Nov 24 2014

Should a UK constitutional convention consider the clarification and codification of parliamentary privilege?

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Blick150x225Andrew Blick discusses a fundamental element of the British constitution – parliamentary privilege. He suggests that the nature of parliamentary privilege might be clarified and codified by a future constitutional convention for the UK. 

The British parliament performs a variety of functions that are crucial to a democratic society. It votes on laws and resolutions, agrees how much money should be given to the government, holds ministers to account for their actions and acts as a forum for debate of issues of significant public interest. To be able to carry out these crucial tasks effectively, parliament needs a series of special legal arrangements that are collectively called its “privilege”.

Privilege has a number of dimensions. One of them involves parliament being able to organise its own internal business as it sees fit – a principle known as “exclusive cognisance”. This principle has extended as far as to mean that health and safety law does not apply within the Palace of Westminster.

What’s more, the courts are subject to a rule that they will not become engaged in proceedings that take place in parliament. Parliament has responsibility for disciplining its own members. It also possesses – in theory – other powers that it would not plausibly deploy in the modern day. Among them are the ability to impose unlimited fines, to imprison individuals for contempt of parliament and to carry out impeachment proceedings. Following the Iraq war of 2003 there was a doomed attempt to revive the latter and apply it to the then-prime minister Tony Blair.

Westminster

House of Commons Chamber: Speaker’s table (Credit: UK Parliament) Flickr cc by 2.0

Another aspect of parliamentary privilege is that members must be able to speak freely without fear of reprisal. Protection in this area comes from a wider protection for proceedings taking place in parliament. The precise meaning of proceedings is fluid but it does encompass the statements that members make and means that they are not subject to civil legal action for them. They are also protected from criminal prosecution over anything they say in proceedings. There are, however, balancing “sub judice” rules that parliamentarians do not compromise ongoing legal cases.

The sources of parliamentary privilege are ancient, gradually appearing out of English and then UK history. The most important statutory basis is the Bill of Rights of 1689. This document is probably as important as the Magna Carta. It was in part a response to the tyrannical, absolutist aspirations of the Stuart dynasty of the 17th century and was crucial to the development of limited, accountable and eventually democratic government. Article IX provided that: “the freedom of speech and debates or proceedings in parliament ought not to be impeached or questioned in any court or place out of parliament”.

Yet while privilege is clearly essential in some form in a state such as the UK, and its key source is a totemic feature of our constitution, it is the subject of controversy. Some hold that it can and has been abused. Members may misuse their freedom of speech to defamatory effect and some even sought to use it to escape prosecution in the wake of the expenses scandal. However, the Supreme Court decided in 2010 that their expenses and allowances did not fit within the general category of “proceedings” and therefore that the individuals involved were not exempt.

Central Lobbey Westminster

Central Lobby (Credit: UK Parliament) Flickr cc by 2.0

With these difficulties in mind, there have at times been calls for the clarification and codification of privilege and successive governments have considered it an option.

Will it ever happen? Perhaps it could be a task for a body we hear increasing reference to in political debate – a convention that would consider the constitutional future of the UK. Parliamentary privilege could form one of a growing number of items requiring attention by a body that speaks for the people of the UK as a whole. It would be a neat historical symmetry if a successor to the 1689 Bill of Rights, itself the product of a revolutionary convention that eventually decided it was a parliament, was created by a 21st-century equivalent to such an entity.

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Dr. Andrew Blick is a lecturer in Politics and Contemporary History at King’s College London. He is interested in the constitutional future of the UK and the contemporary significance of Magna Carta.

This article originally appeared, in a slightly different form, on The Conversation. This article gives the views of the author, and not the position of ConstitutionUK, nor of the London School of Economics.

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Nov 17 2014

The UK has much to learn from the Irish constitutional convention

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Clodagh-HarrisAt its party conference, Labour called for a UK constitutional convention. What can be learned from the experiences of Ireland and its own convention? Clodagh Harris writes that whatever remit is chosen for the UK convention, it is necessary that its work is inclusive, well resourced, allocated sufficient time, open, and has a clearly defined timeline for governmental response if it is to achieve legitimacy.

Calls to establish a constitutional convention for the UK in the aftermath of the Scottish independence referendum have cited the Irish Convention on the Constitution as a possible template. Like other deliberative citizen fora (referred to in the literature as mini-publics), the Irish Convention gave citizens a direct and formal role on matters of constitutional reform. Unlike them, however, it included 33 political representatives as well as 66 randomly selected citizens.

Beckett Bridge

Beckett Bridge, Dublin (Credit Roberto Taddeo) Flickr cc by 2.0

Giving citizens a formal role in constitutional decision making in this way can enhance legitimacy and address the so-called ‘democratic malaise’The success of such mini-publics can be determined by their input, throughput and output legitimacy. This post briefly discusses each of these, referring to examples that may be of interest to those designing a Constitutional Convention for the UK.

Input legitimacy is primarily derived from participation, that is, who participates and their opportunities to do so. In case of the Irish Convention, and the British Colombian and Ontarian citizens’ assemblies, the citizens were selected randomly with an eye to gender, geography, age and socio-economic categories to ensure the group broadly reflected wider society. Some mini-publics have also specifically targeted minority groups that may be too small to be picked up through random sampling (for example, first nations communities in British Colombia) and groups that are difficult to reach (for example, the homeless in Belgium’s G1000 citizens’ summit). In addition, concerted efforts are usually made to engage with the wider public ‘outside the roomRegional meetings, websites and social media are some of the ways in which submissions are invited, opinions gathered and ideas shared. In particular, the Belgian G1000 citizens’ summit used ICT to great success. It innovatively included the wider public using sophisticated software that permitted e-deliberation.

However, it is not sufficient to merely bring individuals to the table. Efforts must be made to keep them there and ensure their voices are heard. Keeping younger women involved in a process that meets a number of days/week-ends over the course of a year may require the provision of childcare. Similarly in light of the socio-economic and gendered aspects of deliberation, care needs to be taken to ensure that all have opportunities to express their views. The Irish Convention employed trained facilitators to encourage all members to speak and attempted to achieve gender balance amongst those who presented to the Convention and in the composition of the small group round table discussions.

Finally, input legitimacy is impacted by the openness of the agenda setting process. The Canadian citizens’ assemblies had a fixed remit; to recommend an electoral system. The Irish Convention was charged with making recommendations on specific issues ranging from reducing the voting age to introducing marriage equality. However, iwas also given some limited agenda setting powers as it was permitted to consider other possible areas for constitutional amendment. Having actively encouraged submissions and held a series of regional meetings to gather views on which issues to should beconsidered, the Convention chose Dáil (the lower house of the Irish parliament) reform and the inclusion of economic, social and cultural rights in the constitution.

Process is core to throughput legitimacy. Deliberative mini-publics tend to include a mixture of invited expert presentations and facilitated small group deliberations at round tables. Good practice gives citizens a role in choosing the experts. In the case of the Irish Convention a steering committee comprising politicians and citizens approved the programme and the speakers for each week-endThe expert panel was convened to ensure a diversity of arguments on the topic and the speakers were asked to make brief, plain English presentations, this reflected practises used in the Canadian citizens’ assembliesThe experts also made themselves available to answer individual questions at the roundtable sessions and to help draft the ballot paper that the members voted on at the end of the week-end.

The inclusion of civil society organisations in the Irish Convention also added to its throughput legitimacy. Most of the week-ends included a balanced panel of issue-relevant advocacy and other groups that brought the perspectives and interests of their members to bear on the discussions. Achieving balance between information and small group deliberation proved a challenge for the Convention. The tight timelines (10 topics over 8 week-ends) meant little time could be spent on a discussion of broader principles or values as a lot of essential and sometimes quite technical information needed to be covered. In this regard, the learning phases used in the Canadian citizens’ assemblies have much to commend them.

Four courts Dublin

Four Courts, Dublin (Credit: Jim Nix) Flickr cc by 2.0

Output legitimacy is determined by outcomes and responsiveness. Regarding governmental responsiveness, different practices have been used by mini-publics. The Irish Convention had an advisory rather than declaratory role as the government decides whether or not an issue will proceed to referendum (amendments to the Irish Constitution require a referendum). To date there has been a commitment to hold 3 referendums next spring (reduce the voting age, reduce age barrier for presidential candidates and introduce marriage equality), and it was recently reported that the government has signed off on a plan to hold a 4th referendum (remove the offense of blasphemy). However, a number of reportshave yet to be responded to by government indicating some slippage in the timelines outlined in the parliamentary resolution that established the Convention.

The inclusion of political representatives in the Irish Convention, although initially greeted with cynicism, wariness and even hostility, in the end added to the process’ legitimacy as the political members were both invested in the recommendations and parliamentary responsiveness to them. A number of them have acted as champions for the process and its recommendations during parliamentary debates on the reports.

One of the challenges facing a possible constitutional convention for the UK is deciding its remit. The Irish Convention shows that deliberative processes can be successfully used for both matters of technical political reform and controversial social and moral issues. Whatever remit is chosen for the UK convention, care is required to ensure that its work is inclusive, well resourced, allocated sufficient time, open, and has a clearly defined timeline for governmental response if it is to achieve legitimacy.

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Clodagh Harris is a senior lecturer in the Department of Government, University College Cork. She was a member of the Irish Convention on the Constitution’s academic and legal support group and an international observer at Belgium’s G1000 citizens’ summit. She tweets from @clharris_ucc

This article originally appeared on the LSE’s British Politics and Policy blog. This article gives the views of the author, and not the position of ConstitutionUK, nor of the London School of Economics. Featured image credit: William Murphy/Flickr cc by 2.0.

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Nov 7 2014

Do we need a Global Constitution for a Globalised Age?

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Blog pictureA new constitution for the UK must include mechanisms that enable ‘the People’ to interact with the structures of power that govern their lives. Traditional nation state constitutions concentrate almost exclusively on power exercised by the state, within the territory of the state. In an increasingly globalised world, however, constitutions must take account of global power structures and systems of global governance. 

A fundamental question that must be addressed by any constitutional convention is how a new constitutional order might redefine the relationship between citizens and global governance. In an increasingly globalised world – a world where power is frequently exercised at international level, across borders, through informal channels – a new constitution for the UK must consider how ‘the People’ might interact with the diverse structures of power that operate beyond the traditional boundaries of the state.

The World Economic Forum at Davos

The World Economic Forum at Davos

What has become evident in the recent debates surrounding the Scottish referendum, the European Union and the European Convention on Human Rights is that ‘the People’ of the UK are disenchanted by the contemporary form and substance of the UK constitution. As citizens, we feel increasingly isolated from the structures of power that govern our lives. We have come to realise that decisions made by the Commission in Brussels, at a boardroom in Washington, or at a summit in Davos, have as much – if not more – impact on our lives as decisions made at Westminster, Holyrood, Cardiff or Stormont. Meanwhile, much of popular politics suggests that the restoration of ‘sovereignty’ to the nation state would afford us greater control over our lives. However, when powerful individuals and global corporations make decisions that impact all of us, it is far from evident that bolstering national sovereignty will enable us to engage with the might of global private power.

Even during the ‘age’ of constitutions, in the late eighteenth and early nineteenth century, the idea that the nation state constitution represented a true picture of the way power worked in the world was somewhat misleading. Power structures and systems of governance have operated above and below the level of the state since time immemorial. During the period of romantic nationalism in the early nineteenth century, it may have been somewhat convenient to understand power structures within the confines of the state and to tie constitutional mechanisms to the state. In the globalised world of the 21st century – as people, power and capital move rapidly across borders – the idea that a constitution, focusing on the state and its interior order, can limit such power is fanciful.

The old techniques of constitutional law are no longer suitable for dealing with the problems posed by global governance structures. The paradigms of national/international, citizen/state and public/private have long ceased to be an adequate representation of the way power works in the world today. Power is no longer exercised in one central location: the state. Rather, it is more often exercised in the interstices of private life; at local, national, international, supranational and global level. Power is exercised in board rooms, informal meetings, restaurants, on golf courses; ultimately at considerable remove from the formal structures of the state.

Perhaps what ‘the People’ are frustrated with is not the fact that power is exercised beyond the state. Rather, we resent the fact that we are locked out of global power structures and decision making processes. Traditional constitutional mechanisms render us – ‘the People’ – impotent in the face of global governance structures. It has become increasingly evident that voting every five years does not amount to a change in the status quo: it re-enforces the system that is already there or replaces it with more of the same. Voting in a national election does not, and cannot, change the global system within which national governments operate.

Scottish Parliament Building

Scottish Parliament Building

A new constitution, if it is to break with the status quo, must provide for forms of participation and interaction which allow citizens – ‘the People’ of the UK – to pose a challenge to global governance and government. Anything less would be little more than a reaffirmation of the status quo. The exercise of ‘reconstituting’ would be futile: focusing on the written form rather than the substantive provisions of the constitution. Mechanisms of participation must genuinely empower ‘the People’. These mechanisms might include forms of global democracy and global constitutionalism which would enable citizens to challenge the power structures that govern their lives. Only when we feel we have a genuine say in how we are governed will our faith in the constitution be restored.

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Daniel Regan is a member of the Constitution UK Team. He has recently completed a Masters in Public International Law at LSE. He also has a degree in law from Trinity College Dublin. Daniel is interested in the relationship between international law and constitutional law and wrote his masters dissertation on global constitutionalism.  

This post represents the views of the author and and does not give the position of Constitution UK or the London School of Economics.

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Sep 23 2014

Video: Our Constitutional Carnival

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ConstitutionUK Team

ConstitutionUK Team

Scotland has had its say, now it is the turn of the whole UK – and the LSE has already begun! On 26 June 2014 LSE’s new Saw Swee Hock Student Centre hosted a very special celebration of democracy: ConstitutionUK’s Constitutional Carnival. Featuring special guests including Peter Tatchell, Martin Lewis, and Baroness Joyce Quinn, amongst others, this special one-off event brought together members of the School and of the general public in order to create LSE’s very own constitutional moment in the run-up to the project’s second stage: hacking a written constitution for the United Kingdom.

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Sep 15 2014

There are substantial and unacceptable risks in moving to a legal constitution from our current political one

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Sir Stephen Laws

Sir Stephen Laws

Calls for a written UK constitution are not new, but, Sir Stephen Laws argues, a move from a ‘political constitution’, like the one we have, to a ‘legal constitution’, in the form of a new written one, risks paralysing the flexibility that has made the UK model so successful.

I worked at the interface of government, Parliament and the law for 37 years, led the drafters of UK legislation and gave constitutional advice. I’d like to share with the project my doubts about the practicability and wisdom of a written constitution for the UK.

Pre-legislative analysis

One of the first things new legislative drafters learn is that Acts of Parliament can do only one thing: change the law.

The preparation of legislation involves three stages.

  • First, you identify the political objective: the practical change in the real world which is desired.
  • Secondly, you identify whether the law needs to be changed to achieve that objective, and if so what the change is: the legal policy. It may, for example, be the removal of a legal obstacle or “mischief”, such as a restriction on powers or capacity, or it may involve new legal incentives to particular conduct.
  • Lastly, you determine the best way to make that change. Both the legal detail of the change and the drafting must ensure, not only that the change works in purely legal terms to implement the legal policy, but also that it works in practical terms to promote the political objective.

Legislation is likely to go wrong when elements of this process become disconnected. One common risk is the making of false assumptions about how the legal policy might serve a particular political objective. An obvious example is an assumption that prohibiting the way people currently achieve X will prevent them from wanting to achieve X, so they will not try to find another way to achieve X.

Another risk is that, in the development of the legal policy or the polishing of the drafting, those involved will lose sight of how that policy connects with the political objective. Both the political objective and the legal policy are likely to involve modifications of complex systems. Modifications of each will have effects elsewhere in that system, and on the other. Legislating involves assessing the likely impact throughout both systems of the proposed changes. Continue reading

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Sep 1 2014

Enough with the Sanctions: Why Social Security should be just that

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Edward Rice

Edward Rice

In light of recent news stories regarding the sanctioning of benefits claimants, and its aftermath, Edward Rice argues that all citizens should be entitled to a basic level of assistance, reflected in the benefits paid to them by the state in times of need.

There are many bizarre things in our world, things that don’t quite ring true or make sense. Things that we can’t quite process.

Last month, David Clapson died next to a pile of CVs. He death was caused by diabetic ketoacidosis – a lack of insulin. His fridge, needed to keep his insulin cool, was not working as his electricity had been switched off. A few items of food were left in his flat – one can of tomato soup, a tin of sardines, and six tea bags.

What did he do to deserve such a death? He failed to attend two appointments at Jobcentre Plus, of course, resulting in the Jobcentre ‘sanctioning’ him, and withdrawing his income for perceived bad behaviour. Continue reading

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Jun 26 2014

ConstitutionUK Asks Students In Glasgow About The Equality Of Esteem

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The ConstitutionUK team travelled to Glasgow to ask students at the University of Strathclyde about the value of equality of esteem.  They discuss the meaning and implications of everyone in the UK being able to claim the same entitlements. Have your say about the equality of esteem and the other values that underpin ConstitutionUK at our Constitutional Carnival on Thursday 26 June 2014.

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Jun 24 2014

ConstitutionUK Asks Young Mothers About The Guarantee Of Human Security

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The ConstitutionUK team travelled to Derby to ask young mothers about the importance of human security. They discuss what the state must do to guarantee a decent life for the people who live in it. Have your say about the guarantee of human security and the other values that underpin ConstitutionUK at our Constitutional Carnival on Thursday 26 June 2014.

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Jun 16 2014

A Constitution Can Protect Democracy But We Need To Organise To Win Power For The People

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Melanie Strickland

Melanie Strickland

Melanie Strickland explains how a constitution created by the people can best protect democracy. She draws on the experiences of Bolivia and Iceland and how they have attempted to distribute power to citizens. 

A constitution sets out the duties and limits of state power, and the rights of the people. In a democracy, governments rule by the will of the citizens. In the UK today the government is pushing through an unpopular neoliberal agenda including a comprehensive austerity programme, the privatisation of the NHS, a range of corporate-benefit measures including deregulation and economic ‘growth’ laws, corporate tax cuts, tax breaks and other incentives to engage in fracking and other extreme energy projects across the UK, and the stealthy removal of institutions and policies to curb climate change emissions. Such unpopular moves frequently go unchallenged by the corporate and compliant media, who remain silent on issues of public interest, or side with the Establishment by only selecting voices that represent business and Establishment interests. We can see this with the entirely media manufactured popularity of Nigel Farage and UKIP, supposedly a ‘man of the people’.  It cannot be said that we live in a democracy, at least not in any meaningful sense of the term.

(Credit: MrTin.DC, CC by 2.0)

(Credit: MrTin.DC, CC by 2.0)

Before considering what a constitution for the UK could look like, we should first consider who has power in the UK. Today, those who exercise most political power are those who wield greatest economic power.  In the UK, the City of London, as a financial centre, perhaps exercises the greatest political power, by influencing (if not dictating) what laws get passed and what people and policies are promoted. The rewarding of those who helped cause the economic crash and subsequent austerity measures, with taxpayer funded bank bailouts and ongoing support is a stark example of who wields power in the UK. Continue reading

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Jun 10 2014

What To Expect At Our Constitutional Carnival

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Conor Gearty

Conor Gearty

A ‘carnival’ at a university?  On the ‘Constitution’?  What is going on?

For over eight months now we at LSE’s Institute of Public Affairs have been crowd-sourcing a new Constitution for the UK.  Many believe that our current system of government is irretrievably broken down and that it is time for a wholly fresh start.  Our job on the ConstitutionUK project is not to declare our scholarly views on what should be done, but rather to act as a kind of midwife to the views of the public: making suggestions, drawing out ideas, and eventually delivering a constitution that will belong to all, a child of the people.  The final document will be written over next year, in time for the 800th anniversary of Magna Carta in June 2015.

Before that, though, we need another direct hit with the people.  On 8 October last year we had a large public meeting with a series of votes on key issues of principle. Since that exciting evening we have had active discussion on our web site, many essays, suggestions and proposals, and also taken our constitutional road-show out of town, to the regions of England and also Scotland.

The Carnival marks our return to our home base at LSE, and in particular our newly-opened, award-winning Saw Swee Hock Student Centre. We start at 4pm on Thursday 26 June with some introductory remarks and then we send our ‘facilitators’ out to man their various stalls. Our carnival-goers will be able to dip into the sessions they choose, throwing in their opinion, arguing with the facilitators and voting for the kind of Britain they want.  Each stall will run its subject two or three times so there’ll be time to cover more than one.

And what are our subjects?  The exploration on the web since 8 October has guided us to the following topics on which we need decisions from the crowd. Continue reading

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