The Coalition and the Constitution

Prof Vernon Bogdanor (Research Professor at the Institute for Contemporary History, King’s College London)

Date: Thursday 12 May, 6.00pm Venue: Council Room, The Constitution Unit

The first anniversary of the Coalition has come and gone. It was the cue for a mass of commentary – which is interesting in itself. It is clear that the British public and media are still coming to terms with coalition. Professor Vernon Bogdanor, long a student of coalition governments, has been looking at the implications for the British constitution. Professor Bogdanor spoke on this yesterday at the Constitution Unit to promote his new book The Coalition and the Constitution (Hart Publishing, Oxford). He drew interesting comparisons between historical coalitions and our current situation. Bogdanor argued that many coalition governments had been formed out of fear. For instance, the current economic stresses at home and abroad caused the Liberal Democrats to form a coalition with the Conservatives and abandon their previous policies and adopt the Conservative policy of immediate and sustained deep spending cuts. Bogdanor argued that this was not going to be a comfortable ride for the Lib Dems. Coalitions have never been happy experiences for the Liberals, often leading to splits within the party –the classic example being the Liberal Unionists who later merged with the Conservatives. His analysis showed that the Conservatives, on the other hand, had largely benefited from these alliances. The reduction of Commons seats from the current figure of 650 to 600 had been overshadowed by the AV referendum, despite being arguably the more revolutionary reform of the two. This meant that many constituency associations will have to pick new electoral candidates which could result in a slew of anti-coalition candidates being chosen. A key point of Bogdanor’s talk was that coalitions collapse from the bottom-up, not from the top down. He also spoke of the effect of the Fixed Term Parliaments Bill, which could provide the Lib Dems with a way out of the Coalition without having to fear immediate annihilation by Cameron calling a general election. During the following question and answers session, some in the audience queried Professor Bogdanor’s historical account. Audience members of Liberal Democrat and Conservatives persuasion both defended the Coalition, trying to distinguish between the circumstances leading to the current coalition and those leading to previous coalition administrations. A question was asked about the application of the Salisbury convention in the House of Lords. A peer in the audience argued that the House of Lords was fully entitled to vote down government legislation and that the Salisbury convention didn’t apply under the present circumstances. The effects of the recent AV referendum were also discussed, with Professor Bogdanor believing that it will galvanise those ‘small c’ conservative elements in both Houses, but that the finality of referendums can be overstated – Britain’s status in Europe is still up for debate 31 years after the Common Market referendum.

Further information

Graham Gee: Are Executive-Judicial Relations Strained?

[Posted on behalf of Graham Gee. This post originally appeared on the UK Constitutional Law Group Blog.]

At one level, it seems reasonable to characterise executive-judicial relations as strained. In recent weeks, after all, concerns have been raised by senior judges, or on their behalf, on a range of matters—including (the now withdrawn) Schedule 7 of the Public Bodies Bill that would have given ministers the power to modify, merge or abolish a large number of public bodies, including the Judicial Appointments Commission (see here and here); Part 4 of the Pensions Bill, which provides that ministers may require judges to contribute to the costs of their pensions, whereas at the moment judges only contribute to the costs of benefits for their spouses and dependents (see here); as well as aspects of the finance and administration of the UKSC (see here). At the same time, the PM and Home Secretary have spoken of being ‘appalled’ by the UKSC’s 2010 decision in R(F) on the notification requirements for sexual offenders, with the PM also outspoken on the ECtHR’s 2005 ruling in Hirst v UK (No. 2) on prisoners’ votes. But, at another level, the characterisation of executive-judicial relations as strained risks concealing more than it reveals, and for three main reasons.

First, public lawyers often use shorthand when discussing institutional relationships. For example, we refer to ‘executive-legislative relations’ when discussing Parliament’s powers or the ability of Parliament to hold the Government to account. Often the implication, as Anthony King noted in an article in 1976, is that there is one body called Parliament and another called the Government, with our aim to study the relationship between the two. Yet, as King explained, if we really want to understand the various phenomena subsumed under such a broad heading as ‘executive-legislative relations’, we need to study a number of distinct political relationships (including those between and within different chambers, between Government and Opposition and between and within different political parties). King’s basic point—and, in one sense, it is a very basic point and yet, at the same time, marvellously subtle—is that shorthand such as ‘executive-legislative relations’ conceals multiple, complex relationships, each with its own dynamic. So what then do we mean by ‘executive-judicial relations’? Following King, we can take this as shorthand for distinct but sometimes overlapping relationships. For a start, there is not simply one ‘judiciary’ or one ‘executive’ relevant to UK public lawyers; rather, there are multiple judiciaries and executives in our multi-layered polity. We might speculate that relations appear strained between UK Ministers and the UKSC, and those ministers and the ECtHR. Or similarly we might have speculated that, following Cadder, relations between Scottish Ministers and the UKSC were strained. But, in each case, we ought to offer our speculative assessments whilst reserving judgment about other relationships. The point, here, is that we have to specify which executive and judiciary we have in mind when talking of strained relations.

Second, even then, we would likely have in mind relations between only some part of the executive and some part of the judiciary and only on certain issues. Are relations between the Lord Chancellor and the UKSC strained? On the one hand, the Lord Chancellor gave short shrift to the concerns raised by Lord Phillips about the funding of the UKSC and the position of its Chief Executive (see here). As Joshua Rozenberg put it, Lord Phillips ‘learned the hard way’ that a judge ‘who takes on the government in the court of public opinion is bound to end up second best’. On the other hand, reports a week later suggested that the Lord Chancellor had sent a ‘furious letter’ to the Home Secretary, copied to the PM, rebuking her (and, indirectly, the PM) for intemperate comments on the UKSC’s decision in R(F). Leave to one side the question of whether Theresa May’s comments were in fact intemperate, or whether this was simply the sort of ‘no-holds-barred constitutional politics’ that Danny Nicol suggests that we should expect under the HRA. Leave also to one side the question of how ministers ought to react, particularly on the floor of the House, where they are genuinely appalled by some judicial decision. The point, here, is that different parts of the executive have different relations with different parts of the judiciary, with clashes between ministers and judges only ever one part of the story. What is more, the same minister can have differing relations with the same part of the judiciary on different issues.

Third, strained relationships between ministers and judges are sometimes as much about some aspect of ‘executive-legislative relations’ as ‘executive-judicial relations’. Consider, for example, the timing of Theresa May’s ministerial statement on R(F) in mid-February. This statement was made 10 months after the original decision, but less than a week after the House of Commons’ debated the blanket ban on voting by prisoners, where MPs backed a motion stating inter alia that ‘legislative decisions of this nature should be a matter for democratically-elected lawmakers’. Had the Home Office long been planning to respond to the s4 declaration in R(F) in mid-February? Was someone in government pushing for the statement to be made sooner than planned in order to intensify debates about the HRA, the ECHR and a British Bill of Rights? Was the timing of the statement a sop to Conservative backbenchers riled by other aspects of the Coalition Government’s constitutional agenda, coming as it did on the same day that the Parliamentary Voting System and Constituencies Act 2011 received Royal Assent? None of this should be read as to dismiss the importance of ministerial criticism of this or that judicial decision or political debate about issues such as prisoners’ voters or the post-sentence monitoring of sexual offenders. As King noted in his article, the views of Government backbenchers matter because they are seldom speaking for themselves. Their views on knotty question such as the proper role of courts are likely to be held by some, and perhaps many, inside the Government, as well as parts of the public at large. The point is simply that, at times, it may not be best to construe apparent clashes between ministers and judges solely in terms of ‘executive-judicial relations’, but to see them as related to those larger, complex relationships that we conflate under the shorthand of ‘executive-legislative relations’.

Spads: Who they are, what they do, why they exist—and why they will continue to be appointed

What are spads, said everywoman, and would not stay for answer. Everyone knows about certain notorious special advisers—Alastair Campbell, spin doctor extraordinaire; Damien McBride, attack dog for Gordon Brown; and Jo Moore, forever infamous for sending an email around on 11 September 2001 saying, “today is a good day for burying bad news.”[1] Under the Cameron-Clegg administration, media reports on the whole remain fairly hostile.

There have been some dissenting voices, calling for more spads. Jahan Ganesh in Prospect (££); Tim Montgomerie on ConservativeHome; our esteemed (and rather more flush) colleagues at the Institute for Government as well. The recent reconfiguration of No 10’s policy unit suggests the coalition is feeling the absence of spads.

But what are special advisers, and what exactly do they do? There is surprisingly little on this, academically.

A technical definition: they are temporary civil servants, drawn from outside the traditional civil service structure, and subject to the patronage of ministers for whom they work. In layman terms, civil servants are appointed through open competition and promoted by merit. Special advisers, on the other hand, are appointed personally by ministers, to work for those ministers; when a minister leaves, the spad leaves with them. They may or may not have policy expertise.

What do spads do? Most think of them as spin doctors, but this is too crude. Maria Maley, at the Australian National University, has identified five basic functions:

  1. Personal support: managing the minister’s time, determining priorities
  2. Political support: in parliament, within the party, etc
  3. Communication: media management, but also management of relations with other key actors
  4. Policy matters: initiatives, development, implementation
  5. Executive coordination: between portfolios and between ministries.

The focus has always been on ‘spin’, but the truth is we don’t know what the majority of spads do. Some clearly are spin doctors (Alastair Campbell), but others are not (Jonathan Powell’s key ‘function’ would have been executive coordination; Andrew Adonis perhaps for his policy knowledge). There are usually about 75 spads in any one year: we tend only to hear about a tiny few, usually those at the centre; not those in departments.

Spads are often thought of as bright young things with an eye to a political post in the future. They are often thought to be former parliamentary researchers or think tankers. Former special advisers include David Cameron, George Osborne, Ed Miliband, Ed Balls, Jack Straw … the list goes on. But again: we don’t know if the labels ‘bright young thing’/ ‘political careerist’ are appropriate because no one yet has studied them in detail in the UK (see below for the exceptions).

A final point, before this post gets too long. The focus has always been on spads, and their apparent malign influence—but there is a prior question: why do ministers keep appointing spads? Well—again, we don’t know the actual reasons. But we can guess. Spads exist because there is a demand for them. And there are at least three reasons why ministers may want to appoint spads:

  1. Ministers are overloaded.[2] They just have too much to do—so spads help ministers to determine their priorities.
  2. being (ostensibly) neutral, civil servants cannot offer ‘political’ advice; spads, often being appointed for their political qualities, can.
  3. Ministers want to increase the ‘responsiveness’ of the civil service, which is seen as passive and obstructive; spads can drive the machine because they exist outside the civil service.

There may be a fourth reason: coalition government. Coalition government may require greater negotiation between parties; spads may provide that liaison function.

Whether or not these reasons are legitimate reasons is another story. But these are likely to be the reasons ministers will give in appointing special advisers. We should be asking ministers what they think special advisers are for, and to what extent they fulfil this function (or functions). It is time we moved on from talking about spads in a largely negative manner and asking whether there are too many, to asking why are they there, how they contribute, and whether they can improve ministerial effectiveness.

Background

The Constitution Unit has been working on a grant proposal on special advisers, and so it seemed appropriate to blog on this. For those really interested in spads, there is Andrew Blick’s excellent text. On the internet, start with the House of Commons’ library research note; or  the Public Administration Select Committee’s 2001 report, Special Advisers: Boon or Bane, which is still good value. There’s also an excellent article by a former spad to Jack Straw here, which gives an insight into a spad’s everyday life. The Powerbase website has (very) uneven coverage of special advisers. On what ministers do, and ought to do, there is the (so-so) Public Administration Select Committee report What Do Ministers Do?

EDIT 14/04/11: a very interesting report on the coalition’s spads here:

http://network.civilservicelive.com/pg/pages/view/564295/

EDIT 16/09/12: I should have updated this long ago. But the Unit is now carrying out a project looking at special advisers 1997-2012. Watch for more news here:

http://www.ucl.ac.uk/constitution-unit/research/special-advisers


[1] And of course Sir Richard Mottram’s rather choice response when he discovered Jo Moore’s email had been leaked.

[2] I could write a whole post on this. Ministers have ridiculous workloads. This is partly because of the complexity of modern government; and partly because of an unwillingness to define what a minister ought to do.

Unit in the News

Some recent mentions of the Unit over the last couple of weeks:

Aiding ministerial achievement, Guardian (14 March 2011)

http://www.guardian.co.uk/public-leaders-network/2011/mar/14/professional-ministers-delegation-whitehall

Calls for merger of Welsh, Irish and Scots offices, Wales Online (10 March 2011)

Goats humiliated by Wolves, Epolitix (01 March 2011)

Lord Green and the Problems of ‘Outsider’ Ministers

According to the FT’s Westminster Blog, Lord Green of Hurstpierpoint, the Coalition’s new trade minister has agreed to vote in line with the Conservative party—but he has chosen not to become a member of the Tories or the Lib Dems. Shades of Lord Digby Jones, a businessman who was appointed as the UK’s Minister of State for Trade and Investment during Gordon Brown’s premiership. Lord Jones also refused to take the Labour whip, causing much consternation at the time. It didn’t help that Lord Jones left after a year, after having complained about the dehumanising experience of being a junior minister, and being very disparaging about civil servants.  Ouch.

The Constitution Unit will soon publish a report on ‘outsider ministers’—those people who are initially non-parliamentarians who are appointed to ministerial posts because of their expertise. In the report, Putting Goats amongst the Wolves, we discuss the experience of these ‘outsiders’. Brought into government, these men and women, usually highly successful in the ‘non-political world’, often found it difficult to adapt to being in government, and often left quickly. Not because they were incompetent—but because they were thrown in the deep end with little guidance, and because they faced resentment from the rank-and-file who believed that only parliamentarians (and preferably elected parliamentarians) should take ministerial office.

We interviewed over 20 individuals, mostly peer ministers and those who had dealt with the outsider ministers. From this we derived a number of recommendations to aid in the integration of outsiders. A key recommendation was that outsiders should be prepared to join the governing political party. This would indicate they have a long term commitment, and help to build trust with their fellow parliamentarians.

Lord Green may have a hard time ahead: coalition government tends to intensify the division between the frontbench from the backbench—refusing to be a member of either coalition party is not going to make Lord Green’s life any easier. And his refusal to join the party gives Tory backbenchers yet another reason to gripe to David Cameron.

For more information on the Ministers from outside Parliament project, watch this space:

http://www.ucl.ac.uk/constitution-unit/research/parliament/ministers-outside-parliament2

The Constitution Unit is also beginning a project on coalition governance. For more information, see here:

http://www.ucl.ac.uk/constitution-unit/research/coalition-government

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.