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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Opinion polls and constitutional issues: the case of Chile

The complex relationship between public opinion and constitutional issues is highlighted by the case of Chile, where a presidential election will take place this Sunday. Polls appear to suggest low public interest in constitutional issues, despite a ‘constituent process’ pushed by the current Bachelet government. Nonetheless, polling also indicates that the public is overwhelmingly in favour of constitutional reform. Alberto Coddou Mc Manus argues that polling is an important source of information for constitutional debates, but that findings should be critically assessed rather than taken at face value.

In general, opinion polls ask about our political preferences within established political systems. They ask us to express our political preferences or attitudes regarding the range of political options that the current constitutional system allows, either in the form of political candidates, ideas or reforms. In the US, opinion polls on constitutional matters have been fundamental for the analysis of the jurisprudence of the Supreme Court, either for predicting judgments or for explaining its reasons. Moreover, opinion polls are an important instrument for ascertaining the degree of support, political approval, or legitimacy that a certain political system garners among the population. However, opinion polls are also an important tool for asking people hypothetical questions, such as the ones that emerge from the exercise of constitutional powers. Indeed, opinion polls can be an interesting device for investigating the possibilities that may derive from exercises in constitutional imagination.

In this scenario, the relationship between opinion polls and constitutional issues is multifarious: on the one hand, they can be an interesting measure of the degree of legitimacy of an extant constitutional arrangement; on the other, they can inquire into the possible outcomes or possibilities that may be open under alternative constitutional frameworks. In the middle, we can find those techniques of social research that attempt to capture the degree to which issues of legitimacy may result in positive dispositions towards creating new political institutions, or crafting a new institutional arrangement for addressing political issues. In countries not at risk of experiencing violent political conflict, or that are not close to institutional collapse, the different relations between opinion polls and constitutional matters constitute an important source for broader political analysis.

In the case of Chile, opinion polls reveal a complex relationship between public opinion and constitutional issues. In the face of a presidential election that will take place on November 19, the relevance of constitutional issues for the political agenda is a matter of debate. Although the country is undergoing a ‘constituent process’ pushed by the government of Michelle Bachelet, which during 2016 implemented a consultation process (which included self-convened meetings and open citizens’ assemblies organized by the government) for the people to discuss what constitutional issues should be included in a new constitution, there has been scant ‘popular’ mobilisation around the issue after the end of that consultation process in August of 2016. We are not witnessing the degree of popular mobilisation and exchange of opinion that would be required for a ‘constitutional moment’, according to Bruce Ackerman. Chile has one of the lowest rates of political participation around the world, and it is part of a select list of countries where the fall of political turnout has been the sharpest since 1990 (a list which includes Congo, Libya, and Madagascar, countries which, unlike Chile, have experienced recent and serious political conflicts). According to a recent report by the United Nations Development Programme (UNDP), political disaffection and the loss of popular trust in political institutions should be a warning sign for Chilean democracy.

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Monitor 67: Brexit blues

The latest issue of Monitor, the Constitution Unit’s regular newsletter, has been published today. The issue covers all of the major UK constitutional developments over the past four months, a period that has seen several rounds of Brexit talks, the introduction and second reading of the EU (Withdrawal) Bill, the publication of the Burns review on the size of the House of Lords, plus much else besides. The front page article is reproduced here. You can read the full issue at this link

The previous issue of Monitor was published just after the surprise result of the snap general election. The Prime Minister was back at the helm, but with a reduced number of MPs, and dependent on a confidence and supply arrangement with the Northern Ireland Democratic Unionist Party (DUP). We noted that the road ahead looked rocky.

So it has proved to be – though Theresa May remains in post, and the real parliamentary showdowns seem still to come. The Prime Minister has been dealt an exceptionally difficult hand – managing legislation on Brexit of unprecedented constitutional complexity, alongside the fractious negotiations with the EU, while leading a divided party in a House of Commons in which she has no partisan majority. Over the summer, and particularly during the party conference season, her leadership was regularly questioned, but must gain some stability from the fact that few would really want to be in her shoes. Meanwhile, rumours suggest that she has used the threat of a Boris Johnson premiership to coax other EU leaders to the negotiating table.

As discussed on pages 2–3, the official Brexit negotiations have made slow progress. Despite Theresa May’s attempted injection of momentum through her Florence speech in September, EU partners have not yet agreed to move on to ‘Phase II’ (i.e. post-Brexit trade arrangements), and a serious sticking point remains the so-called ‘divorce bill’. Partly as a consequence, the prospect of a ‘no deal’ outcome has increasingly been talked up. This is presented by some in the Conservative Party as a necessary negotiating strategy to get the EU-27 to give the UK what it wants, but others seem to view it with a degree of relish. Meanwhile, business groups appear to be increasingly concerned.

One thing that remains little-known is the state of public opinion, and how that may develop. While the June 2016 referendum came up with a Leave result, today’s question of what Leave should mean is a good deal more complex. As such, it is not readily suited to opinion polling. Here the results of the Citizens’ Assembly on Brexit, run by a team led from the Constitution Unit and funded by the ESRC (see page 15), can shed some useful light. Assembly members, who included more Leave than Remain supporters, expressed a preference for the kind of bespoke trade deal that the government says it is seeking. But members were very clear that if this cannot be achieved, a ‘no deal’ outcome was undesirable. They preferred that the UK remained a member of the Single Market and Customs Union to this. Politicians should reflect on such findings carefully, because boxing themselves in to no deal could prove electorally dangerous.

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Monitor 66: The most unexpected election

The latest issue of Monitor, the Constitution Unit’s regular newsletter, has been published today. The issue covers all of the major UK constitutional developments over the past five months, a period that has included the unexpected general election result, the confidence and supply agreement between the Conservatives and DUP that followed, Nicola Sturgeon’s announcement of plans for a second referendum (later ‘reset’) and the beginning of Brexit negotiations, plus much else besides. The front page article is reproduced here. You can read the full issue at this link

Current British politics is rarely dull. Added to the unexpected result in the 2016 Brexit referendum and the subsequent Miller case regarding parliament’s role in the process (not to mention the Conservatives’ unexpected outright majority in 2015), we now have our second hung parliament in seven years, a resurgent Corbyn-led Labour Party, and a previously popular Prime Minister who appears to be on the ropes. All this following a general election that few expected, and that some even thought pretty much impossible under the 2011 Fixed-term Parliaments Act.

Following the successful passage of the European Union (Notification of Withdrawal) Act, authorising the trigger of Article 50 (see page 4), Theresa May surprised almost everybody on 18 April by proposing a general election for 8 June. Having started with what looked like an unassailable lead in the polls, in an election where she sought to strengthen her hand in parliament during the Brexit negotiations, she managed instead to lose her slender Commons majority and was forced into a confidence and supply arrangement with Northern Ireland’s Democratic Unionist Party (DUP) (see page 6). Her authority within her own government is much diminished, and ministers have openly squabbled with each other over Brexit priorities. Meanwhile, Labour’s unexpected gains leave its previously fractious parliamentary party appearing suddenly united behind Jeremy Corbyn.

The results were also a blow to Nicola Sturgeon, whose Scottish National Party (SNP) lost twelve seats to the Conservatives, six to Labour and three to the Liberal Democrats. Conservative leader Ruth Davidson (who spoke at a packed Constitution Unit event during the campaign) in contrast made a strong case for the Union and gained further stature and negotiating power. Sturgeon acknowledged on 27 June that she would have to put the campaign for a second Scottish independence referendum on hold for the time being (see page 11).

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What happens if the election really does produce a hung parliament?

A hung parliament is a possible – if still unlikely – outcome of the election on Thursday. Akash Paun discusses what would happen next if no one party has an overall majority once the results have declared. He explains that in the UK system ultimately who forms a government is determined by who is best placed to command the confidence of the House of Commons. 

The recent and dramatic shift in the polls makes a hung parliament a plausible, if still unlikely, outcome on Thursday. Westminster has little recent experience of inconclusive elections – just two since the war, in 1974 and 2010. A second hung parliament in seven years would make things interesting, but it would be no crisis.

The sky won’t fall in

A hung parliament might produce a period of uncertainty about the composition of the new administration. The UK is accustomed to a government being formed immediately, but the sky will not fall in if it takes a little longer for the situation to resolve itself. In 2010, it took five days before the handover from Gordon Brown to David Cameron.

The UK is very odd in its haste to form a new government within 24 hours of the polls closing. Fellow Westminster systems like Canada and Australia wait over a week before swearing in the Prime Minister, even when he or she has won a clear majority.

With Brexit talks due to start on 19 June, weeks of coalition negotiations – as in Germany, for example – would be unhelpful. But that is highly unlikely. If it takes a few days to clarify who is best placed to form a stable administration, then that time should be taken. And if the media can restrain itself from hyperbole about political or constitutional crisis, then all the better.

We have argued for greater clarity about the government formation process, but there are some established principles. So long as it is unclear who is to be Prime Minister, the existing government remains in office, subject to similar constraints as in the pre-election ‘purdah’ period. It is the duty of an outgoing prime minister to hold on until unequivocal advice can be given to the Queen about who should be the next guest for tea at the palace.

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Blueprint for a Constitutional Convention

In a new report published today, Alan Renwick and Robert Hazell examine options for the design of a constitutional convention in the UK. The report identifies and examines twelve key design features that need to be decided. These are summarised here.

 

Proposals for a UK constitutional convention are made by several parties in their 2017 election manifestos and have been prominent on the political agenda ever since the Scottish independence referendum in 2014. Such proposals are intended to address both widespread disillusionment with the state of democracy and deep constitutional challenges, such as those posed by Brexit and uncertainty over the future of the Union. But there has as yet been little detailed thinking about the form that a constitutional convention should take. In our new report, we seek to fill that gap. We examine the issues, explore the lessons to be learned from constitutional conventions elsewhere, and identify the pitfalls to be avoided.

Most supporters of a constitutional convention argue that it should not be a commission of the ‘great and the good’ and nor should it be composed solely of politicians. Such approaches may have been viable in the past, but expectations for democracy have moved on and more direct forms of citizen engagement are now widely advocated. Where fundamental questions about the country’s future form and direction are at stake, the voices of members of the public should be clearly heard. This attracts many to the citizens’ assembly model of a constitutional convention.

A citizens’ assembly is a body of citizens who are selected at random from the population at large. Stratification is used to ensure that, so far as possible, the assembly’s membership reflects the diversity of the population in terms of criteria such as gender, age, and place of residence.  The assembly meets over multiple weekends. First, the members learn about the options that are available and get the chance to quiz experts and discuss initial ideas among themselves. Then they hear from advocates of a wide variety of views – from politicians, campaigners, and members of the public who wish to be heard. Finally, they reflect on all they have heard, deliberate in depth among themselves, and agree conclusions. Those conclusions are written up in a report, which is submitted to government and parliament.

Citizens’ assemblies were first held around a dozen years ago in British Columbia, Ontario, and the Netherlands. The most recent official assembly of this kind is working at present in Ireland: it agreed proposals for the liberalisation of Ireland’s highly restrictive abortion rules in April and it will shortly move on to consider a number of other issues.

There is clear evidence that such assemblies work well: the quality of members’ engagement is very high and they can develop conclusions that are reasoned and coherent.  At least in Ireland, they have also done much to encourage wider public debate and shape decision-making.

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How would Emmanuel Macron govern without a parliamentary majority?

An Emmanuel Macron presidency would not represent quite the political earthquake of a Marine Le Pen presidency, but in some respects it would nonetheless take France’s political system into uncharted territory. Macron’s En Marche! movement currently has no MPs and, even if it performs well at the parliamentary election in June, it is highly unlikely to win a majority. Andrew Knapp explains what this could mean for a Macron presidency, suggesting that the most likely possibility is the formation of a minority government relying on different majorities on different issues.

Emmanuel Macron could still lose to Marine Le Pen at the second round of France’s presidential election on 7 May. If he continues to behave as if he has already won – which he mostly has since his first-round victory on 23 April – voters could return the favour and stay at home for the run-off. Or he could perform disastrously at the debate with Le Pen set for 3 May. Or a particularly fruity scandal could break over his head (his declaration of his own net worth, for example, looks suspiciously modest when set alongside his earnings when a banker with Rothschild’s). Barring these eventualities, however, Macron will become the eighth President of the Fifth Republic: the margin of victory suggested by current polls (62 per cent to Le Pen’s 38), very much greater than that expected for the Remain vote in the UK, or for Hilary Clinton in the United States, could well be reduced, but is unlikely to be reversed. Macron would also be the Fifth Republic’s youngest president by a margin of nine years (the current record-holder is Valéry Giscard d’Estaing, elected in 1974 at age 48).

What then? Would President Macron govern, or merely reign? To categorise the Fifth Republic as a semi-presidential system, which it broadly is, does not take us very far towards an answer, because semi-presidential systems vary so widely among themselves. France’s President is clearly the EU’s most powerful head of state, which is why he (not, so far, she), and not the Prime Minister, represents France at the European Council. But is he also the most powerful head of the political executive of any EU state? That is more debatable. The formal powers vested in the President by the Constitution of the Fifth Republic are considerable, but quite insufficient to govern as he chooses. To do that, he needs the backing of a parliamentary majority. The chances of Macron getting that, in the legislative elections to be held on 11 and 18 June, are very uncertain.

Untangling those presidential powers that stem from the constitutional text from those that depend on circumstance is a favourite pastime of students of French politics. And the Macron case offers a new terrain for speculation in this area because his victory on 7 May would, in certain respects, take France’s political system into uncharted territory.

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