Debating the constitution…

On Monday, the Lords debated reports from the Constitution Committee on The Union and Devolution and Inter-Governmental Relations in the UK.  I spoke and used the occasion to pick up on a theme common to both, namely the failure of government to look at the relationship between different changes to the constitution.  I argued, as I have for some time, that successive governments have undertaken constitutional change without having a coherent view of the constitution they consider appropriate for the United Kingdom.  Some governments have promoted changes, justifying each on its particular merits, and others have engaged in a fire-fighting approach to pressures for change.  There has been no attempt to look holistically at the constitution and delineate the basic principles that underpin it.

I mentioned that I had been asked to pen an article entitled ‘Constitutional change in the UK; unfinished business?’  My response was to say I thought it was more accurate to refer to never-ending business, as unfinished business suggests there is an end point.  As governments have no clear view of what they are working towards, there is no obvious end point.  We will end up with a constitution that is the sum of disparate and discrete changes.

As is clear from the reports, there is a structural feature militating against looking at the constitution as a whole.  There is no Cabinet minister with dedicated responsibility, there is no Cabinet committee on constitutional change.  If anything, things are going backwards rather than forward.  (There was a Cabinet committee, though that only met once in nine months.)  It is left to individual ministers to consider the implications of change for citizens.  Cabinet therefore is in response mode, waiting to discuss specific proposals or problems as they arise.  This is not a desirable situation.

I asked the minister to delineate the principles underpinning constitutional change and what plans there were to restructure government to enable it to address such change.  The minister, Lord Duncan, was making his maiden speech in responding to the debate (which meant he was listened to in silence and without interruption).  His speech was fluent and exceptionally well delivered.  It also gave nothing away and addressed neither question.

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Get your copies now…

Manchester University Press are holding a ‘Back to School’ sale and copies of Reform of the House of Lords are available at the price of £5 instead of the regular retail price of £9.99. 

Today (Friday) is the last day of the sale, so if you would like to get copies at an even more attractive price than usual, now is the time to order.  Form an orderly queue…

I see the book has a 4.5 rating on Amazon based on two reviews, one of which wished I had padded it out more.  Not usually what reviewers suggest.

Implications of the EU (Withdrawal) Bill

The European Union (Withdrawal) Bill has now been introduced and the Commons is having a two-day debate on Second Reading.  There are as yet no Commons select committees set up and membership agreed (unlike in the Lords, where all committees are up and running), so the Bill has received no detailed scrutiny by the Commons Brexit Committee.

The Lords Constitution Committee reports on Bills of constitutional significance, but does not usually do so until they are introduced in the Lords.  However, because of the constitutional significance of the measure, the Committee has published an interim report on the Bill.  It is embarking on a more detailed inquiry.  The interim report identifies the key constitutional issues raised by the Bill’s provisions.

There are three key constitutional concerns: the relationship of Parliament and the executive, ensuring legal certainty, and the implications for the devolution settlement.  The concern is with the contents of the Bill.  There is some confusion in current debate about means and ends.  There was a majority in the 2016 referendum for the UK to leave the EU.  The Government is seeking to give effect to that decision.  A consequence of withdrawal is the need to deal with the accumulated body of law derived from the EU, a large and complex body enacted through different mechanisms.  This is not an easy task and the Bill is not simply a ‘technical’ measure.  It is crucial that we get the process right, both in terms of ensuring proper parliamentary scrutiny of changes proposed by Government and in terms of ensuring legal certainty.  The Bill raises serious problems in respect of both.

Anyone who thinks that it is a fairly straightforward process should read the interim report and bear in mind that it is an interim report.  Our main report will go into more depth as to the implications of the Bill’s provisions.  The Bill really is highly complex and convoluted.  It introduces a new form of law, the status of which in respect of the existing hierarchy of UK law is unclear.  The powers delegated by the Bill are remarkably broad.  As the report states: ‘The number, range and overlapping nature of the broad delegated powers would create what is, in effect, an unprecedented and extraordinary portmanteau od effectively unlimited powers upon which the Government could draw’.  Adequate safeguards on the use of Henry VIII powers are not provided.  None of this is to challenge the principle of the Bill.  It is a case of getting right the process for achieving that principle.

Winner of the August caption competition…

There were, as usual, some good and inventive entries for the caption competition.  Perhaps not surprisingly, the lampshade figured fairly prominently.  Some of these lampshade-inspired entries made it to the shortlist.  Rob Cadman neatly managed to link the lampshade with my hand movements: ‘Lord (Norton) levitates lamp shade while shuffling invisible pack of cards’.  (I multi-task in different contexts.)  However, the runner-up and winning entries were unrelated to the lampshade.  seanjm72 came close to winning with: ‘Lord Norton was concerned that this game of hide and seek was not being taken seriously by all the participants’.  However, the winner, by a nose (or a shade), was Pendragon with:

Following the departure of Hugh Bonneville, the recasting of the Earl of Grantham left a lot to be desired.

If Pendragon would like to get in touch, a copy of Reform of the House of Lords will be despatched.

The end of a presidency?

There has been speculation as to whether Donald Trump will survive his first term as President.  Apart from death, how can a President fail to see out his constitutionally prescribed term of office?  There are three ways in which he could cease to hold office.

(1) Resignation.  Only one President, Richard Nixon, has resigned office, which he did in 1974 under threat of impeachment.  Had he not resigned – he sent a short, one-sentence letter – he is likely to have been impeached by the House of Representatives and convicted by the Senate.  (The Republican leaders in the House and Senate told him they did not have the votes to prevent his removal.)  Some observers think that Trump is uneasy in the office, reflected in his frequent absence from the White House, and may simply decide to walk away.  I have heard the contrary view, namely that he is the sort that thrives on all the attention.  Anyone else may find the barrage of criticism to be intolerable, but his narcissistic tendencies means that it just bounces off his self-regarding armour.

(2) Impeachment.  Under Article 2(4) of the Constitution, a President (or Vice-President or other civil officer of the US) ‘shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanours’.   The process entails the House voting articles of impeachment and the Senate, presided over by the Chief Justice, voting by a two-thirds majority of those present for conviction.  Only two Presidents have been impeached (Andrew Johnson and Bill Clinton), but neither was convicted by the Senate.  Although the process is quasi-judicial, politics impinges, so much depends on the willingness of Republican law-makers to break ranks.  That may well depend on how egregious the actions of the President are and the extent to which his popularity plummets.  Members of Congress will not be acting in a political vacuum.  Their principal concern will be to be re-elected.

(3) Removal under the 25th Amendment.  Under this Amendment, ratified in 1967, the Vice-President takes over as Acting President if the Vice-President ‘and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide’, transmit to the President pro tempore of the Senate and the Speaker of the House their written declaration that the President is unable to discharge the powers and duties of the office.  In short, the President may be removed by the Cabinet or Congress on grounds other that conviction of an offence.  However, unlike the previous two routes, this one is not necessarily terminal.  The President may resume office if he sends to the two presiding officers a written statement that no disability exists, unless the Vice-President and a majority of the principal officers or a body appointed by Congress within four days write to say that he is unable to discharge the powers and duties of the office.  ‘Thereupon Congress shall decide the issue, assembling within 48 hours for that purpose if not in session.’  If then, within 21 days, Congress by a two-thirds majority of both Houses votes that he is unable to discharge the powers and duties of his office, the Vice-President continues as Acting President; otherwise, the President resumes his office.  One can see how messy this option can become.

Are we likely to see any one of these utilised?  One poll of some university professors found that over 60 per cent thought he would be impeached, though among the public the figure was 48 per cent – still a remarkably high figure, not least given that the President has been in office for only seven months.  In Congress, 27 members of the House have co-sponsored a Bill to establish ‘a commission on presidential capacity’.  All the members are Democrats, but the fact that they have made the move so early in a presidency reflects the concern about the President’s mental state.

Donald Trump is remarkable for the extent to which his possible resignation or removal is being discussed so early in his incumbency.  Even if he survives this four-year term, it is not just leading Democrats who are eyeing the presidential nomination for 2020.  He may see out his term, but the actions that give rise to all the speculation about him not doing so are generating a highly unstable polity.  It really is a case of ‘tin hats everyone’.

Caption competition – the Lord is guiding

This month’s caption competition derives from the Workshop of Parliamentary Scholars and Parliamentarians (see previous post).  At each Workshop, I provide a guided your of the venue – Wroxton Abbey, which is actually a Jacobean mansion (built on the site of an abbey), the ancestral home of Lord North.  The picture shows me in the Reading Room.  As ever, the winning entry will be the one that in my view constitutes the wittiest and most appropriate caption.  The winner will receive a copy of Reform of the House of Lords.

 

Discussing legislatures

The Thirteenth Workshop of Parliamentary Scholars and Parliamentarians took place at the weekend at Wroxton College, Near Banbury – the venue for the every Workshop since the second in 1996.  (The first Workshop was held in Berlin.)  The Workshops are held on a biennial basis.  They are co-sponsored by the Inter-Parliamentary Union (IPU) and the Centre for Legislative Studies at the University of Hull. They bring together scholars and parliamentarians from usually twenty or more nations, the former providing research findings likely to be of interest to the latter.  This Workshop drew a capacity attendance.  The top picture shows about one third of participants – those who attended the final plenary session on the Sunday afternoon.

Those attending the Workshop included parliamentarians and parliamentary officials from nations as diverse as Cambodia, Benin, Mongolia, Pakistan, Kenya, Zambia,  Greece, Madagascar, Bahrain, Nigeria, Argentina, Portugal and Turkey.

The second picture shows me welcoming participants to the Workshop.  I addressed the importance of studying legislatures.  They are core to political stability and typically fulfil a range of functions beyond the core defining function of giving assent to measures of public policy that are to be binding.  The functions encompass not only those in relation to the executive, but also to the people.  Legislatures are an essential link between the government and the people.  A good number of the papers addressed relations between legislatures and the public and how parliamentarians communicate with the people.  The final session provided a preview of the forthcoming UNDP/IPU report on a key function in relation to the executive, that of oversight.

The panel sessions proved extremely worthwhile.  A total of thirty papers were delivered during the Workshop, with extensive discussion in each panel and more informal dialogue taking place in between panel sessions.  There were also presentations on the work of the Inter-Parliamentary Union and the Westminster Foundation for Democracy.

Now that the Thirteenth Workshop has concluded, preparations for the Fourteenth, in July 2019, are already underway.