Category Archives: British Constitution

The constitutional position of referendums in the UK

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Ahead of today’s Commons vote on a possible EU referendum, some basic points that many are overlooking (originally posted as a comment over at Jon Worth’s place):

Referenda have a decidedly unclear position within the UK constitution. The people are not and never have been sovereign in the UK – sovereignty rests with Parliament (technically the Crown in Parliament), and anything that threatens parliamentary sovereignty could easily be challenged as unconstitutional. Direct democracy bypasses Parliament, therefore it easily falls into this category.

It always surprises me that anti-EU types don’t realise this, considering one of their key arguments against the EU is that it is unconstitutional for anyone/anything to be able to overrule Parliament (usually they quote the 1689 Bill of Rights – this has little/no actual legal weight, but the theory is still there).

This constitutional angle is a massively important point – advocating wider use of referenda would, if taken up, be one of the biggest changes to the UK constitution in 300+ years. It could potentially undermine the very foundations of how our political system works in ways far more widespread and unpredictable than anything we’ve seen via membership of the EEC/EU. There are no rules on what referenda should be used for, no rules on what they *shouldn’t* be used for, no rules on how they can be triggered, no rules on how they can be overruled.

Short-version – it’s dangerous to introduce any significant constitutional change without thinking through the consequences. In the rush to appease the politically vocal, we could do far, far more damage than any referendum-advocates realise.

See also: The case against referendums by Conservative peer and constitutional expert Lord Norton of Louth, whose key objections are that referendums are misleading, unbalanced and dangerous.

And also: Jon Worth making many of the same points as I do above – before we hold any more referenda, we need to work out what role they should have in the UK political system.

The European Union and British Sovereignty

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UK and EU flagsThe European Union Bill is one of those strange populist beasts announced by the Conservative Party in the run-up to last year’s general election, aimed squarely at keeping Britain’s eurosceptic right from abandoning them for the UK Independence Party (following David Cameron’s admission that he was not planning to hold a referendum on the Lisbon Treaty after it had already entered into force, despite what many eurosceptics had hoped/expected).

In short, this new bill promises to force the government to hold a nationwide referendum on any future transfer of sovereignty from Britain to the European Union – trying to put a referendum lock in place so that no future government could sign the UK up to a treaty like Lisbon (an act that caused much outrage among eurosceptics – not least because all three main parties had promised a referendum on the old European Constitution, on which the Lisbon Treaty was heavily based).

Of course, as no parliament can bind another, all any future British government that wanted to avoid a referendum would have to do is revoke this Act – if the Bill passes into law.

On top of that, the current government has realised that to hold referenda on *every* transfer of power to the EU – no matter how small – would be cripplingly expensive and inefficient, and so has opted to leave it up to ministerial discretion whether or not a transfer of power from Westminster to Brussels is significant enough to warrant a referendum. This, unsurprisingly, has greatly angered many hard eurosceptics.

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UK election: Where next?

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Just back from Japan, from where I was closely following the UK election on Twitter (your best place for my day-to-day political commentary these days, though be warned they’re usually more jokey – and sweary – than here…)

After 30 hours offline, and 44 hours after the polling booths closed, the UK still doesn’t have a new government. As such, witness the wonders of my jetlag-inspired political guesswork!

I’d be surprised if this lack of a government lasted beyond Monday morning, largely because the next government will want to look responsible – and we had some serious global financial trouble on Friday for a variety of reasons (NY stock exchange hiccough, Greek crisis, UK election uncertainty, etc.). They’ll want to have a government before the markets open, if they can…)

Here’s what I currently reckon will happen, rejigged from a few comments on Twitter:

Lib Dem leader Nick Clegg’s playing this absolutely perfectly so far – he has solid offers to join coalitions from both Labour and the Conservatives, and significant policy differences with both, and has explicitly stated that the Tories – with more seats and more of the vote – should have the right to “seek to form” a government first.

But the Tories can’t get a parliamentary majority without Lib Dem support. At least, not a stable one. Not the sort of majority that they’d need to do, well, just about anything.

But Labour and the Lib Dems combined can’t get a parliamentary majority without other parties’ support either.

Clegg has also repeatedly mentioned “the national interest” and equated this with electoral reform (unsurprising, considering Labour got only 5% more of the vote than the Lib Dems, but 5 times the parliamentary seats).

The Tories are fundamentally opposed to the sort of Proportional Representation-style electoral reform that the Lib Dems want (usually single transferable vote) – which is hardly surprising, as it would almost certainly lead to a permanent Labour/Lib Dem coalition (there being very few other parties on the centre right that are likely to end up big enough to give the Tories the backing they’d need under such a system).

So, Clegg is giving the impression that he’s willing to work with the Tories – and probably is – but his one major condition is a deal-breaker for Cameron and co.

So I’m now fairly convinced that Prime Minister Cameron’s not going to happen. If Cameron rejects PR, as he must to keep his party behind him (there have already been dire warnings from the right wing of the Conservative Party about such a move, in the shape of Thatcher-era relic Lord Tebbit), then a Lib Dem/Labour/Scottish National Party / Plaid Cymru coalition has first dibs (SNP leader Alex Salmond has already openly proposed this).

Constituionally-speaking, Gordon Brown retains first right to try to form a government, as the sitting Prime Minister in a hung parliament. With Lib Dem, SNP and Plaid Cymru support, the coalition would have an outright majority – able to outvote the Tories and their allies on anything. As such, despite his unpopularity (and calls from within his own party to step down), Brown could yet remain as caretaker PM of a coalition expressly set up to bring in electoral reform.

This would actually be a very sensible option, for several reasons:

1) It would be constitutionally unprecedented for Cameron to form a minority government in the current circumstances – he is impotent until he has enough supporters to claim an outright majority. This looks to be impossible.

2) The constitution explicitly states that Gordon Brown remains Prime Minister, so using him as a figurehead for any new coalition is – constitutionally – the least harmful in the short term.

3) Anyone unhappy with Brown remaining as PM simply adds to the case for major constitutional reform with their objections.

4) This would also give both Labour *and* the Conservatives time to sort themselves out, as they are blatantly in a shambles at the moment.

So, what I’d suggest is a short-term multi-party national coalition *explicitly* for electoral *and* parliamentary/constitutional reform, as well as to maintain some form of stability in the midst of an ongoing financial crisis, keeping Gordon Brown as a figurehead Prime Minister for constitutional reasons alone, with an explicit promise that he will step down once the basic reforms are in place to have a fresh election under a new electoral system.

One final note: There’s nothing to say – constitutionally – that the Prime Minister has to be a party leader. Nor even that he has to be an MP… The question is, is there *anyone* who could be seen as a sufficiently impartial lynchpin to take on the task of leading a coalition of (at least) four parties?

British citizenship vs European citizenship

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A point that arose in the comments to the National identity vs European identity post the other day was that of citizenship, commenter Anoldun noting that

“We were informed we were now “Europeans” when the Treaty of Maastricht was ratified, but the people had nothing to do with wanting to be EU Citizens. They were not asked if they wanted this extra ‘identity’, they did not apply for any such forms to make them citizen’s of Europe and did not even ask for or want them. None of the Commonwealth Countries that fight and die with the British, have British identities or been made British citizens, if THEY wanted to become so they would have to fill forms in etc and if we wanted to give them different identities there would be much form filling and asking of questions. No such things took place when we were made EU Citizens, asked for Passports or have to have an Identity card to prove who we are. I have absolutely no sense of belonging to “Europe” Nosemonkey and certainly none with the EU.”

Citizenship is, of course, effectively a legal codification of a certain form of identity, usually based around the notion of a nation state. EU citizenship is unusual in this regard, to be sure – because despite having certain characteristics of a state, the EU is not one. (For more on the EU as a state, and the perennial fear that it may become a superstate, please see my series of posts on the subject from earlier this year: 1, 2, 3, 4, 5.)

Citizenship as imposition

Citizen SmithThe complaint that EU citizenship has been forced upon us without our say is understandable, but if you think about it for a moment it’s also illogical. After all, the vast majority of us have had no say in what nationality we are, our citizenship having been determined by where we were born (or, in some cases, by that of our parents). I had no more say in being British than I did in being male, or having blond hair and green eyes.

The sudden creation of a new layer of citizenship over and above a national/state one is not a new idea, of course. It happened in the United States back after the American Revolution (the comparison that those who fear an EU superstate are likely to fear), but also rather more recently, with the British Nationality Act 1948. This oft-forgotten Act of Parliament made *every single person* in the British Empire a British citizen, whether they wanted to be or not – and considering this was the year after Indian independence, and shortly before the Empire disintegrated, it’s a safe bet that many had little interest in British citizenship, and if anything would have taken this as a patronising insult.

When it comes to EU citizenship, you may not identify yourself as European; you may not want to be European; but if you are a citizen of an EU member state then you are an EU citizen whether you like it or not – just as (in most cases) you are a citizen of that state whether you like it or not.

British citizen or British subject?

It’s also worth noting that the very concept of citizenship is continental European in origin (in the modern sense mostly via the French Revolution, though the idea does pre-date it) – and a very recent introduction to Britain. It’s a word that entered English via the Old French citeain, itself derived from the Latin civitatem.

Indeed, until the aforementioned 1948 British Nationality Act, there was no such thing as a British citizen – we were all merely subjects of the crown.

This, in effect, meant that we – as British subjects – had obligations to the state, but few rights.

This is because, contrary to popular belief in the power of the likes of Magna Carta and the Bill of Rights, the one constant in British constitutional law over the last three centuries has been that no parliament can bind another. This includes binding future parliaments by legislation granting rights to the people – because, again contrary to popular belief, in Britain the people have never been sovereign – first sovereignty lay with the crown, now it lies with parliament.

This means that the “right” of the people of Britain to vote, to a fair trial – even to life – are all down to the whim of parliament, and can be withdrawn at any time. (For more on this, see this post on the nature of sovereignty, this post on the nature of the English/British constitution and how “rights” fit into it, and this Wikipedia article on the concept of parliamentary sovereignty.)

The benefits of EU citizenship

In contrast, EU citizenship has conferred rights with no obligations.

With the introduction of EU citizenship, for the first time in Britain’s history, British citizens/subjects have the right to vote, to free movement, and so on, rather than just the privilege – we are no longer dependant upon the whim of parliament.

In return, the EU asks nothing of us. We are not directly taxed by the EU, nor does the EU directly pass any laws that we have to obey – all go via the governments of the member states, all of whom can challenge every stage of the process. Nothing the EU does is done without the approval of the (elected) governments of the member states – and therefore our obligations remain to the member states we are citizens of, and not to the EU as an entity. This may sound like pedantry, but in a legal sense it is a vital distinction.

It is the ongoing power that the British parliament has to abolish any and all freedoms it so desires that is one of the key reasons why I became in favour of some form of supranational body that could, for the first time in the country’s history*, serve to guarantee the freedoms that we have all come to assume are our right.

EU citizenship being layered on top of national citizenship finally guarantees all British citizens the right to appeal to a court that lies beyond the British government’s jurisdiction, whereas before we were stuck with the House of Lords as the highest court of appeal – a House of Lords and a justice system presided over by the Lord Chancellor, a member of the same government against whose abuses we would have been appealing.

Because the trouble with the concept of sovereignty is that is implies *absolute freedom of action*. In a state where the people are sovereign – as in the US with its “We the people” opening to the Constitution and specific clarification of the people’s rights in the 9th Amendment – this means that the people are (legally) secure from governmental abuses of power. In a state like Britain, where parliament is sovereign, it means that the people have no guarantees about anything – no rights, only privileges, and no legal recourse if those privileges are withdrawn. (The same problem faced parliament in the 17th century – they wanted certain guaranteed rights, but the monarch was sovereign. The problem was only solved by a series of bloody civil wars, the constitutional shift finalised by a foreign invasion.)

The concept of EU citizenship rectifies that historical/legal/constitutional anomaly – this time without a drop of blood shed.

* The UN’s Universal Declaration on Human Rights (1948) and the Council of Europe’s European Convention on Human Rights (1950) were steps in the right direction, but the former is not legally binding, and the latter’s failings are made clear by the fact that the likes of Russia and Georgia are signatories, despite routinely breaching their citizens’ declared rights under the Convention.

On an English Parliament

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My last post has been hijacked by the rather fervent supporters of the concept of an English Parliament to the extent that it’s impossible to discuss what it was really about – i.e. local/regional vs national identities.

For non-Brits, a quick overview…

The Campaign for an English Parliament and its political offshoot the English Democrats Party are English nationalist organisations that have arisen since devolution and the creation of the Scottish Parliament, Welsh Assembly and Northern Ireland Assembly.

The argument is fair enough – Scotland, Wales and Northern Ireland now have sole control over various areas of domestic policy (e.g. health, education), but in those same areas, England is still governed by the parliament of the United Kingdom in Westminster – which contains Welsh, Scottish and Northern Irish MPs. This means that we have a situation whereby a majority of English MPs could oppose a policy (to do with, say, health) that would affect *only* England – yet the government could pass that policy anyway with the assistance of MPs from other parts of the United Kingdom, even though it would not take effect in their own constituencies.

It is a problem that has long been acknowledged in British politics, that should have been more adequately dealt with before devolution took place, and that has come to be known as “the West Lothian Question” after a 1977 speech by Scottish Labour MP for West Lothian, Tam Dalyell:

For how long will English constituencies and English Honourable members tolerate… Honourable Members from Scotland, Wales and Northern Ireland exercising an important, and probably often decisive, effect on English politics while they themselves have no say in the same matters in Scotland, Wales and Northern Ireland?

As such – to keep the English Parliament lot happy (though I’m not sure why I should bother considering their wild hostility in my last post and decision to libel me with unfounded accusations) – here’s a dedicated post for them to rant at. (Which will probably be of little interest to anyone else…)
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The Speaker elections: Some perspective

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The MP expenses scandal has rocked Westminster for over a month now (with more revelations *still* emerging). Many MPs have found their careers cut short – among them Speaker Michael Martin (a man who never should have got the job back in 2000, but that’s beside the point).

As is the way of things these days, public and press outrage over the perceived piss-taking by MPs of all parties has led parliament to jump to entirely the wrong conclusion. In hunting for a scapegoat, they picked on Michael Martin; in the process, they tarnished the office of Speaker itself with smears designed primarily to hit this man they had collectively decided to blame. “Oh,” they said, “If only we had someone like Boothroyd or Weatherill this never would have happened!” Yet despite professing that it was the man, not the office, which had been found wanting, it looks as if the next Speaker is intended to “update” and “make relevant” an institution that has doing very well, thank you very much, without any meddling from mere gadfly politicians.

Altering the office of Speaker is not what is required. That way lies failure and recrimination down the line. Because we cannot do constitutional reform – not when it’s hasty; not when it’s carried out by politicians; and most especially, it would seem, not when it’s carried out by the lot we’ve got at the moment. (Remember the half-arsed attempt to reform the House of Lords, that has left us in an arguably worse situation than we had before? The dismal attempt to abolish the office of Lord Chancellor? The various residual angers and squabbles over devolution? The back-of-an-envelope creation of a supreme court? The constant renaming of government departments, often at vast expense and with no discernible impact? The gradual downscaling of both the Cabinet and parliament, hand-in-hand with the politicisation of the previously stringently impartial civil service?)

The office of Speaker has been brought into disrepute? One Speaker’s failures over a nine-year period is enough to destroy the respectability of a position that has existed (more or less) since the 14th century? By the same logic, shouldn’t we abolish the office of Prime Minister about now?

What we need is not to alter the office of Speaker and “make it more relevant”, as seems to be the buzz phrase at the moment. We need someone respectable, unimpeachable, with an intricate understanding of the rules of parliament (something Martin never had), a sense of the history of the place, and an ability to stand up for what’s right in the face of overwhelming opposition from a chamber full of shouty, petulant MPs.

Few of the candidates can live up to this:

- Margaret Beckett is a party animal through and through, heavily implicated in the expenses scandal
- Sir Alan Beith is another party man – and to have former deputy leader of any party take over such a high profile position at this stage is just silly, even if he is only a Lib Dem
- Sir George Young is a former Secretary of State, and therefore he too has too much of the party man about him
- John Bercow is both incredibly smug and, with only 12 years in the Commons, too inexperienced
- Parmjit Dhanda only entered the Commons in 2001, so just cannot be taken seriously no matter how intelligent and earnest he may seem
- Anne Widdecombe is more a TV personality than a politician these days, and is stepping down at the next election anyway, so really – what’s the point?
- Sir Alan Haselhurst put £12,000 on his expenses for gardening over four years, based on a figure just £1 below the receipt threshold every month throughout that time, so surely can no longer be a contender
- Richard Shepherd is a man of principle, no doubt, but with the ongoing difficulties over the positioning of the UK within the EU I can’t see the Commons going for one of the most fervent of the Maastricht rebels (plus he’s a friend of Robert Kilroy-Silk, which must show poor judgement, surely?)

Which leaves us with two genuinely decent candidates: Sir Michael Lord, and Sir Patrick Cormack. Both Tories? Yes. Both with Knighthoods? Yes. Between them, they have 65 years in the House (39 of those Cormack). Lord, like Shepherd, was a Maastricht rebel – but I wouldn’t discount him for that, as it does, after all, show some independence. More impressively, however, Cormack was a Poll Tax rebel – one of the very few Tories to refuse to support that most unpopular of policies, and was also the first MP to force a debate on the Yugoslav crisis in the 1990s – much against the wishes of the then government (which was, yes, Tory again).

Yes, I’m biased here – I used to work for Cormack. This does, however, also mean that I’ve seen his character up close and know him to be a man with a genuine, passionate belief in doing the right thing. The Telegraph’s Ben Brogan seems to see much of the same in him that I do.

If you want to return a sense of decorum to the Commons, what better than someone who knows the place inside out, with four decades’ experience? What better than someone who’s been through ten general elections and seven Prime Ministers, who’s seen countless MPs come and go – and yet has, throughout, watched the institution of parliament endure, despite all the scandals, all the infighting, all the failures and ill-considered reforms?

We don’t need a big media star – the Speaker should never *be* high-profile, that was part of the reason Martin had to go – we need someone who can command quiet respect. We don’t need rapid reform – we need someone with a sense of perspective who can take a step back and calmly assess, because that is what the Commons has been lacking above all during the last few weeks. Cormack would be ideal.

Which is, of course, why he almost certainly won’t get it. When was the last time MPs voted for something to do with the running of parliament that actually makes sense?

EU competence creep, the spectre of the superstate, and how governments actually work

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In our last little discussion of the likelihood of an EU superstate (in amongst and partially as an offshoot of the rather silly sidetrack about jam), Josef noted that

there is a concern that this is how the EU will form itself into a “superstate.” Not through a series of demi-democratic treaties, but through a sort of slow, suffocating creep of boring, incomprehensible, impenetrable legislation. If you write a follow up post, Nosemonkey/J Clive, then I’d be interested to hear your take on this.

This is always a danger with any democratic system which relies largely on a more or less bureaucratic civil service to get things done. We like to think that all new legislation is debated and scrutinised by our elected representatives, dissected in minute detail and put to a vote considering only the best interests of the people – but it rarely happens like that.

In the UK, the vast majority of primary legislation is passed in the form of statutory instruments – new laws drawn up by civil servants and government ministers and put onto the statute books without (most of the time) parliament so much as being informed. In the UK in 2008 alone, there were 3,399 statutory instruments passed – that’s more than nine new laws a day that have come into existence without so much as a by your leave from an elected official. (That’s about average for the last 20 years, by the by – the number of statutory instruments began to creep up under Major, but have remained relatively constant since the mid-1990s, despite various claims that Blair used them more than any previous Prime Minister as another way of bypassing parliament.)

The vast majority of these statutory instruments are amendments to existing Acts of Parliament, fiddling with the details (most of them minor). Our last little debate got sidetracked on the use of apple geranium in jams other than those made with quince. Hardly the sort of thing – the logic goes – that it’s worth wasting parliament’s time with, and so precisely the sort of thing that would be sorted out in a statutory instrument. If the approval of British MEPs was needed for each of the law changes that statutory instruments bring in, then every one of the British parliament’s 646 MPs would have to go through more than five of the things every single day of the year – as well as all the major legislation, dealing with constituency concerns, being part of the government, holding the government to account and so on. (Remove those MPs who hold government office, it’d be more like 7 statutory instruments each to scrutinise and research the utility of per day – that’s a full-time job…)

In the EU, we have much the same problem. Having accepted the general principle that area X is best dealt with at EU level, it is impractical for MEPs to then scrutinise every subsequent tiny bit of legislation to ensure that it meets their high standards, and vote on every tiny clause about different types of fruit preserve in full session at the European Parliament. Because just as we, the people, delegate our powers of decision to our representatives at Westminster and Brussels/Strasbourg, so our representatives then delegate powers of drafting new laws to the various civil servants, be they in national civil services or the European Commission.

(At which point it’s worth noting that most EU legislation is not actually drawn up by the Commission – the EC only has a staff of c.38,000 – less than a third of that of the UK Department of Work and Pensions alone, and nowhere near enough to do everything that the Commission is accused of doing. Instead, pretty much all EU legislation is drawn up by the civil servants of the various member states, checked by civil servants in other member states, and then rubber-stamped by the Commission once it’s been looked at my enough bureaucrats in enough member states.)

And so in the normal course of events, yes – dozens of new laws will likely come into force every week without having been so much as glanced at by an elected official. But such developed social systems as ours could not possibly function any other way – unless you think that the civil service should be elected, and that it’s a practical possibility to find several hundred thousand people willing to campaign for such a thankless job (not to mention several hundred thousand people willing to turn out and vote on what would prove to be an almost daily basis as retirement and transfers necessitate by-elections to fill vacant posts…) And in any case, the general principles are already always voted on by elected representatives at both national and EU level – as long as they are doing their jobs properly, they shouldn’t vote through sweeping new powers that would allow unelected bodies or people to suddenly advance major changed without anyone checking them first. (Though that’s not to say that there isn’t always a danger that this could happen, as we found out in the UK only recently with the – thankfully defeated – Legislative and Regulatory Reform Bill, which would effectively have made parliament obsolete and allowed any government minister to make any law they liked, when they liked.)

When it comes to the EU, the real fear of competence creep was epitomised by this glorious clause (Article 308 EC):

If action by the Community should prove necessary to attain, in the course of the operation of the common market, one of the objectives of the Community, and this Treaty has not provided the necessary powers, the Council shall, acting unanimously on a proposal from the Commission and after consulting the European Parliament, take the appropriate measures.

In other words, the EU could grant itself whatever powers it liked. Or, at least, it could after unanimous agreement from the governments of the member states in the Council, and after being passed by the elected representatives of the European Parliament – but most anti-EU types conflate Council, Parliament and Commission into one monolithic-sounding “EU” to make these things sound more scary.

So, for more powers to pass to the EU, even with the existence of the “competence clause”, you’d still need unanimous agreement between the governments of all 27 member states, plus a majority in the European Parliament. Hardly that scary – but even so, the Lisbon Treaty amended that same article (now Article 352) to clearly delineate (in line with the subsidiarity principle introduced with Maastricht back in 1992) just where competences lie between the EU and member states, as well as explicitly excluding common foreign and security policy as an area where the competence clause could be used to grant the EU more powers.

Oh yes, and Article 352 also introduced a new clause obliging the Commission to involve national parliaments in any moves to grant the EU more powers. So that’s unanimous agreement by all 27 member state governments, passing a vote in the European Parliament, and passing votes in the parliaments of all 27 member states before the EU can claim any major new powers for itself. Hardly a major worry.

In the meantime, life will continue as normal, with dozens upon dozens of minor changes to minor laws being brought into force merely by civil servants via statutory instruments and their equivalents across Europe – and then (despite some of the claims made in our last comment thread that alterations to jam legislation would require ratification by the Council, Parliament, and so on) amended just as easily if they turn out not to be workable.

Is there a danger that some of these laws will be bad ones? Of course there is. But at least they are generally being drawn up by civil servants who are experts in their field (rather than members of parliament who tend to be generalists), and at least they can be corrected with ease.

Is there a danger that such civil servant-drafted laws could slowly grant more power to institutions that we aren’t willing to give them? Well, a poorly-worded new law always has the potential to be misinterpreted. That’s what we have judges and courts for – if such poorly-worded laws are found, they can be challenged and struck down, if a simple amendment isn’t enough. After all, both the existing Article 308 and the proposed new Article 352 explicitly state that both the Council and the Parliament have to approve any new EU power-grab – and treaty law will always take precedence in such cases.

In short: Modern western liberal democracies are very complex systems, packed full of checks and balances that have been worked out over the course of many centuries. The EU is not a true liberal democracy, but shares many of its forms and functions. As such, I remain confident that there are enough checks and balances in place to ensure that the only way the EU will gain more powers is if the member states of the EU want to delegate more powers to it. It will not -can not – happen by accident. Unlike in the British system, where bad laws like the Legislative and Regulatory Reform Bill can easily slip through parliament if the government has a sufficient majority and MPs are sufficiently cowed, the EU has 27 additional chances of spotting them before they get anywhere near the statute books – something that the Lisbon Treaty would only have underscored by bringing national parliaments into the equation as well. Once again, it’s hardly the stuff of an impending superstate.

The constitutional position of European Commissioners

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Today sees Britain’s new European Commissioner, Baroness Ashton, appear before the European Parliament. You never know – something interesting might crop up. Her answers to the usual written questions can be found here. Not much to get excited about, though the anti-EU crowd will no doubt leap on her first justification for her appointment:

“As Leader of the House of Lords, I steered the Lisbon Treaty through that House.”

Perhaps more interesting is a different constitutional issue – that of whether life peer Ashton can be fully independent in her new role – as raised by Jon Worth. Be warned, this one may go on a bit, and I doubt there’ll be many definite answers…

Two swordsIt is, in short, the age-old problem of whether it’s possible to serve two masters – a dispute that’s been ongoing ever since medieval times when increasingly powerful monarchs began to object to the authority of the Papacy, first properly expressed by Pope Gelasius back in 494 in what has come to be known as two swords theory. How can one swear an oath of allegiance to both Pope and monarch? What happens when they come into dispute? This was the very problem – well, part of a larger, more complex problem – that caused England’s break from Rome back in the reign of Henry VIII, the bitter Investiture Controversy during the time of Pope Gregory VII, and countless other spats down the years.

Currently, European Commissioners have to take an oath (PDF) that includes the following:

“I do solemnly undertake: to be completely independent in the performance of my duties, in the general interest of the Communities; in the performance of these duties, neither to seek nor to take instructions from any government or from any other body”

Is this compatible with Ashton’s oath of allegiance to the Queen, sworn on taking up her seat in the House of Lords? Ashton seems to think it’s not a problem:

“For the term of my mandate as Commissioner I have taken leave of absence from the Lords. This means in practice that, although I retain my title, I would not attend the House of Lords, nor take part in votes, give speeches there, or draw any allowances during the period of my mandate.”

All well and good – as according to the Code of Conduct for European Commissioners (PDF), “Commissioners may hold honorary, unpaid posts in political, cultural, artistic or charitable foundations”. But it doesn’t quite answer the question. Can you hold allegiance to the Queen while being “completely independent”?

As life peers who become MEPs have to give up their peerages (something Ashton claims she is unable to do), surely the same should apply to Commissioners – not least because they are explicitly supposed to be acting for the good of the whole of the EU, not just their respective countries. It’s an ongoing problem for British politicians, almost all of whom – if they end up sent to the Commission – will have taken not just the oath of allegiance, but the far more explicit oath sworn by members of the Privy Council (PDF):

“You will to your uttermost bear Faith and Allegiance to the Queen’s Majesty; and will assist and defend all civil and temporal Jurisdictions, Pre-eminences, and Authorities, granted to Her Majesty and annexed to the Crown by Acts of Parliament, or otherwise, against all Foreign Princes, Persons, Prelates, States, or Potentates.”

It’s hard not to see this as incompatible with the Commissioners’ oath to be independent and act “in the interest of the communities” – so little wonder UKIP’s Nigel Farrage raised the point on Peter Mandelson’s appointment to the Commission four years ago.

The question of where a European Commissioner’s loyalties lie is a vital one – especially with the ongoing moves to reduce their number, so that not all member states will have a Commissioner of their own nationality. Is Ashton’s first allegiance to the Queen, or to the European Union? It’s not hard to see how anti-EU types could start to ask how can she defend Her Majesty’s “temporal Jurisdictions, Pre-eminences, and Authorities” while working for an organisation that pushes for a pooling of national powers. But turn that around – how can pro-EU types not ask how someone who’s taken an oath to defend national powers can work for the good of the Union? It’s not like it would be hard to pass a quick statutory instrument to absolve British Commissioners from their previous oaths for the duration of their terms. So why haven’t we?

Is the Privy Council oath meaningless? And if so, why does that organisation remain part of the governance of Britain? Or is the oath the Commissioners take meaningless? And if so what does this say about the role of the Commission? Where do Commissioners’ loyalties lie – with the EU, or with their home nations? Because if it’s the latter, the Commission is incapable of fulfilling its allotted task.

Scotland’s debt to Canada

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The new Scottish

Not having particularly kept up with Scottish politics after the ’45, and despite having close Scottish relations involved on the fringe of the Scottish political scene, the niceties of the devolution settlement have largely eluded me. I’ve only made it up to Scotland once since devolution anyway, and spent the majority of the trip in the remote Highlands getting boozed up on fine whisky.

You’d think that for someone with a keen interest in British constitutional history I’d have paid more attention, considering that devolution was always – potentially – the most significant constitutional change since universal suffrage was introduced. I just never really thought it would have legs, and that the entire experiment would end up being scrapped once it was shown to be a huge waste of money. More fool me, it would seem, as it appears that something very odd indeed may be happening north of the border.

Because, you see, in constitutional and international legal terms, terminology is hugely important. Call the Scottish political executive an executive, fine. Call it a government? Well, it’s not, is it? It has elements of the powers of a government, but it’s merely a subservient element of the federation that is the United Kingdom, surely?
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Brown’s first cock-up: the British constitution

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Update note: It’s entirely possible that there should be a question-mark in the headline to this post. He’s not stupid enough to have made this move without thinking it through, but I can’t for the life of me work out what he’s got planned.

Update 2: This post is now largely obsolete, and so has been edited down – Jack Straw is indeed Lord Chancellor. Had a bit of a scare there though – and it’s still very confusing…

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Via email and the like, I’ve been having heated discussions with a couple of mates about precisely what’s happened to the office of Lord Chancellor in this reshuffle. It looks rather like Brown may have made a major cock-up, and the current TV coverage hasn’t mentioned it a jot.

[Update edit - removed paragraph]

There is, technically, no constitutional reason why Jack Straw couldn’t be Lord Chancellor while remaining in the Commons, from what I can tell. But it’d be very, very odd indeed and I can’t see any way it would work in practice. [Update edit - removed speculation]

What the hell is going on? [Update edit - removed sentence]

They’re now announcing a special Cabinet session to change the constitution – but how, exactly, and where does the Cabinet get the authority to do that?

On the new EU treaty, the importance of terminology, and the case for a referendum

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Our dear Eurosceptic friends have long been preparing themselves to make the argument “if it looks like a constitution, sounds like a constitution, then it’s a constitution”. Now that the replacement treaty is (almost) there, it’s time to see if they have a point.

Here (WARNING: PDF) is the summary of the recent summit, containing the guidelines to which the Intergovernmental Conference (IGC) will be working when drawing up the final treaty document.

That, so far, is all we have to go on. Yes, there have been countless proposals over the last couple of years, and Angela Merkel drew up numerous versions of possible European Constitution replacements, but until these guidelines were agreed over the weekend, all that was academic. Continue reading →

Lords Reform White Paper

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Sounds like an absolute mess, from its brief introduction just now. The somewhat surprising thing, however, is that in (Tory Shadow Leader of the House) Theresa May’s response to (Labour Leader of the House) Jack Straw’s introduction, I’m finding myself agreeing with pretty much every single word. Wholeheartedly – especially the bizarre Labour proposal of “preferential votes” to force the thing through the Commons… Something which, by the by, they have consistently refused to allow in general elections…

Update: Tory Sir Patrick Cormack’s take on Labour’s proposals – it’s a “constitutional outrage”. Damn straight.

The current Lords situation is a mess. The new proposals (50% elected, 50% appointed, and a reduction in the number of peers as first preference, with other options available) are no real improvement, especially as they seem designed to strengthen the ability of the Commons (i.e. the government) to get legislation through with far less of a challenge than is even now the case with the powers of the Parliament Act (which allows the government simply to ignore the Lords if they can drag debates out long enough).

To add to this, the proposal for the vote on the issue in the Commons has the definite potential to remove even the Commons’ ability to throw out government proposals. In this case, rejecting the various proposals put forward by the government is seemingly not an option for the Commons. By introducing a system of preferential voting, one of the proposals WILL be implemented, no matter how bad. Straw himself effectively referred to the outcome of such a vote being the selection of the “lest bad” option. We don’t need the least bad. We need the best.

Quite what the Tories’ own proposals are, I have no idea. But they are entirely right in opposing this mess.

Not only would these proposals not resolve the chaotic Lords situation, but instead they would further weaken not just the Lords, not just the effectiveness of Parliament in preventing bad legislation from being passed, but also – through the precedent set by this bizarre proposed voting system – they have the potential to undermine the power of the Commons to hold the executive in check. Parliament, in such a situation, would end up the weakest it has been since the early 17th century.

“An honour and a privilege…”

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Standard language of a soon to be departing politico, you might think. No surprise Blair used is in his interview this morning.

But surely the standard, talking about the public, is “it has been an honour and a privilege to serve them” – not, as Blair phrased it – “an honour and a privilege to lead them”.

A minor, pedantic, semantic point from a long interview, but one, I think, worth making.

While I’m on the pedantry, another minor point: he refused to quit tomorrow because “that’s not a very democratic way to get a [new] Prime Minister”.

Unlike, of course, our current – hugely democratic – system of allowing individual parties to select their leader in whatever way they choose, who is then – if the party as a whole manages to gain a sufficient number of parliamentary seats to form a government (though not necessarily a majority of seats, nor even necessarily more seats than any other party) – appointed to the highest office in the land by a single little old lady (by dint of her being related to some people who were good at fighting wars several hundred years ago…)

(By the by, I’ve been asked to give this a plug, so I will – depite not necessarily endorsing the message – Anyone But Labour)

Home Office to be split in two?

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About bloody time, considering how unweildy the department has evidently become.

The big question (other than what the hell are the precisely plans?) is, why let the news slip out at 9pm on a Saturday night? Wouldn’t this count as the sort of major reform that eveyone’s been saying is needed for ages, and that could get the government a bit of good will back – especially needed following yesterday’s “cash for peerages” arrest of one of Tony Blair’s senior aides? Why bury it at a weekend?

Still, sounds like it’ll be worth getting the Sunday Telegraph tomorrow to see what [tag]John Reid[/tag]‘s got to say for himself… Is this another case of “I’m not going for the Labour leadership, no siree…”? (Especially as Gordon Brown’s out of the country, so will be unable to hit back straight away…)

Sunday update: Reid outlines his plans in the Telegraph. Well, I say “outlines his plans” – it’s more an extended apologia and self-justification, with very little in the way of concrete proposals for how to actually implement a break-up. Still, apparently Support grows for Home Office split, because good old Charlie “I know little and care less about how the British constitution functions” Falconer (aka Tony Blair’s ex-flatmate, aka the Lord Chancellor, aka the Secretary of State for Constitutional Affairs) is lending his considerable weight to the idea.