Advice in a time of belief: Brexit and the civil service

Posted on July 16, 2019 by The Constitution Unit

The role of the civil service in delivering Brexit has been hotly debated by many. Its neutrality has been questioned by some, and individual civil servants have been personally criticised. But what precisely is their role when it comes to advising ministers, and has it been affected by Brexit? Jim Gallagher argues that just as political parties have been tested by the result of the 2016 referendum, the civil service is similarly under pressure.

The UK civil service prides itself on being able to serve democratically elected ministers of radically different political beliefs. This principle of political neutrality has carried it through transitions as marked as Callaghan to Thatcher, Major to Blair, and from the Brown government to its coalition successor.

The permanent home civil service has also successfully transitioned from serving Westminster departments to devolved administrations in Cardiff and Edinburgh, even advising a Scottish government in pursuing independence. None of these transitions has been painless, but Brexit seems to present a different challenge.

Individual officials have been publicly identified for criticism, dismissed or moved after giving unpalatable advice, or leaked against in the press. Sir Ivan Rogers was sacked from his job in Brussels for advising on how the EU would react. Olly Robbins will be the fall guy for negotiating Mrs May’s failed deal. Last week, Sir Kim Darroch, the UK’s ambassador in Washington, resigned, and the Cabinet secretary Sir Mark Sedwill is said to be next.

But this may not just be about individuals. Many pro-Brexit politicians seem to see the civil service as a supporter of the establishment they seek to overthrow. So is the principle of a politically neutral civil service under threat? Continue reading →

175 not out: the new edition of Erskine May and eight years of constitutional change

Posted on July 2, 2019 by The Constitution Unit

In March, Sir David Natzler retired as Clerk of the Commons after over 40 years in the House. Now, he is the co-editor of Erskine May, the 25th edition of which is the first new edition in eight years, and is freely available to the public: a significant change. Here, Sir David discusses some of the key changes to the text after what can only be described as an eventful eight years for the Commons.

The years since the last edition of Erskine May in 2011 have been pretty turbulent by any standards. We have had three types – coalition, majority and minority – of government, two general elections, three national referendums and numerous constitutional statutes of real significance. So it was plainly time for a new edition of this timeless work, which is often referred to but rarely read.

The new Erskine May is exciting to me because, as its co-editor, I had the happy task of reading through the chapters as they emerged from the efforts of many of my former colleagues. We all had to ask ourselves: is this a clear and honest account of parliamentary procedure and practice, and if not, how far can we go in recasting it? It is not a new book; but nor is it merely a historical text with minor amendments for the benefit of a modern audience. New content has been added, but nothing has been asserted without due authority, and we also recognise that some assertions of the past are too precious to be excised. Paragraph 21.4 on the rule against reading of speeches is as good an example as any: the principle remains valued by some MPs but it would be idle to pretend that it is rigorously observed in practice. There has to be some wishful thinking.

Who is this edition of Erskine May for? Plainly for practitioners, meaning the occupants of the Chair (such as the Speaker and Deputy Speakers), those who advise them, MPs and officials. But it is not just for them. Recent controversy over decisions by the Speaker on procedural issues related to Brexit and threats of early or extended prorogation by some candidates for leadership of the Conservative Party have served to remind all of us that parliamentary procedures are not some sort of secret masonic ritual to be understood only by a priestly caste of clerks and a handful of others, but are as integral to a parliamentary democracy as electoral rules. And it is not just for Westminster: one of my great pleasures as Clerk was to receive emails from colleagues around the Commonwealth seeking elucidation of a procedural – and usually political – issue where their knowledge of what was said in Erskine May was far in advance of my own!

Fortunately this edition has been preceded by two very different works which help set it in context. In 2018 the Commons authorities published a Guide to Procedure which is intended to help those involved in its day to day work, set out in plain English. It is of course available online. And secondly, at the end of 2017 Hart Publishing produced a book of essays – edited by current Clerk of Committees Paul Evans, entitled Essays on the History of Parliamentary Procedure: In Honour of Thomas Erskine May, to mark the great man’s 200th birthday in 2015. Continue reading →

Scotland’s plans for doing referendums better: an assessment

Posted on June 25, 2019 by The Constitution Unit

Scotland’s First Minister, Nicola Sturgeon, recently announced plans for new rules on referendums and for a citizens’ assembly on Scotland’s constitutional future. Drawing on his recent research, Alan Renwick assesses the proposals. He argues that they are useful first steps towards enhanced democratic practice, and he urges all sides to engage constructively in strengthening them further.

The Scottish Government has recently proposed two important constitutional innovations. First, it has introduced a bill designed to regulate the conduct of any future referendum called by the Scottish Parliament. Second, it has announced a citizens’ assembly to encourage constructive public discussion of Scotland’s constitutional future. Opposition parties may be wary of these proposals, seeing them through the lens of the debate for and against Scottish independence. But the proposals deserve to be assessed on their own merits. Whatever our view of independence, no one can deny that active debate on this question exists. It is in everyone’s interests that that debate be conducted fairly and honestly.

Much of my recent work at the Constitution Unit is relevant to the proposals. In conjunction with the Independent Commission on Referendums and the Council of Europe, I have examined the principles and rules that should shape referendum conduct. In the Citizens’ Assembly on Brexit, my colleagues and I considered how such deliberative institutions can best be designed and operated. My recent report with Michela Palese on Doing Democracy Better explores ways of fostering better information and discussion during referendum campaigns. In what follows, I draw on these projects – as well as the work of the Electoral Commission and others – to assess the Scottish government’s proposals and consider what further steps may need still to be taken.

Referendums Bill – an important step forward…

The Referendums (Scotland) Bill was introduced in the Scottish Parliament by Cabinet Secretary Mike Russell on 28 May. It does not call any referendum. Rather, it is intended to provide the framework for any future referendum that might be called by the Scottish Parliament on any matter. It covers the rules for triggering such a vote, conducting the campaign, and running the poll itself.

The mere fact of establishing a standing framework of referendum rules is a welcome step forward. Scotland currently has no such framework, meaning that all the rules have to be created afresh when a referendum is called. That is in contrast to the UK as a whole, where referendum rules were established by the Political Parties, Elections, and Referendums Act (PPERA) 2000. The danger created by having no standing framework is that the rules can be manipulated by those in power to enhance their chances in a particular vote. Last year’s Independent Commission on Referendums suggested that Scotland might introduce such a law. The change also fits with the principle that basic referendum rules should be settled well before any actual vote. This is enshrined in the Code of Good Practice on Referendums produced by the Council of Europe’s legal wing, the Venice Commission, and was endorsed earlier this year by the Parliamentary Assembly of the Council of Europe. Continue reading →

Why do citizens’ assemblies work? Evidence from the citizens’ assemblies on Brexit and Social Care.

Posted on February 28, 2019 by The Constitution Unit

As the debate about the UK’s relationship with the EU continues to dominate the political agenda, citizens’ assemblies have been mooted by several high profile figures as a possible way to break the Brexit impasse. Here Sarah Allan and Rebecca McKee explain how and why citizens’ assemblies are able to assist and improve the policy-making process through engaging and informing ordinary members of the public.

Citizens’ assemblies have been gathering more attention amongst politicians, the public, and the media in recent weeks. For some this model of public engagement is entirely new. Yet, the history of citizens’ assemblies and methods like them extends back to the 1970s. Since then they have been used around the world to bring together representative groups of the public to deliberate on controversial and complex issues. Countries that have had citizens’ assemblies include Canada, the United States, Australia and Belgium. Most famously Ireland’s citizens’ assembly and constitutional convention played key roles in change on abortion and gay marriage.

The core purpose of a citizens’ assembly is to give decision-makers access to the informed and considered views of the public. A citizens’ assembly can be said to have worked when these three factors are delivered to a high standard. We use the examples of the Citizens’ Assembly on Brexit (CAB) and the Citizens’ Assembly on Social Care (CASC) to show that it is possible to deliver on these principles.

‘The views of those that took part in our citizens’ assembly have been vital in informing our thinking and the model also provides a possible route for further public engagement and building the support that any reforms will need.’ Clive Betts MP, Chair of the Housing, Communities and Local Government Select Committee.

The public

Is it possible to recruit a representative group of participants?

The primary goal of citizens’ assembly recruitment is to secure a broadly representative sample of the population as assembly members. The population of interest varies depending on the assembly topic. CASC was commissioned to look at the devolved issue of social care, so participants were only recruited from England. CAB dealt with the UK’s exit from the EU, so its membership was UK-wide. Both topics were issues of policy so participants were restricted to those eligible to vote in either general elections for CASC, or the 2016 European Referendum for CAB. Continue reading →

Beyond Brexit: Towards a British Constitution

Posted on February 22, 2019 by The Constitution Unit

Brexit is a major constitutional change. It creates considerable constitutional uncertainty, but also opportunity. It could prove Britain’s constitutional moment. Vernon Bogdanor argues that just as joining the EU fundamentally altered the UK constitution, so Brexit could, by exposing the very nakedness of Britain’s uncodified arrangements, prove a catalyst for a written constitution.

During the period of membership of the European Communities/European Union, the UK was subject to a written or codified constitution, which was entrenched. Brexit is a process rare if not unique in the modern world, involving as it does disengagement from a codified to an uncodified system. It is just possible indeed that Brexit will lead to a codified constitution for the United Kingdom that would bring us into line with virtually every other democracy in the modern world.

At a seminar at King’s College, London shortly after the 2016 EU referendum, Takis Tridimas, a professor of European Law at King’s said that the result represented the most significant constitutional event in the UK since the restoration of the monarchy in 1660, since it showed that on the issue of Europe, the sovereignty of the people trumped the sovereignty of Parliament. Of course, from a legal point of view, the referendum was merely advisory, but the government committed itself to respecting the result and the outcome was seen by the majority of MPs as decisive. Since June 2016, therefore, both government and parliament have been enacting a policy to which they are opposed. That is a situation unprecedented in our long constitutional history. Europe, therefore, has been responsible for the introduction of a new concept into the UK constitution, the sovereignty of the people. On this issue, the people have in effect become a third chamber of Parliament, issuing instructions to the other two. The sovereignty of Parliament is now being constrained not by Brussels, but by the people.

The effects of the European Communities Act on the UK constitution

The main constitutional consequence of our EU membership was to restrict the sovereignty of parliament. Parliamentary sovereignty must be distinguished from national sovereignty, with which it is often confused. National sovereignty is engaged whenever a country signs a treaty. It is not an absolute, it can be pooled or shared with other countries, and it is a matter of political judgement how far it should in fact be shared. But parliamentary sovereignty – the notion that Parliament can enact any law it chooses – is not like that at all. It is an absolute. One either has it or one does not. One can no more be a qualified sovereign than one can be a qualified virgin. Continue reading →

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Tag Archives: 2016 EU referendum

Advice in a time of belief: Brexit and the civil service

175 not out: the new edition of Erskine May and eight years of constitutional change

Scotland’s plans for doing referendums better: an assessment

Beyond Brexit: Towards a British Constitution

The Constitution Unit Blog

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