24th June 2024
In the Times today there is a letter published from various good sorts putting forward seven practical and easy-to-make steps for a better constitution.
One of the signatories, David Anderson, helpfully posted the letter on Twitter:
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Of course, changes to form and structure can only take us so far. The biggest problem of recent years has been an underlying lack of constitutionalism from government ministers (cheered and clapped by their political supporters). And until attitudes change, then rules will always be gamed or ignored and discretions abused.
But, there has to be a start somewhere to repair the damage, and these are interesting proposals.
The suggestions appear to be:
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independent enforcement of a new ministerial code;
- establishing new systems for managing conflicts of interest;
- ditto, for lobbying;
- improving regulation of post-government employment;
- ensuring appointments to the Lords are only made on merit;
- ensuring other public appointments are rigorous and transparent; and
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strengthening the independence of the honours system, including by ending prime ministerial patronage.
The worthies aver that legislation is not necessary for most of these changes but a short bill would create the necessary powers and embed the independence of the ethics and integrity system.
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Some may say that these proposals are a little “apple pie” – but they would be a move in the right direction, the least that can be done.
Words like “ensuring” and “strengthening” are easy to type – and they are almost as easy to put at the start of a sterling bullet point.
But what is the actual check on misuse? Who in practice will have the power and authority to say “No” to a trespass by a minister of the crown (or by a former minister of the crown)?
The robustness of any regulatory system is not so much in the rules being themselves commendable, but in the rigorous enforcement of those rules and in the ready and realistic availability of sanctions for breach.
In a word: there needs to be tension.
And in our constitutional arrangements, as they stand, only parliament and the courts – rather than third party agencies – have the strength and the legitimacy to check the executive on an ongoing basis, and so for each of these seven laudable aims, one question is how they can be enforced against the government’s will by other strong and permanent elements of the state.
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“The foundation of our freedom is not based in the Bill of Rights. That was an afterthought. Every tinpot dictator has a Bill of Rights which he casual ignores. What was debated in 1787 and what insures our freedom is our STRUCTURE of government which holds each branch (and in turn by its people) to account. Have no illusions. Structure dictates destiny.” Justice Antonin Scalia.
Justice Scalia (and yourself) may be correct in that structure is essential but we shall see in due course whether it is is sufficient.
For what it is worth, I do not think structure is essential – and I am sorry my post enough is not clear on that point. But it is one means of better regulation.
More important is constitutionalism – that is, the general attitude to constitutional questions: in essence, that there are political rules higher than party and personal advantage.
Agree with your point; the question is how might this sin qua non be put in place. To my mind the UK’s problem here is essentially the same as the USA’s: money. Lack of money is a barrier to entry into politics in the US, and grotesque sums dispensable at the whim of its possessors are more a hammer than a finger on political influence scales. As concentration of wealth inevitably becomes concentration of power, the defenestration of non-productive capital from the political realm is a necessary prerequisite to any process modifications. (I don’t purport to claim a substantial bar would be easy to achieve, only that it is (to me) now beyond dispute that for example, in the US, no political structure can long survive a sustained assault by the dispensers of staggering sums.)
Having despaired at the level of greed, naked self-interest and cronyism we have witnessed with this Government, this proposal is long overdue. The next Government must rebuild confidence an trust in the democracy and those representing communities in public life. The lies and evidence of corruption are bad enough but their impact on people’s willingness to vote is the most shocking and depressing outcome.
Ensuring appointments to the House of Lords are made on merit would surely require a job description against which to gauge a potential lord’s or lady’s suitability for a place in the House.
And public confirmation hearings, perhaps, by a cross party committee of Members of the House of Commons and the Lords?
And if a job description were necessary for a Peer of the Realm, sitting in the House of Lords, why not something similar for Members of the House of Commons so that voters may assess candidates’ suitability for the post at General Election time?
Of course, appointments to the House of Lords, like appointments to a Shadow Cabinet and Cabinet are not always about merit, but about politics and, even, party politics.
Plenty of duffers have sat in Shadow Cabinets and Cabinets down through the years because leaving them outside the tent posed a greater risk to a party leader than having them inside.
I see that no ex Head of the Home Civil Service or ex Cabinet Secretary has signed the letter.
Peerages come with the jobs as a rule.
They do not, I think for Permanent Secretaries, even at the Foreign and Commonwealth Office and His Majesty’s Treasury.
Having been considered appropriate for the position of Cabinet Secretary and/or Head of the Home Civil Service would future holders of those positions under any system of appointment on merit be automatically regarded as suitable to sit in the House of Lords?
This is an unfair criticism. The signatories had to be a balance, and there are a number of former very senior civil servants who have signed: Jones, Burns, Jay.
Any government in power too long becomes corrupt, notwithstanding any constitutional/legal protections. (I live in New Jersey, which has an excellent written constitution, drafted as recently as 1948.) Internal checks and balances are useful, but eventually wear down, once everybody who counts becomes too chummy.
If planned instability is the way to go, I would suggest proportional representation and perpetual coalition government. Okay, I guess that doesn’t work as planned for Israel, but …
Israel uses a closed party list system. That’s even worse than FPTP. There is huge variety among PR systems, with some being worse than FPTP but the best being vastly better.
It seems that the only enforcement that the current government will acknowledge is the Police. Many things await criminal prosecution in the hope that they will go away.
So maybe one or some of these could have prosecutor power like. ah yes. The Post Office.
The Post Office did not have any special prosecution power. They used private prosecutions, which any citizen can bring.
theoretically, yes, but very few private citizens have the resources to do that. The PO had a standing and tradition, plus finance. In practice we’d need a large agency with a public reputation for independence of thought and with a big purse. Better surely to create such an agency, or beef up an existing one.
Perhaps the closest we’ve had to a powerful agency capable of intervening on issues of integrity, albeit with limited rance, was the Electoral Commission, now much weakened.
My preferred option (apologies for broken record) would be a Karlsruhe-style constitutional court with independent powers of investigation and prosecution, but without some kind of pre-GE pledge from candidates to support creation of such as first business of a new parliament, I can’t see it happening. Pledge could include something like the 2/3 (if memory serves) majority required in the Bundestag for any revision of Karlsruhe’s powers / competence. If the good people behind this list of aspirations could draft a concrete proposal, and campaign for it ahead of the next GE (far too late for this one) then maybe something interesting could occur.
Could I suggest one quick, simple and effective reform for the Lords would be to abolish all of the titles. Do they serve any purpose other than to attract people for the wrong reason? As a first step towards a democratic solution make the appointments purely for working membership of the second chamber. Call them all senators, perhaps, but deny them the dubious pleasure of pretending they’re our betters because they’re called Lord and Lady Muck, or whatever.
The problem from my politically oriented perspective is that none of this addresses the populist challenge we face. Sensible debate on what can be done to restore trust in politics is only possible if that is a widely shared objective.
Unfortunately, it is not. Populists – and their media supporters – do not want to restore trust in government. Rather the opposite. The populist response to accusations of corruption and of violating constitutional norms is not to deny the charges but to claim that everyone is corrupt and that they (the populists) are more honest than their opponents because they are quite open about the matter. Trump is the obvious role model in this respect, with many imitators. While populism seems likely to suffer something of a setback in the UK next month, the same cannot be said of its prospects elsewhere in the world.
Nigel Farage is on track to get as many as 1 in 5 of the votes cast on 4th July, but next to no Reform Party Members of Parliament.
Sir Keir’s Labour Party is on track to get 400 MPs with just over a third of the votes cast and on a populist programme, too.
Populism is not on track to suffer a setback.
Quite the opposite, if the polls prove accurate.
Nigel Farage, incidentally, is for Proportional Representation for Westminster elections and serious reform of the House of Lords.
Sir Keir is currently for neither.
Yes, Nigel Farage is an example of a populist (and not just because of his admiration for Trump). But Keir Starmer is not, given his longstanding commitment to constitutional government and liberal-democracy. He also lacks the personal charisma to play the role of a populist leader. Not all politicians are populists, just as they are not all corrupt. If the results of next month’s elections are as skewed as polling is suggesting, then a debate on the electoral system seems bound to happen. On this issue, the Labour Party is by no means hostile to change, as is evident from its manifesto. despite the absence of a commitment to introduce proportional representation for national elections.
Thanks. I offer the following : –
For our main political parties & BBC’s “Your Voice, Your Vote”
My questions for our party leaders come from a decade’s search (for my grandchildren) for the most important issues facing the UK as seen by the public, pundits and the press. About 50 emerged* (see below). They can be grouped under 6 headings, leading to 6 four-barrelled Questions – or a 7th.
A) Our Democracy can not work without trust.
We decreasingly trust our politicians or system of government – across most popular big issues. I’ll use Housing (worst in Europe) as a typical example.
Q. 1) To start restoring public trust in you on Housing, would you : –
a) Threaten low price compulsory purchase of developers’ land
banks if the pace of development is inadequate;
b) Enforce enough low cost social housing in new development;
c) Make all houses well insulated, with non-fossil-fuel heating;
d) With safeguards for landlords, end no-fault evictions?
B) Our political system is not working smoothly and efficiently.
Developed ad hoc, it is an un-designed patchwork of differing sorts of democracy and voting systems. Local government has become largely an arm of the centre. Corruption and abuse of power increase.
Q. 2) Over the next Parliament will you : –
a) Make the law and the legal system affordable and accessible;
b) Re-fund and re-empower lower levels of government;
c) Build institutions and processes to get more public involvement;
d) Use Citizens’ Assemblies to review our constitution, including
control of privilege, party funding and political dishonesty?
C) To be more involved with our rulers, if we so wish, we need our health.
The hope of the Beveridge/Bevan NHS was a health system for all, a hope then adopted in many countries. The NHS became a leader in value for money. Particularly since 2010, it has fallen back. We are now almost the unhealthiest people in Europe – & Covid showed unequal provision.
Q. 3) Will you largely repair & reform the NHS and Care by : –
a) At last implementing Dilnot or a comparable alternative;
b) Reduce private profit-taking in both the NHS and Care;
c) Restore health funding to comparable EU levels;
d) Emphasise cheaper prevention now over costly cure later?
D) Similarly, we need to be differently educated.
Private schools perpetuate privilege, state school buildings crumble, curricula narrow, staff despair, Adult and Further education remain Cinderellas, many universities face bankruptcy.
Q. 4) (How) will you : –
a) End the perpetuation of privilege by the private school system;
b) Build the status and funding of Adult and Further education;
c) Make “Personal and Social Education” not merely as important and
well resourced as, say, Maths but the core of schooling – not job
fodder but the development of social citizens;
d) Ensure that the university system is adequately funded – while not
being confined to serving the economy?
E) Move the driver of Economics from profit for some to benefit for all.
“Man lives not by bread alone.” This sentiment has been expressed by several conservative writers, not just the rabid left. The Thatcherite model of the predominance of monetary greed is perhaps weakening. Meanwhile, rich get richer, poor poorer – and public services decline.
Q. 5) Our economy isn’t working for society or people, so will you : –
a) Make paying less than the living wage a crime;
b) Tax wealth, cap top rewards, reduce tax avoidance;
c) Use company law to enhance social and environmental values;
d) Ensure a similar shift in university economics syllabuses?
F) Take a more world-wide perspective.
“No man is an island” and nor is any country. We are part of one world.
Q. 6) Will you work rapidly to : –
a) Restore Foreign Aid to 0.7% and make it more useful to poor nations;
b) Reform the main world bodies for the World, not the West;
c) Further international (even supra-national) efforts on tax, money
laundering, crime, migration, Weapons of Mass Destruction, water,
control of AI, world population, and health;
d) Meet the 2022 IPCC Report’s climate change recommendations?
G) OR, if you can not make these commitments,
Q. 7) Please explain why not and what comparably ambitious actions you propose instead – even if that means a National Government for, say, two Parliaments?
* For those who wish to go below the surface, I can provide a list of the main readings which, between them, brought me to these Questions. However, the reaction and synthesis, and therefore any blame, are mine.
Peter Watts, 01289 302 389, peterswatts06@gmail.com – 18/6/2024.
That’s very long so I’ll only comment on some particularly egregious points.
Q1. Development pace is dictated by NIMBYism and planning authorities. It would be grossly unfair to blame developers and compulsory purchase would make things worse.
Enforcing low cost housing (i.e. cheap rubbish) is what gave us inner city tower blocks that nobody wanted and had to be demolished. We should be doing the exact opposite – enforcing minimum standards so houses must have a large garden, garage, and plenty of off-road parking. Building hosing is much cheaper than you think – if you own your own house look at the rebuild cost that your insurer thinks is suitable – it’s far less than you paid for it because the permission to build is so valuable.
If you enforce non-fossil fuel heating are you willing to hold to that when it means that some people have no heating at all?
Insulat all houses? Even listed buildings which cannot be economically insulated?
The main safeguard for landlords is no-fault evictions. And obviously, for a ban to be effective there must also be rent controls which have been implemented in many countries at many times with the same effect, which is that it greatly entrenches the privilege of the established tenants at the cost of those seeking new tenancy (whether due to starting renting or merely moving). The problems tenants face are driven by the lack of housing which is driven by NIMBYism. Fix that, allow a lot more building in a short time, and market forces guarantee that renting wil be cheap and easy. Fail to fix it and you’re just moving the problem around achieving nothing.
“from profit for some to benefit for all” Such a thing has been widely sought and never found. First prove it is even possible.
“Meanwhile, rich get richer, poor poorer”. The poor are not getting poorer. They are getting richer. Unless, of course, you use a deceitful measure of poverty which is relative poverty, in which case you are doomed to never eliminate poverty as the best efforts raise everyone’s wealth and therefore show no benefit by that measure.
” even if that means a National Government for, say, two Parliaments”
We’re about to have a Labour goverment with a huge majority. What more do you want? A dictatorship?
Affordable housing should not be an add on to an over-priced commercial development. Just fund affordable housing through local authorities – i.e. council housing but with no RTB). It’ll soon pay for itself through rent receipts and savings on housing support and a reduction in temporary accommodation costs. And re-introduce the Parker Morris standards for public housing.
If “Affordable” housing pays for itself, it is overpriced and the implementers do not know what they are doing. The whole point of supporting people get housed is that they cannot afford a fair market price, so you have to provide housing at below market price, which is a net cost. If local government is making a profit on it, they’re doing it wrong (e.g. targetting the wrong people, failing to help those who most need it).
Could any of this be done piecemeal? For example, taking the ministerial code and turning it into legislation: effectively prefacing the code with ‘it shall be a criminal offence to ..’ and with sentencing guidance at the foot of it.
Then look for the next grand-sounding-in-theory-but-ineffective-in-practice ‘code’
What is wrong with establishing an organ of parliament whose only job is providing a credible mechanism for delivering the sort of accountability that our popularity contest winners have proven incapable of? It would have to be free from political party interference and advised by experts at law. It should be made up of a representative sample of the people parliament has been hitherto defrauding.
If sortition is a viable mechanism for selecting people to make weighty contested decisions over the liberty of his majesties subjects, it must also be a viable mechanism for selecting people to decide whether his ministers are compliant with the uncontested standards expected of them.
“If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”
James Madison
The Federalist Number 51
Wednesday 6th February 1788
Amending the Treason Act so that it would be a criminal offence to damage the nation’s future prosperity (as measured by GNP / GDP), deliberately and for personal gain, punishable in peacetime by a penal sentence up to life imprisonment, with proceeds recovered under the Proceeds of Crime Recovery Act, and automatic forfeiture of any pension associated with public office and of any honour or award. If the offence took place while the nation was engaged in armed conflict, capital punishment would apply.
And thus you become even more illiberal than the illiberals you affect to oppose. Not thank you.
What would be the objection to creating a select committee of the Privy Council and perhaps the Supreme Court to assist the Sovereign in exercising greater discretionary powers? Presidential Power exercised by a Prime Minister has not been democratic.
Until recently we might have looked at the Supreme Court and constitution across the Atlantic.
Trust is a personal thing – you trust a person rather than an abstract concept (politics) or an institution. The comments include reflections on how much we might trust regulators. Can we really delegate our trust to regulation, and our judgement to additional public servants?
Trust might be best strengthened by public servants being objectively good at their jobs which requires clarity about what the jobs and purposes of government are.
This starts with Parliament where MPs who are paid public officials who play as much of a role in government in opposition as they do on the government benches.
Parliament is a privileged place for representation, not for campaigning. Parliament – rather than broadcast or social media – is a privileged which scrutinises the decisions and action executive in the exercise of the powers and the stewardship of the money which it has been granted (voted) by Parliament.
Elections call the MPs to account by an electorate who ideally understand the role of government and what is proper and possible in public administration.
Ideally these institutions and individuals are regulated by a culture of public duty, ethical behaviour and common humanity. If this element is weak, more rules or aspirations might not help.