Apr 16 2014

Abolish The Lords, Elect The Senate

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Peter Tatchell

Peter Tatchell

Human rights campaigner Peter Tatchell argues that the House of Lords should be replaced by an elected Senate, as part of a new UK constitution. He outlines three radical, innovative election systems for the second chamber.

In the twenty-first century, it is time that British democracy ditched the unelected, aristocratic past. The House of Lords is a remnant of feudalism, still based on patronage and peopled by the supposedly great and good.

We need, and deserve, a fully elected second chamber – a Senate – to scrutinise and revise legislation from the House of Commons and to hold the government to account. This Senate should, in my view, be made up of members elected by, accountable to, and removable by, the public.

It would, however, be a big mistake to elect the Senate on the same or similar basis to the House of Commons. This would make it little more than a Commons Mark 2.

We need a system of Senatorial election that is radically different, to ensure that its composition does not merely replicate the make-up of the lower house.

This could involve a new election model based on party lists in large regional constituencies corresponding to the existing constituencies that we use for European elections. These big regional constituencies would help to more accurately reflect the regional strengths and weaknesses of the various political parties and give representation to smaller parties that are currently unrepresented or under-represented at Westminster.

Under this system, it could also be a legal requirement that party candidates and their order on the party list should be decided by a secret ballot of all party members in the region, conducted by an independent Election Commission or by the Electoral Reform Society. This would prevent the abuse of the democratic process by party managers putting loyalists and favourites at the top of the party list. Continue reading

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Mar 31 2014

A Right To Public Space?

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Antonia Layard

Antonia Layard

Public spaces are often overlooked when discussing constitutional issues in the UK. Professor Antonia Layard considers the current problems concerning access to public space in both rural and urban areas across the UK . She suggests changing this by reclaiming the remaining areas for public space.

“Get off my land”. The expression is one of the defining leitmotifs of property law, conjuring up visions of rural landowners in wellies, monitoring use of their estate. The assumption is that the site is “private property” with which the landowner can do as he or she wishes.

In rural locations, there are public footpaths and voluntary agreements with farmers giving access. Since the Countryside and Rights of Way Act 2000, we have also had the “right to roam” on mapped open access land, which includes mountains, moor, heath and down as well as registered commons. Since the Marine and Coastal Access Act 2009, there are also plans for access to the entire English coastline. Once walking, we can take a dog (on a lead) and have a picnic (though not bathe in non-tidal water nor use a metal detector).

The schemes are not perfect; footpaths may be unavailable or too intrusive, while appropriate conduct is legally prescribed. Yet even Kinder Scout is now managed by the National Trust and Andrew Robert Buxton Cavendish, the 11th Duke of Devonshire, apologised on the 80th anniversary for the “great wrong” done by his grandfather to those taking part in the mass trespass in 1932. There are now some shared assumptions about a right to rural space.

So, what of cities, towns or suburbs? Here we have access to the highway, following an important decision in DPP v Jones in 1999. Both the road and the pavement, though, are congested with traffic of all kinds and both prioritise “flow” over using the space in more stationary ways. Where then is public space? Where can citizens come together and engage in a shared associational life, or even walk a dog, hand out a leaflet, play a guitar or a game? Continue reading

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Mar 28 2014

Select Committee Has Exposed The Values Of Our Unwritten Constitution

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Jack Simson Caird

Jack Simson Caird

Jack Simson Caird writes on a recent report by the Constitution Unit at UCL on ‘The Constitutional Standards of the House of Lords Select Committee on the Constitution’. He mentions how the Committee’s work has explored the key values of our current constitution in the UK.

The United Kingdom’s unwritten constitution is complex and inaccessible. This, as other contributors to this blog have said, is problematic for the citizens of the United Kingdom. However, it is also problematic for parliamentarians, MPs and peers, who are supposed to scrutinise legislative proposals in Parliament. There is no formal constitutional amendment procedure and this can make it difficult to tell how a legislative proposal will impact upon the constitution.

To remedy this difficulty, there is a parliamentary committee that is dedicated to explaining how legislative proposals affect the unwritten constitution: the House of Lords Select Committee on the Constitution. This Committee is made up of expert members of the House of Lords, and is served by two legal advisers. This expertise enables the Committee to overcome the complexity and inaccessibility of the unwritten constitution, and their main role is to produce reports that inform the House of Lords, by explaining how a particular proposal could change the unwritten constitution, to help peers to scrutinise the change in question.

A recent report by the Constitution Unit, a think tank based at University College London, extracts all of the constitutional standards the Committee has identified since it was established in 2001. Each standard is a rule derived from the unwritten constitution. The code in the report contains 125 standards organised into 5 sections: the rule of law, delegated powers, the separation of powers, individual rights and parliamentary procedure. Continue reading

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Mar 26 2014

The UK’s (Unusual) Constitution

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This post is aimed mainly at those who attended my recent talk at the Cambridge Sixth Form Law Conference on “The UK’s (unusual) constitution”. The talk’s point of departure was Lord Neuberger’s recent (and surprising) suggestion that the UK has no constitution. I argued that this goes too far, but that the UK’s constitution is certainly unusual. Using the status of human rights generally, and the prisoner-voting case as a particular example, I explained that the UK’s constitution is unusual both because it is “unwritten” (in the sense that there is no single text that we regard as “The Constitution”) and “flat” (in the sense that the status of constitutional law is not hierarchically-superior to other, regular law). I went on to explain, however, that to approach such matters only through the domestic legal prism of parliamentary sovereignty may be misleading, and that other considerations – including the constraining forces of politics and of international law – must be factored in if we are accurately to understand the nature of the modern British constitution.

(Credit: Alex Loach, CC by 2.0)

(Credit: Alex Loach, CC by 2.0)

I have uploaded the slides that accompanied my talk to Scribd:

If you want to do some further reading, here are some suggestions. First, you might like to read chapter one – which can be accessed free-of-charge online – of the soon-to-be-published second edition of Elliott & Thomas, Public Law (OUP 2014). You might also want to read the following posts on this blog which touch on themes that were addressed in the lecture:

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Mar 17 2014

Constitutional Reform: An Opportunity To Respond To The Opportunities And Challenges Of An Ageing Society

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Ilona Haslewood

Ilona Haslewood

Constitutions have the potential to give a voice to minority groups in society. Ilona Haslewood from the Joseph Rowntree Foundation explains how a constitution could improve the quality of life for older people. She mentions how thinking about constitutions will give us an opportunity to collectively think about what kind of older age we want for ourselves.

Similar to many other western countries today, the UK’s population is ageing: on average we are living longer, and are predicted to live longer still. This ought to mean that becoming older should be seen as a valuable part of life, not only as loss and decline. It is clear, however, that this perception is still far from universal. It can be very uncomfortable to face up to our own ageing, much of the detail may as yet be unknown too, so we often simply avoid thinking about it.

Many of those who do think about this tend to voice concerns that the growing proportion of older people will become an impossible burden, especially at a time of shrinking public spending and increasing demands on younger people. At the more extreme end, older people get blamed for ‘hoarding’ wealth and enjoying retirement at the expense of younger generations.

The Joseph Rowntree Foundation’s work on an ageing society focuses on those who don’t have a good quality of life and who lack the power to have themselves heard. We know that there are many older people, particularly, but not exclusively, among the oldest, who have high care and support needs, perhaps because of a severe disability (around 40% of people over 85), loneliness (46% of those aged 80+) or dementia (estimated at 670 000 people in the UK). The majority of these people are women, as are their carers. Continue reading

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Mar 11 2014

Diego Soto-Miranda: The Merits Or Otherwise Of A New UK Constitution

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ConstitutionUK Team

ConstitutionUK Team

Professor Conor Gearty interviews Diego Soto-Miranda, a barrister specialising in Commercial Law at 1 Essex Court Chambers. Diego was born in Colombia and diagnosed with spinal muscular atrophy from a young age. He discusses whether creating a new constitution will benefit the UK and what parts of the UK’s existing constitution could be changed. You can find the video here. Continue reading

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Mar 10 2014

Crowdsourcing A UK Constitution: Costs And Benefits

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Frank Vibert

Frank Vibert

Constitution-making is a complex and lengthy process. Frank Vibert explains the stages involved in the process and discusses the challenges involved in these phases. He goes on to ask how we can decide on the content of a modern constitution and concludes with an analysis of the costs and benefits of crowdsourcing a UK constitution.

Constitutional essentials 

The idea of a constitution rests on three pillars. First, a constitution is foundational. It marks the start of a polity, or a restart, or a transformation.  Secondly, it is canonical. It is intended to set out long-lasting and difficult-to-change ‘rules of the game’ within which power is exercised. Thirdly, it is purposive. For example, the checks and balances written into the American constitution were intended to make possible a democratic way of life.

These three pillars remain at the centre of thinking about the relevance of constitutions in today’s world. For example the case for a British constitution being considered by the House of Commons Committee on Political and Constitutional Reform rests on the idea that the UK is in a transformational period in its relations with the EU and with the devolved parts of the UK. The new rules of the game should be spelt out clearly. They should show how democracy works today for UK citizens despite the many changes in the way that powers have been dispersed and shared.

The overarching difficulty with constitution-making in modern circumstances is that each of these three essential components of a constitution needs to be rethought. For example, the foundations of a political system need to reflect the variety of the sources of authority recognised in modern democratic societies. In particular there is a need to reflect the greater role played by experts and expertise in helping societies navigate through contemporary public policy problems.

(Credit: Paul Harding, CC by 2.0)

(Credit: Paul Harding, CC by 2.0)

The canonical components are also difficult to crystalise in contemporary democratic practice. The mix of authority used in modern societies is constantly changing. We need to think about the resilience of rules and institutions in terms of their ability to help societies adapt to change rather than to resist change. ‘Adaptive bias’ in the sense of an institutional bias in politics, the law, civic and religious associations in favour of the past needs to be addressed.

Expression of the purposive functions of a modern constitution is a further difficulty. Modern societies are distinguished by their heterogeneity. There is an absence of a common perspective on basic values, the basic objectives of association and of the means to realise those values and objectives. Continue reading

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Feb 27 2014

StudentVoice: Why We Should Have Votes at 16

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Yasmin Rufo

Yasmin Rufo

StudentVoice is working to become the representative body for school students in the UK. 16 year old Yasmin Rufo, StudentVoice’s Director, explains why it is important to include votes at 16 in a contemporary constitution.

Given Ed Miliband’s pledge on allowing 16 and 17 year olds to vote, Scotland’s referendum, the changes to school leaving age and political education being a top priority, there is no better time than now to implement votes at 16. With nearly 500,000 young people voting in the UK Youth Parliament’s Make Your Mark ballot last year, it is clear that young people are engaged in politics and issues affecting them.

A Polling Station (Credit: Garrett Coakley, CC by 2.0)

A Polling Station (Credit: Garrett Coakley, CC by 2.0)

Now that the government has raised the school leaving age to 18, 16 and 17 year olds (with encouragement from teachers and peers) will be more likely to go out and vote. Looking at previous elections, it is clear that if you vote the first time that you are allowed to then you are more likely to vote regularly.

By getting more young people involved in politics through citizenship and political education, we should see an increase in the number of young people interested in politics and wanting to pursue a potential career in it. With the average age of an MP being 50 and there only being 147 female MPs (out of 650), it is vital that our government starts engaging with young people and under-represented groups. Continue reading

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Feb 24 2014

In LGBT History Month, Is Constitutional Reform The Way To Protect Minorities?

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As LGBT History Month draws to a close, Lance Price, Executive Director of The Kaleidoscope Trust asks whether constitutions are the best way to protect and promote LGBT rights. With expectations of Uganda signing an anti-homosexuality bill into law, he investigates whether constitutions can truly protect against unconstitutional acts.

Every February LGBT (lesbian, gay, bisexual, trans) History Month is used as an opportunity to celebrate the lives and achievements of our ‘community’. The focus of the month is rightly on what individuals have done to empower themselves and those like them, or to contribute to society more widely as a person who lives, loves and shares intimacy outside, in that clumsy phrase, hetero-normative traditions. But it is a useful moment, too, to reflect on how valuable constitutional protections can be in providing the space and opportunity for us to develop to our full potential and resist those who would hold us back.

There’s no doubt constitutions can be a bulwark against discrimination. Generally speaking they are seen by LGBT activists as a vital tool in seeking to prevent governments from passing, upholding or implementing laws that violate the principles of equality and justice for all. Witness the celebrations across the United States when the Supreme Court ruled the Defence of Marriage Act unconstitutional, paving the way for thousands of American citizens to have their love for each other recognised on an equal footing with their straight friends and families.

(Credit: Phillipa Whillitts, CC by 2.0)

(Credit: Phillipa Whillitts, CC by 2.0)

Witness, too, when the post-apartheid constitution in South Africa became the first in the world to outlaw discrimination based on sexual orientation. The Constitutional Court has since ruled that transgender people should be entitled to the same protection, effectively adding ‘gender identity’ to the list of prohibited grounds for discrimination.

Elsewhere in the world, and in particular where post-colonial constitutions were drawn up to reflect the 1948 Universal Declaration of Human Rights (“All human beings are born free and equal in dignity and rights”). The wording is less precise and where specific rights to equality are detailed they do not include sexual orientation, much less gender identity. And international bodies, for example the Commonwealth and the International Olympic Committee, to name just two that have been subject to controversy in recent months, have shown a deep reluctance even to consider including sexual orientation among the explicit protections in their governing charters. Continue reading

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Feb 10 2014

Constitutional Amendments by Referendum: Same Sex Marriage in Croatia

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Christine Stuart

Christine Stuart

On 3 December 2013, the Croatian public voted in support of adding a provision to their constitution which defines marriage as “a union between a man and a woman”. Croatians effectively voted to constitutionally entrench a ban on gay marriage. The prohibition of same sex marriage in the constitution is not in itself particularly unexpected in Croatia, with a whole host of eastern European nations failing to recognise the marriage of same sex couples. What is perhaps more surprising, argues Christine Stuart, is the means by which it occurred.

Following the 2011 election, the new coalition government in Croatia announced their intention to expand the rights of same sex couples. In a country where approximately 90% of the population consider themselves to be Catholic, this decision was not well received by many religious groups. The response by Catholic group “In the Name of the Family” was to launch a public initiative to propose the constitutional entrenchment of the definition of marriage as being between a man and a woman. An overwhelming 750,000 citizens signed the petition calling for a referendum on the matter, almost 20% of all eligible voters in the country. As per Croatia’s Constitution, Parliament is obliged to call a referendum when

A highly religious society,  90% of the population of Croatia consider themselves to be Catholic (Credit: photoantenna, CC BY 2.0)

A highly religious society, 90% of the population of Croatia consider themselves to be Catholic (Credit: photoantenna, CC BY 2.0)

requested by 10% of the total electorate. So whilst the President and Prime Minister of Croatia both fiercely opposed the constitutional amendment, the 10% threshold was surpassed and the referendum went ahead. Two thirds of those who turned out voted in favour, and subsequently the government was forced to announce that the prohibition of same sex marriage in the constitution would go ahead.

Prior to the referendum taking place, Croatia already had a legal definition of marriage. Article 5 of the Family Act 2003 states “Marriage is a legally regulated community of a man and a woman.” So why the need for a constitutional definition? The reasoning behind defining marriage not only by law, but also in the country’s higher law, was to ensure that the definition of marriage became particularly difficult to change. To amend the constitution, a two thirds majority vote in Parliament is required. This is no mean feat, particularly with regard to controversial or divisive subject matters. With 13 parties currently represented in the Croatian Parliament, a supermajority becomes impossible without significant cross-party consensus. Thus defining marriage in the constitution had the purpose not only of limiting the rights of same sex couples, but also of ensuring that this limitation persists long into the future. Continue reading

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