Canada’s Royal Succession Bill

In 2011, at a meeting of the Commonwealth Heads of Government held in Perth, Australia, the 16 countries which have Queen Elizabeth as their head of state agreed to modernize the rules of royal succession. The proposed changes would put an end to three current practices:

  • male children inheriting the throne ahead of their older, female siblings.
  • a ban on a monarch or direct heir to the throne marrying a Roman Catholic.
  • the requirement for all descendants of George II to obtain the monarch’s permission to marry or else have their marriage declared void.

The Canadian government recently introduced Bill C-53, An Act to assent to alterations in the law touching the Succession to the Throne. A motion was moved, and agreed to unanimously, to give the bill second and third reading the same day, and it is now before the Senate.

For many, however, the Canadian bill is problematic and potentially even unconstitutional. Essentially, it merely assents to the Bill currently before the UK Parliament. You can track the progress of the UK bill as well as read it in its current form here. By merely assenting to the UK bill, Canada is merely agreeing with whatever changes are ultimately adopted by the UK Parliament.

Many constitutional experts are arguing that this approach is not sufficient, and that Canada would actually be required to amend its Constitution in order to adopt these changes. The constitutional amendment would also require the support of all of the provinces.

I am by no means a constitutional expert, and so I will  link to articles written by people far better qualified to explain this complex issue.

1. For an excellent overall background piece, please read Janyce McGregor’s Canada’s royal baby bill risks constitutional complications. McGregor explains how this issue came about, and provides an overview of the main constitutional arguments in a very accessible way.

2. For a more detailed discussion of the constitutional questions raised by Bill C-53, please read Prof. Philippe Lagassé’s The Queen of Canada is dead; long live the British Queen:

If the United Kingdom cannot legislate the rules of succession for the Canadian Crown, it follows that Canada must have the power to determine the rules of succession for its Sovereign and head of state. At present, the Canadian rules of succession are those that were inherited from the United Kingdom. And an argument might be made that they must mirror those of Great Britain absent a constitutional amendment, owing to the preamble of the Constitution Act, 1867. But mirroring the British rules does not mean Canada can simply assent to British bills to bring its succession into line with the United Kingdom’s. If Canada is a sovereign state and has an independent Crown, the Canadian legislatures—Parliament and the provincial legislatures—must pass substantive legislation to ensure that Canada’s rules of succession reflect those of Great Britain, not merely assent to a British law. Here again, the Governor General’s granting of Crown consent to the Canadian bill indicates the government is at least partially aware the British and Canadian Crowns cannot be affected by the same British law.

3. Australian constitutional expert Anne Twomey is also baffled by the Canadian government’s approach, as she explains in The royal succession and the de-patriation of the Canadian Constitution:

Hence, all that the Canadian Bill appears to do is to agree to a change in the law of succession in relation to the British Crown that does not in any way affect, or purport to affect, the succession to the Crown of Canada. The consequence would be that if the eldest child of the Duke and Duchess of Cambridge was a girl and a later child was a boy, the girl would become Queen of the United Kingdom and the boy would become King of Canada (assuming that neither jurisdiction had become a republic by that time).

(…)

Likewise, s 2 of the Canada Act 1982 provides:

No Act of the Parliament of the United Kingdom passed after the Constitution Act, 1982 comes into force shall extend to Canada as part of its law.

It would therefore seem to be abundantly clear that a Canadian law that simply ‘assents’ to a British law that changes succession to the British throne, does not and cannot affect succession to the throne of Canada.

Similarly, the Canadian Royal Heritage Trust argues:

Queen Elizabeth II was proclaimed in Canada as the Sovereign and “Supreme Liege Lady in and over Canada to whom we acknowledge all faith and constant obedience” before she was proclaimed Sovereign in the United Kingdom. Of course Elizabeth II had become the Queen of both countries the instant that her father had died, by virtue of the laws of Succession. Her sovereignty was announced to her peoples, not granted, by the respective Accession Proclamations, but Canadians were able to recognize who their Sovereign was without reference to any proclamation of recognition in the United Kingdom because the laws of Succession in the two countries produced the same Sovereign. If there were no laws of Succession in Canada the Canadian Accession Proclamation in 1952 could not have been issued first. For the record, it was the already proclaimed Queen of Canada who was then proclaimed as Queen of the United Kingdom.

Of course, not everyone agrees with these arguments. For example, Prof. Mark Walters of Queen’s University dismisses these concerns:

The question has produced controversy — but it shouldn’t.  The short answer is simple: under the law of the Constitution of Canada, the king or queen of Canada is whoever happens to be the king or queen of the United Kingdom. Although the government of Canada introduced a bill into the Canadian Parliament this month that, when enacted, will express “assent” to the changes to the rules of royal succession to be made by the British Parliament, this assent will be given as a matter of constitutional practice or convention only; it is not required by, and it will have no effect within, Canadian constitutional law. Again, the rule of Canadian constitutional law is simply that the Crown in Canada is worn by whoever wears the Crown in the United Kingdom. While British rules on who wears the Crown in Britain are complex and open to change from time to time, the Canadian rule on who wears the Crown in Canada is simple and, for the time being, fixed.

Further Reading:

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Coalition government is not a marriage

On 7 January 2012, Conservative Party leader David Cameron and Liberal Democrat Party leader Nick Clegg held a joint press conference, which you can watch here, to promote the Coalition government’s Mid-Term Review. That review lists what the government says it has achieved in meeting its coalition agreement and outlines further reforms to come. Both Cameron and Clegg stressed that the coalition would last the full five-year term.

One of the stranger questions asked during the press conference was if the coalition was like a marriage. Indeed, when Cameron and Clegg held their first press conference together back in 2010 to launch the coalition, some of the press coverage read as if it should have been on the Society pages rather than in the Politics section (see for example, this piece, or this one). Cameron answered that question thusly:

“To me it’s not a marriage, it’s a Ronseal deal, it does what it says on the tin – we said we would come together, we said we would form a government, we said we would tackle these problems, we said we would get on with it in a mature and sensible way, and that is exactly what we’ve done.”

This prompted the BBC’s political editor to write a column entitled: Coalition: Official – it’s not a marriage. The column starts:

It’s not a marriage. It never was. They were never in love so they are not renewing their vows.

That, in summary, is the reaction inside Downing Street to how the media, including me, have spoken about today’s joint news conference to be held at Downing Street by David Cameron and Nick Clegg.

Robinson goes on to explain:

The reason this debate about terminology is revealing is that both sides of this coalition have concluded that all this talk of marriage is toxic as it invites hacks like me to conclude that the Tory and Lib Dem partners are still “in love” – something which infuriates many of their natural supporters – or preparing to “divorce” in the run-up to the next election.

The Cameron/Clegg talk of their strengthened “shared purpose” was, of course, always going to make it hard to resist the temptation to ask whether both men are protesting too much. I doubt that many hacks today will resist.

It’s not surprising that the UK media haven’t known exactly how to cover the coalition – it is a rarity in First-Past-the-Post jurisdictions such as the UK. Indeed, the UK media, almost from day one, has regularly speculated not on if the coalition would collapse – that seemed to be a given, but when this would occur. At times it seemed that every single policy was “the one that will tear the coalition apart”, bring about the aforementioned “divorce”.  What the press have failed to understand is that, in the words of the Constitution Unit’s Robert Hazell, is that the UK has a coalition government, but not a coalition Parliament.

The Conservatives and Liberal Democrats have not merged their two parties, therefore it is not surprising – or at least, should not be surprising – that the backbenches of each party often disagree. Such disagreement in the House does not mean that the coalition itself is coming apart at the seams. Indeed, even the parliamentary splits aren’t always divisions between the Lib Dems and the Tories, but divisions within the Conservative Party itself, as this other analysis from the Constitution Unit explains. A coalition is not merger of two parties; it is an attempt by two parties to find common ground in order to govern jointly.

Deputy Prime Minister Nick Clegg was questioned by the House of Lords Constitution Committee on 9 January 2012 and addressed many of the issues surrounding the workings of the coalition, in particular how it impacts the doctrine of collective ministerial responsibility. It’s an interesting discussion and I recommend watching it.

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Why a referendum on Lords reform is a bad idea

On 23 April 2012, the Joint Select Committee reviewing the Government’s Draft House of Lords Reform Bill released its report.

Real life has not allowed me sufficient time to properly read through the entire report, available here, however I do want to take a few minutes to focus on one recommendation the Committee put forward, and that is the call for a referendum:

87. The Committee recommends that, in view of the significance of the constitutional change brought forward for an elected House of Lords, the Government should submit the decision to a referendum.

Part of me sort of understands why some believe significant constitutional change should be subject to a referendum for the people’s approval, but a larger part of me strongly believes that constitutional change is not at all something that should be put to a popular vote because the issues are simply too complex for most voters to make a well informed choice.

That undoubtedly sounds horribly elitist, and I agree. Doesn’t mean it isn’t true, however.

There is much opposition to Lords reform in the UK, not simply to the proposals put forward by the Government in its draft bill, but to the very fact that the Government is even proceeding with such an initiative. Many – mostly Conservatives – fear that the Government will waste too much time and effort trying to get Lords reform through parliament, while there are far more important matters – namely the economy – that should be their main focus. Another reason put forward as an objection is that “people don’t care” about Lords reform, the implication being that since it isn’t a priority issue for the vast majority of people, the Government shouldn’t bother with it:

But the issue of Lords reform remains a faultline in the coalition. Lib Dem ministers are determined to press ahead with legislation to make the upper house largely elected, while Tory MPs and peers from all wings of the party spent the weekend identifying it as a key example of a policy showing the government out of touch with the concerns of voters.

Among the Tories joining that protest on Sunday were Lord Fowler, who said it was “bad politics” and not worth any votes, Tim Yeo, who said Lords reform should be “relegated right to the bottom of the queue” and Julian Brazier, who said it was a “ridiculous fringe” policy.

There is some truth to the above. Lords reform – and most political and constitutional reform – is somewhat of a “fringe” policy. Even among many who are keenly interested in politics, issues such as Lords reform (or Senate reform here in Canada) don’t interest them. Among the population at large, these issues simply don’t register. No party will win or lose an election because of its position on Lords or Senate reform – these simply aren’t issues that resonate with the majority of voters.

This doesn’t mean that they aren’t important issues, or that governments shouldn’t proceed with constitutional reforms. A lot of the business of government deals with pieces of legislation of which the general public probably remains blissfully unaware. Do you really think the majority of people are aware of or have an opinion on the Civil Aviation Bill? Does this mean the Government shouldn’t proceed with it? Of course not.

The Government acknowledges that people don’t care about Lords reform, and this is one of the main reasons why they reject calls for a referendum. For example, Deputy Prime Minister Nick Clegg said in a television interview:

“Why is it that we should spend a great deal of money, millions of pounds of taxpayers’ money, asking the British people a question which frankly most people don’t worry about very much?

“I think to subcontract to the British people an issue which the politicians at Westminster just can’t deal with, I think is asking a lot of the British people.”

Ironically, calls for a referendum on Lords reform is strongest among those who oppose said reform – because they see it as the surest way to defeat any attempt at reform.

Whether or not Lords reform enjoys popular support isn’t really the issue, however. As I stated at the outset, it’s simply too complex an issue to put to a Yes or No vote, and this is true of probably all constitutional reform.

If you bothered to follow the hearings of the Joint Select Committee reviewing the draft bill, which I did, one thing that you would have noted is that there was often very little agreement between supposed constitutional and political experts as to what the proposed reforms would mean or how they might impact the functioning of Parliament. If people who are experts in this area can’t agree on these matters, it’s asking rather a lot of the general population to decide the matter.

The Lords reform bill, assuming one actually does get through Parliament, which isn’t guaranteed, will be an extremely complex bill. If put to a referendum, the question will be on accepting the reform package in its entirety – there won’t be individual votes on the various component parts of the bill. What if someone is very much in favour of Lords Reform, but is adamantly opposed to one or two provisions of the bill? Do they vote to reject the entire package, or do they grit their teeth and vote in favour anyway? And if someone is completely oblivious to the issue as it makes its way through Parliament, how are they supposed to vote? Will they even bother? The 2011 referendum on the Alternative Vote demonstrated how easily the No side was able to mount a campaign based largely on half-truths and outright falsehoods, and AV is extremely simple to understand compared to the complex issues raised by House of Lords reform. I really can’t think of any issue less suitable to put to a referendum.

Another problem is that governments tend to treat referendum results as an absolute – it settles the entire issue, not just the matter being voted on. For example, it was quite clear that a “No” vote in the AV referendum was going to be interpreted as a rejection not only of the Alternative Vote, but also of electoral reform in general. Many people voted against AV because they wanted a more proportional voting system – their “No” vote was truly a no to AV, not a no to all electoral reform. Yet the government clearly indicated that the result meant an end to discussions of electoral reform for the foreseeable future. Similarly, it is very likely that a “No” outcome in a referendum on Lords reform would be interpreted not as a defeat of the specific measures put forward in the bill being voted on, but as a “No” to the very idea of reforming the House of Lords.

I am not a huge fan of referendums in general. I don’t think there are many questions which lend themselves well to a general yes/no vote. Constitutional reform is very complex, usually raising many issues which require specialist knowledge to fully understand. I would perhaps see some value in seeking input via referendum on the principle of reform, e.g. before bringing a bill forward, to see if there is general support for the idea of proceeding with said reform, but not in putting the reform package to a popular vote. Ours is a representative democracy, meaning we elect our MPs to make these decisions on our behalf. On an issue such as Lords reform, they will be far better placed to judge the value of whatever reforms are brought forward than would the general public.

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The Primacy of the Commons and Lords Reform

As I have previously written, the UK Government has brought forward a draft bill on reforming the House of Lords. A Joint Select Committee – meaning a committee with membership drawn from both the House of Commons and the Lords – has been holding a series of meetings hearing from constitutional and other experts.

I have been following some of these hearings with great interest, either watching the meetings on the UK Parliament website, or reading through the written evidence, and sometimes both. If there has been a common theme emerging, it would be the issues of whether a partially or fully elected Lords will challenge the primacy of the House of Commons. The consensus, at this stage, would seem to be yes, it will.

The draft bill attempts to ensure this won’t occur in Clause 2, the “General Saving” clause. Section 1 of that clause reads:

2 General saving
(1) Nothing in the provisions of this Act about the membership of the House of Lords, or in any other provision of this Act—

(a) affects  the status of  the House of Lords as one of  the  two Houses of Parliament,
(b) affects the primacy of the House of Commons, or
(c) otherwise affects the powers, rights, privileges or jurisdiction of either House  of  Parliament,  or  the  conventions governing  the  relationship between the two Houses.

Clause 2 of the draft bill seeks to protect the primacy of the Commons and the conventions governing the relationship between the two Houses, but the majority of witnesses have expressed doubts or reservations about how effective legislative provisions can be in circumscribing the behaviour of a reformed House of Lords.

What is meant by the primacy, or pre-eminence, of the House of Commons is that when there is disagreement between the two Houses, the will of the Commons normally prevails. This convention stems from certain provisions in the Parliaments Act, as well as through a couple of other provisions that have given the Commons greater powers: the Constitutional Reform and Governance Act, which has given the Commons a role in relation to treaties, and the Localism Act, which has given the Commons a role in relation to national policy statements. Other conventions further strengthen this, such as the financial privilege of the Commons. By invoking this privilege, the Commons is entitled to disagree with any amendment put forward by the Lords and reject it without having to provided any reasons for doing so, other than claiming the existence of said privilege. The Lords traditionally accept this. Another convention which ensures the primacy of the House of Commons is the Salisbury-Addison Convention, which has evolved so that is is now the case in the House of Lords that not just manifesto Bills, but, normally, all government Bills get an undisputed Second Reading. However, perhaps the principal check on the Lords over-ruling the Commons is the recognition that the House of Commons is elected, the Lords appointed, and thus the Commons has a greater legitimacy given its popular mandate.

Of course, if the Lords were partially or fully elected, the argument that they lack a popular mandate no longer exists, and many fear that this will lead to gridlock between the two Chambers. Elected peers will be less reticent to continue to fight the Commons over amendments to bills, for example. Certain powers that the Lords have but rarely or never exercise, or exercise only in a very limited way, because of their current lack of a popular mandate, could be dusted off and used.

This view was expressed by many of the witnesses who appeared before the Joint Committee (and was expressed by members of the Committee themselves). Here are a few examples from the written evidence. During his appearance before the Committee on 23 January 2012, David Beamish, Clerk of the Parliaments, stated:

Thirdly, Clause 2 seeks to protect the primacy of the House of Commons and the conventions governing the relationship between the two Houses. While the Parliament Acts certainly ensure that the will of the Commons can usually prevail, I have reservations about how effective legislative provisions can be in circumscribing the behaviour of a reformed House of Lords. (p. 5 of the uncorrected oral evidence)

When Lord Pannick appeared before the Committee on 30 January 2012, he was asked if he agreed with the view expressed by Lord Goldsmith that if the House of Lords were to be fully elected, the Parliament Acts would no long apply. Lord Pannick responded:

My opinion is that the better view is that the 1911 Act would no apply in the event that the upper Chamber were wholly or mainly elected. I say that for these reasons. First, the Preamble to the 1911 Act makes it very clear indeed that Parliament’s intention was to move in the future to a second Chamber that was popularly elected. Secondly, it is clear to my mind that the purpose of the Parliament Acts was to regulate the relations between the two Houses at a time when one House was elected and one was not. Thirdly, there is no material that I can see in the Hansard debates that suggests that the 1911 Act was intended to apply even when we moved at some time in the future to a position where both Houses would be elected. The conclusion that I have drawn from this is that it is absolutely vital, in my opinion, for the reform Bill to specify with clarity whether or not it is the intention that the Parliament Acts should continue to apply in the even of there being a substantially or wholly elected upper Chamber. (…) I think that the better view is that the 1911 Act would not continue to apply, but it seems to me wholly desirable for the matter expressly to be addressed in the Bill. I do not think that the current Clause 2 of the Bill adequately addresses that question, not least because it does not specifically refer to the 1911 Act; it refers to provisions affecting the primacy of the House of Commons, which is ambiguous. (pp. 6-7 of the uncorrected oral evidence)

Lord Cunningham of Felling, who testified on the same day as Lord Pannick, had this to say about Clause 2 in his opening statement (pp. 31-32 of the uncorrected oral evidence):

In Clause 2 of the Bill, which, trying to be kind, I can describe only as disingenuous, there are a number of naive propositions. it is almost like someone walking off a cliff-edge in the dark. It suggests that all these things can happen – that profound changes can take place – but nothing else will be changed. (…) The purpose of this draft Bill and any legislation that follows it is to empower the second Chamber. It is to make it an entirely different place. In the eyes of the public and those elected, it is to have a mandate of at least equal authority to that of the people in the House of Commons. That is, by any test, a profound change. That empowerment cannot be denied by custom and practice, convention or any other of the arrangements that currently obtain between the two Chambers. If it does not change those things, it is a denial of the mandate an the power of election.

He then referred to international examples of elected second chambers in Japan, Australia and the United States and added:

People say that Members elected to the upper House in the United Kingdom will not have constituency duties or correspondence. They will not act a though they were elected Members. That beggars belief. Senators in America have the most powerful committees in Congress. They take a view on international relations, defence, energy policy, the environment and global warming. Of course they do that; they feel, as elected Members, that they have every right to do so. I share their view.

Two members of the Joint Committee attempted to argue that an elected Lords would have a lesser mandate than the House of Commons, therefore the primacy of the House of Commons wouldn’t be undermined. Baroness Symons of Vernham Dean asked Lord Cunningham which of the two Chambers would have a stronger mandate on the basis of the size of their electorates (76,000 for a Member of the House of Commons versus 570,000 for a Lord). Lord Pannick rejected this, stating:

A mandate is a mandate, regardless of the size of the electorate. It is true to say that if someone is elected by an electorate of between 500,000 and 600,000 voters, that is a much broader sweep of the electorate. Therefore, it  could be argued that that is a stronger, more representative mandate, but I would not get carried away about that. I do not think that anyone says that the two Senators who represent a state in the USA where there are millions voting for them have a better mandate than members of the House of Representatives. As Lord Richard and I discussed earlier, it is just that, on  the basis of how the constitutional 52 and other arrangements in Congress  have evolved, the Senate has become more powerful. However, that is not related to the number of voters. (p. 51)

Similarly, MP Gavin Barwell asked: “Could I put it to you that someone who is elected in a general election on a turnout of 70%, when the election is specifically to form the Government of the country, has a greater mandate than someone who is elected in a multi-Member constituency on a lower turnout for the explicit purpose of membership of a second Chamber? Would you not accept that the level of mandate in those two situations is different, or do you see them as equal mandates?”

The following exchange then took place (p. 56):

Lord Cunningham of Felling: You can put it to me, but I do not agree. It is like saying that Members of the European Parliament or Members of the devolved Administrations do not have a mandate.
Gavin Barwell: I did not say that anyone did not have a mandate. It is about the level of mandate.
Lord Cunningham of Felling: A mandate is a mandate.
Gavin Barwell: No,  it  is not. For example,  I put  it  to you  that  the Mayor of London, elected by millions of Londoners, has proven to have a much stronger mandate than the  old  leader  of  the  GLC  had.  There  is  a  difference. Mandates  come  in  different degrees.
Lord Cunningham  of  Felling:  You  are  comparing  apples with  pears,  are  you  not? There was no elected mayor under the GLC, so you are not comparing like with like.

Mr. Barwell raised the same point with another witness, Lord Grocott, again finding that few agree with his “lesser mandate” theory:

Gavin Barwell: My question is for Lord Grocott and picks up the question that I put to Lord Cunningham. You described your role as a back-room boy and said that at the moment there is a presumption that the House of Commons has primacy. Is primacy a digital quality or an analogue one? In other words,if you moved to the world envisaged in this draft Bill, what would the presumption be of someone doing the kind of roles in which you have been involved?
Lord Grocott: Inevitably,if I was the Chief Whip of an elected Labour group in the House of Lords, my position would be pretty much the same as being Chief Whip of a  72 Labour group in the House of Commons. That is to say, my Members would have been elected on the most recent manifesto and the job would be to deal with that. Frankly, on many of the Bills coming from the coalition now, there would be a whipped vote to vote it down, preferably at Second Reading, and to harass it at every stage, if not at Third Reading. That is how it would operate.
Gavin Barwell: Let me pick up on two of those points. Assuming that the draft Bill went through, you would be a Labour Chief Whip in a House that was 80% elected, not 100% elected, and two-thirds of your Members would have been elected prior to the most recent general election for the House of Commons. Would you still feel that you had a mandate equal to that of the House of Commons under those circumstances?
Lord Grocott: It is not so much what I would feel as what the individual Members would feel. Presumably they would all go back to their constituency parties—we all have different mechanisms—but it would be difficult to do so and say, “I really dislike this Health Bill. In fact, you told me not to vote for things like this when you selected me as a candidate, but I’ve got to recognise the primacy of the House of Commons so I’ll go along with it.”  The answer is that it would be impossible to  sustain your position in relation to your own party unless you operated in pretty much the same way as Members of the House of Commons operate. (uncorrected oral evidence, 30 January 2012, pp. 71-72)

I could quote many more instances of witnesses objecting to the idea that the primacy of the House of Commons wouldn’t be affected by a partially or (in particular) a fully elected upper Chamber, but you get the general idea.  One only has to do a search for the word “primacy” in the Written Evidence submitted to the Committee to see that few agree that Clause 2 will suffice to guarantee the primacy of the lower Chamber. Lord Cunningham stated as much: “I have read some of the submissions on Clause 2 of the draft Bill. I do not think that I have read anything complimentary about it.” (p. 46)

However, one witness before the Joint Committee had a very different view. MP Graham Allen, who is also the Chair of the Commons Select Committee on Political and Constitutional Reform, argued that what existed in the UK system was not the primacy of the House of Commons, but rather:

the primacy of Government. We have Executive sovereignty. I think that there is an opportunity again here for those of us in the first and second Chambers to work together more effectively to do what Gladstone said of the role of the House of Commons, which is not to run the country but to hold to account those who do. (…)

Then there is the issue that occasionally gets raised in the context of primacy, which is that  somebody has got  to win. Virtually no western democracy  thinks  like  that. You can  have  independence within  your  institutional  settlement,  and  it works,  provided that  you have  reconciliation. An  effective process of  reconciliation  can be  found  in almost  every  other  democracy.  The  second  and  first  Chambers  working  together could quite  easily  come  to have  common  custom  and practice on  reconciling  their views  and  I  think  that  that  would  make  us  stronger  in  holding  Government  to account. (from the uncorrected oral evidence, 23 January 2012, p. 26)

There are a myriad of other key issues being raised in these hearings, and I urge you to either watch the archived evidence sessions, available here, or read through some of the written evidence, available here. The next hearing is scheduled for 27 February 2012, with Deputy Prime Minister Nick Clegg and Mr Mark Harper MP, Minister for Political and Constitutional Reform.

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Some Interesting Links

Blogging has been and will continue to be rather light over the next few weeks due to other pressing demands that arise during the holiday season. However, I do want to share a few interesting links with readers.

1. Codifying the UK Constitution

Last year, the UK House of Commons Political and Constitutional Reform Committee launched an inquiry into Mapping the path to codifying – or not codifying – the UK’s Constitution. On 8 December 2011, a fourth hearing took place, with the following individuals appearing as witnesses:

  • Rt Hon Tony Benn, former parliamentarian
  • Richard Gordon QC
  • Frank Vibert, Department of Government, London School of Economics

It was a fascinating discussion, and you can watch it in its entirety here.

2. Constitutional Crisis in Papua New Guinea

At the time of writing this, Papua New Guinea (PNG) finds itself with two Governors General, two Prime Ministers, two cabinets and two police commissioners. The Australian provides a good backgrounder to how this situation came about here. Australian and New Zealand media seem to be covering the story quite well. For anyone on Twitter, you may be interested in following @Tavurvur, who has been tweeting regular updates about the crisis. He also blogs.

3. Canada’s Governor General

The Walrus magazine has an interesting, in-depth profile of Canada’s current Governor General, His Excellency the Right Honourable David Johnston. The article also contains quite a bit of information about the post of Governor General.

4. Changing the Rules of Royal Succession: Committee Report

As I have previously mentioned, the UK Political and Constitutional Reform committee conducted an inquiry into changing the rules of royal succession. The Committee’s report was released on 7 December 2011, and you can read it online here.

5. Call for Evidence: Recall of MPs

The UK Coalition Government has put forward a draft bill on the recall of MPs. The House of Commons Political and Constitution Reform committee is examining the Government’s proposals and is soliciting public input. If you are interested in putting forward your views in the draft bill, please read this page for how to proceed. The deadline for submissions is 30 January 2012. You do not have to be a resident of the UK to comment.  (For more information what is a draft bill, you may want to read this post.) The Canadian province of British Columbia is the only Canadian jurisdiction which has recall legislation in place, as I discussed in this post.

Related Posts:

Some interesting links

1. The Big Society

The Canadian media has recently been reporting that the current Conservative Government is considering emulating the UK Coalition Government in adopting David Cameron’s Big Society. Some of what has been written here in Canada is critical of this, which is their perogative, but I found that they often failed to adequately explain the plan. See, for example, this post by Murray Dobbin, in which he dimisses the initiative as “social engineering from the right” and pointing out that the Big Society “scam” has been “widely ridiculed” but makes little effort to explain how it’s supposed to work. I am not argueing for or against this initiative, but I did think some Canadians (and perhaps some Brits) might be interested in learning more about it via David Cameron himself. Cameron appeared before the UK House of Commons Liaison Committee earlier this week and answered questions on a variety of issues, but a lot of the focus was on the Big Society. Canadians unfamiliar with the UK will not always understand exactly what he is talking about or referring to, but there is still enough information provided to perhaps provide some insight into what Cameron hopes the Big Society will be. You can either watch proceedings here, or read a transcript.

As a side note, this might be of added interest to Canadians who are likely to find the sight of a PM answering questions before a House of Commons committee for 90 minutes a rather mind-boggling affair.

2. New Zealand referendum on its electoral system

New Zealand adopted Mixed Member Proportional (MMP) in 1996, and in the 2008 election, the National Party promised to hold another referendum asking New Zealanders if they were satisfied with MMP or if they wished to change it. That referendum will take place on 26 November, and Australian elections expert and blogger Antony Green will be going to New Zealand for the last week of the campaign and will provide more details on the referendum and the election over the next two weeks. His first post on the referendum looks at New Zealand’s view of Preferential Voting, which is the voting system Australia uses. Those interested in electoral reform may want to bookmark Antony’s blog to keep track of his future posts. For those unfamiliar with the debate in New Zealand, you might find this piece of interest.

3. Rules of Royal Succession

At the recent meeting of the Commonwealth Heads of Government, the leaders of the member nations agreed to change the succession rules and give female members of the Royal Family the same rights to the throne as men, and to end the ban on heirs to the throne marrying Catholics. This hasn’t prompted much debate in Canada, but if you’re interested in the constitutional aspects of these changes, you might find this meeting of the UK House of Commons Constitutional and Political Reform Committee worth a listen. The witnesses are Professor Robert Blackburn, Kings College London, and Dr Robert Morris, Constitution Unit, University College London. While most of the discussion is focused on the UK, they do raise some of the issues facing Commonwealth jurisdictions, including Canada.

4. A UK Clarity Act?

According to this article in the Independent, the UK is considering adopting its own version of Canada’s Clarity Act in order to counter the Scottish Nationalist Party (SNP)’s drive towards a referendum on independence for Scotland.

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Initial thoughts on the Lords’ Reform proposals

Having had some time to consider the Coalition Government’s White Paper on reforming the House of Lords, I do see a few potential issues that hopefully will be addressed during the consultation process. You can read my blog post summarising the proposals here.

1. Accountability

The first is that of accountability. The main argument for an elected House of Lords is that it will be more accountable than is the current appointed House.

To address this matter, the White Paper proposes that 80% of the members of the House of Lords, 240 peers, be elected and that they serve one non-renewable term which would, in theory at least, last about 15 years (three “normal” election cycles).  As many others have pointed out, once elected who are the new peers accountable to? Democracy is about being accountable to the people. Being able to get rid of someone is as important as the ability to elect them in the first place. If a peer never has to face the electorate again, I don’t see how this makes them more accountable to anyone. They’ve simply gone from being appointed for life by the PM to being appointed for 15 years by voters.

2. Term length and limits

One of the main strengths of the House of Lords (and Canada’s Senate), is that they have the luxury of time to specialise in certain policy areas given that they are not subject to the vagaries and fickleness of public opinion and elections. Consequently, I do agree, if we are moving to an elected upper chamber,  that a peer should serve a much longer term than would an MP, but I would cap it at perhaps eight or 10 years, and I would allow them to seek re-election. It would strike me as unfortunate to lose the services of a very capable peer, who, over the course of their term, had gained great expertise in a given area of policy, because of a somewhat arbitrary term limit. A peer who is making a recognized contribution should be able to seek re-election, and voters should have the right to judge the performance of elected peers at the ballot box, which they won’t be able to do if peers are limited to serving only one term.

3. Increased legitimacy

Another issue to consider is if a House of Lords elected by proportional representation might not be viewed in some ways as more legitimate than the House of Commons elected by FPTP because it would better reflect actual voting patterns. We’re all too familiar with “majority” governments elected with much less than a majority of the popular vote under FTPT, leaving a majority of the electorate feeling rather disenfranchised. If the upper chamber is elected by some form of proportional representation (the draft bill proposes the Single Transferable Vote but they are open to other options), it will more closely embody the actual political mood of the country.

Imagine a scenario where a general election for the House of Commons returns a majority government for one party, and that party received barely 36% of the vote, while the 80 peers elected at the same time lead to a House of Lords which reflects the popular vote. How will this play out in terms of the Salisbury Convention? Will the peers still feel bound to not opposing any bill based on a manifesto pledge supported by less than half of the electorate if their own numbers are far more reflective of the actual political make-up of the country?

The White Paper stresses that the House of Commons will remain the primary House of Parliament, even with a mostly or wholly elected House of Lords, but it remains to be seen if that would be the case.

4. Numbers

The White Paper proposes reducing the membership of the House of Lords to 300. One can quibble about the exact number, but I don’t think too many will disagree that the current membership numbers (over 800) is unmanageable and unsustainable. Indeed, the House of Commons Political and Constitutional Reform Committee warned recently that this was a serious issue that should be addressed immediately and separately from any other reform initiatives that might well take years to implement – if they ever are implemented:

7. 117 new Members of the House of Lords have been announced since May 2010. Of these, 61 were on the recommendation of Rt Hon David Cameron MP, the current Prime Minister, and 56 on the recommendation of Rt Hon Gordon Brown MP, the former Prime Minister. This has led to several problems, on which a Leader’s Group in the Lords has reported: risk to the House’s reputation, difficulty of conducting business effectively, and pressure on the services provided by the House administration. These problems have also been discussed in a recent report by the Constitution Unit, University College London. The Government is committed to implementing the transition to a wholly or predominantly elected House of Lords in 2015. However, the current, effectively untrammelled, process for making party-political appointments to the House of Lords, coupled with the lack of any mechanism for Members to leave the upper House, threatens that House’s effective functioning in the shorter term.

8. This is a pressing issue that cannot wait four years to be resolved. Many of the recommendations of the Leader’s Group on leaving the House of Lords could be implemented without the need for legislation, in particular their plea “that restraint should be exercised by all concerned in the recommendation of new appointments to the House, until such time as debate over the size of membership is conclusively determined.”

This call to “all concerned” is diplomatically phrased, but in practice, the person who ultimately exercises control over the number of new appointments to the House of Lords is the Prime Minister.

9. We also heard substantial support for Lord Steel of Aikwood’s House of Lords Bill, in particular the provisions that would allow Members of the Lords to choose to leave the House, and to remove absentees and those sentenced to more than a year in prison.

It might be worth considering prioritizing the various aspects of Lords’ reform in such a was as to separate some issues that need immediate attention, and that could be addressed rather more easily from the more contentious issues that might take years to find agreement on and implement.

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Justifying constitutional change

Today’s Quote of the day, from Telegraph columnist John McTernan, starts off “Constitutional reform is a waste of time, pure and simple.” While McTernan goes on to explain that this is because constitutional reform rarely achieves what it sets out to do, another argument as to why it may be considered a “waste of time” is that the general public is rarely interested in it and would prefer government focus on issues of a more immediate concern, such as the economy, crime, etc.

This point came up several times during Deputy Prime Minister Nick Clegg’s unveiling of the Government’s proposals for reform of the House of Lords:

Sadiq Khan (Tooting) (Lab): Let us be frank: Lords reform is not near the top of any of our constituents’ priorities. They are more interested—[Hon. Members: “Hear, hear.”] I am grateful for that support; I am not sure whether the Deputy Prime Minister is. Our constituents are more interested in their schools and hospitals, and whether they will have a job at the end of the year.

Mr Andrew Turner (Isle of Wight) (Con): May I ask the right hon. Gentleman again whether he intends to continue to pursue, in the words of Lord Steel of Aikwood, “private obsessions with little public resonance—AV and an elected House of Lords, for example”?

Kate Hoey (Vauxhall) (Lab): Most people will agree that the House of Lords has become too large, but that could be changed by all the parties agreeing to stop making so many new Lords. I do not know what happens on the buses in Sheffield and what people on those buses are saying, but I certainly know that people on the Clapham omnibus in my area are not demanding the reform of the House of Lords, as they have many, many higher priorities, yet they have to see huge amounts of time, effort and money being wasted on this.

To that last point, the Deputy Prime Minister replied:

Of course I accept that many issues that we discuss in the Chamber, and many issues with which any Government must deal, may not resonate on the doorsteps, but they may none the less be significant and important to our national life. I think we all agree that it is important for world trade rules to work properly, but that is not an issue that is raised with me on the doorstep very often. It is important for us to get local government finance right, and that too is not raised on the doorstep very often, but it is none the less significant and important. The fact that an issue is not raised with us by our constituents does not mean that it is not worthy of debate. If that is not the case, I cannot imagine why Government after Government have debated this very issue for nearly a century.

Clegg makes a good point. Much, maybe even most, of what a Government does is hardly of interest or of pressing concern to the vast majority of the populace, indeed, a lot of it barely garners any press coverage. If you asked the average citizen to name five bills passed by the current Parliament, I wonder how many would be able to do so (I don’t limit this comment to the UK only – I daresay it would apply here in Canada, and in more than a few countries). Beyond cursory interest in the Budget, which is the only piece of legislation that definitely does impact virtually every citizen, most other bills and policy initiatives will be of interest to some in society, to select groups, stakeholders directly concerned with the matters the bill addresses. No one questions the legitimacy or need for such bills based solely on the fact that most citizens aren’t interested in the matter, nor does anyone argue that debating the issue is a waste of time and money. Constitutional and political reforms certainly fall into that category. I don’t see how anyone can argue that attempting to improve the functioning of the country’s political system and democratic institutions can be deemed a waste of time – it is central to ideals of good government and representative democracy. That it doesn’t capture the imagination of most people does not justify sweeping needed reforms under the proverbial carpet.

In an ideal world, issues such as Lords’ reform, electoral reform and fixed-term parliaments would generate great interest amongst the general public. The unfortunate reality is, however, that outside of general elections, most people are not that concerned with politics in general. Those who are would be a minority, and among that group, those who are very interested in issues of political and constitutional reform are an even smaller minority.  I don’t think that the fact that most citizens aren’t very interested in constitutional and political reform should be interpreted as a lack of popular mandate for a government to move forward and address such issues. That to me is akin to requiring a minimum turnout to legitimize the outcome of a referendum: equating abstentions with a vote for the “No” side. Since you can’t force people to be interested in something, disinterest should not be an excuse or justification to avoid addressing needed change.

Governments must do more than simply address issues that people want addressed – they also have to address issues that need to be addressed, even if most people might not recognize, or even care, that such change is needed.

 

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Reforming the House of Lords

Deputy Prime Minister Nick Clegg delivered a ministerial statement today outlining the Coalition’s plans for reform of the House of Lords. A draft bill and accompanying White Paper outlining the government’s proposals, which are based on the recommendations put forward by an all-party committee chaired by Clegg earlier this year, are now available online. If you’re not familiar with the concept of a draft bill, you can read yesterday’s post here.

The White Paper and bill combined add up to an impressive 174 pages, most of that being the draft bill, supporting Schedules and explanatory notes. The White Paper itself is roughly 30 pages. I will provide a summary of the key proposals here without offering my immediate thoughts on the proposals since I, like many, need more time to consider them.

The draft bill proposes reducing membership in the Lords to 300 members, which is a significant reduction. Membership in the Lords is currently around 800.  Most Lords would be elected (80% – or 240 members), with the remaining 20%  – 60 members – appointed, but if the consultation process reveals support for a completely elected Chamber, the Government would consider that. There would also be 12 Bishops sitting as ex-officio members. I was livestreaming the Deputy Prime Minister’s statement to the House and when he announced that, it got a solid round of noise from the Opposition benches. Perhaps there isn’t much support for continuing the practice of reserving seats for members of the clergy.

The draft bill outlines that the reformed House of Lords would have the same functions as the current House: scrutinizing legislation, holding the Government to account and conducting investigations. The bill does not propose changing the constitutional powers and privileges of the House once it is reformed, nor would the relationship with the House of Commons change, with the Commons remaining the primary House of Parliament.

The more interesting proposals (in my view) involve how Peers would be elected and the terms they would serve. Each elected Lord would serve a single, non-renewal term of “three normal election cycles” – meaning if the Fixed-term Parliaments Act goes through, 15 years. I haven’t poured through the bill to see if there are exceptions made for hung parliaments which might interfere with the “normal” election cycle.

The elections for the House of Lords would be held at the same time as General Elections for the House of Commons, but would be staggered, so that one-third of the seats (80) would be contested in each election – similar to what is done in the US with the Senate. Elections for the House of Lords would use a proportional system. The Government is proposing the Single Transferable Vote (STV), but are open to considering other proposals, including an open list system.

As for the appointed members, they would be nominated by a statutory Appointments Commission and recommended by the Prime Minister for appointment by the Queen. These appointed Lords, like their elected counterparts, would be staggered, with 20 appointments made each election. Appointed Lords would serve the same term as elected members.

The other changes are more administrative, involving things such as salary and allowances, tax status, etc., so I won’t bother going over those as they are of less interested to me.

All three of the main parties (Conservatives, Lib Dems and Labour) promised some form of Lords reform in their manifestos in 2010, so in theory, there should be cross-party support for moving forward with Lords reform (though perhaps not with the reforms outlined in the draft bill). However, it’s no secret that many MPs aren’t supportive of Lords reform, and of course the House of Lords itself isn’t very keen on the idea.

The Government is hoping to have this all done and sorted by 2015, which strikes me as perhaps somewhat ambitious. However, there should be some interesting debates ahead, at least for those of us who find constitutional and political reform interesting.

(See also this post for a look at some issues raised by the bill.)

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Some interesting links

1. Constitutional and Political Reform: where does the Coalition go from here?

Deputy Prime Minister Nick Clegg appeared before the Political and Constitutional Reform Committee this week and discussed all sorts of interesting issues: lessons learned from the AV referendum, recall legislation, Lords reform, etc.  You can watch the Committee meeting here.

2. It’s my Party

Samara, a charitable organization that studies citizen engagement with Canadian democracy, produced a series of reports based on exit interviews with MPs who’d decided not to seek re-election in the 2 May 2011 election. Their third report, “It’s my Party: Political Dysfunction Reconsidered” is particularly interesting as it highlights the frustrations that former MPs felt about the way politics is practiced in Parliament, laying most of the blame squarely on political parties and how they operate both inside and outside of Parliament. I do plan to write an actual post about my thoughts on this report (at some point), but in the interim, you can access the PDF here, download an ePub version here, or the mobile version here.

3. Prisoners and voting

The issue of voting rights for prisoners is simmering on the backburner in the UK. The aforementioned Political and Constitution Reform Committee reviewed the matter earlier this year. The report is available in HTML and PDF formats.

4. Some Lords reforms can’t wait

The Political and Constitutional Reform Committee warns that incremental changes which would improve the functioning of the second chamber cannot wait for radical reform of the House of Lords. You can read their (very short) report here.

5. Lessons for Scotland?

The Scottish National Party won an outright majority in the Scottish Assembly last week, and leader Alex Salmond quickly promised a referendum on independence for Scotland. Françoise Boucek suggests he might study Quebec’s travels down to the road to independence.

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