Canada’s federal election on October 19 returned to power a Liberal government with a wide-ranging programme for constitutional reform that touches on the electoral system, parliament and relations with the provinces. David Brown offers an overview of this agenda, which includes several reforms introduced or discussed in the UK in recent years.
The election of a Liberal government with a solid majority opens a new chapter in Canada’s enduring fascination with its constitution. The party’s election platform includes an impressive range of promises that touch on the operations of the constitution – many of them intended to remedy or undo measures taken by the outgoing Conservative government led by Stephen Harper – although it is more cautious on the larger structural issues lurking below the surface. Evoking the ‘sunny ways’ of Wilfrid Laurier, a Liberal predecessor, incoming Prime Minister Justin Trudeau is offering a change in tone and style in the day-to-day running of national institutions. Determined to be his own man he is, however, moving cautiously in approaching the larger constitutional reform stage that preoccupied his father, Pierre Elliott Trudeau, in the 1970s and 1980s.
The Canadian constitution, likes its British parent, is a work in progress. The original federal Constitution was enacted in 1867, the year that Bagehot published The English Constitution. The British North America Act (now the Constitution Act), neatly resonates with his distinction between the dignified and the efficient features of the Constitution. The written Canadian Constitution provides for the Crown, Privy Council, parliament, the courts and parallel institutions at the provincial level (along with lists of enumerated powers of the two levels of government), cumulatively providing the enduring framework within which the real business of governance is transacted. These efficient elements, including the Prime Minister, Cabinet, public service and the day-to-day operations of parliament and the federal system, emanate solely from the laconic observation in the Preamble to the Constitution Act that Canada has ‘a Constitution similar in Principle to that of the United Kingdom.’ Changing the written Constitution involves use of a demanding amending formula that in several areas requires unanimity among the federal and provincial governments. The unwritten is the realm of constitutional convention.
Louise Thompson argues that the constitutional challenges we will see over the next 5 years will be a product of the changed composition of Parliament. Here, she specifically considers how SNP are likely to try and amend proposed constitutional reforms announced in the Queen’s Speech last week.
We are only a couple of weeks in to the 2015 Parliament, but we can already see signs of big changes from the previous Parliament, as well as some major parliamentary and constitutional challenges ahead. Last week’s Queen’s Speech proved what most commentators had already suspected; the first majority Conservative Government for nearly two decades will oversee a period of major constitutional change. This includes greater devolution to Scotland, Wales and Northern Ireland as well as to English cities and an In-Out referendum on membership of the European Union to be held by the end of 2017. The constitutional ground is beginning to move already. The Prime Minister has already met with the Scottish First Minister Nicola Sturgeon to discuss the devolution of more powers to the Scottish Parliament.
As returning MPs took their seats in the chamber following the Queen’s Speech last week, they were met with a sea of unfamiliar faces as 182 new Members took their seats in the chamber. There is nothing new about a high turnover of MPs – the 2010 General Election saw an even higher turnover of Members. But the composition of the new intake, with record numbers of women and ethnic minority MPs, a massive drop in the number of Liberal Democrat MPs and the arrival of a much larger number of SNP MPs is very different to what the House has seen before. The challenges we will see over the next five years to the government’s planned constitutional reforms are very much a product of this changing composition.
At the end of April, the Sri Lankan President’s100-day programme of governance reforms culminated with the passing of the Nineteenth Amendment to reduce the powers of the presidency. Asanga Welikala reviews the progress that has been made since January, and argues that despite difficulties and necessary compromises, the Amendment represents a change for the better in Sri Lanka’s governing arrangements.
With the election of Maithripala Sirisena to the presidency in January 2015, Sri Lanka embarked on a 100-day programme of constitutional and governance reforms. The promise of far-reaching changes to abolish, or at least substantially reduce, the powers of the executive presidency had been the keystone of Sirisena’s presidential campaign. The previous President, Mahinda Rajapaksa, had not only constitutionally extended the powers of this already over-mighty institution, but had also extra-constitutionally instituted a control regime based on nepotism, clientelism, ethnic chauvinism, and corruption. Sweeping away this institutional apparatus of authoritarianism and its more informal – but also more ingrained – network of patronage and protection through constitutional reforms brought together the otherwise disparate coalition of political forces that supported Sirisena’s candidacy.
While reforming executive presidentialism was the centrepiece of the 100-day programme, it also included a raft of other proposals, including freedom of information legislation and reforms to the parliamentary committee system, as well as economic reliefs. This collection of policy proposals did not make for the most coherent of programmes, and neither did it seem realistic within a 100-day period. Predictably perhaps, the government’s energies have been focused on the presidential reforms and other proposed measures have fallen by the wayside, bar some measures to ease the cost of living, and some small but symbolically significant steps toward ethnic reconciliation. Corruption prosecutions in particular have been conspicuous by their absence. However, the excesses of the Rajapaksa regime had been such that the majority that voted for its ouster has been willing to settle for progress on the main issue.
Stephen Tierney expresses concerns over the Smith Commission timetable, highlighting that the speed leaves little time for appropriate due diligence and detracts from the democratic credibility of the process. He argues that there is a need for restraint, and a more independent and inclusive review over a longer period.
In the month of November the Smith Commission is set to draw up the most significant programme of constitutional change for the United Kingdom since 1998. Already the period within which citizens could submit their views on this process has passed; the Commission having set a deadline of 5 p.m. on 31 October.
Such a rapid process runs counter to both the due diligence that is surely needed before any decision is taken to restructure the UK tax (and possibly welfare) systems so radically and the due process which ought to accompany such a seminal constitutional development. Unfortunately the principles of deliberative constitutional decision-making and popular democratic engagement which figured strongly in the recent independence referendum are unlikely to gain much traction in the current rush to change.
The referendum campaign was indeed a remarkable period of citizen empowerment. The turnout of 84.7% is only one dimension of this; in a deeper way many citizens were greatly invigorated by the referendum and the role they had in discussing and ultimately in making such a huge decision. The Smith Commission process, by contrast, bears all the hallmarks of a return to elite-led constitutional change; and it is deeply ironic that the impetus for such a rapid and party-led process should be the independence referendum itself. As the 18th of September approached and the polls seemed to tighten, the leaders of the main unionist parties issued ‘The Vow’, promising more powers for the Scottish Parliament and setting out a firm timetable for change.
Last week Robert Hazell set out some of the options for a possible UK constitutional convention. Here Meg Russell proposes some more specific answers to the questions that he posed: for example on what a constitutional convention should be tasked to do, timescale, and membership. She suggests that a more limited convention than Labour proposes, to a faster timetable, could offer a compromise to the benefit of all main parties.
Last week on this blog Robert Hazell set out the alternate options for a UK constitutional convention. Such a body has been proposed by various democracy groups (such as the Electoral Reform Society and Unlock Democracy) since before the Scottish referendum. Immediately afterwards Labour leader Ed Miliband threw his weight behind these calls, proposing that a convention should meet in autumn 2015. The idea also has the support of the Liberal Democrats, Greens and UKIP. In the Commons debate on devolution earlier this week William Hague indicated that the government was prepared to consider the proposal (col. 179).
Yet behind this apparent consensus there are huge splits between the parties, and the debate was otherwise highly polarised along party lines. Immediately after the Scots had voted Prime Minister David Cameron raised the issue of so-called ‘English votes on English laws’ at Westminster (a long-standing Conservative commitment), on which Hague is now chairing a Cabinet Committee and promising action by late November. Labour alleges that this is amounts to sorting out the constitution in haste ‘on the back of a fag packet‘, while Conservatives view Miliband’s convention plan as ‘the long grass‘. Labour clearly has the most to lose from ‘English votes on English laws’, given its relative strength in Scotland – and is thus reluctant to engage with the Cabinet committee process. The Liberal Democrats are at best ambivalent, making it doubtful that any proposals will get through. It is tempting for the Conservatives to make political capital out of this. But party political game-playing on both sides carries major risks. First, allegations and counter-allegations followed by failure of the Westminster parties to agree may simply fuel grievances and boost the UKIP vote. Second, inaction could leave the UK in a very difficult position after the May 2015 general election. Should Labour win the greatest number of Commons seats without being the largest party in England, immediate cries of ‘crisis’ could ensue.
In the run up to the Scottish independence referendum, and its aftermath, calls have grown for a constitutional convention to discuss further devolution, as well as wider constitutional reforms. Yet most constitutional conventions around the world have failed to deliver subsequent reform. Careful thought therefore needs to be given to the purpose, scope and terms of reference, timetable, selection of members, budget, staffing and links to government and Parliament if a convention is to have any chance of success. Robert Hazell addresses each of these issues in turn.
A constitutional convention is a group of people convened to draft a constitution (like the drafters of the American constitution in Philadelphia in 1787), or to consider specific constitutional reforms. In recent times conventions have come to include ordinary citizens, like the Irish Constitutional Convention which met from 2012 to 2014. A convention may be established for several reasons:
To build cross party consensus for further constitutional reforms
To harness expert opinion to chart a way forward
To develop a more coherent overall reform package, rather than further piecemeal reforms
To bring in ideas from outside the political elite
To create greater legitimacy and support for the convention’s proposals
To generate wider participation through innovative methods of public engagement.
Although a Yes vote would have meant a very obvious change to the existing constitutional structure of the UK, the consequences of the No vote will still be complex and profound. The outcome has already put contentious issues such as the West Lothian question back on the agenda, writes Meg Russell.
The constitutional consequences of a Yes vote in Scotland would have been momentous, leading to months – possibly years – of fraught negotiation with uncertain consequences. But the consequences of no for the rest of the UK may, paradoxically, be even more complex and profound.
Since establishment of the Scottish Parliament in 1999 the ‘West Lothian question’ – Scottish MPs voting on legislation not affecting Scotland – and wider ‘English questions’ have rumbled on but rarely reached centre stage. They were temporarily sidelined by announcement of the independence referendum. Had Scotland voted yes, their urgency would have declined. Controversies over Scottish MPs at Westminster would clearly have ended with their departure, however painful that might have been.
A No vote was always going to put these issues back on the agenda, particularly because the status quo ante was not an option. Under the Scotland Act 2012, a No vote was already to hand substantial new powers to the Scottish Parliament, particularly over taxation. During the campaign, political leaders went far further, promising additional devolved powers including on welfare and tax. This has angered Conservative MPs.