The Perils of Lords Reform: interview with Mark Harper and Meg Russell

Alex Stevenson’s piece from politics.co.uk

The coalition’s plans for an elected second chamber are well underway – but can they be turned into reality?

Alex Stevenson speaks to constitutional reform minister Mark Harper about his plans for Lords reform, addressing opposition suspicions of partisan motives and exploring the coalition’s approach to one of the most elusive reforms of all.

Expert analysis of the state of play and how realistic the minister’s aspirations are is provided by Dr Meg Russell who as deputy director of UCL’s Constitution Unit is widely regarded as the leading academic expert on Lords reform.

Podcast available at:

A Bad Omen for Ministers

Mark D’Arcy’s BBC article citing our research on Lords Defeats

http://www.bbc.co.uk/news/uk-politics-16708362

Last night’s well-telegraphed government defeat in the Lords, on the proposed household benefit cap in the Welfare Reform Bill, is a bad omen for ministers as they contemplate the forthcoming orgy of detailed legislating in the Upper House.

This is the 29th defeat inflicted on ministers by their lordships (according to this invaluable site run by the UCL Constitution Unit) and there seems a growing prospect of many more before the Parliamentary year is out. Peers have one more day of report stage debate on that bill, but then it’s the Health and Social Care Bill, the Legal Aid, Sentencing and Punishment of Offenders Bill and the Scotland Bill – all bills which where different groups of peers, approaching the legislation from different angles, plan pitched battles.

The first point to note is that this was a defeat inflicted primarily because Lib Dem peers rebelled or abstained – their normally solid voting bloc split into 39 voting with the government, 26 against and 26 not voting. Labour and the Conservatives both managed a respectable turnout of their peers – each group voting the party line, with very similar numbers of non-voters (67 Conservative peers and 64 Labour did not vote).

And the crossbenchers, often a key factor in government defeats, split more or less evenly on this occasion, with 41 voting with the government and 38 against. Five Bishops and a sprinkling of “others” voted against the government as well.

The voting figures reflect Labour’s numbers advantage – 239 peers, compared to the Conservatives’ 219. When the Conservatives and the 91 Lib Dems combine the Coalition can normally muster a comfortable majority – although it can be trumped by the 187 crossbenchers, on the rare occasions when they all or mostly vote in one direction.

Last night the Lib Dem dissidents included several eminent figures – former leader Lord Ashdown, SDP founder Lady Williams, former SDP leader Lord Maclennan and the former Chair of the Social Security Select Committee (as it then was) Lord Kirkwood. More humble figures rebel with more confidence when they are following such party elders into the lobbies. And, as we know from the Commons, those who rebel once become far more likely to repeat the trick.

So the government’s prospects for a whole flotilla of major bills now depends on the Lib Dem whips’ ability to re-assert party discipline – and some senior figures seem quite content at what one called “last night’s controlled detonation”. But the other factor is the possibility of a big net vote against the government by crossbenchers – a distinct possibility when the big votes come at report stage on the Legal Aid Bill and the Health and Social Care Bill. That could result in many more defeats even when the Lib Dems don’t split.

More information:

Answering the unanswerable question: the UK Government’s commission on the West Lothian question

This is the text of my article in today’s Scotsman about the UK Government’s ‘Commission on the consequences of devolution for the House of Commons’, announced on Tuesday.  The Commons written statement announcing the Commission can be found here.  There’s also news coverage of the Commission from the Guardian here and the Western Mail here (both quoting me), and the Scotsman here.  The article, slightly cut for publication, can also be found on the Scotsman‘s website here.

The UK Government’s announcement of its Commission on the West Lothian question is an attempt to resolve an insoluble problem.  The West Lothian question – the anomaly that Scottish MPs can vote on matters like health or education that affect England, but English ones cannot vote on similar matters for Scotland as they are devolved – is a logical consequence of asymmetric devolution.  If all parts of the UK had devolution, it would not arise.  Because Scotland elects predominately Labour MPs at Westminster, and few if any Conservatives, this constitutional anomaly gets a lot of political air.

Conservative MPs feel a strong sense of grievance about the question, which also has resonance with the general public in England.  The anomaly is not just a theoretical problem; Scottish MPs accounted for the Labour UK government’s majority on key votes that brought in ‘top-up’ higher education fees in England, and created foundation hospitals.  If Scottish Labour MPs hadn’t been loyal to the party whip when some of their English colleagues rebelled, these policies would not have reached the statute book.  More generally, Scottish MPs (being free of constituency pressures about ‘English’ issues) tend to be more obedient to the party line than English ones. Conservatives see Scotland as a land of Labour lobby-fodder, skewing the electoral system even further against them.  The Tory party has fought all the post-devolution UK elections with commitments to some form of ‘English votes for English laws’ in their manifestoes.  That commitment explains why we have this commission; Conservative policy may have been clear but it is not shared by the Liberal Democrats.

Sorting out the West Lothian question is easier said than done, though.  There are three basic solutions to the problem.  One is an English Parliament, within a federal structure for the United Kingdom.  However, that is problematic if the goal is to maintain the Union, as so unbalanced a union (England is 85 per cent of the UK’s population) would not be stable and would probably not be sustainable.  No similarly unbalanced federal system has lasted more than a few years.  The second option is the ‘Stormont discount’ – reducing the number of MPs from Scotland, Wales and Northern Ireland, as happened for Northern Ireland between 1922 and 1972.  The problem with that is that it means Scotland, Wales and Northern Ireland have a reduced say on matters like health in England – but their say on non-devolved matters like defence or foreign affairs is also reduced.  The Stormont discount is a blunt instrument to solve complex problems.  The third option is ‘English votes for English laws’ or EVEL, as promoted by the Conservatives.  This is an ‘in and out’ solution; MPs would be eligible to take part in some votes but not others, depending on the constituency they represent.  It creates serious problems too; it would be very hard to implement, and creates problems of ‘governabiltiy’ if the party with an overall majority at Westminster doesn’t also have a majority of English seats.  That is a problem for Labour but not the Conservatives – Labour might be in a position to form a UK Government without a majority of English seats, but the Conservatives would not.

The practicalities of EVEL are pretty daunting too.  Westminster legislation commonly touches on a variety of parts of the UK; some clauses in a typical bill will relate only to England, others to England and Wales, or Great Britain, or England, Wales and Northern Ireland.  UK Government departments tend to use a bill as the vehicle for dealing with a range of problems, not just the main subjects of the bill.  Sorting out which provisions only affect England will be quite a challenge for those in charge of drafting legislation, forcing Whitehall to change deeply-ingrained habits.  Moreover, some legislation on devolved matters needs – under the Sewel convention – to be considered at Westminster too, so MPs from devolved governments should be entitled to vote on that.  It will also be a challenge for those responsible for legislation in Parliament, who will have to make sure that the right clauses are flagged in the right way, and only those MPs eligible vote or speak on them.  Even then, there is the question of finance.  While we have a system of financing devolved governments that allocates shares of changes in spending depending on what happens in England, any change in legislative arrangements raises the question of whether it is right to have devolved funding depend on decisions taken for purely English reasons in that way.

Although EVEL is fraught with problems, there is little reason to believe that it is an answer to the problem with wider appeal.  Even if it is the first step, it will not be the last.  Data from the Institute for Public Policy Research, due for publication next week, suggest a growing number of English voters are concerned about the ‘unfairness’ of the present arrangements and want something more than a limited change at Westminster.  What solution they might want – or how that might work – is less clear.  The case for an English Parliament has recently been taken up by UKIP, but still has little organised support.  England’s isolation from the debates about the relationships of the various governments in the UK is showing in that English confusion.  Altering Westminster procedures may be popular among Tory MPs, and appears to have much wider public support, but it does not provide a positive solution to the problems of representing England in a devolved and increasingly decentralised United Kingdom.

However, the Mackay Commission is weighted toward finding technical solutions to a narrowly defined problem.  The commission’s remit limits it to looking at how the House of Commons deals with legislation.  It therefore has limited scope to look at other, non-legislative aspects of how Parliament works, with issues affecting UK Government – or indeed to look at the role of the House of Lords.  (Such issues have also been kept out of the work of the Joint Committee on Lords Reform as well.)  Moreover, the commission has been set up as a body of independent experts to advise about solutions, not to re-define the problem.  Three of the commission’s six members have spent their working lives grappling with the legislative machinery of Westminster.  The key decisions remain to be taken by politicians after the commission has reported.  As its report is due in the next Westminster session (before May 2013), that probably means we reach decision time at some point in 2013-14.  Given growing concerns in England, though, this is unlikely to be able to tackle the issues that now need to be addressed.

Cameron may regret this penalty shoot-out

The SNP’s long game to independence has been up ended by the Prime Minister

David Cameron has hugely raised the stakes by announcing that he wants to hold a binding referendum on Scottish independence. By proposing that the timing should be brought forward and that Scottish voters be offered a straight choice between staying in or leaving the UK, he has transformed the long game being played by the SNP into a penalty shoot-out. Whether his intervention is in the interest of the country remains to be tested.

The SNP’s strategy has been a gradualist one, to build momentum slowly for independence and to hold the referendum at a time of its choosing, probably in 2014. This strategy was in part forced on it by the limited powers of Holyrood, which cannot declare Scottish independence: only Westminster can do that.

So the farthest Holyrood can go is to hold an advisory referendum, which would ask voters to authorise Scottish ministers to begin negotiations. In its 2007 White Paper the SNP proposed the following question: “The Scottish government should negotiate a settlement with the Government of the UK so that Scotland becomes an independent state.”

If the Scots vote “yes”, negotiations would begin on issues great and small, such as how to divide the national debt and North Sea oil revenues, nuclear bases on the Clyde and the sharing of defence capabilities, and Scotland’s membership of the EU. (Most international lawyers say that Scotland would have to reapply.) The division of Czechoslovakia in 1992 required 30 treaties and 12,000 legal agreements.

Once the negotiations had concluded and the terms had been approved by the two Parliaments, the next stage would be a further Scotland Act, whereby Westminster granted independence to Scotland on the agreed terms. We argued in Scottish Independence: A Practical Guide that this stage should be preceded by a second referendum, in which Scottish voters confirmed that they wanted independence on these terms.

However, the SNP has never accepted the need for a second referendum, stating that one is enough to give “sufficient clarity and confidence that the people wish Scotland to become an independent state”. With or without a second referendum, this is a leisurely timetable in which the Scottish government can gradually test the appetite for independence and then negotiate with the UK Government. The final vote and independence legislation would not happen until after 2015-16.

Mr Cameron has transformed that, by offering a decisive referendum in the next 18 months. He may want to achieve a similar effect to Canada’s Clarity Act 2000, which requires a clear answer to a clear question in any future secession referendum by Quebec. The Act specifies that a multi-option referendum is not allowed because it will confuse things. But it does not seek to impose a timetable.

The UK government might have been expected to let the Scottish Government make the running in the expectation that its advisory referendum would be defeated. But Mr Cameron has dramatically turned the tables. Now, however, the SNP might in turn decide to sit on its hands, decline the coalition’s offer and reserve the option to hold an advisory referendum in slower time. There are good democratic and deliberative reasons it could offer for doing so.

Mr Cameron’s new strategy is high- risk, for three reasons. First, the Scots risk being invited to make a hugely important decision on the basis of inadequate information. Second, there is nothing that Alex Salmond likes better than a political fight and while for him this is the only game in town, for Mr Cameron there are many other competing ones, from the eurozone to Iran. Third, Mr Cameron’s resolve may not be shared by his coalition partners, the Liberal Democrats.

But this is more than a game between two heavyweights. It is a battle for the future of the UK. What matters in the end is that the people whose future depends on it are given the time, clarity and facts to reach a wise and well-informed decision.

Professor Robert Hazell is director of the Constitution Unit at University College London

Article from the Times 10.01.12

The endgame for the Scotland bill

The Scotland bill, framed to implement the Coalition’s Programme for Government commitment to implement the recommendations of the Calman Commission, had its second reading in the House of Lords in October.  It has also been reconsidered by the Scottish Parliament during the autumn, following a first consideration in late 2010 and early 2011.  The Lords Committee stage has been put on hold pending its reconsideration at Holyrood. Following May’s election, the new Parliament has a very different composition to the old one.  Despite the conditional approval given to the bill by the old Parliament before the election and the wider demands of the SNP majority, the UK Government has declined to change the bill.  

The report of the second Holyrood  committee considering the bill was published last week.  This comment on it by Alan Trench appeared in The Scotsman on Friday 16 December (it’s also on the paper’s website here). 

There’s further discussion of the report and the bill generally on Alan’s blog, Devolution Matters.

WITH the Scotland Bill committee’s report, the constitutional politics surrounding the bill start to enter the endgame.

The committee seeks a raft of changes to the bill. The trickiest for the UK government is recommendation 6, that there be “joint approval” of the introduction of the income tax power and related cut in the block grant. This has been a key demand of the Scottish Government, but the UK government has failed to spell out how the cut will be made in the two-and-a-half years since the Calman Commission’s report was published.

Both the Secretary of State and Advocate General for Scotland have signalled it is unacceptable. Michael Moore has said he should be trusted to have Scotland’s best interests in mind when the effect of the new tax power on the block grant is calculated. However, without any clear statement of UK government policy on how the cut will be made (which is simple) or adjusted in subsequent years (which isn’t), it would be an imprudent government or parliament that simply took another’s word on an issue of such importance.

If the parliament insists on this provision – fairly likely, as the SNP have put much emphasis on it – one of five things may happen. The UK government could accede to the request and amend the bill (though that will make for a choppier passage in the House of Lords). If London doesn’t amend the bill, either the parliament will pull back and approve it anyway, or Holyrood will reaffirm its earlier position and vote against the bill. If Holyrood approves the bill, it can pass on to the statute book.

If Holyrood doesn’t approve the bill, either UK will drop it, or Westminster will pass it, despite the Sewel convention saying that such legislation “normally” requires devolved approval. That would put the Scottish Parliament in much the same constitutional position as an English local authority.

So the ball is in London’s court, but it has to remember it is making the pro-Union pitch that devolution works for Scotland. The SNP, on the other hand, know that they can use a narrow approach from Westminster, or the outright failure of the bill, to strengthen the case for independence.

How London responds to this move at Holyrood is going to be interesting to watch. The UK government’s position is much trickier than it may seem.

FOI and local government in 2010: The experience of local authorities in England

The Constitution Unit has just published its report on English local authorities’ experiences complying with the Freedom of Information Act 2000 and the Environmental Information Regulations (EIRs) throughout 2010.  The report aimed to gain an understanding of the numbers and types of requests local authorities received throughout 2010, the problems they encountered with compliance and their thoughts about different aspects of FOI.  The study used a web-based survey of local authorities’ FOI practitioners.  Of the 353 local authorities in England, practitioners from 104 (or 29%) gave substantive responses to the survey.  Key findings include:

  • Based on answers given by the 104 participating practitioners, the total estimated number of FOI/EIR requests received by local authorities in 2010 is 197,737. This is 33,229 (or 20%) more requests than we estimate were made in 2009.
  • A total cost of £31.6 million (an average of £159.80 per request) was estimated based on multiplying the average number of hours spent on a request, the total number of requests and the £25 per hour standard rate in dealing with an FOI request. Cost has therefore steadily fallen since 2008, showing an increase in efficiency in dealing with requests. It should however be noted that it is relatively difficult to generate an accurate estimate considering both the comparatively small sample and wide spread around the average time spent on a request.  Interestingly, some local authorities (such as Rotherham Borough Council) have taken to including the cost of handling a particular request upon supplying the information to the requester.
  • All council types improved their performance with regard to answering requests within the 20 day limit, despite the fact that requests are increasing in number.
  • With regard to amount of information disclosed following a request, slightly more were answered in full in 2010 (79.1%) compared to 2009 (78%).  However there are wide differences amongst council types.  In line with this, the number of requests where no information has been released has decreased, though again, there are wide differences across council types.
  • Opinion was divided over the impact of the £500 spending publication rule introduced by the coalition government.

“Extra work and virtually no benefits – for residents, businesses or the Council!”

“It’s a springboard to further regular disclosures, with a bit of luck.”

  • Financial information continues to be the most frequently requested, as has been the case since 2008.
  • According to respondents, the general public generate most requests, contradicting Tony Blair’s publicised regret that FOI is used not by “the people”, but predominantly by journalists.  However, it is difficult to be certain of exactly who is making use of FOI as most councils fail to record this.
  • Respondents identified a few main problems with compliance: requests, requesters, lack of resources, and the cooperation of management or service departments.  This is a similar list to that of the 2009 report.

“Increased number of requests with less resources available to deal with them”

“Receiving information from holders and communication of requests from departments”

  • When asked about positive effects of the Act, the most frequently given answers were: the development of more open, transparent, and accountable authority, improvements to records management, and general improvements to the organisation.

You can read the full report here.