Australia’s postal survey on same-sex marriage: a flawed process that should not be repeated

Legislation legalising same-sex marriage completed its passage through the Australian parliament last week. This followed a strong vote in favour of the change in a postal survey, held from September to November. Paul Kildea argues that, while the survey proved effective in bringing about marriage equality, the process was deeply flawed and should not be repeated.

Australia’s political year ended on a high with the legalisation of same-sex marriage. There were jubilant scenes in the House of Representatives as it approved a change to the legal definition of marriage from ‘the union of a man and a woman’ to ‘the union of 2 people’. The first weddings will take place on 9 January.

The road to marriage equality was convoluted and messy. For many years politicians resisted growing community calls for change, and in the end opted to hold a national poll as a precursor to legislative action. This was constitutionally unnecessary and expensive, but the resounding result – 61.6% of respondents supported same-sex marriage – provided a clear endorsement that parliament could not ignore.

What is particularly noteworthy about this national poll is the form that it took: it was not a referendum or a plebiscite, but rather a public opinion survey run by the Australian Bureau of Statistics. It was non-binding, voluntary (voting in elections is compulsory in Australia), and conducted entirely by post over an eight-week period from September to November this year. The postal survey was, in design and execution, unlike any previous direct democracy exercise in Australia. Now that it is behind us, a full appraisal is necessary. This post will argue that, while the survey proved effective in clearing the political path to marriage equality, it was deeply flawed as a process and should not be repeated.

The long, winding road to same-sex marriage

It has been known for some time that the path to marriage equality in Australia runs through the legislature. In the past there had been doubts about the national parliament’s ability to legislate for same-sex marriage, but these were dismissed by the High Court in a 2013 ruling. Since then, reform has been in the hands of politicians. Advocates called on them to amend the Marriage Act 1961 (Cth) which expressly defined ‘marriage’ as ‘the union of a man and a woman’.

Yet, in August 2015, the conservative Prime Minister, Tony Abbott, resisted calls to legislate and instead announced that his government would hold a non-binding plebiscite on the matter. This was highly unusual. While Australian governments hold referendums on constitutional amendments from time to time (44 such votes have been held since 1901), they only rarely conduct plebiscites on other matters. In fact, history yields just three precedents: two votes on compulsory military service in 1916 and 1917, and one on the national song in 1977. This is consistent with Australia’s tradition of parliamentary democracy in which elected representatives are entrusted to make decisions on most issues. In line with this, Australia’s parliament has a long history of legislating on matters of marriage and divorce.

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Where would an English Parliament be located?

Ongoing Constitution Unit research is exploring options for an English Parliament. The choice of location would have major practical implications, as well as being of high symbolic importance. Jack Sheldon sets out the factors that would need to be considered. He suggests that while a ‘dual mandate’ English Parliament would almost certainly meet at Westminster, a separately-elected body would most likely be located outside London.

Since last autumn Professor Meg Russell and I have been working on a research project exploring the options for an English Parliament. Although there have been various calls over the last 20 years to establish such a body, how might it actually be designed in practice? Unlike other issues relating to powers, functions, structure and composition, the decision on where to locate an English Parliament would not fundamentally affect constitutional arrangements. However, it would have major practical implications and be of high symbolic importance. This blog post focuses on the issues that would need to be considered in selecting a location and suggests how a decision might be reached.

The size of an English Parliament

Decisions on location would need to be made in light of the number of members an English Parliament would have. Our research has identified two competing models supported by proponents of an English Parliament, which point to different conclusions on this.

Under the ‘dual mandate’ model the English Parliament would be composed of members of the UK House of Commons that sit for English constituencies. The number of members would therefore be equal to the number of English Westminster MPs – currently 533, reducing to 501 if the proposed boundary changes are implemented.

Under the ‘separately-elected’ model a new directly-elected institution would be created. Considerations of cost-saving and consistency with the UK’s existing devolved legislatures mean that it would be likely to be a unicameral body of approximately 300 members. This would be sufficient to provide enough members to serve on committees and perform other parliamentary roles. If combined with a reduction in the size of the UK parliament, perhaps to around 350 members, an increase in the overall number of elected politicians could be avoided.

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Referendums in UK democracy: how should they work in practice?

The Independent Commission on Referendums, established by the Constitution Unit to review the role of referendums in UK democracy, has now met twice. One of the issues they are considering is rules for how referendums should work in practice. The Commission’s Research Assistant, Jess Sargeant, summarises the issues for consideration.

In a previous blog post I explored some principles that could be used for deciding when a referendum might be appropriate. The Independent Commission on Referendums is also considering how referendums should work in practice. The following post explores some key practical questions.

Should there be rules for when a referendum is required, permitted or prohibited?

The UK is unusual among comparable democracies in that referendums are held ad hoc: there are very few standing rules on when referendums are to be held. This means, at least in theory, that there are no restrictions on matters that a referendum may be held on: it could be held on any issue within parliament’s legislative competence.

Many other democracies have provisions in their constitutions setting out when a referendum must be, can be, or cannot be held. Constitutional issues are the most common category of issues on which a referendum is required. For example, Ireland, Australia and Japan require referendums on any bills amending the constitution. In Austria, Spain, Lithuania and Iceland amendments to certain key parts of the constitution must be approved in a popular vote. There are also examples of referendums being required on other issues: Denmark has mandatory referendums on transfers of sovereignty and changes to the voting age.

Where referendums are not required on constitutional amendments, there is often a mechanism allowing a parliamentary minority to trigger one, as is the case in Italy, Austria and Spain. In some democracies, legislation can be put to a referendum if requested by a body so empowered by the constitution. This could be the parliament, as in Denmark and Austria, the president, as in Ireland and Iceland, or groups of citizens, as in Italy and the Netherlands. Where referendums are permitted on legislation, certain types of legislation are often exempt: most commonly, finance, budgetary and tax laws or legislation implementing treaties.

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Legislation at Westminster launch seminar: senior parliamentary figures discuss the impact of parliament on government bills

Meg Russell and Daniel Gover’s new book Legislation at Westminster challenges received wisdom about the UK parliament’s influence on legislation. In contrast to common portrayals of Westminster as having only weak policy influence, Russell and Gover present evidence demonstrating strong influence, exercised in a variety of subtle ways. The findings were discussed at a seminar held in parliament on 15 November. Hannah Dowling and Kelly Shuttleworth report.

The UK parliament is frequently portrayed as little more than an ‘elaborate rubber stamp’ by journalists and even parliamentarians. Academics have tended to offer a slightly more nuanced view but nevertheless often present Westminster as a weak legislature and downplay its policy influence. A ground-breaking new book by Constitution Unit Director Professor Meg Russell and Daniel Gover questions the extent to which these assumptions hold true. The book represents the largest study of its kind for over 40 years.

On 15 November, a seminar was held in parliament to discuss Russell and Gover’s findings. The event was chaired by Lucinda Maer, Head of the Parliament and Constitution Centre at the House of Commons Library. Russell and Gover summarised their findings before responses from Labour peer Baroness (Patricia) Hollis of Heigham and David Natzler, the Clerk of the House of Commons.

Daniel Gover

Daniel Gover introduced the central research question Legislation at Westminster seeks to address: How influential is parliament on government legislation? In order to answer this, Russell and Gover analysed 12 case study government bills in the period 2005–2012 and logged the over 4000 amendments proposed. The bills were selected to represent the range of legislation laid before parliament and accordingly varied by sponsoring department, chamber of introduction, length and profile. A total of 120 interviews with ministers, members of the opposition, backbenchers, civil servants and outside groups were also conducted. Of the 4361 amendments proposed, 886 were government amendments; 95% of these were passed, compared to 4% of non-government amendments. On the face of it, these figures seem to support the popular notion of parliament as weak and dominated by the executive.

However, by dividing the amendments into ‘strands’, i.e. collections of similar amendments made at different stages of the legislative process, Russell and Gover were able to trace their origins, which revealed a more nuanced picture of parliamentary power. There were 2050 strands identified, of which 300 were successful. Of these 300 strands only 55% were government-initiated. When  strands comprising only small technical changes were omitted, this dropped to 45% – with 55% initiated by non-government actors,. Amongst these groups, the opposition initiated the most strands (1604), of which 112 were successful. Although government backbenchers initiated fewer strands, 36 of 304 were successful – a higher success rate than the opposition. There were also 155 strands introduced by non-party affiliated actors, primarily in the Lords, of which 12 were successful. Gover stressed the importance of cross-party work, emphasising that strands demonstrating cross-party support had a higher success rate than those without.

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Prolonging the acquis: a blueprint for the Brexit transition

In a report published this week Piet Eeckhout and Oliver Patel assess the options for a Brexit transitional arrangement. They argue that the most realistic option is for the full body of EU law to continue to apply in the UK, while the UK simultaneously ceases to be an EU member state. The report’s conclusions are summarised here.

They may not see eye to eye on the big issues such as trade and migration, but Theresa May and EU leaders may be closer than you think to agreeing the terms and scope for a transition period. If the latest reports are correct, the prime minister may be about to double her offer on the financial settlement to £38bn in order to unblock the talks before the European Council summit on 14 December.

If she does, she has a realistic route to a deal on the transition. Indeed, the blueprint for a transition period that we advocate as the most viable – where the UK gives up its membership but accepts EU laws lock, stock and barrel – is the one that they are actually edging towards.

You just have to look at May’s Florence speech, in which she made clear that the UK seeks a transition where ‘access to one another’s markets should continue on current terms’, i.e. nothing changes. She even accepted that the framework for this period would be ‘the existing structure of EU rules and regulations’, with David Davis confirming in his speech last Thursday to German business leaders that the UK wants to remain in all EU regulatory agencies during the transition. Similarly, the EU has also indicated that it would accept a status quo transition, but this would require ‘existing union regulatory, budgetary, supervisory, judiciary and enforcement instruments and structures to apply’.

An extension of the EU acquis communautaire (the full body of EU law) to the UK, while the UK simultaneously ceases to be an EU member state, is the obvious choice for the post-Brexit transition. This is for three reasons. First, it’s comprehensive, meaning that very little changes on Brexit day, and a cliff-edge is avoided. Second, it’s relatively straightforward from a legal perspective, at least compared with the other options. The Article 50 withdrawal agreement could be the legal basis, meaning it would require approval only from a qualified majority of the European Council and the European Parliament, but not member state parliaments. It’s simpler than the UK re-joining the EEA Agreement via EFTA or crafting an EEA copycat agreement. The former would require treaty amendment and the approval of member state parliaments, while the latter would require bespoke institutional mechanisms for dispute settlement and enforcement to be set up. Third – and perhaps most importantly – it’s politically feasible.

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The Constitutional Standards of the Constitution Committee: how a code of constitutional standards can help strengthen parliamentary scrutiny

The Constitution Unit has today published a third edition of its report on the Constitutional Standards of the House of Lords Constitution Committee. The report contains a code of constitutional standards based on past Constitution Committee reports, which provide detailed guidance on the application of constitutional principles to legislative proposals. Robert Hazell and Dawn Oliver argue that such a code is particularly needed in the 2017 parliament and could have significantly improved the drafting of the European Union (Withdrawal) Bill.

Today the Constitution Unit has published a third edition of its report on the Constitutional Standards of the House of Lords Select Committee on the Constitution. The report contains a code of constitutional standards based on almost 200 reports from the Constitution Committee, published between its creation in 2001 and the end of the last (2016–17) parliamentary session. The standards provide detailed guidance on the application of constitutional principles to legislative proposals, and cover a range of subjects, including the rule of law, delegated legislation, the separation of powers and individual rights.

The use of a code of soft law constitutional standards is particularly needed in the 2017 parliament. Standards of the type set out in our report could have significantly improved the drafting of the European Union (Withdrawal) Bill. Such a code could also be used by parliamentary committees of either House to enhance the scrutiny of the delegated legislation needed to prepare the statute book for Brexit.

The European Union (Withdrawal) Bill

The European Union (Withdrawal) Bill is providing a showcase of parliament’s ability to scrutinise constitutional legislation. It is packed with provisions that raise matters of fundamental constitutional principle, from the rule of law to Henry VIII powers to devolution. A good number of the amendments reflect arguments made by the Constitution Committee, which unusually reported before the bill received its second reading in the Commons.

The government has been criticised by some, including Hannah White from the Institute for Government, for failing to engage meaningfully with parliament before the bill was introduced to the Commons. The government is now making concessions in order to avoid defeats. Engagement with an officially recognised code of standards could have enabled the government to avoid these difficulties. The Constitution Committee’s recommendations are rarely framed in absolute terms. Many of the standards demand forms of justification for departures from constitutional principles. Even when the committee’s standards go beyond justification, they often demand changes that relate to drafting or the inclusion of safeguards, neither of which normally frustrates the policy aims of a bill.

The basic case for the use of standards is that it can enable basic constitutional concerns to be addressed systematically at the earliest possible stage. This was a point made by the Constitution Committee itself in its recent report on the legislative process:

We continue to believe that there would be merit in producing a set of standards that legislation must meet before it can be introduced.

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