What Would a Scottish Constitution Look Like?

Last week, Stephen Tierney posted an excellent evaluation of the White Paper released by the Scottish Government on “Scotland’s Future”.  In his evaluation, Professor Tierney addresses three issues related to the Government’s repeated commitment to write a constitution should Scotland become independent:  1) when will it be finished? 2) what will be in it? and 3) what process will be used to make it?  Much of his post is on the process of writing a Scottish constitution, so I want to make just a couple of additional observations about the likely contents of a Scottish constitution.  My remarks are based on a report that I wrote last spring with my collaborators on the Comparative Constitutions Project.

First, very little is likely to change in Scotland as a result of drafting a constitution.  As we state in our report:

Almost all countries have institutions that pre-date their entrance into the modern state system and the writing of their first constitution.  Regardless of whether a state’s primordial institutions were purely informal rules, as in the earliest states, or colonial structures, they will likely survive in some form.  Institutions inevitably favor some individuals’ interests over others, so those who benefit from the presence of some institution have a strong incentive to fight for the continued existence of that institution during constitutional drafting.  Factors such as colonial heritage, legal origin, religion, ethnic fractionalization, language, and region are strong predictors of pre-state institutions and, as a result, the content of subsequent constitutional systems. (p. 3)

If Scotland becomes independent, regardless of whether it writes a constitution or not, the institutions established by the Scotland Act (1998) are likely to live on and to maintain the same structure and powers that they have today.  As a result, ordinary politics in an independent Scotland are likely to look almost identical to ordinary politics in Scotland today.

I am not suggesting that Scotland should not write a constitution.  The act of writing a constitution has value beyond the contents of the document.  Writing a constitution can help build legitimacy for the new Scottish state and, depending on the process in which it is drafted and promulgated, may even help to unify the newly independent nation.  By establishing a hierarchical system of law, a constitution may even further entrench democracy and the rule of law in Scotland.  What I am suggesting is that, regardless of any positive externalities that Scotland might reap from writing a constitution, the contents of that document are largely predetermined.

Second, I am sceptical of the Government’s promise to entrench socioeconomic rights in the Scottish constitution.  Socioeconomic rights are easy to promise but hard to deliver.  If the Government really intends to deliver on the socioeconomic rights that it has promised, then it should promise to make them justiciable, meaning that the Courts in Scotland will be able to enforce them, and explain how it intends to pay for them.  The Government has done neither.  As a result, I think it is more likely that there will be socioeconomic rights entrenched in the Scottish constitution but that those rights will be aspirational, giving the Government lots of flexibility when deciding whether or not to adhere to those promises.

ON THE WRONG WAY TO ‘WRIGHT’ THE COMMONS – AND A SUGGESTED ‘WRIGHT’ WAY

The PCRC Report

Surprise, surprise.  The Political and Constitutional Reform Committee’s review of the 2009 ‘Wright Committee’ package of parliamentary reforms, published on July 18, endorses and continues the traditional incremental, pragmatic ad hoc approach to ‘strengthening’ the House of Commons.  It welcomes the various ‘Wright reforms’ that have been implemented in some form, and calls for the implementation of those which are still outstanding.  These include old favourites of the ‘Mark 2’ conventional parliamentary reform agenda, like select committee elections, business committees (backbench and wider), petitions and better legislative scrutiny.  As has now become almost a parliamentary convention, the report concludes with a call for its proposals to be implemented quickly to, in the words of the Committee’s press release, “maintain the momentum for reform.”  This was reinforced during the PCRC Chair’s statement to the House that day (immediately after the usual weekly ‘Business Questions’ farce where our representatives beg the Government to allow them to debate various important issues, including procedural changes discussed in the PCRC Report!)

Need for a broader approach to reform

All well and good, and no doubt the coterie of reform-minded parliamentarians, academics and commentators will welcome this further predictable reinforcement of their broad consensus.  But the report does nothing to tackle the fundamentals of radical change in the Commons, especially the need to provide a comprehensive principled framework for the operation of an effective and autonomous parliamentary body, one that can set its own parameters for doing its core democratic tasks, such as scrutinising government, and representing the public who elected it.

Ad hoc reform – whether at the initiative of ministers, academics or parliamentary committees – will do no more than, at best, improve matters at the margins.  Ministers, with the power of initiative over parliamentary business and time in the House, remain in overall control of any such change process.  Just look at the early paragraphs of the Wright Report itself on the delays by the Government in allowing it to be set up; what that report called ”the impotence of the House to find time to debate and decide its own internal affairs.”  When changes are made, the Executive can nobble them to suit its own interests – as with the disruption to the Backbench Business Committee and petitions proposals by unilaterally inserting its own e-petitions system into the mix.

A narrow focus on piecemeal procedural reform misses the two main areas of change required – the institutional and the cultural.  Both reports talk the talk on these essential aspects, but focus on procedural/structural changes, which, in the Wright Report’s own words, “we hope … will lead gradually to a change of culture.” The new report worries away at the conflicting evidence from its witnesses about whether Reform A or Reform B has ‘changed the culture’ or not.

When will it be realised at Westminster that this is the wrong way to go about meaningful and beneficial change?  Piecemeal reform cannot fundamentally change the culture of the Commons or sufficiently rebalance the Executive-Parliamentary relationship.  There needs to be a serious examination of what a modern parliament is for and about, and how – as the central democratic institution – it can be designed to operate effectively as the unique forum where the various actors like the Executive, the public and others come together in our governance.  The trend towards more ‘direct democracy’ via technological innovations and rise in public expectations makes this all the more urgent.  Without needing to resort to a US-style ‘separation of powers’ model, the ‘Westminster Model’ has the potential to provide a framework for democratic, accountable and effective governance, which appropriately involves the public as well as politicians and officials.  There are variants of the traditional Model around the world – even within the UK! – which deserve more than cursory examination (of the ‘having popped up to Holyrood for a day or so, I can say that procedure X or process Y does/does not work, and would/would not work at Westminster’ variety).

If the Commons developed a culture of institutional autonomy and a strong corporate identity that could, to some degree, challenge the dominance of party and of the closed Government-Opposition battle, and if this were based on coherent, comprehensive and robust principles against which any reform proposal or parliamentary action or conduct could be measured, then particular processes, rules and procedural reforms could be developed to flesh out that framework in a logical, consistent way, able to withstand knee-jerk ‘something must be done’ ministerial reactions or hysterical moralising from the media and others.

Remember the Wright Committee was set up in the wake of the 2009 expenses scandal – a perfect example of the wrong sort of culture – not because of any particularly compelling demands for procedural change.  Similarly, this new report comes out a time when the focus is not on procedural change but on ethical issues like lobbying or ‘ethicalised’ issues like MPs’ pay and expenses.  Reforming select or legislative committees or the like will not be seen as obvious ways of addressing these supposedly priority issues.  Only changing the culture and the constitutional ‘place’ of the Commons can do both that and the necessary process stuff.

A ‘Wright way forward?

How would such a comprehensive examination of parliamentary reform – encompassing the institutional, the procedural and the cultural – be constructed?  Well, how about starting with the Commons setting up some mechanism itself to monitor and, where appropriate, champion reform?  Rather than the usual impotent promises from select committees that they will revisit progress, or that they hope their successors will, what is stopping the House authorities, especially the Speaker and/or the HC Commission, setting something up themselves, distinct from conventional select committees, to test and contextualise reform proposals?

A cursory look at the Westminster website reveals an explosion in the number of bodies and groups established (by SOs, statute, Speaker or Commission etc.) to deal with particular aspects of House administration and activity.  Some even have non-MPs as members.  Indeed one of the problems with the current arrangements is that, not only do many of these important committees operate in virtual practical anonymity (despite varying degrees of online transparency), they also appear to exist within a rather byzantine governance ‘system’, (see the House ‘organogram’). What, if any, is the relationship between, say, the Speaker’s Advisory Council on Public Engagement (SACPE, with no current MPs on its membership);  Management Board (with 2 external members as well as the departmental heads); Administration Estimate Audit Committee (with 3 MPs and 3 external members); Finance & Services Committee; Administration Committee; HC Commission; Office of the Chief Executive; Speaker’s Office (interestingly, of these last three, only the Speaker’s Office appears to have no direct public contact details, with a request that enquirers contact the HC Information Office) etc etc?

Whatever impact this governance structure may have on the normal institutional running of the House, it seems hardly likely to foster a comprehensive, holistic approach to monitoring and responding to – never mind, initiating or evaluating – parliamentary reform policies or proposals, whether they come from the Government, external academics and organisations or internally via the Procedure Committee, Liaison Committee, PCRC etc (including those in the Lords, especially where there are, as is often the case, cross-House or Parliament-wide aspects)?  For example, is any procedural reform routinely ‘public engagement assessed’, eg by SACPE? Which of these bodies have an input into the work of IPSA (either directly or via yet another internal body, the Speaker’s Committee for IPSA, with a mixed membership of MPs and lay people) whose resourcing powers and functions are so crucial to the working of the House and its members, not least in relation to the public?

All this suggests that there is a need for some House-owned group to monitor ‘parliamentary reform’ in all its procedural, institutional and other aspects, with a broad overview remit to consider the wider implications of particular changes, or proposals for change, of procedure, policy, structure or operation, including any unintended or unexpected consequences for, as appropriate, public engagement, procedural effectiveness and efficiency and so on.  There is sufficient precedent for such a body to be set up internally, especially by or on behalf of the Speaker, and for its membership not to be confined to MPs or Commons officials. 

It would need some set of principles and objectives to measure any proposals against, similar in function and purpose to, say, the Scottish Parliament’s ‘founding principles’.  Whether this was, for example a variant of the existing published Strategy for the House of Commons Service – probably the nearest thing the House has to such a set of overarching principles of its role and purpose – or something newly drafted in some way, would be a matter for consideration.

If all the self-proclaimed reformers around, including the Speaker and the Chair of the PCRC, really want to ensure continuing meaningful improvement for the Commons, in line with the ambitious rhetoric of the Strategy, then this proposal for a dedicated group within the House may be something they should think about – and quickly.

MAKING TIME TO REFORM PARLIAMENTARY TIME

14th May 2013

All this talk of draft bills and Loyal Address amendments about an EU referendum raises several vital democratic issues of parliamentary process, not least that of the ways in which MPs, individually or collectively, can initiate debate or legislation on important topics of the moment.  At its heart, as always, lurks the core problem of Government control of House of Commons business and time.

Supporters of the ‘conventional wisdom’ parliamentary reform agenda over the last half century have justified the pace and route of reform as being incremental, evolutionary and practical, being the only way to achieve change in the face of the Government’s dominant position in the House of Commons.  Those more sceptical may choose to describe it more negatively, as being ad hoc, piecemeal, reactive, incoherent and devoid of any consistent guiding principle.

Some changes come not directly from demands from MPs or even the public, but from the initiative of the Government itself, and these, though dressed up as parliamentary reform to strengthen Parliament, often result in making life easier for Ministers.  Richard Crossman in the 1960s said there was a difference between parliamentary reform and modernisation, when he was distinguishing practical updating in infrastructure and facilities from procedural changes.  In the modern context, too often ‘modernisation’ has been the catchword for changes which assist the Government, or which can be absorbed by Ministers without serious inconvenience, whereas genuine ‘reform’, to make Parliament itself more powerful and effective, especially in relation to the Executive, has to take a back seat, awaiting Government permission and, worse, facilitation.

So it is with ‘parliamentary time’ and the control and order of business.  There have been some changes, especially to the scope for debate not initiated by Ministers, such as Westminster Hall.  There has been the innovation of the Backbench Business Committee, but that has been hobbled by the albatross of the Government’s e-petition wheeze around its shoulders.  Some ever-optimistic souls are still waiting in hope for the emergence of Government proposals for a ‘House Business Committee’ of some sort, originally promised for this year.

But we also wait in vain for fundamental change to issues like the current antiquated arrangements for backbench legislative initiative.  How different would the current ‘discussions’ of EU referendum legislation opportunities be if we didn’t have to rely on the various existing ‘private members bill’ processes, with its random ballot and limited scope for genuine progress of controversial bills, but if there were clear and efficient arrangements for the allocation of time for all types of parliamentary business, including scope for debates and legislative initiative by non-Governmental sources, such as backbenchers – getting rid of the unhelpful term ‘private member’ would be a small but symbolic reform – and committees.

The current confused mess – which may, in many ways, be helpful to Ministers – further undermines the Commons’ reputation with the public as an effective, responsive and accountable representative assembly, able to address coherently important issues of public interest.  Time for real, principled and all-embracing reform!

PCRC: all this aggravation ain’t satisfactioning me

The Political and Constitutional Reform Committee has published its report on the lessons of the 2010 general election government formation process. The verdict: it’s a little bit unfocused. There’s a lot covered, but not really in the depth that one would like. I don’t feel the need to cover all the points, but here are a few.

The Committee argued that the government formation process went generally well, giving grudging acknowledgment to the draft elections chapter. The PCRC noted the Manual was a “crucial explanatory document” (para 8) but are clearly saving their critical comments* for their current inquiry. The Committee discussed the role of the PM in some detail—again, perhaps in preparation for another inquiry,** reflecting the Chairman’s concern about executive government. In particular, the Committee agreed that the incumbent Prime Minister does have the first opportunity to continue in office and form an administration. Gordon Brown was right to resign when he did, but there needed to be clarity on when an incumbent PM should resign—when there was an alternative in the form of a person, or a government? In 2010, it appeared to be the former.

The Committee wavered on the idea of an investiture vote. As with life, so with parliament: in theory, the idea is a good one; the problem is practice. When would an investiture vote be held, and could it be held sooner than two weeks after the election, which would mean a delay of two weeks before the new govt could take up office?

The Committee was critical of the status of the Coalition Agreement(s), as it had not been approved by the electorate. This suggested two things: first, pre-legislative scrutiny and proper consultation became more important; and second, the Committee thought that peers need not feel bound to apply the Salisbury-Addison convention (which very crudely states that the Lords should not obstruct any bills which were on the government’s election manifesto). The first proposition yes, but the second—adventurous. But perhaps it shouldn’t be, considering the composition of the PCRC. At least two of the regular Conservative members are quite critical of the formation of the Coalition; and there are at least three regular Labour members.

One comment bugged me. It’s a throwaway passage (para 90):

During our inquiry we and our witnesses have raised questions about not only the content of the Manual but its use and constitutional status. For instance, in countries internationally, arrangements for government transitions might be expected to be provided for in a codified constitution, an entity that the UK lacks.

Not really. Actually very few countries set out the government formation process in their codified constitutions. Take a look at the constitutions of the US, Canada, Australia and Germany. In fact, most*** countries do not set out the government formation process in their constitution. In Westminster countries, the mechanics of government formation are more often spelt out in executive guidance documents.

* And they are not alone in this.

** Yes, the PCRC is holding a lot of inquiries. A common phrase in the report is “we will return….”. Another is “(un)/codified constitution”.

***Alright, not every country. Sweden does it. But it’s Sweden. Jokes aside, one reason the Swedes probably do it is because they have proportional representation, making hung parliaments**** common.

**** Swedes don’t call them hung parliaments, however.

The Cabinet Manual—the PCRC strikes back

Yep—the Cabinet Manual again. Today Professor Hazell appeared before the Political and Constitutional Reform Committee along with Iain McLean and Lord Hennessy of Nymphfield to talk about the constitutional implications of the Manual. A fun time was had by all, although the session was far too long at two hours. Lord Hennessy really is the poet of constitutional history—he talked of the “magical mystery tour” of the Manual, the chapter on Cabinet procedure as the “herbivores’ charter” and the “velcro of [his] fading memory”.

The experts all agreed: the Manual was a great step forward. Here was greater transparency, which could only be a Good Thing. The PCRC, however, were disturbed by the Manual. Was it in fact a constitution? It was not, was the collective answer from the experts, although it might be considered constitutional. There seemed to be some confusion on the part of the PCRC about the status of the Manual (which Sir Gus O’Donnell has insisted is not law).

The Manual’s content, argued Graham Allen MP (PCRC Chairman) and Eleanor Laing MP, was not merely limited to the Executive but involved Parliament as well. So the Manual should be subject to parliamentary consent. They grilled the experts, and particularly Robert Hazell, about this. Hazell was perhaps the most executive-minded of the experts, insisting the Manual was for the Executive—it was more in the nature of an operating manual. Lord Hennessy thought that Parliament could give the Manual greater legitimacy. Only Iain McLean explicitly shared the PCRC’s concerns. But all thought it was better to have something published than to engage in uninformed speculation about the Executive.

Most of the hearing was devoted to the general legitimacy of the Manual—which seemed reduced to the elections chapter (note the Manual actually consists of 11 chapters and a rather curious introduction). There was some discussion about Cabinet procedure, and how the coalition and its programme of political and constitutional reform might impact on the content. Allen liked Lord Hennessy’s idea of an annual review of the Manual.

It’s unclear if this is to be a once-off hearing or not. Will the Cabinet Secretary Sir Gus O’Donnell appear, since he already has appeared once before the PCRC to talk about the Manual? To what extent will the Cabinet Office and Coalition Government take into account legitimate criticisms made in the consultation process? And instead of examining ‘the big picture’ as the PCRC have, will any of the other select committees actually examine the detail contained in the draft Manual? I hope so.