Robert Hazell and Ben Yong discuss their new book analysing the coalition, the output of a year long in-depth study.
Taken from Michael White’s article in the Guardian
Professor Robert Hazell, head of University College London’s Constitution Unit, argues that the most powerful case that republicans could make for abolishing the ancient British monarchy – practical rather than theoretical – is “the serious burdens it places on the royal family”.
“The Queen is 86, an age when most people have retired; she’s been in the job for 60 years with no prospect of relief until she dies. She won’t ease up and she feels her coronation oath was a sacrament, so there is no question of abdication. It is a very heavy burden, for which we will be applauding her this weekend. She’s stuck on the treadmill.”
Prince Charles? “He’s 63, itself an age when most people are starting to contemplate retirement, yet he’s not actually started the job he’s spent his adult life preparing for. That is burdensome, too. There are other demands we make on them in terms of the human rights we now value. The Queen has no freedom of expression or religious belief: she must be an Anglican in England and become a Presbyterian when she crosses the Scottish border. She has no freedom to travel, which the rest of us take for granted, and royal marriages need approval. It may be gilded, but it’s still a cage,” concludes Hazell.
In searching for a solution to the problem of press regulation, the Leveson Inquiry is going to have to look at the comparative constitutional design of Press Councils. A new report by the Reuters Institute for the Study of Journalism contains a detailed study of six Press Councils, in Sweden, Germany, Finland, Denmark, Ireland and Australia. It looks at their origins, budgets and funding, governance structures, membership and independence, from the industry and from the state. In his questioning Lord Justice Leveson has already expressed interest in the Irish model, which challenges the long held view in the British press that statutory regulation inevitably involves a less independent Press Council.
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Ten years ago the Constitution Unit produced a book called Scottish Independence: A Practical Guide, written by Jo Murkens and Peter Jones, and published by Edinburgh University Press. The product of an 18 month research project, it is still the most detailed study of the legal and political steps Scotland needs to take to achieve independence. But attending two conferences last week on Scottish independence, one in London and one in Edinburgh, has led me to change my views on some of the issues addressed in the two consultation papers issued by the Scottish and UK governments last month. In this post I order my comments by reference to the two governments’ shared objectives that the Scottish independence referendum should be lawful, fair and decisive.
In our book we drafted a referendum question which we thought was within the powers of the Scottish Parliament. It was very similar to the SNP government’s first proposed question in their 2007 White Paper :
‘The Scottish government should negotiate a settlement with the government of the UK so that Scotland becomes an independent state’.
That referendum would not be decisive: it would authorise negotiations, no more. Many distinguished constitutional lawyers in Scotland (Profs Christine Bell, Tom Mullen, Stephen Tierney, Neil Walker) believe that the Scottish Parliament has the power to legislate to hold such an advisory referendum. But other distinguished lawyers disagree, including Lord (Jim) Wallace, the Advocate General for Scotland, Aidan O’Neill QC and Prof Adam Tomkins. So did the House of Lords Constitution Committee in their report published in February Referendum on Scottish Independence.
Having read all the legal arguments, I now accept there is doubt about the validity of a referendum authorised solely by the Scottish Parliament. There would be legal challenges, brought by third parties, if not the UK government, which would go all the way to the Supreme Court. I don’t think it is desirable for the courts to get involved in such an intensely political issue. If that is accepted, the only way to resolve those doubts is for the UK government to offer to facilitate the referendum, as it has done in its recent White Paper. It has offered to do so either by legislating at Westminster, or by making a s30 Order under the Scotland Act to extend the powers of the Scottish Parliament to hold an independence referendum.
I have previously argued that the UK government should stay out of the Scottish independence game. It is an SNP project: they should let Salmond make the running, and allow him to hold the referendum at his own timing and on his terms. If they enter the field of play they risk getting tripped up. But once the UK government gets involved in facilitating the referendum it is hard for it not to get involved in decisions about the fairness of the question or the legitimacy of the result. There are several issues here: the wording of the referendum question; the timing; who supervises the referendum; whether there should be a second question on Devolution Max; and whether there should be a second referendum at a later time.
Fairness and legitimacy
On the wording of the independence question, Salmond’s latest proposed question ‘Do you agree that Scotland should become an independent country?’ seems simple and straightforward. But it can be criticised on two grounds. First, that it invites agreement. Second, not everyone will understand what is meant by ‘independent’. We learned when writing our book that many people understand ‘independence’ to mean greater autonomy. That is why our proposed referendum question spoke of Scotland becoming ‘a sovereign state, separate from the UK’. The SNP hated that: they say that ‘separate’ is used only by opponents of independence. But we would argue that it is necessary, for clarity. If the Electoral Commission are put in charge of the referendum, as the UK government want and the Scottish government seem likely to agree, they will advise on the intelligibility of the question. They take this duty seriously, testing different versions of the question, and they advised changes to the wording of the Welsh referendum in March 2011, and the English mayoral referendums in May 2012. The Scottish government and Parliament are not obliged to follow the Electoral Commission’s advice; but the UK government might withdraw its support if they decline to do so.
Timing of the referendum
This is primarily for the Scottish government to decide. The UK government should not intervene on the basis of arguments about damage to the Scottish economy, or which date is most favourable to the Unionist or nationalist cause. But the UK government does have two legitimate concerns. One is to avoid dates which coincide with elections: that can lead to a confused debate. The second is to avoid dates too close to the next UK general election, scheduled for May 2015. If the referendum is held in October 2014, and Scotland votes for independence, that presents a dilemma for the UK government and Westminster parliament. Should the UK 2015 election extend to Scotland (still part of the UK in 2015); and if so, for how long will those Scottish MPs serve in the next Parliament?
Multi option referendum, including Devolution Max
Should there be a multi-option referendum, with a second question on Devo Max? The UK government says No, because it would be confusing; the Scottish government says it has an open mind. I suspect the Scottish government wants a second question, because that creates a potential win:win, and gives them a very comfortable fallback. But there are several difficulties. One is the complexity of multi-option referendums: they risk over-complicating the debate and confusing the voters. For this reason, 98% of referendums around the world are on a binary question. Second is the complexity of counting the results: there are four possible voting systems for a three way referendum, each with different outcomes. The one regarded by electoral experts as the fairest, the Condorcet system, is the least likely to be chosen (a) because it was invented by a Frenchman (b) because it includes a choice between independence and Devo max, unpalatable to Salmond. The third difficulty is the uncertainty surrounding Devo Max: it suits the SNP to leave it gloriously undefined, and sadly it seems unlikely the Unionist parties are going to do the hard work necessary to come up with a Calman plus or Calman max package. The fourth is that Devo Max depends heavily on the UK government as the other partner: a detailed prospectus could only be produced after detailed negotiations with the UK government.
That leads me onto my final point. I wonder whether a realistic prospectus for independence could be produced save after negotiations with the UK government. Because the SNP now rightly talk about interdependence being a strong feature of independence. When pressed on important aspects of Scotland after independence, they often fall back on shared services: the pound, the Bank of England, sharing in the UK’s defence forces, etc. This formula has been dubbed ‘The Queen and other shared services’. The people of Scotland need to know if the UK will agree to share these services, and on what terms. The independence negotiations will cover very big issues: how to divide the National Debt, North Sea oil, will the UK support Scotland continuing in membership of the EU, etc. In our book we concluded that there needed to be a second referendum, once the detailed terms of independence had been hammered out, so the people of Scotland could decide if they wanted independence on these terms.
There is now a further argument for a second referendum, if the Scottish government insists on a multi-option referendum which can lead to an uncertain result. Using a second round binary referendum after the initial multi-option referendum was the solution in Newfoundland, Guam, New Zealand and now recommended by a US Presidential Commission for Puerto Rico. It allows time for the favoured option to become better defined, and brings the clarity and focus of the binary back to the final debate and vote.
But the Scottish government and the UK government both reject the case for a second referendum. The Scottish government rejects it as an obstructive device, placing a further obstacle in the way. The UK government think that if the people of Scotland vote Yes in the first referendum, even if it were only an indicative referendum to trigger negotiations, that would create an unstoppable political momentum which could not be reversed. So am I being too logical and rational in arguing for a fully informed democratic debate before the final decision: is the second referendum another issue on which I should consider changing my mind?
 The Scottish Executive, Your Scotland: Your Referendum (January 2012), Available at http://www.scotland.gov.uk/Resource/0038/00386122.pdf
 The Scotland Office, ‘Scotland’s constitutional future’ HM Government (January 2012), Available at http://www.scotlandoffice.gov.uk/scotlandoffice/files/17779-Cm-8203.pdf
 The Scottish Executive, Choosing Scotland’s Future: A National Conversation (August 2007), Available at http://www.scotland.gov.uk/Resource/Doc/194791/0052321.pdf
 Constitutional Law Group, ‘G Anderson et al: The Independence Referendum, Legality, and the Contested Constitution: Widening the Debate’ UK Constitutional Law (31 January 2012), Available at http://ukconstitutionallaw.org/2012/01/31/gavin-anderson-et-al-the-independence-referendum-legality-and-the-contested-constitution-widening-the-debate/
 K Stacey, ‘Jim Wallace: Salmond holding his own referendum would be undemocratic’ Financial Times (January 16 2012), Available at http://blogs.ft.com/westminster/2012/01/jim-wallace-salmond-holding-his-own-referendum-would-be-undemocratic/#axzz1otiZlWSm
 S Johnson, ‘Aiden O’Neill QC: Independence Referendum is probably illegal’ Telegraph, (8 November 2011), Available at http://www.telegraph.co.uk/news/uknews/scotland/8876213/Aidan-ONeill-QC-Independence-referendum-is-probably-illegal.html
 A Tomkins, ‘The Scottish Parliament and the Independence Referendum’ UK Constitutional Law (12 January 2012), Available at http://ukconstitutionallaw.org/2012/01/12/adam-tomkins-the-scottish-parliament-and-the-independence-referendum/
 Select Committee on the Constitution, ‘Referendum on Scottish independence’, 24th Report of Session 2010-2012 HL (17 February 2012), Available at http://www.publications.parliament.uk/pa/ld201012/ldselect/ldconst/263/263.pdf
On 1 February 2012, a committee of the House of Commons resolved that the Welfare Reform Bill, which proposes to cap benefits for most families at £26,000 a year, engages the financial privilege of the Commons. Under such a privilege, the Commons is entitled to ‘disagree’ with any Lords amendment and ultimately reject it without feeling obliged to provide any reasons other than the existence of the privilege. By convention, the Lords will accept this determination (though increasingly with protest). I argue below that it would be a mistake to read the financial privilege so broadly, and also that the Lords have both the constitutional power, and good cause, to assert themselves in reply.
Read the full article
- See our press release on Scottish independence: Cameron transforms long game of independence into penalty shoot-out; and our collected media
The SNP’s long game to independence has been up ended by the Prime Minister
David Cameron has hugely raised the stakes by announcing that he wants to hold a binding referendum on Scottish independence. By proposing that the timing should be brought forward and that Scottish voters be offered a straight choice between staying in or leaving the UK, he has transformed the long game being played by the SNP into a penalty shoot-out. Whether his intervention is in the interest of the country remains to be tested.
The SNP’s strategy has been a gradualist one, to build momentum slowly for independence and to hold the referendum at a time of its choosing, probably in 2014. This strategy was in part forced on it by the limited powers of Holyrood, which cannot declare Scottish independence: only Westminster can do that.
So the farthest Holyrood can go is to hold an advisory referendum, which would ask voters to authorise Scottish ministers to begin negotiations. In its 2007 White Paper the SNP proposed the following question: “The Scottish government should negotiate a settlement with the Government of the UK so that Scotland becomes an independent state.”
If the Scots vote “yes”, negotiations would begin on issues great and small, such as how to divide the national debt and North Sea oil revenues, nuclear bases on the Clyde and the sharing of defence capabilities, and Scotland’s membership of the EU. (Most international lawyers say that Scotland would have to reapply.) The division of Czechoslovakia in 1992 required 30 treaties and 12,000 legal agreements.
Once the negotiations had concluded and the terms had been approved by the two Parliaments, the next stage would be a further Scotland Act, whereby Westminster granted independence to Scotland on the agreed terms. We argued in Scottish Independence: A Practical Guide that this stage should be preceded by a second referendum, in which Scottish voters confirmed that they wanted independence on these terms.
However, the SNP has never accepted the need for a second referendum, stating that one is enough to give “sufficient clarity and confidence that the people wish Scotland to become an independent state”. With or without a second referendum, this is a leisurely timetable in which the Scottish government can gradually test the appetite for independence and then negotiate with the UK Government. The final vote and independence legislation would not happen until after 2015-16.
Mr Cameron has transformed that, by offering a decisive referendum in the next 18 months. He may want to achieve a similar effect to Canada’s Clarity Act 2000, which requires a clear answer to a clear question in any future secession referendum by Quebec. The Act specifies that a multi-option referendum is not allowed because it will confuse things. But it does not seek to impose a timetable.
The UK government might have been expected to let the Scottish Government make the running in the expectation that its advisory referendum would be defeated. But Mr Cameron has dramatically turned the tables. Now, however, the SNP might in turn decide to sit on its hands, decline the coalition’s offer and reserve the option to hold an advisory referendum in slower time. There are good democratic and deliberative reasons it could offer for doing so.
Mr Cameron’s new strategy is high- risk, for three reasons. First, the Scots risk being invited to make a hugely important decision on the basis of inadequate information. Second, there is nothing that Alex Salmond likes better than a political fight and while for him this is the only game in town, for Mr Cameron there are many other competing ones, from the eurozone to Iran. Third, Mr Cameron’s resolve may not be shared by his coalition partners, the Liberal Democrats.
But this is more than a game between two heavyweights. It is a battle for the future of the UK. What matters in the end is that the people whose future depends on it are given the time, clarity and facts to reach a wise and well-informed decision.
Professor Robert Hazell is director of the Constitution Unit at University College London
Article from the Times 10.01.12
***PLEASE NOTE THESE EVENTS ARE NOT ORGANISED BY THE CONSTITUTION UNIT. FOLLOW THE LINKS FOR FURTHER DETAILS***
Date: Thursday 24 November, 5.00pm
Venue: Room 106, Roberts Building, Torrington Place, WC1E 7JE
Robert Hazell and Ben Yong have been conducting a 12 month research project,funded by the Nuffield Foundation, into how the coalition government works.
They have interviewed over 140 ministers, officials, advisers and parliamentarians. They are now writing up their findings in a book, to be published in the New Year. In this talk they will present their main findings; discuss the difficulties of this kind of qualitative research; and ask why political science has so little to say about how coalitions work in practice.
Further information: http://www.ucl.ac.uk/spp/seminars
Date: Tuesday 6 December, 6.00pm
Venue: Anatomy JZ Young Lecture Theatre, UCL
Jack Straw is Visiting Professor, UCL Political Science and MP for Blackburn. He has held several senior Cabinet positions, including Home Secretary, Foreign Secretary and Justice Secretary
His inaugural lecture will address the theme of ‘Britain and Europe’. Sir Stephen Wall will act as discussant and Prof Robert Hazell will chair.
More information and online booking: https://www.ucl.ac.uk/public-policy/events/Jack_Straw/index
With constitutional reform generally more a Lib Dem than Tory pursuit, the Conservative minister overseeing it finds himself at the coalface of coalition politics, hears Sam Macrory.
‘Nick Clegg’s babysitter’. As job descriptions go – and that one came direct from a Conservative MP – it’s neither glamorous nor appetising, but nor is it entirely inaccurate. For when Mark Harper was asked to work alongside the Liberal Democrat deputy prime minister and steer through a series of controversial reforms to the constitution, he took on the challenge of convincing hostile colleagues on the merits of both a referendum on voting reform and a radical makeover of the House of Lords.
But while Clegg’s grand plans made headlines, with limited attention Harper has also managed to take Lib Dems with him in agreeing to slash the number of parliamentary constituencies by 50, as well as passing radical legislation to ensure fixed term Parliaments.
“Mark Harper has played his hand brilliantly. He has been completely loyal to the coalition and Nick Clegg, and steered through the Commons measures which were deeply unpopular with his Conservative colleagues, without appearing to be a Lib Dem stooge”, says constitutional expert Robert Hazell. “He has also quietly pushed ahead the Conservative constitutional reform agenda, and at the end of this Parliament it seems likely that more Conservative reforms will have been implemented than Lib Dem ones’.
The more unforgiving parliamentary observer might suggest that Harper’s success is due to his unshowy, rather workmanlike style, but others admire the calm way in which he removes the sting from potentially toxic subjects. Or perhaps, as Hazell has argued, the Conservative Party are closet constitutional reformers.
“That’s interesting. We don’t talk about it as much or have it as a separate strand of policy thinking,” Harper suggests, from his sizeable, if spartan, Cabinet Office quarters. “We never really put it in a box called constitutional reform, but whether that’s to do with the makeup of different parties, I don’t know.”
The Lib Dem presence has certainly, raised the profile of constitutional reform, however, which Harper credits to “the fact that the deputy prime minister has overall responsibility and it is all stacked in one place”.
Read the full article on epolitix.com
The announcement at the Commonwealth conference in Perth of changes to the rules of succession suggested it was a done deal. David Cameron has the agreement of the heads of government of the other countries of which the Queen is head of state (the realms). But all the realms now have to change their laws, in a process which will take years.
It has been a longstanding aim of British governments to end the discrimination in the laws of succession. 11 private member’s bills have been introduced into Parliament to reform the Act of Settlement. Successive governments have supported the change in principle, but have said that only the government could legislate; because only the government could negotiate with the other realms. But getting all the realms signed up seemed daunting.
Gordon Brown went to the Commonwealth conference in 2009 with the same objective as David Cameron, but failed. Since then there has been a lot of work behind the scenes to get the other 15 realms on board. The tide of goodwill towards the monarchy following the royal wedding in 2011 and the Queen’s diamond jubilee in 2012 provides the perfect window of opportunity to make the change.
The fanfare of David Cameron’s announcement is intended to give maximum momentum to a project which is not all plain sailing. The UK can give a lead, but cannot legislate for the other 15 realms. In Australia the six states claim a separate relationship with the Crown, and the change may require their separate consent. In Canada the federal government will certainly have to gain the consent of the provinces, including Quebec. In both countries it will revive the republican issue.
Questions will also be asked about why the discrimination against Roman Catholics is only to be partially removed. The prohibition on the Monarch being a Catholic will remain. Even if it were removed, no Catholic could satisfy the requirement to be ‘in communion with’ the Church of England and thence Supreme Governor of the Church of England. Catholics in Britain might be willing to accept that, although their numbers are now broadly equal to Anglicans. While welcoming the removal of the ‘unjust discrimination’ against Catholics, the Archbishop of Westminster, Vincent Nichols, said ‘At the same time I fully recognise the importance of the position of the established church [the Church of England] in protecting and fostering the role of faith in our society today’. But in the 15 realms Catholics outnumber Anglicans by three to one, and they may be less understanding.
The ending of male primogeniture is less controversial. Most other European monarchies have changed their rules of succession already to make them gender neutral. Sweden changed their law in 1980, Holland in 1983, Norway in 1990, Belgium in 1991, Denmark in 2009 (with a referendum), Luxembourg in 2011. Only Spain, Monaco and Liechtenstein retain male primogeniture.