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.

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

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