Mark Harper: the Quiet Reformer

Interview with Sam Macrory, House Magazine

With constitutional reform generally more a Lib Dem than Tory pursuit, the Conservative minister overseeing it finds himself at the coalface of coalition politics, hears Sam Macrory.

‘Nick Clegg’s babysitter’. As job descriptions go – and that one came direct from a Conservative MP – it’s neither glamorous nor appetising, but nor is it entirely inaccurate. For when Mark Harper was asked to work alongside the Liberal Democrat deputy prime minister and steer through a series of controversial reforms to the constitution, he took on the challenge of convincing hostile colleagues on the merits of both a referendum on voting reform and a radical makeover of the House of Lords.

But while Clegg’s grand plans made headlines, with limited attention Harper has also managed to take Lib Dems with him in agreeing to slash the number of parliamentary constituencies by 50, as well as passing radical legislation to ensure fixed term Parliaments.

“Mark Harper has played his hand brilliantly. He has been completely loyal to the coalition and Nick Clegg, and steered through the Commons measures which were deeply unpopular with his Conservative colleagues, without appearing to be a Lib Dem stooge”, says constitutional expert Robert Hazell. “He has also quietly pushed ahead the Conservative constitutional reform agenda, and at the end of this Parliament it seems likely that more Conservative reforms will have been implemented than Lib Dem ones’.

The more unforgiving parliamentary observer might suggest that Harper’s success is due to his unshowy, rather workmanlike style, but others admire the calm way in which he removes the sting from potentially toxic subjects. Or perhaps, as Hazell has argued, the Conservative Party are closet constitutional reformers.

“That’s interesting. We don’t talk about it as much or have it as a separate strand of policy thinking,” Harper suggests, from his sizeable, if spartan, Cabinet Office quarters. “We never really put it in a box called constitutional reform, but whether that’s to do with the makeup of different parties, I don’t know.”

The Lib Dem presence has certainly, raised the profile of constitutional reform, however, which Harper credits to “the fact that the deputy prime minister has overall responsibility and it is all stacked in one place”.

Read the full article on epolitix.com

£500 Online Publication: What’s Going On?

David Cameron has promised a ‘transparency revolution’ based upon Open Data and online publication. As part of this, since January 2011 all local authorities in England (with one exception) have begun publishing online details of all their spending over £500. What is this supposed to achieve? According to the government, many things. Publishing online will make local authorities more transparent, less wasteful and will help the public understand where its money goes. It will also give developers the opportunity to create new applications. Most of all, it will give power back to the people, enabling an army of armchair auditors to hold government to account.

What do we know? One survey of 168 local authorities found that 17 per cent felt the online publication had been ‘very successful’, 13 per cent felt it had been ‘somewhat’ successful, 17 per cent ‘good in theory but not in practice’ and 23 per cent did not know. So what of the benefits? 38 per cent felt it had increased transparency, 25 per cent accountability and 13 per cent trust. Only 3 per cent felt it increased participation or social and commercial value.

Our own study found similar variation. Some local authorities had experienced very little interest in the new data with one recording ‘180 visits and one FOI request’ in 3 months and another experiencing local media interest in ‘electricity and phone bills’ which had quickly ‘settled down’. Elsewhere there were higher levels of interest in the data, particularly from the local press and some ‘small use by trade unions’. Local media stories have highlighted odd spending on training, consultants and crematoria. Others pointed to internal benefits, with officials and politicians now able to better understand their own authority’s spending.

There has been, as of yet, little sign of the army of armchair auditors. In June Eric Pickles praised a group of bloggers who held to account the flagship Conservative authority over its contractual procedures. Other sites have sprung up with names such as ‘armchairs auditor’, and ‘reluctant armchair auditor’ but the latter wrote in the Guardian that the data was ‘not yet’ of good enough quality. There are difficulties around finding out who is accountable and knowing what mechanisms to use, whether to pass information to the media or the authority itself.

It has led to a growing number of new sites that help quickly and simply analyse the spending data, such as ‘Spotlight on Spend’ and ‘Openly Local’. The latter site is an open source site containing 168 local authorities’ spending data, attracting around a 1000 unique visitors a day, including businesses and local politicians. These sites allow you to quickly examine and compare authorities by payments, providers and make sit easy to benchmark. Many feel the future lies here.

It’s still very early days to say if it has succeeded or failed. The new online publication will make government more transparent and the parallel publication of salaries and contracts. It is unlikely to lead to very much ‘armchair auditing’ from the public, as most people won’t have the time or the patience to scroll through long excel sheets, but NGOs and journalists will find it useful. The area to watch will be the ‘local’ initiatives and hyper local sites. It is here, on their doorsteps, where the new information may make a real difference.

This article appeared in the Local Government Chronicle

When the supreme court won’t hear

Supreme court justices are caught up in a new age of accountability. In their judgments, they increasingly find themselves holding the government and other public bodies to account, as they decide more public law cases. On the other hand, they are often criticised as ‘unaccountable’ – an example being Michael Howard’s reaction to a court challenge to government cuts. In a similar vein, David Cameron said he was ‘appalled‘ by the court’s decision about the sex offenders register. The legitimacy of the court was also a factor in the Scottish government’s threat to withhold its funding after the decision overturning the verdict in a Scottish murder case.

Does this suggest that the supreme court has an accountability problem? In many ways, our top judges are more accountable than ever. True, they are not subject to ‘hard’ accountability. They do not have to answer for their decisions in front of political opponents, or lose their jobs if their decisions prove unpopular. They are subject instead to ‘soft’ or ‘narrative’ accountability that requires them to explain their judgments and the way the court conducts its business.

For our top judges, it has involved a big change, of practice and of culture. The law lords were tucked away inside the Palace of Westminster, with staff provided by parliament, no proper annual report or accounts, and a minimal website. The supreme court operates under the public gaze. Decisions are easily accessible on the court’s website, with summaries for those not legally qualified. The court is televised, with TV streaming hearings and judgments via the Sky News website. Criteria for appointment to the court include the ‘willingness to participate in the wider representational role of a justice’, by delivering lectures and talking to conferences. Some of the justices have featured in TV documentaries.

The chief executive’s annual report and accounts give an account to parliament and the public of its activities and how the court has spent its budget. ‘Soft’ accountability has fashioned a more transparent court that is much more energetic in giving an account of its judicial business and day-to-day operations, with 238,000 visitors to the court’s website last year.

But there are limits to the court’s quest for openness. The reasons for refusing permission to appeal to the court remain brief and formulaic. Yet leave to appeal matters, because two out of three applications are refused. Applications for leave are generally considered by a panel of three justices. Some practitioners have called for fuller reasons to be given since this could help avoid futile applications in future. True, the justices consider what information to convey to the parties when permission is refused, but this falls significantly short of the practice in some other top courts. In New Zealand, for example, there is a statutory requirement to give reasons for refusal to grant leave, with these reasons often running to over a page.

Another controversial issue is how the court determines the size and composition of the panels that hear cases. Composition matters, because a panel that decides a case by 3:2 might have come to a different result with a different set of justices. The court sits in panels of five, seven or nine justices. The factors determining how many hear particular cases are unclear (beyond the obvious concerns that panels have relevant expertise, as well as the need to ensure an even workload across the twelve justices). In its first year, the court sat in panels with more than five justices in 18 out of 68 cases (as compared with only three panels with five or more law lords in 2006-2009). As the trend is towards greater use of larger panels, the court needs to clarify the criteria used to determine the size and selection of panels.

The court’s decisions extend to many aspects of our lives. In the last two years, landmark decisions have touched on such matters as faith schools, bank charges, prenuptial agreements and control orders. These decisions have far-reaching policy implications, sometimes upsetting the policy preferences of elected politicians. True, parliament can legislate to reverse decisions of the court, and from time to time does so. But, in practice, the buck often stops with the justices. So it matters who they are and how they come to be appointed.

Only the most difficult and important legal questions fall to be decided by the court. There are often no clear-cut answers. Sometimes the law is unclear, and so the justices must choose between competing interpretations. Sometimes there is no law applicable, and the justices expound a new law. Because there are no clear-cut answers, and because different judges are influenced by different views on the judicial role, the identity of individual justices matters. Appointing one person rather than another influences the result of the questions decided by the court.

Under the new appointment arrangements in the Constitutional Reform Act 2005 the president and vice-president of the supreme court have an important say, since they are two out of five members on the body which selects new justices. Some have argued that while they should certainly be consulted, they should not be directly involved in selecting other members of the court, lest the court become a self-selecting oligarchy.

Others have suggested involving parliament, with appointees appearing before a parliamentary committee to explain their background and broad approach to judging. MPs are increasingly keen to scrutinise public appointments, with some 60 of the most important now subject to an appearance before the relevant select committee before the appointment is confirmed. But there seems less parliamentary interest in scrutinising the appointment of judges, and most candidates for judicial office recoil in horror at the prospect of a pre-appointment scrutiny hearing. Senior judges like the lord chief justice make regular appearances before select committees to explain the work of the courts, but parliamentary involvement in senior judicial appointments is still seen as a step too far.

This piece first appeared in the Guardian

Judicial Independence webpage

Press Release: Cameron delivers Brown’s project on rules of succession, but not all plain sailing

Press Notice
Friday 28 October: for immediate release

Cameron delivers Brown’s project on rules of succession, but not all plain sailing, says constitutional expert

Commenting on today’s announcement in Perth of the planned changes to the rules of succession, Director of the Constitution Unit Prof Robert Hazell said:

“It has been a longstanding aim of successive British governments to end the discrimination in the laws of succession.  Gordon Brown went to the Commonwealth conference in 2009 with the same objective as David Cameron, but failed.  Since then there has been a lot of work behind the scenes to get the other 15 realms on board.  The tide of goodwill towards the monarchy following the royal wedding in April and the Queen’s diamond jubilee next year provides the perfect window of opportunity to make the change.”

“But it is not all plain sailing” Prof Hazell continued.  “The UK cannot legislate for the other 15 countries.  In Australia the six states claim a separate relationship with the Crown, and it may require their separate consent.  In Canada the federal government will certainly have to gain the consent of the provinces, including Quebec.  In both countries it will revive the republican issue.”

“Questions will also be asked about why the discrimination against Catholics is only to be partially removed.  The prohibition on the Monarch being a Catholic will remain, because the Monarch is Supreme Governor of the Church of England.  Catholics in Britain might be willing to accept that, although their numbers are now broadly equal to Anglicans.  But in the 15 realms Catholics outnumber Anglicans by three to one, and they may be less understanding”.

Notes for Editors

  • The UK is following the example of other European monarchies, most of which have changed their rules of succession already to make them gender neutral.  Sweden changed their law in 1980, Holland in 1983, Norway in 1990, Belgium in 1991, Denmark in 2009 (with a referendum), Luxembourg in 2011.  Only Spain, Monaco and Liechtenstein retain male primogeniture.
  • 11 private member’s bills have been introduced into Parliament to reform the Act of Settlement.  Successive governments have supported the principle of the change, but have said that it required government legislation.  Only the government can negotiate with the other realms.
  • Prof Hazell is available for interview 0207 679 4971, or contact our Press Officer Brian Walker on 07892 176347.

Unit in the News: Clegg appoints new Spads

Nick Clegg & Robert HazellFollowing recommendations in our report into coalition government, the Deputy Prime Minister has announced new Liberal Democrat advisors will be placed in government departments.

The report, by Prof Robert Hazell and Dr Ben Yong, suggested that the Liberal Democrats have spread themselves too thinly and require additional resources to extend their influence, including more special advisers, expanded Private Offices, and additional support for the parliamentary party.

The report is part of a one-year project into monitoring the new coalition government in the UK sponsored by the Nuffield Foundation.

Media:

Further information:

Coalition Government 2.0?

The Politics Show on BBC iplayer

In this interview Robert talks about the effect the Lib Dems are having in the coalition and whether a review is necessary to set up coalition 2.0. The Unit has a research project monitoring the coalition government, funded by the Nuffield Foundation and led by Robert Hazell and Ben Yong.

Further Information

Delivering Devolution: Robert Hazell on R4 Beyond Westminster

As voters in Scotland and Wales prepare to go to the polls, Robert Hazell and a panel of experts take stock of more than a decade of devolution and asks what it means for the UK as a whole. Highlighting policies which are strikingly different from those of the government in Westminster, in Wales she looks at higher education and the decision to shield Welsh students from large tuition fee increases; in Scotland she looks at health and patients’ benefits such as free prescriptions and free personal care. What will be the impact of the recent increase in law making power for Wales and imminent greater tax raising power for Scotland and what are likely to be the tensions between the different nations in the UK at a time when public spending is being squeezed?

Related links