The Grimstone proposals to reform the public appointments process are a step in the wrong direction

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Earlier this year the government published Sir Gerry Grimstone’s report on public appointments, proposing a dismantling of the Nolan system of regulation that has been in place since 1995. Sir David Normington, whose term as Commissioner for Public Appointments ended shortly after the publication of the Grimstone report, has been an outspoken critic of the proposals. At a Constitution Unit seminar on 8 December he explained why he believes they represent a step in the wrong direction. This post is adapted from his speech.

Ministers make on average over 2,000 appointments each year to boards of about 300 public bodies and statutory offices. The bodies touch every aspect of our lives. They include regulators like the boards of Ofcom and Ofwat; inspectors, like the Chief Inspectors of Schools, Police, Probation and Prisons; funders like the Arts Council and the Big Lottery Fund; advisory bodies like the Committee on Climate Change; and a multitude of executive bodies, like NHS trusts, national parks, museums and galleries.

It matters who fills these roles. The boards themselves need to comprise well-functioning teams of skilled people from diverse backgrounds who can command public confidence. At the same time these are ministerial appointments and it is essential that those appointed are willing to work within, and not against, the framework of the policy that the government of the day has set down.

There is, however, a balance to be struck between ministers’ right to appoint and independent oversight and regulation. Think of it as a spectrum. At one end ministers have almost complete freedom to make appointments as they think fit. At the other, appointments are handed over to an independent body and ministers forego their powers to appoint altogether. Over nearly 30 years policy and practice has flowed to and fro across this spectrum; and so have the arguments about where to draw the line.

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The role of referendums in the UK: the question of balance

blog-photoOn 22 November the Constitution Unit and the Committee on Standards in Public Life hosted a joint seminar on ‘The Role of Referendums in the UK’. Bringing together eminent speakers from across academia, the media, government, and elsewhere, the seminar examined possible problems with the conduct of referendums in the UK, focusing particularly on two issues: how to ensure high-quality information; and how to maintain balance during the campaign. In this, the second of two posts on the event, Alex Quirk outlines the discussions on the second of these areas.

The discussion of balance during the seminar can be broadly divided into two areas: how to improve balance in the media, both traditional and online; and how to address imbalances created by the legislative framework for holding referendums.

Media balance

Bob Posner of the Electoral Commission began the day by reporting on polling conducted after the referendum, which showed that over half (52 per cent) of respondents thought that the conduct of the campaign was not ‘fair and balanced’. Various perspectives emerged over the course of the day on how well the media did in ensuring that they reported the campaign in a ‘balanced’ way. Although the print and online media have no duty to report the arguments with any sort of balance, all broadcasters have a statutory duty to act with ‘due impartiality’. The BBC, in common with other broadcasters, considers the appropriate interpretation of ‘due impartiality’ for each referendum and election campaign, and produces guidelines for programme-makers. Sue Inglish, former head of political programmes at the BBC, and Ric Bailey, the BBC’s chief political adviser, argued that the BBC interpreted ‘due impartiality’ in the context of the referendum correctly. In their view, the BBC did not create a false balance between experts on each side, but simply reported the arguments of the campaigners in a balanced way. Inglish stressed that broadcasters such as the BBC and Sky did not simply report misleading statements without question, but did their best to point out that they may be misleading.

This perspective was challenged by Professor Steven Barnett of the University of Westminster, who argued that broadcasters like the BBC had failed ‘catastrophically’ during the EU referendum campaign. He contended that they followed too slavishly the press agenda, which was especially problematic given the amount of misleading information in national newspapers. He also argued that the BBC’s interpretation of ‘due impartiality’ was incorrect, as it involved balancing the coverage given to arguments from both sides too mathematically, rather than interpreting the arguments in a more interrogative fashion. Further criticism of the ‘due impartiality’ interpretation came from Dr Oliver Daddow of the University of Nottingham. He argued that, despite notional ‘balance’ in the BBC’s coverage, there remained in-built structural biases in the media as a whole, which are more difficult to counteract. Symptoms of these biases included the preponderance in coverage of Conservative party figures and a lack of time dedicated to challenging statistics used by campaigners. However, Sue Inglish and Ric Bailey disagreed with these criticisms, suggesting that broadcasters also influenced the agendas of newspapers, and that they took great care not to produce artificial balance.

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The role of referendums in the UK: the question of information

blog-photoOn 22 November the Constitution Unit and the Committee on Standards in Public Life hosted a joint seminar on ‘The Role of Referendums in the UK’. Bringing together eminent speakers from across academia, the media, government, and elsewhere, the seminar examined possible problems with the conduct of referendums in the UK, focusing particularly on two issues: how to ensure high-quality information; and how to maintain balance during the campaign. In this, the first of two posts on the event, Alex Quirk outlines the discussions on the first of these areas.

It is widely accepted that both the Remain and the Leave camps were guilty during the EU referendum campaign of seeking to manipulate voters’ opinions through the use of misleading statistics – such as the Leave campaign’s assertion that we send the EU £350 million a week’ and the Remain side’s claim that ‘families would be £4,300 worse offif Britain left the EU. None of the participants in the seminar questioned this viewpoint. There was lively and illuminating discussion, however, around what – if anything – should be done about it.

Controlling the truthfulness of campaign claims

The most direct method for seeking to control misleading claims would be to establish a process for identifying and challenging them. Since the referendum, a petition and an early day parliamentary motion have called for the creation of an official body that would ‘verify the truthfulness of claims made during political campaigns’ and ‘issue fines and factual clarifications’ where there were breaches. Dr Alan Renwick of the Constitution Unit pointed out that systems of this kind exist (though with limited reach) in South Australia and some American states. Among seminar participants, Professor Sarah Birch (King’s College London) gave the strongest support for this approach, proposing an electoral offence for referendums, analogous to the defamation and libel laws that apply during elections. Under the Representation of the People Act 1983 it is a criminal offence to make a false statement about the character of an election candidate, and to make a false statement that a candidate has withdrawn from an election. If these offences were to be adapted so as to apply to referendums, they could deal with at least a proportion of misleading campaign statements. Professor Meg Russell of the Constitution Unit argued that the debate on the regulation of statements during political campaigns should be seen as akin to any other debate on free markets versus regulated markets. In a goods market, we don’t trust either the consumers or the producers to regulate themselves. Why, therefore, do we trust politicians to regulate their own statements during political campaigns, when the stakes are exponentially higher?

Many participants, however, were skeptical. Professor Stuart White (University of Oxford) voiced concerns about the ‘chilling effect’ such an offence could have in discouraging political speech. This sentiment was echoed by Bernard Jenkin MP, a prominent Leave campaigner, who argued that those calling for regulation of truthfulness underestimate the ‘wisdom of the crowd’. Sir Peter Housden (formerly Scotland’s most senior civil servant) and Dr Michael Pinto-Duschinsky also expressed the view that such interventions would be undemocratic.

There was, however, interest in less stringent versions of the same approach. Will Moy (Director of Full Fact) highlighted the importance of independent fact-checking. Another option discussed was an official fact-checking body with advisory power, which could initiate investigations into the truthfulness of claims and quickly issue statements calling on campaigners not to make them. As highlighted by, respectively, CSPL Chair Lord Bew and Alan Renwick, Ireland’s referendum commissions and the New Zealand Electoral Commission already perform this function, and the evidence is that their work has produced positive results. Ed Humpherson of the UK Statistics Authority (UKSA) discussed this body’s role during the referendum campaign. He pointed to its important work in highlighting misleading statistical claims, but also said that the organisation will be keen to learn lessons and develop its practice further for future cases. In particular, he mentioned the need to react to concerns more quickly. Speed, he emphasised, is especially important during a referendum campaign, because the vote provides a final cut-off, and the campaign groups do not have future reputations to defend in the same way as political parties do during elections.

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The regulation of the EU referendum: lessons to be learned

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On 25 October the Constitution Unit hosted a distinguished panel to discuss the regulation of referendums in the UK in light of the EU referendum. The panel, chaired by the Unit’s Dr Alan Renwick, consisted of Jenny Watson, Chair of the Electoral Commission; Ric Bailey, Chief Adviser, Politics at the BBC; Sir Peter Housden, former Permanent Secretary to the Scottish Government, and Dr Paul Kildea, Senior Lecturer in Law at the University of New South Wales. Alex Quirk reports.

The EU referendum in June raised many questions about how referendums in the UK should be conducted. Electoral Commission research showed that 52 per cent of voters felt that the referendum campaign was not conducted in a ‘fair and balanced’ way. How is it that we can best strike the balance between allowing campaigners to speak freely to voters, and preventing a cloud of misinformation from obscuring peoples’ judgements? Is it appropriate for the government to be able to use public funds to campaign for one side of the debate? This event provided insights on these questions from experts from across a wide range of perspectives.

Jenny Watson

Jenny Watson is currently the Chair of the Electoral Commission, which is responsible for overseeing referendums in the UK, and was also the Chief Counting Officer for the EU referendum. She focused her introductory comments on the ways in which the legislative framework surrounding referendum campaigning should be altered to provide increased clarity and fairness, particularly regarding campaign spending rules.

The Political Parties, Elections and Referendums Act (PPERA), currently provides only the bare bones of the regulatory framework for referendums in the UK. This structure then needs to be fleshed out by specific supplementary legislation for each referendum such as the EU Referendum Act 2015. Watson argued for the augmentation of PPERA, to provide a more solid legislative platform in advance of a referendum. She especially recommended reform of section 125, which covers government spending of public funds. This section, she argued, needs to be altered to further restrict the ways in which the government can use public money, as there is currently an imbalance between restrictions placed on government spending, and those placed on spending by other campaigners. Making these changes will help to rectify the perceived campaigning imbalance that results from such heavy government involvement.

One function of the Electoral Commission that came under particular scrutiny during the referendum was its statutory role as designator of the ‘lead campaigner’ groups. This was the first time the legislation had been properly put to the test, as there had never before been multiple well-funded applicants in the running to lead a campaign (the Commission was required to choose between Vote Leave, eventually the successful applicant, and Grassroots Out for the Leave designation). In light of this experience, Watson argued that the statutory timetable for designation of lead campaigners, which currently allows four weeks for applications to be submitted and two weeks for the Commission to decide, does not allow sufficient time for this important process. She also suggested that the designation should happen further ahead of future referendums to allow the lead campaigners more time to secure funding. Continue reading

Democracy means democracy: parliament’s role in Brexit negotiations

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What role will parliament play in the Brexit negotiations and what does this show about the UK’s ever-changing constitution? On 15 September the Constitution Unit hosted Paul Evans and Christopher Johnson, two experienced clerks at the Commons and Lords respectively. Toby Shevlane reports.

Nothing in politics can be taken for granted in 2016, and perhaps our concept of democracy is no exception. It has always been the case that the democratic process requires compromises to be found between different law-makers, but have UK law-makers ever been forced to compromise so heavily with their electorate? Professor Bogdanor has recently suggested that the referendum introduced a new idea into the UK constitution: the sovereignty of the people. The suggestion is that the people have become a ‘third chamber’ of parliament, at least for constitutional issues. The constitutional division of labour is, therefore, in a state of flux, and it is worth pausing to ask: what role will these different chambers play in the Brexit process? This was the question that Paul Evans and Christopher Johnson sought to answer at a Constitution Unit seminar on 15 September.

Paul Evans

Paul Evans is currently Clerk of the Journals in the House of Commons, and will soon be the clerk in charge of the House’s select committees. He spoke expertly about the role that these committees could play in the Brexit process, especially one that is to be set up to scrutinise David Davis’ Department for Exiting the EU. A deal for such a committee has been agreed between the usual channels, which will involve a committee of 21 members with a Labour chair but a majority of Conservative members. Evans said that how this select committee will operate is yet to be decided. But he stressed the importance of collaboration and inclusiveness: it should form a collaborative relationship with the government and other committees, and the process of Brexit scrutiny should be inclusive of devolved governments and legislatures. Overall, Mr Evans also welcomed the recent high level of public interest in politics, and argued that parliament should find innovative ways of involving the public in the Brexit process as much as possible.

Christopher Johnson

Christopher Johnson is the Principal Clerk to the House of Lords EU Select Committee. He spoke first about the process that the negotiations could follow. Article 50, he said, is expected to be triggered in 2017. Then, formal negotiations will begin with the EU member states, who will be represented by the EU Commission. Mr Johnson explained that these negotiations will produce multiple treaties: a withdrawal treaty (dividing up assets, settling financial relationships, addressing EU research programmes, and deciding the ongoing rights of UK and EU citizens under EU law) as well as at least one treaty that sets out the new relationship between the EU and the UK. He envisaged one such treaty, agreed in preparation for the moment of withdrawal, covering areas where continuity would be important, such as security and fishing rights.

Mr Johnson stressed the breadth and complexity of the negotiations that will take place, and argued that no single committee would be able to scrutinise such a complex and cross-departmental series of negotiations. Mr Johnson also pointed out that the government will need to reinvent large swathes of policy currently covered by EU law, and warned that a legislative bottleneck could form in 2018/19. In response to questions from the audience, he gave his view that the current scrutiny reserve procedure would not be triggered by the negotiations, but noted that it would be open to the government to extend the scope of the current procedure.

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The future of electoral reform: the importance of the personal dimension

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On 26 July the Constitution Unit held a launch event for a new book by Alan Renwick and Jean-Benoit Pilet on the ‘personalisation’ of electoral systems. At the event Alan Renwick outlined the book’s key findings, which were then discussed by electoral experts Justin Fisher, Darren Hughes and Roger Scully. Zander Goss reports on the event.

There is a well-known trend in contemporary democracies towards so-called ‘personalisation’, through which increasing attention is given to individual politicians and candidates rather than political parties. In a new book published earlier this year by Oxford University Press – Faces on the Ballot: The Personalization of Electoral Systems in Europe – the Deputy Director of the Constitution Unit, Dr Alan Renwick, writing with Jean-Benoit Pilet of the Université libre de Bruxelles, offers detailed analysis of one aspect of this phenomenon: the personalisation of electoral systems. At a launch event on 26 July chaired by the Unit’s Dr Jennifer vanHeerde-Hudson, Dr Renwick was joined by a panel of electoral experts consisting of Professor Justin Fisher (Brunel University), Professor Roger Scully (Cardiff University), and Darren Hughes (Deputy Chief Executive of the Electoral Reform Society), to discuss the book’s findings and its implications for electoral reform in the United Kingdom.

The ‘personalisation’ of electoral systems

Alan Renwick began the seminar by outlining some of the book’s core arguments. He defined the personalisation of an electoral system as ‘the degree to which voters under that system can express preferences among individual candidates and the degree to which those preferences determine which candidates win election’.

In order to examine trends in such personalisation, the book analyses changes in electoral systems in European democracies since 1945. It finds that electoral reforms changed fundamentally in the late 1980s. Whereas, before that time, there was no trend towards more or less personalised electoral systems, since then, many European countries have shifted their electoral systems towards greater personalisation. Furthermore, the processes underlying these reforms have also changed. Before 1989, electoral reforms were primarily driven by parties and political elites, while public opinion received scant attention. Since 1989, by contrast, reforms have often been motivated – at least in large part – by a desire to respond to public disengagement from or disillusionment with political parties in particular, and politics more generally. Thus, while political elites continue to hold the reins when electoral reforms are enacted, they have grown more responsive – or, at least, have sought to create the impression of being more responsive – to public opinion and voters’ desire for change. Yet the book also finds that these reforms have had only limited effects. There is some evidence that voters are now using opportunities to express candidate preferences in greater numbers, and these preferences are affecting who gets elected to a greater extent than before. But if reforms were intended to tackle rising dissatisfaction with democracy or reverse growing disengagement from electoral politics, there is no evidence that they have done so.

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Parting shots from the Lord Speaker: Baroness D’Souza reflects on the House of Lords and its future

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On Wednesday 20 July the Constitution Unit and the House of Lords authorities hosted a special event at which Baroness D’Souza reflected on her five years as Lord Speaker in conversation with Professor Meg Russell. The conversation covered the highs and lows of her tenure, as well as the issues of the size, composition and reputation of the House. Raffaella Breeze and Jack Sheldon report on the event.

At an event held on 20 July, organised by the Constitution Unit and the House of Lords authorities, the outgoing Lord Speaker Baroness D’Souza reflected on the highs and lows of her five years in the role in conversation with Professor Meg Russell, Director of the Constitution Unit. Baroness D’Souza also used the opportunity to address the pressing issues of the size and reputation of the House of Lords, indicating her own preferences for a cap on the size of the House and restrictions on Prime Ministerial patronage.

Baroness D’Souza is the second peer to hold the position of Lord Speaker, established under the Constitutional Reform Act 2005. Both Baroness Hayman, the inaugural holder of the office, and Lord Fowler, the former Conservative cabinet minister who will take on the role in September, were also present at the event. Baroness D’Souza recalled her objectives when she took office in 2011: to guard the reputation of the House, to expand its outreach programme outside of the UK, and to strengthen the relationship with the House of Commons. If Baroness Hayman’s role had been to create the position, hers was to develop and consolidate it.

The growth of the international outreach programme has been a particular feature of Baroness D’Souza’s tenure. She emphasised the vital importance of building institutional links with other parliaments, for example through exchanges of officials with parliaments in developing democracies, and opening up second channels of communication with countries where bilateral relations have gone sour, such as Russia and Taiwan. Baroness D’Souza spoke about how the international outreach programme had allowed her to pursue some of her other interests, such as promoting the role of women in politics. As Lord Speaker she had also pressed for more efficient, focused meetings of organisations such as the Inter-Parliamentary Union and Commonwealth Parliamentary Association.

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