So I’ve decided that I am going to give this blogging thing another go. I’ll make no promises on regularity because I will have broken them before the new year is upon us. Anyway onwards …
It was the conservative Lord Chancellor (the office itself a gross affront to democracy and the separation of powers) Lord Hailsham, speaking at a 1976 Richard Dimbleby lecture for the BBC, who coined the phrase “Elective Dictatorship”. It is a rather concise explanation of the way in which the UK government work. Our electoral system, to rather simplify things, mandates that the government be formed from whoever can command a majority in the house of commons. This immediately puts a squeeze on the checks and balances idea that the separation of powers is supposed to represent, this is because the executive (the government) branch will always (ignoring the potential for minority governments) have a majority in the legislative branch (House of commons). As a result, of this, the government have a great deal of freedom in terms of how they can legislate. In essence, the government can pass anything that is not so intolerable that their own Mp’s will defy the whip and vote against it. This marks the government of the UK as one of the most powerful executive branches in the world.
Considering the power of the UK government, the need for a strong constitution to protect the people and democracy itself from an overreaching executive should be clear to all. The UK has always been somewhat unique in that our constitution unlike most is not written down in any cohesive or complete document, instead, it is largely cobbled together from spurious sources. In the past, I viewed the uncodified nature of our constitution through somewhat romantic eyes, and there can be no doubt it has some positives such as being more flexible and adaptable to changing times. However recent developments have shaken me out of this romanticism, but this is a point for later.
In a bizarre twist, and a nod to our very class based past, the unelected house of lords can be considered to have historically been the biggest check on the powers of government. However, this has gradually been eroded. This originally was certainly a sign of the UK turning increasingly to democracy, in saying this it is worth remembering there was a time when the house of lords was the more powerful of the two houses. The Parliament Act 1911 (we are talking about parliament in its current conception, which I argue does not exist prior to the representation of the people act 1832 and the blow this dealt the Lords politically, so I don’t need to go any further back than this) can be seen as key to this change, the act dramatically reshapes the powers of the Lord’s and in effect ends the power of the house of Lord’s to block bills substituting this with a mere power to delay, the period by which they could delay was further reduced in the Parliament act 1949. This creates the situation whereby today the house of Lords can only delay Bills by one year, and cannot make any amendments which the commons do not accept. I would argue that this is, with the current undemocratic makeup of the lords, the best-compromised solution. Bills demand a through debate in the commons and although it could be argued tribalism and party whips greatly lower the scrutiny that bills receive, this system, at least, ensures that elected members and not (mostly) appointed Lords have the final say.
The issue of the House of Lords debate has once again been forced into the open by the tax credits debacle. The government have attempted to represent the House of Lords decision to block their proposed changes to tax credits as a “constitutional crisis”, it is not. The issue here rests upon the government’s own misrepresentation of the purposes of parliamentary instruments, the changes to tax credits were attempted using a statutory instrument. Statutory instruments are intended for tidying up legislation and making minor changes not making fundamental changes to the system of in-work benefits in this country which will affect thousands of people. Accordingly the debate time available to statutory instruments scarcely exceeds 90 minute’s, which can hardly be considered proper scrutiny. Therefore, I find the Lord Strachclyne recommendation that the House of Lords have their rights to veto statutory instruments revoked and have a new power, which in effect mirrors that in place for bills under the parliament act 1949, installed in its place wholly intolerable. The use of statutory instruments to sneak sweeping legislation through the back door, something which over the last few governments (of both the conservative and the labour variety) has increased exponentially, can be seen as nothing other than an attempt to avoid scrutiny and debate. Therefore, it is right that when such legislation is ill-thought through or even inappropriate to be passed by statutory instrument the House of Lords retain the right to reject it (I would even support retaining the fatal motion). Such powers do not threaten democracy or the supremacy of the commons they merely force the government to use parliamentary instruments as they were intended.
Aside from the “Constitutional crisis” narrative, we have also been treated to that wonderful Cameronism (read as a meaningless and misleading phrase) that the conservatives are “cutting the cost of politics”. They argue that they are doing this firstly via boundary reform, they are reducing the number of seats in the house of commons from 650 to 600 in more equal constituencies. On paper I absolutely agree with this policy, both houses are far too big, and not only does this cost a lot of money, it also restricts the ability of any individual member to make effective contributions from the backbenches. However, this change is to be introduced utilising a ridiculous system that no other country uses. The reforms will be based not on how many people voted in an area at the last election, or based on the population as a whole instead they will instead be based on how many people are registered to vote on a random day months after an election. Combine this with the new individual electoral registration policy and you can see a massive problem here, namely that moving voters (who are made up primarily of non tory voting demographics, such as students, BAME and those in social housing) will not be counted therefore many areas will be poorly represented, conservative (not the party) estimates suggest that this will benefit the conservatives to the tone of 15 seats at the next election. Combine this with the individual voter registration previously mentioned, which will see plenty of individuals from the previously mentioned traditionally non tory demographics being disenfranchised, and it is easy to see that the conservatives “cost saving measures” will conveniently benefit them considerably at the next election.
Another clever “cost saving” measure to be introduced is cuts to short money, which during the spending review speech George Osbourne convieniently failed to mention (because it doesn’t sound at all bad or partisan or anything). short money is money paid to opposition parties in order to help them operate as an effective opposition and hold the government to account. This money is to be cut by 19% in line with the 2015 spending review, it is worth noting that this represents not only a blatant attempt to hobble the opposition (particularly when taken in conjunction with the trade union bill 2015 which will massively decrease the degree to which Labour can depend upon the trade union’s for funding by forcibly changing them to an opt-in system) but also blinding hypocrisy from a party that happily accepted £45.7 million during their own time in opposition without so much as a word. One of the key checks and balances within our constitution is the presence of strong opposition, our electoral system essentially mandates that the government will be from one of the two main parties (2010 aside coalitions are still very very rare under FPTP) therefore it is exceptionally obscure that the powers of the government should include the ability to alter the amount of money paid to opposition parties. It’s difficult not to interpret this as an affront to democracy and a massive abuse of governmental budgetary power.
Of course what really makes a mockery of all this “cost saving” is the other actions of the government for starters alongside his attempts to revoke a great deal of the lords powers Cameron has also increased the size of the house of Lords more rapidly that any prime minister in history, his reasoning for this is somewhere between trying to defeat the massive combined force of Labour and Lib Dem Lords, who have already defeated him over 80 times since the beginning of this parliament, and rewarding ex-conservative ministers and party donors. It is worth noting this is something all government are guilty of (Cameron’s own speed can be explained by just how big an opposition majourity existed in the house) and this is the reason that we now see the House of Lords as the second biggest legislative chamber in the world and the only upper house in the world to have more members than the lower house. As a matter of personal opinion, it is this and not curtailing the legitimate powers of the house that the government should be concerning itself with as if current trends continue the house will have surpassed 1000 members by the end of this parliament. Considering each peer cost approximately £118,000 and in practice likely much more, quite how a government can claim to be cutting the cost of politics while simultaneously overseeing the biggest expansion of this chamber in history is beyond me. Compound this with Camerons breach of his opposition time promise that ministers in his government wouldn’t have more than one special adviser (every minister has at least 2 and Gideon (George Osbourne ) has 10) which has seen the cost of special advisers increase by 35% since 2011 and it is fairly obvious that Cameron is committed to “cutting the cost” of politics so long as that is off the backs of others and not to his own cost.
Perhaps the single biggest constitutional issue which this government have evoked is the idea of English votes for English laws. The West Lothian question is one of the longest standing issues within the constitutional makeup of the UK. The key question which presents itself is “what about England”? While each of the regions has their own devolved parliament England does not, virtually every proposed solution to this problem has its own issues, this is why finding a solution has been on the agenda of constitutional theorists for years. I won’t waste your time commenting on the positives or negatives of the other possible solutions to the problem other than to say that of all the possible solutions the one which this government have chosen is the worst and least effective option. Firstly it undermines the key parliamentary principle that all members of the house of commons have equal standing as it can be argued that this creates a two tier system which privileges English Mp’s over other MP’s, secondly it fails to give England the ability to legislate independently of regional MP’s instead only giving English Mp’s a veto, for example, the SNP’s blocking of the conservatives attempts to revoke the ban on fox hunting (which I am very grateful for) would not be in any way obstructed by this. However a prospective Labour government would be dependent upon support from Scotland and Wales, whether that be in coalition with the SNP or through recovering from the catastrophe that was May 2015, this means that in the event that Labour ever emerge from the suicidal civil war that currently has hold of the party and somehow find themselves in government they would find it very difficult to legislate on issues which affect only England as the conservatives would in effect hold a vetoing power over them and as repealing English votes for English laws would count as English-only legislation it is very unlikely a future labour government would be able to remedy it. What this government has done in altering the standing orders of parliament in this way is to bind all future parliaments to an aspect of their legislative regime this, much like the very misguided Fiscal charter, runs contrary to one of the fundamental tenants of parliamentary sovereignty namely that no parliament can bind a future parliament. My point in this is twofold firstly that current legislation is undeniably partisan and secondly that without a written constitution we are left very unsure as the legality of government actions and as to where government power starts and ends. A written constitution would have specified whether or not EVEL was legal and how it would need to be passed e.g. a super majority requirement for constitutional changes.
To conclude an unwritten constitution has in the past sufficed as government have respected constitutional principles and conventions, we can see that even in 1997 while making potentially the most sweeping constitutional changes in the history of this country Tony Blair(trust me I am no fan (I originally wrote Tory Blair how freudian)) resisted the urge to make partisan changes or to go beyond that for which he had a mandate. In fact, in devolving power to the regions and creating the convention of needing a parliamentary vote before going to war (Iraq) he actually reduced the powers of the executive. To return to the starting point of this little treatise our government is very much an elected dictatorship and while we are under the control of a government which shows no respect for the unwritten nature of our constitution, one which seems apparently bent on destroying the opposition’s ability to hold them to account we are in desperate need of a written document laying down the constitutional settlement in this country.