with the Strategy.  The Speaker would then certify these conclusions as ‘compliant’ (in whole or in part) or ‘not compliant’ and transmit them to the relevant initiating body, with the expectation that ‘not compliant’ proposals will not be proceeded with unless and until appropriately amended.

This would all be informal and indicative, as they are unlikely – at least initially – to be adopted in Standing Orders or the like, and would rely for their ‘enforcement’ on the prestige of the office of Speaker and the robustness of the work of the Panel.  However, if it became accepted as the norm, it would be a way for the House as a corporate institution to assert its autonomy and influence how it operates.

Over to the Speaker

Occupants of the Chair elsewhere can be proactive in matters of procedural reform – it was, for example, the Holyrood PO who triggered the review process which led to major changes in 2011-12 – and there is no reason why the Commons Speaker, who is at the centre of both the ‘parliamentary’ and ‘institutional’ Commons, should not be the catalyst for this proposed development in Commons reform.

The present Speaker came to the Chair as a ‘reformist’, and he has continued to express such sentiments, as in his recent speech in New Zealand.  He has been handed a rare opportunity now to give effect to his aspirations for a reformed House, by providing a coherent and public framework – however transitional – for ensuring that desired reforms are not obstructed or delayed by Ministers and that Government initiatives (such as the linkage of its e-petitions scheme to the backbench business innovation) are not unilaterally or inappropriately ‘imposed’ on the House.  Carpe diem!