Do we need a written constitution?

image1.000.jpgPrior to the general election, several of the parties’ manifestos called for the creation of a codified constitution for the UK. In December, the Constitution Unit hosted an event to debate the merits and downsides of such an exercise. Harrison Shaylor summarises the discussion.

What did the 2019 Liberal Democrat election manifesto and the Brexit Party’s ‘Contract with the People’ (from the same election) have in common? Both advocate the need for a written constitution in the UK. So too did the Green Party manifesto, and that of the Alliance Party of Northern Ireland. Meg Russell took part in a discussion on a written constitution in The Briefing Room on Radio 4 in September, and on 28 November, the Constitution Unit held its own event entitled ‘Do we need a written constitution?’. Two distinguished law professors – Sionaidh Douglas-Scott of Queen Mary University of London and Nicholas Barber of the University of Oxford – set out the case for and against a written constitution, in a debate chaired by a former Unit Director, Professor Robert Hazell. What follows is a summary of the presentations made by each participant. 

The argument for a written constitution: Sionaidh Douglas-Scott

‘Someone, I haven’t been able to trace whom, once said: Constitution building is a bit like dentistry: there’s never a good time for it; no one does it for fun; but it’s sometimes necessary and, when it’s done right, it prevents greater pain in the future.’

Professor Douglas-Scott explained that a constitution delineates the relationships between the major institutions of state, such as the executive and the legislature, as well as between the state and its citizens. More abstractly, a constitution says something about legitimacy and power. How does the state exercise power? And when is it legitimate for it do so?

The UK is unusual in not having a written constitution, in the sense of not having the fundamental rules of the constitution codified in a single document. It is one of only a few democracies in the world which lacks one, alongside Israel and New Zealand. The reason for this is historical. Since 1688, Britain has not experienced a revolution or regime change – a ‘constitutional moment’ – like the American or the French Revolution, or the withdrawal of colonial rule. Rather, Britain’s constitution has evolved slowly over time under relative stability; it has never been deemed necessary to list the fundamental laws and principles underpinning the country’s polity. As the Constitution Unit website states: ‘What Britain has instead is an accumulation of various statutes, conventions, judicial decisions and treaties which collectively can be referred to as the British Constitution.’

This arrangement, Professor Douglas-Scott argued, is no longer adequate. The current constitution is deficient for three reasons: its lack of clarity; its failure to properly protect fundamental rights; and the inadequacy of the current devolution settlement. Continue reading

Enacting the manifesto? Labour’s pledges and the reality of a hung parliament

professor_hazell_2000x2500_1.jpgmeg_russell_2000x2500.jpgMedia coverage in this election has been dominated by the Conservatives and Labour, and their competing policy plans. But a key difference between the parties is that, while a Conservative majority government is clearly possible based on the polls, a Labour majority government is not. Hence a Labour-led government would need to negotiate its policy with other parties, which would soften its stance. Robert Hazell and Meg Russell reflect on the lack of coverage of these questions, and what a Labour-led government would actually look like – in terms of personalities, policies and style.

Consistent opinion poll evidence during the general election campaign suggests that there are two possible outcomes: a majority Conservative government led by Boris Johnson, or a hung parliament. In the event of the latter, Johnson might still remain Prime Minister, but he has few allies – even having alienated Northern Ireland’s DUP. So a hung parliament might well result in a government led by Labour, even if the Conservatives are the largest party. But one thing is clear: nobody is really expecting a Labour majority government. 

Consequently, particularly as the polls have failed to shift into majority Labour government territory during the campaign, it is strange that so little attention has been given to the question of what a Labour-led government might actually deliver in policy terms. To navigate policy through a hung parliament this would need to be accepted by other parties. In some areas – notably the commitment to a referendum on Brexit – the parties agree; but in other areas there may be less agreement. So whilst significant attention has been paid to the radicalism of Labour’s manifesto, a hung parliament – which might lead to a minority Labour government, or less likely (given statements from the Liberal Democrats and SNP) a formal coalition – would inevitably result in some dilution. As noted in the Constitution Unit’s 2009 report on minority government, hung parliaments ‘[entail] a greater degree of compromise and concession than leaders of governments at Westminster are used to’.

Thus focus on Labour’s economic policy – such as its tax or nationalisation plans – might usefully have been tempered by journalists asking questions of the other parties about the extent to which they would accept such plans, or how they might be softened as a result of negotiation. In a country where hung parliaments are more frequent, debate about the likely compromises between parties would be far more upfront during the campaign. Instead, the UK’s legacy of single-party majority government (notwithstanding the fact that this situation has applied for just two of the last nine years) has led to parties and journalists alike avoiding such questions. This, in turn, risks leaving the public ill-informed about the real prospects post-election. Continue reading

Choosing a new voting method for British Columbia: the 2018 referendum and the choices on offer

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As British Columbia prepares for a referendum on the voting method for provincial elections, Jameson Quinn (in the first of two posts on the subject) discusses the historical background to the vote, analyses the options on the ballot, and sets out the rules the campaigns will have to follow. 

From October 22nd to November 30th, British Columbia (BC) will be carrying out a vote-by-mail referendum on changing the voting method for provincial elections from choose-one (aka First Past the Post, or FPTP) to some form of proportional representation (which I’ll abbreviate as pro-rep, since the initialism PR has too many other meanings to work well in the age of Google).

In this post, I’ll discuss the context and structure of this referendum, from a largely neutral point of view. I’ll save opinionated advocacy for a separate follow-up post.

This will be the third time the province votes on such a change. The first of BC’s voting reform referendums traces its roots back to the 1996 provincial election. Then, the NDP (center-left New Democratic Party) got 52% of seats despite having 39% of votes, less than the Liberals’ 42% (the province’s rightmost major party). This ‘wrong winner’ election (the province’s first since 1954) motivated Liberals to put voting reform (without specifics) on their platform. Continue reading

Reforming the Welsh Assembly: how do you choose an electoral system?

A nine-month inquiry by a specially convened expert panel has culminated today in the publication of a report that sets out the case for a substantial increase in the size of the Welsh Assembly. In this post, Constitution Unit Deputy Director and panel member Alan Renwick offers a personal reflection on the inquiry and its findings. He focuses particularly on the aspect of the Panel’s remit that is closest to his own research: the appropriate electoral system for an enlarged chamber.

The Expert Panel on Assembly Electoral Reform has today published its report. Set up last February by the Presiding Officer of the Welsh Assembly, the Panel was charged with investigating and making recommendations on three issues: the number of members that the Assembly needs to perform its role effectively; the electoral system through which it is elected; and the minimum voting age for Assembly elections. The Panel’s work fits into a wider agenda of Assembly reform – including a proposal to rename it the Welsh Parliament – to ensure it can exercise effectively its increasing powers and responsibilities.

Core recommendations

The Panel’s main recommendation is that the number of Assembly members should rise from the present 60 at least to 80, and preferably closer to 90. We examined compelling evidence that this change is essential – however difficult it may be politically – if the Assembly is to remain able to perform its functions properly.

Increasing the size of the Assembly in this way inevitably requires some change in the electoral system. We concluded that the simplest possible change – retaining the existing Mixed-Member Proportional (MMP) electoral system (also somewhat misleadingly known as the Additional Member System, or AMS) and increasing the number of list seats – would be defensible, but not optimal. Most crucially, it would make any increase in the size of the Assembly beyond 80 members – the very bottom of the range that we think necessary – unfeasible in 2021. Rather, the Panel recommends that, if the Assembly adopts gender quotas, the optimal system would be the Single Transferable Vote (STV). If the Assembly does not accept gender quotas (or concludes that it lacks the power to enact them – there is some legal uncertainty in this area), the best option would be a Flexible List system of proportional representation.

Regarding the voting age, meanwhile, the Panel comes down firmly in favour of a reduction to 16, accompanied by measures to ensure that young people are properly taught in schools and other places of learning about politics, including about the choices available at elections and beyond.

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The Italian Constitutional Court judgement on the ‘Italicum’ electoral law: another new reform for Italy?

Last month the Italian Constitutional Court declared several crucial elements of the ‘Italicum’ electoral system for the Chamber of Deputies, approved by parliament in 2015, to be unconstitutional. Further electoral reform is therefore now being discussed, ahead of an election that must take place by next spring at the latest. Roberta Damiani explains the background to the judgement and its implications.

On 25 January the Italian Constitutional Court announced its judgement on the latest electoral law for the lower chamber of Parliament (the Chamber of Deputies), promulgated by Matteo Renzi’s government and approved in 2015, known as the ‘Italicum’. While retaining some of its features, the Court declared that several of the Italicum’s most crucial elements are unconstitutional, and modified them accordingly. It effectively turned what would have been a majoritarian system into a proportional one.

Before examining this judgement in detail, we need to understand how it fitted into broader debates about the appropriate constitutional structure for Italy.

The Constitution of the Italian Republic, founded in 1946 in the wake of the experience of fascism, was based on the principle that power should be dispersed, in order to prevent the rise of another dictatorship. This was achieved through the creation of two coequal parliamentary chambers: not only did both have to agree all legislation; in addition, either could dismiss the government through a vote of no confidence. Some level of governability was achieved only by the fact that both chambers were directly elected through proportional representation: their compositions were almost identical, such that they rarely disagreed sharply with each other.

Nevertheless, by the 1980s there was a widespread perception that the dispersion of power had gone too far. The need for fundamental reforms became particularly acute after a major corruption scandal, known as ‘Tangentopoli’, that was uncovered in 1992 and led to an almost complete breakdown of the party system. In response, a new electoral system – the so-called ‘Mattarellum’ – was introduced in 1993, which reduced electoral proportionality in both chambers.

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