Why Written Constitutions are a Good Thing

The historian Linda Colley has written an article in the Guardian on the British experience of constitution-making. It is an argument about the uses of history. For too long, Colley argues, the British (the British elites, perhaps) have had a selective memory about constitutions and constitution making. Until the 19th century, there was a ‘cult’ of devotion in Britain towards various written constitutional documents—the Petition of Right, the Bill of Rights, and above all, the Magna Carta. This receded over time, and although this is not stated in the article, it may have been a response to the proliferation of ‘written’ constitutions, particularly on the Continent, and the need for Britons to distinguish themselves as different. Having said that, the British continued to draft written constitutions for their colonies well into the 20th century.

Colley’s point: it is not un-British to have or engage in a process of drafting a constitution. Britons have been interested and engaged in constitutional processes in the past; it is quite possible they still are. Colley ends by suggesting that years of ad hoc reforms and the increasing disunity of the United Kingdom may make a written constitution more important than ever. Whatever the drawbacks of a written/ codified constitution, one benefit may be it would offer “a single, recognised source from which citizens can learn about how their state is supposed to operate.” As they say, read the whole thing.

As an aside, the finalised version of the UK Cabinet Manual was published last week (more on this another day). I raise it not to point to its (murky) constitutional status, but rather to point to it as a neat inversion of Colley’s description of how constitutional ideas were transmitted from the centre to the periphery: the NZ Manual was the inspiration for the UK Manual. And so, New Zealand gives back to the Mother Country. It’s the least we could do.

Unit in the News: Clegg appoints new Spads

Nick Clegg & Robert HazellFollowing recommendations in our report into coalition government, the Deputy Prime Minister has announced new Liberal Democrat advisors will be placed in government departments.

The report, by Prof Robert Hazell and Dr Ben Yong, suggested that the Liberal Democrats have spread themselves too thinly and require additional resources to extend their influence, including more special advisers, expanded Private Offices, and additional support for the parliamentary party.

The report is part of a one-year project into monitoring the new coalition government in the UK sponsored by the Nuffield Foundation.

Media:

Further information:

A good day to bury news? More spads for the coalition

Yes Liam Fox has resigned after a week of speculation. But this has mostly gone unreported—from the FT’s Westminster blog two days ago: “Liberal Democrats will have a new special adviser covering the House of Lords and five more special advisers covering the work of government departments where the party has no ministerial support.”

See here. And here.*

*Shameless plug for previous blog post.

EDIT: since special advisers work for ministers, how can they cover departments where the Lib Dems have no ‘ministerial support’ (ie., DEFRA, DCMS, DFID, NIO, WO)? The answer is that they will probably be responsible to Nick Clegg.  It’s  worth noting that the Lib Dems now have a number of special advisers disproportionate to the number of seats won at the 2010 election. But on the other hand, as the Constitution Unit has suggested,** the Lib Dems are in dire need of extra support.

**plug.

Strange Love: Or, How Conservatives and Lib Dems Learned to Stop Worrying and Love Coalition Government*

We published our interim report on coalition government Inside Story: How Coalition Government Works [1] a couple of weeks ago, and it behooves me to be grateful for the press our interim report, received. Thus: “How David Cameron and Nick Clegg decide policy – by phone”! and “Lib Dems and Tories get on better than Blair and Brown”!

Alas—that is not quite what the report says. What we say is that formal cabinet government has returned; but that coalition issues are mostly dealt with through informal mechanisms, of which the Cameron-Clegg weekly bilaterals are but one mechanism—to be sure, the most important, but not the only one. None of this means policy is ‘decided on the hoof’: just that coalition issues are decided in informal channels. That’s slightly different.

Do Tories and Lib Dems get on better than Blair and Brown? Well, yes and no. Yes, there are strong relationships within the executive. Yes, it is true that Cameron and Clegg, Letwin and Alexander, work well together. And that makes executive government much smoother. But, but… in Parliament, the parties operate as they always have. The relationship between the parties is cordial at best. And it is at the parliamentary level where problems may emerge.

It’s also important to address a couple of criticisms of our report. One: how can we claim that ‘the coalition is working well’ when a good part of the report is devoted to the problems that the Lib Dems are having? Two: it’s too process-based; too structural. These two criticisms merge into each other.

On the coalition working well: the problem is that there are two measurements of ‘success’ are being run together here. One measure is how well the two parties are working together; the other is the ability to implement party policy and/or the ability to project party distinctiveness. I take the point that perhaps we weren’t clear enough on what our measures of coalition ‘success’ were.

On the first measure, it’s worth bearing in mind that prior to May 2010 coalition government in Westminster was thought to be a recipe for unstable, unworkable or inefficient government: that two national political parties could not work together. But at least in the first year, that doesn’t seem to be so: there is no sign of imminent collapse; and decision-making hasn’t slowed down at all. That is what we meant by ‘working well’. (Yes, now there are the NHS reforms, but is this a coalition issue? There are differing schools: one school pointing to a Lib Dem response following the failure of the AV referendum; the other school suggesting a U-turn from the Conservatives themselves because of a fear of ‘retoxifying’ the Conservative party. And anyway, it’s not clear that this is a systemic problem—yet).

On success in implementing policy—how can we talk of success if the Lib Dems are doing so poorly? And are we not being myopic for simply looking at process over policy? We did say this was not a review of policy. And it seemed to us that there had already been plenty of discussion in the media about the Lib Dems’ failure to have a noticeable impact in government in terms of policy implementation, but very little discussion of some of the very substantial structural problems the Lib Dems have. We thought it worth stressing that the Lib Dems made some crucial choices at the formation of the coalition which continue to hamper their ability to push their policies within government—losing short money, accepting the cap on special advisers, and most of all going for breadth over depth in terms of the allocation of Lib Dem ministers.

But anyway—as I said at the beginning, I’m grateful for the comments and criticisms. We will try to address some of these issues in the next report.

*Next week’s post: Tainted Love: Or, “It’s not you, it’s me”

[1] Thank you to all the interns who have worked on the coalition government project so far. Thanks to Ruchi Parekh (aka: Ms Doubtful), Jessica Carter, Ian Jordan, Alex Jacobson, Patrick Graham, Andreas Kutz and Chris Appleby. Props to y’all—except maybe you, Ian!

The Inside Story: How Coalition Government Works–A Summary

The Coalition in Whitehall

  • Finding a balance between unity and distinctiveness is the key problem for coalition government. The current coalition has successfully ensured unity, and stability; but struggles to allow the two parties to express their distinctiveness.
  • Formal cabinet government has been revived: Cabinet and cabinet committees now meet regularly, but these are mostly forums for dealing with interdepartmental issues rather than specifically coalition issues.
  • The main forums for reaching agreement between coalition partners are informal. Coalition issues are often dealt with before they reach the formal machinery of government.
  • This informality of coalition decision making is based on high levels of trust between the leadership of the two parties. Trust, and the importance of compatible personalities, are essential for coalition government.
  • However, this informality has one drawback: it means that the Lib Dems are often unable to demonstrate their influence in government.
  • Some machinery has surprisingly not been effective in coalition brokerage—in particular, the Deputy Prime Minister’s Office, special advisers, and Liberal Democrat junior ministers.

The Coalition in Westminster

  • Flexibility within the executive is not always matched by flexibility in parliament. Compromise hammered out in government has led to excessive rigidity when policies are introduced into Parliament.
  • The informality and relatively close relationships in the executive are not matched by similar relationships within Parliament. In both houses, the coalition is tolerated rather than embraced.
  • Coalition governments often lead to a divide between the frontbench and backbench. Rebellions in this parliament are historically at record highs.
  • The parliamentary parties have begun to modify their backbench committees to prevent the divide between frontbench and backbench widening.

The Dilemmas for the Junior Partner

  • The Lib Dems are still reeling from the loss of their state funding, given only to opposition parties. This has led to the loss of many of their staff. It may help explain their under powered performance, particularly with the media.
  • By going for breadth over depth, the Lib Dems have spread themselves too thinly. They need to prioritise. Given the numbers they have, what can they realistically do which will have an impact with the public?
  • In a future coalition, the junior partner might seek to specify the support to be made available to them, in terms of special advisers, expanded Private Offices, and additional support for the parliamentary party.

Spads: Who they are, what they do, why they exist—and why they will continue to be appointed

What are spads, said everywoman, and would not stay for answer. Everyone knows about certain notorious special advisers—Alastair Campbell, spin doctor extraordinaire; Damien McBride, attack dog for Gordon Brown; and Jo Moore, forever infamous for sending an email around on 11 September 2001 saying, “today is a good day for burying bad news.”[1] Under the Cameron-Clegg administration, media reports on the whole remain fairly hostile.

There have been some dissenting voices, calling for more spads. Jahan Ganesh in Prospect (££); Tim Montgomerie on ConservativeHome; our esteemed (and rather more flush) colleagues at the Institute for Government as well. The recent reconfiguration of No 10’s policy unit suggests the coalition is feeling the absence of spads.

But what are special advisers, and what exactly do they do? There is surprisingly little on this, academically.

A technical definition: they are temporary civil servants, drawn from outside the traditional civil service structure, and subject to the patronage of ministers for whom they work. In layman terms, civil servants are appointed through open competition and promoted by merit. Special advisers, on the other hand, are appointed personally by ministers, to work for those ministers; when a minister leaves, the spad leaves with them. They may or may not have policy expertise.

What do spads do? Most think of them as spin doctors, but this is too crude. Maria Maley, at the Australian National University, has identified five basic functions:

  1. Personal support: managing the minister’s time, determining priorities
  2. Political support: in parliament, within the party, etc
  3. Communication: media management, but also management of relations with other key actors
  4. Policy matters: initiatives, development, implementation
  5. Executive coordination: between portfolios and between ministries.

The focus has always been on ‘spin’, but the truth is we don’t know what the majority of spads do. Some clearly are spin doctors (Alastair Campbell), but others are not (Jonathan Powell’s key ‘function’ would have been executive coordination; Andrew Adonis perhaps for his policy knowledge). There are usually about 75 spads in any one year: we tend only to hear about a tiny few, usually those at the centre; not those in departments.

Spads are often thought of as bright young things with an eye to a political post in the future. They are often thought to be former parliamentary researchers or think tankers. Former special advisers include David Cameron, George Osborne, Ed Miliband, Ed Balls, Jack Straw … the list goes on. But again: we don’t know if the labels ‘bright young thing’/ ‘political careerist’ are appropriate because no one yet has studied them in detail in the UK (see below for the exceptions).

A final point, before this post gets too long. The focus has always been on spads, and their apparent malign influence—but there is a prior question: why do ministers keep appointing spads? Well—again, we don’t know the actual reasons. But we can guess. Spads exist because there is a demand for them. And there are at least three reasons why ministers may want to appoint spads:

  1. Ministers are overloaded.[2] They just have too much to do—so spads help ministers to determine their priorities.
  2. being (ostensibly) neutral, civil servants cannot offer ‘political’ advice; spads, often being appointed for their political qualities, can.
  3. Ministers want to increase the ‘responsiveness’ of the civil service, which is seen as passive and obstructive; spads can drive the machine because they exist outside the civil service.

There may be a fourth reason: coalition government. Coalition government may require greater negotiation between parties; spads may provide that liaison function.

Whether or not these reasons are legitimate reasons is another story. But these are likely to be the reasons ministers will give in appointing special advisers. We should be asking ministers what they think special advisers are for, and to what extent they fulfil this function (or functions). It is time we moved on from talking about spads in a largely negative manner and asking whether there are too many, to asking why are they there, how they contribute, and whether they can improve ministerial effectiveness.

Background

The Constitution Unit has been working on a grant proposal on special advisers, and so it seemed appropriate to blog on this. For those really interested in spads, there is Andrew Blick’s excellent text. On the internet, start with the House of Commons’ library research note; or  the Public Administration Select Committee’s 2001 report, Special Advisers: Boon or Bane, which is still good value. There’s also an excellent article by a former spad to Jack Straw here, which gives an insight into a spad’s everyday life. The Powerbase website has (very) uneven coverage of special advisers. On what ministers do, and ought to do, there is the (so-so) Public Administration Select Committee report What Do Ministers Do?

EDIT 14/04/11: a very interesting report on the coalition’s spads here:

http://network.civilservicelive.com/pg/pages/view/564295/

EDIT 16/09/12: I should have updated this long ago. But the Unit is now carrying out a project looking at special advisers 1997-2012. Watch for more news here:

http://www.ucl.ac.uk/constitution-unit/research/special-advisers


[1] And of course Sir Richard Mottram’s rather choice response when he discovered Jo Moore’s email had been leaked.

[2] I could write a whole post on this. Ministers have ridiculous workloads. This is partly because of the complexity of modern government; and partly because of an unwillingness to define what a minister ought to do.

Sir Gus: Stop me if you think you’ve heard this one before

“I have to admit that it’s not something I’m often asked about down the pub” –  Sir Gus O’Donnell

As noted in today’s post by my learned colleague [1] Patrick Graham, Sir Gus O’Donnell gave a speech on the Cabinet Manual last night at a Constitution Unit seminar held at the Institute for Government. [2]

The speech was nothing new. As someone in the audience noted, Sir Gus spent most of his talk talking in negatives. The Manual was not a written constitution. It was not law. It was not new. Etcetera.

But it sparked in me some thoughts about the nature of conventions.[3] Sir Gus was being slightly disingenuous: there are aspects of the Manual which are new. There were at least two: the extension of the caretaker or purdah principles into the post-election period, and with more substantive criteria (NZ did something similar in 1984 following a constitutional crisis emerged over transition). Ditto with the provision of civil service support during a hung parliament to all parties. These are examples of instant convention: new norms formulated to deal with a new situation.

Before making the kneejerk response—that’s undemocratic!—it’s worth noting Geoffrey Marshall, for a long time the authority on constitutional conventions, did say that one source of convention was simply derivation from some acknowledged principle of government. And this is not so far removed from what common law judges have been doing for centuries. That is, they have extended ‘imminent principles’ in the law to new and unforeseen circumstances. They use former cases—precedents—often to justify their rulings. This was fine in the past, but this is now regarded as problematic (more bluntly: flapdoodle).

This is because there are now two new conditions underlying modern Western society. One is popular democracy, and the sense that law only has its authority because of ratification by ‘the people’. But more important is the overwhelming presence of the state [5] and the popular assumption of a crude form of positivism [6], which identifies ‘law’ in terms of who authorises it, i.e., the political authority of the state, or more specifically, the legislature. This makes precedent and common law decision-making problematic, because this is essentially judge-made law. It clashes with our idea of democracy and only state-issued law being ‘law’.

A recent book by Nils Jansen [7] makes a similar point. He notes that some legal codifications have become themselves ‘law’ (example: the American Law Institute’s Restatements), and have done so despite the fact that they have never been ‘ratified’ by the legislature. The (key) reasons are that such codifications met an urgent need; and the legal community came to accept it. Jansen’s point is: we presume that the state (and perhaps more specifically the legislature) is the only legitimate authority in the field of ‘law’; but historically this has never been so. There are other ‘legitimising’ communities.

This brings us back to the Manual. Am I saying the Manual is law? I am not. I’m just drawing attention to parallel debates elsewhere. Some people have been irritated by the sheer impudence of Sir Gus and the Cabinet Office—how dare he suggest the executive might have a view of the norms governing us, or that he might change pre-existing practices! What I am saying is that the legislature (and the judiciary) are not the only sources for rules and norms which we find obligatory to follow. This has ‘always been so’: it is just that our views of what constitutes law and/ or obligatory norms over time have become radically impoverished. We need to expand our understanding of how in practice we follow rules.

Competition time! A large cappuccino with whipped cream [8] to the person who can come up with the best question to ask Sir Gus down the pub.[9] Answers below, please.

[1] legalese for ‘he done studied him some law’

[2] They have the best canapes there. As my esteemed colleague says: “I go for the talks, but I stay for the scallops.”

[3] you have to imagine me posing like Rodin’s the thinker. It’s difficult. I do slouch a lot.

[4] I don’t mean this in a state-is-evil libertarian manner—I mean this in an anthropological kind of way. I mean, the state, and its insistence on representing the nation, is everywhere: on our money, on TV, in our speech—it infests the frames we use to understand the world. It’s difficult to imagine a life without the (nation-)state.

[6] I have read HLA Hart. And even Waluchow’s inclusive legal positivism. Go away. That’s why I said a crude form of positivism.

[7] great book btw. It’s a legal bodice-ripper. Or a judicial Bridget Jones.

[8] I’m cheap. Sue me. This or the functional, edible equivalent. Eg., some people might want a skinny latte, a pint, fruit tea etc.

[9] Is that grammatically correct? That’s what Sir Gus said, but this latest batch of civil servants are pretty illiterate (so sayeth the Telegraph–I couldn’t possibly comment). Perhaps it’s an acceptable dialect variant?