Saturday, 31 July 2010

Constitutional Reform

Britain does not have a constitution, whatever you may want to say about our "constitutional arrangements" or the "constitutional duties" of the Queen we do not have a set of binding laws to control our political institutions, Britain has habits. The whole of British history, every Act of parliament, ever decision be it legal or political is a precedent. Discussing this fact is a whole different blog post, but when discussing constitutional reform we have to keep this fact in mind. So with this in mind, here are the more obvious problems with the long long overdue set of constitutional reforms started (but sadly neglected) by the Labour Government and hopefully to be continued by this Coalition.

The first stage was Lords reform. To have members of the legislature in place simply because of their father is unacceptable in a modern country. So the last government removed the right to pass peerages to your children and removed most of those who were there on that basis. However, the replacement system was hardly more democratic. New Lords are now mostly appointed by the Crown (as ever the word Crown here means in practice not Monarch but Prime Minister). This has a number of advantages, there are many in the House of Lords who are experts in their field, leading scientists, charity workers, ex-soldiers etc all of whom have expertise that would be valuable in creating laws. (There are Acts on the Statute Book so badly drafted that they have no legal effect at all, so clearly legal expertise cannot be assumed in the Commons).

Here the issue has largely rested, consultation after consultation and vote after vote has not substantially changed things. The next major step will be taken by the Coalition. They have so far proposed two serious sets of changes in detail, both for reforming the Commons. This takes the form of a bill to change how MPs are elected and a proposal for fixed term parliaments. The latter is rather more complex so I'll do that at the end. Then there are coalition agreement proposals for the lords, but nothing in detail.

The first proposal is for a referendum that would introduce the alternative vote or instant run-off method of voting. The commons is based on constituencies, there are many strong arguments for this, which cannot easily be countered. And because of this it does make sense to talk about electoral system in terms of an individual constituency. If I were to get a large group to select one thing I would use AV, this is the system that clearly selects someone with a wide base of support. So if we are selecting the single best representative of a constituency then AV should be our choice. However, there are limits to this thinking, there are political considerations, in a party system AV has known effects. It tends to increase landslides (which has almost zero effect, a landslide is a landslide), and decrease small majorities. Which may (it's hard to foresee) result in more hung parliaments. In short, if you're a Lib Dem then it's the thing to want. But I'm not, so is this good for other reasons? Yes, if you believe (as I do) in checks and balances, small majorities and hung parliaments can certainly push through a firm plan of action (see the coalition), but one which has wider support, a compromise, which is likely to be far less dangerous.

There's no serious change here, it's an important debate that would change the makeup of the Commons, but not by much. Importantly it would not bring in PR, to do that you have to get rid of constituencies which seems very hard to convince people of. People like their MP. Mine is Julian Hupert of Cambridge and I know if there's ever a problem then I would e very happy to go to him. Consider the Lords however, there are many wise and noble Lords, but none I would ever consider writing to, despite them having a right to vote on bills in just the same way. This is valuable, if it is as valuable as the benefits claimed for PR is another question.

The other change in the same Bill will alter the constituencies themselves. At present constituencies are decided by the independent Boundary Commission, they make their decision largely on historical precedent and local geography, but within conditions set down by endless acts of parliament and subject to change by the secretary of state. The proposal is to change the conditions to produce fewer seats (which is not really significant in terms of costs or democracy), which are more equal in size. This is an important but again not constitutionally very significant change. Ever since the days of rotten boroughs there have been irregularities in the sizes of constituencies, some amount due to accident, but largely due to the difficulties of making regularly sized constituencies out of irregularly sized wards made from irregularly sized villages towns and areas of cities. There have been countless steps to reverse these inconsistencies and this will not be the last such.

The next step will have to be the Lords, the two problems of the Lords and the Prime Minister are inter-related. If we are to accept that political members of the Lords are acceptable then it seems hard to suggest that Lords should be selected by the Prime Minister and not by the people. There is an argument for maintaining the excellent cross-benchers, "the great and the good" but if people like John Prescott are going to be members then at least that part needs to be elected. This is the key question of Lords reform. How much of the House should be experts appointed because they have the faintest idea what they're talking about, and how much should be party political, and how should they be elected.

One anomaly can and I think should be removed urgently. The Lords Spiritual are the top 26 bishops of the Church of England, that religion should have its own voice in lawmaking, and what's more only one flavour of religion, is anathema to a modern largely irreligious nation of Sunday-Christians (though increasingly not even that). To me it seems quite clear that the Lords Spiritual should have no automatic right to vote. If they contribute, the can become Lords Temporal, if not, then why would they be able to vote? There is a problem however. The bishops are there because they are appointed by the Crown in its capacity as head of the established Church. To take the Bishops out of the Lords would damage the influence that the Church has (of course the Church will always be a strong lobby, but the same is true of Mumsnet) I think it would be fair for the Church to ask what it gets out of being the established Church. There is a question of how nominal being established can become before it becomes pointless to continue the pretence. But for another time.

The current proposals are only in the very rough form of the Coalition Agreement, which require:
a wholly or mainly elected upper chamber on the basis of proportional representation.
This leaves the possibility of leaving the cross-benchers behind, which would be quite a useful feature if the selection of such people could be de-politicised and all potential for corruption, jobs-for-the-boys, cash-for-peerages etc etc. This will take really careful drafting, but is certainly possible. As for the elected portion, this can be of a wide variety of forms, anything from STV to a closed national party list. Most likely a regional list system similar to that used in EU elections will be the compromise. Now if this is the case then there are serious questions as a result, about the prime minister, and about the commons.

Now it is possible, or rather probable, that at various times the Lords and Commons will have different makeups, with a majority party in one house not having even a plurality in the other. This leads us to a problem, the Prime Minister is that person who controls the confidence of the House of Commons, so if the Tories have a slight lead in the Commons and Labour an overwhelming majority in the Lords the PM will be a Tory, which doesn't seem to reflect the will of the people. Especially given the near-presidential power of the PM. If you've got control over prerogative power you need to be democratically accountable. Now it will be argued that the constituency link gives the Commons priority, and this may be satisfactory, however, there may come a point where this is no longer satisfactory, especially if the Lords becomes disruptive, there will be calls for a directly elected Prime Minister. And I dont see any good reason to oppose these calls. A cabinet selected by a directly elected individual would be a lot more accountable than one selected by whoever won in coalition negotiations as now.

Now a longer term consideration is the next round of electoral reform. If the AV referendum fails this may not be for decades but eventually there will be a challenge to the house of commons voting system. This is, I would like to disagree with most liberals here, something that should be resisted. We have a bicameral system, historically to reflect two separate interests, the interests of the commons and of the aristocracy. We no longer have a functional aristocracy, so we need a new reason to have the Lords. At the moment they are used as a convenient way to reward those who have been politically useful to those in power and as something for the tourists to look at (like Britain hasn't got enough of that). I suggest a new role is needed, maybe, if we retain the cross-benchers, they could be used to actually inject some knowledge and expertise into the legislative. However, either way we can ask the Lords to be a continuity chamber, blocking sudden or illiberal laws. And for that reason the Lords needs a different makeup to the commons. If you have two identical chambers there's twice the cost with none of the benefits, anything that goes through one will get through both, with different chambers it is at least reasonable to hope that a really bad law will pass one but not both. For this reason if there was in 2020 a referendum to change the Commons from AV/FPTP to the same form of PR as the Lords I would vote no. No matter the inherent virtues of PR a second chamber needs to be different. If PR was unavoidable I would argue that a different form of PR be used, or that the two houses have very different periods, say one election per 10 years for the Lords and one per 3 years for the Commons. However you do it you need two houses that do not simply mirror eachother.

The next is a proposal for fixed term parliaments. This is a lot more tricky. The current situation is that the Commons is elected, and following that the Prime Minister is decided by vote of confidence (or to be more accurate the government is). So the Prime Minister is not elected, and can only be removed by the Commons voting to say it has no confidence in the Government. If that happens then a strange period begins, the Government is obliged to resign, but before it does so the (now discredited) Prime Minister is given the decision as to what should happen next. The options are dissolving parliament (not, sadly, in acid) and calling a new election, or allowing the Leader of the Opposition to form a government. Under 2 party politics the first option was almost always the correct one, a vote of no confidence meant that a small majority had been reduced to nothing by rebellion or by-elections, it would be unusual for the opponents of a near majority to be able to command an actual majority so an election was really the only solution. However, in a hung parliament the situation is different, a loss of a vote of no confidence means that the governing coalition has fallen, but is is more than possible that some other coalition could be formed, especially very early on in the term. So here it does seem to make sense to re-negotiate rather than allow a discredited Prime Minister a second try at the election. This is for two reasons, one practical, the British people traditionally dont like being taken to the polls, especially on the hop as in 1974, the second political, a prime minister who has lost the confidence of the house is not in a position to try and bounce the electorate.

The proposal by this Coalition is that the power to call an election should be taken away from the government and given to a supermajority of the commons. This is a novelty in the British system, parliamentary sovereignty is interpreted to mean that 50%+1 of all MPs present is enough to pass any motion, and as the fox hunting ban proved the Lords is not necessary thanks to the Parliament Act. The proposal currently is that 2/3rd of the House would be required to call an early election. This is an utterly false idea and one that has no practical use. 50%+1 will still be enough to overturn this very act, and 50%+1 can pass a motion of no confidence, and then one in the leader of the opposition, and then one in whoever replaces him until the time limit to form a new government expires and an election is forced. The difference, and this is key, is time. As it is now a Prime Minister can go to the Palace at any time and there can be an election 17 working days later with no public involvement. The two procedures outlined above however take time, at least 14 days, and in this time political will can be mobilised against such a move. Under the proposed system any election held for partisan reasons can be opposed much more effectively.

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