Debating the constitution

Lord Norton

The past week has been a busy one for the House in considering constitutional issues.  On Monday, there was a question for short debate (QSD) on the role of the House in the event of reform.  Such debates are time-limited – in this case to ninety minutes – and there were so many speakers that each backbench contributor had only two minutes.  One speaker thought this was unprecedented.  It wasn’t: there was one QSD (on an academic boycott of Israeli universities) in which backbench speakers had one-minute each.  On both occasions, somewhat remarkably, the short speeches actually worked well.  A lot of points were made without notable repetition.  

On Tuesday, the House debated the report of the Constitution Committee on referendums.  The report was critical of referendums, but took the common sense approach that as they are now a part of our constitutional landscape there needed to be some clear framework for their use, not least in terms of identifying constitutional change that should be subject to them.  The Government’s response was not particularly weighty.  The debate itself attracted a good array of speakers and some valuable contributions.  I was especially impressed by the speech (col. 430) of the cross-bench peer Lord Pannick. 

On Wednesday, the Deputy Prime Minister, Nick Clegg, gave evidence to the Constitution Committee on the Goverment’s programme of constitutional change.  (You can view the session here.)  The intention is that a such a meeting will be an annual event.  We were keen to cover the two constitutional Bills presently before the Commons (the Fixed-term Parliaments Bill and the Parliamentary Voting System and Constituencies Bill) and the Goverment’s proposals on the House of Lords.  Both of the Bills have been subject to critical reports from the Political and Constitutional Reform Committee in the Commons, primarily because of the speed with which they are being pushed through. 

I pursued the link between the Government’s underlying approach to constitutional change and the specific measures.  It is not clear how they will restore trust in politics and connect Parliament more with the people.  I was also keen to know the evidence base for the proposals.  The Deputy PM conceded they were based more on judgment than hard evidence.  He also sought to justify the five-year term of Parliament – rather than a four-year term – on grounds of effective governance.  It wasn’t clear, though, why there was such haste to get the Bill through.  If the intention is to restore faith in politics, there may have been a case for not rushing the Bill, but rather allowing pre-legislative scrutiny and hence the opportunity for people outside Parliament to have some input.

25 comments for “Debating the constitution

  1. 17/10/2010 at 6:58 pm

    There are several ways of connecting Parliament more with “the people”, and the most basic of those is to make honest two-way communication, fact-recognition & presentation, and both formal and moral reasoning, not merely mandatory for every parliamentarian (and every future candidate)but subject to grade-testing.

    It is not necessary to “restore trust in politics”, it is too late for that.

    Britain needs to build a new and this time truly-democratic communication-network; not just between Parliament and the fastest, smartest and most professional ‘readers’,’commenters’, ‘submissors’ and ‘critics’; but between the Top-most and Bottom-most of British citizens.

    At first this new serious two-way commiunication Networking needs to be both non-politically and governancially-enabling, through Discussion clinicly separated from any form of Debating.

    Then not only will Civic & Democratic trust grow, as the prerequisite to political-trust, but empowerment itself will grow ‘naturally’, in competence and responsibility.

    Every-one has needs that they have in a real-sense already sworn their very lives away to be able to meet or to have met.

    Few in their right mind want to support wastage, especially not wanton wastage, such as un-necessarily fattened and super-legally-protected pay-packets totalling hundreds of billions of pounds more than is truly needed to main Britain peoples health, citizenlike, and world-environmentally-supportive.

    (One assumes in this that the Royal Family & the Super-Rich, and at the other extreme end various underclass individuals such as those sent to Prison, Sectioned or ‘Medicated’ into Psychiatric-incarceration, Detained, or otherwise deprived of enablement, empowerment and a voice, will be included: make this a new reuirement of British Citizenship, if you will).

    ==========
    1859Sn17Oct10

    • Lord Norton
      Lord Norton
      18/10/2010 at 7:47 pm

      JSDM: You rather sound like the Deputy PM! How would your proposal manifest itself in concrete terms?

    • Gareth Howell
      19/10/2010 at 7:00 pm

      It is not necessary to “restore trust in politics”, it is too late for that.

      There is a folk song which refers to 10,000 years of sorrow, and comments like that from JDSM remind me of it. Don’t ask me why!

      I do thank him for some polite comments he made with regard to a short remark I made, on another thread. His principle must surely be, like Henry James, to say so much that, at least something must hit home as accurate or witty or… something.

      Similarities end.

  2. Senex
    17/10/2010 at 7:04 pm

    “It is not clear how they will restore trust in politics and connect Parliament more with the people.”

    Its now clear at least on the blog that constitutional change is a football to be kicked around by the executive over successive Parliaments because constitutional change only needs a majority of one in either house.

    Its also clear that under this arrangement Parliament rules rather than serves. The genuine needs of the people afforded by constitutional change are not adequately protected.

    When is Parliament going to install a two thirds majority in either house for constitutional changes? If its good enough for the Lords’ Spiritual and the Synod why not the rest of us?

    • Lord Norton
      Lord Norton
      18/10/2010 at 7:50 pm

      Senex: I am editing a special issue of the journal ‘Parliamentary History’ on a century of constitutional legislation (1911-2011). I fear there is nothing particularly novel in the constitution being used as a political football. It is the exception rather than the rule for a piece of constitutional legislation to be enacted with all-party support. On the two-thirds majority proposal, what is to stop a future Parliament amending the legislation by simple majority?

      • Senex
        19/10/2010 at 3:39 pm

        Please feel free to correct my math on the assumption that your period 1911 to 2011 is meant to be 100 years. This year 2010, is the 100th anniversary of the Parliament Act 1911.

        You make a flawed but valid point that a future Parliament requiring a two thirds majority could change that majority back to just a simple majority of one.

        The need to do this would not be frivolous or the subject of arbitrary constitutional politics. There would be a deep felt genuine need to make the change and by a healthy majority in both houses. Such a change would have real democratic legitimacy.

        The present voting arrangement places constitutional change at the same level as changes to common law. In this respect the constitution holds no real protection for the people as their rights are subject from time to time to the whims of political change and expediency.

        So why have a constitution at all? Let’s put all of our trust in the competency of politicians to do the right thing. I don’t think so!

        What if an ‘idiot’ was at large in both houses, worst still many ‘idiots’, neophytes with empty heads as to the ways and needs of Parliament, the constitution, its law and history. Any one of them could effect change for the worst by a simple majority of one. The present arrangement assumes perfection, an extension of the Monarchy.

        • Lord Norton
          Lord Norton
          19/10/2010 at 9:17 pm

          The issue actually covers the period 1911-2010 but is being published in 2011. Extraordinary means of amendment is not necessarily a bar to major change. A moral panic can override such barriers, as has happened in the USA, and can of course happen within a system with significant constitutional constraints where most statute law requires a simple majority, again as in the USA as with, for example, the Tonkin Gulf resolution (only one Senator voted against) or the Patriot Act.

          • Senex
            19/10/2010 at 10:24 pm

            The Tonkin Gulf resolution was not a constitutional change and regardless the house voted by 416-0 to authorise the Presidential action. In the Senate Wayne Morse and Ernest Gruening opposed the action. Congress was moved to support the President and the Vietnam War began. The Patriot Act was not a constitutional change either and many regard the Act as unconstitutional even though Congress passed the act into law by descent majorities.

            I have no problem with Parliament passing statutes into common law by slim majorities. If mistakes are made they can be remedied. However, I do question the competency of politicians with scant knowledge of our constitution making such changes at the same level as common law. There is no safety margin and it diminishes the quality of the highest law of the land. Constitutional change should never be a candidate for an easy game of ping pong across successive Parliaments.

        • Lord Norton
          Lord Norton
          20/10/2010 at 9:10 am

          Senex: The Tonkin Gulf resolution had constitutional implications and your point about the Patriot Act rather makes my point. It has not been declared unconstitutional but it has rather serious implications for the rights of the citizen. Even acts where there is an arguable case that they are unconstitutional cannot always be challenged in the courts (they may be deemed non justiciable, as with the Vietnam War, or no one with standing for sue will bring a case, as with Gerald Ford’s pardon of Richard Nixon). I am for protecting the basic provisions of the constitution but a codified constitution can have as many negatives as positives.

        • Lord Norton
          Lord Norton
          20/10/2010 at 9:11 pm

          Senex: Sorry, I meant to preface my earlier comment by making the point that the issue is being published in 2011 because it is the centenary of the passage of the Parliament Act.

  3. 17/10/2010 at 7:07 pm

    Corrected version:
    There are several ways of connecting Parliament more with “the people”, and the most basic of those is to make honest two-way communication, fact-recognition & presentation, and both formal and moral reasoning, not merely mandatory for every parliamentarian (and every future candidate) but subject to grade-testing.

    It is not necessary to “restore trust in politics”, it is too late for that.

    Britain needs to build a new and this time truly-democratic communication-network; not just between Parliament and the fastest, smartest and most professional ‘readers’,’commenters’, ‘submissors’ and ‘critics’; but between the Top-most and Bottom-most of British citizens.

    At first this new serious two-way communication Networking needs to be both non-politically and governancially enabling, through Discussion clinicly separated from any form of Debating.

    Then not only will Civic & Democratic trust grow, as the prerequisite to political-trust, but empowerment itself will grow ‘naturally’, in competence and responsibility.

    Every-one has needs that they have in a real-sense already sworn their very lives away to be able to meet or to have met.

    Few in their right mind want to support wastage, especially not wanton wastage, such as un-necessarily fattened and super-legally-protected pay-packets totalling hundreds of billions of pounds more than is truly needed to maintain British peoples healthy, citizenlike, and world-environmentally-supportive.

    (One assumes in this that the Royal Family & the Super-Rich, and at the other extreme end various underclass individuals such as those sent to Prison, Sectioned or ‘Medicated’ into Psychiatric-incarceration, Detained, or otherwise deprived of enablement, empowerment and a voice, will be included: make this a new requirement of British Citizenship, if you will).

    ==========
    1907Sn17Oct10

  4. Carl.H
    17/10/2010 at 8:37 pm

    “I was especially impressed by the speech (col. 430) of the cross-bench peer Lord Pannick”

    I`ll second that, well said Lord Pannick.

    • Carl.H
      18/10/2010 at 4:11 pm

      I`d like to wish Lord Pannick good luck with his other job this week too, with the prosecution service. I hope he wins this one for all the ordinary people who in a similar position to the accused wouldn`t stand a chance.

    • Carl.H
      18/10/2010 at 5:47 pm

      And…following from my last.

      I hope my Lords will bear in mind on Thursday whilst debating the recommendations of The House of Lords Privileges and Conduct Committee, that ordinary people would not have been treated as leniently as the three. Nor would ignorance of the rules/legislation have been accepted as a defence, indeed if a Peer pleads ignorance to such an obvious infraction they have no place in the House.

      I believe my Lords should be a shining example to the people and that any theft or fraud that maybe committed by one of their own be dealt with more harshly precisely because of their position and their obvious worldly knowledge.

      • Lord Norton
        Lord Norton
        18/10/2010 at 7:53 pm

        Carl.H: As you will be aware, some of us have been pressing for some time for the House to have the power to expel members. It was a provision included in the House of Lords Bill, introduced by Lord Steel, and was also close to being enacted through the provisions of the Constitutional Reform and Governance Bill at the end of the last Parliament. I hope it will be a pursued shortly, not least by the group set up to review the working practices of the House.

  5. 17/10/2010 at 10:16 pm

    I have significant misgivings about the proposals as last I heard them. The democratically purist idea of exactly numerically equal constituences will create quite horrid anomolies of geography in practice, I fear, disproportionately affecting already disadvantaged island communities and rendering asunder communities who have hitherto regarded themselves as a political unit. I think the pragmatic approach hitherto adopted by the Boundary commissions has much to commend it.

    And there have been times short of five years when the Commons has desperately needed the nation to sort things with an election, whether those within are happy with the idea or not.

    I have read Lord Pannick’s speech. Whilst agreeing with him, I have to say that the referendum is such a rarely used device in the UK that it is surely difficult to discern a pattern. I can only remember one on Common Market entrance, though there may have been regional ones and I believe we are due one here in Wales on further devolution.

    If we have a single constituency system, why not allow those in each constituency their own choice of election method, determined by a local referendum?

  6. Mike
    18/10/2010 at 12:03 am

    So faced with an imperfect tool for improving democracy you point out its imperfections and resolve that it should not often be used. Uninspiring.

    How about finding ways to make a better tool? For example, delegated voting is a hybrid between referendums and representative democracy that combines the strengths of both with the weaknesses of neither.

    • Lord Norton
      Lord Norton
      18/10/2010 at 7:55 pm

      Mike: If you read the evidence given to the Constitution Committee, you will some that some of the witnesses who were highly critical of referendums, such as Baroness Kennedy, proposed alternatives which they regarded as less imperfect than referendums.

  7. Gareth Howell
    18/10/2010 at 11:32 am

    Earl of Clancarty: My concern is rather how we should further democratise Parliament as a whole.

    Interesting that E. Clacarty should think this about the democracy of the HofL as well, even after being OUT of it since 1999.

    By contrast as I, a moderately knowledgeable non-member on the subject and certainly well to the left in politics, am fairly certain that the definition of democracy that we should all seek to maintain, should include the election of hereditary peers amongst themselves. I am sure that E Clancarty agrees with that view, recalling also that there is a certain number of radical socialists in the HofC who are not prepared to have anything to do with the HofL since they believe in a Uni-cameral system and the complete abolition of the HofL, with everything that it entails for the Historic dialogue between monarchy and parliament.

    I am on this record as saying similar things myself earlier in the year, but Jack Straw’s dictum about events changing opinions also applies to me!!!

    The “testing” of election by a hereditary peer electoral college has stood very tidily for five or six years now, and is good.

  8. 18/10/2010 at 11:34 pm

    This is a sizeable report, and I’ve managed to get through the list of perceived advantages and disadvantages of referendums and sample the Government response.

    Referendums may well undermine, to some extent, representative democracy, but then, so do opinion polls. What annoys me is proposals, when they occur, to submit horrendously complex questions to referendums, such as whether to adopt the Euro, for which there would be strong arguments both for and against, but which would be likely doomed from the outset through fear of change and the baying of the euro-sceptics.

    I see there is talk of us being given the power to initiate local referendums to prevent our locally elected councillors imposing ‘excessive’ council tax rises. Yet I hear of no opportunities to constrain them from imposing ‘excessive’ cuts in services through insufficient council tax rises.

    I would suggest that the greatest potential to build democracy on these rocks lies above all in the radical transformation of local government from Local Authorities to Local Democracies, each with appropriate constitutional powers, re-enabled to forge change in the very real way pioneered by our Victorian municipal ancestors.

    We should say goodbye to the situation in which local government has to run everything at a loss lest central government comes along, regionalises it, nationalises it and sells it (eg water, electricity, phones), or just plain sells it (council housing).

    The ‘top-down’ approach to reinvigorating democracy in the country can never work, or at least never work on its own. Even whilst talking up localism, our great leader is planning to further undermine local education committees through the direct funding of anarchy.

    How on earth can democracy survive in a nation where locally elected people are not even allowed to employ their own refuse collectors lest the sterile, skeletal hand of Central Godamn Government surcharges them for breach of Compulsory Competitive Tendering procedures?

    Plaid Cymru, your day has come.

    • ladytizzy
      19/10/2010 at 6:48 pm

      “Referendums may well undermine, to some extent, representative democracy, but then, so do opinion polls.”

      Focus groups are the worst!

      There have been some referendums/opinion polls on proposals for local gvt budgets (‘budget’ neutralises spending or cuts) as set out in the link below (only a few pages, honest). The results are pretty much as expected.

      http://www.parliament.uk/briefingpapers/commons/lib/research/briefings/snpc-05682.pdf

      • 20/10/2010 at 2:21 am

        Thank you, ladytizzy. I’ve glanced through that. They’re off their trolley. So a body like the Lincs Police Authority, whose precept represents a minuscule fragment of a countywide council tax bill, sparks a county-wide referendum across seven local authority areas a third of the size of Wales if it goes a few percentage points over the Westminster Fantasy Threshold? Barmy.

  9. Senex
    20/10/2010 at 8:54 pm

    The Tonkin Gulf Resolution (Pub.L. 88−408) resulted in the War Powers Resolution of 1973 (50 U.S.C. 1541–1548) both resolutions have associated constitutional implications although the latter clearly states in 1547(d) (1) that:

    “Nothing in this chapter –
    is intended to alter the constitutional authority of the Congress or of the President, or the provisions of existing treaties; or…” The resolution was passed by a two thirds majority in both the House and Senate.

    For Parliament there is no constitutional precedent for two thirds majority voting however this is about to change; the bill proposing a fixed term Parliament will constitutionally install a two thirds majority necessary for the dissolving of Parliament.

    The US War Powers Resolution differs from the British Bill of Rights 1688 in that it does not diminish the powers of the office of President. This contrasts with the 1688 Act where the power to wage war by the office of Regent was rescinded and transferred to the executive in Parliament under Royal Prerogative.

    In the introduction, HL Paper 236-I; p5 says:

    “Under the Royal prerogative powers, the Government can declare war and deploy armed forces to conflicts abroad without the backing or consent of Parliament. However, the Government agreed to a parliamentary vote before the Iraq war in 2003. Subsequently, there have been calls for a requirement that Government should always seek Parliament’s approval when taking action in future conflicts.”

    Parliament in this case now means the Commons alone.

    If 50 U.S.C. 33 attracts constitutional controversy so does the action by the Commons in 2003. Congress has chosen both the House and Senate to agree, before US armed forces are committed to hostile action. Parliament has chosen to deny the upper house a role in committing British armed forces on such occasions.

    In moving the decision to go to ‘war’ from President to Congress, is Congress placing on trial a prospective enemy? Is Congress in such cases enacting a ‘bill of attainder’ when the notion is prohibited under the US constitution and what rights have such defendants to a defence in absence under law?

    The same case can be made for Parliament under the precedent of 2003. Under our constitution bills of attainder are allowed, so if one accepts that a trial of a prospective enemy is taking place, both houses of Parliament under established precedent have a right to a say in the outcome. Bills of attainder skip the normal reading and committee stages of bills and have an association with death.

    Did the Commons fail to exercise its constitutional duty in 2003 under established precedent to raise primary legislation through a bill of attainder? Such a bill would have required Royal approval and the evidence presented by Professor Sir Christopher John Greenwood QC in his legal opinion tendered to Parliament October 2002 suggests that the Regent would have passed such a bill into law.

    Re: Questions Regarding Constitutionality
    http://en.wikipedia.org/wiki/War_Powers_Resolution
    Pub.L. 88−408, 78 Stat. 384, H.J.Res.1145, August 10, 1964
    http://en.wikisource.org/wiki/H.J._RES_1145
    (50 U.S.C. 1541–1548): Chapter 33—War Powers Resolution
    http://www.law.cornell.edu/uscode/html/uscode50/usc_sup_01_50_10_33.html
    The Legality of Using Force against Iraq
    http://en.wikipedia.org/wiki/Christopher_John_Greenwood
    House of Lords: HL Paper 236-I; Jul 27, 2006
    Waging War: Parliament’s Role and Responsibility
    http://www.publications.parliament.uk/pa/ld200506/ldselect/ldconst/236/236i.pdf

    • Lord Norton
      Lord Norton
      20/10/2010 at 9:08 pm

      Senex: The two-thirds majority provision on Fixed-Term Parliaments could be changed by a new Act passed by a simple majority. The War Powers Act has constitutional implications, but not necessarily in terms of constraining the President. Various scholars have seen it as strengthening the President. Congress has the power to declare war, but Presidents have the capacity to wage war. In the 20th Century, American troops were committed to action abroad on more than 100 occasions. Congress declared war twice. The President also, of course, found ways round requiring Senate approval for treaties through negotiating executive agreements. Treaties in the UK are now brought within Parliament’s ambit under the Constitutional Reform and Governance Act 2010. The differences are not as great as you appear to believe.

      On the role of the Commons, the Lords has not sought to exercise its powers in relation to the commitment of forces, believing that this ultimately is a matter for the Commons. That is not to say that we cannot have an input.

  10. Senex
    21/10/2010 at 11:21 am

    “On the role of the Commons, the Lords has not sought to exercise its powers in relation to the commitment of forces”

    Why? Please explain the rationale for this.

    “The two-thirds majority provision on Fixed-Term Parliaments could be changed by a new Act passed by a simple majority.”

    If the Act is going to add to Common Law then fair game. But the change will or should be a constitutional one. For either case you make the point I made earlier that Acts that supply the Common Law are at the same level as those that create Constitutional Law in terms of the voting arrangements. This promotes and encourages constitutional politics at the expense of genuinely needed constitutional change that protects the British people over the longer term.

    It is unfortunate that a two thirds majority was not the case in 1911 because the Parliament Act would ‘never’ have been possible?

    Now here is the nub of the political differences between us. It seems you would keep the present arrangement just to allow the game to start whilst I on the other hand would make it awkward for that game to begin.

    The house has a real prospect of having its dignity restored through suffrage. Yet if the house in exercising its new found authority were to upset the executive that executive would simply vote in a new Parliament Act and history would repeat itself. This I feel would suit you too.

    The US, UK and Russia have in recent years all used their legislatures to dispense arbitrary justice in kangaroo courts. Disgraceful as this may be the US and Russia have at least had a mandate from both houses of their legislatures to commit armed forces.

    All three cases have taken place in a vacuum without any international law prescribing that an ambassador with defence lawyers should be present to defend what has amounted to in practice to be unreliable evidence and no acquittal has been possible. This has brought all of their legislatures into disrepute and undermined the values of democracy.

Comments are closed.