Updates from Canada: don’t call it constitutional reform

andrew-cookIn October 2015 a Liberal government took office in Canada with commitments to both electoral and second chamber reform. In this post Andrew Cook provides an update. He reports that so far Senate reform has made the greater progress: following the introduction of a new appointments process, a plurality of Senators are now independents. Although a special parliamentary committee has considered options for electoral reform it remains unclear whether the government will be able to make good on its pledge that future federal elections will be conducted under a system other than first-past-the-post.

The government of Justin Trudeau came to power in October 2015 with a wide-ranging platform that included several propositions touching on the operations of the Canadian constitution. As was outlined on this blog at the time, the proposals range from introducing a dedicated Prime Minister’s Question Period in parliament, to reforms of the electoral process that would increase the autonomy of the Chief Electoral Officer and create an independent commission to organise leaders’ debates during election campaigns. The two most significant, and politically challenging, reforms proposed by the Liberal government were a focus of its agenda in 2016. Both electoral reform and reform of Canada’s second chamber, the Senate, have advanced since October 2015 but in different ways. It is worth reviewing the current state of reform in light of the recent developments on both these files.

Senate reform

Reform of Canada’s appointed Senate has long been discussed, and re-emerged as a key issue in the last federal election as a result of a Senate expenses scandal that eventually led to the resignation of then Prime Minister Stephen Harper’s chief of staff.

Harper’s own relatively modest proposals for reform were previously deemed fundamental to the country’s constitutional framework, and therefore requiring substantial provincial consent, so he abandoned them and simply stopped appointing Senators.

The recent return to constitutional debate, which dominated almost two decades of Canadian political life, has not brought with it a renewed interest in reforming the written constitution. Justin Trudeau has repeatedly stated that he does not want to re-open the constitution, which he rightly fears ‘would require protracted constitutional discussions with the provinces.’ Hence rather than considering large-scale Senate reform, such as introduction of elections, Trudeau has created an Independent Advisory Board on Senate Appointments – an attempt to move towards a non-partisan and merit based appointment process. The board selects five candidates for each Senate vacancy, with the Prime Minister making the final decision on who is appointed.

Because there were so many vacancies left by Harper (22 out of the total 105 Senate seats), new appointments by Trudeau resulted in a plurality of Senators being independents by November 2016. They will work together on matters of Senate rules and logistics but will otherwise vote independently. This new reality will have major impacts on both the operation, and role, of the Senate.

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All you need to know about the Italian constitutional referendum

Vincenzo Scarpetta, Political Analyst

On 4 December Italians will vote in a referendum on a major constitutional reform. The referendum is highly significant both constitutionally and, given Prime Minister Matteo Renzi’s pledge to resign if the reform is defeated, politically. In this post Vincenzo Scarpetta offers an overview of the proposed reform and the key objections to it that have been raised by opponents. Despite an apparent change of tack from Renzi in recent weeks he suggests that a ‘No’ vote would almost certainly result in his resignation.

On Sunday 4 December, Italians will head to the polls to either approve or reject what is, in fact, a major constitutional reform tabled by the government of Prime Minister Matteo Renzi and adopted by the Italian parliament earlier this year. I say major because the reform, if confirmed by the referendum, would modify a third of the Italian Constitution – 47 articles out of a total 139. Most importantly, it would overhaul the country’s parliamentary system.

The Italian parliamentary system is unique in Europe

 Italy’s current parliamentary system, unique in Europe, finds its rationale in the historical context in which the Italian Constitution, which entered into force on 1 January 1948, was written. Italy had gone through two decades of fascist dictatorship and a civil war. Hence, the willingness to avoid future anti-democratic drifts explained the choice of a parliamentary system whereby the two chambers, both directly elected, have equal powers and can oversee one another. As a result, a government needs the backing of both chambers to enter office and must resign if it loses the confidence of one of them. Furthermore, no bill can become law unless it is adopted by both chambers – meaning that it can potentially go back and forth indefinitely.

Seventy years later, however, the context has changed significantly. Italy’s parliamentary system has increasingly been singled out as one of the reasons why the country has so far failed to undertake a number of wide-ranging reforms. Two chambers with equal powers, it has been argued, slow down the law-making process. Therefore, it came as no surprise that Renzi included this constitutional reform among his flagship pledges when he took over power in February 2014.

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The Strathclyde report: a threat or an opportunity for the Lords?

Meg-Russell

Lord Strathclyde’s report into the House of Lords and secondary legislation, commissioned following the row over tax credits, was published yesterday. Meg Russell discusses his proposals and argues that they may present an opportunity for a deal to be struck between the Lords and government – restraint in the use of Lords’ powers in return for restraint in appointments.

The report from Lord Strathclyde into the powers of the House of Lords was published on Thursday. This was precipitated by October’s row between the government and the Lords over tax credits, where the second chamber voted against a piece of ‘secondary legislation’ (which is frequently used to implement the detail of policy, under powers delegated in primary legislation – i.e. bills). Strathclyde was asked to investigate whether the Lords’ powers over such legislation should be reformed. His report, prepared with the support of a civil service secretariat and input from three former senior officials with specialist knowledge of the legislative process, presents three options for limiting the chamber’s powers. These received a very sceptical response from the opposition, and the legislation proposed by Strathclyde to implement his preferred option could prove very difficult to agree. So how reasonable are these proposals, and how much of a threat do they pose to the Lords? Could the government’s desire to make progress on the powers of the chamber instead be turned into an opportunity, to resolve wider issues of Lords reform?

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Reforming the Italian Senate

Roberta Damiani passport-style

The UK is far from the only country with a long-standing controversy over the composition and powers of its second chamber. In this post Roberta Damiani provides an update on the latest attempt to reform the Italian Senate. Prime Minister Matteo Renzi is proposing to significantly reduce the Senate’s powers, and to move from direct to indirect elections, but it is far from certain that he will be successful.

The House of Lords has recently come under the spotlight for challenging the elected chamber on tax credit cuts, reviving the never-ending debate about the appropriate powers of a second chamber. But the UK is not the only European country experiencing such controversy: in Italy, Prime Minister Matteo Renzi’s government is pursuing radical Senate reform. There too, both the powers and the composition of the second chamber are at stake. And there too, reformers may find that achieving major change is harder than they first imagined.

The starting point for the debate in Italy is a feature of the country’s political system that is almost unique among parliamentary democracies: so-called ‘perfect’ bicameralism. That is, the two parliamentary chambers have exactly the same powers as each other – including on financial matters, and even with respect to votes of confidence in the government. Both the Chamber of Deputies and the Senate also share the legitimacy of direct election: the latter currently consists of 315 elected members, plus a few life senators, who are either former Presidents of the Republic or highly accomplished citizens appointed by the President.

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The Lords, politics and finance

Meg-Russell

In the aftermath of Monday’s Lords defeats on tax credit cuts there has been much talk of a ‘constitutional crisis’. In this post Meg Russell argues that whilst Monday’s vote was certainly unusual, the most significant change is the wider political context: that it is a Conservative government on the receiving end of repeated defeats in the Lords. Much like Labour ministers under Blair and Brown, Conservative ministers will need to learn how to handle a relatively assertive House of Lords in which they lack a partisan majority.

A Conservative government seems to be at war with the House of Lords. The Daily Telegraph claims that the Lords is ‘undermining democracy’. What on earth is going on? Has the Lords suddenly lost hold of its senses and begun acting entirely without precedent? To listen to some government supporters, in particular, one would assume so. Ministers have suffered a string of defeats since May 2015 – a total of 19 up to and including this Monday. The most controversial, of course, was the chamber’s decision to delay approval of the tax credits regulations, which has caused some to proclaim a ‘constitutional crisis’– and has subsequently sparked the government to announce a review into the chamber’s policy powers.

There are aspects of Monday’s tax credits vote which were undoubtedly unusual. As explored in an earlier post on the Constitution Unit blog last week, defeats in the Lords on ‘delegated legislation’ (the proposed vehicle for the tax credit changes) are relatively rare. There have been only four previous occasions when such measures were blocked outright by the Lords. None of these (on sanctions against Rhodesia in 1968, the London mayoral elections in 2000, the Manchester ‘supercasino’ in 2007 and access to legal aid in 2012) had such major financial implications as Monday’s vote. This fuelled claims that the Lords was breaking centuries-old convention by not respecting the Commons’ financial primacy. Yet the parent act, the Tax Credits Act 2002, had explicitly given the House of Lords a veto over such orders – even though it is quite possible for explicitly financial legislation (as detailed in this excellent Hansard Society blog) to create orders that require the approval only of the Commons. The well-respected Lords Statutory Instruments Scrutiny Committee had drawn the measure to the attention of the House on the basis of inadequate information about its impacts (a circumstance which the 2006 Joint Committee on Conventions explicitly suggested could merit use of the veto power (para 229)). In fact, the most clearly innovative thing about Monday’s vote was that the Lords did not reject the government’s proposals outright via a ‘fatal’ motion, but only imposed a delay – in the case of  Baroness Meacher’s motion until further information became available.

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